2014 IL App (4th) 140141-B
FILED
September 3, 2015
Carla Bender
NO. 4-14-0141 4th District Appellate
Court, IL
IN THE APPELLATE COURT
OF ILLINOIS
FOURTH DISTRICT
CNB BANK & TRUST, N.A., f/k/a ) Appeal from
CARLINVILLE NATIONAL BANK, ) Circuit Court of
Plaintiff-Appellee, ) Macoupin County
v. ) No. 11CH175
FRANCES A. ROSENTRETER, RICK E. )
ROSENTRETER, and DOUGLAS G. )
ROSENTRETER, as Cotrustees of the Gerald E. )
) Honorable
Rosentreter Trust B,
) Patrick J. Londrigan,
Defendants-Appellants. ) Judge Presiding.
JUSTICE APPLETON delivered the judgment of the court, with opinion.
Presiding Justice Pope and Justice Harris concurred in the judgment and opinion. 1
OPINION
¶1 Plaintiff, CNB Bank & Trust, N.A., formerly known as Carlinville National Bank,
won a summary judgment on all the counts of its amended complaint, including counts IV, XIII,
XIV, and XV. Count IV sought to foreclose a mortgage on tracts 1, 2, 3, 4, 5, and 6, and counts
XIII, XIV, and XV sought replevin of some grain bins on tracts 1 and 7. (These seven tracts, all
of which are located in Macoupin County, have the following permanent index numbers: 12-
000-177-00 (tract 1), 12-000-179-00 (tract 2), 12-000-183-02 (tract 3), 12-000-186-00 (tract 4),
11-000-238-01 (tract 5), 11-000-406-01 (tract 6), and 12-000-177-01 (tract 7).)
1
Oral arguments on plaintiff's petition for rehearing began earlier than scheduled, and by mistake, Justice
Steigmann sat on the panel during these oral arguments, instead of Justice Harris, who actually was assigned to this
case. Nevertheless, Justice Harris arrived just as the oral arguments were beginning, and via the audio-video system
in the courthouse, he heard the oral arguments in their entirety. Immediately afterward, we informed the attorneys
of the mix-up, and they stated they had no objection.
¶2 Defendants, Frances A. Rosentreter, Rick E. Rosentreter, and Douglas G.
Rosentreter, in their capacities as cotrustees of the Gerald E. Rosentreter Trust B, appeal from
the summary judgment in plaintiff's favor on counts IV, XIII, XIV, and XV and from the denial
of their own motion for summary judgment on those counts. They also challenge other parts of
the court's judgment, but let us begin with counts IV, XIII, XIV, and XV.
¶3 The cross-motions for summary judgment on count IV raised the question of
whether the mortgagor, Frances A. Rosentreter, in her individual capacity, owned more than an
undivided 50% of tracts 1, 2, 3, 5, and 6 so as to be able to mortgage those tracts in their entirety.
Defendants claim that when Frances A. Rosentreter, in her individual capacity, signed the
mortgage in count IV, defendants themselves, in their capacities as cotrustees of the Gerald E.
Rosentreter Trust B, owned an undivided 50% of tracts 1, 2, 3, 5, and 6 and that Frances A.
Rosentreter therefore succeeded in mortgaging no more than her own undivided 50% of those
tracts. (It is undisputed that she personally owned 100% of tract 4 and therefore succeeded in
mortgaging all of that tract.) Plaintiff, on the other hand, takes the position that Frances A.
Rosentreter, in her individual capacity, owned 100% of tracts 1, 2, 3, 5, and 6 and that she
consequently mortgaged all the ownership interest in those tracts by signing the mortgage in
count IV. In our de novo review, we do not find it to be clear and free from doubt that either
plaintiff or defendants were entitled to a judgment as a matter of law on this question of the
ownership of tracts 1, 2, 3, 5, and 6.
¶4 As for the replevin counts, counts XIII, XIV, and XV, it is a moot question
whether the trial court erred by granting summary judgment in plaintiff's favor on those counts,
considering that subsequently, in its written judgment of July 26, 2013, the court held the grain
bins were fixtures and that, as such, they were to be sold as components of the real estate. This
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was the very holding that defendants had sought in their motion for summary judgment on
counts XIII, XIV, and XV.
¶5 In the original version of this opinion, we reached the foregoing conclusions
regarding counts IV, XIII, XIV, and XV, and we stopped short of the remaining issues in this
appeal because we did not want to fall into the error of addressing premature issues. See Steel
City Bank v. Village of Orland Hills, 224 Ill. App. 3d 412, 416 (1991) ("[C]ourts do not sit to
render advisory opinions on abstract questions of law to guide potential future litigation.").
However, after considering the arguments for and against plaintiff's petition for rehearing, we
have come to appreciate that count IV is intertwined with an additional issue in this appeal, the
apportionment of the sale price between tracts 1 and 7, in that it is a moot point whether
defendants have an ownership interest in tracts 1, 2, 3, 5, and 6 unless a surplus is created by a
reapportionment of the sale proceeds between tracts 1 and 7.
¶6 In the foreclosure sales, tracts 1 and 7 were sold together, as one unit, because a
grain elevator facility straddled those two tracts. But the owners of tracts 1 and 7 were not all the
same, and the two tracts were subject to different mortgages. Therefore, the trial court had to
decide how to apportion the sale proceeds between the two tracts after they were sold en masse.
In this appeal, defendants contend that although tracts 1 and 7 were sold en masse for a fair price,
the amount of the sale proceeds the court apportioned to tract 1 was unconscionably low.
¶7 The apportionment of the sale proceeds between tracts 1 and 7 matters for
purposes of count IV because unless a substantially greater amount of the sale proceeds is
reapportioned to tract 1 and less to tract 7, the controversy over count IV is academic and of no
practical significance. The reason is that plaintiff also won a summary judgment on counts I, II,
and III of the amended complaint—deservedly so, defendants agree—and the mortgages in
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counts I, II, and III pledge the same six parcels of land (tracts 1, 2, 3, 4, 5, and 6) as the mortgage
in count IV, which is junior to the mortgages in counts I, II, and III. The total amount owed on
the mortgages in counts I, II, and III exceeds, by $2,770,903.43, the total amount that tracts 1, 2,
3, 4, 5, and 6 fetched in the foreclosure sale—unless, out of the $9.1 million that tracts 1 and 7
fetched together, quite a bit more is reapportioned to tract 1, as defendants request.
¶8 Because it would be pointless to address count IV in isolation, we have granted
plaintiff's petition for rehearing insomuch as it urges us to address the apportionment of sale
proceeds between tracts 1 and 7. We agree with defendants that the trial court's apportionment
of only $151,666.67 of the sale proceeds to tract 1, out of the $9.1 million for which tracts 1 and
7 sold together, is unconscionably low. This apportionment rested on a misconception of the
law, i.e., that a forced sale was "at arm's length" and that consequently the bid for tract 1 could
not be regarded as "grossly inadequate." The court ordered that, in the public auction, tracts 1
and 7 first would be offered separately and then together and that how they ultimately would be
sold—separately or together—would depend on which method generated the higher sale
proceeds. As it turned out, the sale en masse did. After confirming the sale en masse, the court
used the separate bids as indicia of the proportional fair market values of the two tracts. A
foreclosure sale, however, is a forced sale (Deutsche Bank National v. Burtley, 371 Ill. App. 3d
1, 8 (2006)), and "it is unusual for land to bring its full, fair market value at a forced sale" (NAB
Bank v. LaSalle Bank, N.A., 2013 IL App (1st) 121147, ¶ 20). See also Horney v. Hayes, 11 Ill.
2d 178, 185 (1957) ("It has long been recognized that property does not bring its full value at
forced sales ***.").
¶9 On the basis of its erroneous assumption that bids in a foreclosure sale were
evidence of fair market value and that such bids therefore could not be considered grossly
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inadequate, the trial court apportioned only $151,666.67 of the sale proceeds to tract 1 and the
remaining $8,948,333.03 to tract 7. The court's finding that these amounts reflected the fair
market value of tracts 1 and 7 is against the manifest weight of the evidence, and the
apportionment is an abuse of discretion. We remand this case with directions to reapportion the
$9.1 million between those two tracts in accordance with the valuations of an accredited rural
appraiser, Mark Akers, since his unrebutted testimony was the only probative evidence offered
on the fair market values of tracts 1 and 7. Given his testimony and his written appraisals, the
reapportionment should be $6,006,000 to tract 1 and $3,094,000 to tract 7.
¶ 10 Therefore, we reverse the trial court's judgment, and we remand this case for
further proceedings. Until defendants, as cotrustees, prove they had an ownership interest in
tracts 1, 2, 3, 5, and 6 at the time Frances A. Rosentreter, in her individual capacity, executed the
mortgage that is the subject of count IV, the remaining issues in this appeal are premature.
¶ 11 I. BACKGROUND
¶ 12 A. The Amended Complaint and the Defendants
¶ 13 The amended complaint has 21 counts and names 21 defendants, 3 of whom
appeal. (It is not that there is one count devoted to each defendant; the equivalence between the
number of counts and the number of defendants is fortuitous.)
