Fifth Third Mortgage Company v. Foster
994 N.E.2d 101
Ill. App. Ct.2013Background
- Foreclosure in Aug 2011; defendant not a party to foreclosure but occupies the house.
- Sept 9, 2011 PTFA notice to vacate and request for lease evidence if claiming bona fide tenancy.
- Dec 20, 2011 FED action filed seeking possession; defendant served and appeared.
- Jan 26, 2012 plaintiff moved for summary judgment; defendant sought summary judgment in her favor.
- Defendant’s lease expires Dec 31, 2011; plaintiff filed FED before lease expiration, arguing lack of knowledge of lease.
- Trial court granted summary judgment for plaintiff; held PTFA allowed occupancy until end of lease but allowed eviction after lease term; lease expiration date had passed; order of possession entered with stay.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether FED filing before lease expiration was premature | Foster argues plaintiff lacked authority to file FED before lease ended | Foster contends prematurity due to ongoing lease and PTFA protections | Yes, FED filing premature; court lacked jurisdiction |
| Whether plaintiff knew of the lease when filing FED | Plaintiff asserts no knowledge of the lease existence | Foster provides leases and notices suggesting knowledge | Yes, but the premature filing remains dispositive |
Key Cases Cited
- Avdich v. Kleinert, 69 Ill. 2d 1 (Ill. 1977) (FED actions require strict statutory compliance; premature filing voids jurisdiction)
- Figueroa v. Deacon, 404 Ill. App. 3d 48 (Ill. App. 2nd Dist. 2010) (premature FED action invalid when lease not terminated or expires)
- Agribank, FCB v. Rodel Farms, Inc., 251 Ill. App. 3d 1050 (Ill. App. 1st Dist. 1993) (foreclosure does not automatically terminate subordinate leases; need FED to terminate)