Fifth Third Mortgage Company v. Foster ( 2013 )

ILLINOIS OFFICIAL REPORTS
Appellate Court
Fifth Third Mortgage Co. v. Foster, 2013 IL App (1st) 121361Appellate Court FIFTH THIRD MORTGAGE COMPANY, Plaintiff-Appellee, v.
Caption TAMARA FOSTER, Defendant-Appellant.
District & No. First District, Second Division
Docket No. 1-12-1361
Rule 23 Order filed May 14, 2013
Rule 23 Order
withdrawn June 25, 2013
Opinion filed June 28, 2013
Held Summary judgment was improperly entered for plaintiff mortgagee in its
(Note: This syllabus forcible entry and detainer action filed before the expiration of
constitutes no part of defendant’s lease, since defendant was not named in plaintiff’s
the opinion of the court foreclosure action and plaintiff had no authority to file the forcible entry
but has been prepared and detainer action until after the lease expired.
by the Reporter of
Decisions for the
convenience of the
reader.)
Decision Under Appeal from the Circuit Court of Cook County, No. 11-M1-730099; the
Review Hon. George F. Scully, Jr., Judge, presiding.
Judgment Reversed.
Counsel on Lawyers’ Committee for Better Housing, of Chicago (Frank G. Avellone
Appeal and Mark Swartz, of counsel), for appellant.
Tamara Foster, of Chicago, appellant pro se.
Kluever & Platt, LLC, of Chicago (Andrew L. Platt and M. Reas
Bowman, of counsel), for appellee.
Panel PRESIDING JUSTICE HARRIS delivered the judgment of the court,
with opinion.
Justices Quinn and Simon concurred in the judgment and opinion.
OPINION
¶1 Defendant Tamara Foster appeals from the trial court’s orders granting summary
judgment in favor of plaintiff, Fifth Third Mortgage Co., in its forcible entry and detainer
(FED) action against her, and denying her motion to reconsider. On appeal, defendant
contends that summary judgment was improper where there was a question of fact as to
whether plaintiff was aware of the existence of a written lease before it filed its FED action
and where plaintiff lacked legal authority to file such an action until after the expiration of
that lease.
¶2 The following facts can be gleaned from the record. At all times relevant to this appeal,
defendant rented a house in Chicago. In August 2011, plaintiff obtained ownership rights to
the house as the result of foreclosure proceedings, to which defendant was not a party. On
September 9, 2011, plaintiff served defendant and all other unknown occupants of the house
with a notice to vacate the property and a demand for possession. The notice indicated that
defendant would be required to surrender possession of the house within 90 days “unless you
provide evidence to the undersigned law firm that you are a bona fide tenant pursuant to
section 702(a)(2) (Supp. II 2009) of the Federal ‘Protecting Tenants at Foreclosure Act of
2009’ (‘PTFA’) [(12 U.S.C. § 5220(a)(2) (Supp. II 2009))].” The notice further stated that
if defendant wished to claim protection under the PTFA, she was required to provide the law
firm with a copy of her lease, a return telephone number, and receipts for the last six rent
payments made to the landlord.
¶3 More than 90 days later, on December 20, 2011, plaintiff filed a FED action against
defendant, seeking possession of the house and contending that defendant was unlawfully
continuing to reside there without plaintiff’s permission and without a lease granting tenancy
in the property. Thereafter, defendant was served with the complaint and summons and filed
her appearance and a jury demand.
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¶4 On January 26, 2012, plaintiff filed a motion for summary judgment, arguing that no
genuine issue of material fact existed and that, as a matter of law, it was entitled to judgment
for possession of the house. Defendant responded, moving for summary judgment in her
favor and dismissal of the action with prejudice. In her response, defendant asserted that no
genuine issues of material fact existed; that she was a bona fide tenant under the PTFA; that
her lease did not expire until December 31, 2011; and that plaintiff had no legal authority to
file a FED action until after her lease expired. Defendant asserted that plaintiff’s filing was
premature and did not provide her with due process and that, therefore, plaintiff was not
entitled to possession. According to defendant’s argument, plaintiff would have to issue a
new notice if it intended to evict her. Defendant attached a copy of her lease to her response.
¶5 Following a hearing, the transcript of which does not appear in the record, the trial court
granted plaintiff’s motion for summary judgment. In its decision, the trial court stated that
the material facts were undisputed, including that defendant made no response to the 90-day
notice and that defendant claimed to be a bona fide tenant under the PTFA, pursuant to a
written lease with an expiration date of December 31, 2011. The trial court observed that
although the PTFA provides a bona fide tenant the right to occupy premises until the end of
the remaining term of a lease, the PTFA did not state whether a plaintiff must wait until the
expiration of the lease to commence eviction. The court determined that in the instant case,
where it had found that defendant did not respond to the 90-day notice required by the PTFA
and plaintiff was without knowledge of the existence of a lease, it was proper for plaintiff
to have filed the FED action after the PTFA notice period expired. The court stated it was
“specifically not addressing the question of whether or not Plaintiff would have been
required to wait until the expiration of a known lease before commencing an action against
a bona fide tenant.” The court concluded that the existence of a bona fide lease restricted it
from entering an order for possession enforceable prior to the expiration of the lease but that
the expiration date had passed and that, therefore, as a matter of law, plaintiff had a superior
right to possession. The trial court entered an order for possession with enforcement stayed
until February 27, 2012.
