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Quadrangle House Condominium Association v. U.S. Bank, N.A.

Court of Appeals of Illinois, First District, Sixth Division

April 20, 2018

QUADRANGLE HOUSE CONDOMINIUM ASSOCIATION, Plaintiff-Appellant,
v.
U.S. BANK, N.A., Defendant-Appellee.

          Appeal 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.

          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 ...


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