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1010 Lake Shore Ass'n v. Deutsche Bank Nat'l Trust Co.

Court of Appeals of Illinois, First District, Second Division

August 12, 2014

1010 LAKE SHORE ASSOCIATION, Plaintiff-Appellee,
v.
DEUTSCHE BANK NATIONAL TRUST COMPANY, as Trustee for Loan Tr 2004-1, Asset-Backed Certificates, Series 2004-1, Defendant-Appellant

Modified upon denial of rehearing October 7, 2014.

Page 2

Appeal from the Circuit Court of Cook County. No. 12 M1 711284. Honorable Martin Moltz, Judge Presiding.

SYLLABUS

Where defendant mortgagee purchased a condominium unit at a foreclosure sale but failed to make an assessment payment after the sale pursuant to section 9(g)(3) of the Condominium Property Act to extinguish the plaintiff condominium association's lien for the assessments not paid by the mortgagor, the trial court properly entered summary judgment for the association on its claim to enforce its lien for the unpaid assessments, and the trial court's award of attorney fees and costs was affirmed as reasonable.

For Appellant: Keith Werwas and David Pustinik, Potestivo & Associates, P.C., Chicago, IL.

For Appellee: Matthew J. Goldberg, Bancroft, Richman & Goldberg, LLC, Chicago, IL.

JUSTICE SIMON delivered the judgment of the court, with opinion. Justice Pierce concurred in the judgment and opinion. Justice Liu dissented, with opinion.

OPINION

SIMON, JUSTICE.

Page 3

[¶1] Defendant, Deutsche Bank National Trust Co., appeals from orders of the circuit court of Cook County granting summary judgment in favor of plaintiff, 1010 Lake Shore Association, denying defendant's motion to reconsider the court's grant of summary judgment, and awarding plaintiff attorney fees and costs. On appeal, defendant contends that the court erred by granting summary judgment in favor of plaintiff because the court misinterpreted section 9(g)(3) of the Condominium Property Act (Act) (765 ILCS 605/9(g)(3) (West 2008)) and a genuine issue of material fact existed regarding the amount of assessments incurred after the foreclosure and sale of the subject property. Defendant also contends that the court abused its discretion by denying its motion to reconsider and awarding the amount of attorney fees and costs sought by plaintiff. For the reasons that follow, we affirm.

[¶2] BACKGROUND

[¶3] The record shows that defendant purchased the condominium unit at issue at a judicial sale on June 17, 2010. On May 17, 2012, plaintiff filed a complaint alleging that defendant was unlawfully withholding possession of the unit because, as of March 27, 2012, defendant owed $62,530.81 in assessments. Plaintiff requested possession of the property, an award of all unpaid assessments incurred as of the date of trial, attorney fees, and costs. On August 9, 2012, plaintiff filed a motion for summary judgment, asserting that there were no questions of material fact regarding defendant's failure to pay assessments or the amount owed and that, because defendant failed to make any payments following the foreclosure and sale, the lien against the property which resulted from prior unpaid assessments had not been extinguished and defendant was required to pay those assessments. Plaintiff attached the signed affidavit of Mary Morrison, the property manager for plaintiff, in which Morrison averred that no assessment payments had been made on the unit's account since July 1, 2010, the outstanding balance on the account as of August 8, 2012, was $67,935.16, assessments accrued at the rate of $1,041.87 per month, and late fees accrued at the rate of $50 per month. Defendant responded that it was not liable for any unpaid assessments incurred

Page 4

prior to its purchase of the unit, which accounted for more than $43,000 of the total amount of unpaid assessments, and that a genuine issue of material fact existed regarding the amount of assessments that were incurred after it purchased the unit. On October 29, 2012, the court entered orders granting summary judgment in favor of plaintiff in the amount of $70,018.90 and granting plaintiff possession of the property.

[¶4] On November 20, 2012, plaintiff filed a fee petition requesting $7,423.50 in attorney fees and costs. On November 28, 2012, defendant filed a motion to reconsider the order granting summary judgment, asserting that the court misinterpreted section 9(g)(3) of the Act, the amount of assessments due after the foreclosure and sale was unclear, and plaintiff's claim was barred by the doctrine of res judicata. On December 17, 2012, defendant filed a response to plaintiff's fee petition, asserting that plaintiff was not entitled to any attorney fees because the court erred by granting summary judgment, the amount of attorney fees was unreasonable, and plaintiff failed to provide sufficient support for its request of $698.50 for filing costs. On February 19, 2013, the court entered an order denying defendant's motion to reconsider, awarding plaintiff $6,725 in attorney fees and $698.50 in costs, and finding there was no just reason for delaying an appeal from its order.

[¶5] ANALYSIS

[¶6] I. Summary Judgment

[¶7] A. Section 9(g)(3)

[¶8] Defendant contends that the court erred by granting summary judgment in favor of plaintiff because the court's decision was based on a misinterpretation of section 9(g)(3) of the Act. A party is entitled to summary judgment when the pleadings, depositions, admissions, affidavits, and exhibits on file, viewed in the light most favorable to the nonmoving party, show there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Kajima Construction Services, Inc. v. St. Paul Fire & Marine Insurance Co., 227 Ill.2d 102, 106, 879 N.E.2d 305, 316 Ill.Dec. 238 (2007). The circuit court's ruling on a motion for summary judgment is reviewed de novo. Abrams v. City of Chicago, 211 Ill.2d 251, 258, 811 N.E.2d 670, 285 Ill.Dec. 183 (2004).

[¶9] A court's primary objective in construing a statute is to ascertain and give effect to the intent of the legislature. Prazen v. Shoop, 2013 IL 115035, ¶ 21, 998 N.E.2d 1, 375 Ill.Dec. 709. The first step in determining legislative intent is to examine the language of the statute, and when the language is clear and unambiguous, the statute must be given its plain meaning without resort to further aids of statutory construction. Alvarez v. Pappas, 229 Ill.2d 217, 228, 890 N.E.2d 434, 321 Ill.Dec. 712 (2008).

[¶10] Section 9(g)(3) consists of two sentences, the first of which provides that " [t]he purchaser of a condominium unit at a judicial foreclosure sale *** 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 sale." 765 ILCS 605/9(g)(3) (West 2008). The second sentence provides that " [s]uch payment confirms the extinguishment of any lien created pursuant to paragraph (1) *** 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 ...


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