United States District Court, N.D. Illinois, Eastern Division
MEMORANDUM OPINION AND ORDER
MARIA VALDEZ United States Magistrate Judge.
First Amended Complaint, premised on diversity jurisdiction,
alleges breach of contract against Defendant Extra Space
Storage, Inc. ("Extra Space"), and conversion
against both defendants in relation to items Plaintiff had
stored in a unit at Extra Space that were later foreclosed on
and sold by Extra Space to John Doe. The matter is now before
the Court on Defendant's Motion for Summary Judgment
[Doc. No. 39]. The parties have consented to the jurisdiction
of the United States Magistrate Judge pursuant to 28 U.S.C.
§ 636(c). For the reasons that follow, Defendant's
motion is granted in part and denied in part.
One Way Apostolic Church (“One Way”) is located
in Chicago, Illinois. (LR 56.1(a)(3) ¶ 2.) In November
2013, Noah Nicholson, the church's Pastor and President,
entered into three contracts with a storage facility called
Smart Stop located on Ogden Avenue in Cicero, Illinois.
Nicholson rented three storage units - numbers 3008, 3429,
and 3417 - in order to store church property. (Id.
¶¶ 5-6.) All three agreements contain the following
2. RENT: . . . Rent is due each month on the FIRST day of the
month, in advance and without demand. Owner reserves the
right to require that rent and other charges be paid in cash,
certified check, cashier's check or money order. . . .
Owner, at Owner's sole discretion, may accept or reject
partial rent payments. Acceptance of partial payments of rent
by Owner shall not constitute a waiver of Owner's rights
and Occupant understands and agrees that acceptance of a
partial rent payment made to cure default for non payment
[sic] of rent shall not delay or stop foreclosure on
Occupant's stored property. ALL PAYMENTS MADE TO SATISFY
OUTSTANDING LIEN AMOUNTS AND CHARGES SHALL BE PAID BY
CERTIFIED CHECK, CASHIER'S CHECK, MONEY ORDER OR CASH.
(Id. ¶ 7.)
contracts provide that a late fee will be assessed for
payments made more than six days late, a lien fee for an
account thirty or more days delinquent, and a lien
foreclosure fee for an account sixty or more days delinquent.
14, which is entitled “Notice of Lien, ” explains
that the owner shall have a lien on all personal property
stored in the space pursuant to the Illinois Self Service
Storage Facility Act (“Storage Act”), 770 Ill.
Comp. Stat. §§ 95/1-95/7; that the lien attaches as
of the date that the personal property is brought to the
premises; and that the owner may enforce the lien by selling
or otherwise disposing of the personal property stored in the
space. (LR 56.1(a)(3) ¶ 7.)
the contracts state that “[a]ll notices from Owner or
Manager shall be sent by first-class mail postage prepaid to
Occupant's last known address or to the electronic mail
address provided by the Occupant in this Rental Agreement.
Notices shall be deemed given when deposited with the U.S.
Postal Service or when sent by electronic mail. All statutory
notices shall be sent as required by law.”
reviewed the contracts prior to executing them on November
23, 2013. The occupant information listed on the contracts
was Noah Nicholson, 1160 S. Michigan Ave., Chicago, Illinois.
The Customer Information Form completed and signed by
Nicholson the same day listed the Michigan Avenue contact
address and an employer address of 5758 W. Fillmore St.,
Chicago, Illinois, and it noted Nicholson's agreement to
provide written notification of any changes to his contact
address. (Id. ¶¶ 9-11.)
admitted that he did not provide Smart Stop with a written
notification of an address change on any of the three storage
accounts until January 20, 2016, at which time he completed a
form stating his new residential address was 17037 Janine
Court, Orland Park, Illinois. (Id. ¶
August 15, 2015, a Smart Stop employee spoke with Nicholson
to advise him that he was late on the rent for all three
units, that a foreclosure auction was forthcoming, and that
he had to pay the entire balance through certified method of
payment to avoid the auction. (Id. ¶ 15.) On
August 31, 2015 Plaintiff paid $3600 to Smart Stop in the
form of a cashier's check, an amount that satisfied rent
owed for June, July, and August plus applicable fees for all
three units. (Id. ¶¶ 16-17.) As of
September 1, 2015, the monthly rent on unit 3008 was $315,
unit 3429 was $826, and unit 3417 was $301.50. (Id.
October 1, 2015, defendant Extra Space took over the storage
facility from Smart Stop; it continued to honor all of Smart
Stop's storage rental agreements, including those with
Plaintiff. (Id. ¶ 14.)
October 10, 2015, Plaintiff had failed to pay the monthly
rent due for both September and October, and Plaintiff owed
Extra Space the following amounts in combined rental and late
fees: $2067.40 for unit 3429, $898.60 for unit 3008, and
$856.00 for unit 3417; the total amount owed was $3822.00.
(Id. ¶¶ 19-20, 24.) That same day, Extra
Space mailed three Notice of Lien and Foreclosure Letters,
one per unit, to Noah Nicholson at the Michigan Avenue
address listed on the agreements. (Id. ¶ 27.)
The letter contained an itemized statement of the unpaid rent
and fees owed on each unit; the date on which the total
amount was due; the name, address, and telephone number of
the Ogden facility; the date, time, location, and manner of
the upcoming foreclosure auction, which was scheduled for
November 18, 2015 at 10:00 a.m.; a demand for payment within
fifteen days; and a statement in bold advising that if the
total amount was not paid within fifteen days, a lien would
be imposed, and the property will be sold at auction to
satisfy the lien. (Id. ¶ 28.) An Extra Space
representative, Tony Chenoweth, mailed six more letters on
October 17, 2015 and received Certificates of Mailing from
the postal service indicating six letters were mailed from
the Berwyn Post Office. Three were addressed to the Orland
Park address, three others were addressed to an address
located at 5758 W. Fillmore St., Chicago, Illinois.
(Id. ¶¶ 29-33.) Of the nine notice letters
sent to Nicholson in October 2015, only the three sent to the
Orland Park address were not returned as undeliverable.
(Id. ¶ 34.)
to Extra Space, its employees called Nicholson six times
between October 10 and November 16, 2015 to discuss the
delinquency issue. However, Defendant claims that Nicholson
never answered the telephone calls and did not return the
voice messages left on his mobile phone. (Id. ¶
35.) Plaintiff denies that any of these communications
mentioned a foreclosure sale; he believed they were calling
with regard to his September rent being thirty days late, not
to tell him the accounts were in foreclosure. (LR
56.1(b)(3)(B) ¶ 35.)
October 28, 2015, Nicholson mailed a check in the amount of
$1500.00 to the Ogden Avenue storage facility. (LR 56.1(a)(3)
¶ 21.) The check was drawn on the church's business
account, and the memo line referred to “3008, 3429,
3417” and the account number. No further instructions
were given as to how the $1500.00 was to be applied toward
the amounts owed on the three units. (Id. ¶
Space rejected the October 28, 2015 check. Its stated reasons
for rejecting the check are based upon Section 2 of the
rental agreement, which provides that Extra Space can reject
partial payments; payments for units in foreclosure status
are to be paid only by certified check, cashier's check,
money order, or cash; and Extra Space reserves the right to
require that rent and other charges be paid by only certified
methods of payment. (Id. ¶ ...