                                Illinois Official Reports

                                        Appellate Court



                     BMO Harris, N.A. v. Kautz, 2014 IL App (2d) 140399



Appellate Court           BMO HARRIS, N.A., formerly known as Harris, N.A., Plaintiff-
Caption                   Appellee, v. WILLIAM R. KAUTZ, KAUTZ FARM.ORG NFP,
                          PAULA KAUTZ, KAUTZ EQUIP, LTD., and UNKNOWN
                          OWNERS and NONRECORD CLAIMANTS, Defendants-
                          Appellants.


District & No.            Second District
                          Docket No. 2-14-0399


Filed                     August 22, 2014


Held                       In mortgage foreclosure proceedings for property consisting of 5.67
(Note: This syllabus acres used primarily as farmland, but with one large building
constitutes no part of the containing a show room, a lunch room area, an office, meeting rooms,
opinion of the court but a maintenance area, and an apartment used as the primary residence of
has been prepared by the the mortgagor and his family, the appellate court reversed the trial
Reporter of Decisions court’s order giving plaintiff mortgagee the presumptive right to
for the convenience of possess all of the property, except the apartment, and the right to have
the reader.)               a receiver appointed, and remanded the cause based on the findings
                           that the entire property was residential real estate, defendants had the
                           presumptive right to possession and plaintiff had the right to rebut that
                           presumption, since the property had only one dwelling unit occupied
                           by the mortgagor and should have been classified as residential real
                           estate pursuant to section 15-1219 of the Code of Civil Procedure.


Decision Under            Appeal from the Circuit Court of Kane County, No. 13-CH-2101; the
Review                    Hon. Leonard J. Wojtecki, Judge, presiding.



Judgment                  Reversed and remanded.
     Counsel on                 Patrick M. Kinnally and Michael W. Lenert, both of Kinnally,
     Appeal                     Flaherty, Krentz & Loran, P.C., of Aurora, for appellants.

                                Scott C. Frost and Daniel S. Rubin, both of Howard & Howard
                                Attorneys, PLLC, of Chicago, for appellee.


     Panel                      JUSTICE JORGENSEN delivered the judgment of the court, with
                                opinion.
                                Justices Hutchinson and Hudson concurred in the judgment and
                                opinion.


                                                   OPINION

¶1         This appeal arises out of foreclosure proceedings initiated by plaintiff, BMO Harris, N.A.
       (formerly Harris, N.A.), against defendants, William and Paula Kautz, Kautz Farm.org NFP,
       Kautz Equip, Ltd., and unknown owners and nonrecord claimants (collectively, the
       Kautzes).1 It concerns the trial court’s interlocutory order to appoint a receiver over a portion
       of the subject property as requested by BMO Harris. Because the trial court erred in giving
       BMO Harris the presumptive right to possess the property and thus the right to have a
       receiver appointed, we reverse and remand, giving the Kautzes the presumptive right to
       possess the property and giving BMO Harris an opportunity to rebut the presumption, if it so
       chooses.

¶2                                        I. BACKGROUND
¶3         According to the documentation submitted by the parties, the property at issue is located
       on Route 38 in Geneva. It consists of 5.67 acres, which are primarily used as farmland. The
       produce grown on the farmland is either consumed by the Kautzes, given to friends and
       neighbors, or donated to a local food bank. There is only one building on the property. It is a
       7,673-square-foot, L-shaped building. It contains a show room, a lunch room area, office and
       meeting rooms, and a maintenance area. The Kautzes have used the building for various
       purposes. They operate a bakery out of the first floor. They also have used the building to
       work on race cars and tractors. Finally, the building contains a 750-square-foot apartment,2
       which the Kautzes have used as their primary residence at all times relevant to this case.


             1
            The exact relationship among the various defendants is unclear from the record. Although William
       and Paula are husband and wife, only William signed the mortgage agreement. Kautz Equip, Ltd., has
       acted as a guarantor on the mortgage, and other persons or entities (some unknown) also have an
       interest in the property.

