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                                     Appellate Court                          Date: 2018.07.19
                                                                              15:06:53 -05'00'




        Sylva, LLC v. Baldwin Court Condominium Ass’n, 2018 IL App (1st) 170520



Appellate Court       SYLVA, LLC, Plaintiff-Appellee, v. BALDWIN COURT
Caption               CONDOMINIUM ASSOCIATION, INC., Defendant-Appellant.



District & No.        First District, First Division
                      Docket No. 1-17-0520



Filed                 June 4, 2018



Decision Under        Appeal from the Circuit Court of Cook County, No. 15-M1-127817;
Review                the Hon. Diana Rosario, Judge, presiding.



Judgment              Reversed and remanded.


Counsel on            Richard D. Grossman, of Law Offices of Richard D. Grossman, of
Appeal                Chicago, for appellant.

                      John F. Cloutier, of Cloutier Law Group, of Chicago, for appellee.



Panel                 JUSTICE GRIFFIN delivered the judgment of the court, with opinion.
                      Presiding Justice Pierce and Justice Mikva concurred in the judgment
                      and opinion.
                                              OPINION

¶1       Plaintiff, Sylva, LLC (Sylva), bought a condominium unit at a judicial foreclosure sale.
     Defendant, Baldwin Court Condominium Association, Inc. (Baldwin Court), demanded that
     Sylva pay assessments that accrued during the prior owner’s ownership of the condominium.
     The Condominium Property Act (765 ILCS 605/1 et seq. (West 2012)) imposes a duty on a
     foreclosure buyer to pay up to six months of assessments unpaid by the prior owner. Id.
     § 9(g)(4). In the trial court, Sylva argued that it was not required to pay the assessments that
     accrued during its predecessor’s ownership because the Condominium Property Act requires
     the association to sue the predecessor owner for the assessments. The trial court agreed and
     held that Sylva was not liable for the back assessments. We hold that the Condominium
     Property Act does not require a condominium association to file suit against the prior owner in
     order to collect unpaid assessments from the foreclosure buyer. Therefore, we reverse, and we
     remand for further proceedings.

¶2                                           BACKGROUND
¶3       Plaintiff, Sylva, purchased a condominium unit at a foreclosure sale in August 2014.
     Defendant, Baldwin Court, demanded that Sylva pay six months of the assessments incurred
     but not paid by the previous owner. Sylva paid the requested assessments under protest so that
     it could get a letter indicating that there were no liens on the property. Sylva filed this case to
     recover the amount that it claims it was wrongfully required to pay.
¶4       The trial court granted summary judgment in favor of Sylva, finding that the statute at issue
     required Baldwin Court to have filed suit against the previous owner in order to collect the
     back assessments from Sylva. The Condominium Property Act has a provision that allows
     condominium associations to collect up to six months of a prior owner’s unpaid assessments
     from a foreclosure buyer.
              “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.” Id.
     The trial court held that the “Association was not allowed to collect under 765 ILCS
     605/9(g)(4) because no action to collect was filed against the former owner.”
¶5       On appeal, the only issue is whether Baldwin Court did what was necessary to entitle it to
     up to six months of unpaid assessments from Sylva. In their briefs, the parties’ singular focus is
     on the inclusion of the phrase, “institution of an action to enforce the collection of
     assessments.” The parties dispute whether the statute requires that a lawsuit to collect the
     assessments be filed against the prior owner as a prerequisite for recovering them from a
     foreclosure buyer.
¶6       Baldwin Court points out that it took the necessary action to recover under the statute. It
     filed a lien against the property, and the lien was recorded. Sylva had notice of lien and of the


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       unpaid assessments and went forward with the purchase. As the main support for its argument,
       Baldwin Court cites the dictionary definitions of “institution” and “action” to conclude that
       instituting an action does not have to mean filing a lawsuit.
¶7         On the other side, Sylva relies on a number of instances in case law where “instituting an
       action” has been understood to mean filing a lawsuit. Sylva also relies heavily on the synopses
       of section 9(g)(4) to support its position that filing a lawsuit against the predecessor owner is a
       prerequisite to recovering back assessments under the statute.

