                      ILLINOIS OFFICIAL REPORTS
                                  Appellate Court




       Republic Bank of Chicago v. 1st Advantage Bank, 2013 IL App (1st) 120885




Appellate Court       REPUBLIC BANK OF CHICAGO, Plaintiff-Appellee, v. 1ST
Caption               ADVANTAGE BANK; ABCO LEASING, INC.; ACADEMIC
                      CAPITAL GROUP, INC.; ADVANCE FINANCIAL SOLUTIONS,
                      INC.; ALERUS FINANCIAL, N.A.; ALFA FINANCIAL, N.A.; ALFA
                      FINANCIAL CORPORATION DBA OFC CAPITAL; ALL POINTS
                      CAPITAL CORPORATION.; ALLIANCE COMMERCIAL CAPITAL,
                      INC.; ALLIANCE LEASING, INC.; ALTEC CAPITAL (QUAIL
                      CAPITAL); ALTEC CAPITAL SERVICES, LLC; AMERICAN BANK,
                      FSB; AMERICAN BANK LEASING CORPORATION; AMERICAN
                      CHARTERED BANK; ASSOCIATED BANK, NATIONAL
                      ASSOCIATION; AUTO CAPITAL GROUP; BMT LEASING, INC.;
                      BALBOA LEASING; BANK MIDWEST, N.A.; BANK OF DIXON
                      COUNTY; BANK OF THE WEST; BARRETT TRADE AND
                      FINANCE GROUP, LLC; BRYN MAWR; BUTLER CAPITAL
                      CORPORATION; CFC INVESTMENT COMPANY; CM FINANCIAL;
                      CENTER CAPITAL CORPORATION; CENTER NATIONAL BANK;
                      CHARTER NATIONAL BANK AND TRUST; CHERRY CREEK
                      ASSET-BACKED INCOME FUND, L.P.; CITIZENS BANK AND
                      TRUST COMPANY OF CHICAGO; COACTIV CAPITAL
                      PARTNERS, LLC; COMERICA LEASING, a Division of Comerica
                      Bank; COURT SQUARE LEASING CORPORATION; CROSSROADS
                      BANK; CUPERTINO NATIONAL BANK, c/o Greater Bay Equipment
                      Finance; DEERBART FINANCIAL SERVICES COMPANY;
                      DIAMOND LEASE U.S.A., INC.; ENTERPRISE FUNDING GROUP
                      LLC; EQUILEASE FINANCIAL SERVICES, INC.; EQUIPMENT
                      ACQUISITION RESOURCES, INC.; EVANS NATIONAL LEASING,
                      INC.; EVERGREEN LEASING, INC.; FARMERS AND MERCHANTS
                      BANK; FIFTH THIRD BANK (CHICAGO); FIRST BANK; FIRST
                      BANK AND TRUST; FIRST COMMUNITY BANK; FIRST CREDIT
                      FUNDING, LLC; FIRST DUPAGE BANK; FIRST FEDERAL
                      SAVINGS BANK; FIRST MIDWEST BANK; FIRST MUTUAL
                      BANK; FIRST NATIONAL BANK OF MCHENRY; FIRST NATION-
                 AL EQUIPMENT FINANCING, INC.; FIRST PREMIER CAPITAL,
                 LLC; FIRSTLEASE INC.; GIS ROLLING, L.L.C.; GIS VENTURE;
                 HEWLETT-PACKARD FINANCIAL SERVICES COMPANY;
                 HIGHLAND BANK; HOME FEDERAL SAVINGS BANK; HORIZON
                 BANK; IBM CREDIT LLC; IRWIN BUSINESS FINANCE
                 CORPORATION; KCL, LLC; KLC FINANCIAL, INC.; KSP
                 ACQUISITION CORPORATION; KEY GOVERNMENT FINANCE,
                 INC.; LFC CAPITAL, INC.; LAKELAND BANK EQUIPMENT
                 LEASING DIVISION; LEAF FUNDING, INC.; LEASECORP, INC.;
                 LEASING INNOVATIONS, INC.; LEASING ONE CORPORATION;
                 LIBERTYVILLE BANK AND TRUST; LOYALTY FINANCE, INC.;
                 LYON FINANCIAL SERVICES, INC.; MB FINANCIAL BANK N.A.;
                 MANUFACTURERS ACCEPTANCE CORPORATION DBA
                 HERITAGE PACIFIC LEASING; MARLIN LEASING
                 CORPORATION; MICHIGAN HERITAGE BANK; MILLENNIUM
                 BANK; MINWEST BANK; NATIONAL CITY COMMERCIAL
                 CAPITAL COMPANY, LLC; NATIONAL CITY COMMERCIAL
                 CAPITAL CORPORATION; NORSTATES BANK; NORTHWAY
                 STATE BANK; OFC CAPITAL CORPORATION; PNB CAPITAL
                 LEASING, LP; PENTECH FINANCIAL SERVICES, INC.; PEOPLE’S
                 CAPITAL AND LEASING CORPORATION; PEOPLE’S NATIONAL
                 BANK OF KEWANEE; PLAINS CAPITAL LEASING, LP; PULLMAN
                 BANK AND TRUST COMPANY; RED OAK CAPITAL; ROCKFORD
                 CAPITAL LEASING, INC.; SG EQUIPMENT FINANCE USA
                 CORPORATION; SHERMAN AND COMPANY; SKY BANK
                 LEASING; SOVEREIGN BANK; STAR FINANCIAL BANK; STATE
                 FINANCIAL BANK; STEFAN SYDOR OPTICS; STERLING
                 NATIONAL BANK; SUNTRUST LEASING CORPORATION;
                 SUSQUEHANNA COMMERCIAL; TD BANKNORTH LEASING
                 CORPORATION; THE COMMUNITY BANK; THE NORTH SIDE
                 BANK AND TRUST COMPANY; TOWN AND COUNTRY LEASING
                 LLC; TRINITY, a Division of Bank of the West; UC BANCORP; US
                 FINANCIAL, LLC; VARILEASE TECHNOLOGY FINANCE GROUP,
                 INC.; VELOCITY LEASE FUNDING, LLC; WAUKEGAN SAVINGS
                 BANK; and UNKNOWN CLAIMANTS, Defendants (Icon Ear, LLC,
                 and Icon Ear II, LLC, Defendants-Appellants).


