                                   2018 IL App (1st) 170781
                                  Opinion filed: June 29, 2018

                                                                           FIRST DISTRICT
                                                                           FIFTH DIVISION

No. 1-17-0781

BMO HARRIS BANK, N.A.,                         )                   Appeal from the
                                               )                   Circuit Court of
       Plaintiff-Appellant,                    )                   Cook County
                                               )
v.                                             )                   No. 16 CH 07753
                                               )
JACKSON TOWERS CONDOMINIUM ASSOCIATION, )
INC.; FIRSTSERVICE RESIDENTIAL ILLINOIS, INC.; )
MARIAN REALTY, INC.,                           )                   Honorable
                                               )                   Michael T. Mullen,
       Defendants-Appellees.                   )                   Judge Presiding.

       JUSTICE ROCHFORD delivered the judgment of the court, with opinion.
       Presiding Justice Reyes and Justice Hall concurred in the judgment and opinion.

                                           OPINION

¶1     Plaintiff-appellant, BMO Harris Bank, N.A. (BMO) filed a complaint to foreclose its

mortgage on condominium unit 7C in the Jackson Towers building and later was the successful

bidder at the judicial foreclosure sale. A dispute arose between plaintiff and defendants­

appellees, the Jackson Towers Condominium Association, Inc., and the building’s property

managers, FirstService Residential Illinois, Inc. (FirstService) and Marian Realty, Inc. (Marian),

regarding whether BMO’s failure to pay the postsale assessments in the month following the sale

rendered it liable for the delinquent presale assessments that had never been paid by the previous

owner. BMO subsequently paid all the presale assessments, then filed a complaint for a

declaratory judgment that it was not liable therefor, and also sought damages against defendants

for consumer fraud and civil conspiracy. The circuit court dismissed the complaint and denied

BMO’s motion for reconsideration. We affirm.
No. 1-17-0781

¶2                                      I. BACKGROUND

¶3                                       A. Relevant Law

¶4     Section 9(g)(1) of the Condominium Property Act (Act) permits a condominium

association to assert a lien against a unit owner for unpaid assessments. 765 ILCS 605/9(g)(1)

(West 2016). Section 9(g)(1) also provides for the extinguishment of the lien where the unit is

foreclosed upon and the title is vested with the purchaser of the property, as long as the

association is named as a party in the foreclosure action. Id.

¶5     Section 9(g)(3) provides that the purchaser of a condominium unit at a judicial

foreclosure sale has the duty to pay postsale assessments “from and after the first day of the

month after the date of the judicial foreclosure sale.” Id. § 9(g)(3). Such payment “confirms the

extinguishment” of any lien for presale assessments that were unpaid by the previous owner. Id.

¶6                                          B. The Facts

¶7     In 2013, the owner of unit 7C (the property) was the Eleanor Peterson Trust. The

declarations of the association provided that a unit owner was responsible for a proportionate

share of common expenses, and that a failure to pay would constitute a lien on the unit.

Beginning on or around April 1, 2013, the trust was delinquent in its monthly assessment

payments.

¶8     In September 2013, the association brought an eviction action against Eleanor Pickrel

Peterson, as trustee of the trust, based on the unpaid assessments. On November 6, 2013, an

order was entered granting the association possession of the property.

¶9     On September 12, 2013, BMO filed a complaint to foreclose its mortgage on the property

for the trust’s failure to make payments on the mortgage. The trust and the association were

named as defendants in the foreclosure action. On March 27, 2014, a judgment of foreclosure


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was entered, which provided, in part, for a subordinate lien in favor of the association for unpaid

assessments as of March 2013 in the amount of $23,983.95 and directed that the property be

sold.

¶ 10    On July 1, 2014, BMO was the successful bidder at the foreclosure sale. On August 18,

2014, an order was entered confirming the foreclosure sale and granting BMO legal possession

of the property in 30 days. In October 2014, BMO recorded its judicial sale deed as to the

property.