¶ 14 Counts I to XII seek foreclosure. Counts XIII to XVI seek replevin. Counts XVII
to XXI are for breach of contract.
¶ 15 Defendants (by which we mean the three defendants in this appeal) are parties
only to counts I to IV and counts XIII to XVI. Of those counts, defendants challenge only the
outcomes on counts IV, XIII, XIV, and XV—although, as we have mentioned, defendants raise
other issues, too.
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¶ 16 B. The Foreclosure Counts (Count I to XII)
¶ 17 Of the 12 foreclosure counts, only count IV is at issue in this appeal.
Nevertheless, to understand some of the arguments in this appeal, it helps to have an awareness
of the nine tracts of land and the various mortgages and mortgagors to which counts I to XII
pertain. So, before going further, we will briefly summarize the foreclosure counts, counts I to
XII.
¶ 18 1. Count I (Tracts 1, 2, 3, 4, 5, and 6)
¶ 19 On January 17, 2006, several makers issued a note in the principal amount of
$639,000 to Rabobank, N.A. The makers were Pleasant View Farms, Inc.; Gerald E.
Rosentreter; Frances A. Rosentreter; Rick E. Rosentreter; and Amy R. Rosentreter.
¶ 20 That same day, Gerald E. Rosentreter and Frances A. Rosentreter signed a
mortgage in favor of Rabobank, in which they pledged tracts 1, 2, 3, 4, 5, and 6 as security for
the note.
¶ 21 Rabobank subsequently assigned the mortgage to Rabo Agrifinance, Inc., which
then assigned it to plaintiff (i.e., Carlinville National Bank, now known as CNB Bank & Trust,
Inc.).
¶ 22 2. Count II (Tracts 1, 2, 3, 4, 5, and 6)
¶ 23 On September 4, 2008, Rick E. Rosentreter and Amy R. Rosentreter issued a note
to plaintiff in the principal amount of $2.5 million.
¶ 24 On the same date, Gerald E. Rosentreter and Frances A. Rosentreter, by their
agent under a power of attorney, Rick E. Rosentreter, signed a mortgage, in which they pledged
tracts 1, 2, 3, 4, 5, and 6 as security for the note.
¶ 25 3. Count III (Tracts 1, 2, 3, 4, 5, and 6)
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¶ 26 On September 4, 2008, Rick E. Rosentreter and Amy R. Rosentreter issued to
plaintiff a note in the principal amount of $1.5 million. The note said that future advances, up to
that principal amount, would be made "as needed for [the] construction of 3 new 420,000 bushel
grain bins."
¶ 27 That same day, Gerald E. Rosentreter and Frances A. Rosentreter, by their agent,
Rick E. Rosentreter, signed a mortgage pledging tracts 1, 2, 3, 4, 5, and 6 as security for the note.
¶ 28 4. Count IV (Purporting To Mortgage Not Only Tract 4
But Also Tracts 1, 2, 3, 5, and 6 in Their Entirety)
¶ 29 On March 31, 2009, nine makers issued a note in the principal amount of $13.5
million to plaintiff. The makers were all limited liability companies, and on behalf of each of
these limited liability companies, an operating manager signed the note. Rick E. Rosentreter
signed for Rick Rosentreter, L.L.C., and RRDR, L.L.C. "Frances Rosentreter, Executor," signed
for Gerald E. Rosentreter, L.L.C. (Gerald E. Rosentreter died on September 10, 2008.) Matt
Weyen signed for Matt Weyen, L.L.C. Brent Rosentreter signed for RRBR, L.L.C.; Brent
Rosentreter, L.L.C.; and GRBR, L.L.C. Douglas G. Rosentreter signed for GRDR, L.L.C., and
Doug Rosentreter, L.L.C. The note added that each of these individuals personally guaranteed
the note.
¶ 30 On October 28, 2010, Frances A. Rosentreter signed a mortgage in plaintiff's
favor, without any notation that she was signing in her capacity as executor. The secured debt
was "an unlimited personal guaranty of Frances Rosentreter dated 10/28/10 to secure all debts in
the name of Illinois Family Farms." The mortgage also recited the amount of the debt: $13.5
million. (Was the note for $13.5 million "in the name of Illinois Family Farms"? The parties
assume so, and so will we.) According to this mortgage, dated October 28, 2010, the mortgaged
real estate was tracts 1, 2, 3, 4, 5, and 6.
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¶ 31 Paragraphs 3(A), (B), (C), (G), (I), and (K) of count IV alleged as follows:
"3. Information concerning Mortgage:
(A) Nature of instrument: Mortgage.
(B) Date of Mortgage: October 28, 2010.
(C) Names of Mortgagors: Frances
Rosentreter.
(D) Name of Mortgagee: Carlinville
National Bank.
***
(G) Interest subject to the Mortgage: Fee
Simple.
***
(I) Both the legal description of the
mortgaged real estate and the common address or
other information sufficient to identify it with
reasonable certainty:
Tract 1: [Legal description.]
Tract 2: [Legal description.]
Tract 3: [Legal description.]
Tract 4: [Legal description.]
Tract 5: [Legal description.]
Tract 6: [Legal description.]
***
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(K) Names of present owners of said
premises: Frances A. Rosentreter, Rick E.
Rosentreter and Douglas G. Rosentreter, as Co-
Trustees of the Gerald E. Rosentreter Trust B
established under the Gerald E. Rosentreter Trust
No. 1 dated August 4, 2008, as to an undivided 1/2
interest (Tracts 1, 2, 3, 5, and 6); Frances A.
Rosentreter, as Trustee under the Frances A.
Rosentreter Trust dated August 4, 2008, as to an
undivided 1/2 interest (Tracts 1, 2, 3, 5, and 6) AND
Frances A. Rosentreter, as Trustee under the
Frances A. Rosentreter Trust dated August 4, 2008
(Tract 4)."
¶ 32 In their "Corrected Second Amended Answer," defendants admitted paragraphs
3(A), (B), (C), (D), (G), (I), and (K) of count IV.
¶ 33 5. Count V (Tract 7)
¶ 34 On March 10, 2003, Rick E. Rosentreter and Amy R. Rosentreter issued a note to
plaintiff in the principal amount of $268,000.
¶ 35 On June 16, 2003, Rick E. Rosentreter and Amy R. Rosentreter signed a mortgage
in plaintiff's favor, pledging tract 7 as security for the note.
¶ 36 6. Count VI (Tract 7)
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¶ 37 On September 4, 2008, Rick E. Rosentreter and Amy R. Rosentreter signed a
mortgage in plaintiff's favor, pledging tract 7 to secure the note in the amount of $2.5 million,
referenced in count II.
¶ 38 7. Count VII (Tract 7)
¶ 39 On September 4, 2008, Rick E. Rosentreter and Amy R. Rosentreter signed a
mortgage in plaintiff's favor, pledging tract 7 as security for the note in the amount of $1.5
million, referenced in count III.
¶ 40 8. Count VIII (Tract 7)
¶ 41 On October 28, 2010, Rick E. Rosentreter and Amy R. Rosentreter signed a
mortgage in plaintiff's favor, pledging tract 7 as security for the note in the amount of $13.5
million, referenced in count IV.
¶ 42 9. Count IX (Tract 8)
¶ 43 On January 17, 2006, Douglas G. Rosentreter and Cristy L. Rosentreter issued to
Rabobank a note in the principal amount of $520,000.
¶ 44 That same day, they mortgaged tract 8 to Rabobank to secure the note.
¶ 45 Rabobank assigned the mortgage to Rabo Agrifinance, which in turn assigned it
to plaintiff.
¶ 46 10. Count X (Tract 8)
¶ 47 On August 27, 2008, Douglas G. Rosentreter issued to plaintiff a note in the
principal amount of $1.2 million. The note said that future advances, up to that principal sum,
would be made "as needed for grain bin construction."
¶ 48 That same day, Douglas G. Rosentreter and Cristy L. Rosentreter signed a
mortgage in plaintiff's favor, pledging tract 8 as security for the note.
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¶ 49 11. Count XI (Tract 8)
¶ 50 On October 27, 2010, Douglas R. Rosentreter and Cristy L. Rosentreter signed a
mortgage in plaintiff's favor, pledging tract 8 to secure the note in the amount of $13.5 million,
referenced in count IV.
¶ 51 12. Count XII (Tract 9)
¶ 52 On October 28, 2010, Matthew Weyen signed a mortgage in plaintiff's favor,
pledging tract 9 to secure the note in the amount of $13.5 million, referenced in count IV.
¶ 53 C. The Cross-Motions for Summary Judgment
¶ 54 1. Count IV
¶ 55 Plaintiff filed a motion for summary judgment on all counts of the amended
complaint, including count IV.