District & No.   First District, First Division
                 Docket No. 1-12-0885




                                       -2-
Filed                      September 16, 2013


Held                       In an action arising from lessees’ default on their leases of equipment
(Note: This syllabus       from defendant, the trial court properly held that when defendant
constitutes no part of     foreclosed on Wyoming real estate owned by the individual lessees and
the opinion of the court   mortgaged to defendant to secure their agreements to guaranty the
but has been prepared      performance of their lease obligations, defendant’s purchase of the real
by the Reporter of         estate with a bid of the total lease obligation satisfied both the lessees’
Decisions for the          debt to defendant and their obligations under the guaranty agreements,
convenience of the         and plaintiff, one of the lessees’ creditors, was free to pursue its claim for
reader.)
                           the leased equipment.


Decision Under             Appeal from the Circuit Court of Cook County, No. 10-CH-14025; the
Review                     Hon. Peter Flynn, Judge, presiding.


Judgment                   Affirmed.


Counsel on                 Reed Smith, LLP, of Chicago (Stephen T. Bobo, Michael D. Richman,
Appeal                     and Peter M. Stasiewicz, of counsel), for appellants.

                           Ruff, Weidenaar & Reidy, Ltd., of Chicago (Edward P. Freud and
                           Michael B. Bregman, of counsel), for appellee.


Panel                      JUSTICE CUNNINGHAM delivered the judgment of the court, with
                           opinion.
                           Presiding Justice Connors and Justice Hoffman concurred in the
                           judgment and opinion.




                                             OPINION

¶1          This appeal arises from a March 6, 2012 order entered by the circuit court of Cook
        County which granted summary judgment in favor of plaintiff-appellee Republic Bank of
        Chicago (Republic Bank). On appeal, defendants-appellants Icon Ear, LLC, and Icon Ear II,
        LLC (collectively, Icon), argue that: (1) the trial court erred in granting summary judgment
        in favor of Republic Bank because the law of guaranties governs in this case; and (2) the trial

                                                  -3-
     court erred in granting summary judgment in favor of Republic Bank because the “full credit
     bid rule” does not apply in this case. For the following reasons, we affirm the judgment of
     the circuit court of Cook County.