¶8                                                  ANALYSIS
¶9         The question on appeal is whether section 9(g)(4) of the Condominium Property Act
       requires that a foreclosure purchaser pay up to six months of unpaid assessments incurred by
       the previous owner if the condominium association does not file a lawsuit to collect the unpaid
       assessments against the prior owner. The primary goal in construing a statute is to ascertain
       and give effect to the intent of the legislature. Better Government Ass’n v. Illinois High School
       Ass’n, 2017 IL 121124, ¶ 22. We review a trial court’s interpretation of a statute de novo. J&J
       Ventures Gaming, LLC v. Wild, Inc., 2016 IL 119870, ¶ 25.
¶ 10       To paraphrase, section 9(g)(4) states that the purchaser of a condominium unit at a judicial
       foreclosure sale has the duty to pay the unpaid common expenses for the unit during the 6
       months immediately preceding the institution of an action to enforce the collection of
       assessments. 765 ILCS 605/9(g)(4) (West 2012). Baldwin Court never filed suit to enforce the
       collection of assessments against the previous owner. Baldwin Court nonetheless maintains
       that it is still entitled to collect back assessments under the statute because it did take action to
       collect—it filed a lien claim and sent notice to the prior unit owner.
¶ 11       In other cases, Illinois courts have discussed section 9(g)(4) but have never directly
       interpreted the phrase “institution of an action.” The purpose of section 9(g)(4) is to allow
       associations to recover a portion of the prior owner’s unpaid assessments from a new
       third-party owner. 1010 Lake Shore Ass’n v. Deutsche Bank National Trust Co., 2015 IL
       118372, ¶ 32. Illinois is one of a growing number of states to grant condominium associations
       previously unavailable remedies for collecting assessments that became due during the time a
       defaulting owner held title. See Andrea J. Boyack, Community Collateral Damage: A Question
       of Priorities, 43 Loy. U. Chi. L.J. 53, 100-01 (2011) (discussing the state statutes on
       association lien priority for condominium foreclosures).
¶ 12       Although Baldwin Court does not cite any authority that addresses section 9(g)(4), we have
       held that a condominium association can recover unpaid assessments for the six months
       preceding the association’s action to “enforce its lien.” Wing Street of Arlington Heights
       Condominium Ass’n v. Kiss The Chef Holdings, LLC, 2016 IL App (1st) 142563, ¶¶ 21, 23. In
       Wing Street, however, it was clear that the condominium association “filed an action to collect
       past due assessments” against the unit’s former owner and got a judgment and an order of
       possession. Id. ¶ 4. So the question before us here goes beyond our analysis in Wing Street, but
       the reasoning applied in that case supports our decision here—that the statute does not require
       a condominium association to file suit against the prior owner to be entitled to collect unpaid
       assessments from the new owner under the statute.
¶ 13       In Wing Street, we stated that section 9(g)(4) creates an independent claim for the
       association directly against the new owner and that the obligation arises at the time of the
       foreclosure purchase. Id. ¶ 23. We held that the statute imposes an independent obligation on

