*1 CONSULTANT, LLC, аl., AMERICAN MANAGEMENT et Plaintiffs- Appellees, CARTER, Defendant-Appellant. D. GEANIECE
Third District No. 3 — 07—0714
Opinion filed June
WRIGHT,J., specially concurring, joined by SCHMIDT,J. Carter, Romeoville, appellant pro
Geaniece D. se. Wayne Shapiro Hannigan, and M. Wayne Anne both of Law Office of Sha- piro, Chicago, appellees.
JUSTICE McDADE judgment delivered the of the court and the following opinion:
Plaintiff, LLC, American Management Consultants filed a defendant, Carter, to section pursuant complaint against Geaniece (the Code) Procedure on forcible of the Illinois Code of Civil 9—209 (West 2006)) (735 seeking past-due entry ILCS 5/9—209 $1,002.73; apart- rent, utilities, charges totaling and late Drive, Boling- Apartments, ment in Riverstone Woodcreek 316C Illinois; Following hearing, brook, attorney fees costs. County entered favor *2 circuit court Will $1,190.62 July for the months of unpaid rent awarded rent; at- 2007, including charge August a late August $500 $35 costs; that defendant turn fees; and it also ordered torney and $203 two weeks. The apartment within possession of the over For the reasons request unpaid utilities. plaintiffs court denied follow, we reverse.
BACKGROUND in March agreement lease The entered a 12-month written Boling- complex in plaintiffs apartment apartment 2007 for 316C monthly rent as $675 defendant’s agreement The lease stated brook. in consideration for provided also month. The per a lease, granted defendant deduction entering a 12-month 2, 2007, until March from March month from the rent per $112 rent in full on or each month’s paid on the condition defendant that if provided The also day fifth of each month. before the day the fifth full month’s rent failed to tender the defendant plus month, pay plaintiff $75 an additional agreed defendant each day unpaid rent remained day each additional on the sixth $5 additional rent. charges these as parties’ agreement defined full. at- utility charges for all that defendant was liable provided The lease pay must and that defendant apartment defendant’s tributable to other written receipt of an invoice or immediately upon charges those payment. demand for direct utilities did not receive plaintiff’s property
Occupants of its provided occupants Plaintiff providers. bills from the service month and due for that monthly of the rent statement apartments apartments. occupants’ utility charges attributable for the rent and utilities of her defendant statement provided Plaintiff that did March, May April, charges for the months entering defendant in consideration granted include the deduction ($112) amount appropriate Defendant deducted 12-month lease. March, May state- April, and on the charges total stated from the pay- rent Those reduced amount. and tendered the chargеs ments of accepted by plaintiff. ments were charges June defendant received a statement of for her
rent and utilities included a deduction of “relocation $101.76 credit.” Plaintiff intended this “relocation credit” to reflect the deduc- granted tion entering consideration of a 12-month lease but stated appears incorrect amount. It that defendant deducted the discount from the charges monthly total stated on the had in notice as she previous months and tendered that plus amount utilities for a total of payment Banks, $533.62 as full on June 2007. Rhonda manager assistant Apartments, for Riverstone testified pay failed to the full amount due for June. Banks testified that as of June changed had billing practice. She admitted that defendant’s June statement contained an error. However, testified, the statement charges also states that errors did not absolve the tenant or obligation of his all charges timely in a fashion. 13, 2007,
On June defendant received a notice plaintiff posted on the door of apartment defendant’s demanding payment of $201.52 June $211.52 June 2007. The notice defendant received on June 13 stated that plaintiff previously provided defendant notice to quit the apartment days within pursu- five (735 (West 2006)). ant to section 9—209 of the Code ILCS 5/9—209 later testified she never received five-day *3 referenced in the June 13 demand payment. 14, 2007,
On June defеndant contacted plaintiff and spoke Syl- via, plaintiffs property manager. Sylvia informed defendant landlord had erred in stating the amount of the deduction in her June 2007 statement charges but asserted that she responsibility had the plaintiffs correct and, error therefore, she plaintiff owed an ad- ditional for June plus charges. $101.76 rent late Banks testified that the charges late at that time totaled Defendant responded by $195. remind- ing Sylvia that plaintiff caused her pay failure to the full amount due and stating that she should not be hable for charges late occasioned plaintiffs error. Defendant pay also offered to representing the $91.53 actual amount defendant still taking owed into consideration the cor- monthly rect deduction but including any late agreed fees. Banks that the actual balance due for June was $91.52.
Sylvia declined defendant’s offer and reasserted that defendant had to pay the late charges to resolve the issue. To this defendant responded by suggesting the matter be legal proceedings resolved in that could also address ongoing defendant’s concerns over billing practices. utilities
Defendant testified that before entering agreement, the lease plaintiff informed her that she would gas receive bills for water and allegedly Plaintiff providers. the utilities dirеctly
utilities from amount monthly state the defendant that those bills would informed each month and statement of defendant’s use of those utilities March 2007 utility first bill for charges per unit of use. Defendant’s of how the did not include a statement only charge a flat and stated Defendant contacted utility determined that amount. company usage and its calcula- a statement of her utility provider requested informed her that it usage. provider on charges tions of her based billing informa- because it sorted did not have that information defendant contact suggested plaintiff provider tion sent it. The usage. plaintiff for a statement of City Boling- that she next contacted
Defendant testified informed receives one water bill for city plaintiff her that brook. The request plaintiff Defendant contacted apartment complex. the entire for utilities. Plaintiff apportioned charges explanation of how threatened until defendant requests to defendant’s respond failed to covering and state laws attorney regarding her lease to contact an informed Thereafter, Sylvia, who defendant met with billing. utilities usage gas occupants’ not meter water plaintiff defendant that did gas regard- amount for water that all tenants the same actual use. of the amount of each tenant’s less posted on plaintiff received a notice On June defendant demanding payment apartment $276.52 to defendant’s the door defendant that The notice informed rent and late fees. unpaid failed to July rent if defendant payment of accept would refuse to attempted pay plaintiff 5, 2007, defendant July amount. On At that time check. defendant’s tendered July Sylvia rent. returned demanding payment Banks informed defendant ($563 ($58.21), deduction), utilities including July $907.73 notice ($200). received a third defendant July On and late fees demanding pay- apartment door to defendant’s posted on the The notice pay. Defendant did $1,002.73 days. within five ment of apartment defendant’s the door to posted it on stated that testified possession thereof.” being “no one actual Banks testified apartment. in the July 10 still lived that as of remained hearing, defendant the date of as of apartment. posted received a fourth July
On *4 $1,057.73 by July 21. demanding payment of apartment door to her accusing department police with the complaint filed a Defendant complaint filed a defendant August On of harassment. plaintiff had that someone stating department Bolingbrook police with the that testified Defendant permission. apartment her without entered apartment her that its staff entered plaintiff persistently she informed to discover She she returned home permission. rеported that without through property. her food eaten and that someone had been by informing employed defendant that Plaintiff responded anyone obtaining keys apartments from to tenants’ system prevent Sylvia later conceded without authorization. Defendant testified on painter apartment April that a entered 15. had defendant’s prior Defendant date a motion testified to that she installed apartment. painter detector her Defendant testified that wall, batteries, removed the motion detector from the removed its instance, placed them on a table. In encountered another defendant apartment someone to enter attempting her on June When him, defendant confronted he that he informed defendant performing pest plaintiff control. Defendant testified that never apartment. informed her be entering these contractors would any charges informed that she refused to pay August for of payment because had refused her tender for July charges and defendant to pay any August refused late fees. On 12, 2007, defendant appear plaintiff’s received a summons to on complaint $1,002.73 in the circuit County court of seeking Will July 2007, rent for utilities, June and and late fees. The circuit court County of Will judgment plaintiff’s entered appeal favor. This fol- lowеd.
