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100 Roberts Road Business Condominium Association v. Azulay

Court of Appeals of Illinois, First District, Fourth Division

September 19, 2013

100 ROBERTS ROAD BUSINESS CONDOMINIUM ASSOCIATION, Plaintiff-Appellant,
v.
JUDD AZULAY, GLENN SEIDEN and ALL UNKNOWN OCCUPANTS, Defendants-Appellees and VICTORIA KHALAF and STANLEY HORN, Defendants.

Appeal from the Circuit Court of Cook County, No. 10 M3 4333 Honorable Martin S. Agran Judge Presiding

PRESIDING JUSTICE HOWSE delivered the judgment of the court, with opinion. Justices McBride and Taylor concurred in the judgment and opinion.

OPINION

HOWSE PRESIDING JUSTICE

¶ 1 On November 24, 2010, plaintiff 100 Roberts Road Business Condominium Association filed a forcible entry and detainer lawsuit against defendants Victoria Khalaf, Stanley Horn, Judd Azulay, Glenn Seiden and all unknown occupants, claiming that defendants had failed to pay the common assessments due for a business condominium since 2004.

¶ 2 On July 28, 2011, following a bench trial, the trial court entered a judgment for the plaintiff for past-due assessments against defendants Judd Azulay and Glenn Seiden. However, the trial court reduced plaintiff's damage award based on its finding that plaintiff had failed to mitigate its damages.

¶ 3 Plaintiff filed a motion to reconsider, claiming that it was inappropriate to reduce plaintiff's award based on its alleged failure to mitigate damages. On plaintiff's motion for rehearing the trial court granted plaintiff's motion to reconsider, finding that defendants had waived their right to argue mitigation based on the declaration of condominium owners. However, the court then made a finding that plaintiff had brought the forcible entry and detainer lawsuit for an improper purpose and dismissed the case against defendants. Plaintiff appealed. For the reasons that follow, we reverse the judgment of the circuit court and remand with directions for further proceedings.

¶ 4 Background

¶ 5 The 100 Roberts Road Condominium building consists of a three-unit building in Palos Heights, Illinois. The first unit, 10001, is owned by a land trust, with the named beneficiary being John C. Griffin. Unit 10001 is occupied by the law firm Griffin and Gallagher, LLC. Unit 10003 is owned by Omer Abuzir and is occupied by the law firm Abuzir & Mitchell, which is associated with Victoria Khalaf. Unit 10005, the unit at issue in this lawsuit, is titled to Victoria Khalaf, Stanley Horn, Glenn Seiden and Judd Azulay, but has been vacant for a number of years. Unit 10005 is encumbered with a mortgage signed by Victoria Khalaf, Stanley Horn, Glenn Seiden and Judd Azulay.

¶ 6 The 100 Roberts Road Business Condominium Association, plaintiff, consists of three members: Victoria Khalaf, Omer Abuzir and John C. Griffin. Pursuant to the declaration of condominium ownership, plaintiff has a duty to maintain the common areas of the building, estimate the costs associated with maintaining the common areas and collect assessments from the unit owners to cover the costs of such maintenance.

¶ 7 Defendants, owners of unit 10005, have not paid common assessments since 2004, with the exception of $2, 000, which was paid by a Daniel Azulay in 2007.

¶ 8 On June 11, 2010, plaintiff filed a claim for a lien with the Cook County recorder of deeds in the amount of the unpaid assessments, $12, 910, and mailed the lien to defendants on August 25, 2010. The notice of lien indicated that plaintiff had retained the law firm Fullest Rosenlund Anderson P.C. to file a lawsuit and collect the amounts owed in assessments, if necessary.

¶ 9 On September 23, 2010, plaintiff caused a notice and demand for possession to be served on all defendants. When there was no response within the statutory period, plaintiff filed a forcible entry and detainer lawsuit against defendants on November 24, 2010. In the lawsuit, plaintiff sought possession, unpaid assessments, and the payment of costs, late charges, interest and reasonable attorney fees.

¶ 10 On June 15, 2011, default judgments were entered against Khalah and Horn. The default judgments were never vacated and they are not parties to this appeal. On July 6, 2011, Azulay and Seiden appeared and filed an answer with a general denial of all allegations.

¶ 11 The trial commenced on July 6, 2011, proceeding against Azulay and Seiden. There was no court reporter at the trial. However, in its January 12, 2012 memorandum order, the trial court recited the facts elicited at trial, which we in turn recite below.

¶ 12 Plaintiff's first witness, Noreen McInerny, an attorney for Griffin and Gallagher, LLC, testified that her firm acts as the attorney and property manager for plaintiff and also rents space from plaintiff. She testified that the property at issue, unit 10005, is vacant. The warranty deed dated September 2003 states that the owners of unit 10005 are Victoria Khalaf, Stanley Horn, Judd Azulay and Glenn Seiden. She testified that with respect to this litigation, she prepared and filed the notice of liens and sent copies to defendants; she prepared the demand for possession and sent copies to defendants; and she filed the complaint on November 24, 2010.

ΒΆ 13 McInerny further testified that prior to the weeks leading up to trial, she had never seen Azulay or Seiden, and she had never received any checks from either of them. She testified that the current directors of the association are Khalaf, Abuzir and Griffin and that Abuzir and Khalaf are in a business relationship. She testified that ...


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