                                        2014 IL App (4th) 140141-B
                                                                                                FILED
                                                                                            September 3, 2015
                                                                                               Carla Bender
                                                 NO. 4-14-0141                             4th District Appellate
                                                                                                 Court, IL
                                       IN THE APPELLATE COURT

                                                 OF ILLINOIS

                                             FOURTH DISTRICT


 CNB BANK & TRUST, N.A., f/k/a                                        )        Appeal from
 CARLINVILLE NATIONAL BANK,                                           )        Circuit Court of
               Plaintiff-Appellee,                                    )        Macoupin County
               v.                                                     )        No. 11CH175
 FRANCES A. ROSENTRETER, RICK E.                                      )
 ROSENTRETER, and DOUGLAS G.                                          )
 ROSENTRETER, as Cotrustees of the Gerald E.                          )
                                                                      )        Honorable
 Rosentreter Trust B,
                                                                      )        Patrick J. Londrigan,
               Defendants-Appellants.                                 )        Judge Presiding.


                 JUSTICE APPLETON delivered the judgment of the court, with opinion.
                 Presiding Justice Pope and Justice Harris concurred in the judgment and opinion. 1

                                                   OPINION
¶1               Plaintiff, CNB Bank & Trust, N.A., formerly known as Carlinville National Bank,

won a summary judgment on all the counts of its amended complaint, including counts IV, XIII,

XIV, and XV. Count IV sought to foreclose a mortgage on tracts 1, 2, 3, 4, 5, and 6, and counts

XIII, XIV, and XV sought replevin of some grain bins on tracts 1 and 7. (These seven tracts, all

of which are located in Macoupin County, have the following permanent index numbers: 12-

000-177-00 (tract 1), 12-000-179-00 (tract 2), 12-000-183-02 (tract 3), 12-000-186-00 (tract 4),

11-000-238-01 (tract 5), 11-000-406-01 (tract 6), and 12-000-177-01 (tract 7).)


        1
          Oral arguments on plaintiff's petition for rehearing began earlier than scheduled, and by mistake, Justice
Steigmann sat on the panel during these oral arguments, instead of Justice Harris, who actually was assigned to this
case. Nevertheless, Justice Harris arrived just as the oral arguments were beginning, and via the audio-video system
in the courthouse, he heard the oral arguments in their entirety. Immediately afterward, we informed the attorneys
of the mix-up, and they stated they had no objection.
¶2             Defendants, Frances A. Rosentreter, Rick E. Rosentreter, and Douglas G.

Rosentreter, in their capacities as cotrustees of the Gerald E. Rosentreter Trust B, appeal from

the summary judgment in plaintiff's favor on counts IV, XIII, XIV, and XV and from the denial

of their own motion for summary judgment on those counts. They also challenge other parts of

the court's judgment, but let us begin with counts IV, XIII, XIV, and XV.

¶3             The cross-motions for summary judgment on count IV raised the question of

whether the mortgagor, Frances A. Rosentreter, in her individual capacity, owned more than an

undivided 50% of tracts 1, 2, 3, 5, and 6 so as to be able to mortgage those tracts in their entirety.

Defendants claim that when Frances A. Rosentreter, in her individual capacity, signed the

mortgage in count IV, defendants themselves, in their capacities as cotrustees of the Gerald E.

Rosentreter Trust B, owned an undivided 50% of tracts 1, 2, 3, 5, and 6 and that Frances A.

Rosentreter therefore succeeded in mortgaging no more than her own undivided 50% of those

tracts. (It is undisputed that she personally owned 100% of tract 4 and therefore succeeded in

mortgaging all of that tract.) Plaintiff, on the other hand, takes the position that Frances A.

Rosentreter, in her individual capacity, owned 100% of tracts 1, 2, 3, 5, and 6 and that she

consequently mortgaged all the ownership interest in those tracts by signing the mortgage in

count IV. In our de novo review, we do not find it to be clear and free from doubt that either

plaintiff or defendants were entitled to a judgment as a matter of law on this question of the

ownership of tracts 1, 2, 3, 5, and 6.

¶4             As for the replevin counts, counts XIII, XIV, and XV, it is a moot question

whether the trial court erred by granting summary judgment in plaintiff's favor on those counts,

considering that subsequently, in its written judgment of July 26, 2013, the court held the grain

bins were fixtures and that, as such, they were to be sold as components of the real estate. This



                                                -2-
was the very holding that defendants had sought in their motion for summary judgment on

counts XIII, XIV, and XV.

¶5             In the original version of this opinion, we reached the foregoing conclusions

regarding counts IV, XIII, XIV, and XV, and we stopped short of the remaining issues in this

appeal because we did not want to fall into the error of addressing premature issues. See Steel

City Bank v. Village of Orland Hills, 224 Ill. App. 3d 412, 416 (1991) ("[C]ourts do not sit to

render advisory opinions on abstract questions of law to guide potential future litigation.").

However, after considering the arguments for and against plaintiff's petition for rehearing, we

have come to appreciate that count IV is intertwined with an additional issue in this appeal, the

apportionment of the sale price between tracts 1 and 7, in that it is a moot point whether

defendants have an ownership interest in tracts 1, 2, 3, 5, and 6 unless a surplus is created by a

reapportionment of the sale proceeds between tracts 1 and 7.

¶6             In the foreclosure sales, tracts 1 and 7 were sold together, as one unit, because a

grain elevator facility straddled those two tracts. But the owners of tracts 1 and 7 were not all the

same, and the two tracts were subject to different mortgages. Therefore, the trial court had to

decide how to apportion the sale proceeds between the two tracts after they were sold en masse.

In this appeal, defendants contend that although tracts 1 and 7 were sold en masse for a fair price,

the amount of the sale proceeds the court apportioned to tract 1 was unconscionably low.

¶7             The apportionment of the sale proceeds between tracts 1 and 7 matters for

purposes of count IV because unless a substantially greater amount of the sale proceeds is

reapportioned to tract 1 and less to tract 7, the controversy over count IV is academic and of no

practical significance. The reason is that plaintiff also won a summary judgment on counts I, II,

and III of the amended complaint—deservedly so, defendants agree—and the mortgages in



                                                -3-
counts I, II, and III pledge the same six parcels of land (tracts 1, 2, 3, 4, 5, and 6) as the mortgage

in count IV, which is junior to the mortgages in counts I, II, and III. The total amount owed on

the mortgages in counts I, II, and III exceeds, by $2,770,903.43, the total amount that tracts 1, 2,

3, 4, 5, and 6 fetched in the foreclosure sale—unless, out of the $9.1 million that tracts 1 and 7

fetched together, quite a bit more is reapportioned to tract 1, as defendants request.

¶8             Because it would be pointless to address count IV in isolation, we have granted

plaintiff's petition for rehearing insomuch as it urges us to address the apportionment of sale

proceeds between tracts 1 and 7. We agree with defendants that the trial court's apportionment

of only $151,666.67 of the sale proceeds to tract 1, out of the $9.1 million for which tracts 1 and

7 sold together, is unconscionably low. This apportionment rested on a misconception of the

law, i.e., that a forced sale was "at arm's length" and that consequently the bid for tract 1 could

not be regarded as "grossly inadequate." The court ordered that, in the public auction, tracts 1

and 7 first would be offered separately and then together and that how they ultimately would be

sold—separately or together—would depend on which method generated the higher sale

proceeds. As it turned out, the sale en masse did. After confirming the sale en masse, the court

used the separate bids as indicia of the proportional fair market values of the two tracts. A

foreclosure sale, however, is a forced sale (Deutsche Bank National v. Burtley, 371 Ill. App. 3d

1, 8 (2006)), and "it is unusual for land to bring its full, fair market value at a forced sale" (NAB

Bank v. LaSalle Bank, N.A., 2013 IL App (1st) 121147, ¶ 20). See also Horney v. Hayes, 11 Ill.

2d 178, 185 (1957) ("It has long been recognized that property does not bring its full value at

forced sales ***.").

¶9             On the basis of its erroneous assumption that bids in a foreclosure sale were

evidence of fair market value and that such bids therefore could not be considered grossly



                                                 -4-
inadequate, the trial court apportioned only $151,666.67 of the sale proceeds to tract 1 and the

remaining $8,948,333.03 to tract 7. The court's finding that these amounts reflected the fair

market value of tracts 1 and 7 is against the manifest weight of the evidence, and the

apportionment is an abuse of discretion. We remand this case with directions to reapportion the

$9.1 million between those two tracts in accordance with the valuations of an accredited rural

appraiser, Mark Akers, since his unrebutted testimony was the only probative evidence offered

on the fair market values of tracts 1 and 7. Given his testimony and his written appraisals, the

reapportionment should be $6,006,000 to tract 1 and $3,094,000 to tract 7.

¶ 10            Therefore, we reverse the trial court's judgment, and we remand this case for

further proceedings. Until defendants, as cotrustees, prove they had an ownership interest in

tracts 1, 2, 3, 5, and 6 at the time Frances A. Rosentreter, in her individual capacity, executed the

mortgage that is the subject of count IV, the remaining issues in this appeal are premature.