             2
            The Geneva township assessor has listed the square footage of the residence at 2,009, rather than
       750. However, the exact square footage is not relevant to this case. Rather, the fact that the Kautzes use
       a portion of the property as their primary residence is relevant.

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¶4        In 2010, the Kautzes defaulted on their mortgage. As of the maturation date, $259,000 in
     principal remained on the loan. Additionally, Kautz Equip, Ltd., which had served as a
     guarantor, was involuntarily dissolved.
¶5        As a result, in September 2013, BMO Harris initiated foreclosure proceedings against the
     Kautzes. BMO Harris also moved for the appointment of a receiver. The trial court granted
     the motion as to all portions of the property except for the living quarters, or “dwelling unit,”
     in which the Kautzes maintained their primary residence. The court’s decision was based on
     its finding that the majority of the property (excepting the dwelling unit) was nonresidential
     real estate. Where a property is nonresidential real estate, the mortgagee, here BMO Harris,
     has the presumptive right to possession and, therefore, the right to have a receiver appointed.
     735 ILCS 5/15-1701 (West 2012). This appeal followed.

¶6                                           II. ANALYSIS
¶7       The Kautzes appeal, challenging the trial court’s interpretation of the statutory term
     “residential real estate.” They argue that the foreclosure statute instructs that the entire
     property, not just the dwelling unit, should be classified as residential real estate. Therefore,
     they assert, they enjoy the presumptive right of possession. The Kautzes request that we
     remand the cause to the trial court so that BMO Harris may seek to rebut the Kautzes’
     presumptive right to possession or, otherwise, concede possession to the Kautzes. As we will
     explain, we agree that the statute defines the entire property as residential real estate, because
     the condition that would limit the residential status of the property to the dwelling unit has
     not been met.
¶8       The primary goal of statutory interpretation is to ascertain and effectuate the legislature’s
     intent in enacting the statute. People v. Marshall, 242 Ill. 2d 285, 292 (2011). The best
     indicator of legislative intent is the plain and ordinary meaning of the statute’s language. Id.
     Where the language is clear and unambiguous, we apply the statute without reading into it
     any conditions, exceptions, or limitations not expressed by the drafter. Timothy Whelan Law
     Associates, Ltd. v. Kruppe, 409 Ill. App. 3d 359, 375 (2011). We apply the statute without
     further aides of statutory construction. People v. Williams, 239 Ill. 2d 503, 506 (2011). At the
     same time, we are not bound by the plain language if it produces absurd, inconvenient, or
     unjust results. Progressive Universal Insurance Co. of Illinois v. Liberty Mutual Fire
     Insurance Co., 215 Ill. 2d 121, 134 (2005). We evaluate the statute as a whole, with each
     provision construed in connection with every other section. General Motors Corp. v. Pappas,
     242 Ill. 2d 163, 180 (2011). We review de novo a trial court’s interpretation of the statute.
     Timothy Whelan, 409 Ill. App. 3d at 375.
¶9       Here, the statute dictates as follows. Whether the presumptive right to possession belongs
     to the mortgagor or the mortgagee depends upon the property’s classification. 735 ILCS
     5/15-1701 (West 2012). If the property is classified as residential real estate, the presumptive
     right to possession belongs to the mortgagor. 735 ILCS 5/15-1701(b)(1) (West 2012). In that
     case, if the mortgagee seeks possession, it must establish: (1) good cause to possess the
     property despite the presumption; (2) authorization by the terms of the mortgage agreement
     that it may do so; and (3) a reasonable probability of prevailing on a final hearing of the
     cause. Id. If the property is classified as nonresidential real estate, the presumptive right to
     possession belongs to the mortgagee. 735 ILCS 5/15-1701(b)(2) (West 2012). If the


