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U.S. Bank National Association v. IN Retail Fund Algonquin Commons, LLC

Court of Appeals of Illinois, Second District

June 21, 2013

U.S. BANK NATIONAL ASSOCIATION, as Successor in Interest to Bank of America, N.A., Successor to Wells Fargo Bank, N.A., as Trustee for the Registered Holders of TIAA Seasoned Commercial Mortgage Trust 2007 C-4, Commercial Pass-Through Certificates, Series 2007-C4, Plaintiff-Appellee,
v.
IN RETAIL FUND ALGONQUIN COMMONS, LLC; IN RETAIL FUND, LLC; and INLAND COMMERCIAL PROPERTY MANAGEMENT, INC., Defendants-Appellants (Jeffrey R. Anderson Real Estate; Xtreme Fire Protection, Inc.; Mike Kokosis, d/b/a All Circuits Electric Inc.; Unknown Owners; and Nonrecord Claimants, Defendants).

Held [*]

In an action for the foreclosure of a commercial development, the appellate court dismissed defendants’ appeal from various orders, including an order granting plaintiff’s motion for substitution of judge and declining to enforce a local rule against plaintiff as to its motions for admission pro hac vice, a temporary restraining order, the appointment of a receiver, and leave to file an amended complaint, since defendants failed to establish jurisdiction pursuant to Supreme Court Rule 307(a)(1).

Appeal from the Circuit Court of Kane County, No. 13-CH-12; the Hon. John G. Dalton, Judge, presiding.

Eugene S. Kraus, Miles V. Cohen, and Jason R. Sleezer, all of Scott & Kraus, LLC, of Chicago, for appellants.

Jerry L. Switzer and Jean Soh, both of Polsinelli Shughart, P.C., of Chicago, and Brett D. Anders and Aaron Jackson, both of Polsinelli Shughart, P.C., of Kansas City, Missouri, for appellee.

Justices Schostok and Hudson concurred in the judgment and opinion.

OPINION

BIRKETT JUSTICE

¶ 1 Defendants IN Retail Fund Algonquin Commons, LLC, IN Retail Fund, LLC, and Inland Commercial Property Management, Inc., appeal various orders entered by the trial court. For the reasons that follow, we dismiss this appeal for lack of jurisdiction.

¶ 2 BACKGROUND

¶ 3 In December 2012, plaintiff, U.S. Bank National Association, brought a complaint for foreclosure against defendants. The subject property is a commercial development in Algonquin, Illinois. On January 11, 2013, plaintiff moved for appointment of a receiver for the property. Also in January 2013, plaintiff filed (1) two motions for admission pro hac vice; (2) a motion for a temporary restraining order; and (3) a motion to file an amended complaint. The temporary restraining order that plaintiff sought would "restrain[ ] [defendants] from in any manner removing, destroying or diminishing the [c]ollateral, " except that defendants would be permitted "to make use of the [c]ollateral in the ordinary course of their business and for payment of ordinary operating expenses currently incurred in the ordinary course of business."

¶ 4 On February 1, 2013, IN Retail Fund filed a motion to quash service of summons as noncompliant with Supreme Court Rule 101 (Ill. S.Ct. R. 101 (eff. May 30, 2008)). Also on February 1, the Honorable Edward C. Schreiber heard all of plaintiff's pending motions. At the hearing, defendants objected that the certificates of service for the motions were deficient. The trial court agreed and directed plaintiff to "re-notice" the motions. On February 8, 2013, plaintiff refiled the motions and also filed a motion to strike the jury demand of Inland Commercial Property Management. At a February 11 hearing, Judge Schreiber agreed with defendants that the refiled motions likewise had deficient certificates of service. Judge Schreiber again directed plaintiff to "re-notice" the motions. On February 14, plaintiff moved for substitution of judge as a matter of right under section 2-1001(a)(2) of the Code of Civil Procedure (735 ILCS 5/2-1001(a)(2) (West 2010)). On February 22, plaintiff filed a "notice of motion" for each of the following motions: (1) two motions for admission pro hac vice; (2) a motion for appointment of a receiver; (3) a motion for a temporary restraining order; (4) a motion for leave to file an amended complaint; and (5) a motion to strike Inland Commercial Property Management's jury demand. Plaintiff did not file the motions themselves along with the notices, but stated that copies of the motions were previously served upon defendants. Meanwhile, the motion for substitution was granted and the case reassigned to the Honorable John G. Dalton.

¶ 5 On February 28, plaintiff's third round of motions (or, more precisely, notices) came up for hearing before Judge Dalton. Defendants now objected that plaintiff failed to comply with local rule 6.05(d) (16th Judicial Cir. Ct. R. 6.05(d) (June 20, 2001)), which provides that "[a] copy of the motion, any papers to be presented with the motion, and proof of service shall be served with the notice." Judge Dalton denied the objection. After argument on the merits of the motions, the trial court granted the motion for appointment of a receiver. In light of the appointment, plaintiff withdrew its motion for a temporary restraining order. The court then ordered that, pending the receiver taking possession of the property, defendants were enjoined "from making or cashing payments related to the property effective [immediately]." The court also granted plaintiff's remaining motions.

ΒΆ 6 On March 1, Judge Dalton heard and denied IN Retail Fund's motion to quash service of summons. That same day, defendants filed a notice of appeal under Illinois Supreme Court Rule 307(a)(1) (eff. Feb. 26, 2010), which provides that "[a]n appeal may be taken to the Appellate Court from an interlocutory order of court granting, modifying, refusing, dissolving, or refusing to dissolve or modify an injunction." On March 4, defendants amended the notice to identify 11 separate orders entered by the trial court on ...


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