Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Wells Fargo Bank, N.A. v. McCondichie

Court of Appeals of Illinois, First District, Fifth Division

March 31, 2017

WELLS FARGO BANK, N.A., acting as agent for HUD (THE OWNER), Plaintiff-Appellee,
v.
VOLNEAT VANETTE McCONDICHIE, a/k/a Volnet McCondichie, Defendant-Appellant, Harvie Bonner and Unknown Occupants, Defendants.

         Appeal from the Circuit Court of Cook County, No. 15 M1 712641 Honorable Diana Rosario, Judge Presiding.

          JUSTICE REYES delivered the judgment of the court, with opinion. Presiding Justice Gordon and Justice Lampkin concurred in the judgment and opinion.

          OPINION

          REYES, JUSTICE

         ¶ 1 Defendant Volneat McCondichie appeals from the circuit court's order, granting summary judgment in favor of plaintiff Wells Fargo Bank, N.A. on its claim for forcible entry and detainer. On appeal, defendant maintains that summary judgment should not have been granted where she was entitled to a relocation assistance fee pursuant to section 5-14-050 of the Protecting Tenants in Foreclosed Rental Property Ordinance (Ordinance) (Chicago Municipal Code § 5-14-050 (added June 5, 2013)). For the reasons that follow, we reverse and remand for further proceedings.

         ¶ 2 BACKGROUND

         ¶ 3 On July 24, 2014, Plaintiff became the owner of a property located at 7223 South Union Avenue, 2nd Floor, Chicago, Illinois (the property), pursuant to an order approving the judicial sale in a separate mortgage foreclosure cause of action. Almost a year later, on July 2, 2015, plaintiff filed a complaint in forcible entry and detainer for possession of the property, alleging that possession was being unlawfully withheld by defendants McCondichie, Harvie Bonner, and unknown occupants. Defendant filed an answer on September 1, 2015, but did not deny the allegations set forth in the complaint. Instead, defendant alleged that she resided in the property pursuant to a valid lease, which was executed on September 1, 2014, and that she was entitled to a relocation assistance fee pursuant to section 5-14-050 of the Ordinance because she is a "qualified tenant." Defendant further alleged that plaintiff's noncompliance with the Ordinance prevented it from obtaining a judgment in this matter. In her prayer for relief, defendant requested that a judgment be entered in her favor and that she be awarded costs. Defendant also attached the September 2014 lease as an exhibit to her answer.

         ¶ 4 On November 10, 2015, plaintiff filed a motion for summary judgment, arguing it had a superior right to possession pursuant to the order approving the judicial sale and the underlying deed. In response, defendant asserted that she had resided in the property since January 6, 2012, and was a "qualified tenant" under the Ordinance because she was a tenant in a foreclosure rental property pursuant to a "bona fide rental agreement" prior to plaintiff becoming the owner. Accordingly, she maintained that she was entitled to the $10, 600 relocation fee as provided in the Ordinance and that plaintiff is not entitled to possession of the property until it abided by said Ordinance. Attached to defendant's response was copy of the executed January 6, 2012, lease. The lease indicated a termination date of January 6, 2013, but it contained further provisions that would establish a month-to-month tenancy after the expiration of the lease. Defendant also averred in an affidavit that she "moved into" the property on or about January 6, 2012, pursuant to the lease, which required her to pay $950 per month, and "continue[d] to reside in [the property] pursuant to a lease dated 9/1/14."

         ¶ 5 In reply, plaintiff argued that the Ordinance did not apply to defendant because the former owner's property rights were foreclosed on July 24, 2014, when the order approving the judicial sale of the property was entered in plaintiff's favor. Thus, when defendant entered into a lease with the former property owner in September 2014, that lease was not a "bona fide lease" as required by the Ordinance. Plaintiff concluded that defendant failed to provide any basis for the claim that plaintiff is liable for the relocation fee pursuant to the Ordinance and that there was no genuine issue of material fact that precluded the entry of summary judgment.

