1010 Lake Shore Association v. Deutsche Bank National Trust Company , 2015 IL 118372 ( 2015 )

2015 IL 118372
IN THE
SUPREME COURT
OF
THE STATE OF ILLINOIS
(Docket No. 118372)
1010 LAKE SHORE ASSOCIATION, Appellee, v. DEUTSCHE BANK
NATIONAL TRUST COMPANY, as Trustee for Loan Tr 2004-1,
Asset-Backed Certificates, Series 2004-1, Appellant.
Opinion filed December 3, 2015.
JUSTICE KILBRIDE delivered the judgment of the court, with opinion.
Chief Justice Garman and Justices Freeman, Thomas, Karmeier, Burke, and
Theis concurred in the judgment and opinion.
OPINION
¶1 The issue in this case involves the construction of section 9(g)(3) of the
Condominium Property Act (Act) (765 ILCS 605/9(g)(3) (West 2008)). The
appellate court held that under section 9(g)(3), defendant Deutsche Bank National
Trust Company failed to confirm the extinguishment of the plaintiff condominium
association’s lien created when the prior unit owner did not pay common expense
assessments. 2014 IL App (1st) 130962. For the following reasons, we affirm the
appellate court’s judgment.
¶2 I. BACKGROUND
¶3 Defendant Deutsche Bank National Trust Company, as Trustee for Loan Tr
2004-1, Asset-Backed Certificates, Series 2004-1, purchased a condominium unit
at a judicial foreclosure sale on June 17, 2010. On March 27, 2012, plaintiff 1010
Lake Shore Association mailed defendant a demand for payment of the unit’s
assessments for common expenses.
¶4 On May 17, 2012, plaintiff filed a complaint seeking possession of the property,
an award of all unpaid assessments, attorney fees, and costs. In its complaint,
plaintiff alleged that defendant owed $62,530.81 in assessments as of March 27,
2012.
¶5 After defendant filed its answer, plaintiff moved for summary judgment
arguing there were no questions of material fact on the amount owed or defendant’s
failure to pay the assessments. Based on section 9(g)(3) of the Act (765 ILCS
605/9(g)(3) (West 2008)), plaintiff asserted that the lien against the property for the
prior owner’s unpaid assessments had not been extinguished because defendant
failed to pay the assessments accruing after it purchased the unit at the judicial
foreclosure sale. Consequently, plaintiff alleged defendant was also required to pay
those prior assessments.
¶6 Plaintiff attached to its summary judgment motion an affidavit of its property
manager, Mary Morrison. Morrison averred that: (1) no assessment payments were
made for the unit since July 1, 2010; (2) the outstanding balance was $67,935.16 as
of August 8, 2012; (3) assessments accrued at the rate of $1,041.87 per month; and
(4) late fees were $50 per month.
¶7 Defendant responded that it could not be held liable under section 9(g)(3) of the
Act for unpaid assessments that accrued before it purchased the unit at the judicial
foreclosure sale. Defendant asserted those prior assessments accounted for more
than $43,000 of the total. Defendant also contended that any lien relating to the
preforeclosure assessments was extinguished in the foreclosure action and there
was a genuine issue of material fact on the amount of assessments incurred after it
purchased the unit. Following a hearing, the trial court granted summary judgment
for plaintiff in the amount of $70,018.90 and entered an order awarding plaintiff
possession of the property.
-2-
¶8 On appeal, defendant contended that the trial court misconstrued section
9(g)(3) of the Act. Defendant argued that under section 9(g)(3) a purchaser of a
condominium unit at a foreclosure sale is only required to pay the common
expenses that accrue following the sale. The appellate court agreed that the first
sentence of section 9(g)(3) only requires the purchaser to pay assessments from the
first day of the month following the sale. The second sentence, however, provides
that making those assessment payments “confirms the extinguishment” of the lien
created when the prior owner failed to pay assessments. 2014 IL App (1st) 130962,
¶ 12. The appellate court determined 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.” 2014 IL App
(1st) 130962, ¶ 12.
