1010 Lake Shore Ass'n v. Deutsche Bank Nat'l Trust Co.

• Decision Date: 12 August 2014
• Docket Number: No. 1–13–0962.,1–13–0962.
• Citation: 385 Ill.Dec. 443,19 N.E.3d 1,2014 IL App (1st) 130962
• Parties: 1010 LAKE SHORE ASSOCIATION, Plaintiff–Appellee, v. DEUTSCHE BANK NATIONAL TRUST COMPANY, as Trustee for Loan Tr 2004–1, Asset–Backed Certificates, Series 2004–1, Defendant–Appellant.
• Court: United States Appellate Court of Illinois

2014 IL App (1st) 130962

19 N.E.3d 1

385 Ill.Dec. 443

1010 LAKE SHORE ASSOCIATION, Plaintiff–Appellee,

v.DEUTSCHE BANK NATIONAL TRUST COMPANY, as Trustee for Loan Tr 2004–1, Asset–Backed Certificates, Series 2004–1, Defendant–Appellant.

No. 1–13–0962.

Appellate Court of Illinois, First District, Second Division.

Opinion filed Aug. 12, 2014.

Rehearing Denied Sept. 29, 2014.

Modified Upon Denial of Rehearing Oct. 7, 2014.

OPINION

Justice SIMON delivered the judgment of the court, with opinion.

¶ 1 Defendant, Deutsche Bank National Trust Co., appeals from orders of the circuit court of Cook County granting summary judgment in favor of plaintiff, 1010 Lake Shore Association, denying defendant's motion to reconsider the court's grant of summary judgment, and awarding plaintiff attorney fees and costs. On appeal, defendant contends that the court erred by granting summary judgment in favor of plaintiff because the court misinterpreted section 9(g)(3) of the Condominium Property Act (Act) ( 765 ILCS 605/9(g)(3) (West 2008)) and a genuine issue of material fact existed regarding the amount of assessments incurred after the foreclosure and sale of the subject property. Defendant also contends that the court abused its discretion by denying its motion to reconsider and awarding the amount of attorney fees and costs sought by plaintiff. For the reasons that follow, we affirm.

¶ 2 BACKGROUND

¶ 3 The record shows that defendant purchased the condominium unit at issue at a judicial sale on June 17, 2010. On May 17, 2012, plaintiff filed a complaint alleging that defendant was unlawfully withholding possession of the unit because, as of March 27, 2012, defendant owed $62,530.81 in assessments. Plaintiff requested possession of the property, an award of all unpaid assessments incurred as of the date of trial, attorney fees, and costs. On August 9, 2012, plaintiff filed a motion for summary judgment, asserting that there were no questions of material fact regarding defendant's failure to pay assessments or the amount owed and that, because defendant failed to make any payments following the foreclosure and sale, the lien against the property which resulted from prior unpaid assessments had not been extinguished and defendant was required to pay those assessments. Plaintiff attached the signed affidavit of Mary Morrison, the property manager for plaintiff, in which Morrison averred that no assessment payments had been made on the unit's account since July 1, 2010, the outstanding balance on the account as of August 8, 2012, was $67,935.16, assessments accrued at the rate of $1,041.87 per month, and late fees accrued at the rate of $50 per month. Defendant responded that it was not liable for any unpaid assessments incurred prior to its purchase of the unit, which accounted for more than $43,000 of the total amount of unpaid assessments, and that a genuine issue of material fact existed regarding the amount of assessments that were incurred after it purchased the unit. On October 29, 2012, the court entered orders granting summary judgment in favor of plaintiff in the amount of $70,018.90 and granting plaintiff possession of the property.

¶ 4 On November 20, 2012, plaintiff filed a fee petition requesting $7,423.50 in attorney fees and costs. On November 28, 2012, defendant filed a motion to reconsider the order granting summary judgment, asserting that the court misinterpreted section 9(g)(3) of the Act, the amount of assessments due after the foreclosure and sale was unclear, and plaintiff's claim was barred by the doctrine of res judicata. On December 17, 2012, defendant filed a response to plaintiff's fee petition, asserting that plaintiff was not entitled to any attorney fees because the court erred by granting summary judgment, the amount of attorney fees was unreasonable, and plaintiff failed to provide sufficient support for its request of $698.50 for filing costs. On February 19, 2013, the court entered an order denying defendant's motion to reconsider, awarding plaintiff $6,725 in attorney fees and $698.50 in costs, and finding there was no just reason for delaying an appeal from its order.

¶ 5 ANALYSIS

¶ 6 I. Summary Judgment

¶ 7 A. Section 9(g)(3)

¶ 8 Defendant contends that the court erred by granting summary judgment in favor of plaintiff because the court's decision was based on a misinterpretation of section 9(g)(3) of the Act. A party is entitled to summary judgment when the pleadings, depositions, admissions, affidavits, and exhibits on file, viewed in the light most favorable to the nonmoving party, show there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Kajima Construction Services, Inc. v. St. Paul Fire & Marine Insurance Co., 227 Ill.2d 102, 106, 316 Ill.Dec. 238, 879 N.E.2d 305 (2007). The circuit court's ruling on a motion for summary judgment is reviewed de novo. Abrams v. City of Chicago, 211 Ill.2d 251, 258, 285 Ill.Dec. 183, 811 N.E.2d 670 (2004).

