THIRD DI VISI ON February 10, 2010

No. 1-09-1481
CENTERPOINT PROPERTIES TRUST, ) Appeal from the a Maryla nd Real Estate Investment Trust, ) Circuit Court of ) Cook County. Plaintiff-Appellee, ) ) v. ) ) OLDE PRAI

RIE BL OCK OWNER, LLC., an ) Illinois Lim

ited L iability

Company ; et al. , ) Honorable ) Mathias William Delort, Defendant-Appellant. ) Judge Presi ding. ) (Metropolitan Pier and Exposition Authority, ) a M un ic ip al Co rp or at io n; Mi dl an d M ul ti -F am il y ) Equity Reit; Jerry

Iseb erg a/

k/a Jerrol Iseb erg; ) Karl S. Norberg ; City

of Chicago, a Munic ipal ) Corporation; Maria Pappas, Treasurer and Collector ) of Cook Cou

nty , David Or

r, Cook Cou

nty Clerk; ) Lake Side Parki

ng, I nc., an I llinois Corp oration; ) Divane B ros. Elec

tric Co., a Delawa re Corporation; ) Lakeside Place Owne

r, LL C, an Illinois Limited ) Liability Company; L akeside Place, LLC, a Maine ) Limited Liability

Company; Olde Prairie Ave nue ) LL C, an Illinois Limited L iability Company ; Olde ) Pr ai ri e O wn er , LL C, an Ill in oi s Li mi te d Li ab il it y ) Company; Pamela W. Gleichman; Unknown ) Occupants; Unknown Owners; and Non-Record ) Claimants, Defendants). )

JUSTICE QUI NN delive

red the o pinion of t

he court :1-09-1481

-2-

Defendant, Olde Prairie Block Owne r, LL C (OPBO), appeals from an order of the trial court denying

its motion to stay enforcement of the c ourt’s previous order appointing a rece iver in the mort

gage forecl osure pr

oceedin g broug ht by plaintiff , CenterP oint Prope

rties Tru st (CPPT). On

appeal, defenda

nt conten ds that it ha s established goo d cause w hy i t should re

main in po ssess ion o f the p ropert y pursuan t to s ectio n 15-1 701(b )(2) of the Illi nois Mortga ge Foreclosure L aw (the Act) (735 ILCS 5/15-1701(b)(2) (West 2004)) and that the trial c ourt erred in refus ing to hol d an evide ntiary hearing before appointin

g a rec eiver. F or the re asons set forth below, we affirm the trial court. I. BACKGROUND On or about February

22, 2008, CPPT made a one-yea r term loan to OPBO in the amount of $32,127,667.03, which was evidenced by a promissory note and se cured by a mortgage. The propert y that is enc

umbered by t he mortg age wa s purcha sed by real es tate dev eloper Pa

mela Gleichman and her family through OPBO in 1997, for the purposes of retail and hote l development. It consists of a fee estate and a leasehold estate. The fee estate includes two parcels of nonresidential property : 230 East Cermak Road, in Chicago Illinois, which is ref erred to as “Olde Prairie Block,” and 330 East Cermak Road, w hich is referred to as “L akeside Place.” Olde Prairie Block is 53,635 square feet and is improved with a 2- story, 50,568-square -foot bui ld in g th at i s cu rre nt ly le ase d by O PBO to Lake si de P ark in g fo r us e as a pa rki ng ga rag e. In addition, offices in the building are leased to Divane B ros. Electric Company. O lde Prairie Block is the subject of a condemnation lawsuit brought by the Metropolitan Pier and Exposition Authority (MPEA), which name s both OPBO and CPPT as defendants and is currently pending1-09-1481

1 Case No. 08 L 50636. -3- in th e c ir cu it co ur t o f C oo k C ou nt y. 1 Lakesid e Plac e is a 1 59,96 0-squ are-fo ot bl ock co ntain ing a nonleased vacant building. The leasehold estate consists of an interest in parking spaces on the Lakeside Place prope

rty that are

currently le ased by the MPEA to OPBO

. The promissory note executed by OPBO matured on February 21, 2009, and when the amount due was not timely paid, CPPT filed a complaint in the circuit cour t of Cook County on February 29, 2009, to foreclose the mortgage . Subsequently, on March 26, 2009, CPPT filed a motion for the appointment of a receiver, rely ing on section 15-1704(a) of the Act, which provides , in part, that “upon reques t of any party and a showing of

good ca use, the c ourt shal l appoint a receiver for the mortga ged real estate” (735 I

