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                                    Appellate Court                           Date: 2018.07.25
                                                                              13:34:53 -05'00'




             V&T Investment Corp. v. West Columbia Place Condominium Ass’n,
                               2018 IL App (1st) 170436



Appellate Court        V&T INVESTMENT CORPORATION, Plaintiff-Appellant, v.
Caption                WEST COLUMBIA PLACE CONDOMINIUM ASSOCIATION,
                       Defendant-Appellee.



District & No.         First District, Sixth Division
                       Docket No. 1-17-0436



Rule 23 order filed    March 30, 2018
Motion to publish
allowed                May 11, 2018
Opinion filed          May 18, 2018



Decision Under         Appeal from the Circuit Court of Cook County, No. 14-M1-138150;
Review                 the Hon. Diana Rosario, Judge, presiding.



Judgment               Reversed and remanded.


Counsel on             John Cloutier, of Cloutier Law Group, of Chicago, for appellant.
Appeal
                       John G. Powers and Andrew A. Girard, of Girard Law Group, P.C., of
                       Chicago, for appellee.
     Panel                    JUSTICE CONNORS delivered the judgment of the court, with
                              opinion.
                              Justices Cunningham and Delort concurred in the judgment and
                              opinion.



                                               OPINION

¶1         Plaintiff, V&T Investment Corporation (V&T), a real estate investment company, was the
       foreclosure sale purchaser of the subject condominium unit located at 1637 West Columbia
       Avenue in Chicago. Defendant, West Columbia Condominium Association (West Columbia),
       is the agency in charge of maintaining and administering the common elements of the
       condominium building, as well as enforcing the covenants and restrictions of the association
       and collecting and disbursing its assessments. Several months following the foreclosure sale of
       the subject unit, V&T requested from West Columbia a paid assessment letter. West Columbia
       issued a paid assessment letter, stating that $7803.97 was due and owing on the account. V&T
       paid the total amount under protest. V&T then filed a complaint in assumpsit. Both parties filed
       motions for summary judgment. The trial court denied both motions, but found that section
       9(g)(4) of the Condominium Property Act (Act) (765 ILCS 605/9(g)(4) (West 2012)) would
       apply to the matter at hand. The case then proceeded to trial, where the trial court found in
       favor of West Columbia. V&T now appeals. For the following reasons, we reverse and
       remand.

¶2                                            BACKGROUND
¶3          Both parties state in their respective appellate briefs that the facts of this case are not
       contested. Indicative of this is the bystander’s report, which contains an agreed-upon statement
       of what took place at trial and the trial exhibits deemed necessary for this appeal. However,
       before we discuss the testimony and evidence presented at trial, a review of the facts leading up
       to the trial is necessary.
¶4          On November 12, 2009, West Columbia filed an action against Richard Dresmann, one of
       its unit owners, based on his failure to pay his share of the common expenses. Thereafter, the
       unit became subject to a foreclosure action. On October 16, 2013, V&T purchased the subject
       condominium unit at a judicial foreclosure sale. The sale was confirmed by court order on
       December 16, 2013, and the deed was issued to V&T on December 31, 2013. On February 6,
       2014, V&T tendered its first assessment payments to the association for the months of January
       and February 2014. In June, V&T was preparing to sell the property, so it requested a paid
       assessment letter. On June 19, 2014, West Columbia’s property manager issued a paid
       assessment letter to V&T, advising it that a balance of $7803.97 was due and owing. V&T paid
       the amount under protest so that it could sell the unit unencumbered, but subsequently filed the
       present action against West Columbia on July 22, 2014, seeking a judgment in the amount of
       $7803.97.
¶5          In its complaint in assumpsit, V&T argued that it became responsible for assessments
       beginning in January 2014 and that it paid all the assessments that became due thereafter. V&T
       further argued that it was not responsible for any assessments left unpaid by the former owner