         ¶ 6 The circuit court granted plaintiff's motion and entered an order of possession in favor of plaintiff on December 11, 2015. This appeal followed.

         ¶ 7 ANALYSIS

         ¶ 8 On appeal, defendant contends that the circuit court erred in entering summary judgment in favor of plaintiff where she was a qualified tenant pursuant to a bona fide rental agreement under the Ordinance. According to defendant, pursuant to her original lease, she was a month-to-month tenant at the time plaintiff obtained possession of the property and, thus, is entitled to the $10, 600 relocation assistance fee.

         ¶ 9 In response, plaintiff asserts that the Ordinance cannot form the basis for an affirmative defense to a forcible entry and detainer action. Plaintiff further argues that even if it is a viable defense, defendant (1) did not raise her argument regarding the month-to-month tenancy before the circuit court, and (2) failed to present any evidence that she had a bona fide rental agreement where there was never any acceptance of rent to create such a month-to-month tenancy.

         ¶ 10 Summary judgment is appropriate only "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." 735 ILCS 5/2-1005(c) (West 2014). The purpose of summary judgment is not to decide issues of fact but rather to determine whether any genuine issue of fact exists. Gilbert v. Sycamore Municipal Hospital, 156 Ill.2d 511, 517 (1993). The circuit court must view the documents and exhibits in a light most favorable to the nonmoving party. Banco Popular North America v. Gizynski, 2015 IL App (1st) 142871, ¶ 36. Summary judgment is a drastic measure and may be granted only if the movant's right to judgment is clear and free from doubt. Outboard Marine Corp. v. Liberty Mutual Insurance Co., 154 Ill.2d 90, 102 (1992). The purpose of summary judgment is not to try an issue of fact but rather to determine whether a triable issue of fact exists. Robidoux v. Oliphant, 201 Ill.2d 324, 335 (2002). If the moving party supplies facts, which, if not contradicted, would entitle the party to judgment as a matter of law, the nonmoving party cannot rely on his pleadings alone to create a genuine issue of material fact. Fields v. Schaumburg Firefighters' Pension Board, 383 Ill.App.3d 209, 224 (2008). Instead, "[a]lthough a plaintiff is not required to prove his case at the summary judgment stage, in order to survive a motion for summary judgment, the nonmoving party must present a factual basis that would arguably entitle the party to a judgment." Robidoux, 201 Ill.2d at 335. A reviewing court will not reverse an order granting summary judgment unless it finds that a material question of fact is present and the moving party is not entitled to judgment as a matter of law. Chmielewski v. Kahlfeldt, 237 Ill.App.3d 129, 137 (1992). We review the circuit court's grant of summary judgment de novo. Palm v. 2800 Lake Shore Drive Condominium Ass'n, 2013 IL 110505, ¶ 28. Under de novo review, we perform the same analysis that a trial court would perform. Khan v. BDO Seidman, LLP, 408 Ill.App.3d 564, 578 (2011).

         ¶ 11 Our review of the record reveals that plaintiff's noncompliance with the Ordinance is a viable defense to the forcible entry and detainer action. Section 9-106 of the Forcible Entry and Detainer Act states that "[t]he defendant may under a general denial of the allegations of the complaint offer in evidence any matter in defense of the action." 735 ILCS 5/9-106 (West 2014). Section 9-106 continues, "no matters not germane to the distinctive purpose of the proceeding shall be introduced by joinder, counterclaim or otherwise." Id. Thus, while forcible entry and detainer proceedings determine which party has a right to possession of and not title to real estate (Wood v. Wood, 284 Ill.App.3d 718, 722 (1996)), an issue germane to the proceedings may be introduced by the defendant. Our supreme court has defined "germane" within this context to mean "closely allied" or "closely related; closely connected; relevant; pertinent; appropriate." (Internal quotation marks omitted.) Rosewood Corp. v. Fisher, 46 Ill.2d 249, 256 (1970). We find the Ordinance at issue here is "closely allied" with the Forcible Entry and Detainer Act, ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.