¶2                                      BACKGROUND
¶3        Icon is a specialty finance company and manager of publicly registered funds that invest
     in business-essential equipment and corporate infrastructures. Equipment Acquisition
     Resources, Inc. (EAR), was an Illinois corporation that developed processes for
     manufacturing wafer chips for the semiconductor industry, as well as refurbished and resold
     related semiconductor manufacturing equipment. On December 24, 2007, Icon entered into
     a lease agreement with EAR which stated that Icon would lease equipment to EAR pursuant
     to various leasing schedules. On lease schedule number one, the equipment that EAR
     received was listed at a price of $6,935,000.
¶4        According to Icon, in January 2008, Icon learned that Sheldon Player (Sheldon), one of
     EAR’s principals, had previously been convicted and sentenced for participating in a
     fraudulent scheme involving equipment financing. Consequently, EAR offered Icon
     additional collateral in the form of mortgages encumbering Wyoming real estate, in exchange
     for Icon agreeing to finance additional lease schedules. The Wyoming real estate consisted
     of six parcels of land owned by Sheldon and his family. On March 18, 2008, Sheldon, his
     son, Dale Player (Dale), and his daughter, Dana Malone (Dana) (collectively, the Players),
     executed guaranty agreements as consideration for Icon’s agreement to execute lease
     schedule number two and future lease schedules. In addition to the guaranties, the Players
     mortgaged the Wyoming real estate to Icon. The terms of the guaranties stated, in pertinent
     part: “[Icon’s] sole and exclusive remedy against [the Players] shall be limited to [the
     Players’] interest in the Mortgage Premises.” (Emphasis in original.)
¶5        On April 24, 2008, Icon leased equipment that was listed at a price of $6,347,500.02 to
     EAR, pursuant to lease schedule number two. On June 6, 2008, Icon leased equipment that
     was listed at a price of $6,325,500 to EAR, pursuant to lease schedule number three. On June
     30, 2008, Icon leased equipment that was listed at a price of $2,469,000 to EAR, pursuant
     to lease schedule number four. As of June 30, 2008, Icon had leased equipment worth a total
     of $22,077,000.02 to EAR.
¶6        During the summer of 2009, EAR defaulted on its lease payments to Icon. On October
     23, 2009, EAR filed a voluntary petition for bankruptcy in the United States Bankruptcy
     Court for the Northern District of Illinois, Eastern Division. On November 19, 2009, the
     bankruptcy court entered an order which granted Icon’s emergency motion to modify the
     automatic stay. The court’s order lifted the automatic stay with respect to the Wyoming real
     estate that was subject to Icon’s mortgages. Icon then began the process of foreclosing its
     mortgages on the Wyoming real estate. On December 1, 2009, the sheriff of Teton County,
     Wyoming, sold the Wyoming real estate through foreclosure proceedings. Icon successfully
     purchased the Wyoming real estate with a credit bid of $22,743,564.44, which represented
     the full amount of the debt owed to Icon under the lease agreement with EAR.
¶7        On March 22, 2010, Icon filed a complaint for replevin against EAR in the circuit court