                                                   -2-
     because West Columbia obtained a judgment from the former owner in the November 2009
     action.
¶6        West Columbia filed affirmative defenses in its answer to V&T’s complaint. In its first
     affirmative defense, based on section 9(g) of the Act, West Columbia stated that it had filed an
     action on November 12, 2009, based on the failure of the former owner to pay his share of the
     common expenses. West Columbia stated that on November 15, 2012, the circuit court of
     Cook County “confirmed the existence of an arrearage regarding the unit owner’s
     proportionate share of common expenses.” West Columbia contended that, thereafter, there
     were no payments made to the account until February 2014. West Columbia argued that after
     filing an action to collect unpaid assessments, accruing assessments and reasonable attorney
     fees, and “being awarded judgment by the court,” West Columbia was entitled to seek
     assessments from the first day of the month after the sale as well as six months’ worth of
     assessments preceding the institution of an action “and attorney’s fees.” West Columbia also
     filed two counterclaims, which were later dismissed.
¶7        V&T filed an amended complaint on December 16, 2015, adding a count for breach of
     fiduciary duty. V&T argued that West Columbia breached its fiduciary duty toward plaintiff
     by forcing it to pay money it did not legally owe and which West Columbia knew or should
     have known V&T did not owe.
¶8        Thereafter, West Columbia filed a motion for summary judgment. West Columbia argued
     that V&T owed common assessments beginning on November 1, 2013, not January 1, 2014,
     and that by not making a payment until February 6, 2014, V&T failed and refused to comply
     with section 9(g)(3) of the Act. West Columbia stated that the arrearage amount left unpaid by
     the former owner was “never cured” and that the court had confirmed the continued existence
     of an arrearage amount. Citing section 9(g)(4) of the Act, West Columbia further argued that
     because that money was never paid, V&T had to pay the amount in assessments that would
     have been due during the six months preceding the institution of the prior action to collect
     assessments. And finally, West Columbia argued that V&T, as a foreclosure sale purchaser,
     had the duty to pay legal fees required by subsections (1) and (5) of section 9(g) of the Act.
     West Columbia claimed that V&T offered “no factual allegations, by way of affidavits,
     account ledgers, or proof of payments, to suggest that the amounts West Columbia had
     demanded were inaccurate.”
¶9        V&T then filed a response to West Columbia’s motion for summary judgment, stating that
     West Columbia had obtained a judgment of $3011.12 in the action West Columbia had
     initiated against the former unit owner, “with an ad damnum of $2,219.94.” V&T stated that
     the judgment date was February 1, 2010, and that there were also costs allowed in that case.
     V&T stated, “See Exhibit A, ‘Condominium Statement’ and Exhibit B ‘West Covina Condo
     Assoc. v. Dresmann Docket.’ ” Attached to the answer was Exhibit A, a statement of
     accounting for the subject property for the time period from January 31, 2009, to July 1, 2014.
     There was no indication of the amounts stated by V&T in that document. Exhibit B was a
     printout of an electronic docket search of the previous case, which also did not state the
     judgment amount or that one was obtained. It merely stated that the amount of damages sought
     was $2219.94. There was also an attached affidavit by John Cloutier, the attorney for V&T in
     the foreclosure sale, which stated: “As indicated in the court records the association only filed
     one action against the former owner and obtained a judgment of $3,011.82.”


