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11/14/89 Federal Land Bank of St. v. Willis D. Bergmann Et Al.

November 14, 1989

FEDERAL LAND BANK OF ST. LOUIS, PLAINTIFF-APPELLEE

v.

WILLIS D. BERGMANN ET AL., DEFENDANTS-APPELLANTS



APPELLATE COURT OF ILLINOIS, FIFTH DISTRICT

546 N.E.2d 1171, 190 Ill. App. 3d 779, 138 Ill. Dec. 116 1989.IL.1783

Appeal from the Circuit Court of Fayette County; the Hon. William D. Kelly, Judge, presiding.

APPELLATE Judges:

JUSTICE CHAPMAN delivered the opinion of the court. WELCH, P.J., and HOWERTON, J., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE CHAPMAN

The Federal Land Bank filed a complaint to foreclose its mortgage lien upon real estate owned by Willis and Helen Bergmann on June 18, 1987. On October 28, 1987, the Federal Land Bank filed a motion to place mortgagee in possession of the mortgaged premises and a notice of hearing. The following day the Bergmanns filed a motion to dismiss the complaint, alleging as grounds that the complaint was wholly insufficient as a matter of law. A hearing on the motion to dismiss was set for November 5, 1987. On November 3, 1987, the Bergmanns filed a motion to strike the Federal Land Bank's petition for mortgagee in possession. As grounds for the motion to strike, the Bergmanns argued that the complaint is based on section 15-301 et seq. of the Code of Civil Procedure (Ill. Rev. Stat. 1985, ch. 110, par. 15-301 et seq.), that the statute was repealed on July 1, 1987, and in its place was enacted section 15-1701 et seq. (Ill. Rev. Stat. 1987, ch. 110, par. 15-1701 et seq.). In their motion to strike, the Bergmanns argued that since the Federal Land Bank's petition was filed subsequent to the effective date of section 15-1701, the petition for mortgagee in possession must be stricken.

On November 4, 1987, the Bergmanns filed a motion to continue the November 5, 1987, hearing on the motion to dismiss the Federal Land Bank's complaint. On November 5, 1987, the court granted the motion to continue over the Federal Land Bank's objection. At the November 5, 1987, hearing the court inquired of counsel for each party as to a convenient date to reschedule the hearing on the motion to dismiss. The hearing was reset for November 19, 1987. The court granted counsel a continuance on the hearing on the petition to place mortgagee in possession, rescheduling the hearing for November 19, 1987. On November 19, 1987, the court heard arguments on the Bergmanns' motion to strike the motion to place mortgagee in possession and denied the motion. The court asked counsel if they were ready to proceed to hearing on the petition to place mortgagee in possession. Counsel for the Bergmanns orally objected, arguing that since his motion to strike was denied, he should be given a reasonable opportunity to respond to the merits of the petition.

On November 17, 1987, the Bergmanns filed a second motion to strike the Federal Land Bank's petition. This motion stated that the petition should be stricken because it is not verified and because it does not meet the specific pleading requirements of a mortgagee in possession petition as mandated by statute. At the hearing on November 19, 1987, the court heard arguments on the motion to strike and denied the motion. The court also denied the Bergmanns' motion to dismiss which had been previously filed. Despite a request for continuance and strenuous objection by counsel for the Bergmanns to proceeding on the merits, the court proceeded to hearing on the petition to place mortgagee in possession. An order was entered on November 19, 1987, granting the Federal Land Bank's petition. The Bergmanns filed a notice of appeal on November 25, 1987.

We are asked to consider three issues on appeal. The first is whether the court erred in denying the Bergmanns additional time within which to respond to plaintiff's petition for mortgagee in possession after the court denied the Bergmanns' second motion to strike. The second and third issues concern whether the court erred in denying the Bergmanns' motions to strike.

We first address the question of whether the court erred in denying the Bergmanns additional time to respond to plaintiff's petition. The Bergmanns rely heavily on the case of Olympic Federal v. Witney Development Co. (1983), 113 Ill. App. 3d 981, 447 N.E.2d 1371, in support of their position. In Olympic the plaintiff-mortgagee brought foreclosure proceedings against Witney Development Company, Inc., and filed a motion to place mortgagee in possession. Defendant moved to strike the motion on grounds that it was substantially insufficient as a matter of law. The court by order gave the plaintiff 14 days to amend the motion and granted the defendants seven days to respond to it. The plaintiff filed an amended motion to be placed in possession, and the defendants countered by supplementing their motion to strike. The court denied the motion to strike and denied the defendant's request to respond to or answer the plaintiff's amended motion. The court subsequently entered an order placing the plaintiff in possession.

The court of review reversed, stating that the court's order denying the motion to strike was simply a determination that the plaintiff's motion was legally sufficient and that the defendants should have had an opportunity to respond to the merits of the motion. Olympic, 113 Ill. App. 3d at 987, 447 N.E.2d at 1376.

In the case at bar the Bergmanns were granted a continuance at the November 5, 1987, hearing to argue their objections to plaintiff's petition to place mortgagee in possession. The court specifically advised the parties that it was resetting the hearing on the motion to dismiss for November 19, 1987, and that the hearing on plaintiff's petition to place mortgagee in possession would "be set the same time the other matter is set, 19th at 10 A.M.." Unlike the instant case, it is unclear whether in Olympic the defendants knew that the motion to place in possession was going to be heard on the same date that argument on the motion to strike was heard.

In the case at bar, although the Bergmanns did not file a written answer to plaintiff's petition, they were given the opportunity to orally respond to the merits of the petition at the November 19, 1987, hearing. The Olympic court did not allow defendants the opportunity to respond either in writing or orally. We find Olympic to be factually distinguished from the instant case, and furthermore, we do not read Olympic as requiring trial courts to grant continuances on hearings on the merits of a pleading whenever a motion to strike has been denied. Such a rule could conceivably invite a party to file an endless parade of motions to strike in an effort to forestall a decision on the merits.

It would appear that the Bergmanns' motion for continuance of the hearing on the plaintiff's petition constituted a motion under Illinois Supreme Court Rule 183 (107 Ill. 2d R. 183). A close scrutiny of the record in this case convinces us that the trial Judge did not exercise his discretion capriciously or arbitrarily. Furthermore, the Bergmanns were not deprived of due process, the essence of which is notice and an opportunity to be heard. They were given both. We do not find that the Bergmanns were unfairly denied a continuance on November 19, 1987, particularly in view of the fact that the court had specifically set that date in response to their request for additional time to ...


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