{
  "id": 3530901,
  "name": "THE BROWN COUNTY STATE BANK, Plaintiff-Appellee, v. JOHN J. KENDRICK et al., Defendants-Appellants (John J. Kendrick, Ex'r of the Estate of Lily Arlene Kendrick, et al., Defendants)",
  "name_abbreviation": "Brown County State Bank v. Kendrick",
  "decision_date": "1986-01-28",
  "docket_number": "No. 4\u201485\u20140738",
  "first_page": "538",
  "last_page": "541",
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    "name_abbreviation": "Ill. App. Ct.",
    "id": 8837,
    "name": "Illinois Appellate Court"
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  "jurisdiction": {
    "id": 29,
    "name_long": "Illinois",
    "name": "Ill."
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      "cite": "113 Ill. App. 3d 981",
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  "last_updated": "2023-07-14T21:56:30.289204+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
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  "casebody": {
    "judges": [],
    "parties": [
      "THE BROWN COUNTY STATE BANK, Plaintiff-Appellee, v. JOHN J. KENDRICK et al., Defendants-Appellants (John J. Kendrick, Ex\u2019r of the Estate of Lily Arlene Kendrick, et al., Defendants)."
    ],
    "opinions": [
      {
        "text": "JUSTICE SPITZ\ndelivered the opinion of the court:\nThe Brown County State Bank filed a complaint consisting of two counts to foreclose two mortgages. Subsequent to filing its complaint, the bank filed a motion to place itself as mortgagee in possession of the real estate. Defendants filed a motion to strike the plaintiff\u2019s motion for possession, which the trial court denied. Defendants then filed a sworn denial of plaintiff\u2019s request for possession. The motion for possession and the denial filed in opposition thereto were heard, evidence being presented in support of the motion for possession by'plaintiff. The trial court allowed plaintiff\u2019s motion and entered an order placing plaintiff in possession of the real estate. Defendants perfected this interlocutory appeal. (87 Ill. 2d R. 307(a)(4).) We affirm.\nOne issue is presented on appeal. Is proof of a reasonable probability that plaintiff will prevail in a foreclosure proceeding all that is required in order for a court to place a mortgagee in possession of the real estate prior to a deficiency judgment?\nThe two notes and mortgages were executed by Virgil E. Kendrick who died in March of 1981. John J. Kendrick was appointed administrator of his son\u2019s estate. The other defendants are either heirs of Virgil E. Kendrick or persons having some other interest in the real estate involved.\nThe real estate given as security for the mortgage described in count I is a 93-acre tract, and the default is alleged to have occurred on December 15, 1983. The real estate given as security for the mortgage described in count II consists of two tracts, one being a 40-acre tract and the other being a 75-acre tract. The alleged default occurred on February 24,1984.\nThe motion to place plaintiff in possession was filed prior to defendants answering the complaint. Plaintiff\u2019s motion was supported by the affidavit of Stephen T. Quinn, president of plaintiff bank. Defendants filed a motion to strike plaintiff\u2019s motion for possession which after hearing was denied by the trial court. Subsequent thereto, the hearing ensued on plaintiff\u2019s motion for possession and defendants\u2019 denial.\nThe placing of a mortgagee in possession of the mortgaged premises is governed by article 15, part 3, of the Code of Civil Procedure (Ill. Rev. Stat. 1983, ch. 110, pars. 15 \u2014 301 through 15 \u2014 311), formerly sections 1 to 13 of \u201cAn Act in relation to the rights of mortgagees ***\u201d (Ill. Rev. Stat. 1979, ch. 95, par. 22b.51 through 22b.63). Section 15 \u2014 302 provides that, in proceedings filed for the foreclosure of a mortgage, the court may place the mortgagee in possession of the mortgaged premises. Section 15 \u2014 303 then provides the court may do so upon the mortgagee\u2019s written application to be placed in possession, supported by affidavit, unless the mortgagee\u2019s application is denied under oath. Section 15 \u2014 305 directs the court promptly to conduct a hearing if the right of the mortgagee to take possession is denied. In that event, 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.\nIn the instant case, plaintiff filed its motion to be placed in possession and after defendants were unsuccessful in their motion to strike the plaintiff\u2019s motion, defendants filed a sworn denial to plaintiff\u2019s request to be placed in possession. The trial court promptly conducted a hearing on the motion and denial at which time plaintiff presented evidence. Defendant presented no evidence.