                           ILLINOIS OFFICIAL REPORTS
                                         Appellate Court




           Gotham Lofts Condominium Ass’n v. Kaider, 2013 IL App (1st) 120400




Appellate Court            GOTHAM LOFTS CONDOMINIUM ASSOCIATION, Plaintiff-
Caption                    Appellant, v. DONALD KAIDER, Defendants-Appellants.



District & No.             First District, Second Division
                           Docket No. 1-12-0400


Filed                      February 5, 2013


Held                       Where plaintiff condominium association was placed in possession of
(Note: This syllabus       defendant’s unit pursuant to a forcible entry and detainer action after
constitutes no part of     defendant failed to pay assessments for common expenses and the
the opinion of the court   association retained an agent to rent the unit and use the rent to pay the
but has been prepared      assessments, but the agent absconded with the rent, the trial court erred
by the Reporter of         in reinstating defendant to possession based on findings that defendant’s
Decisions for the          account was satisfied, since no evidentiary hearing was conducted and no
convenience of the         basis existed for the findings, and, furthermore, the trial court improperly
reader.)
                           placed the burden of proving the debt had been paid on plaintiff, rather
                           than defendant, and considered issues collateral to the association’s
                           forcible entry and detainer action.



Decision Under             Appeal from the Circuit Court of Cook County, No. 009-M1-715439; the
Review                     Hon. George F. Scully, Judge, presiding.



Judgment                   Reversed and remanded.
Counsel on                 Andrew A. Girard and Bradley J. Rettig, both of Girard Law Group, P.C.,
Appeal                     of Chicago, for appellant.

                           Marvin L. Husby III, of Chicago, for appellee.


Panel                      JUSTICE CONNORS delivered the judgment of the court, with opinion.
                           Presiding Justice Harris and Justice Simon concurred in the judgment and
                           opinion.



                                             OPINION

¶1          Plaintiff Gotham Lofts Condominium Association won a judgment of possession for
        defendant Donald Kaider’s condominium property due to defendant’s failure to pay
        assessments for common expenses. Defendant later filed a motion to vacate the judgment,
        asserting that his delinquent account had been satisfied because plaintiff leased the property
        to a tenant after the judgment. The circuit court agreed and, among other relief, ordered
        defendant to be reinstated into possession. We reverse and remand.
¶2          Taking possession of condominium property is one of the most powerful remedies that
        a condo association has available when owners fail to pay their assessments, but the process
        is under firm statutory control. See generally 765 ILCS 605/9.2 (West 2010) (remedies
        available for nonpayment of assessments); 735 ILCS 5/9-101 et seq. (West 2010) (forcible
        entry and detainer actions); see also generally Knolls Condominium Ass’n v. Harms, 202 Ill.
        2d 450 (2002) (discussing the contours of this type of action). When a condo association
        wins a judgment in a forcible entry and detainer action against a condo owner, the association
        is entitled to possession of the property until the property owner pays all current and back
        assessments as well as all costs and attorney fees associated with the forcible entry and
        detainer action. See 735 ILCS 5/9-111(a) (West 2010). After taking possession, the
        association has the option (but not the obligation) of leasing the property to a bona fide
        tenant for up to 13 months, which may be extended by order of court if the association is still
        entitled to possession at the end of the lease term. If the association chooses to lease the
        property, then it must apply all rental income to the owner’s account. When all outstanding
        assessments, attorney fees, and court costs have been satisfied, the owner is entitled to any
        surplus in the rent received and may regain possession of the property at the end of the lease
        term. See 735 ILCS 5/9-111.1 (West 2010).
¶3          Plaintiff won a judgment of possession against defendant in September 2009, and it took
        possession of the property in March 2010. Plaintiff decided to lease the property in order to
        recoup defendant’s delinquent account, which by that point was about $5,800 and included
        all back assessments, attorney fees, and court costs associated with the forcible entry and
        detainer action. Plaintiff turned the property over to its property manager, Phoenix Rising

