CNB BANK & TRUST, N.A., f/k/a CARLINVILLE NATIONAL BANK, Plaintiff-Appellee,
FRANCES A. ROSENTRETER, RICK ROSENTRETER, and DOUGLAS G. ROSENTRETER, as Cotrustees of the Gerald E. Rosentreter Trust B, Defendants-Appellants.
Appeal from Circuit Court of Macoupin County No. 11CH175 Honorable Patrick J. Londrigan, Judge Presiding.
JUSTICE APPLETON delivered the judgment of the court, with opinion. Presiding Justice Pope and Justice Harris concurred in the judgment and opinion.
¶ 1 Plaintiff, CNB Bank & Trust, N.A., formerly known as Carlinville National Bank, won a summary judgment on counts IV, XIII, XIV, and XV of its amended complaint. Count IV sought foreclosure, and counts XIII, XIV, and XV sought replevin of some grain bins. Defendants, Frances A. Rosentreter, Rick Rosentreter, and Douglas G. Rosentreter, in their capacities as cotrustees of the Gerald E. Rosentreter Trust B, appeal from the summary judgment in plaintiff's favor on those counts and also from the denial of their motion for a partial summary judgment on count IV and the denial of their motion for a summary judgment on counts XIII, XIV, and XV.
¶ 2 The cross-motions for summary judgment on count IV raised the question of whether the mortgagor, Frances A. Rosentreter, owned more than an undivided 50% of tracts 1, 2, 3, 5, and 6 so as to be able to mortgage those tracts in their entirety. (The tracts, located in Macoupin County, have the following permanent index numbers: 12-000-177-00 (tract 1), 12-000-179-00 (tract 2), 12-000-183-02 (tract 3), 12-000-186-00 (tract 3), 11-000-238-01 (tract 5), and 11-000-406-01 (tract 6).) Defendants claim that when Frances A. Rosentreter signed the mortgage in her individual capacity, they owned the other undivided 50% of tracts 1, 2, 3, 5, and 6 in their capacities as cotrustees and that Frances A. Rosentreter therefore succeeded in mortgaging only an undivided 50% of those tracts. Plaintiff, on the other hand, takes the position that Frances A. Rosentreter was the full owner of those tracts and hence mortgaged 100% of the ownership interest in them. In our de novo review, we do not find it to be clear and free from doubt that either plaintiff or defendants were entitled to a judgment as a matter of law on this question.
¶ 3 As for the replevin counts, counts XIII, XIV, and XV, it is a moot question whether the trial court erred by granting summary judgment in plaintiff's favor, considering that subsequently, in its comprehensive written judgment of July 26, 2013, the court held the grain bins were fixtures and that, as such, they were to be sold as components of the real estate. This was the very holding that defendants had sought in their motion for summary judgment on counts XIII, XIV, and XV.
¶ 4 Because of our disposition of count IV, we do not reach the remaining issues that defendants raise in this appeal, e.g., the apportionment of sales proceeds and the approval of the receiver's report.
¶ 5 Therefore, we reverse the summary judgment in plaintiff's favor to the effect that, by signing the mortgage referenced in count IV, Frances A. Rosentreter mortgaged 100% of the ownership interest in tracts 1, 2, 3, 5, and 6, as opposed to only 50% of the ownership interest in those tracts. By the same token, we affirm the denial of the motion for summary judgment in defendants' favor on count IV. We remand this case for further proceedings. ¶ 6 I. BACKGROUND
¶ 7 A. The Amended Complaint
¶ 8 1. Count IV: Foreclosure
¶ 9 In count IV of its amended complaint, plaintiff alleged that on October 28, 2010, Frances A. Rosentreter entered into a mortgage, in which she pledged tracts 1, 2, 3, 4, 5, and 6 to plaintiff's predecessor, Carlinville National Bank, to secure a loan of $13.5 million, over $11 million of which was overdue.
¶ 10 Paragraphs 3(A), (B), (C), (G), (I), and (K) of count IV alleged as follows:
"3. Information concerning Mortgage:
(A)Nature of instrument: Mortgage.
(B)Date of Mortgage: October 28, 2010.
(C) Names of Mortgagors: Frances Rosentreter.
(D) Name of Mortgagee: Carlinville National Bank.
(G) Interest subject to the Mortgage: Fee Simple.
(I) Both the legal description of the mortgaged real estate and the common address or other information sufficient to identify it with reasonable certainty:
Tract 1: [Legal description.]
Tract 2: [Legal ...