ANALYSIS On appeal, argues defendant violated the Illinois (765 (West 2006)) Landlord and Tenant Act ILCS et seq. 705/0.01 (15 (FDCPA) the Federal Fair Debt Collection Practices Act U.S.C. (2006)) §1692 by failing to properly serve notice of its demands payment. argues Defendant also County’s circuit court of Will judgment is erroneous that it August includes rent for which plaintiff never served notice to pay pursuant Landlord and Act Tenant or the Fair Debt Practices Act Collection and which was not included the summons served defendant. Finally, argues that plaintiff Retaliatory violated the Evic- (765 (West 2006)) tion Act et seq. by initiating ILCS 720/1 entry proceedings only sought remedy detainer after she parties’ dispute legal after proceedings and defendant initiated vari- complaints ous against plaintiff.
A. Allegations Defendant’s Alleged of Plaintiffs Violations of the
Landlord and Tenant Act Defendant asserts that she offered to full amount owed July for the months of but plaintiff June refused *5 plaintiffs and that refusal in its under precludes judgment favor sec- tion the Code. 9—209 the Code follows: 9—209 of Section of reads as due, agent may, anytime
“A landlord or his or her after rent is tenant, writing, payment notify demand thereof and the in notice, payment unless made within time mentioned in such thereof, days not less than 5 after service the lease will be If the pay the terminated. tenant does not within time mentioned in due, noticе, may the the the such ended, rent landlord consider possession and sue for the under the statute in relation to detainer, ejectment entry and or maintain further forcible without joined complaint, demand. A for rent in the notice or claim due, in judgment any and a obtained for the amount of rent found brought, in of proceeding action or an action forcible possession premises, detainer for the of leased under sec- tion. shall, pursuant stated,
Notice made to this Section hereinafter not of rent in by payments past be invalidated due demanded not, notice, period, payments when the do at the end the notice may, total the amount demanded the notice. The landlord however, agree writing exchange lease in for to continue the invalidation, receiving partial payment. prevent To the notice must prominently state:
‘Only FULL of the rent demanded in this notice will PAYMENT notice, right to the lease under this waive the landlord’s terminate agrees writing to continue the lease in unless the landlord exchange receiving partial payment.’ filing past due after the
Collection landlord pursuant failure the tenant to ejectment suit suit.” in the not invalidate the pay the rent demanded notice shall 2006). (West 735 ILCS 5/9—209 Rosser, 3d App. cites 3 Ill.
Defendant Madison pay that her the full amount (1972), propositiоn for the offer lawfully plaintiffs section 9 —209 pursuant demanded entry and Code in its favor in a forcible precludes judgment proved Rosser, the court found that evidence detainer action. as stated did the amount due” “defendant tender plaintiff’s five-day notice to the defendant but in the Rosser, 3 he wanted the defendant out. refused the tender because having held of at at 375-76. The court 279 N.E.2d under due, “obligation full the defendant’s fered to amount Rosser, 279 N.E.2d 3 Ill. satisfied.” the notice was then by plaintiff refus any given ruled that “reason at 376. The court predicate could is immaterial. Plaintiff the tender of rent ing had ground that defendant detainer action Rosser, App. 3d at complied of the notice.” terms “rent” in section argues meaning that the as used only occupation for the paid 9—209 covers the “consideration use or late and not for utilities and fees. property” charges additional (for She concedes that demand included additional amounts fees) to pay utilities and late but that because she offered asserts fees, late full amount of the actual rent and refused to pursuant obligation then to Rosser satisfied under section is not 9—209 entitled its favor. plaintiff illegally sought pay-
As evidence that to collect utilities ments, interprets parties’ agreement not to contain *6 provision required dirеctly is to make for payment utilities plaintiff. Specifically,the as agreement provides follows: agrees responsible charged all “Resident to be for utilities or at- Resident(s) apartment
tributable to the use of the Resident’s ***. acknowledge and understand that none of these services separately utility metered and are respective administered billing companies. solelyresponsible
Resident shall be all utility charges for services apartment occupies attributed to the Resident and Resident shall charges immediately upon receipt such of an invoice or other written for payment.” demand
For the proposition that defendant’s “rent” did not include utili- ties defendant also Payment cites section 5 of the Tenant Utility Act) (765 740/5(a) (West 2006)) (Utility Disclosure Act Disclosure ILCS plaintiffs attempt as evidence that to collect utilities was unlawful. Utility Section 5 of the Act provides, pertinent part, Disclosure as follows:
“(a) payment No landlord demand for public master metered utility pursuant services to a provision providing for tenant payment proportionate aof share public utility service without providing writing landlord first a copy tenant with either part as of the lease or another written of the formula used allocating public payments the landlord utility for *** among the tenants. Thе landlord shall also available make upon request copy tenant public utility bill for bill- ing period payment for which is Nothing demanded. herein shall preclude tenant, leasing including a landlord from to a property utilities, segregate cost of for a rental does al- which 2006). 740/5(a)(West locate the cost of the utilities.” 765 ILCS she requested plaintiff asserts provide with metered bill as well explanation as how it allocated but that utilities
46 Payne also court’s
plaintiff refused. Defendant
relies
decision
Coates-Miller,
(1977),
Inc.,
App.
v.
52 Ill.
3d
The
court
frames
Payne
did not reach the issue defendant
before
Payne
temporarily
this court. In
the trial
“entered an order
court
enjoining
costs, expenses
attorneys’
the assessment of
fees
con
late
payments against
nection with
the named
all
buildings
residing
managed
operated
other
tenants
has been
defendant before
Payne,
App.