¶ 11                                    I. BACKGROUND

¶ 12                     A. The Amended Complaint and the Defendants

¶ 13            The amended complaint has 21 counts and names 21 defendants, 3 of whom

appeal. (It is not that there is one count devoted to each defendant; the equivalence between the

number of counts and the number of defendants is fortuitous.)

¶ 14            Counts I to XII seek foreclosure. Counts XIII to XVI seek replevin. Counts XVII

to XXI are for breach of contract.

¶ 15            Defendants (by which we mean the three defendants in this appeal) are parties

only to counts I to IV and counts XIII to XVI. Of those counts, defendants challenge only the

outcomes on counts IV, XIII, XIV, and XV—although, as we have mentioned, defendants raise

other issues, too.



                                                -5-
¶ 16                         B. The Foreclosure Counts (Count I to XII)

¶ 17            Of the 12 foreclosure counts, only count IV is at issue in this appeal.

Nevertheless, to understand some of the arguments in this appeal, it helps to have an awareness

of the nine tracts of land and the various mortgages and mortgagors to which counts I to XII

pertain. So, before going further, we will briefly summarize the foreclosure counts, counts I to

XII.

¶ 18                             1. Count I (Tracts 1, 2, 3, 4, 5, and 6)

¶ 19            On January 17, 2006, several makers issued a note in the principal amount of

$639,000 to Rabobank, N.A.            The makers were Pleasant View Farms, Inc.; Gerald E.

Rosentreter; Frances A. Rosentreter; Rick E. Rosentreter; and Amy R. Rosentreter.

¶ 20            That same day, Gerald E. Rosentreter and Frances A. Rosentreter signed a

mortgage in favor of Rabobank, in which they pledged tracts 1, 2, 3, 4, 5, and 6 as security for

the note.

¶ 21            Rabobank subsequently assigned the mortgage to Rabo Agrifinance, Inc., which

then assigned it to plaintiff (i.e., Carlinville National Bank, now known as CNB Bank & Trust,

Inc.).

¶ 22                            2. Count II (Tracts 1, 2, 3, 4, 5, and 6)

¶ 23            On September 4, 2008, Rick E. Rosentreter and Amy R. Rosentreter issued a note

to plaintiff in the principal amount of $2.5 million.

¶ 24            On the same date, Gerald E. Rosentreter and Frances A. Rosentreter, by their

agent under a power of attorney, Rick E. Rosentreter, signed a mortgage, in which they pledged

tracts 1, 2, 3, 4, 5, and 6 as security for the note.

¶ 25                            3. Count III (Tracts 1, 2, 3, 4, 5, and 6)



                                                   -6-
¶ 26            On September 4, 2008, Rick E. Rosentreter and Amy R. Rosentreter issued to

plaintiff a note in the principal amount of $1.5 million. The note said that future advances, up to

that principal amount, would be made "as needed for [the] construction of 3 new 420,000 bushel

grain bins."

¶ 27            That same day, Gerald E. Rosentreter and Frances A. Rosentreter, by their agent,

Rick E. Rosentreter, signed a mortgage pledging tracts 1, 2, 3, 4, 5, and 6 as security for the note.

¶ 28                   4. Count IV (Purporting To Mortgage Not Only Tract 4
                          But Also Tracts 1, 2, 3, 5, and 6 in Their Entirety)

¶ 29            On March 31, 2009, nine makers issued a note in the principal amount of $13.5

million to plaintiff. The makers were all limited liability companies, and on behalf of each of

these limited liability companies, an operating manager signed the note. Rick E. Rosentreter

signed for Rick Rosentreter, L.L.C., and RRDR, L.L.C. "Frances Rosentreter, Executor," signed

for Gerald E. Rosentreter, L.L.C. (Gerald E. Rosentreter died on September 10, 2008.) Matt

Weyen signed for Matt Weyen, L.L.C. Brent Rosentreter signed for RRBR, L.L.C.; Brent

Rosentreter, L.L.C.; and GRBR, L.L.C. Douglas G. Rosentreter signed for GRDR, L.L.C., and

Doug Rosentreter, L.L.C. The note added that each of these individuals personally guaranteed

the note.

¶ 30            On October 28, 2010, Frances A. Rosentreter signed a mortgage in plaintiff's

favor, without any notation that she was signing in her capacity as executor. The secured debt

was "an unlimited personal guaranty of Frances Rosentreter dated 10/28/10 to secure all debts in

the name of Illinois Family Farms." The mortgage also recited the amount of the debt: $13.5

million. (Was the note for $13.5 million "in the name of Illinois Family Farms"? The parties

assume so, and so will we.) According to this mortgage, dated October 28, 2010, the mortgaged

real estate was tracts 1, 2, 3, 4, 5, and 6.

                                                -7-
¶ 31   Paragraphs 3(A), (B), (C), (G), (I), and (K) of count IV alleged as follows:

              "3. Information concerning Mortgage:

                      (A) Nature of instrument: Mortgage.

                      (B) Date of Mortgage: October 28, 2010.

                      (C) Names       of   Mortgagors:       Frances

              Rosentreter.

                      (D) Name of Mortgagee:             Carlinville

              National Bank.

                                      ***

                      (G) Interest subject to the Mortgage: Fee

              Simple.

                      ***

                      (I) Both the legal description of the

              mortgaged real estate and the common address or

              other information sufficient to identify it with

              reasonable certainty:

                             Tract 1: [Legal description.]

                             Tract 2: [Legal description.]

                             Tract 3: [Legal description.]

                             Tract 4: [Legal description.]

                             Tract 5: [Legal description.]

                             Tract 6: [Legal description.]

                      ***



                                       -8-
                                (K) Names of present owners of said

                        premises:      Frances A. Rosentreter, Rick E.

                        Rosentreter and Douglas G. Rosentreter, as Co-

                        Trustees of the Gerald E. Rosentreter Trust B

                        established under the Gerald E. Rosentreter Trust

                        No. 1 dated August 4, 2008, as to an undivided 1/2

                        interest (Tracts 1, 2, 3, 5, and 6); Frances A.

                        Rosentreter, as Trustee under the Frances A.

                        Rosentreter Trust dated August 4, 2008, as to an

                        undivided 1/2 interest (Tracts 1, 2, 3, 5, and 6) AND

                        Frances A. Rosentreter, as Trustee under the

                        Frances A. Rosentreter Trust dated August 4, 2008

                        (Tract 4)."

¶ 32            In their "Corrected Second Amended Answer," defendants admitted paragraphs

3(A), (B), (C), (D), (G), (I), and (K) of count IV.

¶ 33                                     5. Count V (Tract 7)

¶ 34            On March 10, 2003, Rick E. Rosentreter and Amy R. Rosentreter issued a note to

plaintiff in the principal amount of $268,000.

¶ 35            On June 16, 2003, Rick E. Rosentreter and Amy R. Rosentreter signed a mortgage

in plaintiff's favor, pledging tract 7 as security for the note.

¶ 36                                     6. Count VI (Tract 7)




                                                  -9-
¶ 37            On September 4, 2008, Rick E. Rosentreter and Amy R. Rosentreter signed a

mortgage in plaintiff's favor, pledging tract 7 to secure the note in the amount of $2.5 million,

referenced in count II.

¶ 38                                   7. Count VII (Tract 7)

¶ 39            On September 4, 2008, Rick E. Rosentreter and Amy R. Rosentreter signed a

mortgage in plaintiff's favor, pledging tract 7 as security for the note in the amount of $1.5

million, referenced in count III.

¶ 40                                   8. Count VIII (Tract 7)

¶ 41            On October 28, 2010, Rick E. Rosentreter and Amy R. Rosentreter signed a

mortgage in plaintiff's favor, pledging tract 7 as security for the note in the amount of $13.5

million, referenced in count IV.

¶ 42                                    9. Count IX (Tract 8)

¶ 43            On January 17, 2006, Douglas G. Rosentreter and Cristy L. Rosentreter issued to

Rabobank a note in the principal amount of $520,000.

¶ 44            That same day, they mortgaged tract 8 to Rabobank to secure the note.

¶ 45            Rabobank assigned the mortgage to Rabo Agrifinance, which in turn assigned it

to plaintiff.

¶ 46                                    10. Count X (Tract 8)

¶ 47            On August 27, 2008, Douglas G. Rosentreter issued to plaintiff a note in the

principal amount of $1.2 million. The note said that future advances, up to that principal sum,

would be made "as needed for grain bin construction."

¶ 48            That same day, Douglas G. Rosentreter and Cristy L. Rosentreter signed a

mortgage in plaintiff's favor, pledging tract 8 as security for the note.



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¶ 49                                  11. Count XI (Tract 8)

¶ 50           On October 27, 2010, Douglas R. Rosentreter and Cristy L. Rosentreter signed a

mortgage in plaintiff's favor, pledging tract 8 to secure the note in the amount of $13.5 million,

referenced in count IV.

¶ 51                                 12. Count XII (Tract 9)

¶ 52           On October 28, 2010, Matthew Weyen signed a mortgage in plaintiff's favor,

pledging tract 9 to secure the note in the amount of $13.5 million, referenced in count IV.

¶ 53                      C. The Cross-Motions for Summary Judgment

¶ 54                                       1. Count IV

¶ 55           Plaintiff filed a motion for summary judgment on all counts of the amended

complaint, including count IV.

