2018 IL App (1st) 170781
Ill. App. Ct.2018Background
- BMO Harris foreclosed a mortgage on condominium unit 7C, was the successful bidder at the judicial sale, and later recorded its judicial deed.
- The condominium association claimed outstanding presale assessments (owed by the prior owner/trust) and asserted a lien; the foreclosure judgment referenced a subordinate lien for unpaid assessments.
- Section 9(g)(3) of the Condominium Property Act requires a purchaser at judicial foreclosure to pay postsale assessments from the first day of the month after the sale to confirm extinguishment of any presale assessment lien.
- BMO paid some postsale assessments in late November and December 2014, but the association treated many presale assessments as still unpaid and later billed BMO (December 2015 letter showed large delinquency totals).
- BMO sold the unit in December 2015; escrowed funds were ultimately released after the association changed property managers, changed locks, and threatened denial of access; BMO later paid the remaining presale assessments in January 2016 and the association released its lien.
- BMO sued the association and the property managers seeking (1) declaratory judgment that the lien had been extinguished by its postsale payments, (2) consumer fraud damages, and (3) civil conspiracy damages; defendants moved to dismiss and the trial court dismissed all counts; this appeal follows.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether declaratory relief was proper to declare presale lien extinguished by BMO’s postsale payments | BMO: its November and December 2014 postsale payments satisfied section 9(g)(3) and confirmed extinguishment of presale lien | Defs: BMO’s postsale payments were untimely under §9(g)(3); BMO cannot seek declaratory relief after paying the presale debt and resolving the dispute (moot/after‑the‑fact) | Court: Dismissed — declaratory relief improper because dispute was resolved after BMO paid presale assessments and lien was released (also BMO’s postsale payments were untimely) |
| Whether BMO stated a Consumer Fraud Act claim | BMO: December 2015 assessment letter was deceptive because lien had been extinguished | Defs: Complaint pleaded only a double‑billing theory, not the extinguishment theory; BMO is not a consumer for the alleged claim | Court: Dismissed — plaintiff forfeited the extinguishment theory and advanced no appellate argument on the pleaded double‑billing theory |
| Whether civil conspiracy claim survives based on lockout of the buyers | BMO: Marian and association conspired to lock out the buyers to force payment, harming BMO | Defs: Lockout (if tortious) injured the buyers, not BMO; BMO lacks standing to assert that tort | Court: Dismissed — conspiracy fails because underlying tort (injury from lockout) was not BMO’s; conspiracy cannot stand without an independent tort against plaintiff |
Key Cases Cited
- Relf v. Shatayeva, 2013 IL 114925 (discussing scope of section 2-619 affirmative‑matter dismissals)
- Hermitage Corp. v. Contractors Adjustment Co., 166 Ill. 2d 72 (pleading facts accepted as true on dismissal)
- Beahringer v. Page, 204 Ill. 2d 363 (purpose and proper use of declaratory judgment)