52 Ill.
3d at
against
persons.”
obtained
said
court,
question
at
presented
Payne
N.E.2d
409.
limited
appeal,
relevant
the instant
whether the trial court abused its
temporary injunction
plaintiffs’
discretion in
because the
granting
injunction
Payne,
App.
claims were moot
issued.
52 Ill.
3d at
when
291, 367
The court did not decide whether
trial
N.E.2d
enjoined
practice.
It held
that “the
properly
court
the defendant’s
***
and, “[therefore,
recur,”
controversy
likely
over the practice
Payne, 52
controversy
[the]
a real
claim was not moot.”
existed
(Ultimately
agreed
App.
Ill.
N.E.2d at 410.
Coates-Miller, Inc.,
v.
Payne
to settle the case on the merits.
(1982).)
273, 274,
N.E.2d 306-07
Bild,
Authority
Chicago Housing
(1952),
question
charge
whether
“[t]he
[was]
sole
electricity
meaning
of statutes
use of
rent within
excess
entry and detainer.” The
relating
landlord and tenant and forcible
must
rejected the
that “the term ‘rent’
argument
court
defendant’s
*7
and
to
of the lands and tenements
cannot include
profit
limited
the
out
tenant,
electricity furnished the
compensation for such services as
include
by
agreement expressly
the
though
even
the
their
the
for the rent
part
as
consideration
furnishing of such services
The
Bild,
275,
at
because the pursuant “rent,” cannot seek those amounts payments as narrowly. so not read Bild do a notice under section 9 — 209. We
47 term recognized public policy suggested Bild court that no “that the profit ‘rent’ be out of the lands and tenements and must limited Bild, compensation App. cannot include for such 346 Ill. at services.” 275, recognize 104 N.E.2d at The Bild court that “courts 667. found *** payments additional occupancy as rent for the use and added.) Bild, 275, premises.” (Emphasis App. 346 at 104 at Ill. N.E.2d Moreover, taxes, 667. provisions respect “[s]imilar insurance premiums and repairs recognized provisions creating as ad valid Bild, 275-76, obligations App. ditional rent on the lessee.” 346 at Ill. at N.E.2d 667. The court found “recognize[d] that Illinois also provisions obligations leases for the as payment taxes for Bild, payment App. of rent.” at at N.E.2d Finally, quoted favorably the court a Texas of civil appeals court as follows: “ ‘While recompense rent defined and oc for use lands, cupancy of “it solely compensation is not confined for the land, land,
use of chattels are often demised with the no portion form inconsiderable is The of the consideration for rent which paid.” Eng. Law, Am. & Enc. p. cited. authorities giving “any residence, storehouse, statute lien rent of building” or other change law, does not proposition above of by might fact that the of a house be increased furniture separation contained therein would not demand rent of the house unfurnished from the increase reason ” Bild, use of the App. furniture.’ 346 Ill. at N.E.2d (Tex. 1895). quoting v. Stely, Stein 32 S.W 783 Civ. Although plaintiff actually charged an equal defendant for share of the utilities bill for the property, parties’ entire provided that only defendant would responsible for her proportion- Therefore, ate share. defendant’s proportionate share of the utilities is all bill was entitled to collect from defendant. Plaintiff violated section 5 the Utility Act failing provide Disclosure defendant with the formula it used to determine defendant’s proportionate share of utilities. Even had the parties agreed that defendant was responsible equal utilities, for an total share violated section 5 failing provide copy defendant with a of the public utility bill for the billing period for which it demanded 740/5(a) (West 2006). payment. 765 ILCS
Nonetheless, nothing in Illinois law restricts “rent” within meaning of the Code charges to include sums those for additional beyond recompense (Bild, “the occupancy the use and lands” 667) 3d at parties’ expressly define as “rent.” Regardless plaintiffs alleged inclusion *8 in its defendant, utilities section 9—209 notice to admits
the trial court found that she to for responsible Therefore, erroneously utility bills. if had included a demand payment, prejudice error did not defendant. its Plaintiffs Fair Debt Collection Alleged B. Violations
Practices Act to argues plaintiffs pursuant Defendant that because notice section seeking payment 9— defective for of an amount other 2 09 was rent, than to defendant owed plaintiffs recourse collect debt it was to with the federal Fair Debt Collection Practices Act. comply comply failed argues violated or to occurred, referencing judgment reporting FDCPA that has not alleged delinquency reporting agency, posting her to a credit apartment of its to on defendant’s door within notice demand general public. view of below, agree plaintiffs we will discuss we
For reasons against its pursuant to section 9 — 209 was defective and defeats claim Therefore, required we are not defendant under section 9 — 209. will ad argument appeal. reach defendant’s FDCPA resolve We any questions feel it resolve sur the issue because we vital to dress from and oth rounding plaintiffs efforts to collect “debts” her, is of question significant ers like and also because resolution of the entry proceed importance litigants future reality with the that no Illinois ings. We address FDCPA faced entry and detainer ac applied has ever the FDCPA to forcible court District Court for tion to section 9—209. United States pursuant question Illinois Galuska v. District of addressed Northern (N.D. 1994). Blumenthal, C Ill. June No. 92 3781 Galuska, entry “filed a forcible and detainer ac- the defendant court, seeking County possession tion circuit immediate in Cook Galuska, op. 2. The against slip property” plaintiff. alleging district court the defendant federal
subsequently sued Galuska, court slip The Galuska op. it the FDCPA. violated obligation “an surrender question before as whether framed identical to an legal to its owner is property adverse real applied FDCPA to the money” such that obligation court. action Illinois state defendant’s forcible detainer for forcible Galuska, slip at 4. The court held that an action op. to an action to law was not identical and detainer under Illinois state motion granted the defendant’s a debt under the FDCPA and collect complaint pursuant summary on the Galuska, at 4. slip op. FDCPA. do analyze
We decline to follow Galuska because we *9 at apply presented rationale to to the situation in case bar. The holding exclusively court based Galuska its on the United States Supreme in BFP Corp., Court’s conclusions v. Resolution Trust U.S. 128 L. Ed. 2d 114 Ct. S. The Galuska court acknowledged case, of that “the facts and issues which involved an alleged conveyance judicially fraudulent of dif- prоperty, foreclosed fered present from those of case” [its] but found BFP’s “conclu- directly” sions apply question Galuska, slip op. before it. 4. BFP, Supreme judicial Court held that “when a State’s followed, procedures foreclosure have been it is ‘black letter’ law that BFP, the foreclosure will presumed be valid.” 511 U.S. at L. Ed. 2d at 114 S. The Supreme Ct. Court went on to hold as follows: impinging upon important
“Federal statutes state interests can- not system government. regard be construed without the implications of our dual
of When Federal Government takes over local enterprise in radiations the vast of network our national economic thereby radically readjusts
and
of
the balance
state and
authority,
charged
duty
national
those
legislating
with the
must
reasonably explicit.
beyond
be
It
question
that an essential state
interest is at
general
issue here: we have said that ‘the
welfare of
society
security
is involved
titles to real
estate’
power
security
very
ensure that
‘inherent
nature of
government.’
state
Nor
is there
doubt
interpretation
that the
urged by petitioner
profound
would have a
upon
effect
that inter-
every piece
est: the
realty
title
purchased
at foreclosure would
federally
be under
displace
created cloud. To
traditional State
regulation
manner,
statutory
such
purpose
federal
be
must
BFP,
clear and
manifest.”
