[Copyrighted Material Omitted]
from the Circuit Court of Lake County. No. 16-CH-1548,
Honorable Luis A. Berrones, Judge, Presiding.
Michael T. McCracken, of Chicago, for appellant.
J. Dillon, Wendy Kaleta Gattone, Nicholas S. Maragos, and
Kyle T. Dillon, of McFadden & Dillon, P.C., of Chicago, for
SCHOSTOK JUSTICE 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 Banks 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
OConnor stated that, before the foreclosure
action was filed, Sklarov informed the Bank that he was
residing in 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 ...