Olympic Federal v. Witney Development Co.

447 N.E.2d 1371, 113 Ill. App. 3d 981, 69 Ill. Dec. 684, 1983 Ill. App. LEXIS 1680
CourtAppellate Court of Illinois
DecidedApril 8, 1983
Docket82-916
StatusPublished
Cited by34 cases

This text of 447 N.E.2d 1371 (Olympic Federal v. Witney Development Co.) 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
Olympic Federal v. Witney Development Co., 447 N.E.2d 1371, 113 Ill. App. 3d 981, 69 Ill. Dec. 684, 1983 Ill. App. LEXIS 1680 (Ill. Ct. App. 1983).

Opinion

JUSTICE UNVERZAGT

delivered the opinion of the court:

The plaintiff, Olympic Federal, a federally chartered savings and loan association, successor to Olympic Savings and Loan Association, an Illinois savings and loan association, brought an action against the defendants, Witney Development Co., Inc., Western National Bank of Cicero, as Trustee, Edwin P. Witwicki, and “Unknown Owners,” to foreclose a mortgage. The trial court entered an interlocutory order placing the plaintiff in possession of the property as mortgagee, and defendants Witney Development Co., Inc., and Western National Bank of Cicero appealed.

The issues presented for review are: (1) whether, following the denial of the defendants’ motion to strike the plaintiff’s motion to be placed in possession as mortgagee, the trial court should have granted the defendants’ request for leave to respond to or answer the plaintiff’s motion to be placed in possession or should have held a hearing on the plaintiff’s motion based on the defendants’ verified answer, and (2) whether it was error for the plaintiff not to comply with section 2 — 403 of the Code of Civil Procedure (111. Rev. Stat. 1981, ch. 110, par. 2 — 403), in light of its conversion from a State to a Federal savings and loan association.

Olympic Savings and Loan Association was the mortgagee of certain land located in Grayslake, Illinois, that includes a golf course and country club. The mortgage was dated November 12, 1973. On March 19,1982, the plaintiff filed a complaint to foreclose that mortgage.

On August 4, 1982, the plaintiff moved the court to place the plaintiff, as mortgagee, in possession of the property and to grant the plaintiff authority to collect the rents, issues, and profits from the property and apply them to the mortgage loan balance. That motion was later amended, motions to strike it were denied, and the court ultimately granted the motion and placed the plaintiff in possession of the premises, staying its order pending a determination of the bond requirement of the plaintiff. From that order the defendants filed this interlocutory appeal.

At the outset, it is necessary to determine the scope of this appeal. The order from which the appeal is taken, entered November 3, 1982, ordered that the plaintiff be placed in possession of the mortgaged premises. Under Supreme Court Rule 307(a)(4) (87 Ill. 2d R. 307(a)(4)), such an order is immediately appealable as a matter of right. However, the defendants’ contentions of error on appeal are directed largely at earlier orders, including the denial of the defendants’ motion to strike the plaintiff’s amended motion to be placed in possession and the subsequent denial of the defendants’ motion to reconsider the request for time to respond to or answer the plaintiff’s amended motion.

Only final judgments or orders are appealable unless the particular judgment falls within one of the specified exceptions. Interlocutory appeals are piecemeal in nature, and Supreme Court Rule 307 provides for some very specific exceptions to piecemeal appeals. (City of Chicago v. Airline Canteen Service, Inc. (1978), 64 Ill. App. 3d 417, 428.) An appeal under Rule 307 does not open the door to a general review of all orders entered by the trial court up to that date. (Panduit Corp. v. All States Plastic Manufacturing Co. (1980), 84 Ill. App. 3d 1144, 1151.) However, certain other orders may be reviewable. For example, in the case of an interlocutory appeal from the granting of temporary injunctive relief, an appellant may ask the appellate court not only to determine whether the trial court properly exercised its discretion but also whether the complaint upon which the temporary injunction was based was proper to sustain an injunction. (Alfred Engineering, Inc. v. Illinois Fair Employment Practices Com. (1974), 19 Ill. App. 3d 592, 600.) The right to injunctive relief necessarily brings into question the sufficiency of the complaint, and the defendant who does not stand on his motion to dismiss the complaint may nevertheless contend on appeal from an interlocutory order that the complaint does not set forth grounds for any relief. (Biehn v. Tess (1950), 340 Ill. App. 140, 145.) Thus, whether an order preceding an interlocutory order from which an appeal is taken may be considered during the interlocutory appeal depends on its relationship to the order appealed from.

In the case at bar, only orders attendant to the motion to be placed in possession are cognizable on this appeal. Besides the order finally ruling on the motion to be placed in possession, this includes the defendants’ motions to strike and motion to reconsider.

The defendants’ position is that they were improperly denied the opportunity for a hearing, pursuant to statute, on the issue of whether the plaintiff should have been placed in possession pending resolution of the foreclosure action. The placing of a mortgagee in possession of the mortgaged premises is governed by article 15, part 3 of the Code of Civil Procedure (111. Rev. Stat. 1981, ch. 110, par. 15 — 301 et seq.), formerly section 1 et seq. of “An Act in relation to the rights of mortgagees ***” (111. Rev. Stat. 1981, ch. 95, par. 22b.51 et seq.). Section 15 — 302 provides that, in proceedings filed for the foreclosure of a mortgage, the court may place the mortgagee in possession of the mortgaged premises. Under section 15 — 303, the court may do so upon the mortgagee’s written application to be placed in possession, supported by affidavit, unless the mortgagee’s application is denied under oath. Section 15 — 305 directs the court promptly to conduct a hearing if the right of the mortgagee to take possession is denied. In that case, in order to place the mortgagee in possession, the court must determine that there is a reasonable probability that the mortgagee will prevail in the final hearing of the foreclosure proceedings.

In the instant case, the plaintiff filed its motion to be placed in possession on August 4, 1982. The defendants moved to strike that motion on the ground that it was substantially insufficient at law. On August 18, 1982, the court by order gave the plaintiff 14 days to amend the motion and granted the defendants seven days to respond to it. (The court’s order also gave the defendants seven days from the date of the order to answer the complaint, and the defendants filed their answers on August 24, 1982.) The plaintiff filed an amended motion to be placed in possession on September 3, 1982, and on September 15, 1982, the defendants supplemented their motion to strike. On the same day, the plaintiff’s response to that supplemented motion to strike was filed, and the court denied the motion to strike and denied the defendants’ request to respond to or answer the plaintiff’s amended motion. On September 20, 1982, the defendants filed a motion to reconsider the court’s ruling, requesting leave to answer or respond to the plaintiff’s amended motion to be placed in possession and indicating that they would deny the plaintiff’s right to be placed in possession. The court denied the defendants’ motion to reconsider and subsequently entered an order placing the plaintiff in possession.

A major thrust of the defendants’ argument is that the plaintiff did not provide the court with a basis for placing it in possession.

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Bluebook (online)
447 N.E.2d 1371, 113 Ill. App. 3d 981, 69 Ill. Dec. 684, 1983 Ill. App. LEXIS 1680, Counsel Stack Legal Research, https://law.counselstack.com/opinion/olympic-federal-v-witney-development-co-illappct-1983.