Centerpoint Properties Trust v. Olde Prairie Block Owner, LLC

923 N.E.2d 878, 398 Ill. App. 3d 388
CourtAppellate Court of Illinois
DecidedFebruary 10, 2010
Docket1-09-1481
StatusPublished
Cited by8 cases

This text of 923 N.E.2d 878 (Centerpoint Properties Trust v. Olde Prairie Block Owner, LLC) is published on Counsel Stack Legal Research, covering Appellate Court of Illinois primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Centerpoint Properties Trust v. Olde Prairie Block Owner, LLC, 923 N.E.2d 878, 398 Ill. App. 3d 388 (Ill. Ct. App. 2010).

Opinion

JUSTICE QUINN

delivered the opinion of the court:

Defendant, Olde Prairie Block Owner, LLC (OPBO), appeals from an order of the trial court denying its motion to stay enforcement of the court’s previous order appointing a receiver in the mortgage foreclosure proceeding brought by plaintiff, CenterPoint Properties Trust (CPPT). On appeal, defendant contends that it has established good cause why it should remain in possession of the property pursuant to section 15 — 1701(b)(2) of the Illinois Mortgage Foreclosure Law (the Act) (735 ILCS 5/15 — 1701(b)(2) (West 2004)) and that the trial court erred in refusing to hold an evidentiary hearing before appointing a receiver. For the reasons set forth below, we affirm the trial court.

I. BACKGROUND

On or about February 22, 2008, CPPT made a one-year term loan to OPBO in the amount of $32,127,667.03, which was evidenced by a promissory note and secured by a mortgage. The property that is encumbered by the mortgage was purchased by real estate developer Pamela Gleichman and her family through OPBO in 1997, for the purposes of retail and hotel development. It consists of a fee estate and a leasehold estate. The fee estate includes two parcels of nonresidential property: 230 East Cermak Road, in Chicago Illinois, which is referred to as “Olde Prairie Block,” and 330 East Cermak Road, which is referred to as “Lakeside Place.” Olde Prairie Block is 53,635 square feet and is improved with a 2-story, 50,568-square-foot building that is currently leased by OPBO to Lakeside Parking for use as a parking garage. In addition, offices in the building are leased to Divane Bros. Electric Company. Olde Prairie Block is the subject of a condemnation lawsuit brought by the Metropolitan Pier and Exposition Authority (MPEA), which names both OPBO and CPPT as defendants and is currently pending in the circuit court of Cook County. 1 Lakeside Place is a 159,960-square-foot block containing a nonleased vacant building. The leasehold estate consists of an interest in parking spaces on the Lakeside Place property that are currently leased by the MPEA to OPBO.

The promissory note executed by OPBO matured on February 21, 2009, and when the amount due was not timely paid, CPPT filed a complaint in the circuit court of Cook County on February 29, 2009, to foreclose the mortgage. Subsequently, on March 26, 2009, CPPT filed a motion for the appointment of a receiver, relying on section 15— 1704(a) of the Act, which provides, in part, that “upon request of any party and a showing of good cause, the court shall appoint a receiver for the mortgaged real estate” (735 ILCS 5/15 — 1704(a) (West 2004)), and section 15 — 1702(a), which provides that “[w]henever a mortgagee entitled to possession so requests, the court shall appoint a receiver” (735 ILCS 5/15 — 1702(a) (West 2004)).

On May 14, 2009, defendant filed a response to CPPT’s motion for the appointment of a receiver, arguing that a receiver would improperly interfere with the condemnation case and jeopardize any future refinancing of the mortgage. Shortly after filing its response and one day prior to the hearing on plaintiff’s motion to appoint a receiver, defendant filed its answer to the complaint and a two-count counterclaim. Count I of the counterclaim asserted that the mortgage and note should be rescinded because they were entered into under economic duress. Specifically, OPBO alleged that CPPT made material changes to the terms of the loan agreement just days before the closing date and after OPBO had ceased looking for another potential lender, and therefore, OPBO had no choice but to accept the new terms or face the loss of the property to the lender that was being replaced. Count II of the counterclaim asserted that CPPT’s conduct in the loan transaction violated the Illinois Consumer Fraud and Deceptive Business Practices Act (815 ILCS 505/1 et seq. (West 2004)). CPPT filed a motion to dismiss the counterclaim, which the trial court granted on September 23, 2009, with leave to amend.

On May 29, 2009, after a hearing, the trial court granted CPPT’s motion for the appointment of a receiver. On June 16, 2009, OPBO filed a motion to stay enforcement of that order pending interlocutory appeal. In its motion, OPBO argued that a stay is necessary because the presence of a receiver decreases the likelihood of securing financing to pay off the CPPT mortgage and negatively impacts the prospective development of the property. OPBO submitted affidavits from Luke Sauer, a principal in Sierra Realty Advisor, a commercial real estate firm retained by OPBO to locate prospective tenants for the property; Judy Thornber, an employee of Olde Prairie Partners, LLC, an OPBO affiliate; and Pamela Gleichman, asserting that the appointment of a receiver will hinder efforts by the real estate developer to find prospective tenants, investors and lenders for property that is in the project development stage, as in this case. After a hearing on July 13, 2009, the trial court denied OPBO’s motion to stay enforcement of the order appointing a receiver and its request for an evidentiary hearing, and OPBO timely filed this interlocutory appeal.

While this appeal was pending, the receiver filed an interim report dated September 16, 2009, which was included in the supplemental record on appeal. That report states, in part, that in March 2008, OPBO, by verbal agreement with the parking garage operator, reduced the rent for Lakeside Parking from $10,000 to $5,000 per month. The receiver obtained two alternative arrangements for the management of the parking garage that would result in an increase in revenue compared with the current operation. Further, the receiver discovered that several invoices were outstanding, the first installment of 2008 real estate taxes payable in 2009 was not paid, and the liability insurance coverage on the property was $2 million less than the coverage required by the mortgage. With regard to the condition of the buildings on the property, a visual inspection disclosed asbestos, lead paint, water infiltration problems and the presence of mold. Openings in the roof were temporarily secured and windows boarded up to limit vagrant access.

II. ANALYSIS

This appeal presents two issues: whether the trial court erred in appointing a receiver for the subject property and whether the trial court should have granted defendant’s request for an evidentiary hearing. The first issue is governed by the Illinois Mortgage Foreclosure Law. Prior to the enactment of the Illinois Mortgage Foreclosure Law and consistent with judicial review of injunctive relief generally, Illinois statutory provisions relating to mortgage foreclosures granted a court discretion to award a mortgagee possession during the pendency of the foreclosure proceedings. However, the Illinois Mortgage Foreclosure Law, enacted in 1987, employs mandatory language and drastically curtails a trial court’s discretion in deciding motions to appoint a receiver. Mellon Bank, N.A. v. Midwest Bank & Trust Co., 265 Ill. App. 3d 859, 867 (1993).

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Bluebook (online)
923 N.E.2d 878, 398 Ill. App. 3d 388, Counsel Stack Legal Research, https://law.counselstack.com/opinion/centerpoint-properties-trust-v-olde-prairie-block-owner-llc-illappct-2010.