¶ 56 Defendants, as cotrustees of the Gerald E. Rosentreter Trust B, filed a cross-
motion for summary judgment on count IV. They contended that, in the mortgage dated October
28, 2010, Frances A. Rosentreter could not have mortgaged more than an undivided half of tracts
1, 2, 3, 5, and 6, considering that, according to plaintiff's own admission in paragraph 3(K) of
count IV, the Gerald E. Rosentreter Trust B owned the other undivided half of those tracts.
Again, paragraph 3(K) of count IV reads as follows:
"(K) Names of present owners of said premises: Frances
A. Rosentreter, Rick E. Rosentreter and Douglas G. Rosentreter, as
Co-Trustees of the Gerald E. Rosentreter Trust B established under
the Gerald E. Rosentreter Trust No. 1 dated August 4, 2008, as to
an undivided 1/2 interest (Tracts 1, 2, 3, 5, and 6); Frances A.
Rosentreter, as Trustee under the Frances A. Rosentreter Trust
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dated August 4, 2008, as to an undivided 1/2 inte[r]est (Tracts 1,
2, 3, 5, and 6) AND Frances A. Rosentreter, as Trustee under the
Frances A. Rosentreter Trust dated August 4, 2008 (Tract 4)."
(Emphases added.)
¶ 57 Plaintiff, on the other hand, relied on defendants' admission of paragraph 3(G) of
count IV, which alleged: "Interest subject to the Mortgage: Fee Simple." Plaintiff argued that
by admitting Frances A. Rosentreter had a "Fee Simple" interest in tracts 1, 2, 3, 4, 5, and 6,
defendants admitted she was the full owner of those tracts.
¶ 58 The trial court granted plaintiff's motion for summary judgment on count IV and
denied defendants' cross-motion for summary judgment on that count.
¶ 59 Defendants moved for reconsideration. In their motion for reconsideration, they
requested the trial court to take judicial notice of the inventory from In re Estate of Gerald E.
Rosentreter, Macoupin County case No. 2009-P-139, showing that when Gerald E. Rosentreter
died on September 10, 2008 (the month before the signing of the mortgage in count IV), he
owned an undivided half of tracts 1, 2, 3, 5, and 6. Defendants also submitted an executor's
deed, recorded in Macoupin County on December 29, 2010, in which Frances A. Rosentreter, as
the executor of Gerald E. Rosentreter's will, conveyed an undivided half of tracts 1, 2, 3, 5, and 6
to the Gerald E. Rosentreter Trust B.
¶ 60 The trial court declined to vacate the summary judgment in plaintiff's favor on
count IV.
¶ 61 2. Counts XIII, XIV, and XV
¶ 62 Counts XIII, XIV, and XV were replevin counts. In those counts, plaintiff sought
possession of the grain bins erected on tracts 1 and 7.
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¶ 63 Defendants moved for a summary judgment on those counts, contending that the
grain bins were fixtures rather than personal property and that replevin was a remedy limited to
personal property.
¶ 64 The trial court denied defendants' motion for a summary judgment on counts XIII,
XIV, and XV. Ultimately, however, in the judgment of foreclosure, the trial court found that the
grain bins were indeed fixtures, and the court ordered that they were to be sold as parts of the
real estate.
¶ 65 D. The Judgment of Foreclosure
¶ 66 In a judgment entered on July 26, 2013, the trial court foreclosed the mortgages
on tracts 1 to 9 and ordered the sale of the nine tracts in a public auction.
¶ 67 One of the findings in this judgment was that, in the mortgage referenced in count
IV, Frances A. Rosentreter succeeded in pledging tracts 1, 2, 3, 4, 5, and 6 in their entirety.
¶ 68 E. The Trial Court's Directions
on How Tracts 1 and 7 Were To Be Auctioned
¶ 69 Because a grain elevator facility straddled two adjacent tracts, tracts 1 and 7, it
was unclear whether selling those two tracts separately, as opposed to en masse, would fetch the
greatest amount of sale proceeds. Therefore, the trial court ordered that tracts 1 and 7 first would
be offered for sale separately and that, immediately afterward, they would be offered for sale
together. If the highest bids when they were offered separately exceeded the highest bid when
they were offered together, they would be sold separately. By the same token, if the highest bid
when they were offered together exceeded the highest bids when they were offered separately,
they would be sold together. Of course, this method of conducting the sale would be announced
to the public ahead of time.
¶ 70 F. The Foreclosure Sale
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¶ 71 The foreclosure sale occurred in the Macoupin County courthouse on November
8, 2013. A private auctioneer, Mike Huber, conducted the sale.
¶ 72 Huber first offered tracts 1 and 7 separately. The highest bids for them separately
were $150,000 for tract 1 and $8.85 million for tract 7: a total of $9 million. Defendants claim
that plaintiff was the one that made the bid of $150,000 for tract 1, but plaintiff claims that Jeff
Behme did so. It is undisputed that plaintiff made the bid of $8.85 million for tract 7.
¶ 73 Huber then offered tracts 1 and 7 together, and plaintiff bid $9.1 million. No one
else bid for tracts 1 and 7 en masse.
¶ 74 Thus, tracts 1 and 7 brought a higher amount of sale proceeds en masse than
separately. Separately, they brought $9 million. En masse, they brought $9.1 million.
¶ 75 G. Plaintiff's Motions To Confirm the Foreclosure Sales
and To Apportion the Sale Proceeds Between Tracts 1 and 7
¶ 76 On December 12, 2013, plaintiff filed two separate motions: a "Motion for
Confirmation of Sale" and a "Motion for Apportionment of Sales Price Between Tracts 1 and 7."
¶ 77 On December 20, 2013, defendants filed a "Motion for Evidentiary Hearing With
Court Reporter." In this motion, defendants requested that the hearing on plaintiff's motions for
confirmation of the foreclosure sale and for apportionment of the sale proceeds "be scheduled as
an evidentiary hearing with a court reporter present."
¶ 78 On January 24, 2014, defendants filed a "Response to Motion for Apportionment
of Sales Price Between Tracts 1 and 7," in which they stated that $9.1 million was "not an
unreasonable value" for tracts 1 and 7 together and that they therefore did not object to plaintiff's
motion to confirm the sale. Defendants argued, however, that, out of the $9.1 million,
apportioning only $150,000 to tract 1 (the amount of the separate bid for tract 1) would be
"grossly inadequate compared to the fair market value for Tract 1 of $5.6 million." Defendants
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further argued that "the separate bid by the Plaintiff for Tract 7 for $8,850,000 [was] grossly
inflated compared to the fair market value for Tract 7 of approximately $2,875,000." Defendants
attached to their response, as exhibits A and B, appraisals by Akers Group Appraisal Services,
Inc., which opined that the fair market value of tract 1 was $5.6 million and that the fair market
value of tract 7 was $2.875 million.
¶ 79 On January 30, 2014, the trial court held a hearing on plaintiff's motion for
confirmation of the sale and also on plaintiff's separate motion for an apportionment of the sale
price between tracts 1 and 7. Defendants reiterated their agreement with plaintiff's motion for
confirmation of the sale, and therefore the court granted that motion.
¶ 80 Defendants continued to disagree, however, with plaintiff's other motion, the
motion for an apportionment of the sale proceeds. The parties agreed, of course, that the $9.1
million from the sale of tracts 1 and7 en masse had to be apportioned between those two tracts,
but they disagreed on what that apportionment should be. Over plaintiff's objection, the trial
court allowed defendants to present evidence on this issue.
¶ 81 Defendants called two witnesses: Mark Akers and Rick E. Rosentreter. Plaintiff
called no witness. Defendants' two witnesses testified substantially as follows.
¶ 82 1. Testimony by Mark Akers
¶ 83 a. His Qualifications
¶ 84 Mark Akers, the proprietor of Akers Group Appraisal Services, Inc., testified he
was a real estate appraiser licensed by the state of Illinois. The requirements for that license
were 300 hours of education, supplemented by "ongoing education courses"; a bachelor's degree;
and experience in the form of 3,000 documented hours working with a certified appraiser.
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¶ 85 Over and above his state licensure, Akers was an accredited member of the
American Society of Farm Managers and Rural Appraisers. From that professional society, he
had the designation of accredited rural appraiser. Defendants' attorney asked him:
"Q. And what did you have to do to become an accredited
member of that society?
A. Well, the current requirements are, in addition to a
college degree, being a certified general appraiser, 121 hours of
additional specialized education in the rural appraisal field plus
five years of experience in the field that's followed by a
demonstration in an appraisal report demonstrating your abilities to
complete an appraisal report and assignment which is reviewed by
a panel and graded.
The final step is a three-day comprehensive exam.
Q. Okay. And would you say you have any specialization
in the area of real estate valuation?
A. Yes. I specialize in appraisal of agricultural and rural
properties and specifically the appraisal of agribusiness type
properties."
¶ 86 Akers testified that, during his 29-year career thus far, he had done approximately
7,000 appraisals of agricultural real estate. Of those appraisals, approximately 700 were of
commercial grain elevator properties. Approximately six or seven times, he had been accepted
as an expert witness on real estate valuation.