¶ 9 A court's primary objective in construing a statute is to ascertain and give effect to the intent of the legislature. Prazen v. Shoop, 2013 IL 115035, ¶ 21, 375 Ill.Dec. 709, 998 N.E.2d 1. The first step in determining legislative intent is to examine the language of the statute, and when the language is clear and unambiguous, the statute must be given its plain meaning without resort to further aids of statutory construction. Alvarez v. Pappas, 229 Ill.2d 217, 228, 321 Ill.Dec. 712, 890 N.E.2d 434 (2008).

¶ 10 Section 9(g)(3) consists of two sentences, the first of which provides that "[t]he purchaser of a condominium unit at a judicial foreclosure sale * * * shall have the duty to pay the unit's proportionate share of the common expenses for the unit assessed from and after the first day of the month after the date of the judicial foreclosure sale." 765 ILCS 605/9(g)(3) (West 2008). The second sentence provides that "[s]uch payment confirms the extinguishment of any lien created pursuant to paragraph (1) * * * of this subsection (g) by virtue of the failure or refusal of a prior unit owner to make payment of common expenses, where the judicial foreclosure sale has been confirmed by order of the court." Id. Section 9(g)(1) provides that "[i]f any unit owner shall fail or refuse to make any payment of the common expenses or the amount of any unpaid fine when due," the amount of any unpaid assessments, together with any interest, late charges, reasonable attorney fees, and costs of collections, "shall constitute a lien on the interest of the unit owner in the property." 765 ILCS 605/9(g)(1) (West 2008).

¶ 11 Defendant asserts that it cannot be required to pay the more than $40,000 in assessments that were incurred under section 9(g)(1) prior to its purchase of the unit because section 9(g)(3) provides that the purchaser of a condominium unit at a foreclosure sale only has a duty to pay its share of common expenses assessed from and after the first day of the month following the sale. Plaintiff responds that the plain language of section 9(g)(3) provides that a lien arising from unpaid assessments by the prior owner under section 9(g)(1) is not extinguished until the new owner pays its share of the common expenses assessed after the foreclosure and sale. Thus, the issue presented by the parties is whether the purchaser of a condominium unit that does not pay its assessments following its purchase of the unit can be held responsible for assessments that were not paid by the previous owner or whether, pursuant to section 9(g)(3), a new owner may never be held responsible for past assessments. As such, we will limit our consideration to that specific statutory question.

¶ 12 While we agree with defendant that the first sentence of section 9(g)(3) provides that the purchaser of a unit at a foreclosure sale only has a duty to pay its share of the common expenses assessed from the first day of the month after the date of the sale, the second sentence of section 9(g)(3), which defendant does not address, provides that the making of that payment "confirms the extinguishment" of a lien created under section 9(g)(1). The word "confirm" is defined as meaning "[t]o give formal approval to," "[t]o verify or corroborate," and "[t]o make firm or certain." Black's Law Dictionary 340 (9th ed. 2009). Thus, section 9(g)(3), as a whole, provides that the purchaser of a unit at a judicial foreclosure sale has a duty to pay assessments which are incurred after the sale and that the effect of making such a payment is to approve, verify, and make certain the extinguishment of a preexisting lien created under section 9(g)(1). As such, we determine that, under the plain language of section 9(g)(3), a lien created under section 9(g)(1) for unpaid assessments by a previous owner is not fully extinguished following a judicial foreclosure and sale until the purchaser makes a payment for assessments incurred after the sale.

¶ 13 In addition, a court should interpret a statute as a whole and, "if possible, so that no term is rendered superfluous or meaningless." Wisnasky–Bettorf v. Pierce, 2012 IL 111253, ¶ 16, 358 Ill.Dec. 624, 965 N.E.2d 1103. If this court adopted defendant's interpretation of section 9(g)(3) and held that the purchaser of a unit at a foreclosure sale may never be required to pay assessments that are incurred prior to the sale, we would be holding that a lien created under section 9(g)(1) for unpaid assessments by a previous owner is fully extinguished by the foreclosure and sale. Such a holding would render the second sentence of section 9(g)(3) superfluous and meaningless because the extinguishment of the section 9(g)(1) lien would have already been confirmed before the purchaser was required to make any assessment payments under section 9(g)(3).

¶ 14 Defendant, citing section 15–1509(c) of the Illinois Mortgage Foreclosure Law ( 735 ILCS 5/15–1509(c) (West 2008)) and BCGS, L.L.C. v. Jaster, 299 Ill.App.3d 208, 213, 233...