Opinion
Case No. 09 B 37463 Adv. No. 12-01491 Case No. 13-cv-06835
12-09-2014
IN RE: R&G PROPERTIES, Debtor. REPUBLIC BANK OF CHICAGO, Plaintiff, v. MICHAEL K. DESMOND, not individually but as Trustee and DELTA TRADING COMPANY, INC An Illinois corporation, Defendants. MICHAEL K. DESMOND, not individually, but solely in his capacity as Chapter 7 Trustee, Defendant-Counterplaintiff, v. REPUBLIC BANK OF CHICAGO, Plaintiff-Counterdefendant.
CHAPTER 7 Honorable A. Benjamin Goldgar Hon. Ronald Guzman
Magistrate Hon. Susan E. Cox
TRUSTEE'S MOTION FOR JUDGMENT FOR POSSESSION OF PROPERTY
Defendant-Counterplaintiff Michael K. Desmond, not individually but solely in his capacity as Chapter 7 Trustee (the "Trustee") for the bankruptcy estate of R&G Properties (the "Debtor"), by his attorneys, moves the Court for entry of judgment in the Trustee's favor on Count II of the Trustee's Amended Counterclaim. In support thereof, states as follows:
BACKGROUND
1. The Trustee is the duly appointed Chapter 7 Trustee of the Debtor's bankruptcy estate.
2. The Debtor owns the property commonly known as 5700 N. Central Avenue, Chicago, Illinois, 60646 (the "Property").
3. Prior to September 30, 2012, Republic Bank was in possession of the Property as the purported assignee of a written lease dated September 1997 (the "Lease").
4. On or about January 31, 2012, Republic Bank served notice on the Debtor that it was attempting to exercise a purchase option under the terms of the Lease. Upon his appointment the Trustee disputed Republic Bank's attempt to exercise the purchase option, and on September 19, 2012, the Trustee, by letter, directed Republic Bank to vacate and immediately surrender the Property upon expiration of the Lease term on September 30, 2012. On September 30, 2012, the Lease expired by its own terms. Thereafter, Republic Bank failed to vacate the Property as directed and continued to withhold possession of the Property from the Trustee.
5. On October 10, 2012, the Trustee, by letter, served notice upon Republic Bank that pursuant to paragraph 12(b) of the Lease, the Trustee as lessor of the Property, elected to treat Republic Bank as a holdover tenant on a month-to-month tenancy, at double the monthly base rent then paid under the express terms of the Lease, plus utilities, real estate taxes, assessments and other charges under the Lease.
6. On April 21, 2014, this Court issued an Order finding that "Republic's relevant Lease term has expired and the Court concluded that Republic had no option to purchase the Property." [Dkt. No. 16.]
7. On May 12, 2014, the Trustee served a Landlord's Five Days' Notice upon Republic Bank.
8. Republic Bank failed to make full payment of the sum due and owing to the Trustee on or before expiration of five days after service of the Landlord's Five Days' Notice.
9. Republic Bank's right to possession of the Property as a holdover tenant under the terms of the Lease terminated. Thereafter, Republic Bank continued to withhold possession of the Property from the Trustee.
10. On May 21, 2014, the Trustee filed the Trustee's Amended Verified Counterclaim (the "Amended Counterclaim") against Republic Bank seeking, among other relief, possession of the Property under the Illinois Forcible Entry and Detainer Act, 735 ILCS 5/9-101, et seq. (the "Act"), and judgment against Republic Bank for $1,043,818.40 due and owing to the Trustee for rent as a holdover tenant from October 1, 2012 through May 20, 2014, plus all subsequently accruing rent and other fees due under the Lease. [Dkt. No. 23.]
11. On September 4, 2014, this Court entered an Order directing Republic Bank to pay use and occupancy to the Trustee in the amount of $20,000.00 per month, until such time as Republic Bank vacated the Property or this Court adjudicated its right to possession. [Dkt. No. 48.]
12. On December 1, 2014, Republic Bank vacated the Property.
13. Accordingly, by this motion, pursuant to the Section 9-110 of the Act, the Trustee seeks entry of judgment in his favor for possession of the whole Property and for costs, on Count II of the Amended Counterclaim.
14. Pursuant to Section 9-110 of the Act, "[i]f it appears that the plaintiff is entitled to possession of the whole of the premises claimed, judgment for possession thereof and for costs shall be entered in favor of the plaintiff." 735 ILCS 5/9-110.
15. The Trustee is entitled to possession of the whole Property.
16. Under paragraph 15 of the Lease, the Trustee is entitled to all its costs and expenses including attorney's fees incurred in enforcing its rights under the Lease.
17. The Trustee's request for entry of judgment in his favor for possession of the Property and for costs is without prejudice to his right to seek additional damages in this lawsuit, including attorney's fees, resulting from Republic Bank's holdover tenancy, and the Trustee expressly reserves all of his rights and remedies with respect to his claims in the Amended Counterclaim.
WHEREFORE, the Trustee respectfully requests that this Court enter judgment of possession of the Property in favor of the Trustee and against Republic Bank on Count II of the Second Amended Counterclaim and for costs, without any prejudice to the Trustee's rights to seek actual damages and attorney's fees in this lawsuit resulting from Republic Bank's wrongful possession of the Property since October 1, 2012 and granting such other relief as this Court deems just and appropriate. Dated: December 9, 2014
MICHAEL K. DESMOND, not individually, but as Chapter 7 Trustee for the Bankruptcy Estate of R&G PROPERTIES
By: /s/ William G. Cross
One of His Attorneys
James R. Figliulo (#6183947)
Marc S. Porter (#3125509)
William G. Cross (#6299574)
Figliulo & Silverman, P.C.
10 South LaSalle Street, Suite 3600
Chicago, IL 60603
312.251.4600
312.251.4610