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¶ 87 Plaintiff's attorney, Richard L. Heavner, stated he had no objection to Akers's
qualifications to testify as an expert in real estate valuation. The trial court found him to be
qualified.
¶ 88 b. His Inspection of Tracts 1 and 7
¶ 89 At the request of Rick E. Rosentreter and his attorney, Jason T.H. Germeraad
(who represents the other defendants as well), Akers appraised the two tracts on which a grain
elevator facility stood, tracts 1 and 7.
¶ 90 The grain elevator facility is on Illinois Route 4, about 1 1/2 miles north of
Carlinville. On November 25, 2013, Akers drove to the facility. Upon Akers's arrival, however,
the receiver, Timothy McHenry, refused to allow him to set foot on the property. Therefore,
Akers inspected the facility from the public road and from adjoining fields. He took photographs
and also referred to "the auction brochure[,] which had a fairly detailed description of the
improvements."
¶ 91 c. The Approaches Akers Used in Appraising Tracts 1 and 7
¶ 92 Akers testified he used two approaches in his valuation of tracts 1 and 7: the cost
approach and the sales comparison approach. Germeraad asked him:
"Q. Can you explain the cost approach briefly?
A. Basically, the cost approach values the land at market
value, using market value sales of land. It estimates the value of
the improvements in their current condition and utility. We add
the two together which arrives at a market value indication of the
property.
***
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Q. *** Can you explain the sales comparison approach?
A. The sales comparison approach compares similar
facilities on a head-to-head basis of valuating differences in quality
and condition and location and makes adjustments appropriately
from the sale to indicate what the value of the subject is.
Q. Is that based on other sales of comparable grain elevator
facilities?
A. It is."
¶ 93 There was a third approach to the valuation of real estate, the income approach,
which Akers did not use in this instance. Germeraad asked him:
"Q. Okay. And then can you explain the income approach?
A. The income approach, basically we go to the market.
We find capitalization rates which are—I use a direct capitalization
rate. In a direct capitalization, we have a sale of a property. We
have an estimate of what its annual income is. You divide the
annual income by the sale price. That gives you a direct
capitalization rate.
Then we take our subject property. We estimate what the
income potential for one year is. We divide it by that rate and that
gives us a market value."
Akers testified the reason he omitted the income approach was that McHenry had "denied [him]
the lease information. Germeraad asked Akers:
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"Q. Okay. So of the three methods of valuation specifically
relating to this property, which do you believe to be the most
reliable, second most reliable, and the least reliable?
A. Well, the heavily improved property with newer
structures, with primarily newer structures, the cost approach is a
reliable approach, and I felt it was probably the most applicable in
this case, followed by the sales comparison approach.
The income approach, had I used it, would have at best
been support for the other two.
Q. And why do you think the income approach would not
be a very reliable indicator of value in this case?
A. In the market—well, most of these types of facilities are
owner-operated, and owner-operated income carries with it a large
portion of business income or value from that business income
based on the particular owner.
So when we do an income approach, we're looking at
leases. Lease information is frequently hard to come by for these
facilities because of confidentiality agreements, differences in
facilities, and locations of different facilities.
So because of the lack of abundant lease information, I
consider it generally less reliable."
¶ 94 d. His Opinion as to the Fair Market Values of Tracts 1 and 7
¶ 95 (i) Tract 1
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¶ 96 According to the appraisal by Akers admitted in evidence as exhibit A, tract 1 was
approximately 70 acres, consisting of 60 acres of cropland, 7 acres of improvements, and 3 acres
of roads or waste. Under the heading of "Property Description," Akers wrote:
"The grain storage on the subject consists of 3,005,000
bushels of storage. 415,000 bushels of storage are in Grain Tank
19. Grain Tank 19 is split by the property line. 100,000 bushels of
storage [are] in the flat Quonset building. It is unclear if this
building is cut by the property line. The 15,000 bushel per hour
receiving pit and Grain leg appear[] to be completely on the
subject property."
¶ 97 Both in his testimony and in exhibit A, Akers opined that the 70-acre parcel, tract
1, had a fair market value of $5.6 million.
¶ 98 (ii) Tract 7
¶ 99 According to the appraisal by Akers admitted in evidence as exhibit B, tract 7 was
approximately 10 acres and was entirely an improved plot, without any cropland. Under the
heading of "Property Description," Akers wrote:
"The grain storage on the subject consists of 1,484,300
bushels of storage. 415,000 bushels of storage are in Grain Tank
19. Grain Tank 19 is split by the property line. There is also a
house, outbuildings and support facilities for the grain storage
facilities. A 30,000 gallon anhydrous bottle and 4[-]way dock are
located at the east end of the property."
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¶ 100 In exhibit B and in his testimony, Akers opined that the 10-acre parcel, tract 7,
had a fair market value of $2.875 million.
¶ 101 e. The Cross-Examination of Akers
¶ 102 (i) Whether Tract 1 Had a Grain Pit
¶ 103 On cross-examination, Heavner asked Akers:
"Q. Did you know and did you base your appraisal of the
70-acre tract on the fact that there's no way of getting the grain in
or out of the grain bins? There's no grain pit on the 70-acre tract?
A. That was addressed in my appraisal."
¶ 104 According to Akers's appraisal of tract 1, which was admitted in evidence as
exhibit A, tract 1 actually has a "15,000 BPH [(bushel per hour)] Receiving Pit." The appraisal
includes photographs of the pit.
¶ 105 According to exhibit B, the appraisal of tract 7, that tract has, by comparison, a
"6,700 BPH Receiving Pit."
¶ 106 (ii) Grain Bin No. 19 and the Quonset Building
¶ 107 Heavner further asked Akers:
"Q. Did you know that there has been no survey done but it
is the belief of all the parties to this case that one of the grain bins
is split in half by the property line and one of the buildings is split
in half by the property line?
A. The grain bin specifically was addressed in the
appraisal.
Q. The long Quonset building part of it is addressed?
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A. The information I had was unclear on the Quonset
building.
***
[Q.] Do you know whether or not the Quonset hut is cut in
between the boundary lines?
[A.] The evidence I had put it right on the line. I didn't
believe it was cut."
¶ 108 As we said, exhibits A and B repeatedly noted that the property line between
tracts 1 and 7 went through grain bin No. 19. As for the Quonset building, exhibit A said: "It is
unclear if this building is cut by the property line."
¶ 109 2. Testimony by Rick E. Rosentreter
¶ 110 Rick E. Rosentreter testified he was one of the defendants in this case and that on
November 8, 2013, he went to the foreclosure sale at the Macoupin County courthouse. He
observed the auction from start to finish, and "[t]racts 1 and 7 were offered separately, and then
they were offered later as a combined, one sale together."
¶ 111 Germeraad asked him:
"Q. Okay. Relating to the separate sale of tract 1, do you
recall all the bids that were made on the separate sale of tract 1?"
A. There was an opening bid by a third party of 100,000,
and then the second bid was the winning bid by the plaintiffs of
150,000.
Q. Okay. And do you recall the bids that were made
relating to the separate sale of tract 7?
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A. There was only one bid made by the plaintiff for 8.85
million.
Q. Okay. And then you said tracts 1 and 7 were sold
together?
A. Yes.
Q. Do you recall the bids made on that sale?
A. There was only one bid made by the plaintiff in the
amount of 9.1 million."
¶ 112 Germeraad identified exhibit C as the brochure provided at the auction. Exhibit C
was admitted in evidence.
¶ 113 On cross-examination by Heavner, Rick E. Rosentreter admitted he "got a bidding
number" before the auction began. Considering that, in Akers's opinion, tract 1 was worth $5.6
million, Heavner asked Rick E. Rosentreter why he himself did not bid $150,001 for tract 1. He
answered:
"A. As far as the date of sale . . .
Q. It speaks for.
A. . . . whether I was in a position to buy or whether I was
interested in buying is my own decision.
Whether it's a bargain to somebody depends on what the
reason is that they would want the elevator and I didn't want the
real estate.
I'm not in a position to answer those kinds of questions.
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Q. Mr. Rosentreter, if it was worth $5,600,000, why
wouldn't you have purchased it for $150,001 and turned around
and sold it the next day for $5,600,000? You're a businessman.
A. That's correct.
[Q.] The question is why didn't you?
[A.] I can't. I have a conflict of interest or I would have
sure as heck bought it I will tell you."
Again, Rick E. Rosentreter is one of the trustees of the Gerald C. Rosentreter Trust B, which,
defendants claim, has an ownership interest in tract 1. See O'Halloran v. Fitzgerald, 71 Ill. 53,
58 (1873) ("[The trustee] could not buy in an outstanding title, and set up title in himself, nor
could he buy in the land for taxes, and set up the title to defeat the title of the cestui que trust.");
George Gleason Bogert & George Taylor Bogert, The Law of Trusts and Trustees § 543(C), at
292-93 (rev. 2d ed. 1993) ("A majority of the decisions which have considered the problem have
held that it is a violation of his fiduciary duty for a trustee *** to purchase on such a forced sale
[of trust property]." (Emphasis omitted.)).
