5510 SHERIDAN ROAD CONDOMINIUM ASSOCIATION, Plaintiff-Appellee, v. U.S. BANK, Defendant-Appellant.
Docket No. 1-16-0279
Appellate Court of Illinois, First District, Sixth Division
March 31, 2017
Modified upon denial of rehearing May 5, 2017
2017 IL App (1st) 160279
Appeal from the Circuit Court of Cook County, No. 15-M1-702180; the Hon. Martin Paul Moltz, Judge, presiding.
Maurice Wutscher LLP, of Chicago (Ralph T. Wutscher, Coleman J. Braun, and Jeffrey T. Karek, of counsel), for appellant.
Johnson & Sullivan, Ltd., of Chicago (Mario A. Sullivan, of cоunsel), for appellee.
OPINION
¶ 1 After defendant, U.S. Bank, acquired a condominium unit through a foreclosure sale, plaintiff, 5510 Sheridan Road Condominium Association (association), filed this lawsuit against U.S. Bank pursuant to the Forcible Entry and Detainer Act (Forcible Entry Act) (
¶ 2 BACKGROUND
¶ 3 The following facts are drawn from the pleadings and motions contained in the record and a joint stipulation, which the parties submitted to the circuit court at the summary judgment stage. On February 23, 2012, defendant U.S. Bank sued Thomas and Marilyn Hoffman to foreclose on the bank‘s mortgage encumbering the Hoffmans’ interest in a condоminium unit at 5510 North Sheridan Road in Chicago. U.S. Bank National Ass‘n v. Hoffman, 2012 CH 6382 (Cir. Ct. Cook. Co.). The association was named as a defendant in the foreclosure case but never appeared. On June 14, 2012, the court entered a judgment of foreclosure and sale and defaulted the association.
¶ 4 On December 26, 2012, before the property was sold pursuant to the foreclosure court‘s order, the association sued the Hoffmans pursuant to the Forcible Entry Act. 5510 North Sheridan Road Condominium Ass‘n v. Hoffman, 2012 M1 731922 (Cir. Ct. Cook. Co.). On April 17, 2013, the court hearing that case entered an order of possession in favor of the association.
¶ 5 Pursuant to the foreclosure court‘s order, the unit was set for a judicial sale to be held on May 27, 2014. U.S. Bank was the successful bidder. On June 25, 2014, notwithstanding the forcible entry and detainer court‘s April 17, 2013, possession order in favor of the association, the foreclosure court confirmed thе sale and granted possession to U.S. Bank. U.S. Bank acquired title to the property on July 3, 2014, through a deed issued pursuant to the foreclosure court‘s confirmation order.
¶ 6 On October 31, 2014, the association transmitted a 30-day notice to U.S. Bank, claiming that the bank was “in default in the payment of [its] proportionate share of the common expenses.” The association demanded payment of $81,400.35, which inсluded, among other things, regular and special assessments, parking fees, and late fees which had accrued from October 1, 2012, through October 1, 2014. In January 2015, U.S. Bank paid $14,968.76 to the
¶ 7 On January 30, 2015, the association filed this lawsuit under the Forcible Entry Act demanding payment from U.S. Bank for the preforeclosure sale сommon expenses for the unit that were in arrears and for possession. The association‘s theory of recovery was that its “lienfor all past due assessments has not been extinguished and remain[ed] valid” because U.S. Bank “failed to [timely] pay the condominium association assessments, parking fees, late fees and other charges the month after the date of the judicial foreclosure sаle” as required by section 9(g)(3) of the Act.
¶ 8 On July 24, 2015, U.S. Bank and the association filed cross-motions for summary judgment. In its motion, U.S. Bank argued that section 9(g)(3) did not contain a timing requirement and that its January 2015 payment for postsale expenses therefore extinguished the association‘s lien against the unit for presale expenses. The association, in contrast, insisted that section 9(g)(3) did contain a timing requirement with which U.S. Bank failеd to comply. As a result, the association reasoned, U.S. Bank‘s January 2015 payment did not extinguish the association‘s lien. The association claimed that U.S. Bank owed it $94,873.79, consisting of (1) $48,308.17 for presale expenses from October 2012 through May 2014, (2) $25,816.88 for postsale expenses from June 2014 through September 2015, (3) $11,980.06 for a 2014 special assessment, (4) $6253.28 for a 2014 special assessment, and (5) $2515.40 for legal fees.
