Thursday, September 03, 2015

Illinois Appeals Court To Greedy Bankster: Nothing In Judgment Entitles You To Keep $4M+ Of Foreclosed Property Owner's Professional Equipment, So Let Him Back Onto Premises To Get His Stuff; Ruling Reverses Another Snoozing Trial Judge

In Lake County, Illinois, The Cook Couny Record reports:
  • An appellate panel has restored a Lake County man’s right to access expensive professional equipment inside a building he lost to foreclosure.

    Baldev Raj Bhutani was the guarantor of a mortgage held by pharmaceutical preparation company Avtar LLC for a property in north suburban Gurnee in Lake County. Following foreclosure proceedings initiated in 2011 by Charter National Bank & Trust, of Hoffman Estates — now succeeded by Barrington Bank & Trust Co., the named defendant — Bhutani sought access to the property in order to remove pharmaceutical equipment worth more than $4 million.

    The bank obtained its foreclosure judgement on Dev. 7, 2011. Lake County Sheriff’s deputies attempted to complete an eviction on June 26, 2012, according to court documents, but being unsure of the chemicals present, they secured the building and left. After the bank denied a series of Bhutani’s oral and written requests to retrieve his property, he filed legal paperwork Jan. 14, 2014, a two-count complaint for conversion and replevin. The bank successfully moved to dismiss his complaint, arguing the foreclosure judgment prevented Bhutani from any rights to access the equipment.

    Bhutani filed a motion to reconsider, asserting the Lake County Circuit Court misinterpreted the law, but the court denied his motion. However, on Aug. 13, a three-justice panel of the Second District Appellate Court upheld Bhutani’s appeal and overturned the earlier decision.

    Nothing in the foreclosure judgment gave the bank a possessory interest in the equipment superior to Bhutani’s interest,” wrote Justice Donald C. Hudson, who authored the opinion. Justices Joseph E. Birkett and Robert B. Spence concurred in the decision.

    The appellate ruling affirms the bank’s right to take ownership of the building, but notes possession of the equipment therein was not a necessary component of exercising the foreclosure rights: “Case law supports the conclusion that, when a person who has been lawfully evicted from real property leaves behind personal property, that person generally retains a right to recover the personal property.”

    Further, the court noted the bank in no way tied “its claimed right to the equipment to the mortgage or a related transaction.” Though the bank attempted to make a collateral estoppel argument, Betar wrote the foreclosure litigation didn’t address either of Bhutani’s claims. He further notes the bank’s attempts to paint Bhutani’s request to access his equipment as an attempt to challenge his loss of possession of the real estate.

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