CF SBC PLEDGOR 1 2012-1 TRUST, a Delaware Statutory Trust, Plaintiff-Appellee,
CLARK/SCHOOL, LLC, an Illinois Limited Liability Company; and NON-RECORD CLAIMANTS and UNKNOWN OWNERS, Defendants CLARK/SCHOOL, LLC, Defendant-Appellant.
from Circuit Court of Vermilion County No. 13CH252 Honorable
Craig H. DeArmond, Judge Presiding.
JUSTICE HARRIS delivered the judgment of the court, with
opinion. Justices Steigmann and Appleton concurred in the
judgment and opinion.
1 Plaintiff, CF SBC Pledgor 1 2012-1 Trust, a Delaware
statutory trust, brought a mortgage foreclosure action
against defendant, Clark/School, LLC, an Illinois limited
liability company, alleging defendant was in default under
the terms of the mortgage. Ultimately, plaintiff filed a
motion for summary judgment, which the trial court granted.
Defendant appeals, arguing genuine issues of material fact
exist as to whether it was in default and, as a result, the
trial court erred in granting plaintiff's motion for
summary judgment. We affirm.
2 I. BACKGROUND
3 This is the second appeal involving the parties and the
underlying mortgage foreclosure proceedings. Previously,
defendant brought an interlocutory appeal after plaintiff
obtained an ex parte order appointing a receiver
over the mortgaged property. See CF SBC Pledgor 1 2012-1
Trust v. Clark/School, LLC, 2014 IL App (4th) 140416-U.
The following recitation of facts is partially taken from our
decision in that previous appeal.
4 In June 2006, defendant obtained a loan from Washington
Mutual Bank that was secured by a mortgage on the property at
issue, an eight-building apartment complex in Danville,
Illinois. Washington Mutual Bank's interest was
ultimately assigned to plaintiff. Under section 4.3 of the
parties' mortgage security agreement, defendant agreed to
keep the property in good condition and repair. Section 4.14
of that agreement noted the mortgage loan was being made in
reliance on defendant's continued existence as a limited
liability company (LLC). Under that section, defendant agreed
to "not alter its name, jurisdiction of organization,
structure, ownership or control without the prior written
consent of the Lender" and to "do all things
necessary to preserve and maintain [its] existence and to
ensure its continuous right to carry on its business."
5 Section 5 of the mortgage security agreement set forth
provisions relating to default. Section 5.1(c) defined an
"Event of Default" to include defendant's
failure to perform its obligations under the parties'
agreement when that "failure continues for a period of
 days after written notice of such failure by Lender to
Borrower." However, that section further provided that
the notice requirement and the 30-day "cure period"
did not apply under the following circumstances:
"(i) any such failure that could, in Lender's
judgment, absent immediate exercise by Lender of a right or
remedy under [the parties' agreements], result in harm to
Lender, impairment of the Note or this Security Instrument or
any other security given under any other Loan Document; (ii)
any such failure that is not reasonably susceptible of being
cured during such 30-day period; (iii) breach of any
provision that contains an express cure period; or (iv) any
breach of *** section 4.14 of this Security Instrument."
section 5.3 of the parties' mortgage security agreement
set forth the lender's remedies upon default, stating
that "[u]pon the occurrence of any Event of Default all
sums secured hereby shall become immediately due and payable,
without notice or demand, at the option of [the]
Lender." Further, it permitted the lender to
"[f]oreclose this security instrument, " exercise
any power of sale permitted by applicable law, and sue on the
6 In December 2013, plaintiff filed a complaint against
defendant to foreclose the mortgage. It alleged defendant was
in default under the terms of the mortgage for failing to (1)
maintain the property and (2) preserve and maintain its
existence as an LLC. Plaintiff asserted defendant allowed
portions of the property to become uninhabitable and alleged
"More specifically, upon information and belief, a City
of Danville building inspector recently inspected the
Property and identified numerous issues and code violations,
including, but not limited to, no electricity in multiple
buildings due to non-payment by [defendant], water pipes
leaking and flooding apartments, and garbage being dumped
into a ravine on the Property near a city drinking water
Additionally, upon information and belief, [defendant] has
not maintained its existence with the State of Illinois as an
entity in good standing, and was consequently dissolved on or
about September 9, 2011."
attached various loan documents to its complaint, as well as
e-mail correspondence between individuals identified in the
e-mails as the Danville city attorney, Richard Dahlenburg; an
environmental code inspector, Rick Brown; and a building
inspector, Danita Anderson. The emails indicated the
inspectors identified several maintenance issues on the
property, including a lack of electricity due to nonpayment
of electric bills by defendant, water ...