LCS 5/15-1704(a) (West 2004)), and section 1 5-1702(a

), which provides that “[w]he

never a mortga gee e ntitled to p ossession

so requests, the court shall appoint a receiver” ( 735 IL CS 5/15-1702(a) (West 2004)). On May 14, 2009, def

endant filed a response to CPPT’s motion for the appointment of a receiver, arguing

that a receiver would improperly interfere with the condemnation case and jeopardize any f

uture refinancing of the mortg age. Shortly after filing its response and one day prior to the hearing on plaintiff’s motion to appoint a receiver , defendant filed its answer to the compl aint a nd a tw o-cou nt cou ntercl aim. C ount I of the co unter claim assert ed tha t the m ortgage and note should be rescinded because they were entered into under economic dure ss. Specifically, OPB O alleged that CPPT made material change s to the terms of the loan agreement just days before

the closing date and after OPBO ha d ceased looking for another potential lende r, and ther efore, OPBO had

no choice

but to acc ept the ne

w terms or

face th e loss of the proper ty to1-09-1481

-4-

the lende r that wa s being r

eplace d. Count I

I of t he counte rclaim a sserted

that CPPT’s

conduct i n the loan transaction violated the Illinois Consumer Fra ud and Deceptive Business Practices Act (815 IL CS 505/1 et seq . (West 2004)). CPPT filed a motion to dismiss the counterclaim, which the trial court granted on September 23, 2009, with leave to amend. On May 29, 2009, af

ter a hearing, the trial court g ranted CPPT’s motion for the appointment of a receiver. On June 16, 2009, OPBO filed a motion to stay enforcement of that order pe nding int erlocut ory appeal. In its

motion, OPB O argu

ed that a stay is neces sary

because the pres ence of

a rece iver dec

reases the likeli hood of se curing

financi ng to pa y of f the CPPT mortgage and neg atively impacts the prospec tive development of the property . OPBO submitted affidavits from Luke Sauer , a principal in Sierra Realty Advisor, a commercial real estate firm retained by O PBO to locate prospective tenants for the proper ty; Judy Thornber, an employ

ee of Olde Prairie Partners, LL C, an OPBO affiliate; and Pamela Gleichman, asserting that the appointment of a receiver will hinder efforts by the real estate developer to find prospective tenants, investors and lenders for property that is in the project development stage, as in this case. After a hearing on July

13, 2009, the trial court denied OPBO’s motion to stay enforcement of the order appointing a receiver and its request for an evidentiary hearing, and OPBO timely filed this interlocutory appea

l. While this appeal was pending, the receiver filed a n interim report dated September 16, 2009, which was included in the supplemental record on appea l. That report states, in part, that in March 2008, OPBO, by verbal agreement with the parking garage oper

ator, reduced the rent for Lakeside Parking

from $10,000 to $5,000 per month. The receiver obtained two alterna tive1-09-1481

-5-

arrang ements for the manageme nt of the p arking

garage that wou

ld result i n an incr ease in revenue compared with the curre nt operation. Further, the receiver disc overed that several invoices were outstanding, the first installment of 2008 real estate ta xes payable in 2009 was not paid, and th e liab ilit y insuran ce cove rage on t he pro perty was $ 2 mil lion less t han th e cover age required by

the mortgage. With regar d to the condition of the buildings on the property , a visual inspection disclosed asbestos, lead paint, water infiltration problems and the presenc e of mold. Openings in the roof were temporar ily secured a

nd windows boarded up to limit vagrant access. II. AN ALYS IS This appeal presents two issues: whether the trial court erre d in appointing a receiver for the subject property

and whether the trial court should have gra nted defendant’s request for an evidentiary he aring. The first issue is governed by the Illinois Mortgage