                                              -4-
       of Cook County. In its complaint, Icon sought immediate possession of the equipment that
       was leased to EAR. Additionally, numerous other lessors and lenders filed similar complaints
       against EAR. On April 2, 2010, Republic Bank filed a complaint against EAR for judicial
       foreclosure and declaratory judgment under case number 10 CH 14025. On April 5, 2010,
       the court consolidated the multiple complaints into a single action under case number 10 CH
       14025. On June 30, 2010, Icon filed an answer and affirmative defenses which contested
       Republic Bank’s right to the equipment that was leased to EAR and sought return of the
       equipment. Additionally, Icon filed counterclaims which sought a declaratory judgment that
       Icon was the owner of all of the equipment and that its interests in the equipment were senior
       to the rights of all other parties.
¶8         From June 2010 through July 2011, Icon sold five of the six parcels of the Wyoming real
       estate to unrelated third parties. Icon realized total net proceeds of $2,159,777.05 from the
       sales of the real estate. The sixth parcel of the Wyoming real estate remains unsold. On
       August 26, 2010, the trial court entered an order which authorized the hiring of an auctioneer
       to sell the equipment that had been leased to EAR. The trial court’s order stated that all
       parties with claims to the equipment “retain all heretofore existing rights and claims to the
       Auction Proceeds.” On September 23, 2011, Icon filed a proof of claim to the proceeds of
       the sale of the equipment that was leased to EAR. Icon’s proof of claim alleged that after
       accounting for the proceeds from the sales of the Wyoming real estate, the net amount owed
       to Icon by EAR was $17,487,520.30.
¶9         On January 3, 2012, Republic Bank filed a motion for summary judgment against Icon.
       The motion alleged that EAR’s debt to Icon was extinguished because at the foreclosure sale
       of the Wyoming real estate, Icon made a “credit bid” for the full amount of the debt owed
       by Ear to Icon. On January 31, 2012, Icon filed a response to Republic Bank’s motion for
       summary judgment. On March 6, 2012, the trial court held a hearing on Republic Bank’s
       motion for summary judgment. The court found that Icon’s credit bid at the foreclosure sale
       of the Wyoming real estate satisfied both the obligations under the guaranty agreements and
       Icon’s claim against EAR. The trial court reasoned that the effect of a full credit bid under
       Wyoming law is to extinguish the debt and that the individuals who executed the guaranty
       agreements did not have an independent debt to Icon. Thus, the trial court granted Republic
       Bank’s motion for summary judgment. The trial court found that the judgment was final and
       appealable pursuant to Illinois Supreme Court Rule 304(b) (eff. Feb. 26, 2010).
¶ 10       On March 23, 2012, Icon filed a timely notice of appeal. Therefore, this court has
       jurisdiction to consider Icon’s arguments on appeal pursuant to Illinois Supreme Court Rule
       303 (eff. May 30, 2008) and Rule 304(b).

¶ 11                                         ANALYSIS
¶ 12       As a preliminary matter, we note that this case raises an issue of conflict of laws. Both
       parties argue that because this case involves real estate that is located in Wyoming, Wyoming
       law should govern our analysis. We agree. In resolving conflict-of-laws questions, Illinois
       courts rely on the principles of the Restatement (Second) of Conflict of Laws and the
       traditional legal doctrine that “the law of the State where the real estate is situated governs


                                                 -5-
       the rights of the parties.” Lake County Trust Co. v. Two Bar B, Inc., 238 Ill. App. 3d 589, 595
       (1992). Therefore, we apply Wyoming law in our analysis of this case.
¶ 13        On appeal, we determine whether the trial court erred in granting summary judgment in
       favor of Republic Bank. We note that both parties present numerous arguments on appeal.
       However, not all of the parties’ arguments have bearing on our resolution of the case.
       Therefore, we will only discuss the parties’ most relevant arguments.
¶ 14        Icon first argues that the trial court erred in granting summary judgment in favor of
       Republic Bank because the law of guaranties governs in this case. Icon argues that under the
       law of guaranties, a guaranty is an obligation to pay the debt of another. Icon contends that
       a guaranty is a separate and independent obligation from that of the principal obligor and that
       a guaranty may be discharged without discharging the principal obligor. Therefore, Icon
       argues that the guaranty agreements executed by the Players were separate and independent
       obligations from EAR’s debt to Icon. Also, Icon asserts that the guaranty agreements were
       executed for separate and distinct consideration, which was Icon’s agreement to execute
       lease schedule number two. Icon argues that the terms of the guaranty agreements clearly
       state that Icon’s sole and exclusive remedy against the Players was limited to their interest
       in the Wyoming real estate. Thus, Icon contends that its purchase of the Wyoming real estate
       only satisfied the guaranty agreements and not the full amount of EAR’s debt to Icon.
¶ 15        Additionally, Icon argues that the trial court made incorrect conclusions regarding the
       Players’ ability to recoup their losses from EAR. Icon points out that in making its ruling, the
       trial court made the following statements:
                “THE COURT: A guarantor, it seems to me, pretty much invariably if he pays the
            debt, can collect from the actual debtor the amount that the guarantor paid to discharge
            the debtor’s obligation.
                It would seem to me that under Wyoming law, the amount of the guarantor’s claim
            against the debtor would be the amount of Icon’s full credit bid. If that is correct, then
            we are in a situation in which [the Players have to pay EAR] *** the $22 million that
            Icon bid.”
       Also, Icon points out that the trial court further stated that if EAR paid the Players the
       amount of Icon’s bid, while Icon continued to assert its claims against EAR and claim title
       to the equipment, this would result in a “double whammy” to the other creditors of EAR.
       Icon claims that the trial court’s conclusions were incorrect because under Wyoming law, the
       right of a guarantor to recover from the principal obligor is based in equity. Icon contends
       that the principle of equity states that the law promises reimbursement to a guarantor when
       the guarantor pays the debt of the principal debtor. Thus, Icon claims that the Players’
       recovery against EAR should be limited to the value of the Wyoming real estate, which was
       $2,159,777.05. Icon argues that the Players should only be entitled to recover from EAR the
       value of the property they actually lost. Icon asserts that it would be nonsensical and
       inequitable for the Players to receive a windfall of more than $22 million when the Wyoming
       real estate was only worth around $3 million.
¶ 16        Next, Icon argues that the trial court erred in granting summary judgment in favor of
       Republic Bank because the “full credit bid rule” does not apply in this case. Icon points out