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       third-party purchasers and, once that obligation is breached, a separate statutory lien under
       section 9(g)(4) arises in favor of the association. Id. ¶ 24. That separate statutory lien, we
       explained, is based not on the prior owner’s delinquency, but on the current owner’s failure to
       make the payment required by the Condominium Property Act. Id. There is no reasoned basis
       for requiring the association to file suit against the prior owner as a condition precedent to
       recovering under section 9(g)(4), where the section 9(g)(4) obligation is between the
       association and the new owner and only arises postforeclosure.
¶ 14        One of the reasons that the statute works as a matter of policy is because a foreclosure
       buyer is given notice of the unpaid assessments and that it will have the duty to pay them
       before making the decision to buy the condominium. See 765 ILCS 605/9(g)(5) (West 2012).
       The General Assembly made a policy decision that rather than requiring that the condominium
       association (or, really, the other unit owners who are current in paying their assessments) bear
       the full burden of a nonpaying owner, the foreclosure buyer, who may be buying at a premium
       and has advance notice of the unpaid assessments, would take on that burden. See, e.g., 94th
       Ill. Gen. Assem., House Proceedings, Apr. 11, 2006, at 30-39; see also Country Club Estates
       Condominium Ass’n v. Bayview Loan Servicing LLC, 2017 IL App (1st) 162459, ¶ 15. Here,
       Sylva was forewarned of the outstanding assessments and the statutory obligation to pay up to
       six months of the prior owner’s unpaid assessments and nonetheless chose to move forward
       with its purchase of the property.
¶ 15        Section 9(g)(4) states that a foreclosure buyer has a duty to pay common expenses that
       would have come due during the six months preceding the institution of an action to enforce
       collection. It is the foreclosure buyer’s obligation to pay the assessments by operation of
       statute. Wing Street, 2016 IL App (1st) 142563, ¶ 24. Section 9(g)(4) says nothing of
       instituting that action against the previous owner. Condominium associations are entitled to six
       months of back assessments from the time they institute an action to collect against the
       foreclosure buyer. That obligation is enforced by a direct suit against the foreclosure buyer. Id.
       ¶ 23. No suit against the previous owner is contemplated in the statute or in any case law
       interpreting it. Once the association files an action to collect directly against the foreclosure
       buyer, it is entitled to the assessments that would have become due in the preceding six
       months.
¶ 16        The parties do not put a strong emphasis on whether section 9(g)(4) might be ambiguous. If
       the language used in a statute is susceptible to more than one equally reasonable interpretation,
       it is ambiguous, making construction of the language necessary and permitting resort to other
       aids of construction to determine legislative intent. Board of Education of Springfield School
       District No. 186 v. Attorney General, 2017 IL 120343, ¶ 25. A fair argument can be made that
       there is ambiguity in the statute, and there is significant extrinsic support for Baldwin Court’s
       position.
¶ 17        One commentator anticipated that there would be confusion in this area and presciently
       observed that there was room for interpretive disagreement over what it means to “institute an
       action.” See Joseph R. Fortunato, Unpaid Condominium Assessments—Who’s on the Hook?
       Under What Circumstances and to What Extent Are Purchasers of a Condominium Unit at a
       Foreclosure Sale or From a Mortgagee Liable to an Association for Unpaid Assessments? The
       Condominium Property Act Is a Model of Ambiguity, 99 Ill. B.J. 208 (2011). Referring to this
       statute as “a model of ambiguity,” the commentator goes on to set up the exact issue presented
       in this case with regard to what it means to “institute an action.” “Buyers’ counsel have argued