Foreclosure L aw. Prior to the enactment of the Illinois Mortga ge Foreclosure Law and consistent with judicial review of injunctive relief generally , Illinois statutory

provisions relating to mortgage for eclosures granted a court discretion to award a mortgagee possession during the pendency of the foreclosure pr oc ee di ng s. Ho we ve r, th e Il li no is Mo rt ga ge Fo re cl os ur e La w, en ac te d i n 1 98 7, em pl oys mandator y la nguag e and dra stically

curtails a trial c ourt’s dis cretion

in decidi ng motion s to appoint a receiver. Mellon Bank, N.A. v. Midwest Bank & Trust Co. , 265 Ill. App. 3d 859, 867 (1993). Section 15-1701(b)(2) of the Act provides that in mortga ge foreclosure case s involving nonresidential real estate, a mortgag ee is entitled to be placed in possession of the property prior to the entry of a

judgment of foreclosure upon request, provide d that the mortgagee shows (1) that the mortgag e or othe r written instrumen

t authorize s such poss ession an d (2) tha t there is a1-09-1481

-6-

reasonable probability

that the mortgagee will prevail on a f inal hearing of the cause. Howe ver, if the mor tgag or objects and demonstrate s “good cause,” the cour t shall all ow the mor

tgag or to remain in possession. 735 IL CS 5/15-1701(b)(2) (West 2004). Section 15 -1702(a

) of the A ct provid

es that “ [w]heneve

r a mortg agee

entitled t o possession so reque sts, the c ourt shall appoint a receiver” (emphasis added) (735 IL CS 5/15- 1702(a) (West 2004)) and according to se ction 15-1105 of the Act, “shall” means “mandatory and not permissive.” (735 ILCS 5/15-1105(b) (West 2004)). Therefore, as this court has previously held, the Act creates a presumption in favor of the mortga gee’s right to possession of

nonre siden tial prope rty durin g the pe ndenc y of a mort gage fore closu re proc eedin g ( Travelers Insurance Co. v. La Salle National Bank , 200 I ll. App. 3d 139, 143 ( 1990); Mellon Bank, 265 I ll. App. 3d at 866-67 (1993)), and a mortgag or can retain possession only if it can show “good cause” for permitting it to do so. I n addition, this court has held that the Act changed the standard of review from a defer ential standard to a de novo standard of review. Mellon , 265 I ll. App. 3d at 868. With this in mind, we consider whether the trial court properly granted CPPT’s motion to appoint a receiver. At the outs et, we no te that the parties a gree t hat CPPT has

satisfie d the two r

equirements entitling it to possession. First, CPPT is authorized by the terms of the mortgag e to take possession of the property in the e vent of a default. Namely , section 3.2(e) of the mortgage states that “Upon the occurrence of any Event of Default, Lende

r shall be entitled, as a matter of absolute right and without regard to the value or condition of any sec

urity for the amount due or the solvency of a

ny person liable ther

efore, to the appointment of a receiver f or the Property upon1-09-1481

-7-

ex parte a pplication to any

court of compete nt jurisdiction.” Sec ond, bec ause a pr oven def ault establishes a reasonable probability of success in a mortgage f oreclosure action ( Brown Co unty State Bank v. Kendrick , 140 Ill . App. 3d 538 , 541 ( 1986) , citi ng Olympic Fede ral v. Witney Development Co, Inc. , 113 Ill. App. 3d 981, 986 (1983)) and OPBO ha s admittedly defaulted on its note, there is a “reasonable probability ” that CPPT will prevail on a final hearing in this case. Therefore, CPPT is entitled to possession of the property and the appointment of a receiver unless OPBO can establish good cause for permitting it to retain possession. The trial court found that OPBO failed to sustain its burden in this regard. We ag ree. Defendant contends that the issue of what constitutes good ca use under section 15- 1701(b)(2) of the