¶9 The appellate court found that the lien for the prior owner’s unpaid assessments
was not extinguished because defendant failed to pay the assessments following the
foreclosure sale. 2014 IL App (1st) 130962, ¶ 17. The appellate court concluded
there was no genuine issue of material fact on the amount owed by defendant, and
the trial court did not err in granting summary judgment for plaintiff. 2014 IL App
(1st) 130962, ¶ 19. The trial court’s judgment was, therefore, affirmed. 2014 IL
App (1st) 130962, ¶ 31.
¶ 10 Justice Liu dissented, asserting that section 9(g)(3) of the Act and section
15-1509(c) of the Illinois Mortgage Foreclosure Law (Foreclosure Law) (735 ILCS
5/15-1509(c) (West 2008)), establish a complementary procedure for extinguishing
liens held by a condominium association. Section 15-1509(c) of the Foreclosure
Law applies to bar any claim based on a lien when the condominium association
has been named as a party to a foreclosure action. 2014 IL App (1st) 130962, ¶ 38
(Liu, J., dissenting). Section 9(g)(3) of the Act applies when a condominium
association is not named as a party to the foreclosure action, and it provides a way
for a foreclosure sale purchaser to extinguish a preexisting lien that survives the
foreclosure action. To extinguish the lien under section 9(g)(3), the purchaser must
pay the assessments that accrue after the sale. 2014 IL App (1st) 130962, ¶ 38 (Liu,
J., dissenting). The dissenting justice concluded that plaintiff’s lien based on the
assessments owed by the prior owner was extinguished in the foreclosure action
because plaintiff “was purportedly a party in [that] action.” 2014 IL App (1st)
130962, ¶ 39 (Liu, J., dissenting).
-3-
¶ 11 We allowed defendant’s petition for leave to appeal. Ill. S. Ct. R. 315 (eff. May
1, 2013). We also allowed the Federal National Mortgage Association and the
Condominium Association Institute to file amicus curiae briefs. Ill. S. Ct. R. 345
(eff. Sept. 20, 2010).
¶ 12 II. ANALYSIS
¶ 13 Defendant raises two issues on appeal to this court. First, defendant raises the
argument on the construction of section 9(g)(3) of the Act, asserting that issue “has
been the crux of this case since [plaintiff] filed its motion for summary judgment.”
Second, defendant challenges the remedy chosen by plaintiff, contending the
appellate court erred in allowing plaintiff to enforce the lien through a personal
money judgment action rather than a lien foreclosure proceeding. Defendant
contends that the appropriate remedy is for plaintiff to file a lien foreclosure action
rather than a forcible entry and detainer action under section 9.2(a) of the Act (765
ILCS 605/9.2(a) (West 2008)) and the forcible entry and detainer statute (735 ILCS
5/9-101 et seq. (West 2008)).
¶ 14 Plaintiff responds that defendant’s argument challenging the remedy is
forfeited for failure to raise it in the trial court. Issues not raised in either the trial
court or the appellate court are forfeited. WISAM 1, Inc. v. Illinois Liquor Control
Comm’n, 2014 IL 116173, ¶ 23. The purpose of this court’s forfeiture rules is to
encourage parties to raise issues in the trial court, thus ensuring both that the trial
court is given an opportunity to correct any errors prior to appeal and that a party
does not obtain a reversal through his or her own inaction. People v. Denson, 2014
IL 116231, ¶ 13.
¶ 15 Defendant did not present any argument in the trial court challenging plaintiff’s
use of the forcible entry and detainer remedy under section 9.2 of the Act. In fact,
the issue was never raised until after the appellate court issued its decision. At that
point, defendant filed a petition for rehearing raising the question for the first time.
The trial court did not have an opportunity to consider and rule upon this question.
Defendant, therefore, forfeited this issue by failing to timely raise it in the trial
court.