U.S. at
mediately distinguishable plaintiff completely because failed to follow procedures this state’s entry in its forcible and detainer against action entry defendant. The forcible and detainer statute convey does right party possession to force a possession. adverse to surrender Section 9 — 102 of the forcible provides statute “[t]he person entitled to the possession may of lands or tenements (West 102(a) 2006). restored may thereto.” 735 ILCS right That 5/9 — only be invoked under specific circumstances. here,
Relevant possession the party entitled to force sur- “any render of possession adverse when lessee of the lands or tene- ments, or any lessee, person holding possession under such holds right without after the tenancy by termination of the lease or its own limitation, terms, notice to or otherwise.” 735 quit condition (West 102(a)(4) 2006). Section 9—209 does establish ILCS 5/9 — real procedures property for actions to surrender adverse Rather, statutory legal 9 — 209 provides to its owner. section (West 2006) (“If to terminate a lease. 735 ILCS mechanism 5/9 — 209 notice, pay time mentioned in such the tenant does not within the ended, due, sue for may consider the lease the landlord detainer***"). possession under the statute relation “ Finally, statutory purpose” manifest’ federal ‘clear and application procedures the FDCPA is well served its similarly use in like plaintiff and those situated cases tactics As noted: defendant’s. Galuska purpose in no language
“The of the FDCPA announces uncertain terms: subchapter debt col- purpose It to eliminate abusive collectors, that those debt collec- practices debt to insure
lection tors who refrain from not *10 using practices debt are abusive collection promote competitively disadvantaged, and to consistent State §15 against debt collection abuses. protect consumers action 1692(e) (1988).” Galuska, slip op. U.S.C. explicit in its past-due failure to include rent Despite the FDCPA’s (and may to collect rent in “debt,” we find that efforts definition of *** did) More practices.” collection case involve “abusive this entry and expressed, through the forcible this state has importantly, protect” statute, for “consistent State action detainer its desire the past-due directly rent involves renters. Because the collection of FDCPA, permissible apply the by the we find concerns addressed may displacement application such despite any to those cases FDCPA Galuska, at 5. Accord- regulation.” slip op. on “traditional stаte have hold, impression, that lessors as a matter of first ingly, we now past-due to collect FDCPA their efforts required comply with the from their lessees. provisions the notice violated argues the FDCPA argues violated Defendant also the FDCPA. collect a debt received in effort to by judgment a it had not referencing telling others of the effect having on her door by posting and reads, pertinent part, as follows: her debt. FDCPA “(a) debt; contents Notice of a consumer days after the initial communicationwith
Within five shall, debt, any a debt collector collection in connection with the initial com- contained following information is unless the debt, paid send the consumer has munication or consumer containing— a written notice
(1) debt; of the the amount
(2) owed; is the name of the creditor to whom the debt (3) consumer, thirty that unless the within statement notice, disputes days receipt validity of the of the after thereof, debt, any portion to be or debt will be assumed collector; valid the debt
(4) a statement that if the consumer notifies the debt col- debt, thirty-day period writing lector in within the that the or any thereof, portion disputed, is the debt obtain collector will copy judgment against verification of debt or copy and consumer of such verification or will be collector; mailed to the consumer debt (5) that, upon requеst a statement the consumer’s written within thirty-day period, provide the debt collector will original consumer with the name address of the credi- tor, if different from the current creditor.
(b) Disputed debts If the writing consumer notifies the debt collector within the (a) thirty-day period described subsection of this section that the debt, thereof, or portion disputed, or that the consumer requests creditor, the name original and address the debt col- debt, lector shall cease any disputed collection of the or portion thereof, until the debt collector obtains verification the debt or a copy of a judgment, or the original name address of the credi- tor, a copy judgment, of such verification or name and ad- creditor, original dress is mailed consumer the debt collector. Collection activities and communications do not otherwise subchapter during 30-day violate this continue (a) period to in [of section] referred subsection unless the debt, consumer has writing notified debt collector in that the any portion debt, disputed or that the consumer requests the name and original Any address of the creditor. collec- *11 tion during 30-day may activities communication period not overshadow or be inconsistent with the disclosure right dispute consumer’s request the debt or ad- name and original of drеss creditor.
(c) liability of Admission dispute The failure validity consumer to of a debt under may this by any section not be construed court as an admission of liability by the consumer.
(d) Legal pleadings A pleading communication in the form of a formal in ac- a civil tion shall not be as an purposes treated initial communication for (a) [of subsection this section].
(e) provisions Notice not delivery any form or notice which does sending or expressly required by [the and is relate to the collection of debt title,] any chapter or Internal Revenue Code of security relating of data provision of Federal or State law to notice regulation prescribed any under such privacy, any breach or law, in provision of shall not be treated as an initial communication purposes debt for of this section.” connection with collection §1692g U.S.C. disputed repeatedly The record demonstrates that defendant writing defendant in debt but does not establish that notified relief we hold that entitled to dispute. Although of her and, therefore, it is not and detainer statute under we find that necessary appeal, of the instant to our resolution notice to sec- pursuant the FDCPA. Plaintiffs comply failed with July plaintiff posted tion and the June and 2007 notices 9—209 requirements with the section comply defendant’s door do FDCPA. 1692g(а) in August Inclusion Rent Alleged
C. Trial Court’s Erroneous Judgment Defendant’s awarding plaintiff erred in argues Defendant the trial court plaintiff never made including August for 2007 because judgment rent Section in notices to defendant. August for rent its section 9 — 209 claim joined for rent provides “[a] claim 9— 2 09 of Code rent for amount of judgment and a obtained complaint, due, brought, in an action of forcible proceeding found action under premises, of the leased and detainer for the 2006). (West ILCS this section.” 735 5/9 — 209 August for to include a demand require plaintiff The Code did not section defendant. Pursuant rent in its section 9 — 209 its all due demand a demand for rent plaintiff may join 9 — does entry and detainer. Nor complaint in its for forcible payment its 9 — 209 notice or August rent in its section to demand failure in its preclude judgment entry and detainer for forcible complaint the court if, proceedings, rent detainer August favor for dispute does not is due. Defendant that amount determines admits that August. rent the month of owes it “would have assumption that rent on her pay August she failed to therefore concedes July.” Defendant June and been refused as was rent the “amount of determined properly that the trial court August. month of found due” includes nothing August rent for admits she owed Because “due,” for all rent plaintiff’s favor precludes Code *12 argument erroneously August defendant’s that trial court included rent in must fail. its favor Act Alleged Retaliatory
D. Plaintiffs Violation of Eviction Next, prima case of argues defendant that she established a facie to burden retaliatory plaintiff prove failed meet its to eviction nonretaliatory and, therefore, eviction the trial court’s order was a plaintiff “[r]etaliatory favor of must be reversed because eviction is Wood, legitimate defense to forcible and detainer.” Woodv. (1996).
