Comerica Bank-Illinois v. Harris Bank Hinsdale ( 1996 )


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  •                                                                FOURTH DIVISION
    November 7, 1996
    1-95-0542)
    Nos.  1-95-0733)  Cons.
    1-95-0814)
    1-95-4362)
    COMERICA BANK-ILLINOIS, an Illinois      )
    Corporation, as Successor in Interest    )
    to Affiliated Bank/North Shore National, )
    a National Banking Association,          )
    )
    Plaintiff-Appellant/           )        Appeal from
    Counterdefendant-Appellee,     )     the Circuit Court
    )      of Cook County.
    v.                                  )
    )
    HARRIS BANK HINSDALE, Not Personally but )
    as Trustee Under a Trust Agreement       )
    Dated January 8, 1990, and Known as Its  )
    Trust No. L-2506; HILLSIDE-1 GENERAL     )
    PARTNERSHIP, an Illinois General Partner-)
    ship; MARK J. MARINELLO; SHELI Z.        )
    ROSENBERG; CARL M. DeFARIA and METRO     )          94-CH-4616)
    RESOURCE INVESTMENTS, INC., an Illinois  )    Nos.  94-CH-7059)
    Corporation,                             )
    )
    Defendants-Appellees/          )
    Cross-Appellees,               )
    )
    v.                                  )
    )
    CHICAGO TITLE AND TRUST COMPANY, an      )
    Illinois Corporation, as Trustee Under a )
    Certain Trust Dated January 31, 1990, by )         Honorable
    and Between Said Trustee and HARRIS/BANK/)     Lester D. Foreman,
    HINSDALE, N.A., as Trustee Under Trust   )      Judge Presiding.
    No. L-2506, Dated January 8, 1990, as    )
    Mortgagor; and GREENLEAF REALTY MANAGE-  )
    MENT CO., INC., an Illinois Corporation, )
    )
    Cross-Appellants/              )
    Counterplaintiffs-Appellants.  )
    JUSTICE THEIS delivered the opinion of the court:
    In this consolidated appeal, a first and second mortgagee ask
    this court to review the trial court's order awarding rents to a
    mortgagor who defaulted on its first and second mortgages.  The trial
    court placed rents initially collected by the first mortgagee into the
    hands of a receiver.  The court then ruled that the rents should be
    returned to the mortgagor because the mortgagor was in possession of
    the property at the time the rents were collected.  We affirm.
    Comerica Bank-Illinois, as the successor in interest to
    Affiliated Bank/North Shore National, issued a first mortgage on the
    Family Square Shopping Center in Hillside, Illinois.  In addition,
    Comerica recorded both the mortgage and an assignment of rents and
    leases as security for the loan.  The assignment of rents provided
    that Comerica could collect rents from the property without taking
    possession of the property, and without exercising its other options
    under the mortgage.  Chicago Title and Trust Company, as trustee,
    issued a second mortgage on the same property.  The trustee
    subordinated its interest to Comerica.
    While the mortgagor paid the first installment of real estate
    taxes on the property in 1990, the mortgagor failed to make further
    payments.  Comerica first learned of the delinquency in December of
    1993, when a real estate tax buyer notified Comerica that it had
    purchased the property at a public sale.  The property's tax
    obligation, including penalties, exceeds $600,000.  While the mortgage
    required the mortgagor to make real estate tax payments to a Comerica
    escrow, Comerica waived the requirement.
    As the mortgagor's failure to pay the taxes constituted a breach
    of the mortgages, Comerica and the trustee were free to foreclose
    their mortgages.  In April of 1994, Comerica notified the mortgagor
    that it was in default and that Comerica would exercise its legal
    remedies if the mortgagor did not cure the default.  The mortgagor
    failed to cure the default and Comerica chose to exercise its rights
    under the assignment of rents.  Comerica began collecting rents from
    the property without foreclosing, seeking the appointment of a
    receiver, or obtaining authorization from a court.  This option
    permitted Comerica to reduce the debt without assuming responsibility
    for the property or the large tax obligation.
    On May 20, 1994, Comerica filed a complaint seeking an accounting
    and other relief against the mortgagor and the guarantors of the
    mortgage.  The mortgagor filed a counterclaim seeking the appointment
    of a receiver and an injunction mandating Comerica's maintenance and
    operation of the property.  The trial court dismissed the mortgagor's
    counterclaim on October 24, 1994, for failure to state a claim upon
    which relief could be granted.
