Category: Contract Disputes



The act of Quieting Title on property is intended to produce clear and marketable title.  If a property’s title is not clear and marketable it likely has a title defect, also known as a “cloud.”  Title defects are called clouds because the defect may obscure the property’s true owner or reflect that a party has an interest in property when it actually does not.

Clouds on title include deeds that break an otherwise clear chain of conveyances or an unreleased mortgage that secures a loan that was actually paid off.

Clouds on title are often discovered when property is being sold.  Sellers almost always have a contractual obligation to transfer clear title to the buyer.  As a result, the seller obtains a title insurance company to search the property’s title history.  If a cloud on title appears, it may need to be resolved with an action to Quiet Title.

The seller, often through an attorney, files a Complaint to Quiet Title in the Illinois Judicial Circuit where the property is located.  The Complaint explains the cloud on title and why it should be removed.  The court then determines whether or not the cloud is a legitimate claim on the property.  If the cloud is not legitimate, the court issues an order removing the cloud from the property’s title history.

For example, you attempt to refinance the current loan that you used to buy your property.  The new loan will be secured by a new mortgage.  But before your lender provides the new loan, it uses a title insurance company to check your property’s title.  Although unlikely, it is possible that the lender’s title insurance company finds an old mortgage recorded against your property that was given by a previous owner.

A Complaint to Quiet Title would allege that the loan secured by the old mortgage was actually paid off.  As a result, the holder of the old mortgage should have released it from your property’s record.  The old mortgage is still of record by mistake.

In this case, the court hearing your Quiet Title action is highly likely to order the old mortgage released from your property’s title history.

Having a good attorney can help further understand how to Quiet Title and whether it is necessary to resolve any clouds on your property’s title.





Illinois Courts do not favor changing written contracts between parties – also known as reformation of a contract.  Kolkovich v. Tosolin, 19 Ill.App.3d 524, 527-28 (4th Dist. 1978) (stating that “courts should proceed with great caution in reforming written instruments”).  Nevertheless, reformation is within the jurisdiction and duty of a court of equity if the contract does not reflect the parties’ mutual intent.  Id.

A contract is presumed to express the parties’ intent and will not be reformed without clear and convincing evidence of mutual mistake.  U.S. Bank Trust, N.A. v. Colston, 2015 IL App (5th) at ¶ 26.  Reformation is generally based on mistakes of fact.  Patrick Media Group, Inc. v. City of Chicago, 255 Ill.App.3d 1, 5 (1st Dist. 1993).  However, in some circumstances reformation can be based on a mistake of law.  CitiMortgage, Inc. v. Parille, 2016 IL App (2d) 150286 at ¶ 31.

Despite Courts’ conventional reluctance to reform written instruments, one instance where reformation is more routinely granted is correcting minor mistakes in the legal description of property encumbered by a mortgage.  See Colston, 2015 IL App (5th); First Midwest Bank v. First Midwest Bank, 2016 IL App (1st) 151930-U (unpublished); CitiMortgage, Inc. v. Vinarov, 2018 IL App (1st) 170279-U (unpublished).

In Colston, the Court found clear and convincing evidence of mutual mistake in a mortgage’s legal description when the description did not include the house, detached garage, and all five acres of the property.  Colston, 2015 IL App (5th) at ¶ 26.  The Court used an appraisal prior to the mortgage and defendants’ bankruptcy schedules (that listed the house) to reform the legal description.  Id.

The First Midwest Bank Court used the legal description from previous deeds and a survey of the property as grounds to reform a legal description in a mortgage that included the terms “Northwest” and “Block L,” rather than the correct “Northeast” and “Block 1.”  First Midwest Bank, 2016 IL App (1st) 151930-U at ¶ 27.  Vinarov also used the legal description from previous conveyances to correct typographical errors in a mortgage legal description.  Vinarov, 2018 IL App (1st) 170279-U at ¶ 21.

In addition, most mortgages today also refer to the encumbered property’s common address and permanent index number (“PIN”).  Along with a tax map, the common address and PIN can be used to correlate the property to its correct legal description.

Other fact patterns make it more difficult to meet the clear and convincing standard that a mortgage should be reformed.  See Parille, 2016 IL App (2d) 150286.  In Parille, a husband and wife owned the property as tenants by the entirety.  Id. at ¶ 3.  The wife’s signature on the subject mortgage was not qualified with any additional language.  Id. at ¶ 7.  However, the husband executed the mortgage “for the sole purpose of waiving homestead rights.”  Id.

Plaintiff argued that the mortgage should be reformed to remove the qualification on the husband’s signature.  Id. at ¶ 29.  After a 735 ILCS 5/2-615 motion to dismiss the plaintiff’s reformation count, the Court outlined elements required to plead reformation:

(1) The existence and substance of an agreement between the parties and the identity of the parties to the agreement; (2) that the parties agreed to reduce their agreement to writing; (3) the substance of the written agreement; (4) that a variance exists between the parties’ original agreement and the writing; and (5) the basis for reformation (e.g. mutual mistake).”  Id.

Although the Parille Court overturned the lower Court’s dismissal of the plaintiff’s reformation count, it did note that its reversal was not a suggestion that the plaintiff could establish reformation of the mortgage by clear and convincing evidence.  Id. at ¶ 29.  Indeed, this would be a difficult standard for plaintiff to meet with the husband claiming no mutual mistake and that he intended to execute the mortgage only to waive homestead rights.

Illinois Courts appear more willing to reform a contract to correct small or typographical errors.  Reformation of a contract to change the capacity in which one of the parties executed the document seems a steeper hill to climb.  Especially if the other party denies any mutual mistake occurred.

For additional reading on reformation see:


Quist v. Streicher, 18 Ill.2d 376 (1960);

Shelor v. Witt, 69 Ill.App.3d 172 (3rd Dist. 1979); and

Goodwine State Bank v. Mullins, 253 Ill.App.3d 980 (4th Dist. 1993).