Ill. App. 3d The trial court’s finding proponent put that the of the defense failed to forth sufficient retaliatory finding evidence of eviction will not be disturbed unless its contrary weight County to the manifest of the evidence. Shelby Thornell, 71, 74-75, Housing Authority 1109, 1112 against public policy
“It is declared to be
the State for a
landlord to
to
tenancy
terminate
refuse
renew a lease or
property
ground
used as a residence
the tenant has
complained any governmental
to
authority of bona
violation
fide
any applicablebuilding code,
ordinance,
regula-
health
or similar
Any provision in any lease,
any agreement
tion.
or understand-
ing, purporting
permit
to
the landlord to terminate or refuse to
tenancy
renew a lease or
for such reason is
765 ILCS
void.”
720/1
(West2006).
argues
plaintiff
lacked
filing
valid reason for
its forcible
only
action and did so
after defеndant’s
complaints
government agencies.
support
to various
of her conten-
tion that
evicting her,
lacked
valid reason for
*13
***
building
complaints
governmental
regarding
to
authorities
codes
[citations],” this state “has never decided the defense is limited to
Wood,
725,
Ill.
at
recognized
App.
that
Eviction Act.”
284
the
Rather,
recognized
possibility
at 390.
has
672 N.E.2d
court
may
seeking
that
arise where a landlord’s action in
to
circumstances
public
invidiously
so
motivated and so contravenes
evict
tenant
in a forcible
policy
implement
that the court could
eviction
725,
Wood,
entry
App.
and
284 Ill.
3d at
672
proceeding.
detainer
350, 354,
390,
Kouvavus,
citing
at
57
N.E.2d
Seidelman
(1978).
motive,
end,
improper
To
further
of plaintiffs
that
evidence
plaintiffs posting
to
four notices on her door “for the
points
defendant
doing
attempt
to
that
so was an
to intimidate
public
see”
asserts
her,
agency
of her
plaintiffs alleged
notifying
reporting
act of
credit
favor,
receiving
judgment
plaintiff’s
before
in its
delinquency
plaintiff
billing practices. Although
to
its utilities
explain
refusal
instigating
nonretaliatory
reason for
opportunity
has the
to assert
argues
proceedings, defendant
that
mere
forcible
and detainer
legitimate reason for eviction will not overcome
existence of a
if
retaliatory
proves
eviсtions
the evidence
that
prohibition against
fact,
was,
any improper purpose.
motivated
Housing Corp., 463 F.2d
relies Robinson v. Diamond
(D.C.
1972),
asked the federal
853, 865
Cir.
wherein the defendant
application
of the Ed
comprehensive guidelines
to
court
elucidate
defense,
“a
the retalia
which
tenant
assert
provides
wards
proper
landlord as a defense to
otherwise
tory motivation
his
Robinson,
Habib,
citing
F.2d
Edwards v.
at
eviction.”
(D.C.
denied,
21 L. Ed. 2d
1968),
Cir.
cert.
393 U.S.
F.2d
declined to enumer
Although the Robinson court
In
the trial court’s
this
weight of
contrary
the manifest
is not
to
retaliatory eviction defense
Although
disputed
plaintiff sought
the evidence.
amount
collect,
that,
timely
dispute
to
she cannot
because
refused
rent,
paid
amount of the
she had not
apparently proper
tender
due
when
July
the actual rent
for June
initiated
Thornell,
proceedings.
the court affirmed the
insufficient
judgment
presented
trial court’s
the defendant
retaliatory
evidence оf
eviction. The Thornell court affirmed the trial
despite undisputed
court’s
evidence in
rejecting
defense
complaints against
plaintiff by
the record of numerous
Thornell,
defendant.
144 Ill.
1112. The
App. 3d
court found that where the
that he
no at
defendant admitted
made
due,
tempt
reasonably
“the trier of fact could
find that
solely
defendant’s lease was terminated for failure to
rent and not
Thornell,
complaints
because of his
HUD.”
3d at
Despite potential inferences, for reasonable would court engage speculation have to even partially find complaints. court, however, motivated defendant’s The role of this reinterpret engage speculation evidence but to determine if the supports evidence the trial judgment. Avery court’s v. State Farm Mutual Co., Automobile Insurance 216 Ill. 2d *14 (2005) (“At 801, best, 835 N.E.2d 865-66 suggesting the court is possible another interpretation testimony of the issue and substitut its ing judgment for the reviewing circuit This is a court’s. court’s role”). Here, defendant admitted that her of tender rent for June and July rejected by was she disputed attempt because its to col late lect fees. The supports finding by evidence a court trial plaintiff filed complaint its for failure rent. Its is not against the manifest of weight must evidence and be affirmed. above,
As demonstrated has a valid basis for its forcible entry against Moreover, detainer action defendant. plaintiff could properly August seek of rent payment entry in the forcible despite detainer action including payment a demand for August in its Finally, plaintiff section 9—209 notice to defendant. did not improperly payment seek in its utilities forcible and detainer and, action regardless, erroneously the trial court did not award plaintiff damages for unpaid argument utilities. Defendant’s plaintiff’s cause action is the Retaliatory barred Eviction Act must, accordingly, fail.