                                                 -3-
¶ 10       West Columbia filed a reply to V&T’s response to its motion for summary judgment,
       stating that the only circumstance where a foreclosure purchaser “would not be required to
       comply with 9(g)(4) is if the ‘outstanding assessments’ were paid ***. That does not apply
       here, because in the case at hand, the outstanding balance at the time of the sale was
       $9,630.34.” West Columbia explained the accounting of the $7803.97 that appeared in the
       demand letter by stating that a “significant portion” of that amount was incurred after the
       foreclosure sale ($2580.45), and that there was $2791 in “legal fees associated in the
       underlying action.” West Columbia further stated that, upon review, “it does appear that
       [V&T] was overcharged in the amount of $849.96” because the actual amount of six months of
       back assessments totaled $1582.56, instead of $2357.52. West Columbia included those three
       amounts in an attached exhibit.
¶ 11       On February 19, 2016, V&T filed a reply, arguing that the exhibit containing the three
       numbers that allegedly made up the amount claimed in the demand letter should be stricken
       because “there is no indication as to where the numbers came from.”
¶ 12       A hearing was held on the motions on April 12, 2016, where the trial court ruled that
       questions of fact existed and denied both motions, but found that section 9(g)(4) of the Act
       would apply to the matter at hand.
¶ 13       The matter proceeded to trial, which was held on July 20, 2016. The parties stipulated to a
       bystander’s report, which contained the following information. Counsel for V&T argued in its
       opening statement that the deed for the subject unit was issued to V&T on December 31, 2013,
       and that, therefore, V&T became liable for assessments beginning in January 2014, under the
       rulings in Household Bank, FSB v. Lewis, 229 Ill. 2d 173 (2008), and Pembrook Condominium
       Ass’n-One v. North Shore Trust & Savings, 2013 IL App (2d) 130288. Counsel argued that
       evidence would show that V&T paid its assessments owed each month for January 2014
       through June 2014. Counsel argued that the evidence would show that West Columbia was not
       entitled to any assessments for the period before V&T purchased the property.
¶ 14       West Columbia’s counsel argued that V&T purchased the subject unit at a judicial sale in
       October 2013 and did not tender any assessment payments for several months. As such, there
       was a lien on the property that had not been extinguished.
¶ 15       Tam Huynh, secretary of V&T, testified that V&T purchased the property at a
       court-ordered foreclosure sale that was confirmed by the court on December 16, 2013, with the
       deed issued on December 31, 2013. Huynh testified that V&T became responsible for paying
       assessments the following month, January 2014, and that he sent V&T’s first payment in late
       January or early February 2014.
¶ 16       Huynh testified that he paid a $25 late fee for the January payment, and that he then paid
       the February, March, April, May, and June assessments on time. He testified that when V&T
       went to sell the property in June 2014, the association issued a paid assessment letter
       demanding payment of $7803.97, which V&T paid under protest because most of the charges
       were incurred by the prior owner. V&T then rested.
¶ 17       West Columbia’s first witness was Mathieu Brown, the property manager for Westward
       Property Management, who testified that on October 1, 2013, there was a balance owed by the
       former owner of $9630.74. Brown testified that the association had rented out the unit during
       the time it had possession from 2009 until the judicial sale in question. Brown testified that the
       records showed that the association had received rent payments of $900 a month from October
       2010 to July 2011, and $1000 a month from November 2011 to September 2012. Brown

                                                   -4-
       further testified that the balance on the account in November 2012 was $904.60. He testified
       that the records showed no assessment payments received between November 2012 and
       February 2014, but that assessments had continued to accrue during that time. Brown further
       testified that he did not know if West Columbia had ever filed an action to collect against the
       former owner, but that the records showed attorney charges in 2009, so he “believed so.”
¶ 18       During closing arguments, V&T argued that, according to Pembrook, a purchaser of a
       condominium unit at a foreclosure sale does not incur liability for condominium assessments
       due under section 9(g)(3) of the Act until the month after the court accepts the bid, confirms the
       sale, and the deed is issued. V&T noted that the 2006 amendments to the Act added section
       9(g)(4), which allows an association to collect up to six months of unpaid assessments left by
       the former owner for the six months preceding the institution of an action to collect filed
       against the former owner. V&T argued, however, that if the assessments were paid, they were
       no longer collectable from the foreclosure purchaser. V&T stated that the association filed an
       action to collect in November 2009, and obtained a judgment of $3012.11. The association
       then rented out the unit for the next two years and collected $22,000 in rent. V&T argued that
       any money received in rent is first to be applied against the assessments sued for.
¶ 19       West Columbia’s counsel stated that the Act applied, the section 9(g)(1) lien was never
       extinguished due to V&T’s late initial payment, and the notice of sale had stated that V&T was
       obligated to pay the section 9(g)(1) and section 9(g)(4) liens. West Columbia’s counsel argued
       that assessment payments under section 9(g)(3) begin the month after the sale, which occurred
       in October 2013.
¶ 20       The report of proceedings states that the “court ruled in favor of Defendant but would not
       state her reasoning or provide a written opinion.” The order of judgment in the record merely
       states that judgment was entered in favor of West Columbia. V&T filed a motion to reconsider,
       which was denied. V&T now appeals.

