Draper & Kramer, Inc. v. King, 1–13–2073.

Decision Date19 December 2014
Docket NumberNo. 1–13–2073.,1–13–2073.
PartiesDRAPER AND KRAMER, INC., as Managing Agent for Island Terrance, Plaintiff–Appellee, v. Nicole KING, Defendant–Appellant.
CourtUnited States Appellate Court of Illinois

LAF, of Chicago (Lawrence D. Wood, Miriam Hallbauer, and Meghan P. Carter, of counsel), for appellant.

Sanford Kahn, Ltd., of Chicago (Richard W. Christoff, of counsel), for appellee.

OPINION

Presiding Justice PALMER delivered the judgment of the court, with opinion.

¶ 1 Defendant Nicole King resides with her two minor children in an apartment at Island Terrace in the City of Chicago, a section 8 housing unit for which she paid a reduced amount of rent based on a percentage of her income.1 Plaintiff, Draper & Kramer, Inc., as representative of Island Terrace, filed a forcible entry and detainer action for possession against defendant on April 3, 2013, for nonpayment of rent. The complaint alleged that defendant owed the sum of $189 in rent. The matter was set for proceedings before the circuit court on April 18, 2013.

¶ 2 On April 18, 2013, defendant appeared in court without the assistance of an attorney. The circuit court entered an order granting possession and recovery of $198.09, plus costs, to plaintiff. The order provided that enforcement of the judgment was stayed until May 15, 2013. Written at the top of the typed order was the word “Agreed” next to the title of the order. At the bottom, the word “Agreed” was again written in, with defendant's signature next to it.

¶ 3 On May 7, 2013, defendant's attorney filed an appearance and demand for a jury trial, along with a motion to vacate the April 18 agreed order pursuant to section 2–1301(e) of the Illinois Code of Civil Procedure (the Code) (735 ILCS 5/2–1301(e) (West 2012)). Defendant argued that the April 18 order should be vacated because she did not understand that she was agreeing to pay the amount due and also surrender possession of the apartment; she believed she was agreeing to pay the amount demanded and remain in the apartment. She urged that the order should be vacated because of the gross disparity in the parties' capacities and bargaining positions as defendant was not represented by counsel, was unsophisticated and unfamiliar with the law and courtroom procedures, the order was unreasonably favorable to plaintiff, and she had a meritorious defense to the eviction action.

¶ 4 In defendant's affidavit attached to her motion, she averred that she currently paid “$17 or $9” per month in rent2 and her federally subsidized rental assistance runs with the premises, so she would lose it if forced to leave. She averred that she receives $526 per month in food stamps and has no other source of income. She previously received a “Temporary Assistance to Needy Families” cash grant (TANF) in the amount of $437, but her TANF benefits stopped in February 2013 and she last received TANF money in January 2013. Her rent in December 2012 was $5, and in January 2013, it increased to $77 because her TANF benefits had been increased. She averred that she paid her January rent on January 18, 2013. She then received a “Notice of Change” from the Illinois Department of Human Services (DHS) around January or February 2013 (TANF notice) advising her that the TANF benefits would stop. She averred that she received the TANF notice on a Friday after 5 p.m., and she brought it to the property manager's office on the following Monday and gave it to “Sandy” at the front desk. However, Sandy would not take the TANF notice and instructed her to return after lunch. Defendant averred that she was unable return that afternoon because of childcare duties, but that evening, defendant made a copy of the TANF notice and placed the copy in the management office's dropbox attached to the office door because it was afterhours. She averred that plaintiff accepts rent and other letters through the dropbox. She did not hear from plaintiff and assumed that the letter was received and she would be informed when to come to the office. However, on approximately March 9, 2013, defendant received a five-day notice from plaintiff informing her that she owed $189.09 in unpaid rent. She did not receive a notice in February regarding February's rent. The notice was placed under her door.