E. Alleged Plaintiffs Violation of Section 9—211 of Code.
Next, argues that plaintiff violated section 9 — 211 of the Code improperly posting five-day on notice her door while 56 residing possession apartment. Regard- was still in of and in the parties,
less of the existence of a valid lease between the we find that plaintiffs notice door posting act on defendant’s defeats process compliance failed to claim because effect service statutory requirements. with
The a in a provides law court proving right action bears the burden of trial his or in question. Harper Square Housing Corp. of the possession property (1999). 955, 666, Hayes, 963, Ill. N.E.2d 672 An ac v. 305 3d 713 premises statutory proceed a is possession special tion to recover a and, discussed, already seeking remedy have ing party as we A.H., comply of the statute. In re strictly requirements must (2001); Bell, Ill. N.E.2d 189 v. 195 748 Nance (1991). 97, 99, the statute App. 3d 975-76 Where filing that written demand is made requirement prior includes a demand made with the complaint, compliance must be strict 404, 419, Manchester, v. Ill. 2d N.E.2d 10 statute. Williams (2008); Kerr, Eddy serving three methods of a notice of provides
Section 9—211 premises. possession a tenant who is in actual of the upon termination 9—211 reads as follows: Section by delivering
“Any may be or notice served a writ- demand made printed, copy ten thereof to the printed, partly or or written tenant, age by leaving person with some of the or same possession premises; years upwards, residing on or of the by certified or by sending copy of the notice to the tenant addressee; registered mail, from the receipt with returned premises, possession then case no one in the actual (West2006). premises.” posting the same 735 ILCS 5/9—211 9—209 provides required that the notice section Section 9—211 premises” on the “by the same posting served proceedings premises.” “in no one in the actual case A” in the record as “Exhibit shows five-day plaintiff included one” was in door “no on defendant’s because posted service, Contrary to the premises. proof possession” “actual *15 possession in that defendant was dispute trial the landlord did Banks, fact, Ms. the assistant at the time of service. premises of the of the defendant was still manager, testified that date trial. on the premises of service held that “the methods the court has
We are aware that *** [Cita- to be exhaustive. are not meant suggested in the statute even when landlord’s -written notice upheld cases tion.] Illinois have in the from those noted statute. slightly of service deviated the method 746, Bell, Management 289 Ill. Corp. Prairie [Citation.]” (1997). 141, reliance on Bell is 752, Plaintiff’s is the Bell court did distinguishable The Bell case because misplaced. here, of the involved which al not consider the section statute possession. by posting longer when the defendant is no lows service now the issue that has been raised. The forcible We consider derogation and detainer statute is “in of the common law.” Yale Tavern, Bank, Inc. v. Cosmopolitan National (1994). The court clear direction supreme given
632 N.E.2d
has
derogation
that “a statute in
of the
law cannot be construed
common
statutory language
what
changing
beyond
the common law
*** Indeed,
expresses
derogation
***.
of common
are
‘statutes
law
” Williams,
strictly
to be
construed ***.’
E Plaintiffs Failure to Comply Entry With Forcible
Detainer Statute Despite conclusions, the foregoing which we feel are mandated existing law and that on the obligated parties’ we address based arguments, arguments highlight defendant’s to this court what we see as a threshold and question parties decisive case that did is, not address. That they whether entered valid lease because, question first instance. The absent a valid threshold agreement, power defendant had no basis to invoke the pursuant court 9—209 the premises. section to remove from question find the did not enter deсisive because we agreement. valid lease
58
First, as to as a prerequi the existence a valid lease 209, authority under section we note Illinois site court’s 9 — a clear an action rent and an action law draws distinction between entry possession pursuant to the forcible and detainer statute. 1071, 157, Kettler, App. 1074-75, v. Ill. 3d 523 N.E.2d 160 Sianis 168 (1988). provides remedy beyond The statute an alternate to landlords Here, the any parties agreed example, the to their lease. “lease specifically may the terminate the agreement” provides that landlord parties’ agreement only under limited circumstances enumerated entry The and a mechanism provides the lease. forcible detainer statute ended than for by plaintiff could consider the lease other reasons which in the the “lease agreement.” listed terms of is in entry derogation The forcible and detainer statute common Ass’n, Perry Young v. Evanston Men’s Christian 92 3d law. (1981). 820, 823, contrary 416 343 Because is N.E.2d the statute Manchester, v. strictly to common law it must be construed. Williams (“ (2008) deroga ‘[S]tatutes 228 Ill. nothing strictly common are to be construed and is to tion of law [Citation.]”). by implication.’ read into such statutes intendment possession grants right the to “sue for the Section 9 — 209 landlord detainer, entry the statute in relation to forcible maintain under (West 2006) ILCS ejectment” the lеase ended. 735 5/9 — 209 after the lease meeting may “the landlord consider (upon certain conditions ended, the statute in relation to forc and sue for the under added)). language (emphasis plain The entry ible detainer” in relation to predicates right sue “under statute statute a existence—and termination —of entry and detainer” forcible lease. specifically
Moreover, detainer the forcible statute meaning of 735 ILCS is within the the statute. defines what (West 2006). term statute, “[t]he ‘lease’ purposes For 5/9—214 *** agreement.” by verbal or written every letting, includes whether (West 2006). added.) find We 735 ILCS (Emphasis 5/9—214 those apply statute to situa clearly only intended the legislature have, minimum, “agreement” as an actual the parties tions where under the law. letting subject property that is enforceable by the is evidenced written Here, alleged “agreement” parties’ to determine authority the sole The court has agreement.” “lease “agreement” an enforceable in fact reached whether 381, 384, Naffziger, written Jannusch lease. (“the (2008) ques of the contract existence 883 N.E.2d law”). tion authority granted
The
under the
the Act
proceedings
provided by
part
and the
and remedies
statute
and,
comprehensive statutory
therefore,
legislature
“the
of a
scheme
may
way
preclude
it in
limit or
the cirсuit court’s
define
such
authority.”
re A.H.,
Ill. 2d
“
statute,
power
by
controlled
the court is
‘When court’s
act is
governed
jurisdiction’
rules of
court ‘must
limited
***.’
proceed
[Citation.]
within the strictures of the statute
court, therefore,
subject
jurisdiction
has
matter
accorded
to it
‘[a]ny
the statute and
action taken
the circuit court that
jurisdiction
exceeds
is void and
be attacked
time.’
*17
A.H.,
416,
at
[Citation.]”
re
195 Ill. 2d
The
court
found
these
has
that under
circumstances we “must
determine” whether the
under the
was proper
court’s order
statute
“or
the jurisdiction
whether
action would exceed
of the court and
added.)
A.H.,
(Emphasis
416,
be void.”
In re
Our this regard undisputed determination is based on facts and Moreover, is a determination make as a of our we matter law. failure to address question injustice this would in an defendant. result to For all reasons, of these our of full plaintiffs compliance consideration with of requirements all the statute’s Farm proper. State Mutual Suarez, 556, 559-60, Automobile Co. v. App. Insurance 104 Ill. 3d 432 *** (1982) (“The theory general rule is that the upon review, a case presented may changеd upon which not be and presented an issue not court trial cannot raised for the appeal. However, first time on general rigid [Citation.] rule is not injustice result, inflexible. Where might this court consider questions of presented Reviewing law not [Citations.] below. courts presented have decided issues not or decided the court to whose [Citations.]”). is being decision reviewed.