¶ 56           Defendants, as cotrustees of the Gerald E. Rosentreter Trust B, filed a cross-

motion for summary judgment on count IV. They contended that, in the mortgage dated October

28, 2010, Frances A. Rosentreter could not have mortgaged more than an undivided half of tracts

1, 2, 3, 5, and 6, considering that, according to plaintiff's own admission in paragraph 3(K) of

count IV, the Gerald E. Rosentreter Trust B owned the other undivided half of those tracts.

Again, paragraph 3(K) of count IV reads as follows:

                      "(K) Names of present owners of said premises: Frances

               A. Rosentreter, Rick E. Rosentreter and Douglas G. Rosentreter, as

               Co-Trustees of the Gerald E. Rosentreter Trust B established under

               the Gerald E. Rosentreter Trust No. 1 dated August 4, 2008, as to

               an undivided 1/2 interest (Tracts 1, 2, 3, 5, and 6); Frances A.

               Rosentreter, as Trustee under the Frances A. Rosentreter Trust



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               dated August 4, 2008, as to an undivided 1/2 inte[r]est (Tracts 1,

               2, 3, 5, and 6) AND Frances A. Rosentreter, as Trustee under the

               Frances A. Rosentreter Trust dated August 4, 2008 (Tract 4)."

               (Emphases added.)

¶ 57           Plaintiff, on the other hand, relied on defendants' admission of paragraph 3(G) of

count IV, which alleged: "Interest subject to the Mortgage: Fee Simple." Plaintiff argued that

by admitting Frances A. Rosentreter had a "Fee Simple" interest in tracts 1, 2, 3, 4, 5, and 6,

defendants admitted she was the full owner of those tracts.

¶ 58           The trial court granted plaintiff's motion for summary judgment on count IV and

denied defendants' cross-motion for summary judgment on that count.

¶ 59           Defendants moved for reconsideration. In their motion for reconsideration, they

requested the trial court to take judicial notice of the inventory from In re Estate of Gerald E.

Rosentreter, Macoupin County case No. 2009-P-139, showing that when Gerald E. Rosentreter

died on September 10, 2008 (the month before the signing of the mortgage in count IV), he

owned an undivided half of tracts 1, 2, 3, 5, and 6. Defendants also submitted an executor's

deed, recorded in Macoupin County on December 29, 2010, in which Frances A. Rosentreter, as

the executor of Gerald E. Rosentreter's will, conveyed an undivided half of tracts 1, 2, 3, 5, and 6

to the Gerald E. Rosentreter Trust B.

¶ 60           The trial court declined to vacate the summary judgment in plaintiff's favor on

count IV.

¶ 61                               2. Counts XIII, XIV, and XV

¶ 62           Counts XIII, XIV, and XV were replevin counts. In those counts, plaintiff sought

possession of the grain bins erected on tracts 1 and 7.



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¶ 63           Defendants moved for a summary judgment on those counts, contending that the

grain bins were fixtures rather than personal property and that replevin was a remedy limited to

personal property.

¶ 64           The trial court denied defendants' motion for a summary judgment on counts XIII,

XIV, and XV. Ultimately, however, in the judgment of foreclosure, the trial court found that the

grain bins were indeed fixtures, and the court ordered that they were to be sold as parts of the

real estate.

¶ 65                              D. The Judgment of Foreclosure

¶ 66           In a judgment entered on July 26, 2013, the trial court foreclosed the mortgages

on tracts 1 to 9 and ordered the sale of the nine tracts in a public auction.

¶ 67           One of the findings in this judgment was that, in the mortgage referenced in count

IV, Frances A. Rosentreter succeeded in pledging tracts 1, 2, 3, 4, 5, and 6 in their entirety.

¶ 68                            E. The Trial Court's Directions
                          on How Tracts 1 and 7 Were To Be Auctioned

¶ 69           Because a grain elevator facility straddled two adjacent tracts, tracts 1 and 7, it

was unclear whether selling those two tracts separately, as opposed to en masse, would fetch the

greatest amount of sale proceeds. Therefore, the trial court ordered that tracts 1 and 7 first would

be offered for sale separately and that, immediately afterward, they would be offered for sale

together. If the highest bids when they were offered separately exceeded the highest bid when

they were offered together, they would be sold separately. By the same token, if the highest bid

when they were offered together exceeded the highest bids when they were offered separately,

they would be sold together. Of course, this method of conducting the sale would be announced

to the public ahead of time.

¶ 70                                   F. The Foreclosure Sale

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¶ 71           The foreclosure sale occurred in the Macoupin County courthouse on November

8, 2013. A private auctioneer, Mike Huber, conducted the sale.

¶ 72           Huber first offered tracts 1 and 7 separately. The highest bids for them separately

were $150,000 for tract 1 and $8.85 million for tract 7: a total of $9 million. Defendants claim

that plaintiff was the one that made the bid of $150,000 for tract 1, but plaintiff claims that Jeff

Behme did so. It is undisputed that plaintiff made the bid of $8.85 million for tract 7.

¶ 73           Huber then offered tracts 1 and 7 together, and plaintiff bid $9.1 million. No one

else bid for tracts 1 and 7 en masse.

¶ 74           Thus, tracts 1 and 7 brought a higher amount of sale proceeds en masse than

separately. Separately, they brought $9 million. En masse, they brought $9.1 million.

¶ 75                 G. Plaintiff's Motions To Confirm the Foreclosure Sales
                   and To Apportion the Sale Proceeds Between Tracts 1 and 7

¶ 76           On December 12, 2013, plaintiff filed two separate motions: a "Motion for

Confirmation of Sale" and a "Motion for Apportionment of Sales Price Between Tracts 1 and 7."

¶ 77           On December 20, 2013, defendants filed a "Motion for Evidentiary Hearing With

Court Reporter." In this motion, defendants requested that the hearing on plaintiff's motions for

confirmation of the foreclosure sale and for apportionment of the sale proceeds "be scheduled as

an evidentiary hearing with a court reporter present."

¶ 78           On January 24, 2014, defendants filed a "Response to Motion for Apportionment

of Sales Price Between Tracts 1 and 7," in which they stated that $9.1 million was "not an

unreasonable value" for tracts 1 and 7 together and that they therefore did not object to plaintiff's

motion to confirm the sale.       Defendants argued, however, that, out of the $9.1 million,

apportioning only $150,000 to tract 1 (the amount of the separate bid for tract 1) would be

"grossly inadequate compared to the fair market value for Tract 1 of $5.6 million." Defendants

                                               - 14 -
further argued that "the separate bid by the Plaintiff for Tract 7 for $8,850,000 [was] grossly

inflated compared to the fair market value for Tract 7 of approximately $2,875,000." Defendants

attached to their response, as exhibits A and B, appraisals by Akers Group Appraisal Services,

Inc., which opined that the fair market value of tract 1 was $5.6 million and that the fair market

value of tract 7 was $2.875 million.

¶ 79           On January 30, 2014, the trial court held a hearing on plaintiff's motion for

confirmation of the sale and also on plaintiff's separate motion for an apportionment of the sale

price between tracts 1 and 7. Defendants reiterated their agreement with plaintiff's motion for

confirmation of the sale, and therefore the court granted that motion.

¶ 80           Defendants continued to disagree, however, with plaintiff's other motion, the

motion for an apportionment of the sale proceeds. The parties agreed, of course, that the $9.1

million from the sale of tracts 1 and7 en masse had to be apportioned between those two tracts,

but they disagreed on what that apportionment should be. Over plaintiff's objection, the trial

court allowed defendants to present evidence on this issue.

¶ 81           Defendants called two witnesses: Mark Akers and Rick E. Rosentreter. Plaintiff

called no witness. Defendants' two witnesses testified substantially as follows.

¶ 82                               1. Testimony by Mark Akers

¶ 83                                   a. His Qualifications

¶ 84           Mark Akers, the proprietor of Akers Group Appraisal Services, Inc., testified he

was a real estate appraiser licensed by the state of Illinois. The requirements for that license

were 300 hours of education, supplemented by "ongoing education courses"; a bachelor's degree;

and experience in the form of 3,000 documented hours working with a certified appraiser.




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¶ 85           Over and above his state licensure, Akers was an accredited member of the

American Society of Farm Managers and Rural Appraisers. From that professional society, he

had the designation of accredited rural appraiser. Defendants' attorney asked him:

                       "Q. And what did you have to do to become an accredited

               member of that society?

                       A. Well, the current requirements are, in addition to a

               college degree, being a certified general appraiser, 121 hours of

               additional specialized education in the rural appraisal field plus

               five years of experience in the field that's followed by a

               demonstration in an appraisal report demonstrating your abilities to

               complete an appraisal report and assignment which is reviewed by

               a panel and graded.

                       The final step is a three-day comprehensive exam.

                       Q. Okay. And would you say you have any specialization

               in the area of real estate valuation?

                       A. Yes. I specialize in appraisal of agricultural and rural

               properties and specifically the appraisal of agribusiness type

               properties."

¶ 86           Akers testified that, during his 29-year career thus far, he had done approximately

7,000 appraisals of agricultural real estate. Of those appraisals, approximately 700 were of

commercial grain elevator properties. Approximately six or seven times, he had been accepted

as an expert witness on real estate valuation.