                                                 -6-
       that the full credit bid rule provides that at a foreclosure sale, a “full credit bid” is equal to
       “ ‘the unpaid principal and interest of the mortgage debt, together with the costs, fees and
       other expenses of the foreclosure.’ ” Alliance Mortgage Co. v. Rothwell, 900 P.2d 601, 608
       (Cal. 1995) (quoting Cornelison v. Kornbluth, 542 P.2d 981, 992 n.10 (Cal. 1975)). If the full
       credit bid results in the acquisition of the property, the lender, in effect, pays itself the full
       outstanding balance of the debt and costs of foreclosure. Alliance, 900 P.2d at 608. Thus, the
       lender takes title to the property placed as security and the borrower is released from further
       obligations under the note. Id. Additionally, the lender “is precluded for purposes of
       collecting its debt from later claiming that the property was actually worth less than the bid.”
       Id. Icon argues that the trial court erred in granting summary judgment in favor of Republic
       Bank because the court applied the full credit bid rule when it concluded that EAR’s debt to
       Icon was extinguished due to Icon’s full credit bid at the foreclosure sale for the Wyoming
       real estate.
¶ 17        Icon contends that the full credit bid rule cannot be applied in this case because no
       Wyoming court has ever applied the rule in any case. Icon argues that under Wyoming law,
       courts will not create additional protection for borrowers absent explicit legislative
       pronouncements. Icon asserts that the full credit bid rule is a judicially created protection for
       borrowers, and thus, Wyoming courts will not recognize the rule. Icon argues that this court
       should not create new law interpreting the Wyoming statutory foreclosure scheme. Icon
       contends that under Wyoming law, it is the mortgage that is satisfied by a full credit bid, as
       opposed to the vague category of “the debt.” Icon claims that the obligations under the
       guaranty agreements were satisfied by Icon’s credit bid; however, EAR’s debt to Icon is
       separate and distinct from the guaranty agreements. Also, Icon argues that even if Wyoming
       recognized the full credit bid rule, there is no precedent in any state suggesting that the rule
       would apply to the debt of EAR because EAR is not a party to the guaranty agreements. Icon
       asserts that the full credit bid rule is not meant to protect third parties such as tortfeasors or
       competing creditors like Republic Bank. Icon contends that it sued EAR under the tort theory
       of replevin, and multiple states have held that the full credit bid rule does not bar tort claims
       against third parties.
¶ 18        Further, Icon argues that its credit bid has the same result under the language of the
       guaranty agreements as it does under Wyoming law. Icon asserts that Wyoming, by statute,
       follows a “lien theory” mortgage foreclosure scheme, which states that the proceeds of a
       foreclosure sale are used to first pay expenses and attorney fees; then used to satisfy the
       obligations secured by the mortgage being foreclosed; and then distributed to junior
       lienholders. Wyo. Stat. Ann. § 34-4-113(a) (West 2010). Any remaining proceeds are paid
       to the mortgagor as a surplus, while the mortgagor remains liable for any deficiency. Wyo.
       Stat. Ann. § 34-4-113(c) (West 2010). After the property has been sold through foreclosure,
       the mortgagor has the right to redeem the real estate by paying the purchaser the amount of
       the bid, if purchased by the mortgagee under a mortgage. Wyo. Stat. Ann. § 1-18-103(a)
       (West 2010). Icon argues that the lien theory scheme binds a mortgagor to the terms of the
       initial bargain and prevents the mortgagor from redeeming the property at a deflated price
       after foreclosure. Thus, Icon claims that when it bid on the Wyoming real estate at the
       foreclosure sale, it was bidding on the Players’ obligation, as opposed to EAR’s debt. Icon