¶ 114 Heavner further asked Rick E. Rosentreter:
"Q. Would you agree with my estimate that there were
probably a hundred people or more in the courtroom?
A. There was plenty, yes."
¶ 115 At the conclusion of the evidence, Heavner proposed distributing the $9.1 million
in sale proceeds in the same proportion as the initial bids of $150,000 for tract 1 and $8.85
million for tract 7. The initial bids totaled $9 million. The bid of $150,000 for tract 1 was
1.6666% of $9 million. By calculating 1.6666% of $9.1 million, one arrived at $151,666.67, the
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amount of the sale proceeds to be apportioned to tract 1. The remaining $8,948,333.03 of the
sale proceeds was to be apportioned to tract 7 under Heavner's proposal.
¶ 116 Germeraad objected to this method of apportionment. He argued that, under
Heavner's proposal, the undervaluation of tract 1 would be so extreme as to be unconscionable.
Instead, Germeraad proposed apportioning the $9.1 million in sale proceeds in accordance with
ratios derived from Akers's appraisals. In Akers's opinion, tract 1 had a fair market value of $5.6
million, and tract 7 had a fair market value of $2.875 million. The total of those two figures was
$8.475 million. The fair market value of tract 1 was 66% of that total. By calculating 66% of
$9.1 million, one arrived at $6.006 million, the amount to be apportioned to tract 1. The
remaining $3.094 million was to be apportioned to tract 7 under Germeraad's proposal.
¶ 117 The trial court rejected Germeraad's proposal because the court disagreed with his
underlying premise that the bid of $150,000 for tract 1 was grossly inadequate. The court
reasoned:
"THE COURT: Well, they were not grossly inadequate.
They were all done at arm's length.
By reading the statutes and by reading the case authority, it
says in the absence of estate fraud, violation of the duty officer
conducting the sale, mere inadequacy of price is not a sufficient
reason to disturb a judicial sale.
Then it goes on to say mere inadequacy of price is not
sufficient reason to disturb a judicial sale unless there were some
other irregularities."
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The court did not find anything underhanded or fraudulent about the auction. All that defendants
had presented, it seemed to the court, was "an appraisal that [did not] agree with the sale price"—
a sale price established "at arm's length." Therefore, the court apportioned the sale proceeds in
accordance with Heavner's proposal: $151,666.67 to tract 1 and $8,948,333.03 to tract 7.
¶ 118 II. ANALYSIS
¶ 119 A. Our Nondeferential Standard of Review,
Despite the Motion for Reconsideration
¶ 120 When parties file cross-motions for summary judgment, they agree that the case
presents only questions of law, and they invite the trial court to decide these legal questions on
the basis of the record. Pielet v. Pielet, 2012 IL 112064, ¶ 28. Obviously, the court need not
agree with the parties' assessment. A court cannot legitimately conclude, merely from the filing
of cross-motions for summary judgment, that there really is no issue of material fact or that one
party or the other really is entitled to a judgment as a matter of law. Id. The trial court must
make its own independent assessment—as must we. Our standard of review is de novo. Id. ¶ 30.
¶ 121 Just because a party requested the trial court to reconsider the summary judgment,
it does not follow that what would otherwise be a de novo standard of review is transformed into
a deferential standard of review. Granted, the cases say that when reviewing the ruling on a
motion for reconsideration, we should ask whether the trial court abused its discretion; but abuse
of discretion is "a versatile standard of review in that, depending on what the underlying issue is,
it can lead to other standards of review." Shulte v. Flowers, 2013 IL App (4th) 120132, ¶ 22.
Where, as in this case, the underlying issues are legal rather than factual, "we will proceed de
novo." Id. ¶ 24. See also O'Shield v. Lakeside Bank, 335 Ill. App. 3d 834, 838 (2002) (noting
that a "party cannot convert the de novo standard applicable to the original motion into an abuse
of discretion standard simply by asking the court to reconsider its previous ruling"). "A trial
- 26 -
court order granting summary judgment presents a question of law, which we review de novo."
Feliciano v. Geneva Terrace Estates Homeowners Ass'n, 2014 IL App (1st) 130269, ¶ 30. The
nature of the question does not change simply because defendants filed a motion for
reconsideration. See O'Shield, 335 Ill. App. 3d at 838.
¶ 122 B. Count IV: Foreclosure
¶ 123 When a party files a motion for summary judgment, the question is whether "the
pleadings, depositions, and admissions on file, together with the affidavits, if any, show that
there is no genuine issue as to any material fact and that the moving party is entitled to a
judgment as a matter of law." 735 ILCS 5/2-1005(c) (West 2012). That is the question in the
trial court, and that it also is the question on appeal. In answering that question, "[t]he court
must construe the pleadings, depositions, admissions and affidavits strictly against the moving
party and liberally in favor of the respondent." Feliciano, 2014 IL App (1st) 130269, ¶ 30.
¶ 124 As we said, plaintiff sought a summary judgment on count IV. In its motion for
summary judgment, plaintiff took the position that Frances A. Rosentreter had succeeded in
mortgaging 100% of tracts 1, 2, 3, 4, 5, and 6 when she signed the mortgage on October 28,
2010.
¶ 125 Defendants filed a cross-motion for summary judgment on count IV. They sought
a summary judgment that although Frances A. Rosentreter had succeeded in mortgaging 100% of
tract 4, she had succeeded in mortgaging only her undivided 50% of tracts 1, 2, 3, 5, and 6,
considering that, at the time she signed the mortgage, they, as the cotrustees of the Gerald E.
Rosentreter Trust B, owned the other undivided 50% of those tracts. See Cadle Co. II v.
Stauffenberg, 221 Ill. App. 3d 267, 269 (1991); Miles Homes Inc. of Illinois v. Lyons, 8 Ill. App.
3d 179, 181 (1972).
- 27 -
¶ 126 We first will scrutinize plaintiff's motion for summary judgment on count IV, and
then we will scrutinize defendants' cross-motion for summary judgment on count IV.
¶ 127 On appeal, plaintiff argues that because defendants admitted paragraph 3(G) of
count IV of the amended complaint, there was no genuine issue as to whether Frances A.
Rosentreter owned 100% of tracts 1, 2, 3, 5, and 6 when she signed the mortgage on October 28,
2010, and hence plaintiff was entitled to a judgment as a matter of law on count IV.
¶ 128 Paragraph 3(G) of count IV, which defendants admitted, alleged as follows:
"Interest subject to the Mortgage: Fee Simple." Plaintiff reasons that, under section 15-
1504(a)(3)(G) of the Illinois Mortgage Foreclosure Law (735 ILCS 5/15-1504(a)(3)(G) (West
2012)), the term "fee simple" is alternative to and exclusive of the term "undivided interest."
According to that section, the "foreclosure complaint" must set forth "[i]nformation concerning
[the] mortgage," including the "[i]nterest subject to the mortgage," and then, in parentheses, the
section instructs the pleader to "here insert whether fee simple, estate for years, undivided
interest, etc." Id. Plaintiff argues that if the drafter of a foreclosure complaint chooses one of
these parenthetical descriptive terms, "fee simple," the drafter cannot also choose another of the
terms, such as "undivided interest."
¶ 129 In our de novo interpretation of this statute (Adams v. Northern Illinois Gas Co.,
211 Ill. 2d 32, 43 (2004); Country Mutual Insurance Co. v. State Farm Mutual Automobile
Insurance Co., 339 Ill. App. 3d 78, 81 (2003)), we see no reason to regard "fee simple" as
exclusive of "undivided interest." The statute does not say those two terms are exclusive of one
another, and in the common law of Illinois, there is no dichotomy between ownership in fee
simple and ownership of an undivided share. See, e.g., Baker v. Forsuman, 15 Ill. 2d 353, 362
(1958) ("[T]he defendants are the owners in fee simple of an undivided 1/10 of the property.
- 28 -
The plaintiffs are each the owners in fee simple of an undivided 1/9 of the remaining 9/10.");
Brod v. Brod, 390 Ill. 312, 326 (1945) ("The decrees appealed from are affirmed in so far as they
declare that appellee and appellant are each vested with an undivided one-half interest in fee
simple as joint tenants ***."); Grubmeyer v. Mueller, 385 Ill. 529, 537 (1944) ("[U]pon her death
the appellees became the owners in fee simple of an undivided one-half of the land in
controversy ***.").
¶ 130 "[W]ords and phrases having well-defined meanings in the common law are
interpreted to have the same meanings when used in statutes dealing with the same or similar
subject matter as that with which they were associated at common law." Scott v. Dreis & Krump
Manufacturing Co., 26 Ill. App. 3d 971, 983 (1975). The supreme court has adopted the
meaning of "fee simple" set forth in two classic treatises on the common law: Blackstone's
Commentaries and Kent's Commentaries. The supreme court cited those two treatises in Woods
v. Seymour, 350 Ill. 493, 497 (1932), when explaining why the deed in that case conveyed a
lesser estate than fee simple:
"The language of the grant *** did not import an estate in fee
simple, which is a pure inheritance, clear of any qualification or
conditions, and must be given or granted generally, absolutely and
simply. (2 Blackstone's Com. 104; 4 Kent's Com. 5.)"