                                                 - 16 -
¶ 87            Plaintiff's attorney, Richard L. Heavner, stated he had no objection to Akers's

qualifications to testify as an expert in real estate valuation. The trial court found him to be

qualified.

¶ 88                             b. His Inspection of Tracts 1 and 7

¶ 89            At the request of Rick E. Rosentreter and his attorney, Jason T.H. Germeraad

(who represents the other defendants as well), Akers appraised the two tracts on which a grain

elevator facility stood, tracts 1 and 7.

¶ 90            The grain elevator facility is on Illinois Route 4, about 1 1/2 miles north of

Carlinville. On November 25, 2013, Akers drove to the facility. Upon Akers's arrival, however,

the receiver, Timothy McHenry, refused to allow him to set foot on the property. Therefore,

Akers inspected the facility from the public road and from adjoining fields. He took photographs

and also referred to "the auction brochure[,] which had a fairly detailed description of the

improvements."

¶ 91                c. The Approaches Akers Used in Appraising Tracts 1 and 7

¶ 92            Akers testified he used two approaches in his valuation of tracts 1 and 7: the cost

approach and the sales comparison approach. Germeraad asked him:

                        "Q. Can you explain the cost approach briefly?

                        A. Basically, the cost approach values the land at market

                value, using market value sales of land. It estimates the value of

                the improvements in their current condition and utility. We add

                the two together which arrives at a market value indication of the

                property.

                                               ***



                                               - 17 -
                      Q. *** Can you explain the sales comparison approach?

                      A. The sales comparison approach compares similar

              facilities on a head-to-head basis of valuating differences in quality

              and condition and location and makes adjustments appropriately

              from the sale to indicate what the value of the subject is.

                      Q. Is that based on other sales of comparable grain elevator

              facilities?

                      A. It is."

¶ 93          There was a third approach to the valuation of real estate, the income approach,

which Akers did not use in this instance. Germeraad asked him:

                      "Q. Okay. And then can you explain the income approach?

                      A. The income approach, basically we go to the market.

              We find capitalization rates which are—I use a direct capitalization

              rate. In a direct capitalization, we have a sale of a property. We

              have an estimate of what its annual income is. You divide the

              annual income by the sale price.          That gives you a direct

              capitalization rate.

                      Then we take our subject property. We estimate what the

              income potential for one year is. We divide it by that rate and that

              gives us a market value."

Akers testified the reason he omitted the income approach was that McHenry had "denied [him]

the lease information. Germeraad asked Akers:




                                              - 18 -
               "Q. Okay. So of the three methods of valuation specifically

       relating to this property, which do you believe to be the most

       reliable, second most reliable, and the least reliable?

               A. Well, the heavily improved property with newer

       structures, with primarily newer structures, the cost approach is a

       reliable approach, and I felt it was probably the most applicable in

       this case, followed by the sales comparison approach.

               The income approach, had I used it, would have at best

       been support for the other two.

               Q. And why do you think the income approach would not

       be a very reliable indicator of value in this case?

               A. In the market—well, most of these types of facilities are

       owner-operated, and owner-operated income carries with it a large

       portion of business income or value from that business income

       based on the particular owner.

               So when we do an income approach, we're looking at

       leases. Lease information is frequently hard to come by for these

       facilities because of confidentiality agreements, differences in

       facilities, and locations of different facilities.

               So because of the lack of abundant lease information, I

       consider it generally less reliable."

¶ 94           d. His Opinion as to the Fair Market Values of Tracts 1 and 7

¶ 95                                  (i) Tract 1



                                         - 19 -
¶ 96           According to the appraisal by Akers admitted in evidence as exhibit A, tract 1 was

approximately 70 acres, consisting of 60 acres of cropland, 7 acres of improvements, and 3 acres

of roads or waste. Under the heading of "Property Description," Akers wrote:

                       "The grain storage on the subject consists of 3,005,000

               bushels of storage. 415,000 bushels of storage are in Grain Tank

               19. Grain Tank 19 is split by the property line. 100,000 bushels of

               storage [are] in the flat Quonset building. It is unclear if this

               building is cut by the property line. The 15,000 bushel per hour

               receiving pit and Grain leg appear[] to be completely on the

               subject property."

¶ 97           Both in his testimony and in exhibit A, Akers opined that the 70-acre parcel, tract

1, had a fair market value of $5.6 million.

¶ 98                                          (ii) Tract 7

¶ 99           According to the appraisal by Akers admitted in evidence as exhibit B, tract 7 was

approximately 10 acres and was entirely an improved plot, without any cropland. Under the

heading of "Property Description," Akers wrote:

                       "The grain storage on the subject consists of 1,484,300

               bushels of storage. 415,000 bushels of storage are in Grain Tank

               19. Grain Tank 19 is split by the property line. There is also a

               house, outbuildings and support facilities for the grain storage

               facilities. A 30,000 gallon anhydrous bottle and 4[-]way dock are

               located at the east end of the property."




                                                 - 20 -
¶ 100          In exhibit B and in his testimony, Akers opined that the 10-acre parcel, tract 7,

had a fair market value of $2.875 million.

¶ 101                            e. The Cross-Examination of Akers

¶ 102                            (i) Whether Tract 1 Had a Grain Pit

¶ 103          On cross-examination, Heavner asked Akers:

                       "Q. Did you know and did you base your appraisal of the

               70-acre tract on the fact that there's no way of getting the grain in

               or out of the grain bins? There's no grain pit on the 70-acre tract?

                       A. That was addressed in my appraisal."

¶ 104          According to Akers's appraisal of tract 1, which was admitted in evidence as

exhibit A, tract 1 actually has a "15,000 BPH [(bushel per hour)] Receiving Pit." The appraisal

includes photographs of the pit.

¶ 105          According to exhibit B, the appraisal of tract 7, that tract has, by comparison, a

"6,700 BPH Receiving Pit."

¶ 106                       (ii) Grain Bin No. 19 and the Quonset Building

¶ 107          Heavner further asked Akers:

                       "Q. Did you know that there has been no survey done but it

               is the belief of all the parties to this case that one of the grain bins

               is split in half by the property line and one of the buildings is split

               in half by the property line?

                       A. The grain bin specifically was addressed in the

               appraisal.

                       Q. The long Quonset building part of it is addressed?



                                                - 21 -
                        A. The information I had was unclear on the Quonset

                building.

                                                 ***

                        [Q.] Do you know whether or not the Quonset hut is cut in

                between the boundary lines?

                        [A.] The evidence I had put it right on the line. I didn't

                believe it was cut."

¶ 108           As we said, exhibits A and B repeatedly noted that the property line between

tracts 1 and 7 went through grain bin No. 19. As for the Quonset building, exhibit A said: "It is

unclear if this building is cut by the property line."

¶ 109                            2. Testimony by Rick E. Rosentreter

¶ 110           Rick E. Rosentreter testified he was one of the defendants in this case and that on

November 8, 2013, he went to the foreclosure sale at the Macoupin County courthouse. He

observed the auction from start to finish, and "[t]racts 1 and 7 were offered separately, and then

they were offered later as a combined, one sale together."

¶ 111           Germeraad asked him:

                        "Q. Okay. Relating to the separate sale of tract 1, do you

                recall all the bids that were made on the separate sale of tract 1?"

                        A. There was an opening bid by a third party of 100,000,

                and then the second bid was the winning bid by the plaintiffs of

                150,000.

                        Q. Okay.       And do you recall the bids that were made

                relating to the separate sale of tract 7?



                                                 - 22 -
                      A. There was only one bid made by the plaintiff for 8.85

              million.

                      Q. Okay. And then you said tracts 1 and 7 were sold

              together?

                      A. Yes.

                      Q. Do you recall the bids made on that sale?

                      A. There was only one bid made by the plaintiff in the

              amount of 9.1 million."

¶ 112         Germeraad identified exhibit C as the brochure provided at the auction. Exhibit C

was admitted in evidence.

¶ 113         On cross-examination by Heavner, Rick E. Rosentreter admitted he "got a bidding

number" before the auction began. Considering that, in Akers's opinion, tract 1 was worth $5.6

million, Heavner asked Rick E. Rosentreter why he himself did not bid $150,001 for tract 1. He

answered:

                      "A. As far as the date of sale . . .

                      Q. It speaks for.

                      A. . . . whether I was in a position to buy or whether I was

              interested in buying is my own decision.

                      Whether it's a bargain to somebody depends on what the

              reason is that they would want the elevator and I didn't want the

              real estate.

                      I'm not in a position to answer those kinds of questions.




                                                - 23 -
                       Q. Mr. Rosentreter, if it was worth $5,600,000, why

               wouldn't you have purchased it for $150,001 and turned around

               and sold it the next day for $5,600,000? You're a businessman.

                       A. That's correct.

                       [Q.] The question is why didn't you?

                       [A.] I can't. I have a conflict of interest or I would have

               sure as heck bought it I will tell you."

