Court of Appeals of Illinois, First District, Second Division
Rule 23 Order filed May 14, 2013.
Rule 23 Order withdrawn June 25, 2013.
Summary judgment was improperly entered for plaintiff mortgagee in its forcible entry and detainer action filed before the expiration of defendant’s lease, since defendant was not named in plaintiff’s foreclosure action and plaintiff had no authority to file the forcible entry and detainer action until after the lease expired.
Appeal from the Circuit Court of Cook County, No. 11-M1-730099; the Hon. George F. Scully, Jr., Judge, presiding.
Lawyers’ Committee for Better Housing, of Chicago (Frank G. Avellone and Mark Swartz, of counsel), for appellant.
Tamara Foster, of Chicago, appellant pro se.
Kluever & Platt, LLC, of Chicago (Andrew L. Platt and M. Reas Bowman, of counsel), for appellee.
Panel PRESIDING JUSTICE HARRIS delivered the judgment of the court, with opinion. Justices Quinn and Simon concurred in the judgment and opinion.
HARRIS PRESIDING JUSTICE
¶ 1 Defendant Tamara Foster appeals from the trial court's orders granting summary judgment in favor of plaintiff, Fifth Third Mortgage Co., in its forcible entry and detainer (FED) action against her, and denying her motion to reconsider. On appeal, defendant contends that summary judgment was improper where there was a question of fact as to whether plaintiff was aware of the existence of a written lease before it filed its FED action and where plaintiff lacked legal authority to file such an action until after the expiration of that lease.
¶ 2 The following facts can be gleaned from the record. At all times relevant to this appeal, defendant rented a house in Chicago. In August 2011, plaintiff obtained ownership rights to the house as the result of foreclosure proceedings, to which defendant was not a party. On September 9, 2011, plaintiff served defendant and all other unknown occupants of the house with a notice to vacate the property and a demand for possession. The notice indicated that defendant would be required to surrender possession of the house within 90 days "unless you provide evidence to the undersigned law firm that you are a bona fide tenant pursuant to section 702(a)(2) (Supp. II 2009) of the Federal 'Protecting Tenants at Foreclosure Act of 2009' ('PTFA') [(12 U.S.C. § 5220(a)(2) (Supp. II 2009))]." The notice further stated that if defendant wished to claim protection under the PTFA, she was required to provide the law firm with a copy of her lease, a return telephone number, and receipts for the last six rent payments made to the landlord.
¶ 3 More than 90 days later, on December 20, 2011, plaintiff filed a FED action against defendant, seeking possession of the house and contending that defendant was unlawfully continuing to reside there without plaintiff's permission and without a lease granting tenancy in the property. Thereafter, defendant was served with the complaint and summons and filed her appearance and a jury demand.
¶ 4 On January 26, 2012, plaintiff filed a motion for summary judgment, arguing that no genuine issue of material fact existed and that, as a matter of law, it was entitled to judgment for possession of the house. Defendant responded, moving for summary judgment in her favor and dismissal of the action with prejudice. In her response, defendant asserted that no genuine issues of material fact existed; that she was a bona fide tenant under the PTFA; that her lease did not expire until December 31, 2011; and that plaintiff had no legal authority to file a FED action until after her lease expired. Defendant asserted that plaintiff's filing was premature and did not provide her with due process and that, therefore, plaintiff was ...