US Bank Trust, N.A. v. Burnett

• Citation: 2021 IL App (1st) 210135,194 N.E.3d 548,457 Ill.Dec. 59
• Decision Date: 17 November 2021
• Docket Number: 1-21-0135
• Parties: US BANK TRUST, N.A., AS TRUSTEE FOR LSF11 MASTER PARTICIPATION TRUST, Plaintiff-Appellee, v. Lynette BURNETT and All Unknown Occupants, Defendants (Michelle Gilbert, Edward Campbell, and Lawyers’ Committee for Better Housing, Appellants).
• Court: United States Appellate Court of Illinois

2021 IL App (1st) 210135
194 N.E.3d 548
457 Ill.Dec. 59

US BANK TRUST, N.A., AS TRUSTEE FOR LSF11 MASTER PARTICIPATION TRUST, Plaintiff-Appellee,
v.
Lynette BURNETT and All Unknown Occupants, Defendants

(Michelle Gilbert, Edward Campbell, and Lawyers’ Committee for Better Housing, Appellants).

No. 1-21-0135

Appellate Court of Illinois, First District, THIRD DIVISION.

Filed November 17, 2021

H. Nicholas Berberian, Tina L. Winer, and Daniel M. Terhune, of Neal, Gerber & Eisenberg LLP, of Chicago, for appellants.

Robert Kahn and Michael Griffin, of Sanford Kahn, LLP, of Chicago, for appellee.

Miriam Hallbauer and Lawrence D. Wood, of Legal Aid Chicago, of Chicago, amicus curiae.

JUSTICE McBRIDE delivered the judgment of the court, with opinion.

457 Ill.Dec. 61

¶ 1 Appellants, Michelle Gilbert and Edward Campbell, are attorneys who work for the Lawyers’ Committee for Better Housing (LCBH), a not-for-profit legal aid organization that represents individuals who are unable to afford private counsel in eviction proceedings. Gilbert and Campbell represented defendant, Lynette Burnett, in an eviction action brought by plaintiff, US Bank Trust, N.A., as trustee for LSF11 Master Participation Trust (US Bank). During the course of those proceedings, the trial court assessed a sanction against Gilbert and Campbell, as well as their employer, LCBH, in the amount of $2000 pursuant to Illinois Supreme Court Rule 137 (eff. Jan. 1, 2018), finding that they failed to perform a reasonable inquiry into certain allegations made by their client, Burnett, regarding a conversation she had with counsel for US Bank, Steven Anderson. Gilbert, Campbell and LCBH appeal that judgment, arguing that the award was based on several errors and should be reversed.

¶ 2 The record shows that on August 26, 2020, US Bank filed a verified complaint for eviction, seeking to evict Burnett from the residence located at 824 East 38th Place #D3-105, in Chicago. US Bank alleged that on or about August 18, 2020, its agents had discovered that Burnett "and others," later determined to be Burnett's two young children, had moved into that residence. US Bank stated that when Burnett was found in occupancy of the premises, she produced a "[b]ogus [l]ease" showing that the residence had been rented to her effective July 1, 2020, by an individual named Oscar Sanchez. US Bank stated that it had "no idea who Oscar Sanchez" was, that he was not authorized by US Bank to take any actions related to the residence, and that he had not returned any phone calls made to him by counsel for US Bank. US Bank alleged that its counsel contacted Burnett by phone and email to

194 N.E.3d 551

457 Ill.Dec. 62

request that she voluntarily vacate the premises, and although Burnett "acknowledged that she was likely the victim of a scam," she refused to vacate. US Bank characterized Burnett and her family as "squatters," further alleging that they "illegally entered the property without authorization (presumably by breaking in and chang[ing] the locks)," and stated that they "now den[ied] [US Bank] access to the Premises such that [US Bank] cannot further determine how many individuals are residing therein nor what activities are taking place inside the premises." US Bank alleged that Burnett's "continued occupancy of the building constitute[d] a threat to [the] health and safety of other occupants of the building" and posed a "severe risk" to the property itself. US Bank attached documentation indicating that it had acquired the property in April of 2019 through a public sale after foreclosure.

¶ 3 On September 16, 2020, Burnett and US Bank appeared before the trial court via Zoom.¹ Burnett was self-represented, and attorney Anderson appeared on behalf of US Bank. During the hearing, Burnett informed the court that she had a previous conversation with Anderson during which Anderson alleged that she had no legal basis to be in possession of the residence because Sanchez had no authority or legal right to lease the residence to her. Burnett told the court that, after speaking with Anderson, she contacted Sanchez and informed him that US Bank was seeking possession of the premises. Burnett further stated that she attempted to speak with Sanchez on subsequent occasions, but those attempts were unsuccessful.