Again, Rick E. Rosentreter is one of the trustees of the Gerald C. Rosentreter Trust B, which,

defendants claim, has an ownership interest in tract 1. See O'Halloran v. Fitzgerald, 71 Ill. 53,

58 (1873) ("[The trustee] could not buy in an outstanding title, and set up title in himself, nor

could he buy in the land for taxes, and set up the title to defeat the title of the cestui que trust.");

George Gleason Bogert & George Taylor Bogert, The Law of Trusts and Trustees § 543(C), at

292-93 (rev. 2d ed. 1993) ("A majority of the decisions which have considered the problem have

held that it is a violation of his fiduciary duty for a trustee *** to purchase on such a forced sale

[of trust property]." (Emphasis omitted.)).

¶ 114          Heavner further asked Rick E. Rosentreter:

                       "Q. Would you agree with my estimate that there were

               probably a hundred people or more in the courtroom?

                       A. There was plenty, yes."

¶ 115          At the conclusion of the evidence, Heavner proposed distributing the $9.1 million

in sale proceeds in the same proportion as the initial bids of $150,000 for tract 1 and $8.85

million for tract 7. The initial bids totaled $9 million. The bid of $150,000 for tract 1 was

1.6666% of $9 million. By calculating 1.6666% of $9.1 million, one arrived at $151,666.67, the



                                                 - 24 -
amount of the sale proceeds to be apportioned to tract 1. The remaining $8,948,333.03 of the

sale proceeds was to be apportioned to tract 7 under Heavner's proposal.

¶ 116          Germeraad objected to this method of apportionment. He argued that, under

Heavner's proposal, the undervaluation of tract 1 would be so extreme as to be unconscionable.

Instead, Germeraad proposed apportioning the $9.1 million in sale proceeds in accordance with

ratios derived from Akers's appraisals. In Akers's opinion, tract 1 had a fair market value of $5.6

million, and tract 7 had a fair market value of $2.875 million. The total of those two figures was

$8.475 million. The fair market value of tract 1 was 66% of that total. By calculating 66% of

$9.1 million, one arrived at $6.006 million, the amount to be apportioned to tract 1. The

remaining $3.094 million was to be apportioned to tract 7 under Germeraad's proposal.

¶ 117          The trial court rejected Germeraad's proposal because the court disagreed with his

underlying premise that the bid of $150,000 for tract 1 was grossly inadequate. The court

reasoned:

                       "THE COURT: Well, they were not grossly inadequate.

               They were all done at arm's length.

                       By reading the statutes and by reading the case authority, it

               says in the absence of estate fraud, violation of the duty officer

               conducting the sale, mere inadequacy of price is not a sufficient

               reason to disturb a judicial sale.

                       Then it goes on to say mere inadequacy of price is not

               sufficient reason to disturb a judicial sale unless there were some

               other irregularities."




                                                - 25 -
The court did not find anything underhanded or fraudulent about the auction. All that defendants

had presented, it seemed to the court, was "an appraisal that [did not] agree with the sale price"—

a sale price established "at arm's length." Therefore, the court apportioned the sale proceeds in

accordance with Heavner's proposal: $151,666.67 to tract 1 and $8,948,333.03 to tract 7.

¶ 118                                     II. ANALYSIS

¶ 119                      A. Our Nondeferential Standard of Review,
                            Despite the Motion for Reconsideration

¶ 120          When parties file cross-motions for summary judgment, they agree that the case

presents only questions of law, and they invite the trial court to decide these legal questions on

the basis of the record. Pielet v. Pielet, 2012 IL 112064, ¶ 28. Obviously, the court need not

agree with the parties' assessment. A court cannot legitimately conclude, merely from the filing

of cross-motions for summary judgment, that there really is no issue of material fact or that one

party or the other really is entitled to a judgment as a matter of law. Id. The trial court must

make its own independent assessment—as must we. Our standard of review is de novo. Id. ¶ 30.

¶ 121          Just because a party requested the trial court to reconsider the summary judgment,

it does not follow that what would otherwise be a de novo standard of review is transformed into

a deferential standard of review. Granted, the cases say that when reviewing the ruling on a

motion for reconsideration, we should ask whether the trial court abused its discretion; but abuse

of discretion is "a versatile standard of review in that, depending on what the underlying issue is,

it can lead to other standards of review." Shulte v. Flowers, 2013 IL App (4th) 120132, ¶ 22.

Where, as in this case, the underlying issues are legal rather than factual, "we will proceed de

novo." Id. ¶ 24. See also O'Shield v. Lakeside Bank, 335 Ill. App. 3d 834, 838 (2002) (noting

that a "party cannot convert the de novo standard applicable to the original motion into an abuse

of discretion standard simply by asking the court to reconsider its previous ruling"). "A trial

                                               - 26 -
court order granting summary judgment presents a question of law, which we review de novo."

Feliciano v. Geneva Terrace Estates Homeowners Ass'n, 2014 IL App (1st) 130269, ¶ 30. The

nature of the question does not change simply because defendants filed a motion for

reconsideration. See O'Shield, 335 Ill. App. 3d at 838.

¶ 122                              B. Count IV: Foreclosure

¶ 123          When a party files a motion for summary judgment, the question is whether "the

pleadings, depositions, and admissions on file, together with the affidavits, if any, show that

there is no genuine issue as to any material fact and that the moving party is entitled to a

judgment as a matter of law." 735 ILCS 5/2-1005(c) (West 2012). That is the question in the

trial court, and that it also is the question on appeal. In answering that question, "[t]he court

must construe the pleadings, depositions, admissions and affidavits strictly against the moving

party and liberally in favor of the respondent." Feliciano, 2014 IL App (1st) 130269, ¶ 30.

¶ 124          As we said, plaintiff sought a summary judgment on count IV. In its motion for

summary judgment, plaintiff took the position that Frances A. Rosentreter had succeeded in

mortgaging 100% of tracts 1, 2, 3, 4, 5, and 6 when she signed the mortgage on October 28,

2010.

¶ 125          Defendants filed a cross-motion for summary judgment on count IV. They sought

a summary judgment that although Frances A. Rosentreter had succeeded in mortgaging 100% of

tract 4, she had succeeded in mortgaging only her undivided 50% of tracts 1, 2, 3, 5, and 6,

considering that, at the time she signed the mortgage, they, as the cotrustees of the Gerald E.

Rosentreter Trust B, owned the other undivided 50% of those tracts. See Cadle Co. II v.

Stauffenberg, 221 Ill. App. 3d 267, 269 (1991); Miles Homes Inc. of Illinois v. Lyons, 8 Ill. App.

3d 179, 181 (1972).



                                              - 27 -
¶ 126          We first will scrutinize plaintiff's motion for summary judgment on count IV, and

then we will scrutinize defendants' cross-motion for summary judgment on count IV.

¶ 127          On appeal, plaintiff argues that because defendants admitted paragraph 3(G) of

count IV of the amended complaint, there was no genuine issue as to whether Frances A.

Rosentreter owned 100% of tracts 1, 2, 3, 5, and 6 when she signed the mortgage on October 28,

2010, and hence plaintiff was entitled to a judgment as a matter of law on count IV.

¶ 128          Paragraph 3(G) of count IV, which defendants admitted, alleged as follows:

"Interest subject to the Mortgage:     Fee Simple."    Plaintiff reasons that, under section 15-

1504(a)(3)(G) of the Illinois Mortgage Foreclosure Law (735 ILCS 5/15-1504(a)(3)(G) (West

2012)), the term "fee simple" is alternative to and exclusive of the term "undivided interest."

According to that section, the "foreclosure complaint" must set forth "[i]nformation concerning

[the] mortgage," including the "[i]nterest subject to the mortgage," and then, in parentheses, the

section instructs the pleader to "here insert whether fee simple, estate for years, undivided

interest, etc." Id. Plaintiff argues that if the drafter of a foreclosure complaint chooses one of

these parenthetical descriptive terms, "fee simple," the drafter cannot also choose another of the

terms, such as "undivided interest."

¶ 129          In our de novo interpretation of this statute (Adams v. Northern Illinois Gas Co.,

211 Ill. 2d 32, 43 (2004); Country Mutual Insurance Co. v. State Farm Mutual Automobile

Insurance Co., 339 Ill. App. 3d 78, 81 (2003)), we see no reason to regard "fee simple" as

exclusive of "undivided interest." The statute does not say those two terms are exclusive of one

another, and in the common law of Illinois, there is no dichotomy between ownership in fee

simple and ownership of an undivided share. See, e.g., Baker v. Forsuman, 15 Ill. 2d 353, 362

(1958) ("[T]he defendants are the owners in fee simple of an undivided 1/10 of the property.



                                              - 28 -
The plaintiffs are each the owners in fee simple of an undivided 1/9 of the remaining 9/10.");

Brod v. Brod, 390 Ill. 312, 326 (1945) ("The decrees appealed from are affirmed in so far as they

declare that appellee and appellant are each vested with an undivided one-half interest in fee

simple as joint tenants ***."); Grubmeyer v. Mueller, 385 Ill. 529, 537 (1944) ("[U]pon her death

the appellees became the owners in fee simple of an undivided one-half of the land in

controversy ***.").