¶ 16 We now address the remaining issue in this appeal on the construction of
section 9(g)(3) of the Act. Defendant asserts its argument “mirrors” the appellate
-4-
court dissent. Defendant contends that subsection 9(g)(3) provides foreclosure sale
purchasers an alternative means of extinguishing a condominium association’s lien
if the foreclosing party failed to extinguish the lien under the Foreclosure Law (735
ILCS 5/15-1509(c) (West 2008)). Defendant maintains that the Foreclosure Law
extinguishes assessment liens when the condominium association is joined as a
party to the foreclosure action and section 9(g)(3) of the Act permits a foreclosure
sale purchaser to extinguish a surviving lien by paying the assessments coming due
after the sale. Defendant asserts it joined plaintiff in the foreclosure action and,
therefore, plaintiff’s lien was extinguished under the Foreclosure Law.
¶ 17 Initially, plaintiff contends defendant forfeited its argument relying on canons
of statutory construction because it did not raise that argument in either the trial or
the appellate court. Plaintiff argues that defendant failed to even acknowledge the
second sentence of section 9(g)(3) in the trial and appellate courts, and it cannot
now argue that section 9(g)(3) conflicts with the Foreclosure Law.
¶ 18 Defendant’s contention based on canons of statutory construction is merely one
argument addressing the issue of the proper construction of section 9(g)(3). Even if
defendant did not make that specific argument in the trial or appellate court,
defendant has consistently disputed the issue of statutory construction. This court
only requires parties to preserve issues or claims for appeal. They are not required
to limit their arguments in this court to the same ones made in the trial and appellate
courts. Brunton v. Kruger, 2015 IL 117663, ¶ 76. Accordingly, defendant's
statutory construction argument is not forfeited.
¶ 19 On the merits, plaintiff contends that section 9(g)(3) of the Act imposes an
additional step in extinguishing a condominium association’s lien. The additional
step simply requires the foreclosure sale purchaser to pay its common expense
assessments following the sale. Plaintiff maintains that by refusing to pay any
postforeclosure sale assessments, defendant failed to confirm the extinguishment of
plaintiff’s lien for the unpaid assessments of the prior owner.
¶ 20 This appeal arises from the trial court’s order granting plaintiff summary
judgment. Summary judgment is proper when “the pleadings, depositions, and
admissions on file, together with the affidavits, if any, 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 2008). The interpretation of a statute is
a matter of law appropriate for summary judgment. Lake County Grading Co. v.
-5-
Village of Antioch, 2014 IL 115805, ¶ 18. We review a trial court’s summary
judgment ruling de novo. Nationwide Financial, LP v. Pobuda, 2014 IL 116717,
¶ 24.
¶ 21 In resolving this appeal, we must construe the terms of the Act and the
Foreclosure Law. Questions of statutory construction are also reviewed de novo.
Skaperdas v. Country Casualty Insurance Co., 2015 IL 117021, ¶ 15. The
fundamental objective of statutory construction is to ascertain and give effect to the
intent of the legislature. Bettis v. Marsaglia, 2014 IL 117050, ¶ 13. The most
reliable indicator of legislative intent is the statutory language, given its plain and
ordinary meaning. State Building Venture v. O’Donnell, 239 Ill. 2d 151, 160
(2010). A reasonable construction must be given to each word, clause, and sentence
of a statute, and no term should be rendered superfluous. Slepicka v. Illinois
Department of Public Health, 2014 IL 116927, ¶ 14.
¶ 22 We begin by reviewing the relevant provisions of the Act. Section 9(g)(1)
provides:
“(1) If 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
thereof *** shall constitute a lien on the interest of the unit owner in the
property prior to all other liens and encumbrances, recorded or unrecorded,
except only (a) taxes, special assessments and special taxes theretofore or
thereafter levied by any political subdivision or municipal corporation of this
State and other State or federal taxes which by law are a lien on the interest of
the unit owner prior to preexisting recorded encumbrances thereon and (b)
encumbrances on the interest of the unit owner recorded prior to the date of
such failure or refusal which by law would be a lien thereon prior to
subsequently recorded encumbrances. Any action brought to extinguish the lien
of the association shall include the association as a party.” 765 ILCS
605/9(g)(1) (West 2008).