¶ 11    On October 2, 2014, FirstService, the property management company for the building,

provided BMO with account statements reflecting that BMO owed $3206.02 for the September

2014 and October 2014 assessments and that the presale assessments not paid by the trust totaled

$33,526.90. Later that month, FirstService sent BMO an invoice in the amount of $3281.02 for

the postsale assessments owed by BMO. On November 26, 2014, BMO issued a check to the

association for that amount.

¶ 12    On December 12, 2014, BMO made another payment for postsale assessments in the

amount of $8247.05. This payment was applied toward assessments for the months of August

2014 (which had been omitted from the association’s account statement submitted in October),

November 2014, and December 2014.

¶ 13    On January 20, 2015, the association transferred to BMO’s account the delinquent presale

assessments totaling $32,802.99, which were not paid by the trust. BMO made further payments

for postsale assessments in March, May, August, and September 2015.

¶ 14    In September 2015, BMO entered into a contract to sell the property to Clintina Sanders-

Bolden and Jessie Bolden. Prior to the closing, BMO requested a paid assessment letter from the

association pursuant to section 22.1(b) of the Act (id. § 22.1(b)). On December 16, 2015,


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FirstService issued an assessment letter stating that $30,900.36 in delinquent monthly presale

assessments, $15,083.37 in special assessments, and a $75 wire transfer fee were due, for a total

of $46,058.73.

¶ 15   On December 31, 2015, BMO and the Boldens closed on the property, and ownership of

the property was transferred from BMO to the Boldens. At the closing, pursuant to a title

indemnity agreement, the amount of $58,278.84 was deposited with First American Title

Company to be held in escrow until BMO had resolved the dispute with the association as to

unpaid presale assessments.

¶ 16   On January 1, 2016, Marian replaced FirstService as the property management company

for the building. The association and Marian changed the locks on the property and asserted that

access would be denied until the delinquent presale assessments were paid. The Boldens made a

demand on BMO to tender payment. In response, BMO directed First American Title Company

to release the escrowed funds to the association. Upon receipt of those funds, the association

released its lien and gave the Boldens access to the property.

¶ 17   On June 8, 2016, BMO brought this action against the association, FirstService, and

Marian alleging three claims. In count I, BMO sought a declaration that (1) it extinguished the

association’s lien for the delinquent presale assessments by foreclosing on the property and

acquiring title thereto and it confirmed the extinguishment of the lien by paying the postsale

assessments on November 26 and December 12, 2014, pursuant to section 9(g)(3) of the Act;

(2) FirstService and the association wrongfully assessed $32,911.24 against BMO; and (3) the

association must refund BMO’s overpayment. In count II, BMO alleged a claim against the

association and FirstService under the Consumer Fraud and Deceptive Business Practices Act




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(Consumer Fraud Act) (815 ILCS 505/1 (West 2012)). In count III, BMO alleged a civil

conspiracy claim against the association and Marian for locking out the Boldens.

¶ 18   On August 18, 2016, defendants filed a motion to dismiss the complaint pursuant to

section 2-619 of the Code of Civil Procedure (Code) (735 ILCS 5/2-619 (West 2016)). As to

count I, defendants argued that a declaratory judgment action was not proper in that any

controversy was now moot and such relief was only available to resolve disputes before there has

been an irrevocable change in the position of the parties. Defendants further maintained that,

under section 9(g)(3) of the Act (765 ILCS 605/9(g)(3) (West 2016)), BMO was required to pay

the postsale assessments on the “first day of the month after the date of the judicial foreclosure

sale” to confirm the extinguishment of the presale assessment lien but had failed to do so. As to

count II, defendants argued that BMO was not a “consumer” under the Consumer Fraud Act and

could not bring its action. 815 ILCS 505/1(e) (West 2012). Finally, defendants sought dismissal

of the conspiracy claim in count III on the ground that they had not acted unlawfully in changing

the locks.

¶ 19   The court granted defendants’ motion to dismiss on January 11, 2017, but allowed BMO

time to file an amended complaint. The court made an oral finding that BMO’s payment of the

postsale assessments in late November 2014 was untimely under section 9(g)(3) of the Act and,

thus, did not confirm the extinguishment of the association’s lien for the delinquent presale

assessments. The written order stated that count I was dismissed under section 2-619 of the Code

and that counts II and III were dismissed under section 2-615 of the Code. 735 ILCS 5/2-615, 2­

619 (West 2016). The court found that the motion to dismiss, as to counts II and III, was

misstyled as a section 2-619 motion. Thereafter, BMO filed a motion to reconsider the court’s

order dismissing the complaint. The court denied the motion to reconsider on February 22, 2017,


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and, again, allowed BMO time to file an amended complaint. BMO did not amend its complaint.