¶ 21                                              ANALYSIS
¶ 22       The issue on appeal is whether V&T should be reimbursed for any amount it paid to West
       Columbia under protest. “Condominiums are creatures of statute and, thus, any action taken on
       behalf of the condominium must be authorized by statute.” Board of Directors of 175 East
       Delaware Place Homeowners Ass’n v. Hinojosa, 287 Ill. App. 3d 886, 889 (1997). “When a
       controversy regarding the rights of a condominium unit owner in a condominium arises, we
       must examine any relevant provisions in the Act and the Declaration or bylaws and construe
       them as a whole.” Carney v. Donley, 261 Ill. App. 3d 1002, 1008 (1994). Questions of
       statutory construction are 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.
¶ 23       Section 9(g)(1) of the Act states in relevant part that:
                   “(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 together with

                                                   -5-
               any interest, late charges, reasonable attorney fees incurred enforcing the covenants of
               the condominium instruments *** shall constitute a lien on the interest of the unit
               owner in the property prior to all other liens and encumbrances, recorded or unrecorded
               ***.” 765 ILCS 605/9(g)(1) (West 2014).
       The plain language of section 9(g)(1) creates a lien in favor of a condominium association
       upon the failure or refusal of a unit owner to pay common expense assessments. 1010
       Lakeshore Ass’n v. Deutsche Bank National Trust Co., 2015 IL 118372, ¶ 23.
¶ 24       Section 9(g)(3) states:
                   “(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 of judgment by
               common law strict foreclosure or otherwise takes possession pursuant to court order
               under the Illinois Mortgage Foreclosure Law [(735 ILCS 5/15-1501 et seq. (West
               2014))], 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 possession pursuant to such court
               order. Such payment confirms the extinguishment of any lien created pursuant to
               paragraph (1) or (2) of 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 2014).
¶ 25       As our supreme court has noted, 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.” 1010 Lake Shore, 2015 IL 118372, ¶ 24. 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 unit owner’s failure to pay assessments.” Id. (quoting 765 ILCS 605/9(g)(3) (West 2014)).
       “Accordingly, under the plain language of section 9(g)(3), the payment of [the]
       postforeclosure sale assessments formally approves and makes certain the cancellation of the
       condominium association’s lien.” Id.
¶ 26       In the case at bar, the question is whether V&T’s first payment of the common expenses,
       on February 6, 2014, extinguished the condominium association’s section 9(g)(1) lien on the
       property. V&T contends that the term “foreclosure sale” in the statute encompasses not just the
       sale, but also the confirmation by the court, which occurred on December 16, 2013, and the
       delivery of the deed, which occurred on December 31, 2013. Accordingly, V&T contends that
       assessments were not due until January 1, 2014, and thus its February 6, 2014, payment was
       timely. West Columbia contends that because the foreclosure sale occurred on October 13,
       2013, the first payment was due on November 1, 2013, making V&T’s February 6, 2014,
       payment late.
¶ 27       To answer the question of whether V&T’s February 2014 payment extinguished the
       existing lien on the property, we must first decipher what “judicial foreclosure sale” means in
       the context of this statute. In section 9(g)(3) of the Act, the legislature stated that the payment
       of the unit’s proportionate share of the common expenses assessed from and after the first day
       of the month after the date of the judicial sale, confirms the extinguishment of any lien created