                                                  -7-
       asserts that by bidding more than $22 million, Icon was precluding the Players from being
       able to redeem their property at a lesser price. Icon argues that the fact that it made separate
       $22 million bids for each of the lots of the Wyoming real estate is further evidence that the
       credit bid extinguished only the mortgages securing the potential liability of the Players. Icon
       claims that the multiple $22 million bids also highlight that the amount of the credit bids
       bore no relationship to the value of the underlying property. Icon argues that the only
       theoretical result of the credit bid is that Icon was binding itself to the value of the Wyoming
       real estate if it thereafter pursued a deficiency claim against the Players relating to their
       mortgages. Therefore, Icon argues that the trial court erred in applying the full credit bid rule
       in this case and erred in granting summary judgment in favor of Republic Bank.
¶ 19       In response, Republic Bank first argues that the trial court did not err in granting
       summary judgment in favor of Republic Bank because the loan documents and Wyoming law
       support the court’s judgment. Specifically, Republic Bank argues that Icon’s argument is
       contradictory because Icon claimed that its credit bid was valid and enforceable when it
       obtained title to the Wyoming real estate, but the same credit bid was of no legal significance
       in reference to the remaining debt owed by EAR. Republic Bank contends that the plain and
       unambiguous language of the mortgages and guaranties supports the trial court’s judgment.
       Republic Bank points out that each of the mortgages executed by the Players and Sheldon’s
       wife, Donna Malone (Donna), contains identical language, most notably in the section which
       defines the term “Secured Debt.” The mortgages state, in pertinent part:
                “Secured Debt: to the extent not prohibited by Laws, Guarantor’s unconditional and
           absolute guaranty of the due and punctual Rent (as defined by the Guaranty) payments
           due under the Lease Documents and any other monies due or which may become due
           under the Lease documents, including those monies due as a result of any loss or damage
           to the Equipment (as defined by the Guaranty), and the due and punctual performance
           and observance by [EAR] (‘Lessee’), under the Lease Documents, of any other terms,
           covenants, and conditions of the Lease Documents on the part of Lessee to be kept,
           observed or performed, and any remedies described by the Lease Documents available
           to Mortgagee, as Lessor under the Lease, as a result of Lessee’s default under the terms
           and conditions of the Lease Documents, whether according to the present terms thereof,
           at any earlier date or dates as provided therein, or pursuant to any extension of time or
           to any change or changes in the terms, covenants and conditions thereof now or at any
           time hereafter made or granted.”
¶ 20       Republic Bank argues that under this definition, the secured debt was the same debt
       incurred by EAR under the lease. Thus, Republic Bank asserts that the plain language of the
       mortgages show that the mortgages secured EAR’s debt, as opposed to the obligations under
       the guaranty agreements. Republic Bank points out that the mortgages also authorized Icon
       to sell the mortgaged property in the event of default and authorized Icon to credit bid at the
       sale of the mortgaged property. Additionally, the mortgages stated that all sums realized at
       the sale of the mortgaged property shall be applied to the secured debt. Because Icon credit
       bid more than $22 million for the Wyoming real estate, Republic Bank argues that the full
       amount of Icon’s bid must be applied to the secured debt. Republic Bank asserts that since
       the secured debt is the same debt incurred by EAR, then Icon’s credit bid satisfied EAR’s