On March 16, 2017, the court dismissed the case with prejudice. BMO appeals.

¶ 20                                     II. ANALYSIS

¶ 21                          A. The Declaratory Judgment Count

¶ 22   BMO argues that the circuit court erred by dismissing count I of its complaint for a

declaratory judgment pursuant to section 2-619 of the Code, finding that its payments of postsale

assessments on November 26 and December 12, 2014, were untimely and thus failed to confirm

the extinguishment of the association’s lien for the delinquent presale assessments under section

9(g)(3) of the Act.

¶ 23   A section 2-619 motion to dismiss admits the legal sufficiency of the complaint and

asserts an affirmative matter outside the pleading that avoids the legal effect of or defeats the

claim. Relf v. Shatayeva, 2013 IL 114925, ¶ 20. In ruling on a section 2-619 motion, we accept

all well-pleaded facts in the complaint as true and draw all reasonable inferences in plaintiff’s

favor. Hermitage Corp. v. Contractors Adjustment Co., 166 Ill. 2d 72, 85 (1995). Defendant

bears the initial burden of establishing that the affirmative matter defeats plaintiff’s claim; if

defendant satisfies the burden, the burden shifts to plaintiff to demonstrate that the defense is

unfounded or requires resolution of a material fact. Doe v. University of Chicago Medical

Center, 2015 IL App (1st) 133735, ¶ 37. Our review is de novo. McCarthy v. Abraham Lincoln

Reynolds, III, 2006 Declaration of Living Trust, 2018 IL App (1st) 162478, ¶ 14.

¶ 24    The declaratory judgment process allows the circuit court to address a controversy after a

dispute arises but before steps are taken that give rise to a claim for damages or other relief.

Karimi v. 401 North Wabash Venture, LLC, 2011 IL App (1st) 102670, ¶ 10. “The parties to the

dispute can then learn the consequences of their action before acting.” (Internal quotation marks


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omitted.) Beahringer v. Page, 204 Ill. 2d 363, 373 (2003). Although a declaratory judgment

action is proper to determine the parties’ existing rights, the court may dismiss such an action

where the party seeks to enforce his rights after the fact. Karimi, 2011 IL App (1st) 102670,

¶ 10.

¶ 25    BMO’s complaint for a declaratory judgment was not a proper vehicle here to contest the

association’s lien for the presale assessments, as BMO was seeking to enforce its rights after

having paid those assessments. Specifically, BMO paid all delinquent presale assessments in

January 2016 following the association’s lockout of the Boldens, and the association then

released its lien and gave the Boldens access to the property. Now, after the fact, i.e., after the

payment of all delinquent presale assessments in January 2016, the release of the association’s

lien, and the end of the lockout of the Boldens, BMO seeks to enforce its rights to the monies

paid for the presale assessments via a declaratory judgment that the lien for those presale

assessments had already been extinguished in November and December 2014. The circuit court

properly dismissed the declaratory judgment complaint, as BMO cannot use the declaratory

judgment process to contest the validity of a lien for presale assessments that has already been

satisfied by BMO’s payment thereof. See id. Although this was not the basis for the circuit

court’s dismissal, we may affirm on any basis warranted by the record. Miller v. Lawrence, 2016

IL App (1st) 142051, ¶ 20.

¶ 26    The purpose of the declaratory judgment action is to give guidance for future conduct,

not to provide relief related to past conduct. Babbitt Municipalities, Inc. v. Health Care Service

Corp., 2016 IL App (1st) 152662, ¶ 41. Here, BMO does not seek guidance regarding any future

conduct but, rather, seeks relief related to its prior conduct of paying the presale assessments in




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response to the association’s lockout of the Boldens. Accordingly, we affirm the dismissal of

BMO’s declaratory judgment count.