                                                    -6-
       pursuant to paragraph (1) or (2) of subsection (g), “where the judicial foreclosure sale has been
       confirmed by order of the court.” 765 ILCS 605/9(g)(3) (West 2014). This last statement
       makes clear to us that the statute distinguishes between the judicial foreclosure sale, and the
       confirmation of that sale by the court. If we were to read “judicial foreclosure sale” as
       encompassing the confirmation of the sale, then the portion of the statute that states, “where the
       judicial foreclosure sale has been confirmed by order of the court” (id.), would be rendered
       superfluous. See Slepicka, 2014 IL 116927, ¶ 14 (a reasonable construction must be given to
       each word, clause, and sentence of a statute, and no term should be rendered superfluous). We
       therefore find that, based on the plain language of the statute, which states that the new owner
       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,
       which occurred on October 16, 2013, V&T had the duty to pay the unit’s assessments from and
       after November 1, 2013.
¶ 28        V&T’s reliance on Pembrook does not convince us otherwise. In Pembrook, an entity
       purchased the subject property at a foreclosure sale on April 13, 2012. 2013 IL App (2d)
       130288, ¶ 3. The trial court confirmed the sale and granted the entity possession. Id. On April
       17, 2012, a deed was recorded, conveying the property to the entity. Id. Accordingly, the sale
       and the exchange of the deed happened in the same the month. The entity sent payments to the
       association in May, June, and July 2012. Id. The court cited case law stating that a foreclosure
       purchaser is not liable for assessments that accrue before obtaining title to the property. See
       Newport Condominium Ass’n v. Talman Home Federal Savings & Loan Ass’n of Chicago, 188
       Ill. App. 3d 1054 (1988). However, both Pembrook and Talman dealt with assessments that
       had accrued between the expiration of a mortgagor’s redemption period and the date on which
       the mortgagor received the sheriff’s deed. The case at bar does not include a mortgagor
       redeeming its property during a statutory time period. Accordingly, we find this discussion in
       Pembrook to be inapposite to the facts of our case.
¶ 29        Moreover, the Pembrook court further noted that “under section 9(g)(3), the purchaser of a
       condominium unit at a judicial foreclosure sale must pay the charges that are ‘assessed from
       and after the first day of the month after the date of the judicial foreclosure sale,’ and, if the
       trial court has confirmed the sale, the payment ‘confirms the extinguishment of any lien’
       created under section 9(g)(1) by the failure of the previous unit owner to pay the assessments
       that came due earlier.” Pembrook, 2013 IL App (2d) 130288, ¶ 15 (citing 765 ILCS
       605/9(g)(3) (West 2012)). The court found that the entity’s payment of postforeclosure
       assessments extinguished any lien that had been based on the previous owner’s failure to pay
       assessments. Id. ¶ 17. This discussion of section 9(g)(3) is in line with our analysis above
       regarding the meaning of foreclosure sale in the Act.
¶ 30        Now that we have established that the first assessments came due the month after the
       foreclosure sale, which in this case occurred in October 2013, we must decide if V&T’s
       February 6, 2014, payment extinguished the existing lien on the property. As noted above, the
       last part of the statute makes clear that such payment confirms the extinguishment of the
       condominium association’s lien where the judicial foreclosure sale has been confirmed by the
       court. So the question then becomes, what happens when the foreclosure sale occurs two
       months before the confirmation of sale? We find guidance on this question from the recent case
       of Country Club Estates Condominium Ass’n v. Bayview, 2017 IL App (1st) 162459, ¶ 24, in
       which the argument was made that it would be unreasonable to expect foreclosure buyers to