¶ 23 The plain language of section 9(g)(1), therefore, creates a lien in favor of a
condominium association upon the failure or refusal of a unit owner to pay
common expense assessments. Section 9(g)(3) states that:
“(3) The purchaser of a condominium unit at a judicial foreclosure sale, or a
mortgagee who receives title to a unit by deed in lieu of foreclosure or judgment
by common law strict foreclosure or otherwise takes possession pursuant to
-6-
court order under the Illinois Mortgage Foreclosure Law, 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, delivery of the deed in lieu of foreclosure, entry of a judgment in common
law strict foreclosure, or taking of possession pursuant to such court order.
Such payment confirms the extinguishment of any lien created pursuant to
paragraph (1) or (2) 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, a deed in lieu thereof
has been accepted by the lender, or a consent judgment has been entered by the
court.” 765 ILCS 605/9(g)(3) (West 2008).
¶ 24 The first sentence of section 9(g)(3) plainly requires a foreclosure sale
purchaser to pay common expense assessments beginning in the month following
the foreclosure sale. The second sentence provides an incentive for prompt
payment of those postforeclosure sale assessments, stating “[s]uch payment
confirms the extinguishment of any lien created” under subsection 9(g)(1) by the
prior unit owner’s failure to pay assessments. “[C]onfirm” means “[t]o give formal
approval to,” “[t]o verify or corroborate,” or “[t]o make firm or certain.” Black’s
Law Dictionary 318 (8th ed. 2004). “Extinguishment” is defined as “[t]he cessation
or cancellation of some right or interest.” Black’s Law Dictionary 623 (8th ed.
2004). Accordingly, under the plain language of section 9(g)(3), the payment of
postforeclosure sale assessments formally approves and makes certain the
cancellation of the condominium association’s lien.
¶ 25 By requiring the foreclosure sale purchaser to “confirm[ ] the extinguishment”
of the lien, section 9(g)(3) plainly mandates an additional step beyond the
extinguishment of the lien in a foreclosure action. Section 9(g)(3) sets forth that
additional step, stating the extinguishment is confirmed by payment of
postforeclosure sale assessments.
¶ 26 Contrary to defendant’s argument, the language of section 9(g)(3) cannot be
construed as an alternative means for foreclosure sale purchasers to extinguish a
condominium association’s lien when the association was not joined as a party to
the foreclosure action. Section 9(g)(1) creates an association’s lien upon the failure
or refusal of a unit owner to make common expense payments when due, and that
section states, “[a]ny action brought to extinguish the lien of the association shall
include the association as a party.” Thus, section 9(g)(1) is very specific on the
-7-
method for extinguishing an association’s lien created by the prior unit owner’s
failure to pay assessments. Section 9(g)(1) states an action to extinguish the lien
“shall include the association as a party.” The statute does not provide that a
foreclosure sale purchaser may extinguish the lien by simply making
postforeclosure sale assessment payments.
¶ 27 Additionally, defendant’s argument is contrary to the plain language of section
9(g)(3). Section 9(g)(3) requires payment of postforeclosure sale assessments to
“confirm the extinguishment” of the lien. The plain language of section 9(g)(3)
assumes that the lien has already been extinguished by including the association as
a party to a foreclosure action. Section 9(g)(3) provides an additional step to
confirm or formally approve the extinguishment by paying the postforeclosure sale
assessments. We conclude that defendant’s proposed construction of section
9(g)(3)—that it provides an alternative method to extinguish the condominium
association’s lien—is contrary to the express language of sections 9(g)(1) and
9(g)(3). Significantly, defendant does not provide any other proposed construction
for the second sentence of section 9(g)(3).
¶ 28 Defendant contends, however, that sections 9(g)(4) and 9(g)(5) show the
legislature did not intend for mortgagees to be liable for their borrower’s prior
unpaid assessments. Defendant asserts that in those subsections, the legislature
enacted a rule allowing condominium associations to collect up to six months of
unpaid assessments incurred prior to the foreclosure sale, but expressly exempted
mortgagees from the requirement to pay those assessments. Defendant argues the
six-month rule in sections 9(g)(4) and 9(g)(5) shows the legislature did not intend
foreclosure sale purchasers to be liable for all unpaid assessments incurred prior to
the sale.