¶ 9 On September 11, 2015, U.S. Bank transmittеd two checks to the association for $24,989.60 and $827.28. The checks were accompanied by a letter from U.S. Bank‘s counsel stating that they were being “tendered as payment in full of all outstanding amounts due for the Unit from June 2014 through and including September 2015.”
¶ 10 In its response in opposition to U.S. Bank‘s motion for summary judgment, the association argued that the September 2015 payments did not extinguish its lien for presale expеnses because U.S. Bank made them in “bad faith.” By contrast, in its response in opposition to the association‘s motion for summary judgment, U.S. Bank argued that the association‘s lien for presale expenses had been extinguished by the January and September 2015 payments. In its reply in support of its motion for summary judgment, the association acknowledged U.S. Bank‘s January and September 2015 payments but contended they were “partial payments.”
¶ 11 On December 28, 2015, the circuit court entered two orders. The first order (1) granted the association‘s motion for summary judgment, (2) denied U.S. Bank‘s motion for summary judgment, and (3) granted the association leave to file a petition for attorney fees. The second was an order for possession, which awarded the association possession of the unit (stayed for three months) and $73,364.55 reрresenting damages for unpaid presale and postsale common expenses. On January 8, 2016, the association filed a petition for attorney fees under the Forcible Entry Act. On January 22, 2016, the association filed a notice of appeal from the December 28, 2015, orders.
¶ 12 ANALYSIS
¶ 13 On appeal, U.S. Bank argues that the circuit court erred by granting summary judgment to the association because, in its view, it successfully extinguished the association‘s statutory lien for presale common expenses under section 9(g)(3) by remitting the January 2015 payment for postsale expenses to the association. The
¶ 14 Although neither party has raised the issue, we begin by considering our jurisdiction. Secura Insurance Co. v. Illinois Farmers Insurance Co., 232 Ill. 2d 209, 213 (2009) (“A reviewing court must ascertain its jurisdiction before proceeding in a cause of action,regardless of whether either party has raised the issue.“). This court has the authority to hear appeals from (1) “final judgments” and (2) nonfinаl orders as defined by supreme court rule.
¶ 15 That U.S. Bank‘s notice of appeal was initially premature, however, ultimately does not deprive this court оf jurisdiction. Illinois Supreme Court Rule 303(a)(2) provides:
“When a timely postjudgment motion has been filed by any party, whether in a jury case or a nonjury case, a notice of appeal filed before the entry of the order disposing of the last pending postjudgment motion, or before the final disposition of any separate claim, becomes effective when the order disposing of said motion or сlaim is entered.”
Ill. S. Ct. R. 303(a)(2) (eff. Jan. 1, 2015).
According to the clerk of the circuit court‘s online docket for this case—of which this court may take judicial notice (People v. Grau, 263 Ill. App. 3d 874, 876 (1994))—the circuit court disposed of the association‘s fee petition on February 17, 2016, by entering an order awarding the association $15,788.73 in fees—the full amount it requested. At that time, pursuant to Rule 303(a)(2), U.S. Bank‘s notice of appeal became effective. Acсordingly, we have jurisdiction over U.S. Bank‘s appeal of the circuit court‘s December 28, 2015, orders.
¶ 16 Summary judgment is appropriate “if the pleadings, depositions, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.”
¶ 17 To determine whether the court properly granted summary judgment to the association, we must interpret section 9(g)(3) to determine whether it sets forth a timing deadline for foreclosure purchasers to pay condominium associations for postsale common expenses. “Our primary objective in construing a statute is to ascertain and give effect to the intent of the legislature.” JPMorgan Chase Bank, N.A. v. Earth Foods, Inc., 238 Ill. 2d 455, 461 (2010). “The plain language of a statute is the most reliable indication of the legislature‘s objectives in enacting that particular law [citation], and when the language of the statute is clear, it must be applied as written without resort to aids or tools of interpretation.” DeLuna v. Burciaga, 223 Ill. 2d 49, 59 (2006). If, on the other hand, a statute is vague or ambiguous, a court may resort to
¶ 18 Section 9(g)(1) of thе Act permits condominium associations to assert liens against a unit owner for unpaid common expenses.