¶ 5 Defendant averred that the Monday following receipt of the five-day notice, she spoke with plaintiff's property manager, Antoinette Moton, who informed her that defendant never paid February or March rent. Defendant averred that she told Moton that she placed the TANF notice regarding her change of income in the dropbox, but Moton indicated that she never received it. Defendant told Moton she would obtain another copy of the TANF notice for Moton. Defendant had misplaced her copy and she went to the DHS office to get another copy on March 12, 2013. However, her caseworker was on vacation, so defendant had to return a week later and she was able to obtain a copy of the letter at that point. Defendant averred that she gave Moton a copy of the TANF notice on March 21, 2013. On that same day, she received a letter from Moton. Defendant also averred that she went to speak with Moton that day, and Moton told her that she owed the rent because she did not put the TANF notice “in her hand,” and told defendant to pay the rent and fees. When defendant stated that she could not afford to, Moton indicated that there was nothing she could do because “it was already in court.” Defendant averred that she also received court papers instructing her to go to court on April 18, 2013.

¶ 6 Defendant further averred that she went to court on April 18, without an attorney, but was unfamiliar with the procedure and did not know she “could ask for a continuance to get a free lawyer.” While she was looking for her line number outside the courtroom, the attorney for plaintiff, Eileen Kahn, asked if she wanted to discuss the case. Defendant averred that Kahn asked if she had the money, and defendant stated that she did. She asked if defendant had the fees, but defendant indicated that she did “not have them all” and did not know how much they were. Defendant averred that Kahn indicated that she also did not know. Kahn told defendant, “it was no deals if I did not have the money.” She confirmed that she had the $189. They then went into the courtroom and sat in different areas. Defendant averred that Kahn summoned her and stated that she “would give me time to pay” and said defendant had until April 30, 2013. Defendant asked for more time, and Kahn gave her until May 15, 2013. Kahn then “wrote ‘agreed’ on an order” but defendant did not sign anything at the time.

¶ 7 Defendant further averred that when her case was called, the judge asked whether they had come to an agreement, and Kahn affirmed that they agreed defendant would pay $189 plus fees by May 15, 2013. The judge asked defendant if she agreed, and defendant said “yes.” Kahn stated that defendant “needed to sign the paper,” so defendant signed it, but she did not read it. Defendant then raised her hand and the judge allowed her to ask a question, and she asked how much she had to pay in attorney fees. The judge responded that she only had to pay court costs, which were approximately $375. The judge stamped the paper and the clerk gave defendant a copy. Defendant averred that she thought she was agreeing to pay the money by May 15, 2013, but she did not know that she had also agreed to surrender possession in the order.

¶ 8 Defendant further averred that her property manager was on vacation around that time, but she called Moton on Monday, April 22, 2013, to tell her that she had the money and to ask if she had talked to Kahn about the agreed order. However, Moton stated that she [Moton] would not accept defendant's money because the “judge had given her [Moton] possession of the property, and she [Moton] just wants me [defendant] out.” Defendant responded that no one told her that she had agreed to move. Defendant went to Moton's office to explain what happened in court. Moton explained “that what she [Moton] meant by ‘no deals' was she just wanted me [defendant] out period, no deals, no money.”

¶ 9 Defendant averred that she had meritorious defenses to the eviction action and she would not be able to afford other safe and decent housing for her children based on her limited income. Defendant testified that she did not pay within the five days of the five-day notice because she also received a paper regarding the matter going to court and because Moton told her that she was sending the matter to plaintiff's attorney.

¶ 10 In addition to her affidavit, defendant also attached to her motion to vacate the TANF notice, which was dated January 31, 2013; plaintiff's five-day notice dated March 9, 2013; and plaintiff's March 21, 2013, letter. The TANF noticed stated that her cash benefits would stop as of February 17, 2013. The five-day notice stated that defendant owed $189.09 in rent, and unless payment was made within five days after service of the notice, her right of possession of the apartment would be terminated. It indicated that it was served on defendant “by delivering a true copy to” defendant. The March 21, 2013, letter from Moton stated that the five-day notice period had expired and defendant owed $189.09, and that her account “will be forwarded to the attorney on Friday, March 22, 2013, NO EXCEPTIONS. Once your account goes to the attorney your account could be billed up to $600 for legal fees.”

¶ 11 At the hearing on defendant's motion to vacate on May 28, 2013, defendant's counsel argued that the April 18 agreed order should be vacated because defendant thought she was agreeing to “pay and stay” and because of the disparity in bargaining power as defendant was not represented by counsel at the time. Plaintiff's counsel, Kahn, stated that she never promises anyone that they can “pay and stay” and she never told defendant that she ...

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