¶ 27                              B. The Consumer Fraud Count

¶ 28   The circuit court dismissed BMO’s consumer fraud count pursuant to section 2-615 of

the Code. 735 ILCS 5/2-615 (West 2016). A section 2-615 motion challenges the legal

sufficiency of the complaint based on defects apparent on the face of the pleading. Ledeaux v.

Motorola Inc., 2018 IL App (1st) 161345, ¶ 14. The court accepts as true all well-pleaded facts,

as well as any reasonable inferences flowing from those facts. Id. The court should not dismiss a

cause of action under section 2-615 unless the pleadings clearly show that no set of facts can be

proven that would entitle plaintiff to recover. Id. Our review of the dismissal order is de novo. Id.

¶ 29   To plead a cause of action under the Consumer Fraud Act, a plaintiff must allege (1) a

deceptive act or practice by defendant, (2) defendant’s intent for plaintiff to rely on the

deception, (3) that the deception occurred in the course of conduct involving trade or commerce;

and (4) actual damage to plaintiff that was proximately caused by the deception. Aliano v.

Ferriss, 2013 IL App (1st) 120242, ¶ 24.

¶ 30   BMO argues on appeal that defendants FirstService and the association violated the

Consumer Fraud Act and engaged in consumer fraud when they sent the assessment letter on

December 16, 2015, stating that BMO owed over $30,000 in delinquent presale assessments,

where BMO had already confirmed the extinguishment of the association’s lien for those presale

assessments.

¶ 31   BMO forfeited review of this issue, as BMO’s consumer fraud count only pleaded that

defendants violated the Consumer Fraud Act on December 16, 2015, by double-billing it for

special assessments and did not plead consumer fraud based on BMO’s extinguishment of the


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association’s lien. See Keefe-Shea Joint Venture v. City of Evanston, 332 Ill. App. 3d 163, 170

(2002) (a party forfeits review of a theory that is not contained in the complaint).

¶ 32     Also, BMO makes no argument on appeal regarding the allegedly fraudulent double-

billing and, accordingly, has forfeited review of this issue as well. See Ill. S. Ct. R. 341(h)(7)

(eff. Nov. 1, 2017).

¶ 33     We affirm the dismissal of BMO’s consumer fraud count.

¶ 34                              C. The Civil Conspiracy Count

¶ 35     Next, we address the circuit court’s order dismissing BMO’s civil conspiracy count

pursuant to section 2-615 of the Code. To state a claim for civil conspiracy, a plaintiff must

allege facts showing: (1) an agreement to accomplish by concerted action either an unlawful

purpose or a lawful purpose by unlawful means; (2) a tortious act committed in furtherance of

that agreement; and (3) an injury caused by defendant. Merrilees v. Merrilees, 2013 IL App (1st)

121897, ¶ 49. Because conspiracy is not an independent tort, if a plaintiff fails to state an

independent cause of action underlying the conspiracy allegations, the claim for conspiracy also

fails. Id.

¶ 36     BMO pleaded that defendants, Marian and the association, conspired to lock out the

Boldens after the Boldens’ purchase of condominium unit 7C in the Jackson Towers building

and then used the lockout as leverage to force BMO to pay the presale assessments.

¶ 37     BMO argues on appeal that the self-help lockout of the Boldens was the tortious act

committed in furtherance of the conspiracy; no tortious act is alleged to have been committed

against BMO. As the injured party, the Boldens would have standing to assert a tort claim; BMO

would lack standing. Northbrook Bank & Trust Co. v. Abbas, 2018 IL App (1st) 162972, ¶ 44.




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BMO’s civil conspiracy claim fails because BMO cannot maintain an independent tort claim


against defendants for the lockout of the Boldens. Merrilees, 2013 IL App (1st) 121897, 


¶ 49. 


¶ 38      Accordingly, we affirm the dismissal of BMO’s civil conspiracy count. As a result of our


disposition of this case, we need not address the other arguments on appeal. 


¶ 39                                      III. CONCLUSION


¶ 40      For all the foregoing reasons, we affirm the judgment of the circuit court.


¶ 41      Affirmed.





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