“The purchaser of a condominium unit at a judicial foreclosure sale, or a mortgagee who receives title to a unit by deed in lieu of foreclosure or judgment by common law strict foreclosure or otherwise takes possession pursuant to court order under the Illinois Mortgage Foreclosure Law, shall have the duty to pay the unit‘s proportionate share of the common expenses for the unit assessed from and after the first day of the month after the date of the judicial foreclosure salе, delivery of the deed in lieu of foreclosure, entry of a judgment in common law strict foreclosure, or taking ofpossession pursuant to such court order. Such payment confirms the extinguishment of any lien created pursuant to paragraph (1) or (2) of this subsection (g) by virtue of the failure or refusal of a prior unit owner to make payment of common expenses, where the judicial foreclosurе sale has been confirmed by order of the court, a deed in lieu thereof has been accepted by the lender, or a consent judgment has been entered by the court.” (Emphasis added.)
765 ILCS 605/9(g)(3) (West 2014).
¶ 19 This case turns on the meaning of the italicized phrase, “from and after the first day of the month after the date of the judicial foreclosure sale,” contained in section 9(g)(3). U.S. Bank contends it simply denotes the рoint in time after which a “purchaser of a condominium unit at a judicial foreclosure sale” becomes responsible for paying postsale common expenses. The association, by contrast, argues that the phrase sets forth a strict deadline by which purchasers must remit payment for postsale expenses to extinguish any lien for presale common expenses.
¶ 20 We hold, based on a plain reading of section 9(g)(3), that the phrase “from and after the first day of the month after the date of the judicial foreclosure sale” does not create a timing deadline with which purchasers must comply to avail themselves of the statute‘s extinguishment provision. Instead, that phrase simply demarcates the precise moment in time when the foreclosure-purchaser becomеs liable for postsale common expenses.
¶ 21 Pembrook Condominium Assʼn-One v. North Shore Trust & Savings, 2013 IL App (2d) 130288, is instructive. In Pembrook, the defendant bank successfully bid on a condominium unit at a judicial sale on April 13, 2012. Id. ¶ 3. On June 18, 2012, the bank tendered payment to the plaintiff condominium association for postsale expenses for May and June 2012. Id. ¶ 16. The association argued that the bank‘s June 18 payment did not trigger section 9(g)(3)‘s extinguishment provision because that payment was not made “the first day оf the month after the date of the judicial foreclosure sale.” (Internal quotation marks omitted.) Id. ¶ 16. The court disagreed, holding that the bank‘s “payment of association charges that came due from May 2012 on defeats plaintiff‘s attempt to enforce its lien for the period in dispute” because the June 18 payment “covered charges due on May 1, 2012.” Id. ¶¶ 15-16.
¶ 22 Pembrook differs from this case in one notable way. In Pembrook, the bank paid the full amount of postsale expenses
¶ 23 We find further guidance in the Illinois Supreme Court‘s recent decision in 1010 Lake Shore Ass‘n v. Deutsche Bank National Trust Co., 2015 IL 118372. In 1010 Lake Shore, the court was asked to construe section 9(g)(3) and determine whether it merely provided an alternative, or the sole, method by which a purchaser could extinguish a condominium association‘s lien under section 9(g)(1) for presale expenses. In the course of its analysis, the court stated, “[t]he first sentence of section 9(g)(3) plainly requires a foreclosure sale purchaser to pay common expense assessments beginning in the month following theforeclоsure sale.” Id. ¶ 24. Continuing, the court explained that section 9(g)(3)‘s second sentence—which states, “such payment confirms the extinguishment of any lien created (
¶ 24 The association‘s argument cannot be reconciled with 1010 Lake Shore. The supreme court held in 1010 North Shore that section 9(g)(3)‘s first sentence—which contains the key phrase “from and after the first day of the month after the date of the judicial foreсlosure sale“—means only the time when the purchaser begins to be liable for postsale assessments. Id. ¶¶ 23-24. The court‘s statement that section 9(g)(3)‘s second sentence provides purchasers with an incentive to pay postsale expenses promptly further undermines the association‘s argument here. As the supreme court‘s analysis indicates, the General Assembly was aware of and concеrned with the possibility that purchasers who became liable for postsale expenses would not pay in a timely manner. To address that problem, the legislature designed section 9(g)(3) to encourage prompt payment of postsale expenses by setting their payment as a precondition to the extinguishment of association liens for presale expenses.