                                                 -8-
       debt in full.
¶ 21       Next, Republic Bank argues that although Wyoming follows a lien theory mortgage
       foreclosure scheme, Icon’s credit bid paid EAR’s debt in full. Republic Bank contends that
       Wyoming law allows for deficiency judgments against mortgagors in addition to the loss of
       the mortgaged real estate. However, Republic Bank points out that Icon did not pursue a
       deficiency judgment against EAR or any of the individuals that executed the guaranty
       agreements. Instead, Icon chose to credit bid the full amount of EAR’s debt on the Wyoming
       real estate. Republic Bank claims that under Wyoming law, Icon’s credit bid was applied in
       satisfaction of obligations secured by the mortgage being foreclosed. Thus, Republic Bank
       asserts that the proceeds of the foreclosure sale of $22,743,564.44 were credited to Icon and
       applied toward EAR’s underlying debt.
¶ 22       Additionally, Republic Bank argues that it never based its argument on the full credit bid
       rule before the trial court, and does not argue on appeal, that the rule should be applied.
       Likewise, Republic Bank claims that the trial court did not apply the rule in making its
       ruling. Republic Bank agrees with Icon and states that Wyoming does not recognize the full
       credit bid rule. Rather, Republic Bank argues that the trial court based its ruling on the fact
       that Icon bid more than $22 million at the foreclosure sale, and that applicable Wyoming
       statutes and Wyoming case law state that the proceeds of a foreclosure sale satisfy the
       mortgage debt.
¶ 23       Turning to the merits of the appeal, we determine whether the trial court erred in granting
       summary judgment in favor of Republic Bank. We review the trial court’s grant of a motion
       for summary judgment under the de novo standard of review. American Family Mutual
       Insurance Co. v. Chiczewski, 298 Ill. App. 3d 1092, 1094 (1998).
¶ 24       As recognized by both parties, the full credit bid rule is not recognized in the state of
       Wyoming. As we have determined that Wyoming law applies, we therefore will not discuss
       the construction or application of the full credit bid rule. Rather, we shall discuss the effect
       of Icon’s credit bid under Wyoming law, analyzed under the terms of the guaranty
       agreements, mortgages, and lease agreement applicable to the transaction.
¶ 25       Despite the numerous arguments presented by both parties, the seminal issue in this case
       is whether the mortgages executed by the Players secured EAR’s debt. Under Wyoming law,
       when a lender bids the full amount due to him at a foreclosure sale, the mortgage is satisfied
       and discharged. Federal Land Bank of Omaha v. Sells, 280 P. 98, 100 (Wyo. 1929); Wyo.
       Stat. Ann. § 34-4-113(a) (West 2010). A guaranty agreement is a contract to pay the debt of
       another, and is secondary to the instrument it guarantees. Belden v. Thorkildsen, 2008 WY
       148, ¶ 20, 197 P.3d 148, 154 (Wyo. 2008).
¶ 26       As Icon points out, Wyoming follows a “lien theory” mortgage foreclosure scheme which
       states that the proceeds of a foreclosure sale are used to first pay expenses and attorney fees;
       then used to satisfy the obligations secured by the mortgage being foreclosed; and then
       distributed to junior lienholders. Wyo. Stat. Ann. § 34-4-113(a) (West 2010). Any remaining
       proceeds are paid to the mortgagor as a surplus, while the mortgagor remains liable for any
       deficiency. Wyo. Stat. Ann. § 34-4-113(c) (West 2010). After the property has been sold
       through foreclosure, the mortgagor has the right to redeem the real estate by paying the


