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12/03/87 Heritage Pullman Bank, v. American National Bank and

December 3, 1987

HERITAGE PULLMAN BANK, PLAINTIFF

v.

AMERICAN NATIONAL BANK AND TRUST COMPANY OF CHICAGO, AS TRUSTEE, ET AL., DEFENDANTS (AMERICAN NATIONAL BANK

AS TRUSTEE, PLAINTIFF-APPELLANT

v.

CARMEN KURT ET AL., DEFENDANTS-APPELLEES)



APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, FOURTH DIVISION

518 N.E.2d 231, 164 Ill. App. 3d 680, 115 Ill. Dec. 706 1987.IL.1775

Appeal from the Circuit Court of Cook County; the Hon. David J. Shields, Judge, presiding.

APPELLATE Judges:

JUSTICE LINN delivered the opinion of the court. McMORROW, P.J., and JIGANTI, J., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE LINN

Plaintiff, the American National Bank and Trust Company of Chicago, as trustee under trust No. 66176, brought a forcible detainer action in the circuit court of Cook County against defendants, the Harris Trust and Savings Bank, as trustee under trust No. 35475 (the Harris Trust); its beneficiaries, Carmen and Frederick Kurt, and Norden Jacob (Kurt-Jacob beneficiaries); Sheridan Tower Associates, Ltd.; and the Chicago Title and Trust Company, as trustee under trust deed No. 24092347.

The trial court consolidated the forcible detainer action with a pending foreclosure action involving the same property. The court subsequently granted defendants' motion to dismiss the forcible detainer action pursuant to section 2-619(a)(3) of the Code of Civil Procedure. (Ill. Rev. Stat. 1985, ch. 110, par. 2-619(a)(3).) Plaintiff appeals, contending that the trial court could have, and should have, adjudicated the forcible detainer action without reaching the issues raised in the other pending foreclosure action.

We reverse the order of the trial court and remand.

This action involves a 101-unit apartment building located at 3900 North Pine Grove Avenue, in Chicago, Illinois. In determining whether to allow a motion to dismiss, a court must take all well-pled allegations of fact contained in the complaint as true and construe all reasonable inferences therefrom in the plaintiff's favor. (Cook v. Askew (1975), 34 Ill. App. 3d 1055, 1057, 341 N.E.2d 13, 15.) Plaintiff alleged that in 1974, the Chicago Title and Trust Company, as trustee under trust No. 63837 (CT&T trust 63837), with its beneficiary, Sheridan Tower Associates, Ltd., created a leasehold estate in the property. CT&T trust 63837 entered into a lease agreement with defendants Harris Trust and the Kurt-Jacob beneficiaries. CT&T trust 63837 was the lessor and defendants Harris Trust with the Kurt-Jacob beneficiaries were the lessees.

CT&T trust 63837 and the Harris Trust amended the lease in 1977. The amended lease gave the Harris Trust the option of buying CT&T trust 63837's interest as lessor in the property. The lease amendment was recorded as trust deed document No. 24092347, with Chicago Title and Trust as trustee.

Pursuant to the lease amendment, the Harris Trust and the Kurt-Jacob beneficiaries bought the leasehold from CT&T trust 63837. They paid for the leasehold with a note, secured with a trust deed conveying the leasehold back to CT&T trust 63837.

In 1979, the Harris Trust and the Kurt-Jacob beneficiaries sold their interest as lessor to the National Boulevard Bank, as trustee for the beneficiary, the B & B Investment Company. In return, National Boulevard and B & B executed a note and secured it with a trust deed conveying the leasehold back to the Harris Trust and the Kurt-Jacob beneficiaries.

B & B defaulted on the note. In 1982, the Kurt-Jacob beneficiaries brought an action to foreclose on the note. The trial court entered judgment for the Kurt-Jacob beneficiaries, who bought back the leasehold at a sheriff's sale.

The Kurt-Jacob beneficiaries subsequently defaulted on the note that they executed as payment for CT&T trust 63837's interest as lessor. CT&T trust 63837, with its beneficiary, Sheridan Tower, brought a foreclosure action in the trial court, which is still pending. In the course of the ...


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