                                                    -7-
       pay condominium assessments before ownership of the property had been confirmed by the
       court, considering the delay in some cases between the sale and the order confirming the sale.
       The Country Club Estates court stated that courts “can and should take such circumstances into
       account when determining whether a buyer’s payment of assessments is ‘prompt.’ ” Id. The
       court found, “if it takes months for a judicial sale to be confirmed by the court, but the buyer
       pays its assessments shortly after the confirmation order (dating back to the month following
       the sale), the buyer’s payment could be deemed prompt under the circumstances.” Id. Because
       a delay in the confirmation of the sale is exactly what occurred here, we find that V&T’s
       payment was prompt under the circumstances, as it was made shortly after the confirmation of
       the sale. However, while V&T’s payment was prompt under this particular set of
       circumstances, according to Country Club Estates, the payment should have included the
       assessments that had accrued starting from November 1, 2013, the month following the sale,
       instead of January 1, 2014, the month following the confirmation of the sale. The assessments
       for November and December will be included in our calculations at the end of this order.
¶ 31       Our finding that V&T’s payment on February 6, 2014, was prompt confirms the
       extinguishment of the prior section 9(g)(1) lien on the subject property on February 6, 2014.
       We now turn to the next question, which is whether V&T was responsible for any additional
       payments under the Act. Section 9(g)(4) of the Act states:
                    “(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 ***
               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 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 2014).
¶ 32       Based on the plain language of this section of the Act, V&T, as the foreclosure sale
       purchaser, was required “to pay a prior owner’s unpaid assessments that accrued during the six
       months preceding an action to collect assessments.” 1010 Lake Shore, 2015 IL 118372, ¶ 32.
       In this case, the action against the prior owner was initiated in November 2009. Accordingly,
       V&T owed West Columbia the unpaid assessments that had accrued in the six months
       preceding November 2009. Based on the record on appeal, it appears that the monthly
       assessments were $238.76 per month during this time period, which would bring the total
       owed by V&T to $1432.56. However, V&T claims that West Columbia obtained a judgment of
       $3011.12 against the former owner in its action against him.
¶ 33       The question of whether “the outstanding assessments [were] paid at any time during any
       action to enforce the collection of assessments,” as required by section 9(g)(4) to erase the
       obligation to pay any assessments that had accrued before V&T acquired title, is a question of
       fact for the trial court to decide. The trial court is in the best position to resolve conflicts in the
       evidence and evaluate witnesses’ credibility. Nelson v. County of De Kalb, 363 Ill. App. 3d
       206, 210-11 (2005). A trial court’s findings of fact will not be disturbed on review unless those
       findings are against the manifest weight of the evidence. Eychaner v. Gross, 202 Ill. 2d 228,
       251 (2002). As mentioned previously, however, the trial court made no written findings of fact.

