v.
Rosentreter
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).)
140142 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 140143 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.