Farm Credit Bank of St. Louis v. Dorr

620 N.E.2d 549, 250 Ill. App. 3d 1, 189 Ill. Dec. 581
CourtAppellate Court of Illinois
DecidedSeptember 9, 1993
Docket5-92-0031
StatusPublished
Cited by7 cases

This text of 620 N.E.2d 549 (Farm Credit Bank of St. Louis v. Dorr) 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
Farm Credit Bank of St. Louis v. Dorr, 620 N.E.2d 549, 250 Ill. App. 3d 1, 189 Ill. Dec. 581 (Ill. Ct. App. 1993).

Opinion

PRESIDING JUSTICE CHAPMAN

delivered the opinion of the court:

This is a mortgage foreclosure action brought by the Farm Credit Bank of St. Louis, as successor in interest to the Federal Land Bank of St. Lotus, on a note and mortgage dated January 29, 1982. Defendants appeal from the order of foreclosure and from the court’s order which struck their affirmative defenses. We affirm.

The first issue on appeal is whether the trial court erred in allowing the Farm Credit Bank of St. Louis (Farm Credit Bank) to proceed as successor in interest to the Federal Land Bank of St. Louis (Federal Land Bank). Defendants claim that the Farm Credit Bank offered no proof that it is the legal owner and holder of the note and mortgage at issue and that without such proof the Farm Credit Bank was without authority to proceed with the foreclosure action. Farm Credit Bank argues that the issue is not properly before the court as it was not raised in the trial court and that proof was offered from which the circuit court could properly determine that the Farm Credit Bank was the holder and owner of the note and mortgage.

Defendants contest Farm Credit Bank’s assertion that they waived the issue below. However, defendants fail to support their contention that they objected in the trial court to the substitution of Farm Credit Bank as a party plaintiff. Defendants argue that it could not be determined until trial whether the Farm Credit Bank was the holder and owner of the note and mortgage and that absent the plaintiff’s proof of such status defendants cannot be said to have waived an objection on appeal. We disagree.

The Federal Land Bank filed its complaint on June 23, 1987. On January 23, 1989, counsel for Farm Credit Bank filed a motion for substitution of counsel. The motion stated that Farm Credit Bank was a successor in interest to the Federal Land Bank. Counsel for the Farm Credit Bank requested permission for his law firm to continue to prosecute the foreclosure on behalf of and in substitution for the Federal Land Bank’s counsel. According to the record, defendants did not object, and the trial court granted the motion for substitution of counsel. From that point on, the caption on the pleadings in the record read, “Farm Credit Bank of St. Louis, as successor in interest to Federal Land Bank of St. Louis.” Moreover, the Farm Credit Bank prosecuted this foreclosure action, and it is undisputed that it has at all times relevant to this action been in possession of the note and mortgage. In any event, defendants’ objection was not presented to and ruled on by the trial court, and it may not be raised for the first time here. See People v. Rockford Silver Plate Co. (1944), 388 Ill. 534, 58 N.E.2d 599; First National Bank & Trust Co. v. Maas (1975), 26 Ill. App. 3d 733, 327 N.E.2d 205; Rasmussen v. Village of Bensenville (1965), 56 Ill. App. 2d 119, 205 N.E.2d 631.

Turning to the next issue, defendants contend that the trial court erred in striking their fourth, fifth, and sixth affirmative defenses. Defendants maintain that had the court not stricken those defenses, they would have prevailed in the foreclosure action.

Defendants’ fourth affirmative defense alleges that plaintiff failed to comply with the 1985 amendments to the Farm Credit Act of 1971, which required it to stay the foreclosure proceedings pending notification to the mortgagors that plaintiff was required to consider them for restructuring. (See 12 U.S.C. §2001 et seq. (1988).) Defendants’ fifth affirmative defense alleges plaintiff failed to comply with the Food Security Act of 1985, which amended the Farm Credit Act of 1971 and required plaintiff to notify defendants of the procedures to pursue to qualify for rights under the Food Security Act of 1985. (See Farm Credit Amendments Act of 1985, Pub. L. No. 99 — 205, 99 Stat. 1678 (Dec. 23, 1985).) The sixth affirmative defense alleges the plaintiff failed to comply with the 1987 amendments to the Farm Credit Act of 1971, which required it to stay foreclosure until defendants had a fair opportunity to apply for a reduction of indebtedness or restructuring. See Agricultural Credit Act of 1987, 12 U.S.C. §2202(a) (1988).

The trial court granted plaintiff’s motion for summary judgment as to these affirmative defenses but gave no reason for its decision. Defendants claim that the trial court’s decision is based on the premise that no private cause of action exists under the Farm Credit Act of 1971 or its amendments. Although we cannot determine the basis of the trial court’s ruling, the parties’ arguments focus on whether defendants may assert a private cause of action.

Plaintiff contends that defendants cannot assert claims based upon a denial of rights under the Farm Credit Act of 1971 or its amendments, regardless of whether said claims are made as part of a complaint or are pled as affirmative defenses. We agree.

It is undisputed that the Farm Credit Act contains no express provision conferring upon individuals a cause of action to enforce the provisions of the Act. Yet, courts have held that a statute which fails to expressly provide a private right of action can nevertheless create an implied private right of action if a private right of action is necessary to effectuate the purpose of the statute. (Smith v. Russellville Production Credit Association (11th Cir. 1985), 777 F.2d 1544, 1547.) In Cort v. Ash (1975), 422 U.S. 66, 45 L. Ed. 2d 26, 95 S. Ct. 2080, the Supreme Court set forth four factors to consider when determining whether a statute creates an implied right of action.

“First, is the plaintiff ‘one of the class for whose especial benefit the statute was enacted,’ [citation] — that is, does the statute create a federal right in favor of the plaintiff? Second, is there any indication of legislative intent, explicit or implicit, either to create such a remedy or to deny one? [Citation.] Third, is it consistent with the underlying purposes of the legislative scheme to imply such a remedy for the plaintiff? [Citations.] And finally, is the cause of action one traditionally relegated to state law, in an area basically the concern of the States, so that it would be inappropriate to infer a cause of action based solely on federal law?” (Emphasis in original.) (422 U.S. at 78, 45 L. Ed. 2d at 36, 95 S. Ct. at 2088.)

In analyzing these factors, the ultimate inquiry remains whether Congress intended to create, either expressly or by implication, a private cause of action. (Touche Ross & Co. v. Redington (1979), 442 U.S. 560, 575, 61 L. Ed. 2d 82, 95, 99 S. Ct. 2479, 2489.) Unless congressional intent can be inferred from the language of the statute, the statutory structure, or some other source, the essential predicate for implication of a private remedy simply does not exist. Saltzman v. Farm Credit Services of Mid-America, A C A (7th Cir.

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Bluebook (online)
620 N.E.2d 549, 250 Ill. App. 3d 1, 189 Ill. Dec. 581, Counsel Stack Legal Research, https://law.counselstack.com/opinion/farm-credit-bank-of-st-louis-v-dorr-illappct-1993.