                                                 -9-
       purchaser the amount of the bid if purchased by the mortgagee under a mortgage. Wyo. Stat.
       Ann. § 1-18-103(a) (West 2010). “[T]he right to sue for a deficiency is logical to bind a
       mortgagor to the terms of the initial bargain and prevent redemption at a deflated price after
       foreclosure. “ Fitch v. Buffalo Federal Savings & Loan Ass’n, 751 P.2d 1309, 1312 (Wyo.
       1988).
¶ 27       Icon argues that guaranty agreements are separate and distinct obligations from the
       underlying debts for which they are collateral. We agree with that general principle of law.
       Icon also points out that the guaranty agreements executed by the Players in this transaction
       state that Icon’s sole and exclusive remedy against the Players is limited to the Players’
       interest in the Wyoming real estate. However, Wyoming law states that when a lender makes
       a full credit bid at a foreclosure sale, “the mortgage is satisfied and discharged.” (Emphasis
       added.) Federal Land Bank, 280 P. at 100. Thus, in addition to the language of the guaranty
       agreements, we must look to the plain language of the mortgages to determine what debt the
       mortgages secured. The mortgages executed by the Players defined the debt that they secured
       in the “Secured Debt” section of the mortgages. The mortgages state, in pertinent part:
                “Secured Debt: to the extent not prohibited by Laws, Guarantor’s unconditional and
           absolute guaranty of the due and punctual Rent (as defined by the Guaranty) payments
           due under the Lease Documents and any other monies due or which may become due
           under the Lease documents ***.”
¶ 28       Icon argues that in the phrase “Guarantor’s unconditional and absolute guaranty,” the use
       of the word “guaranty” shows that the mortgages secured the guaranty agreements executed
       by the Players, as opposed to EAR’s debt as a whole. On the other hand, Republic Bank
       argues that the mortgages state that the secured debt is the same debt as EAR’s debt to Icon.
       We agree with Republic Bank’s argument. In each of the mortgages, the term “Guaranty” is
       defined as the guaranty agreements executed by the Players. However, in the definition of
       “Secured Debt,” the phrase “Guarantor’s unconditional and absolute guaranty” uses the term
       “guaranty” in its lowercase form, as opposed to “Guaranty” in its uppercase form. Further,
       in the same sentence, the term “Guaranty” is used in the uppercase form regarding the
       definition of the term “Rent.” If the parties intended the term “guaranty” to refer to the
       guaranty agreements executed by the Players, they could have easily used the uppercase form
       of the term just as they did later in the same sentence. However, the mortgages state that the
       Secured Debt is the “unconditional and absolute guaranty of the due and punctual Rent.”
       Applying the meaning of the plain language of all the terms in this clause, it is clear that the
       Secured Debt as defined in the mortgages is the same debt that EAR owed to Icon:
       specifically, the unpaid rent for the leased equipment. Additionally, the mortgages state that
       “[a]ll sums realized by [Icon] shall be applied to the Secured Debt.” Thus, the full amount
       of Icon’s bid must be applied to the secured debt. Under Wyoming law, and by Icon’s own
       admission, the effect of a successful credit bid is to satisfy and discharge a mortgage. Thus,
       the effect of Icon’s $22 million credit bid was to satisfy and discharge the mortgages and
       guaranty agreements executed by the Players. Because the mortgages in this case secured the
       same debt that EAR owed to Icon, Icon’s $22 million credit bid satisfied EAR’s debt to Icon.
¶ 29       We acknowledge Icon’s argument that the purpose of the $22 million credit bid was to
       make sure that the Players did not redeem the Wyoming real estate at a deflated price under

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       Wyoming’s theory of lien foreclosure. While this may have been a sound and reasonable
       business strategy, the plain language of the mortgage agreements stated that they secured the
       same debt that EAR owed to Icon. If the mortgage agreements had stated that only the
       guaranty agreements executed by the Players were secured, then Icon’s strategy would have
       been successful and its claims against EAR would not have been extinguished. Unfortunately
       for Icon, based on the plain meaning of the language which the parties agreed upon when
       they entered into the mortgage agreements, EAR’s debt was satisfied.
¶ 30       Additionally, we note that Icon argues that the trial court made incorrect assumptions in
       making its ruling when it stated that the Players may have a claim against EAR for the full
       amount of Icon’s credit bid. We find the trial court comments regarding that issue to be dicta.
       Accordingly, we cannot rely on such comments as a basis for reversing the trial court’s
       judgment. Therefore, we find that the trial court did not err in granting Republic Bank’s
       motion for summary judgment.
¶ 31       For the foregoing reasons, the ruling of the circuit court of Cook County is affirmed.

¶ 32      Affirmed.




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