    On August 5, 1994, the trustee filed an action to foreclose its
    second mortgage.  The trustee further sought an accounting, the
    appointment of a receiver, and a return of the rents from Comerica.
    On October 5, 1994, the trial court consolidated Comerica's and the
    trustee's actions.  On December 22, 1994, the trial court granted the
    trustee's motion for an accounting and turned the collected rents over
    to a receiver.  The trial court then heard the arguments of Comerica,
    the trustee and the mortgagor, each seeking turnover of the rents.
    Finding that the rents belonged to the possessor of the property, the
    court awarded the rents to the mortgagor.
    Comerica filed an appeal seeking a review of the trial court's
    order granting the trustee's request for an accounting.  Comerica
    claims that it was free to contract with the mortgagor for the
    assignment of the rents, despite the common law requirement of
    possession.  The trustee also appealed the trial court's ruling.  On
    appeal, the trustee claims that Comerica failed to take proper
    affirmative action against the property, and therefore is not entitled
    to the rents.  The trustee argues that its foreclosure action,
    however, was appropriate and entitles the trustee to the rents.
    After the parties filed their appeals, Comerica entered into a
    settlement agreement with the mortgagor.  Pursuant to the settlement
    agreement, the mortgagor assigned its interest in the rents to
    Comerica in the event that this court rules in the mortgagor's favor.
    The trial court approved the settlement.
    Initially, we find that the settlement agreement entered into
    between Comerica and the mortgagor moots Comerica's appeal.  See
    generally In re Marriage of McCoy, 
    272 Ill. App. 3d 125
    , 
    650 N.E.2d 3
    (1995).  The trial court awarded the rents to the mortgagor.  On
    appeal, Comerica claims that the trial court erred in awarding the
    rents to the mortgagor as Comerica should have been allowed to
    exercise its right to collect rents under the assignment of rents.
    Pursuant to the settlement agreement, however, Comerica will receive
    those rents regardless of whether we affirm the trial court's ruling,
    or reverse the trial court's ruling in its favor.  Consequently, the
    issues raised in Comerica's appeal are moot.  Therefore, we will
    address only the arguments raised by the trustee on appeal.
    The trustee first argues that Comerica's assignment of rents,
    which permits Comerica to collect the rents without any other action,
    cannot supersede the common law requirement of possession.  In
    resolving this issue, we have relied on Illinois case law.  However,
    we have also found relevant bankruptcy decisions and Federal case law
    to be thorough and persuasive.  Because the Supreme Court has required
    bankruptcy courts to apply State law in determining mortgagees'
    entitlements to rents, we find bankruptcy decisions useful in
    resolving this issue.  Butner v. United States, 
    440 U.S. 48
    , 
    59 L. Ed. 2d 136
    , 
    99 S. Ct. 914
     (1979).
    Courts will not enforce private agreements that are contrary to
    public policy.  Rome v. Upton, 
    271 Ill. App. 3d 517
    , 
    648 N.E.2d 1085
    (1995).  At common law, it was strictly held that the mortgagee must
    take actual possession before he was entitled to rents.  See, e.g.,
    Metropolitan Life Insurance Co. v. W. T. Grant Co., 
    321 Ill. App. 487
    ,
    
    53 N.E.2d 255
     (1944); Taylor v. Osman, 
    239 Ill. App. 569
     (1926).  "[A]
    clause in a real estate mortgage pledging rents and profits creates an
    equitable lien upon such rents and profits of the land, which may be
    enforced by the mortgagee upon default by taking possession of the
    mortgaged property."  Anna National Bank v. Prater, 
    154 Ill. App. 3d 6
    , 17, 
    506 N.E.2d 769
    , 776 (1987).