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     Management Group, Ltd., which then located a tenant and negotiated a lease. Plaintiff
     entered into the lease with the tenant in April 2010, for a monthly rent of $1,450.
¶4        About six months later, however, plaintiff discovered some serious irregularities in its
     accounts, which led plaintiff to fire Phoenix Rising. Plaintiff hired a new company,
     Westward Property Management, Inc., and when Westward audited plaintiff’s books it
     discovered that a number of plaintiff’s accounts receivable were badly delinquent because
     Phoenix Rising had allegedly not been collecting payments from unit owners and lessees.
     Plaintiff hired a law firm to assist with collecting the overdue accounts, and the firm
     discovered that the tenant who was leasing defendant’s property had apparently not paid any
     rent since she moved in. When pressed on the matter, the tenant refused to pay the alleged
     back rent and moved out.
¶5        By this point, over 13 months had passed since plaintiff had enforced the judgment of
     possession, so it returned to the trial court and asked for permission to lease the property to
     a tenant who would actually pay rent. Defendant did not appear at the hearing and the trial
     court granted plaintiff’s motion. About a month later, defendant filed an emergency motion
     to vacate the leasing-extension order and restore him to possession. The trial court granted
     defendant’s motion in July 2011, pending a final disposition of the issue. The trial court also
     ordered plaintiff to provide an accounting of all rent received from the tenant, or the absence
     thereof, but plaintiff was unable to provide any records whatsoever regarding the lease of the
     property because the relevant records were allegedly still in the exclusive possession of
     Phoenix Rising.
¶6        The trial court ultimately found that plaintiff had provided no evidence of a lease of the
     property to a tenant, much less any evidence that plaintiff had collected any rent from the
     alleged tenant. The court also found that, as a matter of law, plaintiff had a duty to exercise
     its right to lease out defendant’s property in a reasonable manner, and that plaintiff was liable
     for the negligence of its agent Phoenix Rising in failing to collect rent from the tenant.
     Noting that plaintiff had, contrary to a court order, failed to provide the court with an
     accounting, the trial court ordered plaintiff to credit defendant’s account over $20,000, which
     was the trial court’s estimate of the amount of rental income that plaintiff should have been
     collecting from the tenant, along with some charges that the trial court found had been
     erroneously added to defendant’s account. Plaintiff then appealed.
¶7        There are many problems with what happened in this case, but the crucial one is this:
     except for the original judgment of possession, none of the facts that we have just recited are
     actually facts at all. They are instead only allegations made by the parties’ attorneys in their
     various postjudgment motions and at oral argument before the trial court during the hearing
     on defendant’s motion. The dispositive issue in this case is whether the parties must submit
     evidence that supports their claims to the trial court, or whether mere allegations are
     sufficient.
¶8        Section 9-111 of the Code of Civil Procedure is the controlling law in postjudgment




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       situations for forcible entry and detainer actions that involve condominium property,1 and it
       provides:
           “If at any time, either during or after the period of stay, the defendant pays such expenses
           found due by the court, and costs, and reasonable attorney’s fees as fixed by the court,
           and the defendant is not in arrears on his or her share of the common expenses for the
           period subsequent to that covered by the judgment, the defendant may file a motion to
           vacate the judgment in the court in which the judgment was entered, and, if the court,
           upon the hearing of such motion, is satisfied that the default in payment of the
           proportionate share of expenses has been cured, and if the court finds that the premises
           are not presently let by the board of managers as provided in Section 9-111.1 of this Act
           [(735 ILCS 5/9-111.1)], the judgment shall be vacated. If the premises are being let by
           the board of managers as provided in Section 9-111.1 of this Act [(735 ILCS 5/9-111.1)],
           when any judgment is sought to be vacated, the court shall vacate the judgment effective
           concurrent with the expiration of the lease term. Unless defendant files such motion to
           vacate in the court or the judgment is otherwise stayed, enforcement of the judgment may
           proceed immediately upon the expiration of the period of stay and all rights of the
           defendant to possession of his or her unit shall cease and determine until the date that the
           judgment may thereafter be vacated in accordance with the foregoing provisions ***.”
           735 ILCS 5/9-111 (West 2010).
¶9         The meaning of a statute is a question of law that we review de novo. See Mashal v. City
       of Chicago, 2012 IL 112341, ¶ 21. “The primary goal of our review is to ascertain and give
       effect to the legislature’s intent. [Citation.] In determining that intent, we may properly
       consider the language of the statute, the reason and necessity for the law, the evils sought to
       be remedied and the statute’s ultimate aim.” Id.
¶ 10       Under section 9-111(a), a condo association that prevails in a forcible entry and detainer
       action against an owner over unpaid assessments is entitled to possession of the owner’s
       property until the owner files a motion to vacate the judgment of possession. As the statute
       states, the key issue that the court must decide in considering such a motion is whether “the
       default in payment of the proportionate share of expenses has been cured.” 735 ILCS 5/9-
       111(a) (West 2010). Although not expressly stated in the statute, it is obvious under the plain
       language of section 9-111(a) that the hearing that the trial court is required to hold on the
       owner’s motion to vacate the judgment is an evidentiary one because whether the default has
       been cured is a question of fact.
¶ 11       We ordinarily review the factual findings of the trial court only to determine whether they
       are against the manifest weight of the evidence (see, e.g., Yellow Book Sales & Distribution