¶ 130          "[W]ords and phrases having well-defined meanings in the common law are

interpreted to have the same meanings when used in statutes dealing with the same or similar

subject matter as that with which they were associated at common law." Scott v. Dreis & Krump

Manufacturing Co., 26 Ill. App. 3d 971, 983 (1975). The supreme court has adopted the

meaning of "fee simple" set forth in two classic treatises on the common law: Blackstone's

Commentaries and Kent's Commentaries. The supreme court cited those two treatises in Woods

v. Seymour, 350 Ill. 493, 497 (1932), when explaining why the deed in that case conveyed a

lesser estate than fee simple:

               "The language of the grant *** did not import an estate in fee

               simple, which is a pure inheritance, clear of any qualification or

               conditions, and must be given or granted generally, absolutely and

               simply. (2 Blackstone's Com. 104; 4 Kent's Com. 5.)"

¶ 131          The cited page of Blackstone says, in part:

                       "I. Tenant in fee-simple (or, as he is frequently styled,

               tenant in fee) is he that hath lands, tenements, or hereditaments, to

               hold to him and his heirs forever; generally absolutely, and simply;

               without mentioning what heirs, but referring that to his own



                                              - 29 -
               pleasure, or to the disposition of the law." (Emphasis in original.)

               2 William Blackstone, Commentaries on the Laws of England, at

               104 (1857).

¶ 132          The cited page of Kent says, in part:

                      "1. Fee Simple is a pure inheritance, clear of any

               qualification or condition, and it gives a right of succession to all

               the heirs generally, under the restriction that they must be of the

               blood of the first purchaser, and of the blood of the person last

               seised. (a) It is an estate of perpetuity, and confers an unlimited

               power of alienation, and no person is capable of having a greater

               estate or interest in land.    Every restraint upon alienation is

               inconsistent with the nature of a fee simple; and if a partial

               restraint be annexed to a fee, as a condition not to alien for a

               limited time, or not to a particular person, it ceases to be a fee

               simple, and becomes a fee subject to a condition." 4 James Kent,

               Commentaries on American Law, at 5 (14th ed. 1896).

¶ 133          In sum, then, "[a] 'fee simple' is an estate of inheritance without condition,

belonging to the owner, and alienable by him or her or transmissible to his or her heirs absolutely

and simply." 18 Ill. L. and Prac. Estates § 5, at 10 (2003) (citing Woods, 350 Ill. 493).

Regardless of whether a person owns the north 50 acres of Blackacre or an undivided 50% of

Blackacre, that person has a fee simple if his or her ownership is unconditional, in perpetuity,

and with an absolute power to alienate and devise the property. That an undivided share of land

can be owned in fee simple is evident from Blackstone's comment that "hereditaments" can be



                                              - 30 -
owned in fee simple. An undivided ownership interest in land can be a hereditament (it can be

inherited); therefore, it can be owned in fee simple.

¶ 134          Thus, we disagree that by admitting the mortgagor, Frances A. Rosentreter, had a

fee-simple interest in tracts 1, 2, 3, 5, and 6, defendants admitted she owned 100% of those

tracts.

¶ 135          Granted, paragraph 3(I) of count IV—a paragraph which defendants likewise

admitted—alleged that tracts 1, 2, 3, 4, 5, and 6 were "the mortgaged real estate." But that

allegation would be true even if Frances A. Rosentreter had mortgaged only an undivided

percentage of those tracts. If indeed she owned an undivided percentage, something less than

100%, it would be impossible to say that any particular acreage or footage of those tracts was

free of the mortgage. Assume, for instance, that a cotenant, owning an undivided 50% of

Blackacre, pledges Blackacre as security for a loan. As a result, Blackacre, not any particular

area of Blackacre, would become "mortgaged real estate"—but the mortgage would extend only

to the cotenant's undivided percentage of ownership (Cadle, 221 Ill. App. 3d at 269).

¶ 136          So, when we construe paragraphs 3(G) and (I) of count IV strictly against plaintiff

and liberally in favor of defendants (see Feliciano, 2014 IL App (1st) 130269, ¶ 30), plaintiff's

right to a summary judgment that Frances A. Rosentreter, individually, owned 100% of tracts 1,

2, 3, 5, and 6 is not "clear and free from doubt" (Northern Illinois Emergency Physicians v.

Landau, Omahana & Kopka, Ltd., 216 Ill. 2d 294, 306 (2005)). Just because the "[i]nterest

subject to the [m]ortgage" was "[f]ee [s]imple" and just because tracts 1, 2, 3, 5, and 6 were "the

mortgaged real estate," it does not necessarily follow that by signing the mortgage in count IV,

Frances A. Rosentreter succeeded in mortgaging the full ownership interest in those tracts as

opposed to an undivided percentage of each of them.



                                               - 31 -
¶ 137          Having determined, on the basis of the pleadings, that plaintiff was not entitled to

a judgment as a matter of law that Frances A. Rosentreter owned 100% of tracts 1, 2, 3, 5, and 6

when she signed the mortgage in count IV, we next address the question of whether defendants

were entitled to a judgment as a matter of law that she owned only an undivided half of tracts 1,

2, 3, 5, and 6 when she signed the mortgage.

¶ 138          Defendants relied on paragraph 3(K) of count IV, which identified them, the

trustees of the Gerald E. Rosentreter Trust B, as the "present owners" of "an undivided 1/2

interest (Tracts 1, 2, 3, 5, and 6)" and Frances A. Rosentreter, the trustee of the Frances A.

Rosentreter Trust, as the "present owner[]" of the other undivided half interest in those tracts.

Defendants argue that, by plaintiff's own admission in paragraph 3(K) of count IV, Frances A.

Rosentreter, in her individual capacity (or in her capacity as the trustee of the trust bearing her

name), owned no more than an undivided half of tracts 1, 2, 3, 5, and 6 and hence was incapable

of mortgaging more than an undivided half of those tracts. (Frances A. Rosentreter was the

executor of Gerald E. Rosentreter's will when she signed the mortgage of October 28, 2010, but

the parties appear to agree she signed the mortgage only in her individual capacity, not in her

capacity as executor.)

¶ 139          Plaintiff counters that because paragraph 3(K) identifies only the "present

owners" of tracts 1, 2, 3, 5, and 6—that is, the persons who owned those tracts on May 7, 2012,

when plaintiff filed its amended complaint—paragraph 3(K) does not negate Frances A.

Rosentreter's full ownership of those tracts earlier, at the time she signed the mortgage, on

October 28, 2010. We agree. When we construe paragraph 3(K) strictly against defendants and

liberally in favor of plaintiff (see Feliciano, 2014 IL App (1st) 130269, ¶ 30), defendants' right to

a partial summary judgment on count IV is not "clear and free from doubt" (Northern Illinois



                                               - 32 -
Emergency Physicians, 216 Ill. 2d at 306), because paragraph 3(K) identifies only the "present

owners" of tracts 1, 2, 3, 5, and 6 and says nothing about who owned the tracts on October 28,

2010, when Frances A. Rosentreter signed the mortgage referenced in count IV.

¶ 140          We realize that, in their motion for reconsideration, defendants presented

additional evidence to the trial court. But the trial court was not obliged to consider it. See

Gardner v. Navistar International Transportation Corp., 213 Ill. App. 3d 242, 248 (1991) ("Trial

courts should not permit litigants to stand mute, lose a motion, and then frantically gather

evidentiary material to show that the court erred in its ruling.").

¶ 141                         C. Counts XIII, XIV, and XV: Replevin

¶ 142          Defendants have an ownership interest in tract 1 but not in tract 7. Nevertheless,

a grain elevator facility, including 20 grain bins linked together by conveyor belts, straddles

tracts 1 and 7, with the property line running through grain bin No. 19.

¶ 143          In counts XIII to XV of the amended complaint, plaintiff sought to enforce a

security interest in these grain bins. Count XIII requested possession of the grain bins on tract 1,

and counts XIV and XV requested possession of the grain bins on tract 7.

¶ 144          Each of these three counts was entitled "Complaint for Replevin," and each of

these counts characterized itself as a "replevin action" and requested "possession of the

"collateral," i.e., the grain bins. Because replevin is an action for the recovery of "goods or

chattels" (735 ILCS 5/19-101 (West 2012)) and because defendants regard the grain bins as

fixtures rather than goods or chattels (but see Lindstrom v. Houzenga, 177 Ill. App. 3d 1, 3

(1988) (question of fact whether grain bins were personal property or fixtures)), defendants

contend the trial court erred by granting summary judgment in plaintiff's favor on counts XIII to

XV and denying summary judgment in their favor on those counts.



                                                - 33 -
¶ 145          On July 26, 2013, however, after entering the summary judgment, the trial court

entered a more detailed written judgment, which specifically found that, for purposes of counts

XIII to XV, the grain bins actually were "fixtures" and that, as such, they were "part" of the tracts

on which they stood. Therefore, under the heading of "Judgment[:] Count XIII," the court

decreed that the grain bins on tract 1 would be "sold as part of said real estate pursuant to the

terms of the Judgment of Foreclosure and Sale As to Counts I, II, III and IV." Likewise, under

the headings of "Judgment[:] Count XIV" and "Judgment[:] Count XV," the court decreed that

the grain bins on tract 7 would be "sold as part of said real estate pursuant to the terms of the

Judgment of Foreclosure And Sale As To Counts V, VI, VII and VIII of Plaintiff's Amended

Complaint."

¶ 146          Thus, plaintiff argues that, under the written judgment of July 26, 2013, "the

Defendant's allegations and relief sought are moot, as it is clear the grain bins are part of the real

estate." We agree.

