Court of Appeals of Illinois, First District, Sixth Division
from the Circuit Court of Cook County No. 20 M1 700735
Honorable Orville E. Hambright, Jr., Judge, Presiding.
HOFFMAN PRESIDING JUSTICE delivered the judgment of the
court, with opinion. Justices Cunningham and Connors
concurred in the judgment and opinion.
HOFFMAN PRESIDING JUSTICE
1 The plaintiff, Quadrangle House Condominium Association
(Association), appeals from an order of the circuit court
which: granted summary judgment in favor of the defendant,
U.S. Bank, N.A. (Bank), on the Association's complaint
seeking possession of the condominium unit commonly known as
unit 18E, 6700 S. South Shore Dr., Chicago, Illinois
(hereinafter referred to as the Subject Unit) plus a money
judgment against the Bank in the sum of $17, 810.35
for past due condominium assessments, interest, reasonable
attorney fees and costs; and denying its cross-motion for
summary judgment. For the reasons which follow, we affirm the
judgment of the circuit court.
2 The facts giving rise to this litigation are not in
dispute. On October 18, 2011, the Bank filed an action in the
circuit court of Cook County against Sharla Hicks, the then
title holder of the Subject Unit, and others to foreclose the
mortgage thereon (case No. 11 CH 35958). On August 12, 2015,
the circuit court in that foreclosure action entered a
judgment of foreclosure and sale in favor of the Bank. A
judicial sale of the Subject Unit was held on November 13,
2015, at which the Bank was the successful bidder. On January
7, 2016, the circuit court entered orders confirming the sale
and granting the Bank possession of the Subject Unit.
3 On August 30, 2016, the Bank requested verification from
the Association as to the amount of monthly assessments due
on the Subject Unit. On September 1, 2016, the Association
generated and sent a copy of the ledger for the Subject Unit
to the Bank which reflected that there was $5411.31 in unpaid
assessments accruing from November 13, 2015, through
September 1, 2016.
4 On September 13, 2016, the Bank sent a $5411.31 check to
the Association for the unpaid assessments. On November 30,
2016, the Association issued a Notice and Demand for
possession of the Subject Unit to the Bank, demanding
$17, 810.35 for unpaid assessments, plus attorney
fees and costs.
5 On January 13, 2017, the Association commenced the instant
action seeking an order for possession of the Subject Unit
and a judgment against the Bank in the sum of $17,
810.35 plus after-accruing assessments, interest,
reasonable attorney fees, and costs. The past due assessments
claimed, included unpaid assessments that accrued prior to
the Bank's purchase of the Subject Unit.
6 The Bank filed a combined motion under section 2-619.1 of
the Code of Civil Procedure (Code) (735 ILCS 5/2-619.1 (West
2016)), seeking an involuntary dismissal of the
Association's complaint pursuant to section 2-619 of the
Code (id. § 2-619), or in the alternative,
summary judgment in its favor pursuant to section 2-1005 of
the Code (id. § 2-1005). In relevant part, the
Bank argued that, pursuant to section 9(g)(3) of the Illinois
Condominium Property Act (Act) (765 ILCS 605/9(g)(3) (West
2016)), its payment of $5411.31 for assessments accruing
after its purchase of the Subject Unit confirmed the
extinguishment of any lien created in favor of the
Association by reason of unpaid assessments accruing prior to
its purchase of the unit at the judicial foreclosure sale
held on November 13, 2015. The Association responded to the
Bank's motion and filled a cross-motion for summary
judgment, arguing, in relevant part, that the Bank failed to
pay the monthly assessments on the Subject Unit beginning in
the month following its purchase of the unit and only began
paying post-purchase assessments in September of 2016. It
concluded, therefore, that the Bank did not comply with the
requirements of section 9(g)(3) of the Act and its payment of
post-purchase assessments on September 13, 2016, did not
confirm the extinguishment of any lien created in its favor
for unpaid pre-sale assessments.
7 On June 7, 2017, the circuit court entered an order
granting the Bank's motion for summary judgment and
denying the Association's cross-motion for summary
judgment. That order also recites that the Bank withdrew its
motion for involuntary dismissal. This appeal followed.
8 As this case was disposed of by the circuit court in
response to cross-motions for summary judgment, our review is
de novo. See Lake County Grading Co., LLC v.
Village of Antioch, 2014 IL 115805, ¶ 18. Summary
judgment is to be granted only in those cases in which there
is no genuine issue of material fact as to one or more major
issue and the moving party is entitled to judgment as a
matter of law. 735 ILCS 5/2-1005(c) (West 2016). When, as in
this case, parties file cross-motions for summary judgment,
they concede that only a question of law is involved and
invite the court to decide the issue on the record.
Pielet v. Pielet, 2012 IL 112064, ¶ 28.
However, that concession notwithstanding, this court is not
obligated to affirm a summary judgment in favor of either
party if a material issue of fact exists, precluding summary
judgment in favor of the movant. Id.
9 In its brief before this court, the only issue argued by
the Association is whether, pursuant to section 9(g)(3) of
the Act, the Bank's $5411.31 payment for post-purchase
assessments on September 13, 2016, confirmed the
extinguishment of any lien in its favor by reason of the
prior unit owner's failure to pay assessments accruing
prior to the Bank's purchase of the Subject Unit at the
foreclosure sale. The Association did not raise any other
argument in support of a reversal of the circuit court's
judgment. As a consequence, any other argument for reversal
has been forfeited. Ill. S.Ct. R. 341(h)(7) (eff. Nov. 1,
2017); WISAM 1, Inc. v. Illinois Liquor Control
Comm'n, 2014 IL 116173, ¶ 23.
10 Relying upon the supreme court's decision in 1010
Lake Shore Ass'n v. Deutsche Bank National Trust
Co., 2015 IL 118372, the Association contends that
section 9(g)(3) of the Act requires that, in order to confirm
the extinguishment of any lien it possessed on the Subject
Unit for unpaid assessments accruing prior to the Bank's
purchase of the unit, the Bank was required to commence
remitting payment for post-purchase assessments on the unit
in the month following its purchase at the foreclosure sale.
The Association asserts that section 9(g)(3) provides for a
rigid deadline of the month following the foreclosure sale
for the Bank's obligation to commence remitting
post-purchase assessments; and argues that, because the Bank
failed to commence paying assessments for the Subject Unit in
the month following the foreclosure sale, the Bank's
payment of post-purchase assessments in September 2016 did
not extinguish its lien for unpaid pre-sale assessments. The
Association concludes, therefore, that the circuit court
erred in granting summary judgment in favor of the Bank and
denying its cross-motion for summary judgment.
11 We reject the Association's argument that, in order to
extinguish a condominium association's lien for unpaid
pre-sale assessments, the purchaser of a condominium unit at
a judicial foreclosure sale is required to commence remitting
post-purchase assessments in the ...