For the recognize agreement, court to the parties’ triggering its authority statute, agreement to act under the written must Wheeler-Dealer, evidence a meeting parties. minds between the (2008) Christ, Ltd. v. 379 Ill. 885 N.E.2d (“Mistakes are groups. divided into two consists of group first character, ‘those fundamental relating to an essential element of the contract which prevent parties meeting minds [Citation.]”). agreement so no begin noting is made.’ “[f]or We to be valid in agreement Illinois ‘there must be as to the extent property, price bounds of rental and time and manner ” added.) payment, and the term of the lease.’ (Emphasis Regency Associates, Inc., 270, 281, LLC v. Lopax, Commercial Illinois, (2007), quoting 869 N.E.2d Inc. v. Ceres Illinois Inc., Scrap Processing, Ill. 2d “[ojwner Here, agreement” given the “lease that the has provides *** during per [of]
Resident a rental concession off month $112 However, gave Agreement.” term of this admitted that charges defendant a statement of that inсluded a deduction of $101.76 That of charges as “relocation credit.” same statement informed plaintiffs preparing defendant that own errors statement of charges any liability the ten- would result absolve charges ant of or her all of the correct obligation his “timely” indemnify itself apparent attempt fashion. Plaintiff’s against wrongdoing failing own credit negligence properly alleged agreement the terms of the per parties’ contemplated by provide charges her with accurate statement presents express agreement” terms the “lease other insurmount- agree- finding able obstacles to that the entered an enforceable parties ment. turning attempt at plaintiffs
Before to the issue of ill-executed self-indemnification, problems find “state- we that the find that the charges” independently ment sufficient to letting apart- failed to reach an enforceable for the First, provided ment. find the “statement of although plaintiff we part parties’ charges” monthly they and that were “lease *18 part parties’ agreement. the agreement,” they nonetheless formed of parties’ in the course of the provided plaintiff the notice to ongoing premises. transaction for the lease of the provide agreement” provided
The “lease would her of for use defendant a of the full amount consideration statement utilities) Therefore, monthly a basis. premises (including of the parties, the “agreement” the we purposes construing between charges part of the writ monthly the properly consider statement Springs, v. Western Timothy Village ten Christian Schools lease. (“ (1996) 168, differ Ill. 675 171 ‘where 285 the evidence of one transaction or ent instruments are executed as constituting but a they read and construed as agreement, are to be Roots, ”), single quoting Ill. instrument’ Wilson (1887); Mayfield, In re N.E. Estate of (1997) (“Where more two or instruments the same contracting parties same in the course of executed the together and construed transaction, the instruments will be considered are, eyes law, of the they in the with reference to one another because contract”). one contradic- parties’ alleged agreement irreconcilable contains from the
tions. exist in the nature of the deduction Contradictions (as entering a agreed rent “relocation credit” or as consideration lease) may normally 12-month the deduction. amount of We abrogate an simple hesitate to find that error is sufficient billing (evidenced, case, in entire contract. But this the terms contract part, require party in the one to the lease to charges) statеment parties agree an to or that becomes li- pay party amount the did not express able for did charges agree additional to under in the agreement. “agree- terms Additional contradictions exist provides charges ment” that it also that those additional are not (in fees) triggered pay the form of late fails to unless lessee (correct) yet obligated by agreement, the lessee is interpreted by by defendant, as admitted an incor- rect amount.
There yet another concerning billing contradiction for utili- ties. The “lease agreement” obligates defendant to an amount —to charges be included her statement of utilities attributable to —for her unit. The “agreement” recites that does maintain separate meters, but that usage utility administered providers. Implicit in provision potential this is the for defendant to monthly control her “rent” by regulating applicable utili- use Instead, however, ties. nothing did than take the more monthly utility amount, units, divide the number of and bill equal defendant for her determining payment share. That formula for included in the though, previously lease. Even as we have noted, billing defendant could not complain utility about attack- ing any payment because trial court did not include calculation, utilities in the judgment it is nonetheless relevant on the issue meeting of whether there rendering was a of the minds a valid contract. anyone
We cannot find that “agree” apartment would (Nor, under such fairness, explicit terms. do finding we make an plaintiff maliciously up against set intended to fraud its ten- Nonetheless, ants. practices the effect of lack of skill in evident drafting bill, permit is to guise binding contracts it to under the contract, whatever likes for the rental of its property.)
We find that meeting there was no the par- minds between ties as to one or more essential of the “agreement”; specifically, term *19 total the apartment consideration use of the or a consistent means calculating that amount. parties Therefore we hold that the failed
62 an Ill. Quinlan Stouffe, App. to enter enforceable contract. 355 3d (2005) (“Since 830, 839, meeting 604 minds parties between the occurs when there has been assent same conditions, things the same sense on all terms and essential here did parties meeting [Citation.] not have minds ***. As result, parties enter did not into a contract that had certain and terms”). enforceable essential not
Regardless finding of our that there was not and could have would, meeting parties been a of the minds that defendant between effectively, be to bill in a required whatever chose month, that, particular “agree- we further find under the terms of ment,” thеy required including the notice tenants regardless the billing the “correct” rental amount of what is stated on “agreement” term of the is provides, statement essential undefined, effectively preventing the formation of an enforceable contract.
The “lease to set the circumstances agreement” purports forth late the “agree under which ment,” lessee becomes liable for fees. Under required provide tenants are additional consideration for apartments they payment if do make on time. Were we use of statement) parties’ (including billing “agreement” to enforce written, late “agreement” would liable for fees party paid incurred amount stated on know she because she know, never arrangement, bill. Under such an tenants would month, month to how is due under the from much consideration find Under we must that the specific contract. these circumstances property for the use is undefined and total consideration agreement” ambiguous. Exchange, v. Farmers Insurance “lease is Hunt (2005) (an 1076, 1079, ambigu 3d 831 1102 App. N.E.2d in a if an term is undefined and court ity exists contract essential meaning” for the ordinary, popular “plain, cannot ascertain a term). legally that for an to be precept
“It is a well-established reasonably and certain in its terms. binding, it must be definite ‘When ascertainable, there no are not is material terms and conditions ” present.’ if contract, even the intent to contract enforceable Essex, Ill. Inc., Lord & Distributing, Builder Inc. v. Midwest Foods, (2007), quoting Excello Wagner N.E.2d International, 224, 229-30, Inc., Inc. v. Fearn monthly (including 956, 960 The total amount in the “lease contemplated those additional amounts a tenant could or a standard which apartment, for the agreement”) due, of rent neither certain the total amount consistently determine agreement.” from “lease nor ascertainable *20 Returning indemnify to attempt negligence, to its own we find that “agreement” contrary a provision contains to the public policy gave this state. Plaintiff defendant a stating that billing its error in obligation defendant had no effect on her to pay the However, “correct” amount due agreement.” under the “lease agreement the lease contains a liability only waiver of *** “damages by any injury premises reason of connected with said *** or the land surrounding premises said neglect or the acts of co-residents,visitors, occupants premises, any or other of said or of *** occupants adjacent owners or agrees property, hereby and Resident indemnify
to
and hold harmless
any liability,
Owner from
obligations
loss or
resulting
injuries
from
damages.”
such
Generally,
arring
statutory provision
“[b]
contrary,
clearly
contracts that
explicitly
provide indemnity against one’s
own negligence are valid and enforceable.” Buenz v. Frontline
Transportation Co.,
n.l,
227 Ill. 2d
882 N.E.2d
530 n.l
(2008). However,
agreement
“[b]ecause an
indemnify
to
a party for its
negligence
own
is so unusual and extraordinary,
the intent
to
indemnify to that extent
beyond
must be
doubt
express stipula
tion.”
