from the Circuit Court of Lake County. No. 16-CH-1548
Honorable Luis A. Berrones, Judge, Presiding.
Attorneys for Appellant: Michael T. McCracken, of Chicago,
Attorneys for Appellee: Thomas J. Dillon, Wendy Kaleta
Gattone, Nicholas S. Maragos, and Kyle T. Dillon, of McFadden
& Dillon, P.C., of Chicago, for appellee.
JUSTICE SCHOSTOK delivered the judgment of the court, with
opinion. Justices Hutchinson and Hudson concurred in the
judgment and opinion.
1 In this mortgage foreclosure case, the plaintiff, First
Bank of Highland Park (Bank), moved to be appointed the
mortgagee in possession pursuant to section 15-1701(b)(2) of
the Illinois Mortgage Foreclosure Law (Foreclosure Law) (735
ILCS 5/15-1701(b)(2) (West 2016)). The defendant, Vladimir
Sklarov, opposed the appointment on the basis that (among
other things) the property was residential real estate and
thus the statute favored maintaining him in possession. The
trial court found that the property was not residential and
thus the presumption in favor of Sklarov did not apply, and
it granted the Bank's motion. Sklarov appeals (Ill. S.Ct.
R. 307(a)(4) (eff. Nov. 1, 2017)), and we affirm.
2 I. BACKGROUND
3 In 2011, a land trust, of which Sklarov was the
beneficiary, obtained a mortgage on the property located at
460 Hunter Lane in Lake Forest (Property). Sklarov signed the
promissory note secured by the mortgage. He also signed later
promissory notes associated with the refinancing of the debt.
Sklarov ceased making payments on the debt, and on October
17, 2016, the Bank filed this foreclosure action.
4 Sklarov traveled extensively for work, and the last date on
which he resided at the property is not contained in the
record. An affidavit by Bank employee Anne O'Connor1
stated that, before the foreclosure action was filed, Sklarov
informed the Bank that he was residing in Sklarov argued that
the O'Connor affidavit should be stricken because
O'Connor was disclosed as an expert witness past the date
for such disclosures. (O'Connor succeeded a different
Bank employee, Joseph K. Kreisel, who originally handled the
file on the Property and submitted an earlier affidavit.) The
record does not reflect any explicit ruling on this argument,
but the order appointing the Bank as mortgagee in possession
recites that the trial court reviewed and considered both the
O'Connor and Kreisel affidavits. On appeal, although
Sklarov states that he "objects" to any
consideration of the O'Connor affidavit, he has not
asserted that the trial court's consideration of the
affidavit was error, nor has he advanced any argument
supported by legal authority to show such error. Europe. It
is undisputed that Sklarov has not resided in Illinois or at
the Property since before the foreclosure action was filed
and that a tenant named Ryan Eagle was residing at the
Property when the action was filed. (Eagle was initially
named as a defendant in the foreclosure action. He was
dismissed from the case after he moved out.) At some point
between 2014 and the filing of the foreclosure action,
Sklarov and his wife, Sharon, were divorced. Pursuant to an
order entered in the dissolution case, Sharon was to receive
any rents generated by the Property.
5 On October 31, 2018, the Bank filed a motion pursuant to
section 15-1701(b)(1) of the Foreclosure Law (735 ILCS
5/15-1701(b)(1) (West 2016)) to be appointed mortgagee in
possession of the Property. Section 15-1701(b) sets out two
different presumptions depending on whether the property at
issue is "residential real estate":
"(b) Pre-Judgment. Prior to the entry of a judgment of
(1) In the case of residential real estate, the mortgagor
shall be entitled to possession of the real estate except if
(i) the mortgagee shall object and show good cause, (ii) the
mortgagee is so authorized by the terms of the mortgage or
other written instrument, and (iii) the court is satisfied
that there is a reasonable probability that the mortgagee
will prevail on a final hearing of the cause, the court shall
upon request place the mortgagee in possession. ***
(2) In all other cases, if (i) the mortgagee is so authorized
by the terms of the mortgage or other written instrument, and
(ii) the court is satisfied that there is a reasonable
probability that the mortgagee will prevail on a final
hearing of the cause, the mortgagee shall upon request be
placed in possession of the real estate, except that if the
mortgagor shall object and show good cause, the court shall
allow the mortgagor to remain in possession."
Id. § 15-1701(b).
if the property is residential, under subsection (b)(1) the
mortgagor (borrower) is entitled to remain in possession
unless the mortgagee (lender) meets its burden of showing
good cause to be placed in possession. Nonresidential real
estate is governed by subsection (b)(2). Under that
provision, the lender is entitled to be placed in possession
upon its request unless the borrower shows good cause why it
should not be.
6 Although the Bank's motion for appointment was brought
under subsection (b)(1) (which pertains to residential real
estate), the body of the motion argued that the Property was
not residential, because Sklarov was not living there and the
Property was rented to someone else when the foreclosure
action was filed. The Bank cited ...