¶6 Defendant filed a motion to reconsider. In the motion, she argued that the 90-day notice
was facially defective because it terminated her tenancy before her bona fide lease period
expired. Defendant further asserted that because plaintiff filed its FED action before her lease
expired, the filing was premature, the trial court lacked subject matter jurisdiction, and the
resulting order granting summary judgment in plaintiff’s favor was void. Finally, defendant
argued that contrary to the trial court’s factual findings, plaintiff was indeed aware of the
existence of her lease prior to filing its FED action. She asserted that she provided plaintiff’s
attorneys with a copy of her lease in response to the 90-day notice, and in support of that
argument, she attached a copy of a fax cover sheet addressed to the law firm, dated October
13, 2011, indicating that a copy of the lease was attached. Defendant also asserted that she
had earlier provided plaintiff with a copy of her lease via a fax sent to the “real estate agent
for plaintiff.” In support, defendant again attached a copy of a fax cover sheet, this one dated
July 28, 2011, indicating that a copy of the lease was attached.
¶7 The trial court denied defendant’s motion to reconsider. Defendant filed a timely notice
of appeal.
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¶8 Summary judgment is appropriate when the record, including any documents attached
to the summary judgment motion, “show that there is no genuine issue as to any material fact
and that the moving party is entitled to a judgment as a matter of law.” 735 ILCS 5/2-1005(c)
(West 2010). Our review of a trial court’s decision on a motion for summary judgment is de
novo. JP Morgan Chase Bank, N.A. v. Earth Foods, Inc., 238 Ill. 2d 455, 461 (2010).
¶9 On appeal, defendant contends that summary judgment was improper where there was
a question of fact as to whether plaintiff was aware of the existence of a written lease and
where plaintiff lacked legal authority to file a FED action until after the expiration of that
lease. Defendant argues that because plaintiff acted prematurely in filing its action, the trial
court lacked subject matter jurisdiction and the order granting plaintiff summary judgment
is void.
¶ 10 We agree with defendant that plaintiff lacked legal authority to file a FED action prior
to the expiration of her lease.
¶ 11 Contrary to plaintiff’s arguments, a final order in a foreclosure matter does not
automatically terminate a lease that is subordinate to the mortgage. 735 ILCS 5/15-1701(e)
(West 2010). Rather, lawful occupants of foreclosed properties cannot be removed except
by FED proceedings or unless they were made a party to foreclosure proceedings. Agribank,
FCB v. Rodel Farms, Inc., 251 Ill. App. 3d 1050, 1055 (1993) (citing 735 ILCS 5/15-1701(e)
(West 1992)).1 Here, it is not argued that defendant was a party to the foreclosure
proceedings. In addition, the “Order Approving Report of Sale and Distribution, Confirming
Sale and Order of Possession” included in the record does not list defendant as a party to the
foreclosure proceedings, and the order provides that “No occupants other than the individuals
named in this Order of Possession may be evicted without a Supplemental Order of
Possession or an order from the Forcible Entry and Detainer Court.” Given these
circumstances, plaintiff was required to initiate FED proceedings against defendant in order
to terminate her lease.
¶ 12 The Forcible Entry and Detainer Act allows a party to file a FED action against a lessee
“[w]hen any lessee of the lands or tenements, or any person holding under such lessee, holds
possession without right after the termination of the lease or tenancy by its own limitation,
condition or terms, or by notice to quit or otherwise.” 735 ILCS 5/9-102(a)(4) (West 2010).
A FED action is a special summary proceeding which demands strict adherence to statutory
requirements in order to establish jurisdiction. Avdich v. Kleinert, 69 Ill. 2d 1, 6 (1977);
Figueroa v. Deacon, 404 Ill. App. 3d 48, 52 (2010). Where a FED action is filed
prematurely, it cannot be maintained. Avdich, 69 Ill. 2d at 6, 9.
¶ 13 Here, defendant’s lease was to expire on December 31, 2011. Plaintiff filed its FED
action on December 20, 2011, prior to the expiration of the lease. Under section 9-102(a)(4),
1
We note that plaintiff relies upon Agribank for the proposition that a final order in a
foreclosure matter “automatically terminates” any lease subordinate to that mortgage. However, the
Agribank opinion specifically states that while this was the case prior to 1992, legislative
amendments to the Illinois Mortgage Foreclosure Law in that year changed the law. Agribank, 251
Ill. App. 3d at 1055.
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the FED action was premature. Due to plaintiff’s failure to comply with the statutory
requirements of the Forcible Entry and Detainer Act, the circuit court had no jurisdiction
over the matter. Avdich, 69 Ill. 2d at 6; Figueroa, 404 Ill. App. 3d at 53. Accordingly, we
reverse the judgment of the circuit court.
¶ 14 For the reasons explained above, we reverse the judgment of the circuit court.
¶ 15 Reversed.
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