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       that nothing short of a legal proceeding—e.g., a collection suit or a suit in Forcible Entry and
       Detainer—constitutes the ‘institution of an action’ that entitles the association to collect.
       Associations contend that a demand letter to the defaulting prior owner is sufficient.” Id.
¶ 18        Were we to resort to extrinsic interpretive aids, we would see strong indications that the
       purpose for and the goals to be attained by the statute support Baldwin Court’s position. Sylva
       provides no reasoned argument why the association’s statutory right to back assessments
       should be conditioned on suing the prior owner. Such a requirement would create needless
       litigation and would not be helpful in solving the issue that section 9(g)(4) was enacted to
       address. Where Sylva had record notice of the lien and this statute was in effect, it is difficult to
       see what justification there would be for requiring Baldwin Court to file suit against the prior
       owner as a condition precedent to recovering from Sylva. A commonsense approach to
       effectuating the goals of the statute causes us to find that a condominium association need not
       file a lawsuit against a prior owner to collect unpaid assessments from a foreclosure purchaser.
¶ 19        The legislative debates also provide support for the position that filing a lawsuit against the
       prior owner was not intended to be a precondition for recovery under the statute. For example,
       during the April 11, 2006, House of Representative debates, the sponsor of the bill,
       Representative Nekritz, was questioned about the state of the condominium law before the
       statute was amended and section 9(g)(4) was added. She indicated that, in contrast with the
       then-current law, Public Act 94-1049 (eff. Jan. 1, 2007), would allow condominium
       associations to collect six months of back assessments “even if they had not filed that lien
       against the property.” 94th Ill. Gen. Assem., House Proceedings, April 11, 2006, at 33
       (statements of Representative Nekritz). That position is in accord with the other states that
       have this type of statute on the books. See, e.g., Boyack, supra, at 100-01 (discussing the state
       statutes on association lien priority for condominium foreclosures).
¶ 20        Representative Nekritz continued by stating that the then-current law provided that, “[i]f
       the condominium association had gone to the expense and the trouble to hire lawyers and file a
       claim for unpaid assessments, they…they might possibly be in a position to collect those, but
       there’d be no guarantee of that.” 94th Ill. Gen. Assem., House Proceedings, April 11, 2006, at
       34. Representative Nekritz reiterated that without this bill, the condominium associations
       could not collect unpaid assessments following a foreclosure “unless they’ve perfected that
       lien, which in most instances is way too expensive and way too cumbersome for them.” This
       discussion supports an interpretation that the bill was intended to “guarantee” collection from a
       new owner, even where the association had not previously filed a lawsuit for unpaid
       assessments.
¶ 21        We hold that Baldwin Court was not required to file suit against Sylva’s predecessor owner
       in order to be entitled to up to six months of unpaid assessments from Sylva that accrued
       during its predecessor’s ownership. We reverse the order granting summary judgment in
       Sylva’s favor. Consistent with our prior statements, Baldwin Court is entitled to up to six
       months of unpaid assessments dating from the time Baldwin Court took the requisite action to
       enforce the obligation. See Wing Street, 2016 IL App (1st) 142563, ¶ 23.
¶ 22        The particular circumstances of this case present another issue that was not addressed by
       the parties. Baldwin Court did not in fact file suit against Sylva so as to “institute an action” to
       enforce collection. Here, Baldwin Court did not file suit to collect the unpaid assessments
       because it had already been paid by Sylva. Even though the payment was made under protest, it
       is clear that Baldwin Court always sought to enforce its right to collect the back assessments

                                                     -5-
       from Sylva. “It is one of the oldest and perhaps the wisest maxims of equity that the law will
       not require a person to do a useless act.” Rock Island Y.W.C.A. v. Bestor, 48 Ill. App. 3d 761,
       765 (1977); see also PNC Bank, National Ass’n v. Wilson, 2017 IL App (2d) 151189, ¶ 25
       (futile acts are usually excused). The fact that Sylva is the plaintiff in this case is of no
       consequence. Baldwin Court had no reason to file suit. The unavoidable result is that Baldwin
       Court is entitled to six months of back assessments from the foreclosure purchaser pursuant to
       section 9(g)(4).
¶ 23       One final matter, however, is that there remains a genuine issue of material fact regarding
       the amount Sylva owes Baldwin Court for the unpaid assessments. Monthly assessments for
       the unit were $258 at the relevant time. Baldwin Court required Sylva to pay $3485 for the “six
       months back assessments per statute” or $580.83 per month ($3485/6 months) without
       explanation. Baldwin Court did not move for summary judgment in its favor on this claim
       below, and its requested relief on appeal is that we “remand[ ] this case for further proceedings
       in accordance with a proper construction of [the statute].” There is not undisputed evidence
       from which we can order that judgment in an amount certain be entered in Baldwin Court’s
       favor, and thus, we must remand the case for Baldwin Court to prove its damages.

¶ 24                                     CONCLUSION
¶ 25      Accordingly, we reverse and remand for further proceedings consistent with this opinion.

¶ 26      Reversed and remanded.




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