Act is one

of first i mpression . Althoug

h defend ant ackn owledg es that thi s court has previously a

ddressed good cause in the context of a mortga ge foreclosure involving nonresid ential pr operty, defend

ant asse rts that those case s addres sed what does notconstitute good cause rather than delinea ting what would constitute good cause. For instanc e, in Travelers , defendants executed a mortgag e in favor of the plaintiff to secure a promissory note for $15,500,000. Travelers , 200 Ill. App. 3d at 140-41. The mortga ged property

included an office building that generated monthly rental income of approximately $150,000. Travelers , 200 I ll. App. 3 d at 14 1. Aft er defe ndant defaul ted on the lo an and the pl ainti ff fil ed a mo rtgage forecl osure complaint, the partie s entere d into an a greement, purs

uant to wh

ich defe ndants wo

uld deposit r ents prod uced by the mortg aged property

into a che cking a

ccount he ld jointly

with plaintiff and submit to plaintiff a monthly schedule identify ing proceeds and operating expenses. Travelers , 200 Ill. App. 3d at 141. After the trial cour t approved the agreement and e ntered an1-09-1481

-8-

agreed order incorpor

ating its terms, the plaintiff decided to file a motion to obtain possession, which the trial court granted after finding that the mortgage a uthorized possession and that the plaintiff was likely to preva il on the merits of the foreclosure complaint. Travelers , 200 Ill. App. 3d at 141. On appeal, defendants contended that they demonstrated the statutorily re quired good cause to retain possession because plaintiff failed to alleg e any fr aud, mismanagement, waste or other dissipation of the mortgaged rea l estate. This court rejected that argume nt, finding it was “nothing more tha n defend ants’ att empt to shif

t the burd en of mak ing a g ood caus e showing onto plaintiff,” which, as a nonresidential mortgag ee, “had no obligation to allege misdeeds or omissions on the part of the mortgagors in order to be plac ed in possession.” Travelers , 200 I ll. App. 3d at 144. This court also rejected defendants’ a rgument that the agreeme nt between the parties afforded adequate prote ction to plaintiff’s interest in the mortgaged proper ty, stating that “whether the mortgage e is ‘adequately protected’ is not a relevant consideration under the statute.” Travelers , 200 I ll. App. 3d at 144. Th erefor

e, beca use the de fendant s failed t o demonstr ate goo d cause t

o overcome the sta

tutory presumpt ion in fav or of the

mortga gee, th is court affirmed the trial court’s decision to put plaintiff in possession of the property

. Travelers , 200 Ill. App. 3d at 146.
In Mellon Bank , the mortgagee appeale d from an

order of the trial court de nyi ng its motion to ap

point a re ceiver

to manag e the mor

tgag ed prope

rty , a high -rise ap artment c omplex in Chicago. Mellon Bank , 265 I ll. App. 3d at 861. To

establish good ca use for p ermitting

it to retain possession, the mortgagor asser ted that (1) the mortgage lac ked consideration, (2) the1-09-1481

-9-

mortgagee induced the mortg agor to enter into the mortgag e using “maneuvers and sham transactions,” and (3) the mortgag ee previously a ccepted late pay

ments and, therefore, was estopped from foreclosing. Mellon , 265 I ll. App. 3d at 869. I n rever sing the

trial cou rt, this court found that defendant’s “ ‘good c ause’ arguments fail entirely .” Mellon , 265 Ill. App. 3d at 872. First, this court found the mortgagor’s attempts to portra y the mortga

gee as an unscrupulous bank taking advantage of an unsophisticated owner unconvincing because the mortgage was executed by sophisticated businessmen who were represented by a prominent law firm. Mellon , 265 Ill. App. 3d at 870. This court also rejecte d the mortgagor’s arg ument that there was no consideration, noting that the mortga ge was executed in exchange for the mortgagee agreeing to increa se its letter of credit. Mellon , 265 Ill. App. 3d at 871. L astly, this court found that the mortgagee’s pre

vious acceptance of late pay ments did not prohibit it from ever seeking to foreclose the mortgage