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       mortgagee is entitled to possession and requests a receiver, the court shall appoint one. 735
       ILCS 5/15-1702(a) (West 2012).
¶ 10        Section 15-1219 of the Code of Civil Procedure (Code) defines “residential real estate” as
       meaning:
                “[A]ny real estate, except a single tract of agricultural real estate consisting of more
                than 40 acres, which is improved with a single family residence or residential
                condominium units or a multiple dwelling structure containing single family dwelling
                units for six or fewer families living independently of each other, which residence, or
                at least one of which condominium or dwelling units, is occupied as a principal
                residence either[:] (i) if a mortgagor is an individual, by that mortgagor, that
                mortgagor’s spouse[,] or that mortgagor’s descendants, or (ii) if a mortgagor is a
                trustee of a trust or an executor or administrator of an estate, by a beneficiary of that
                trust or estate or by such beneficiary’s spouse or descendants[,] or (iii) if a mortgagor
                is a corporation, by persons owning collectively at least 50 percent of the shares of
                voting stock of such corporation or by a spouse or descendants of such persons. The
                use of a portion of residential real estate for non-residential purposes shall not affect
                the characterization of such real estate as residential real estate.” (Emphasis added.)
                735 ILCS 5/15-1219 (West 2012).
¶ 11        Section 15-1701(b)(1) of the Code limits the above definition of “residential real estate”
       for the purposes of establishing the presumptive right to possession (and the accompanying
       right to have a receiver appointed). It states that “[i]f the residential real estate consists of
       more than one dwelling unit, then for the purposes of this Part residential real estate shall
       mean only that dwelling unit or units occupied by persons described in clauses (i), (ii)[,] and
       (iii) of Section 15-1219.” (Emphases added.) 735 ILCS 5/15-1701(b)(1) (West 2012).
¶ 12        Section 15-1202.5 of the Code defines a “dwelling unit” as:
                “For the purposes of[, inter alia, section 15-1701], ‘dwelling unit’ means a room or
                suite of rooms providing complete, independent living facilities for at least one
                person, including permanent provisions for sanitation, cooking, eating, sleeping, and
                other activities routinely associated with daily life.” 735 ILCS 5/15-1202.5 (West
                2012).
¶ 13        The parties disagree as to how the above-quoted provisions should be harmonized to
       classify the instant property. Again, section 15-1219 essentially states that, so long as the
       property includes a qualifying residence, the entire property is classified as residential; “[t]he
       use of a portion of residential real estate for non-residential purposes shall not affect the
       characterization of such real estate as residential real estate.” 735 ILCS 5/15-1219 (West
       2012).3 Section 15-1701(b)(1), however, places a limitation on section 15-1219’s broad
       definition of “residential real estate” for the purposes of creating the presumptive right to
       possession in foreclosure actions. That limitation states that, where the property contains
       more than one dwelling unit, only the dwelling unit in which the mortgagor maintains his or


           3
            Of course, there are exceptions. If, for example, a primary residence is built upon more than 40
       acres of farmland, the definition does not apply. However, BMO Harris appears to concede that the
       property has been improved with a qualifying structure–the residence in which the Kautzes live–to
       make (in its view, at least a portion of) the property residential for the purposes of section 15-1219.