¶ 131 The cited page of Blackstone says, in part:
"I. Tenant in fee-simple (or, as he is frequently styled,
tenant in fee) is he that hath lands, tenements, or hereditaments, to
hold to him and his heirs forever; generally absolutely, and simply;
without mentioning what heirs, but referring that to his own
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pleasure, or to the disposition of the law." (Emphasis in original.)
2 William Blackstone, Commentaries on the Laws of England, at
104 (1857).
¶ 132 The cited page of Kent says, in part:
"1. Fee Simple is a pure inheritance, clear of any
qualification or condition, and it gives a right of succession to all
the heirs generally, under the restriction that they must be of the
blood of the first purchaser, and of the blood of the person last
seised. (a) It is an estate of perpetuity, and confers an unlimited
power of alienation, and no person is capable of having a greater
estate or interest in land. Every restraint upon alienation is
inconsistent with the nature of a fee simple; and if a partial
restraint be annexed to a fee, as a condition not to alien for a
limited time, or not to a particular person, it ceases to be a fee
simple, and becomes a fee subject to a condition." 4 James Kent,
Commentaries on American Law, at 5 (14th ed. 1896).
¶ 133 In sum, then, "[a] 'fee simple' is an estate of inheritance without condition,
belonging to the owner, and alienable by him or her or transmissible to his or her heirs absolutely
and simply." 18 Ill. L. and Prac. Estates § 5, at 10 (2003) (citing Woods, 350 Ill. 493).
Regardless of whether a person owns the north 50 acres of Blackacre or an undivided 50% of
Blackacre, that person has a fee simple if his or her ownership is unconditional, in perpetuity,
and with an absolute power to alienate and devise the property. That an undivided share of land
can be owned in fee simple is evident from Blackstone's comment that "hereditaments" can be
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owned in fee simple. An undivided ownership interest in land can be a hereditament (it can be
inherited); therefore, it can be owned in fee simple.
¶ 134 Thus, we disagree that by admitting the mortgagor, Frances A. Rosentreter, had a
fee-simple interest in tracts 1, 2, 3, 5, and 6, defendants admitted she owned 100% of those
tracts.
¶ 135 Granted, paragraph 3(I) of count IV—a paragraph which defendants likewise
admitted—alleged that tracts 1, 2, 3, 4, 5, and 6 were "the mortgaged real estate." But that
allegation would be true even if Frances A. Rosentreter had mortgaged only an undivided
percentage of those tracts. If indeed she owned an undivided percentage, something less than
100%, it would be impossible to say that any particular acreage or footage of those tracts was
free of the mortgage. Assume, for instance, that a cotenant, owning an undivided 50% of
Blackacre, pledges Blackacre as security for a loan. As a result, Blackacre, not any particular
area of Blackacre, would become "mortgaged real estate"—but the mortgage would extend only
to the cotenant's undivided percentage of ownership (Cadle, 221 Ill. App. 3d at 269).
¶ 136 So, when we construe paragraphs 3(G) and (I) of count IV strictly against plaintiff
and liberally in favor of defendants (see Feliciano, 2014 IL App (1st) 130269, ¶ 30), plaintiff's
right to a summary judgment that Frances A. Rosentreter, individually, owned 100% of tracts 1,
2, 3, 5, and 6 is not "clear and free from doubt" (Northern Illinois Emergency Physicians v.
Landau, Omahana & Kopka, Ltd., 216 Ill. 2d 294, 306 (2005)). Just because the "[i]nterest
subject to the [m]ortgage" was "[f]ee [s]imple" and just because tracts 1, 2, 3, 5, and 6 were "the
mortgaged real estate," it does not necessarily follow that by signing the mortgage in count IV,
Frances A. Rosentreter succeeded in mortgaging the full ownership interest in those tracts as
opposed to an undivided percentage of each of them.
- 31 -
¶ 137 Having determined, on the basis of the pleadings, that plaintiff was not entitled to
a judgment as a matter of law that Frances A. Rosentreter owned 100% of tracts 1, 2, 3, 5, and 6
when she signed the mortgage in count IV, we next address the question of whether defendants
were entitled to a judgment as a matter of law that she owned only an undivided half of tracts 1,
2, 3, 5, and 6 when she signed the mortgage.
¶ 138 Defendants relied on paragraph 3(K) of count IV, which identified them, the
trustees of the Gerald E. Rosentreter Trust B, as the "present owners" of "an undivided 1/2
interest (Tracts 1, 2, 3, 5, and 6)" and Frances A. Rosentreter, the trustee of the Frances A.
Rosentreter Trust, as the "present owner[]" of the other undivided half interest in those tracts.
Defendants argue that, by plaintiff's own admission in paragraph 3(K) of count IV, Frances A.
Rosentreter, in her individual capacity (or in her capacity as the trustee of the trust bearing her
name), owned no more than an undivided half of tracts 1, 2, 3, 5, and 6 and hence was incapable
of mortgaging more than an undivided half of those tracts. (Frances A. Rosentreter was the
executor of Gerald E. Rosentreter's will when she signed the mortgage of October 28, 2010, but
the parties appear to agree she signed the mortgage only in her individual capacity, not in her
capacity as executor.)
¶ 139 Plaintiff counters that because paragraph 3(K) identifies only the "present
owners" of tracts 1, 2, 3, 5, and 6—that is, the persons who owned those tracts on May 7, 2012,
when plaintiff filed its amended complaint—paragraph 3(K) does not negate Frances A.
Rosentreter's full ownership of those tracts earlier, at the time she signed the mortgage, on
October 28, 2010. We agree. When we construe paragraph 3(K) strictly against defendants and
liberally in favor of plaintiff (see Feliciano, 2014 IL App (1st) 130269, ¶ 30), defendants' right to
a partial summary judgment on count IV is not "clear and free from doubt" (Northern Illinois
- 32 -
Emergency Physicians, 216 Ill. 2d at 306), because paragraph 3(K) identifies only the "present
owners" of tracts 1, 2, 3, 5, and 6 and says nothing about who owned the tracts on October 28,
2010, when Frances A. Rosentreter signed the mortgage referenced in count IV.
¶ 140 We realize that, in their motion for reconsideration, defendants presented
additional evidence to the trial court. But the trial court was not obliged to consider it. See
Gardner v. Navistar International Transportation Corp., 213 Ill. App. 3d 242, 248 (1991) ("Trial
courts should not permit litigants to stand mute, lose a motion, and then frantically gather
evidentiary material to show that the court erred in its ruling.").
¶ 141 C. Counts XIII, XIV, and XV: Replevin
¶ 142 Defendants have an ownership interest in tract 1 but not in tract 7. Nevertheless,
a grain elevator facility, including 20 grain bins linked together by conveyor belts, straddles
tracts 1 and 7, with the property line running through grain bin No. 19.
¶ 143 In counts XIII to XV of the amended complaint, plaintiff sought to enforce a
security interest in these grain bins. Count XIII requested possession of the grain bins on tract 1,
and counts XIV and XV requested possession of the grain bins on tract 7.
¶ 144 Each of these three counts was entitled "Complaint for Replevin," and each of
these counts characterized itself as a "replevin action" and requested "possession of the
"collateral," i.e., the grain bins. Because replevin is an action for the recovery of "goods or
chattels" (735 ILCS 5/19-101 (West 2012)) and because defendants regard the grain bins as
fixtures rather than goods or chattels (but see Lindstrom v. Houzenga, 177 Ill. App. 3d 1, 3
(1988) (question of fact whether grain bins were personal property or fixtures)), defendants
contend the trial court erred by granting summary judgment in plaintiff's favor on counts XIII to
XV and denying summary judgment in their favor on those counts.
- 33 -
¶ 145 On July 26, 2013, however, after entering the summary judgment, the trial court
entered a more detailed written judgment, which specifically found that, for purposes of counts
XIII to XV, the grain bins actually were "fixtures" and that, as such, they were "part" of the tracts
on which they stood. Therefore, under the heading of "Judgment[:] Count XIII," the court
decreed that the grain bins on tract 1 would be "sold as part of said real estate pursuant to the
terms of the Judgment of Foreclosure and Sale As to Counts I, II, III and IV." Likewise, under
the headings of "Judgment[:] Count XIV" and "Judgment[:] Count XV," the court decreed that
the grain bins on tract 7 would be "sold as part of said real estate pursuant to the terms of the
Judgment of Foreclosure And Sale As To Counts V, VI, VII and VIII of Plaintiff's Amended
Complaint."
¶ 146 Thus, plaintiff argues that, under the written judgment of July 26, 2013, "the
Defendant's allegations and relief sought are moot, as it is clear the grain bins are part of the real
estate." We agree.