¶ 4 After hearing from both parties, the court indicated that, unless the parties were able to reach an agreement, a trial date would be set for approximately one week later, to give Burnett time to prepare and consult with or hire an attorney. The court apprised Burnett that if the case proceeded to trial, US Bank would have the burden of proving its case. The court also informed Burnett that she may have defenses to US Bank's allegations and assertions that could be offered at trial. The court further stated that if US Bank was able to satisfy its burden after a trial, the court would stay the eviction for about a week, after which US Bank could file the eviction order with the Sheriff's Department to effectuate the eviction. The court asked Burnett if she understood the ramifications of losing at trial, and she said that she did.

¶ 5 Attorney Anderson then requested that the court engage in a pretrial settlement conference to attempt to resolve the matter. The court asked Burnett if she was open to discussing settlement but advised her that she was not required to do so, as she had been granted a week to consult an attorney. Burnett agreed. The court then asked Anderson how much time US Bank would be willing to give Burnett to vacate the residence, and Anderson responded that if Burnett agreed to vacate by October 9, 2020, admit to the allegations of the complaint, and agree to a mutual waiver of claims, US Bank would dismiss the case and would not oppose sealing the file.

¶ 6 The court asked Burnett if she wanted to accept US Bank's offer and she said that she did. The court cautioned Burnett that if she accepted, she would be held to the terms of the agreement. If she vacated

194 N.E.3d 552

457 Ill.Dec. 63

the residence on or before October 9, 2020, the case would be dismissed and the file would be sealed. However, if she failed to vacate by that date, US Bank would request and receive an "order of possession instanter " and the file would be unsealed. The court asked Burnett if she understood the repercussions of failing to vacate the residence by the agreed date, and she said that she did.

¶ 7 Anderson then informed the court that Burnett had not responded to his previous e-mails and requested authorization to draft an agreed order reflecting the terms of the agreement and indicating that Burnett had agreed to those terms in open court. The court asked Burnett if she had any issue with Anderson's request, and Burnett responded that she did not. The court granted Anderson's request, and Anderson confirmed Burnett's e-mail address. The court instructed Anderson, and he agreed, to copy Burnett on the e-mail when he submitted the agreed order to the court. Anderson further said that he would "include the appropriate language" in the preamble of the agreed order indicating Burnett's agreement to its terms in open court via Zoom.

¶ 8 Later that day, the court entered an "Agreed Order for Unauthorized Occupants to Move Out," noting that "the parties have reached a settlement as affirmed by Defendant Burnett via Zoom in Court on 9/16/20 at 9:30 a.m." The order indicated that Burnett "admit[ted] to the allegations in the Complaint and agree[d] that she and any other occupants shall voluntarily relinquish possession by 5:00 p.m. on October 9, 2020." Burnett further agreed that if she failed to move, "an Eviction Order enforceable instanter shall enter against her and all occupants instanter as of the date of the Compliance Status hearing." Burnett agreed to "waive and fully release any and all CRLTO claims, personal injury claims and/or claims of any nature that [she] ha[d] or may have against [US Bank], its shareholders, attorneys, agents and members related to [Burnett's] occupancy and use of the subject property and this lawsuit." Finally, the agreed order provided that, if Burnett vacated, "[US Bank] shall dismiss this suit without prejudice at the Compliance Status hearing and seal it."

¶ 9 The Order further stated that "[a]ny and all claims that [Burnett] ha[d] or may have against [US Bank] *** are waived and fully released with prejudice instanter ;" that if she was "still in possession of the premises after 5:00 p.m. on 10/9/20 an Eviction Order enforceable instanter *** shall enter at the Compliance Status hearing instanter. If [she] vacated as agreed, this matter will be dismissed without prejudice and sealed."

¶ 10 Subsequent to the September 16, 2020, hearing, Burnett sought legal counsel from Gilbert and Campbell through LCBH (collectively, the LCBH attorneys). On October 8, 2020, Burnett filed a "Combined Motion to Vacate Alleged Agreed Order, Dismiss the Case Pursuant to Section 2-619, and Seal the Record," which was signed by Campbell.

¶ 11 Burnett argued that the agreed order should be vacated for several reasons. First, Burnett asserted that she "did not and, indeed, could not have agreed to the entry of [the] order" because Anderson prepared the order and sent it to the court without showing it to her first. Second, Burnett argued that the agreed order should be vacated because the parties "had grossly disparate capacity in discussion of the ‘agreed’ order," pointing out that Anderson is an "experienced eviction attorney," while Burnett was a pro se litigant at the time of the order's entry. She argued that, as a pro se litigant, Burnett was unable to understand

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457 Ill.Dec. 64

"what she was purportedly agreeing to even if she had been shown the alleged agreed order," which used "confusing legal terminology that a pro se person cannot understand." Burnett also alleged that the agreed order "lack[ed] consideration and [wa]s an invalid contract." Burnett additionally asserted that she...