Banfield,
Blackshare v.
367 Ill. App.
857 N.E.2d
***
743, 74
This is so because
impose
“[t]o
duty
indemnify against injuries or damages entirely out of his control is
unreasonable in the absence of clear language in the contract impos
ing exactly
duty.”
Banfield,
App.
1079-80,
367 Ill.
3d at
857 N.E.2d
at 74. Where
intent,
there is no clear
portion
agreement
against
unenforceable
Banfield,
indemnitor.
367 Ill. App. 3d at
1079-80, 857
Further,
N.E.2d at 74.
“indemnity contracts are to be
strictly construed, and any ambiguity
in the
is to be
construed
strongly
most
against the indemnitee.” Banfield, 367 Ill.
App.
3d at
The “lease agreement” does not contain an “express stipulation” that plaintiff is indemnified for negligence its in billing Although defendant. defendant agreed pay additional consideration for use of apartment based on pays when she monthly rent, nowhere in agreement” the “lease agree does defendant pay ad- ditional consideration or to hold plaintiff billing harmless for errors that, under the “lease agreement” written, as obligate defendant to pay additional consideration for use of the apartment in the form of “late fees.” The terms of the “agreement” obligating defendant pay the “late regardless fees” plaintiff’s negligence in causing defendant to incur them are even more onerous in this case because of the potential for exactly what happened here: attempted to enforce agreement” the “lease literally written (including the bill-
ing agreement”) notices in the and collect “late contemplated “lease error; despite rightly fees” refused to ad- own charges by plaintiffs negligence preparing ditional caused her bill- nothing parties’ ing understanding statement because in her so; her to do “agreement” agreement” obligated actual or the “lease plaintiff began proceedings resulting losing in defendant her home. “agreement,” which find unenforce
Under terms of we able, obligated defendant became additional consideration for apartment entirely use of the for reasons out her control. “lease duty. clear See Ban agreement” language imposing contains no 1079-80, Accordingly, field, 367 3d at 857 N.E.2d we parties’ imposes that to “agreement” hold the extent as whole against duty, Banfield, is unenforceable defendant. 1079-80, at 74. 3d at
G. Conclusions Retaliatоry the Act. find that Plaintiff did not violate Eviction We service proper violated 9—211 of the Code. Because section right is a to forcible and detainer and prerequisite notice service, the order in proper defendant did not receive trial court’s find of defendant must be reversed. We also violated favor Finally, we find that defin- the Fair Debt Collection Practices Act. lease, legislature and, a is not a the ing necessarily, what is lease what agreement, to intent that a and failure convey intended its valid terms, necessary power with to invoke the the comply of the from the The statute possession premises State to wrest lessor. explicitly abrogate the need for a lease. statute instead does parties’ the the right comply the with terms of recognizes lessee’s invoke exists, may the lessor the agreement, assuming one before the The statute a mechanism which power provides court. the lease other than landlord “consider ended” circumstances taken certain parties’ agreement in the when it has spelled those out by the statute’s possessor provided has failed to act as steps and terms. prevent case, parties’ alleged “agreement” in the
In this defects valid, have in fact enforceable finding parties from that the did us and Illinоis law. The meaning of the statute “agreement” within rent. The stating defendant’s agreement” is not definite “lease liability month to avoid any given must amount defendant (in parties “agreement” under the terms of damages (as fees”) under law repercussions state the form of “late statute) not ascertainable under case is unenforce the contract agreement.” Accordingly from the “lease (“a at 605 contract is 3d at Stouffe, able. terms”). Finally, find that we enforceable essential not valid without provide clearly explicitly agreement” does not because the “lease entirety of the yet the negligence own indemnity against plaintiffs it is not enforce indemnify plaintiff, “agreement” attempts written Buenz, at 530. 227 Ill. 2d at able. that the proves before this court
Because we find that record plaintiff could not agreement,” never entered a valid “lease possession right to consider the lease ended and sue invoke ejectment. we or maintain an action for Even were under statute and enforceable agreement” to consider the “lease valid meaning of the “letting” subject property within the ef- statute, the terms of the statute and comply failed to 9—211. compliance fectuate notice with section
CONCLUSION foregoing reasons, For all of the circuit court County is revеrsed. Will Reversed. WRIGHT, specially concurring:
JUSTICE An premises special statutory action to recover is a remedy that begins with threshold determination of whether five-day the statu- properly parameters served within tory requirements. five-day proper Without service written violations, alleged demand to cure the contractual the circuit court begin complaint could not merits of the at- properly consider the tempting statutory ability to invoke the landlord’s to terminate the lease, tenant, damages. evict the and seek *22 thorough
The author has included a and instructive discussion of Act warranted concerns related to the Fair Debt Collection Practices validity respectfully suggest and the of the lease I those issues itself. I appeal. prefer not determinative of the outcome of this to reserve analysis complaint day of the merits of the for another since this remedy longer possession may tenant no be in be able to if monetary five-day properly deficiencies and when a notice is served. specially I I entitled agree concur because that this landlord is not to relief under the forcible based on the and detainer statute However, I occupying premises. defective notice to the tenant agree that the circuit court’s decision must be reversed on the basis of defective notice alone. I specially
For these reasons concur.
SCHMIDT, J., joins in this special concurrence. ILLINOIS, Plaintiff-Appellee, THE PEOPLE OF THE STATE OF HILLIER, Defendant-Appellant. HOWARDJ.
Third District No. 3 — 07—0717
Opinion filed June
notes
plaintiff failed,
estimation,
in her
provide
statutorily
required five-day
subsequently
notice to
offer
refused her
rent.
prima
retaliatory
“The
elements of
eviction are that
ten
facie
complaints
ant
governmental authority,
made
to a
violations were
found, the
tenancy
landlord was
notified
violations and the
solely
was
complaints. [Cita
terminated
because of the tenant’s
Additionally,
tions.]
barring
section of the Act can be read
the right of a landlord to
terminate
lease and evict a tenant
those cases where the action is undertaken in
for the
retaliation
complaints
governmental authority regarding
tenant’s
code
Thornell,
violations.”
144Ill.
3d at