                                                      -8-
       Based on our review of the record, we are compelled to find that the trial court’s apparent
       finding that the outstanding assessments were not paid was against the manifest weight of the
       evidence.
¶ 34       During trial, the property manager for West Columbia testified that he did not know if
       West Columbia had ever filed an action to collect against the former owner, but that the records
       showed attorney charges in 2009 so he “believed so.” V&T’s witness, Huynh, testified that he
       was informed by West Columbia that it had filed an action in November 2009, but that West
       Columbia “had obtained possession, rented out the unit for 2 years,” and that “[h]e could see
       from the unit’s ledger that the collection of rent paid off the amount that had been sued for and
       therefore the assessments that it sued on had been paid and were not collectable from a
       foreclosure purchaser.” West Columbia’s counsel stipulated that West Columbia had “gained
       legal possession of the unit from some time in 2010 until late January 2014.” West Columbia’s
       property manager stated that West Columbia had rented out the unit during the time it had
       possession and admitted that the records showed rent payments of $900 per month from
       November 2010 to July 2011 and rent payments of $1000 being received each month from
       November 2011 through September 2012. West Columbia’s property manager further testified
       that the balance on the account was $904.60 on November 12, 2012.
¶ 35       Section 9-111.1 of the Code of Civil Procedure (Code), provides in part:
                “Upon the entry of a judgment in favor of a board of managers for possession of
                property under the [Act] ***, the board of managers shall have the right and authority,
                *** but not the obligation, to lease the unit to a bona fide tenant (whether the tenant is
                in occupancy or not) pursuant to a written lease for a term not to exceed 13 months
                from the date of expiration of the stay of judgment unless extended by order of court
                upon notice to the dispossessed unit owner. The board of managers shall first apply all
                rental income to assessments and other charges sued upon in the action for possession
                plus statutory interest on a monetary judgment, if any, attorneys’ fees, and court costs
                incurred; and then to other expenses lawfully agreed upon (including late charges), any
                fines and reasonable expenses necessary to make the unit rentable, and lastly to
                assessments accrued thereafter until assessments are current. Any surplus shall be
                remitted to the unit owner.” 735 ILCS 5/9-111.1 (West 2012).
¶ 36       If a condominium association elects to rent a unit to a third party after obtaining judgment
       of possession, section 9-111.1 requires “that such rents are applied against the defendant’s
       delinquent assessments and the money judgment.” Board of Managers of the Inverrary
       Condominium Ass’n v. Karaganis, 2017 IL App (2d) 160271, ¶ 29. Accordingly, looking at the
       account documents, we find that the rent paid to West Columbia while it had legal possession,
       totaling upwards of $20,000, far exceeded the amount claimed in damages, $2219.94, by West
       Columbia in its suit against the previous owner. V&T therefore did not have an obligation to
       pay any assessments that had accrued before it acquired title. See 765 ILCS 605/9(g)(4) (West
       2014) (“If the outstanding 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.”).
¶ 37       V&T also contends that it did not owe West Columbia any attorney fees. West Columbia
       stated in its pleadings that a portion of the amount charged to V&T in its demand letter
       ($2791.00) was comprised of attorney fees accrued in the underlying action. West Columbia


                                                    -9-
       argued that they had a right to recoup those fees under section 9(g)(5) of the Act. We disagree.
       Section 9(g)(5) states:
                    “(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. The statement of assessment account issued
                by the association to a unit owner under subsection (i) of Section 18 of this Act, and the
                disclosure statement issued to a prospective purchaser under Section 22.1 of this Act,
                shall state the amount of the assessments and the legal fees, if any, required by
                subdivisions (g)(1) and (g)(4) of Section 9 of this Act.” Id. § 9(g)(5).
¶ 38        As noted above, section 9(g)(1) specifically states:
                    “If any unit owner shall fail or refuse to make any payment of the common
                expenses *** the amount thereof together with any interest, late charges, reasonable
                attorney fees incurred enforcing the covenants of the condominium instruments, rules
                and regulations of the board of managers, or any applicable statute or ordinance, and
                costs of collections shall constitute a lien on the interest of the unit owner in the
                property ***.” (Emphases added.) Id. § 9(g)(1).
       Also noted above, the section 9(g)(1) lien in this case was extinguished when V&T made its
       first assessment payment on February 6, 2014. Accordingly, any attorney fees associated with
       the enforcement of the covenants with the previous owner should not have been included in
       West Columbia’s demand letter. Section 9(g)(4) on the other hand, makes no mention of
       attorney fees. Accordingly, we find no reason as to why attorney fees were included in the
       demand letter to V&T and find that V&T should be reimbursed for any amount paid in attorney
       fees.
¶ 39        As a final matter, we address V&T’s breach of fiduciary duty allegation. To state a claim
       for breach of fiduciary duty, a plaintiff must allege the existence of a fiduciary duty, the breach
       of that duty, and damages proximately caused therefrom. Duffy v. Orlan Brook Condominium
       Owners’ Ass’n, 2012 IL App (1st) 113577, ¶ 17. Section 18.4 of the Act states: “In the
       performance of their duties, the officers and members of the board, whether appointed by the
       developer or elected by the unit owners, shall exercise the care required of a fiduciary of the
       unit owners.” 765 ILCS 605/18.4 (West 2014). The condominium association is similarly
       required to exercise a fiduciary duty toward the individual unit owners. Duffy, 2012 IL App
       (1st) 113577, ¶ 18. In its amended complaint, V&T argued that West Columbia breached its
       fiduciary duty “when it extorted money from [V&T] that [V&T] did not owe and [West
       Columbia] did not have a right to collect.”
¶ 40        During trial, the only argument we see in the bystander’s report relating to a breach of
       fiduciary duty is a statement during opening arguments: “[V&T]’s counsel stated that the
       evidence would show that the Defendants did not have a valid reason to force V&T to pay the
       money it did not owe and had breached their fiduciary duty to it,” and a similar statement
       during closing arguments. When V&T’s counsel asked Huynh why West Columbia would
       have demanded $7803.97, Huynh apparently attempted to testify that West Columbia was in a
       superior position and wrongfully and powerfully made demands for money. West Columbia’s
       counsel objected on the basis that Huynh was being asked to speculate, and the trial court
       sustained the objection.