. Mellon , 265 Ill. App. 3d at 872. Defend ant conte nds that Travelers and Mellon turn on the fact that the allegations made by the mortga

gor impermissibly shifted the bur den of showing good cause to the mortgagee and were factually

false, rather than on a definitive finding that the e vidence presented by

the mortga gor fa iled to est ablish g ood caus e. Defe

ndant ass erts that

federa l district c ourts in I

llinois have also failed to clearly define good cause under the Ac t, but contends that opinions issued by those courts contain “common threads” from which to derive a good cause standard. Rely ing on eight un published federa l district c ourt cas es, which, like unp ublished Ru

le 23 orde rs (166 I ll. R. 23(c)) issued by

this court, generally

may not be cited (F ed. Rule App. P. 32.1 (prohibiting the citation o f nonpre cedenti al orders issued be fore Janu ary 1, 2007)) , defend

ant suggests that t

his1-09-1481

-10-

court find that a mortgagor ca n establish good cause by showing that (1) it can manage the property with g

reater efficiency

than a receiver or (2) the har m caused to the mortgagor by appointing a receiver outweig hs any potential harm to the mortg agee. Alternatively, defendant asserts that this court can more narrowly decide this case by

holding that where mortgag ed property is vac ant and suitable for development only , the mortgagor should be entitled to a presumption that good cause exists to allow it to remain in possession. We will first address the proposed good-cause standard prof fered by defendant and then consider whether a pplication of the statutory presumption in favor of mortgagees of nonresidential pr operty should depend on the condition of the property. Althoug h defend ant asse rts that a showing by t he mortg agor that it can m ore eff iciently manage the property

than the mortgagee establishes good cause, the federal district reac hed a different conclusion in a case analog ous to this case, Home Life I nsurance Co. v. American National Bank & Trust Co. , 777 F. Supp. 629 (N.D. Ill. 1991). I n Home Life , the defendant argued, as OPBO does here , that there was good cause for not a ppointing a receiver because there

was no mor

e qualif ied mana ger for the pro

perty than the c

urrent ma nager and neg otiations w

ith prospective tenants would be jeopardized by the appointment of a receiver. The district court rejected that argument, stating that “ the qualifications of current property management are not an important consideration under the [Act] when the property is in default.” Home Life , 777 F. Supp. at 632. “Such a requirement would be tantamount to shifting the burden of showing good cause onto the mortgagee .” Home Life , 777 F . Sup p. at 6 32, ci ting Travelers , 200 Ill. App. 3d at 44.1-09-1481

-11-

Defend ant conte nds, howe

ver, tha t Home Life only

stands for the ass ertion tha t a mortga gor’s unsupported

claims that it is better able to safeguard the value of the property a

nd secure new tenants than a rece iver does not constitute good cause, and that beca use it has supported such claims, it has shown good cause. We disagre e. First, Home Life , although not binding on this court, is persuasive authority (see Zahl v. Krupa , 365 Ill. App. 3d 653, 662 (2006) (on matters of state law, federal case s are not binding on Illinois courts, but can a ct as persuasive authority)) and sta

tes that the qualifications of the current property manager are irre levant to a showing of good cause w hen the pr

operty is in defa ult. Ther efore, a showing

by O PBO that i

t could better manage the property would not be sufficient to overcome the statutory presumption in favor of appointing a receiver

. Moreover, even if we were to a gree with defendant’s asser tion that a mortgagor can establish good cause by

showing that it rather than the receiver is be tter able to manage the propert y, O PBO has presente d no such e vidence in this cas e. The r

eceive r’s inter im report , which states that invoices and real estate taxes on the property were not paid, rent collection was not maximized, the amount of insurance was inadequate, and repairs neede d to prevent water infiltration and vagrant access wer e not made, belies defendant’s assertion that it can better manage the property

. Defendant’s second contention is that it has established good ca use by showing

that the harm to OPB O cause d by the appoi ntment of a

receiv er outwe ighs any

harm CPPT mig

ht incur if OPBO is permitted to retain possession. Defendant asserts that the appointment of a r eceiver makes it di fficult t

o attract prospective tena

nts, promo te proje cts to inve stors, an d obtain1-09-1481

-12-

financing in order to resolve the fore closure action. Conversely , defendant asserts, there is no harm to pla

intiff if d efenda nt maintai

ns possess ion of the

propert y be cause it

is effec tively vacant, there is no significant rent stream or commercial business, and the receiver has c ontinued to use the sa me po lice offi cer h ired by defe ndan t, as a secu rity offi cer f or the prop erty . We disagree. While we do

not dispute

defenda nt’s asse rtion that the appoi ntment of a

receiv er likely imposes additional procedural hurdles for defendant in its effor ts to develop, refinance or sell the property, we