¶ 147 D. The Asserted Waiver or Mootness of the Question
of What Tracts 1 and 7 Were Worth Separately
¶ 148 Plaintiff argues that the trial court never determined, and never was asked to
determine, the fair market value of any property and that in the evidentiary hearing on
apportioning the sale proceeds between tracts 1 and 7, "the fair market value of the subject
property was not at issue as the sales had been confirmed," with the agreement of defendants.
Thus, plaintiff concludes, "the Defendants' claims [regarding the fair market values of tracts 1
and 7] are improperly before this Court and should be deemed moot."
¶ 149 This reasoning is unconvincing. Clearly, defendants asked the trial court to
determine the fair market values of tracts 1 and 7 for the purpose of apportioning the $9.1 million
in sale proceeds between those tracts. That was the whole point of submitting Akers's appraisals
- 34 -
of those tracts and calling him to testify. And we disagree that by agreeing to a confirmation of
the sale en masse of tracts 1 and 7, defendants relinquished any issue as to the individual fair
market values. To say that two pieces of land are worth a certain undifferentiated amount
together does not answer the question of how much they each are worth. Defendants could agree
with plaintiff that $9.1 million is a fair price for tracts 1 and 7 together without agreeing with
plaintiff's proposed apportionment of that amount between the two tracts. Again, plaintiff
simultaneously filed two separate motions: a motion to confirm the sale and a motion to
apportion $151,666.67 of the sale proceeds to tract 1 and the remaining $8,948,333.03 to tract 7.
Defendants agreed with the first motion while opposing the second.
¶ 150 E. The Apportionment of the Proceeds
From the Foreclosure Sale of Tracts 1 and 7
¶ 151 Because the grain elevator facility straddled two adjoining tracts, tracts 1 and 7,
the trial court ordered that those two tracts first be offered for sale separately and then be offered
for sale together and that if they fetched a higher total bid separately, they would be sold
separately, but if they fetched a higher bid together, they would be sold together.
¶ 152 The foreclosure sale was held on November 8, 2013. When tracts 1 and 7 were
offered for sale separately, the highest bid for tract 1 was $150,000. (On January 30, 2014, in a
hearing on the apportionment of the sale proceeds, Rick E. Rosentreter testified that the highest
bidder for tract 1 was plaintiff, but the report of sale says the highest bidder was a third party,
Jeff Behme. It is unclear that the report of sale is, properly speaking, evidence. In any event, the
identity of the bidder on tract 1 is insignificant to our decision.) The highest bid for tract 7 was
$8.85 million, and this was a bid by plaintiff. When tracts 1 and 7 were offered for sale together,
the highest bid was $9.1 million, and it was a bid by plaintiff. Because the bid for tracts 1 and 7
when they were offered together exceeded the total of the bids for the tracts when they were
- 35 -
offered separately ($9.1 million compared to $9 million), tracts 1 and 7 were sold together, in
accordance with the court's order.
¶ 153 The Illinois Mortgage Foreclosure Law (735 ILCS 5/15-1101 to 15-1706 (West
2012)) does not directly say how the sale proceeds should be apportioned when different tracts of
land are sold en masse. Nevertheless, as we will explain, it is possible to arrive at an answer to
this question by reasoning from section 15-1508(b) (735 ILCS 5/15-1508(b) (West 2012)). We
interpret this statute de novo. LaSalle Bank National Ass'n v. Cypress Creek 1, LP, 242 Ill. 2d
231, 237 (2011).
¶ 154 Section 15-1508(b) provides in part:
"(b) Hearing. Upon motion and notice in accordance with
court rules applicable to motions generally, which motion shall not
be made prior to sale, the court shall conduct a hearing to confirm
the sale. Unless the court finds that (i) a notice required in
accordance with subsection (c) of Section 15-1507 [(735 ILCS
5/15-1507(c) (West 2012))] was not given, (ii) the terms of sale
were unconscionable, (iii) the sale was conducted fraudulently, or
(iv) justice was otherwise not done, the court shall then enter an
order confirming the sale." 735 ILCS 5/15-1508(b) (West 2012).
¶ 155 The statute speaks of "the terms of sale." One of "the terms of sale" is the
purchase price. World Savings & Loan Ass'n v. Amerus Bank, 317 Ill. App. 3d 772, 780 (2000).
When several tracts of land are sold en masse, there is a single purchase price. And sometimes,
because of overlapping improvements or the scarcity of points of entry, tracts of land should be
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sold en masse to fetch the highest purchase price. Stone v. Missouri Guarantee Savings &
Building Ass'n, 58 Ill. App. 78, 80 (1894).
¶ 156 But a dilemma could arise. Obtaining only one purchase price for a group of
parcels could be problematic because the purpose of a foreclosure is to enforce the payment of
the mortgagor's debt (Resolution Trust Corp. v. Hardisty, 269 Ill. App. 3d 613, 616 (1995)), and
the landowners and the secured debts could be different from one parcel to another (Brown v.
Kennicott, 30 Ill. App. 89, 90 (1889)).
¶ 157 One possible solution to this problem is to do as the trial court ordered in this
case. Give the public advance notice that the tracts of land first will be offered for sale
separately and that they afterward will be offered for sale en masse and that, when they are
offered en masse, if the highest bid exceeds the total of the highest bids made when the tracts
were offered separately, they will be sold en masse, whereas if the total of the highest bids when
they are offered separately exceeds the highest bid made when they are offered en masse, they
will be sold separately. See Union Trust Co. of New York v. Illinois Midland Ry. Co., 117 U.S.
434, 474 (1886). If the tracts of land are sold en masse, the sale proceeds could be "divided into
*** parts, in proportion to the amounts bid separately on the *** constituent parts, and
distributed *** in the same manner as if the *** constituent parts had been sold separately." Id.
at 474-75.
¶ 158 But what if the highest bid for one of the "constituent parts"—in this case, one of
the tracts of land—is unconscionably low even though the winning bid for the tracts en masse is
quite ample? It is an abuse of discretion to confirm a judicial sale if "the terms of sale were
unconscionable." 735 ILCS 5/15-1508(b) (West 2012); see Parkway Bank & Trust Co. v.
Korzen, 2013 IL App (1st) 130380, ¶ 15; Deutsche Bank National Trust Co. v. Snick, 2011 IL
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App (3d) 100436, ¶ 10. One of "the terms of sale" is the purchase price. World Savings, 317 Ill.
App. 3d at 780. Defendants did not object to the purchase price for tracts 1 and 7 en masse.
They had no reason to do so, considering that $9.1 million exceeded Akers's estimate of the fair
market value of tracts 1 and 7 ($5,600,00 + $2.875 million = $8.475 million). Nevertheless,
even though the sale proceeds from tracts of land sold en masse are in a conscionable amount,
section 15-1508(b)(ii) (735 ILCS 5/15-1508(b)(ii) (West 2012)) could be subverted by an
unconscionable apportionment of the sale proceeds between the tracts of land sold en masse.
¶ 159 To a mortgagor of tract 1, there is no practical difference between, on the one
hand, a sale of tract 1 for only 2.7% of its fair market value and, on the other hand, an
apportionment of that amount to tract 1 from a sale en masse. The amount the trial court
apportioned to tract 1, $151,666.67, was only 2.7% of the fair market value that Akers had
placed upon tract 1, $5.6 million. The 2.7% of fair market value, if it would have been
unconscionably low in a separate sale, would not somehow be sanitized by a conscionable sale
price en masse.
¶ 160 Granted, in the absence of mistake, fraud, or a violation of duty by the officer
conducting the sale, a trial court should not refuse to confirm a judicial sale merely because the
proposed sale price is less than the fair market value of the property. World Savings, 317 Ill.
App. 3d at 780. It is only to be expected that a forced sale will bring less than the fair market
value. Levy v. Broadway-Carmen Building Corp., 366 Ill. 279, 288 (1937). Even so, a court
abuses its discretion by confirming a sale when the proposed sale price is "grossly inadequate"
and therefore unconscionable. Id. at 289; see Korzen, 2013 IL App (1st) 130380, ¶ 15. Case law
declines to set down a generally applicable percentage of fair market value below which a sale
price is unconscionable. Moeller v. Miller, 315 Ill. 454, 459-60 (1925). We note, however, that
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the appellate court has held approximately 10% of the fair market value to be unconscionable.
JP Morgan Chase Bank v. Fankhauser, 383 Ill. App. 3d 254, 265 (2008). We conclude that
2.7% is unconscionable.
¶ 161 Just as it would have been an abuse of discretion to confirm a judicial sale of tract
1 for only 2.7% of its fair market value, so was it an abuse of discretion to apportion to tract 1
sale proceeds amounting to only 2.7% of its fair market value when the sale price for the two
tracts together exceeded their combined fair market values.
¶ 162 Plaintiff argues, however, that an arm's length transaction validated the offer of
$150,000 that plaintiff made for tract 1 (the offer on which the apportionment of $151,666.67
was based). Plaintiff writes: "As the Plaintiff was a willing seller and there were many willing
buyers, the sales price yielded at the auction on November 8, 2013, is the best indicator of the
fair market value. As a result, the judge's decision to use the arm's length transaction in
apportioning the sales price was not against the manifest weight of the evidence."
