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United States v. Little Egypt Housing Development Corp.

IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF ILLINOIS


November 30, 2005

UNITED STATES OF AMERICA, PLAINTIFF,
v.
LITTLE EGYPT HOUSING DEVELOPMENT CORPORATION, DEFENDANT.

The opinion of the court was delivered by: Gilbert, District Judge

MEMORANDUM AND ORDER

This matter comes before the Court on Defendant's Motion to Set Aside Judgment (Doc. 14). For the following reasons, this motion will be DENIED.

In its motion, Defendant requests that this Court set aside its order placing the United States in possession of the mortgaged premises (Doc. 10). The Court entered this order pursuant to 735 ILCS § 5/15-1701(b). Under that section, prior to the entry of a judgment of foreclosure, the mortgagee of non-residential real estate is entitled to possession of the mortgaged property if the "mortgagee is so authorized by the terms of the mortgage" and the "court is satisfied that there is a reasonable probability that the mortgagee will prevail on a final hearing of the cause." 735 ILCS 5/15-1701(b)(2). However, if the mortgagor objects and shows good cause, "the court shall allow the mortgagor to remain in possession." 735 ILCS § 5/15-1701(b)(2).

The Court found that the United States had made the requisite showing under the statute (Doc. 10). Under the statute, there is a presumption in favor of the mortgagee's right to possession of non-residential real property during the pendency of a mortgage foreclosure proceeding. Home Life Ins. Co. v. Am. Nat'l Bank and Trust Co., 777 F.Supp. 629, 631 (N.D. Ill. 1991) (citing Travelers Insurance Co. v. LaSalle National Bank, 558 N.E.2d 579, 581 (2d Dist. 1990). Thus, the mortgagor bears the burden of establishing that it should remain in possession of the premises. Home Life Ins. Co., 777 F.Supp. at 632. Defendant did not make any argument on the good cause issue in its motion. Therefore, Defendant's motion is DENIED.

IT IS SO ORDERED.

J. PHIL GILBERT U.S. District Judge

20051130

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