do not find that such potential impediments are sufficient to overcome the statutory presumpt ion in fav or of pla

cing the mortga gee in p ossession . In nearly every forecl osure ca se involving nonresid ential pr operty the appoi ntment of a

receiv er will lik

ely create some impedimen

ts for a mortgag or that wa nts to sell, refina

nce or de velop the propert y. I f we wer e to hold that a

mortga gor ca n establish good c ause simp ly by showing that a rec eiver wi ll make it more difficult to attract investors, lenders or buy ers, it is likely that the exception would swallow the rule . Howeve

r, we ca n conce ive of ci

rcumstan ces in wh ich a cou rt could f ind that g ood caus e has been established by

a mortg agor in

a situation similar to

the one f aced by the defe ndant in this case. For instance, if while a motion for the appointment of a re ceiver is under consideration, the mortgagor pre sents evidence to the trial court that it has a commitment from an investor to provide funds for development of the property or it has obtained a loan from another lender t o refina nce and that the a ppointmen

t of a re ceiver

would like ly im

pede thos e transa

ctions, the trial court ma y f ind that the

re is go od cause

to permit t

he mortg agor to

retain p ossession

in the interim. It is likely , however, that a court would find that the transaction must be imminent1-09-1481

-13-

and not merely a

possibility at some unknown time in the future. See, e.g. , Home Life , 777 F. Supp. at 632. (“[t]he mere possibility of existing lease neg otiations does not overcome the statutory presumption in favor of the appointment of a receiver”). That is not the situation in the instant case. OPBO has stated that it wants to develop the property, but has no imminent plans to do so and ca nnot, with any reasona

ble certainty, pr

edict when such development will ta ke place . CPPT made a

short-te rm loan to O PBO so tha

t it could obtain long-term financing for deve lopment of the property, but OPB O has presented no evidence showing that it has a commitment from a lender to re finance the loan. CPPT cannot be expected to wait indefinitely while OPB O attempts to obtain the investors and the financing needed to move forward with its plans for the property , particularly in lig

ht of the statutory presumption in favor of the mortgagee ’s right to possession in foreclosure proceeding s involving nonresidential property

. We also disa

gree w ith defe ndant’s a ssertion t

hat CPPT will

not be har

med if OPB O is permitted to retain possession of the property . The record shows that prior to the appointment of the receiver, OPBO, without notify ing CPPT as required by

the mortgage, turned manag ement of the property ove

r to Stanford Management, L LC, a company

based in Portland, Maine, that does not appea r to have any commerc ial management expe rience or be re gister

ed with the

Illinois Secretary of State to do business in this state. Further, despite defendant’s assertion that it was maintaining and protecting the property , the receiver’s interim report indicates that invoices a nd real estate taxes were not timely paid, insurance was inadequate, rent collec tion was not maximized, and necessary maintenanc e to the buildings was ignored.1-09-1481

-14-

Defend ant seem s to minimize t

he importa

nce of the steps ta

ken by the rec eiver, s tating in its brief that “the determination of whether the property is better ‘managed’ by

mortgagors than by the rec eiver is somewhat of a red herring ” because the property is primarily suited for future development and therefore needs a r eal estate developer rather than a manager. I

n essence, defendant asserts that because the buildings on the pr operty will likely

be torn down when future development is undertaken, efforts to abate wate r infiltration and mold problems and to secure the building by boar

ding up the roof and windows are larg ely unnece ssary. We disag ree. Although the repairs undertaken by the receiver may

not increase the value of the property or the likelihood of attracting investors or lenders, efforts to sec ure the building and prevent further structural damage are ne cessary to ensure that they do not pose a danger to the gener

al public. Abandoned buildings that are easily accessible are likely

to increase vagrant traff

ic in the area and, if allowed to fall into disrepair, may collapse, partially or

completely, injuring pe ople or structur es in the vicinity . Such con cerns w ere add