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¶ 41       In its motion to reconsider, V&T argued that West Columbia had filed an action against the
       former unit owner and then obtained possession, collecting $22,250 in rent. V&T argued that
       once the assessments for the six months preceding the institution of the action were paid, it did
       not have an obligation to pay any assessments that had accrued before it acquired title and,
       thus, West Columbia breached its fiduciary duty to V&T by charging them for those six
       months of assessments. However, as stated above, we find that the trial court’s finding that the
       outstanding assessments had not been paid during the 2009 action to collect was not against the
       manifest weight of the evidence. Accordingly, to the extent that V&T alleged a breach of
       fiduciary duty based on the charge in the demand letter for the six months of assessments, we
       find there was no breach.
¶ 42       To the extent that V&T is arguing that West Columbia breached its fiduciary duty by
       otherwise overcharging it in the demand letter, we find that V&T did not present sufficient
       facts to support such a finding. As stated above, to properly prove a breach of fiduciary duty, a
       plaintiff is required to prove the existence of a fiduciary duty, the breach of that duty, and
       damages proximately caused therefrom. Duffy, 2012 IL App (1st) 113577, ¶ 17. Its only
       allegation of the existence of a duty is from section 18.4 of the Act, which states that in the
       exercise of their duties, the officers and members of a board shall exercise the care required of
       a fiduciary of the unit owners. 765 ILCS 605/18.4 (West 2014). V&T does not allege which
       specific duty was breached in overcharging V&T or what facts gave rise to the breach, except
       to say that the evidence would show that West Columbia overcharged V&T for no valid
       reason. Cf. Palm v. 2800 Lake Shore Drive Condominium Ass’n, 2014 IL App (1st) 111290,
       ¶ 97 (the plaintiffs properly alleged a breach when they argued that “the defendants breached
       their fiduciary duty by ‘failing to strictly comply with the clear requirements of’ the
       declaration and/or the [Act] by failing to itemize reserves in the budget, failing to credit unit
       owners with surpluses, commingling operating and reserve expenses, allowing funds in bank
       accounts in excess of the FDIC-insured limit, failing to provide written notices of board
       meeting as required by the declaration and failing to present possible conflicts of interest to the
       unit owners for approval”). V&T’s statements are conclusory in nature and unsupported by
       evidence in either the bystander’s report or the pleadings. Accordingly, we cannot find that
       West Columbia breached a fiduciary duty to V&T.
¶ 43       Accordingly, the total amount owed by V&T at the time of the demand letter should have
       been $510.94. V&T paid $7803.97 under protest. For the foregoing reasons, we reverse the
       judgment of the circuit court of Cook County and remand for the trial court to enter judgment
       in favor of V&T for a portion of the payment it made under protest, in the amount of $7293.03.

¶ 44      Reversed and remanded.




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