up, of course you can have the rent. But since you refuse to do that, you are not in a position to demand the rent." 1 Garrard Glenn, Mortgages, Deeds of Trust, and Other Security Devices as to Land § 181 at 944 (Michie, 1943). See also George E. Osborne, Handbook on the Law of Mortgages § 152 at 379 & n.57 (West, 1951) (quoting Prof. Glenn).
Furthermore, entitling the mortgagor to overdue rents collected by the receiver harmonizes with Illinois' rule that "a provision in the mortgage agreement giving the mortgagee a lien on rents and profits does not vest such rents and profits in the mortgagee without action on the mortgagee's part." DeKalb Bank, 520 N.E.2d at 961. This rule encourages the mortgagee to act quickly in seeking the appointment of a receiver and the preservation of rents and profits, thereby avoiding problems attending the uncertain disposition of funds coming into the mortgagor's hands and conserving judicial resources by leaving receipts with the party who made collection. A rule entitling the mortgagee to overdue rents actually collected by the receiver is entirely consistent with these goals.
Other jurisdictions have recognized the mortgagee's right to overdue rent, although contrary authority exists. See New York Life Ins. Co. v. Fulton Development Corp., 265 N.Y. 348, 351, 193 N.E. 169, 171 (1934) ("An owner of property is entitled to the rents until there is a default under the mortgage; then the mortgagee has an equitable claim to the rents that are unpaid."); S & H Building Materials Corp. v. European-American Bank & Trust Co., 104 Misc. 2d 249, 253, 428 N.Y.S.2d 140, 143 (Sup. Ct., Suffolk County 1980) (same); White v. Anthony Inv. Co., 119 Fla. 108, 160 So. 881 (1935) (Fla. 1935); King v. Housatonic Railway, 45 Conn. 226, 234 (1877) ("[the mortgagee] becomes entitled to all rents accruing after the execution of the mortgage and in arrear and unpaid at the time of the notice, as well as those which accrue afterwards"). Cf. Watts' Adm'r v. Smith, 250 Ky. 617, 63 S.W.2d 796 (1933). But see New Order Building & Loan Association v. 222 Chancellor Avenue, 106 N.J. Eq. 1, 149 A. 525 (1930); Mortgage Guarantee Co. v. Sampsell, 51 Cal. App. 2d 180, 124 P.2d 353 (Cal. App. 1942); Hyde v. Brandler, 118 A.2d 398 (D.C. Municipal Ct. App. 1955).
Nevertheless, a broad rule that awards the mortgagee rents due but not paid at the time a receiver is appointed seems flawed, because it makes the rights of the two parties turn on the action of a third--the lessee. That may invite fraudulent collusion between a mortgagee and a tenant. It also provides an opportunity for vindictive withholding of rent from a landlord whom the tenant dislikes and knows has fallen on hard times. While such collusive schemes and vindictive conduct may expose participants to liability for fraud, tortious interference with contract, and tortious breach, proof problems in these cases could leave damaged parties without effective remedies.
But the resolution of this case does not depend on adopting such a broad rule. Here, there has been no allegation that collusion or malice caused the rents at issue to be paid late. The mortgagor has offered no evidence that tenants who regularly paid on time suddenly paid late in coincidence with the bankruptcy proceeding. Nor is there a clear opportunity for well-concealed collusion between the mortgagee and the tenants, as might exist if the property had only a few tenants, or if one paid a dominant proportion of the total rent. The office building in this case contained 64 rental units, of which 45 were occupied as of January, 1993. Even without direct evidence of collusion or malicious intent, a broad rule awarding unpaid rents to the mortgagee might insufficiently guard against fraud under these circumstances.
Finally, the rents at issue have actually been collected by the receiver. This ruling does not address the situation where a tenant has paid overdue rent to the mortgagor.
The defendants' motion for turnover of rents due prior to appointment of the receiver, but collected by the receiver after his appointment, is denied.
James B. Zagel
United States District Judge
Date: SEP 29 1993