¶ 29 Section 9(g)(4) provides:
“(4) The purchaser of a condominium unit at a judicial foreclosure sale,
other than a mortgagee, who takes possession of a condominium unit pursuant
to a court order or a purchaser who acquires title from a mortgagee shall have
the duty to pay the proportionate share, if any, of the common expenses for the
unit which would have become due in the absence of any assessment
acceleration during the 6 months immediately preceding institution of an action
to enforce the collection of assessments, and which remain unpaid by the owner
during whose possession the assessments accrued. If the outstanding
-8-
assessments are paid at any time during any action to enforce the collection of
assessments, the purchaser shall have no obligation to pay any assessments
which accrued before he or she acquired title.” 765 ILCS 605/9(g)(4) (West
2008).
¶ 30 Section 9(g)(5) provides, in pertinent part:
“(5) The notice of sale of a condominium unit under subsection (c) of
Section 15-1507 of the Code of Civil Procedure shall state that the purchaser of
the unit other than a mortgagee shall pay the assessments and the legal fees
required by subdivisions (g)(1) and (g)(4) of Section 9 of this Act.” 765 ILCS
605/9(g)(5) (West 2008).
¶ 31 We believe sections 9(g)(4) and 9(g)(5) are consistent with our interpretation of
section 9(g)(3). Together, those provisions allow condominium associations to
recover a portion of the prior owner’s unpaid assessments and to ensure payment of
assessments that accrue following the foreclosure sale.
¶ 32 Specifically, sections 9(g)(4) and 9(g)(5) apply to foreclosure sale purchasers
other than mortgagees and to purchasers acquiring title from a mortgagee. Those
third-party purchasers are required to pay a prior owner’s unpaid assessments that
accrued during the six months preceding an action to collect assessments. Section
9(g)(5) requires the notice of the foreclosure sale to state that a purchaser other than
a mortgagee must pay those prior unpaid assessments. Sections 9(g)(4) and 9(g)(5),
therefore, allow condominium associations to recover a portion of the prior
owner’s unpaid assessments from the new owner.
¶ 33 Section 9(g)(3), in contrast, applies to all foreclosure sale purchasers, including
mortgagees, and it simply requires the purchaser to pay assessments beginning the
month following the foreclosure sale to confirm the extinguishment of the lien
created by the prior owner’s failure to pay assessments. Section 9(g)(3) does not
require a foreclosure sale purchaser to pay any of the prior owner’s unpaid
assessments if the purchaser pays the assessments coming due following the sale.
Thus, section 9(g)(3) ensures payment of assessments accruing after the
foreclosure sale. Under section 9, mortgagees may be exempted from liability for
the prior owner’s unpaid assessments, but only if the mortgagee pays the
assessments coming due following its purchase of the unit at the foreclosure sale.
-9-
¶ 34 We further note that although sections 9(g)(1) and 9(g)(3) do not require notice
to defendant of the prior owner’s unpaid assessments, the terms of section 9(g)(1)
effectively put mortgagees on notice of the potential for unrecorded association
liens. Section 9(g)(1) states any action to extinguish those liens must include the
association as a party. Additionally, the Act allows an encumbrancer “from time to
time [to] request in writing a written statement *** setting forth the unpaid
common expenses with respect to the unit covered by his encumbrance.” 765 ILCS
605/9(j) (West 2008). Thus, a mortgagee may protect its interest by requesting
notice of unpaid assessments, joining the association as a party to a foreclosure
action, and paying assessments that accrue following its purchase of a property at a
foreclosure sale.
¶ 35 Defendant also argues that the appellate court’s construction of section 9(g)(3)
conflicts with section 15-1509(c) of the Foreclosure Law. Section 15-1509(c)
provides that foreclosure of a mortgage extinguishes all junior lien interests of
parties joined in the foreclosure action. Defendant maintains plaintiff’s lien was
extinguished in the foreclosure action and it cannot be revived to “confirm the
extinguishment” under the Act.