¶ 147                  D. The Asserted Waiver or Mootness of the Question
                          of What Tracts 1 and 7 Were Worth Separately

¶ 148          Plaintiff argues that the trial court never determined, and never was asked to

determine, the fair market value of any property and that in the evidentiary hearing on

apportioning the sale proceeds between tracts 1 and 7, "the fair market value of the subject

property was not at issue as the sales had been confirmed," with the agreement of defendants.

Thus, plaintiff concludes, "the Defendants' claims [regarding the fair market values of tracts 1

and 7] are improperly before this Court and should be deemed moot."

¶ 149          This reasoning is unconvincing.       Clearly, defendants asked the trial court to

determine the fair market values of tracts 1 and 7 for the purpose of apportioning the $9.1 million

in sale proceeds between those tracts. That was the whole point of submitting Akers's appraisals

                                                - 34 -
of those tracts and calling him to testify. And we disagree that by agreeing to a confirmation of

the sale en masse of tracts 1 and 7, defendants relinquished any issue as to the individual fair

market values. To say that two pieces of land are worth a certain undifferentiated amount

together does not answer the question of how much they each are worth. Defendants could agree

with plaintiff that $9.1 million is a fair price for tracts 1 and 7 together without agreeing with

plaintiff's proposed apportionment of that amount between the two tracts.             Again, plaintiff

simultaneously filed two separate motions: a motion to confirm the sale and a motion to

apportion $151,666.67 of the sale proceeds to tract 1 and the remaining $8,948,333.03 to tract 7.

Defendants agreed with the first motion while opposing the second.

¶ 150                        E. The Apportionment of the Proceeds
                           From the Foreclosure Sale of Tracts 1 and 7

¶ 151          Because the grain elevator facility straddled two adjoining tracts, tracts 1 and 7,

the trial court ordered that those two tracts first be offered for sale separately and then be offered

for sale together and that if they fetched a higher total bid separately, they would be sold

separately, but if they fetched a higher bid together, they would be sold together.

¶ 152          The foreclosure sale was held on November 8, 2013. When tracts 1 and 7 were

offered for sale separately, the highest bid for tract 1 was $150,000. (On January 30, 2014, in a

hearing on the apportionment of the sale proceeds, Rick E. Rosentreter testified that the highest

bidder for tract 1 was plaintiff, but the report of sale says the highest bidder was a third party,

Jeff Behme. It is unclear that the report of sale is, properly speaking, evidence. In any event, the

identity of the bidder on tract 1 is insignificant to our decision.) The highest bid for tract 7 was

$8.85 million, and this was a bid by plaintiff. When tracts 1 and 7 were offered for sale together,

the highest bid was $9.1 million, and it was a bid by plaintiff. Because the bid for tracts 1 and 7

when they were offered together exceeded the total of the bids for the tracts when they were

                                                - 35 -
offered separately ($9.1 million compared to $9 million), tracts 1 and 7 were sold together, in

accordance with the court's order.

¶ 153          The Illinois Mortgage Foreclosure Law (735 ILCS 5/15-1101 to 15-1706 (West

2012)) does not directly say how the sale proceeds should be apportioned when different tracts of

land are sold en masse. Nevertheless, as we will explain, it is possible to arrive at an answer to

this question by reasoning from section 15-1508(b) (735 ILCS 5/15-1508(b) (West 2012)). We

interpret this statute de novo. LaSalle Bank National Ass'n v. Cypress Creek 1, LP, 242 Ill. 2d

231, 237 (2011).

¶ 154          Section 15-1508(b) provides in part:

                      "(b) Hearing. Upon motion and notice in accordance with

               court rules applicable to motions generally, which motion shall not

               be made prior to sale, the court shall conduct a hearing to confirm

               the sale.   Unless the court finds that (i) a notice required in

               accordance with subsection (c) of Section 15-1507 [(735 ILCS

               5/15-1507(c) (West 2012))] was not given, (ii) the terms of sale

               were unconscionable, (iii) the sale was conducted fraudulently, or

               (iv) justice was otherwise not done, the court shall then enter an

               order confirming the sale." 735 ILCS 5/15-1508(b) (West 2012).

¶ 155          The statute speaks of "the terms of sale." One of "the terms of sale" is the

purchase price. World Savings & Loan Ass'n v. Amerus Bank, 317 Ill. App. 3d 772, 780 (2000).

When several tracts of land are sold en masse, there is a single purchase price. And sometimes,

because of overlapping improvements or the scarcity of points of entry, tracts of land should be




                                              - 36 -
sold en masse to fetch the highest purchase price. Stone v. Missouri Guarantee Savings &

Building Ass'n, 58 Ill. App. 78, 80 (1894).

¶ 156          But a dilemma could arise. Obtaining only one purchase price for a group of

parcels could be problematic because the purpose of a foreclosure is to enforce the payment of

the mortgagor's debt (Resolution Trust Corp. v. Hardisty, 269 Ill. App. 3d 613, 616 (1995)), and

the landowners and the secured debts could be different from one parcel to another (Brown v.

Kennicott, 30 Ill. App. 89, 90 (1889)).

¶ 157          One possible solution to this problem is to do as the trial court ordered in this

case.   Give the public advance notice that the tracts of land first will be offered for sale

separately and that they afterward will be offered for sale en masse and that, when they are

offered en masse, if the highest bid exceeds the total of the highest bids made when the tracts

were offered separately, they will be sold en masse, whereas if the total of the highest bids when

they are offered separately exceeds the highest bid made when they are offered en masse, they

will be sold separately. See Union Trust Co. of New York v. Illinois Midland Ry. Co., 117 U.S.

434, 474 (1886). If the tracts of land are sold en masse, the sale proceeds could be "divided into

*** parts, in proportion to the amounts bid separately on the *** constituent parts, and

distributed *** in the same manner as if the *** constituent parts had been sold separately." Id.

at 474-75.

¶ 158          But what if the highest bid for one of the "constituent parts"—in this case, one of

the tracts of land—is unconscionably low even though the winning bid for the tracts en masse is

quite ample? It is an abuse of discretion to confirm a judicial sale if "the terms of sale were

unconscionable." 735 ILCS 5/15-1508(b) (West 2012); see Parkway Bank & Trust Co. v.

Korzen, 2013 IL App (1st) 130380, ¶ 15; Deutsche Bank National Trust Co. v. Snick, 2011 IL



                                              - 37 -
App (3d) 100436, ¶ 10. One of "the terms of sale" is the purchase price. World Savings, 317 Ill.

App. 3d at 780. Defendants did not object to the purchase price for tracts 1 and 7 en masse.

They had no reason to do so, considering that $9.1 million exceeded Akers's estimate of the fair

market value of tracts 1 and 7 ($5,600,00 + $2.875 million = $8.475 million). Nevertheless,

even though the sale proceeds from tracts of land sold en masse are in a conscionable amount,

section 15-1508(b)(ii) (735 ILCS 5/15-1508(b)(ii) (West 2012)) could be subverted by an

unconscionable apportionment of the sale proceeds between the tracts of land sold en masse.

¶ 159          To a mortgagor of tract 1, there is no practical difference between, on the one

hand, a sale of tract 1 for only 2.7% of its fair market value and, on the other hand, an

apportionment of that amount to tract 1 from a sale en masse. The amount the trial court

apportioned to tract 1, $151,666.67, was only 2.7% of the fair market value that Akers had

placed upon tract 1, $5.6 million.     The 2.7% of fair market value, if it would have been

unconscionably low in a separate sale, would not somehow be sanitized by a conscionable sale

price en masse.

¶ 160          Granted, in the absence of mistake, fraud, or a violation of duty by the officer

conducting the sale, a trial court should not refuse to confirm a judicial sale merely because the

proposed sale price is less than the fair market value of the property. World Savings, 317 Ill.

App. 3d at 780. It is only to be expected that a forced sale will bring less than the fair market

value. Levy v. Broadway-Carmen Building Corp., 366 Ill. 279, 288 (1937). Even so, a court

abuses its discretion by confirming a sale when the proposed sale price is "grossly inadequate"

and therefore unconscionable. Id. at 289; see Korzen, 2013 IL App (1st) 130380, ¶ 15. Case law

declines to set down a generally applicable percentage of fair market value below which a sale

price is unconscionable. Moeller v. Miller, 315 Ill. 454, 459-60 (1925). We note, however, that



                                              - 38 -
the appellate court has held approximately 10% of the fair market value to be unconscionable.

JP Morgan Chase Bank v. Fankhauser, 383 Ill. App. 3d 254, 265 (2008). We conclude that

2.7% is unconscionable.

¶ 161          Just as it would have been an abuse of discretion to confirm a judicial sale of tract

1 for only 2.7% of its fair market value, so was it an abuse of discretion to apportion to tract 1

sale proceeds amounting to only 2.7% of its fair market value when the sale price for the two

tracts together exceeded their combined fair market values.

¶ 162          Plaintiff argues, however, that an arm's length transaction validated the offer of

$150,000 that plaintiff made for tract 1 (the offer on which the apportionment of $151,666.67

was based). Plaintiff writes: "As the Plaintiff was a willing seller and there were many willing

buyers, the sales price yielded at the auction on November 8, 2013, is the best indicator of the

fair market value.    As a result, the judge's decision to use the arm's length transaction in

apportioning the sales price was not against the manifest weight of the evidence."

