2022 IL App (1st) 210222-U
Ill. App. Ct.2022Background
- Greenview Gardens Condominium Association sued unit owner Vanessa Wereko for unpaid condominium assessments, filing a verified complaint for possession and money damages (notice and demand dated Nov. 22, 2019).
- The notice listed two addresses (the unit and a London address). Sheriff and special process server attempts at the unit failed; the court granted service by posting after the Association’s affidavit that Wereko’s last known residence was the London address.
- Wereko, pro se, moved to quash service and to dismiss, and later claimed she sent a cashier’s check for $4,066.72 (Mar. 2020) with an accompanying affidavit to satisfy the debt; the Association did not credit that check at trial (Capital One letter showed the check had not been cashed).
- At a bench trial the court found the Association had the superior right to possession, entered an eviction order (60‑day stay), and continued for a prove‑up on damages; on reconvening the court awarded a money judgment of $256.78 (nunc pro tunc) and attorney’s fees $2,302 plus costs $752.18, denied Rule 137 sanctions, and denied Wereko’s motions to reconsider.
- Wereko appealed pro se, arguing lack of subject‑matter and personal jurisdiction, defective demand/service under the Code, erroneous award of fees and costs, Rule 137 and FDCPA violations. The appellate court affirmed.
Issues
| Issue | Plaintiff's Argument (Association) | Defendant's Argument (Wereko) | Held |
|---|---|---|---|
| Subject‑matter jurisdiction | Complaint alleges justiciable dispute under Code to collect unpaid assessments and invoke circuit court jurisdiction | Demand/service defects under 735 ILCS 5/9‑104.1 deprived the court of jurisdiction | Court has subject‑matter jurisdiction; statutory notice defects are defenses, not jurisdictional defects |
| Personal jurisdiction / service of process | Attempted personal service; after failed attempts, court‑authorized service by posting and mailing satisfied process; court complied with statutory steps | Never properly served; Association had Vernon Hills address and therefore could have served her there | Defendant forfeited jurisdictional challenge by participating in proceedings; posting service and mailing complied with the court order and record supports jurisdiction |
| Merits — entitlement to possession and amount owed | Business records (ledger, notice) show arrears; cashier’s check was ambiguous/restricted and did not fully satisfy account; as of trial balance due was $256.78 | She paid and overpaid assessments; cashier’s check and other payments should have cleared and eliminated arrears | Bench findings upheld as not against manifest weight; court credited records and testimony, found $256.78 due (nunc pro tunc) and possession properly ordered |
| Attorney fees, costs, and sanctions (Rule 137, FDCPA, Collection Agency Act) | Fees are recoverable under Condominium Property Act and Code; Association followed reasonable procedures so Rule 137 sanctions are unwarranted | Association improperly refused to credit payment to manufacture default, violated FDCPA and Collection Agency Act; sanctions and fee relief warranted | Award of reasonable attorney fees and costs affirmed; Collection Agency Act exemption applies to condo associations and agents; Rule 137 sanctions were properly denied; FDCPA claim undeveloped and rejected |
Key Cases Cited
- Belleville Toyota, Inc. v. Toyota Motor Sales, U.S.A., Inc., 199 Ill. 2d 325 (Illinois 2002) (circuit courts have original jurisdiction over justiciable matters; complaint must present a justiciable controversy)
- Morris v. Martin–Trigona, 89 Ill. App. 3d 85 (Ill. App. 1980) (statutory notice irregularities do not deprive circuit court of subject‑matter jurisdiction)
- Prairie Mgmt. Corp. v. Bell, 289 Ill. App. 3d 746 (Ill. App. 1997) (failure to comply with statutory notice may be a defense but does not strip subject‑matter jurisdiction)
- In re D.F., 201 Ill. 2d 476 (Ill. 2002) (appellate courts defer to trial‑court fact findings and assessments of witness credibility)
- In re Estate of Wilson, 238 Ill. 2d 519 (Ill. 2010) (if any evidence supports trial court’s findings, judgment should be affirmed)
- Bazydlo v. Volant, 164 Ill. 2d 207 (Ill. 1995) (appellate court should not substitute its judgment for trial court on credibility and weight of evidence)
- Reliable Fire Equip. Co. v. Arredondo, 2011 IL 111871 (Ill. 2011) (standard of review for bench trial factual findings is whether decision is against the manifest weight of the evidence)
- Lake Env’t, Inc. v. Arnold, 2015 IL 118110 (Ill. 2015) (abuse of discretion standard for certain trial‑court rulings; sanctions decisions reviewed for abuse of discretion)