¶ 36 Section 15-1509(c) of the Foreclosure Law provides, in pertinent part:
“Any vesting of title *** by deed pursuant to subsection (b) of Section 15-1509,
unless otherwise specified in the judgment of foreclosure, shall be an entire bar
of (i) all claims of parties to the foreclosure and (ii) all claims of any nonrecord
claimant who is given notice of the foreclosure ***.” 735 ILCS 5/15-1509(c)
(West 2008).
¶ 37 We presume that several statutes relating to the same subject are governed by a
single spirit and policy and that the legislature intended the statutes to be consistent
and harmonious. Uldrych v. VHS of Illinois, Inc., 239 Ill. 2d 532, 540 (2011). Even
when there is an apparent conflict between statutes, they must be construed in
harmony if reasonably possible. Knolls Condominium Ass’n v. Harms, 202 Ill. 2d
450, 459 (2002). Section 9(g)(3) of the Act and section 15-1509(c) of the
Foreclosure Law both relate to the foreclosure of condominium units. Accordingly,
we presume that the legislature intended the Act and the Foreclosure Law to be
consistent and harmonious.
¶ 38 A review of those statutory provisions shows they may be construed
consistently. Under section 15-1509(c) of the Foreclosure Law, vesting of title in
- 10 -
the purchaser acts as a bar to claims of parties to the foreclosure action, thus
extinguishing junior liens. Consistent with the Foreclosure Law, section 9(g)(1) of
the Act states that “[a]ny action brought to extinguish the lien of the association
shall include the association as a party.” 765 ILCS 605/9(g)(1) (West 2008).
Section 9(g)(1), therefore, requires compliance with the Foreclosure Law to
extinguish the association’s lien. Section 9(g)(3) then provides an additional step to
“confirm the extinguishment” of the association’s lien by requiring payment of
postforeclosure sale assessments. By employing the “confirms the extinguishment”
language, section 9(g)(3) assumes that the lien has been extinguished under the
Foreclosure Law. The plain language of the Act and the Foreclosure Law may,
therefore, be reasonably construed together to provide a process for extinguishing
and confirming the extinguishment of the association’s lien.
¶ 39 While defendant argues that a mortgagee must be able to extinguish junior lien
interests joined in the foreclosure action to convey clear title to a subsequent
purchaser, section 9 of the Act does not impede defendant’s ability to provide clear
title. Section 9(g)(3) only requires the foreclosure sale purchaser to pay
assessments coming due following the foreclosure sale. Payment of those
assessments confirms the extinguishment of the lien for the prior owner’s unpaid
assessments. Accordingly, defendant’s interest in providing clear title will not be
impaired if it complies with section 9(g)(3) and pays the assessments coming due
following its purchase of a property at a foreclosure sale.
¶ 40 Given our construction of the statutory provisions, we conclude that the trial
court did not err in granting plaintiff summary judgment. While defendant argues
that the trial court erred in granting summary judgment because plaintiff’s lien was
extinguished under section 15-1509(c) of the Foreclosure Law, the record is not
entirely clear that plaintiff was joined as a party to the foreclosure action. Although
defendant asserts in its brief that it joined plaintiff as a party, it admits “the
underlying foreclosure papers are not of record.”
¶ 41 In any case, even if the record clearly established that defendant joined plaintiff
as a party to the foreclosure, defendant failed to confirm the extinguishment of
plaintiff’s lien under section 9(g)(3) of the Act. The record shows that defendant
purchased the unit at a foreclosure sale on June 17, 2010. The affidavit of plaintiff’s
property manager establishes that defendant did not make any assessment
payments after purchasing the property at the foreclosure sale. Based on the
evidence of record, we conclude that defendant failed to confirm the
- 11 -
extinguishment of plaintiff’s lien for the prior owner’s unpaid assessments under
section 9(g)(3) of the Act.
¶ 42 Defendant does not present any other argument challenging the trial court’s
order granting summary judgment. Accordingly, the trial court’s order granting
plaintiff summary judgment must be affirmed.
¶ 43 III. CONCLUSION
¶ 44 For the foregoing reasons, the judgments of the circuit and appellate courts are
affirmed.
¶ 45 Affirmed.
- 12 -