\nThe trial court, in granting plaintiff\u2019s motion to be placed in possession of the real estate, referred to the statutes and the case of Olympic Federal v. Whitney Development Co. (1983), 113 Ill. App. 3d 981, 447 N.E.2d 1371.\nIn Olympic Federal, plaintiff-mortgagee sued to foreclose on its mortgage. Thereafter plaintiff moved for an order placing it in possession of the real estate. Defendants moved to strike that motion as substantially insufficient at law. The court gave plaintiff 14 days to amend the motion for possession and granted defendants seven days to respond. Shortly thereafter, defendants answered the complaint. Plaintiff filed an amended motion to be placed in possession, and defendants supplemented their motion to strike. The court denied defendants\u2019 supplemented motion to strike. The court further denied the defendants\u2019 request to respond to or answer the plaintiff\u2019s amended motion. Later defendants filed a motion to reconsider the court\u2019s ruling, requesting leave to answer or respond to plaintiff\u2019s amended motion to be placed in possession and indicating they would deny the plaintiff\u2019s right to possession. The court denied this motion to reconsider and subsequently entered an order placing the plaintiff in possession.\nThe appellate court reversed solely on the ground the trial court had erred in failing to give the defendants an opportunity to respond to the plaintiff\u2019s motion to be placed in possession.\nThe factual situation in Olympic Federal is decidedly different than the facts here. In the instant case, after defendants\u2019 motion to strike plaintiff\u2019s motion for possession had been denied, defendants filed a sworn denial to plaintiff\u2019s motion. Plaintiff\u2019s motion for possession and defendant\u2019s denial thereto were given an evidentiary hearing by the court. Only then did the court grant the plaintiff\u2019s motion and award possession of the real estate to plaintiff. Failure to do this was the reason the appellate court reversed the lower court in Olympic Federal.\nThe defendants in this case raise the same argument as that advanced by the defendants in Olympic Federal. In both cases the defendants argued a mortgagee is held to the same burden as a party seeking to receiver pendente lite to take possession of real estate in a foreclosure proceeding. The appellate court in Olympic Federal rejected this argument and held the test is different. The Olympic Federal court pointed out that section 15 \u2014 305 unequivocally provides the test for granting a mortgagee possession is \u201c \u2018a reasonable probability that the plaintiff in the foreclosure proceedings will prevail on the final hearing of the cause ***.\u2019 \u201d Olympic Federal v. Whitney Development Co. (1983), 113 Ill. App. 3d 981, 986, 447 N.E.2d 1371, 1375.\nEven though in Olympic Federal the motion to place mortgagee in possession alleged a state of disrepair of improvements on the mortgaged premises which diminished the value of the security, the appellate court in that case did not hold such allegations to be vital before granting such a motion and placing the mortgagee in possession. In fact, the court stated that \u201c[t]he alleged default itself indicated that the plaintiff would win the foreclosure hearing, so the motion was sufficient.\u201d (Olympic Federal v. Whitney Development Co. (1983), 113 Ill. App. 3d 981, 986, 447 N.E.2d 1371, 1375.) This language indicates that if a mortgagee alleges and proves a default, that alone would be sufficient to place the mortgagee in possession.\nHere plaintiff alleged and proved a default on all notes secured by the mortgages. In fact, defendants do not contest the fact of default. Section 15 \u2014 305 grants to the trial court discretion, after it has determined a reasonable probability of plaintiff\u2019s success on the ultimate issue, of placing plaintiff in possession of the mortgaged premises. The court did not abuse that discretion. For the foregoing reasons we affirm.\nAffirmed.\nMcCULLOUGH, P.J., and GREEN, J., concur.",
        "type": "majority",
        "author": "JUSTICE SPITZ"
      }
    ],
    "attorneys": [
      "Robert E. Utter, of Mt. Sterling, for appellants.",
      "Law Offices of Kanoski & Butler, EC., of Rushville (David N. Koth, of counsel), for appellee,"
    ],
    "corrections": "",
    "head_matter": "THE BROWN COUNTY STATE BANK, Plaintiff-Appellee, v. JOHN J. KENDRICK et al., Defendants-Appellants (John J. Kendrick, Ex\u2019r of the Estate of Lily Arlene Kendrick, et al., Defendants).\nFourth District\nNo. 4\u201485\u20140738\nOpinion filed January 28, 1986.\nRobert E. Utter, of Mt. Sterling, for appellants.\nLaw Offices of Kanoski & Butler, EC., of Rushville (David N. Koth, of counsel), for appellee,"
  },
  "file_name": "0538-01",
  "first_page_order": 560,
  "last_page_order": 563
}