                                                      -4-
       her primary residence will qualify as residential real estate so as to provide the mortgagor
       with the presumptive right to possession.
¶ 14        We agree with the Kautzes that the section 15-1701(b)(1) limitation is not invoked to
       begin with, because the conditional “if,” i.e., that there be more than one dwelling unit on the
       property, was not met (“[i]f the residential real estate consists of more than one dwelling
       unit, then for the purposes of this Part residential real estate shall mean only that dwelling
       unit or units occupied by [the mortgagor]” (emphases added) (735 ILCS 5/15-1701(b)(1)
       (West 2012))).
¶ 15        Here, there is only one dwelling unit on the property. The property is improved with a
       large building that, in addition to the one dwelling unit in which the Kautzes live, contains a
       show room, meeting rooms, and a maintenance area and is used for various ventures such as
       a bakery and a vehicle service area. None of these improvements–the show room, the
       meeting rooms, the maintenance area–show the existence of more than one dwelling unit,
       equipped for independent living purposes with, as statutorily required, “permanent provisions
       for sanitation, cooking, eating, sleeping, and other activities routinely associated with daily
       life.” 735 ILCS 5/15-1202.5 (West 2012). No person aside from the Kautzes lives on the
       property, and they live in the property’s only dwelling unit.
¶ 16        The improvements within the building to which BMO Harris refers–the show room, the
       meeting rooms, the maintenance area–demonstrate that the property is used for purposes
       other than residential. However, the fact remains that the plain language of section
       15-1701(b)(1) conditions the limitation (on what can qualify as residential real estate so as to
       provide the mortgagor with the presumptive right to possession) on the presence of more than
       one dwelling unit, not more than one use. The legislature has expressly defined “dwelling
       unit.” Moreover, the legislature has expressly directed that its definition of “dwelling unit” be
       applied when considering whether section 15-1701 operates to limit the portion of residential
       real estate over which the mortgagor is given the presumptive right to possession. Here, there
       is not more than one dwelling unit. Therefore, per section 15-1701(b)(1), the condition
       limiting the definition of “residential real estate” to the unit occupied by the mortgagor does
       not apply. Rather, the general definition of residential real estate controls and, again, that
       definition states that “[t]he use of a portion of residential real estate for non-residential
       purposes shall not affect the characterization of such real estate as residential real estate.”
       735 ILCS 5/15-1219 (West 2012). Per the general definition of residential real estate, the
       property’s multipurpose use does “not affect” the categorization as residential real estate,
       and, accordingly, the entire property is residential real estate.
¶ 17        Where the entire property is residential real estate, the mortgagor has the presumptive
       right to possession. Because the property here is residential real estate, the Kautzes have the
       presumptive right to possession, and BMO Harris has the burden of establishing that: (1) it
       has good cause to possess the property despite the presumption; (2) there is authorization by
       the terms of the mortgage agreement that it may do so; and (3) it has a reasonable probability
       of prevailing on a final hearing of the cause. See 735 ILCS 5/15-1701(b)(1) (West 2012).
¶ 18        BMO Harris’s main argument, with which the trial court appears to have agreed, is that
       section 15-1701(b)(1)’s controlling phrase is “for the purposes of this Part residential real
       estate shall mean only that dwelling unit or units occupied by [the mortgagor].” 735 ILCS
       5/15-1701(b)(1) (West 2012). In BMO Harris’s view, this narrow phrase should control over
       the general definition of residential real estate set forth in section 15-1219. However, as

                                                   -5-
       discussed, BMO Harris’s desired reading does not account for the conditional “if” (i.e., “[i]f
       the residential real estate contains more than one dwelling unit, then for the purposes of this
       Part residential real estate shall mean only that dwelling unit or units occupied by [the
       mortgagor]” (emphases added)). And, in interpreting a statute, we must read each phrase in
       connection with the others. See, e.g., General Motors, 242 Ill. 2d at 180. Therefore, we reject
       BMO Harris’s assertion that the latter portion of section 15-1701(b)(1) may be read in
       isolation so as to control the outcome of this case.
¶ 19       BMO Harris next attempts to argue, for the first time on appeal, that, in any case, there is
       more than one dwelling unit on the property. For the reasons set forth above (supra ¶ 16), we
       summarily reject that argument.
¶ 20       For the aforementioned reasons, we remand this cause, classifying the entire property as
       residential real estate, giving the Kautzes the presumptive right to possession, and allowing
       BMO Harris, if it chooses, to attempt to rebut that presumption by establishing that it has
       good cause to possess the property despite the presumption, that it is authorized by the terms
       of the mortgage agreement to do so, and that there is a reasonable probability that it will
       prevail on a final hearing of the cause. We express no opinion as to BMO Harris’s ability to
       meet its burden on remand.

¶ 21                                  III. CONCLUSION
¶ 22      We reverse the trial court’s appointment of a receiver and remand for further
       proceedings.

¶ 23      Reversed and remanded.




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