Court of Appeals of Illinois, First District, Sixth Division
5510 SHERIDAN ROAD CONDOMINIUM ASSOCIATION, Plaintiff-Appellee,
U.S. BANK, Defendant-Appellant.
from the Circuit Court of Cook County. No. 15 M1 702180
Honorable Martin Paul Moltz, Judge Presiding.
JUSTICE DELORT delivered the judgment of the court, with
opinion. Presiding Justice Hoffman and Justice Rochford
concurred in the judgment.
1 After defendant U.S. Bank acquired a condominium unit
through a foreclosure sale, plaintiff 5510 Sheridan Road
Condominium Association (association) filed this lawsuit
against U.S. Bank pursuant to the Forcible Entry and Detainer
Act (FED Act) (735 ILCS 5/9-101 et seq. (West 2014))
seeking possession of the unit, pre-sale common expenses, and
attorney fees. The association's theory of recovery was
that payments U.S. Bank remitted to the association for
post-sale common expenses months after the foreclosure sale
were untimely under section 9(g)(3) of the Condominium
Property Act (Act) (765 ILCS 605/9(g)(3) (West 2014)) and
thus did not extinguish the association's lien for
pre-sale expenses. The circuit court agreed and granted
summary judgment to the association and an order of
possession which included a judgment for unpaid pre-sale
expenses. We reverse those orders and enter summary judgment
in favor of U.S. Bank.
3 The following facts are drawn from the pleadings and
motions contained in the record, and a joint stipulation
which the parties submitted to the circuit court at the
summary judgment stage. On February 23, 2012, defendant U.S.
Bank sued Thomas and Marilyn Hoffman to foreclose on the
bank's mortgage encumbering the Hoffmans' interest in
a condominium unit at 5510 North Sheridan Road in Chicago.
U.S. Bank National Association, as Trustee for the
Certificate Holders of the LXS 2007-15N Trust Fund v.
Hoffman, 2012 CH 6382 (Cir. Ct. Cook. Co.). The association
was named as a defendant in the foreclosure case but never
appeared. On June 14, 2012, the court entered a judgment of
foreclosure and sale and defaulted the association.
4 On December 26, 2012, before the property was sold pursuant
to the foreclosure court's order, the association sued
the Hoffmans pursuant to the FED Act. 5510 North Sheridan
Road Condominium Association v. Hoffman, 2012 M1 731922 (Cir.
Ct. Cook. Co.). On April 17, 2013, the court hearing that
case entered an order of possession in favor of the
5 Pursuant to the foreclosure court's order, the unit was
set for a judicial sale to be held on May 27, 2014. U.S. Bank
was the successful bidder. On June 25, 2014, notwithstanding
the forcible entry and detainer court's April 17, 2013
possession order in favor of the association, the foreclosure
court confirmed the sale and granted possession to U.S. Bank.
U.S. Bank acquired title to the property on July 3, 2014
through a deed issued pursuant to the foreclosure court's
6 On October 31, 2014, the association transmitted a 30-day
notice to U.S. Bank, claiming that the bank was "in
default in the payment of [its] proportionate share of the
common expenses." The association demanded payment of
$81, 400.35, which included, among other things,
regular and special assessments, parking fees, and late fees
which had accrued from October 1, 2012 through October 1,
2014. In January 2015, U.S. Bank paid $14, 968.76 to
the association, representing only the post-sale expenses
that had accrued from August 2014 to January 2015.
7 On January 30, 2015, the association filed this lawsuit
under the FED Act demanding payment from U.S. Bank for the
pre-foreclosure sale common expenses for the unit which were
in arrears and for possession. The association's theory
of recovery was that its "lien for all past due
assessments has not been extinguished and remain[ed]
valid" because U.S. Bank "failed to [timely] pay
the condominium association assessments, parking fees, late
fees and other charges the month after the date of the
judicial foreclosure sale" as required by section
9(g)(3) of the Act.
8 On July 24, 2015, U.S. Bank and the association filed
cross-motions for summary judgment. In its motion, U.S. Bank
argued that section 9(g)(3) did not contain a timing
requirement and that its January 2015 payment for post-sale
expenses therefore extinguished the association's lien
against the unit for pre-sale expenses. The association, in
contrast, insisted that section 9(g)(3) did contain a timing
requirement with which U.S. Bank failed to comply. As a
result, the association reasoned, U.S. Bank's January
2015 payment did not extinguish the association's lien.
The association claimed that U.S. Bank owed it $94,
873.79, consisting of: (1) $48, 308.17 for
pre-sale expenses from October 2012 through May 2014, (2)
$25, 816.88 for post-sale expenses from June 2014
through September 2015, (3) $11, 980.06 for a 2014
special assessment, (4) $6, 253.28 for a 2014
special assessment, and (5) $2, 515.40 for legal
9 On September 11, 2015, U.S. Bank transmitted two checks to
the association for $24, 989.60 and $827.28. The
checks were accompanied by a letter from U.S. Bank's
counsel stating that they were being "tendered as
payment in full of all outstanding amounts due for the Unit
from June 2014 through and including September 2015."
10 In its response in opposition to U.S. Bank's motion
for summary judgment, the association argued that the
September 2015 payments did not extinguish its lien for
pre-sale expenses because U.S. Bank made them in "bad
faith." By contrast, in its response in
opposition to the association's motion for summary
judgment, U.S. Bank argued that the association's lien
for pre-sale expenses had been extinguished by the January
and September 2015 payments. In its reply in support of its
motion for summary judgment, the association acknowledged
U.S. Bank's January and September 2015 payments, but
contended they were "partial payments."
11 On December 28, 2015, the circuit court entered two
orders. The first order: (1) granted the association's
motion for summary judgment, (2) denied U.S. Bank's
motion for summary judgment, and (3) granted the association
leave to file a petition for attorney fees. The second was an
order for possession which awarded the association possession
of the unit (stayed for three months) and $73,
364.55 representing damages for unpaid pre-sale and
post-sale common expenses. On January 8, 2016, the