ressed by th e Chicag o city council w

hen, in 2008, it adopted section 13-12-125 (Vacant Buildings Ordina nce) of the Chicago Municipal Code (Chicago Municipal Code §13-12-125 (2008)), which provide s, in part, that owners of vacant buildings must enclose and secure those buildings pursuant to the requirements of section 13-12-135 (minimum requirements for vacant buildings) of the Code (Chicago Municipal Code §13-12-135 (2008)). Therefore, both the city and local residents have an interest in seeing that necessary repairs are made. Further , by ensuring that the buildings are properly secured, the receiver has also protected the intere sts of both the plaintiff and defendant, by decreasing the li ke li ho od of

an ac ci de nt th at co ul d r es ul t i n l ia bi li ty.1-09-1481

-15-

Next, defe

ndant ass erts that

as an alt ernativ e to findin

g that a mortga gor ca n demonstr

ate good cause by

showing (1) that it can manage the pr operty with g

reater economic efficienc y than a receiver or (2) that the har m to the mortgagor outweighs the har m to the mortgagee, this court should hold

that in mor

tgag e forec losure pr

oceedin gs involv ing vac ant nonre sidential propert y the mortg agor sh

ould be en

titled to a presumpt ion that g ood caus e exists to a llow it to re

main in possession. Defendant argues that the power s of a receiver articulated in section 15-1705(b) of the Act, i ncluding securin g tenan ts, collec ting re nt, insurin

g the mor tgag ed real

estate a gainst l oss by f ire or other casu

alty , employ

ing cou nsel, cus todians a

nd other help, and p ay

ing rea l estate taxes, do not make sense when applied to vacant property , and therefore, there should be a presumption in favor of permitting the mortgag or to retain possession. We disagree for several re asons. First, the question of whether a different standa rd should apply to vacant prope rty is not properly

before the court, as the property that is the subject of this mortgage is, in fact, not vacant. Althoug h, as the trial court noted, the amount of rent being collected is small in relation to the amount owed on the loan, defenda nt mischaracterizes the property by

calling it vacant since part of one building is being leased and both are being used as parking facilities. Further, def endant’s assertion that the statutory powers granted to a rece iver are irrelevant when applied to the proper ty at issue in this case is belied by the fact that the receiver’s preliminary

report indicates that the receiver has unde rtaken those very

same duties by finding way s to maximize the rent on the parking garage, hiring workers to repair damage to the buildings that could result in liability, and ensuring that the proper amount of insurance has been obtained and that invoices and property taxes have been paid. Even if future development of the1-09-1481

-16-

property re sults in tearing down the buildings, these steps are nece ssary to maximize the current value of the property

and, as noted above, to protect the gene ral public, the city, the owne r and the lender from liability that may arise from a building in disrepair. Lastly , the primary rule

in statutory construction is to ascerta in and give effect to the legisl ature’ s int ent. T o dete rmine the le gislat ure’s i ntent , cour ts sh ould first look to th e langu age of the statute and accord the langua ge its plain and commonly unde rstood meaning. A court must not read into the plain language exceptions, limitations, or conditions that the legislature did not intend. People v. Ellis , 199 Ill. 2d 28, 39 (2002). Section 15-1701(b)(2) pr ovides that “[i]n all other cases, if (i) the mortgagee is so author ized by the terms of the mortg age or other written instrument, and (ii) the court is satisfied that there is a reasonable pr obability that the mortgagee will prevail on a fina l hearing of the cause, the mortg agee shall upon request be place d in possession of the real estate, except that if the mortgag or shall object and show good cause, the court sha ll allow the

mortga gor to r emain in p ossession .” 735 I LCS 5/1 5-1701(b )(2) (We st 2004). “ [A]ll other c ases” w hen rea d in conjun

ction with section 1 5-1701(b )(1), wh ich cre ates a presumption in favor of the mortgagor’ s right to possession “[i]n the case of residential real estate,” includes mortgage f oreclosure cases involving nonresidential re al estate, regardless of whether the property

is vacant or, as in this case, partially vacant or unoccupied. Any other conclusi on would de

part from the well -settled rule tha t courts mu st not rea

d into a sta

tute exceptions that the legislature did not express. See Ellis , 199 Ill. 2d at 39. I f the legislature intended that the presumption in favor of a mortgagee ’s righ

t to posses sion would

not apply to vacant n onreside ntial prop erty , it could have eas ily d one so by inserting such an exception in

