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5510 Sheridan Road Condominium Association v. U.S. Bank

Court of Appeals of Illinois, First District, Sixth Division

May 5, 2017

5510 SHERIDAN ROAD CONDOMINIUM ASSOCIATION, Plaintiff-Appellee,
v.
U.S. BANK, Defendant-Appellant.

          Filed March 31, 2017

         Under Appeal from the Circuit Court of Cook County, No. 15-M1-702180; the Hon. Martin Paul Moltz, Judge, presiding.

          Maurice Wutscher LLP, of Chicago (Ralph T. Wutscher, Coleman J. Braun, and Jeffrey T. Karek, of counsel), for appellant.

          Appeal Johnson & Sullivan, Ltd., of Chicago (Mario A. Sullivan, of counsel), for appellee.

          Panel JUSTICE DELORT delivered the judgment of the court, with opinion. Presiding Justice Hoffman and Justice Rochford concurred in the judgment and opinion.

          OPINION

          DELORT JUSTICE.

         ¶ 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 (Forcible Entry Act) (735 ILCS 5/9-101 et seq. (West 2014)) seeking possession of the unit, presale common expenses, and attorney fees. The association's theory of recovery was that payments U.S. Bank remitted to the association for postsale 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 presale expenses. The circuit court agreed and granted summary judgment to the association and an order of possession, which included a judgment for unpaid presale expenses. We reverse those orders and enter summary judgment in favor of U.S. Bank.

         ¶ 2 BACKGROUND

         ¶ 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 Ass'n 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 Forcible Entry Act. 5510 North Sheridan Road Condominium Ass'n 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 association.

         ¶ 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 confirmation order.

         ¶ 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 postsale expenses that had accrued from August 2014 to January 2015.

         ¶ 7 On January 30, 2015, the association filed this lawsuit under the Forcible Entry Act demanding payment from U.S. Bank for the preforeclosure sale common expenses for the unit that 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 postsale expenses therefore extinguished the association's lien against the unit for presale 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 presale expenses from October 2012 through May 2014, (2) ...


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