    The possession requirement reflects the public policy in Illinois
    which seeks to prevent mortgagees from stripping the rents from the
    property and leaving the mortgagor and the tenants without resources
    for maintenance or repair.   In re J.D. Monarch Development Co., 
    153 B.R. 829
     (Bankr. S.D. Ill. 1993); In the Matter of Michigan Avenue
    Nat'l Bank, 
    2 B.R. 171
    , 185-86 (Bankr. N.D. Ill. 1980).  Applying
    Illinois law, the court in Monarch stated that:
    "To obtain the benefits of possession in the form
    of rents, the mortgagee must also accept the
    burdens associated with possession--the
    responsibilities and potential liability that
    follow whenever a mortgage goes into default.  The
    mortgagee's right to rents, then, is not automatic
    but arises only when the mortgagee has
    affirmatively sought possession with its attendant
    benefits and burdens."  In re J.D. Monarch
    Development Co., 
    153 B.R. 829
    , 833 (Bankr. S.D.
    Ill. 1993).
    We recognize that there is a modern trend in this area of the law
    which permits a mortgagee to collect rents once it has taken
    constructive, as opposed to actual, possession of the property.  See
    De Kalb v. Purdy, 
    166 Ill. App. 3d 709
    , 
    520 N.E.2d 957
     (1988).  Courts
    have recently allowed mortgagees to collect rents after taking some
    affirmative action to gain possession of the property (In the Matter
    of Fullop, 
    6 F.3d 422
     (7th Cir. 1993)), such as obtaining judicial
    intervention by way of injunctive relief.  Purdy, 
    166 Ill. App. 3d 709
    , 
    520 N.E.2d 957
    .  Similarly, courts have ruled that mortgagees may
    be entitled to rents once a receiver has been appointed.  See
    Metropolitan Life Insurance Co. v. W. T. Grant Co., 
    321 Ill. App. 487
    ,
    
    53 N.E.2d 255
     (1944).
    While the trustee concedes that actual possession is not
    necessary to collect rents, it argues that Comerica failed to take the
    affirmative action which would constitute constructive possession of
    the property.  In the absence of such action, Comerica's enforcement
    of the assignment of rents permits Comerica to strip the property of
    its value without accepting responsibility for its maintenance.  The
    trustee claims that such conduct contravenes Illinois' public policy.
    We agree.
    We find that even under the more progressive "affirmative action"
    cases, a mortgagee still needs to obtain a court's authorization
    before he may collect rents without taking possession.  Such a
    requirement ensures that the all of the parties' interests will be
    before the court, and will not be subject to the unilateral acts of
    the mortgagee.  See Lake County Trust Co. v. Two Bar B, Inc., 
    238 Ill. App. 3d 589
    , 
    606 N.E.2d 258
     (1992).  We agree with the trustee's claim
    that actual or constructive possession of the property is required
    before a mortgagee may collect rents.  Because Comerica's assignment
    of rents permitted Comerica to collect rents in contravention of
    Illinois public policy, we refuse to recognize that provision of the
    agreement.
    This is not the end of our discussion, however, as the trustee
    argues that it took the necessary affirmative action and that it is
    therefore entitled to the rents.  The trustee claims that filing a
    foreclosure action and seeking the appointment of a receiver
    constitute the necessary affirmative action which entitled it to the
    rents.
    We find that the mere filing of the foreclosure action or request
    for a receiver is not sufficient to trigger the mortgagee's right to
    collect rents.  First, in a foreclosure action, the mortgagee is not
    entitled to rents until judgment has actually been entered unless the
    mortgage agreement permits the mortgagee to obtain prejudgment
    possession.  See In the Matter of Wheaton Oaks Office Partners Ltd.
    Partnership, 
    27 F.3d 1234
     (7th Cir. 1994).  Similarly, the mere
    request for the appointment of a receiver is not sufficient.  "[T]he
    mortgagee is not entitled to the rents until the mortgagee or a
    receiver appointed on the mortgagee's behalf has taken actual
    possession of the real estate after default."  In re J.D. Monarch
    Development Co., 
    153 B.R. 829
    , 832 (Bankr. S.D. Ill. 1993).
    Accordingly, we find that it is not the mere filing of certain
    pleadings, but rather the trial court's affirmative ruling on such
    filings which entitles the mortgagee to the rents.
    It is undisputed that the trustee did not obtain prejudgment
    possession of the property.  The rents in dispute were collected
    during the time that the mortgagor was in possession of the property
    but before the receiver was appointed.  Therefore, we find that the
    trial court was correct in ruling that the rents collected properly
    belong to the mortgagor.
    Affirmed.
    HOFFMAN, P.J., and O'BRIEN, J., concur.