¶ 163          We see five problems with this argument by plaintiff. First, to be the seller of

tracts 1 and 7, plaintiff had to own them. The mortgagors retained title to tracts 1 and 7 until the

trial court entered the order confirming the foreclosure sale and issued the deeds to the purchaser,

i.e., plaintiff. See Kling v. Ghilarducci, 3 Ill. 2d 454, 460 (1954).

¶ 164          Second—a related point—plaintiff could not possibly be both the seller and the

buyer of tracts 1 and 7. When speaking of an arm's length transaction between a willing seller

and a willing buyer as being the best evidence of fair market value (Walsh v. Property Tax

Appeal Board, 181 Ill. 2d 228, 230 (1998)), the supreme court surely had in mind two different

persons. It is difficult to visualize the contortions of having an arm's length negotiation with

oneself.



                                                - 39 -
¶ 165          Third, even when the seller and the buyer at a foreclosure sale are different

persons, the property typically sells for less than it is worth. "It is unusual for land to bring its

full, fair market value at a forced sale." Levy, 366 Ill. at 288; see also Nevada National Leasing

Co. v. Hereford, 680 P.2d 1077, 1080 (Cal. 1984); Guardian Loan Co. v. Early, 392 N.E.2d

1240, 1244 (N.Y. 1979); Scott B. Ehrlich, Avoidance of Foreclosure Sales as Fraudulent

Conveyances: Accommodating State and Federal Objectives, 71 Va. L. Rev. 933, 964 n.91

(1985). That, indeed, is the attraction of foreclosure sales. In re Superintendent of Banks of

State of New York, 100 N.E. 428, 429 (N.Y. 1912). It is precisely because foreclosure sales tend

to bring less than the fair market value that the legislature has provided a right of redemption.

One of the purposes of the Illinois Mortgage Foreclosure Law is "to protect the equity of a

mortgagor by permitting mortgage redemptions prior to forced sales," thereby enabling the

mortgagor (if it has sufficient funds) to avoid "the forced sale of property at prices well below

fair market value." (Emphases added.) Fleet Mortgage Corp. v. Deale, 287 Ill. App. 3d 385,

389 (1997). If, as plaintiff argues, the price a property fetched at a foreclosure sale were ipso

facto the fair market value of the property, that legislative purpose would be superfluous.

¶ 166          Fourth, "[t]he fair market value of property is the amount of money that a

purchaser, willing but not obligated to buy the property, would pay an owner, willing but not

obligated to sell the property, without taking into account the values or necessities peculiar to

either party." (Emphasis added.) Hewitt v. Hurwitz, 227 Ill. App. 3d 616, 622 (1992). The

owners of tracts 1 and 7 were not willing to sell those tracts; rather, they were judicially

compelled to do so. Therefore, the foreclosure sale has no tendency to prove the fair market

values of tracts 1 and 7.




                                               - 40 -
¶ 167          Fifth, if a foreclosure sale determined the fair market value of the property, the

very term "unconscionable purchase price" would be a self-contradiction. And yet, according to

the case law, there is indeed such a thing as a grossly inadequate and therefore unconscionable

purchase price in a foreclosure sale. Levy, 366 Ill. at 288; Fankhauser, 383 Ill. App. 3d at 265.

Logic would suggest, then, that the price a property fetches in a foreclosure sale is not conclusive

on the question of what is the property's fair market value.

¶ 168          For those reasons, it is incorrect to regard plaintiff's (or, as the case may be,

Behme's) bid of $150,000 for tract 1 as evidence of that property's fair market value.

¶ 169          But plaintiff disputes that the appraisals by Akers are a more reliable valuation.

Plaintiff claims that his appraisals are "incomplete as [he] conceded that he did not use the

income approach when appraising this commercial property and that he was not aware certain

structures straddled the property lines."

¶ 170          We are aware of no authority for the idea that an appraisal necessarily is

incomplete if it omits the income approach. Plaintiff cites no case laying down a general rule

that the income approach is the sine qua non of a valid appraisal. Rather, case law prefers the

sales comparison approach (Kraft Foods, Inc. v. Illinois Property Tax Appeal Board, 2013 IL

App (2d) 121031, ¶ 43; United Airlines, Inc. v. Pappas, 348 Ill. App. 3d 563, 572 (2004)), which

Akers used. And he supplemented the sales comparison approach with the cost approach.

"Professional appraisals generally employ more than one method to determine valuation; the use

of more than one method in a single appraisal serves as a check on the value reached by the other

method or methods." Cook County Board of Review v. Property Tax Appeal Board, 384 Ill. App.

3d 472, 480 (2008). Akers did that: he used two approaches.




                                               - 41 -
¶ 171          Granted, there would have been no harm in including a third approach, the

income approach, but unless "the property [was] most valuable as rental property," the income

approach would have had only marginal relevance. Willow Hill Grain, Inc. v. Property Tax

Appeal Board, 187 Ill. App. 3d 9, 14 (1989); see also Chrysler Corp. v. Illinois Property Tax

Appeal Board, 69 Ill. App. 3d 207, 211 (1979). The record appears to contain no evidence that

tracts 1 and 7 were most valuable as rental property.            Rather, Akers testified that most

commercial grain elevators were owner-operated (and therefore, it would seem, not rented out to

others).

¶ 172          In short, the omission of the income approach is insignificant. As for plaintiff's

other criticism of Akers's appraisals—that they disregard structures divided by the property

line—Akers repeatedly notes, in his written appraisals, that the property line between tracts 1 and

7 runs through grain bin No. 19. He further notes the possibility that the property line also

divides the Quonset building: "It is unclear if this building is cut by the property line," he writes.

We are aware of no other structures that are, or might be, divided by the property line. Thus,

neither of the criticisms that plaintiff levels against Akers's appraisals appears to be valid.

¶ 173          At least Akers's appraisals have the virtue of making sense, whereas apportioning

only $151,666.67 of the sale proceeds to tract 1 and the remaining $8,948,333.30 to tract 7 is

incomprehensible, given what the appraisals reveal about those two tracts. Tract 1 consists of 70

acres, whereas tract 7 consists of 10 acres. Tract 1 has 3.005 million bushels of grain storage,

whereas tract 7 has 1,484,300 bushels of grain storage. Tract 1 has a 15,000-bushel-per-hour

receiving pit, whereas tract 7 has a 6,700-bushel-per-hour receiving pit. When one compares

these physical characteristics of the two tracts, it is unclear why tract 7 would be worth 59 times

more than tract 1, which is the ratio in which the trial court apportioned the sale proceeds. We



                                                - 42 -
are limited to the evidence in the record, and given that evidence, such an extreme disparity

makes no sense.

¶ 174            We conclude, then, that the trial court should have apportioned the sale proceeds

in accordance with Akers's unrebutted appraisals of tracts 1 and 7. As an accredited rural

appraiser with extensive experience in the valuation of commercial grain elevator facilities, he

valued tract 1 at $5.6 million and tract 7 at $2.875 million. The sum of those two amounts was

$8.475 million. The fair market value of tract 1 was 66% of that sum ($5.6 million divided by

$8.475 million times 100). The actual sale proceeds from the sale en masse were $9.1 million.

Of those actual sale proceeds, the court should have apportioned $6.006 million to tract 1 ($9.1

million times 0.66) and the remaining $3.094 million to tract 7 ($9.1 million minus $6.006

million). The finding that the foreclosure sale bids proved the property's fair market value was

contrary to case law and against the manifest weight of the evidence (see Hewitt, 227 Ill. App. 3d

at 622), and apportioning only $151,666.67 of the sale proceeds to tract 1 was an abuse of

discretion (cf. Household Bank, FSB v. Lewis, 229 Ill. 2d 173, 178 (2008) (standard of review

applicable to the confirmation of a foreclosure sale)).

¶ 175                              F. Forfeiture of Arguments
                               Made for the First Time, on Rehearing

¶ 176            We have addressed all the arguments that plaintiff made in its initial brief, the

brief with the blue cover. We note that plaintiff has added some new arguments in its petition

for rehearing.     For example, plaintiff argues that by consenting to a confirmation of the

foreclosure sales, defendants waived their right to appeal the summary judgment on count IV,

and plaintiff argues that if we reverse the trial court's apportionment of the sale proceeds between

tracts 1 and 7, plaintiff deserves another evidentiary hearing to present its own evidence on the

fair market values of those tracts. Defendants are correct that new arguments, such as these, are

                                               - 43 -
forfeited.   "Points not argued" in the initial brief on appeal "are waived"—that is to say,

forfeited—"and shall not be raised *** on petition for rehearing." Ill. S. Ct. R. 341(h)(7) (eff.

Feb. 6, 2013). This rule applies to appellees as well as to appellants. Ill. S. Ct. R. 341(i) (eff.

Feb. 6, 2013); Garland v. Sybaris Club International, Inc., 2014 IL App (1st) 112615, ¶ 64.

¶ 177                                  III. CONCLUSION

¶ 178          For the foregoing reasons, we reverse the trial court's judgment and remand this

case for further proceedings.

¶ 179          Reversed and remanded.




                                              - 44 -