¶ 163 We see five problems with this argument by plaintiff. First, to be the seller of
tracts 1 and 7, plaintiff had to own them. The mortgagors retained title to tracts 1 and 7 until the
trial court entered the order confirming the foreclosure sale and issued the deeds to the purchaser,
i.e., plaintiff. See Kling v. Ghilarducci, 3 Ill. 2d 454, 460 (1954).
¶ 164 Second—a related point—plaintiff could not possibly be both the seller and the
buyer of tracts 1 and 7. When speaking of an arm's length transaction between a willing seller
and a willing buyer as being the best evidence of fair market value (Walsh v. Property Tax
Appeal Board, 181 Ill. 2d 228, 230 (1998)), the supreme court surely had in mind two different
persons. It is difficult to visualize the contortions of having an arm's length negotiation with
oneself.
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¶ 165 Third, even when the seller and the buyer at a foreclosure sale are different
persons, the property typically sells for less than it is worth. "It is unusual for land to bring its
full, fair market value at a forced sale." Levy, 366 Ill. at 288; see also Nevada National Leasing
Co. v. Hereford, 680 P.2d 1077, 1080 (Cal. 1984); Guardian Loan Co. v. Early, 392 N.E.2d
1240, 1244 (N.Y. 1979); Scott B. Ehrlich, Avoidance of Foreclosure Sales as Fraudulent
Conveyances: Accommodating State and Federal Objectives, 71 Va. L. Rev. 933, 964 n.91
(1985). That, indeed, is the attraction of foreclosure sales. In re Superintendent of Banks of
State of New York, 100 N.E. 428, 429 (N.Y. 1912). It is precisely because foreclosure sales tend
to bring less than the fair market value that the legislature has provided a right of redemption.
One of the purposes of the Illinois Mortgage Foreclosure Law is "to protect the equity of a
mortgagor by permitting mortgage redemptions prior to forced sales," thereby enabling the
mortgagor (if it has sufficient funds) to avoid "the forced sale of property at prices well below
fair market value." (Emphases added.) Fleet Mortgage Corp. v. Deale, 287 Ill. App. 3d 385,
389 (1997). If, as plaintiff argues, the price a property fetched at a foreclosure sale were ipso
facto the fair market value of the property, that legislative purpose would be superfluous.
¶ 166 Fourth, "[t]he fair market value of property is the amount of money that a
purchaser, willing but not obligated to buy the property, would pay an owner, willing but not
obligated to sell the property, without taking into account the values or necessities peculiar to
either party." (Emphasis added.) Hewitt v. Hurwitz, 227 Ill. App. 3d 616, 622 (1992). The
owners of tracts 1 and 7 were not willing to sell those tracts; rather, they were judicially
compelled to do so. Therefore, the foreclosure sale has no tendency to prove the fair market
values of tracts 1 and 7.
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¶ 167 Fifth, if a foreclosure sale determined the fair market value of the property, the
very term "unconscionable purchase price" would be a self-contradiction. And yet, according to
the case law, there is indeed such a thing as a grossly inadequate and therefore unconscionable
purchase price in a foreclosure sale. Levy, 366 Ill. at 288; Fankhauser, 383 Ill. App. 3d at 265.
Logic would suggest, then, that the price a property fetches in a foreclosure sale is not conclusive
on the question of what is the property's fair market value.
¶ 168 For those reasons, it is incorrect to regard plaintiff's (or, as the case may be,
Behme's) bid of $150,000 for tract 1 as evidence of that property's fair market value.
¶ 169 But plaintiff disputes that the appraisals by Akers are a more reliable valuation.
Plaintiff claims that his appraisals are "incomplete as [he] conceded that he did not use the
income approach when appraising this commercial property and that he was not aware certain
structures straddled the property lines."
¶ 170 We are aware of no authority for the idea that an appraisal necessarily is
incomplete if it omits the income approach. Plaintiff cites no case laying down a general rule
that the income approach is the sine qua non of a valid appraisal. Rather, case law prefers the
sales comparison approach (Kraft Foods, Inc. v. Illinois Property Tax Appeal Board, 2013 IL
App (2d) 121031, ¶ 43; United Airlines, Inc. v. Pappas, 348 Ill. App. 3d 563, 572 (2004)), which
Akers used. And he supplemented the sales comparison approach with the cost approach.
"Professional appraisals generally employ more than one method to determine valuation; the use
of more than one method in a single appraisal serves as a check on the value reached by the other
method or methods." Cook County Board of Review v. Property Tax Appeal Board, 384 Ill. App.
3d 472, 480 (2008). Akers did that: he used two approaches.
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¶ 171 Granted, there would have been no harm in including a third approach, the
income approach, but unless "the property [was] most valuable as rental property," the income
approach would have had only marginal relevance. Willow Hill Grain, Inc. v. Property Tax
Appeal Board, 187 Ill. App. 3d 9, 14 (1989); see also Chrysler Corp. v. Illinois Property Tax
Appeal Board, 69 Ill. App. 3d 207, 211 (1979). The record appears to contain no evidence that
tracts 1 and 7 were most valuable as rental property. Rather, Akers testified that most
commercial grain elevators were owner-operated (and therefore, it would seem, not rented out to
others).
¶ 172 In short, the omission of the income approach is insignificant. As for plaintiff's
other criticism of Akers's appraisals—that they disregard structures divided by the property
line—Akers repeatedly notes, in his written appraisals, that the property line between tracts 1 and
7 runs through grain bin No. 19. He further notes the possibility that the property line also
divides the Quonset building: "It is unclear if this building is cut by the property line," he writes.
We are aware of no other structures that are, or might be, divided by the property line. Thus,
neither of the criticisms that plaintiff levels against Akers's appraisals appears to be valid.
¶ 173 At least Akers's appraisals have the virtue of making sense, whereas apportioning
only $151,666.67 of the sale proceeds to tract 1 and the remaining $8,948,333.30 to tract 7 is
incomprehensible, given what the appraisals reveal about those two tracts. Tract 1 consists of 70
acres, whereas tract 7 consists of 10 acres. Tract 1 has 3.005 million bushels of grain storage,
whereas tract 7 has 1,484,300 bushels of grain storage. Tract 1 has a 15,000-bushel-per-hour
receiving pit, whereas tract 7 has a 6,700-bushel-per-hour receiving pit. When one compares
these physical characteristics of the two tracts, it is unclear why tract 7 would be worth 59 times
more than tract 1, which is the ratio in which the trial court apportioned the sale proceeds. We
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are limited to the evidence in the record, and given that evidence, such an extreme disparity
makes no sense.
¶ 174 We conclude, then, that the trial court should have apportioned the sale proceeds
in accordance with Akers's unrebutted appraisals of tracts 1 and 7. As an accredited rural
appraiser with extensive experience in the valuation of commercial grain elevator facilities, he
valued tract 1 at $5.6 million and tract 7 at $2.875 million. The sum of those two amounts was
$8.475 million. The fair market value of tract 1 was 66% of that sum ($5.6 million divided by
$8.475 million times 100). The actual sale proceeds from the sale en masse were $9.1 million.
Of those actual sale proceeds, the court should have apportioned $6.006 million to tract 1 ($9.1
million times 0.66) and the remaining $3.094 million to tract 7 ($9.1 million minus $6.006
million). The finding that the foreclosure sale bids proved the property's fair market value was
contrary to case law and against the manifest weight of the evidence (see Hewitt, 227 Ill. App. 3d
at 622), and apportioning only $151,666.67 of the sale proceeds to tract 1 was an abuse of
discretion (cf. Household Bank, FSB v. Lewis, 229 Ill. 2d 173, 178 (2008) (standard of review
applicable to the confirmation of a foreclosure sale)).
¶ 175 F. Forfeiture of Arguments
Made for the First Time, on Rehearing
¶ 176 We have addressed all the arguments that plaintiff made in its initial brief, the
brief with the blue cover. We note that plaintiff has added some new arguments in its petition
for rehearing. For example, plaintiff argues that by consenting to a confirmation of the
foreclosure sales, defendants waived their right to appeal the summary judgment on count IV,
and plaintiff argues that if we reverse the trial court's apportionment of the sale proceeds between
tracts 1 and 7, plaintiff deserves another evidentiary hearing to present its own evidence on the
fair market values of those tracts. Defendants are correct that new arguments, such as these, are
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forfeited. "Points not argued" in the initial brief on appeal "are waived"—that is to say,
forfeited—"and shall not be raised *** on petition for rehearing." Ill. S. Ct. R. 341(h)(7) (eff.
Feb. 6, 2013). This rule applies to appellees as well as to appellants. Ill. S. Ct. R. 341(i) (eff.
Feb. 6, 2013); Garland v. Sybaris Club International, Inc., 2014 IL App (1st) 112615, ¶ 64.
¶ 177 III. CONCLUSION
¶ 178 For the foregoing reasons, we reverse the trial court's judgment and remand this
case for further proceedings.
¶ 179 Reversed and remanded.
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