to1-09-1481

-17-

the statute. The legislature did not do so, and therefore , we are not in a position to assume that the statute means something other than what it says. Defendant’s final contention is that the trial court erred in de nying its motion for an evidentiary he aring on whether a rece iver should be appointed and that a mortgagor should be granted an evidentiary

hearing on the good cause issue as a matter of course, absent good r eason not to. Defendant relies on People ex r el. Scott v . Silverste in , 86 Ill. App. 3d 605 (1980), and Home Life , 777 F. Supp. 629 for support. In Silverste in , which pr edated t he 1987 a mendment s to the Act, the State of Illinois appealed fr om an order deny

ing its motion for a hearing concerning the appointment of a rec eiver for an I llinois not-for-profit museum. Silverste in , 86 Ill. App. 3d at 606. The State’s motion for the appointment of a r eceiver alleged that the rig ht of the people of the state to the use and enjoy ment of the museum was being frustrated by the depletion, waste, and mismanagement of museum art objects a nd finances. Silverste in , 86 I ll. App. 3d at 608. After he aring a rgumen ts, the tri al court

denied the State’ s motion to se t a hearing on the appointment of a rece iver and denied its motion for the appointment of a receiver. Silverste in , 86 Ill. App. 3d at 608. This court reversed, holding that “I t is our considered opinion that the situation before us as above set forth requires a full evidentiary hearing be held by

the trial court on the merits of the issue of appointment of a receiver.” Silverste in , 86 Ill. App. 3d at 611. Defendant a sserts that Silverste instands for the proposition that where the propriety of appointing a receiver involves complex fa

ctual considera

tions, the parties a re entitl ed to an e

videntia ry hearing . Howeve

r, it is clear that in Silverste inthis court limited its holding to the “situation before us,” which involved1-09-1481

-18-

a museum and not a mortgage for eclosure proceeding. Fur ther, this court stated that under such circumst ances, t he appoin tment of a

receiv er is war

ranted only

when the re is no ot her ade quate remedy or

means of accomplishing the desired result. Silverste in , 86 I ll. App. 3d at 609. Th at is clearly not the sta

ndard under the Act, where there is a presumption in favor a mortgagee ’s right to possession of nonresidential property during a mortgage

foreclosure proceeding. A case that is more

directly on point is Home Life , 777 F. Supp. 629. In Home Life , defendants contended that because they had made an objection to plaintiff’s motion for the appointment of a receiver, they were entitled to an evidentiary hearing under the Act. The district court disagreed, noting that a hea ring had already

been held and defendants had been given an opportunity

to show good cause. Home Life , 777 F. Supp. at 633. The court further noted tha t it had fou

nd that de fendant s failed t o establish good c ause dur ing that hearing and in their briefs and concluded that "a fur ther evidentiary

hearing" " would only

serve to delay

the inevitabl e resolutio n of plaint iff’s moti on." Home Life , 777 F. Supp. at 633. Defend ant arg ues, cor rectly , that Home Life

does not have precedential value, howeve r, we find that it is persuasive authority

. Zahl , 365 Ill. App. 3d at 662 (on matters of state law, federal cases are not binding on I llinois courts, but can act as persuasive authority ). As in Home Life , in the instant case, both parties submitted briefs on whether a rece iver should be appointed and the tr ial cour t held two hearing s on the iss ue. Fur ther, the trial cou rt allowe d defend

ant to submit an offer of proof, which essentially made the same arguments that were raised in the brief and during the hearings, namely that the property was purchased with an ey e toward retail and hotel dev elopment

and that s teps have

been tak en since the prope rty was purc hased in 1 997 to1-09-1481

-19-

develop the property . Aside from the fact that this information is not directly relevant to a showing of good cause un der section 15-17 01(b)(2 ) of the A ct, it had alread y be en prese

nted to and considered by

the trial court. An additional evidentiary hearing would not have served any purpose, other than to delay the trial court’s hearing on the motion. Therefor e, we find that the trial court did not err in deny ing defendant’s motion requesting an evide ntiary hear

ing before appointing a receiver.
III. CONCL USION For the f orego ing rea sons, we a

ffirm the order of the circ uit court. Affirmed. STEELE, and COL

EMAN, JJ., concur.