¶ 25 In numerous other areаs, the General Assembly has drafted statutes with deadlines and timing rules. See, e.g.,
¶ 26 As a fallback position, the association argues that it should still prevail under section 9(f) of the Act. Section 9(f) provides: “Payment of any assessment
¶ 27 We first note that sections 9(f) and 9(g)(3) are essentially unrelated. Section 9(f) cоncerns when assessments are due. Section 9(g) and its various subparts, by contrast, relate to the creation and extinguishment of liens for unpaid common expenses. Section 9(g) does not incorporate or otherwise refer in any way whatsoever to section 9(f).
¶ 28 The association‘s reliance on section 9(f) is misplaced for a second reason. By relying on section 9(f) to construe section 9(g)(3), the association is inviting us to apply the doctrine of in pari materia. “Under this doctrine of construction, two legislative acts that address the same subject are considered with reference to one another, so that they may be given harmonious effect.” Land v. Board of Education of the City of Chicago, 202 Ill. 2d 414, 422 (2002). The doctrine applies when construing sections of the same statute. See Sulser v. Country Mutual Insurance Co., 147 Ill. 2d 548, 555 (1992). But we do not need to resort to a canon of construction if the language of the statute is plain. DeLuna, 223 Ill. 2d at 59. As noted above, section 9(g)(3) is neither vague nor ambiguous. Its meaning is clear from its plain text. The association, therefore, cannot supplement its text by importing section 9(f) into section 9(g)(3).
¶ 29 The association claimed that U.S. Bank owed $40,785.64 for postsale expenses from June 2014 through September 2015. The undisputed facts show that in January 2015, U.S. Bank paid the association $14,968.76, and that by September 11, 2015, U.S. Bank had paid the association the $40,785.64 it claimed it was owed. Thus, by September 11, 2015, U.S. Bank had fully paid the amounts it owed for the unit‘s postsale common expenses. In so doing, U.S. Bank “confirm[ed] the extinguishment” of the association‘s lien for presale common expenses.
¶ 30 U.S. Bank alsо contends that the court erred by awarding the association attorney fees under the Act. As noted, the court disposed of the association‘s fee petition by awarding the association $15,788.73 in fees on February 17, 2016. But that order is not before this court, because U.S. Bank filed its notice of appeal on January 22, 2016—well before the court ruled on the association‘s fee petition. U.S. Bank did not therеafter file a second appeal from that order. We, therefore, do not have jurisdiction over that order.
¶ 31 On rehearing in this court, the association argues that, notwithstanding its lack of success on the main issue, it is at least entitled to attorney fees for the work its attorneys performed seeking payment of postsale expenses. We decline to reach this issue in the first instance and remаnd the matter to the circuit court to determine if the association is due any such fees and, if so, in what amount.
¶ 32 In summary, before judgment was entered against it, U.S. Bank paid the full amount of postsale expenses it owed the association, thereby extinguishing the association‘s
¶ 33 CONCLUSION
¶ 34 We reverse the circuit court‘s order (1) granting the association‘s motion for summary judgment and (2) denying U.S. Bank‘s motion for summary judgment. We also reverse the court‘s order awarding the association possession of the unit and $73,364.55 in damages. Pursuant to our authority under Illinois Supreme Court Rule 366(a)(5) (eff. Feb. 1, 1994), we enter summary judgment in favor of U.S. Bank. We remand the case to the circuit court for further proceedings consistent with this opinion.
¶ 35 Reversed and remanded with instructions.