               1
                  In its opening brief on appeal, plaintiff argued that the trial court lacked jurisdiction over
       defendant’s motion to vacate because the motion did not satisfy the requirements of section 2-
       1401(a) of the Code of Civil Procedure (735 ILCS 5/2-1401(a) (West 2010)). This is incorrect, as
       the trial court’s jurisdiction in this procedural context is grounded in section 9-111, which empowers
       the trial court to hear postjudgment motions to vacate a judgment of possession for condominium
       property due to failure to pay assessments.

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       Co. v. Feldman, 2012 IL App (1st) 120069, ¶ 37), but the problem here is that no evidence
       was ever presented to the trial court and no evidentiary hearing ever occurred. Defendant’s
       original motion asking to vacate the extension order and to restore him to possession and
       plaintiff’s responses was neither verified nor included any affidavits, and neither side
       presented any witnesses, depositions, affidavits, or other evidence to the trial court during
       any of the postjudgment hearings conducted in this matter. Indeed, all that was presented at
       the final hearing was the arguments of the parties’ attorneys, and the trial court lamented
       several times that it had been given no evidence regarding the crucial issues of the lease,
       payment of rent, receipt of rental income by plaintiff, or the balance of defendant’s account.
¶ 12       Absent an evidentiary hearing, there is no basis in the record for any of the trial court’s
       factual findings regarding the existence or nonexistence of the lease and any payments that
       the alleged tenant may or may not have made. The failure to conduct an evidentiary hearing
       on defendant’s motion is fatal to the trial court’s judgment in this case, so we must reverse
       on that ground alone. Before remanding this case, however, we think it important to discuss
       two other areas of concern so that they can be addressed by the trial court.
¶ 13       The first issue is the trial court’s allocation of the relative burdens of the parties. Section
       9-111(a) is silent as to the allocation of burdens, and the statute’s only requirement is that
       the trial court be “satisfied” that the defendant’s default in paying the assessments has been
       cured. So which party bears the burden of showing that the default has been cured? This is
       a crucial consideration in this case, given that defendant alleged that there was a lease to a
       tenant, and plaintiff denied that it ever received any rental income to satisfy the delinquent
       account. And although neither party ever produced any evidence of its claims, the trial court
       essentially presumed that the debt had been satisfied and required plaintiff to prove
       otherwise, placing the burden on plaintiff, not defendant, of introducing any and all evidence
       about the alleged lease and rental payments.
¶ 14       Although section 9-111 is silent on the burden question, the statute is analogous to
       sections 2-1203 and 2-1401 of the Code of Civil Procedure (735 ILCS 5/2-1202, 2-1203, 2-
       1401 (West 2010)). Like section 9-111, these sections also create procedures for attacking
       a judgment after trial. Importantly for our purposes, it is the party requesting relief from
       judgment that bears the burden of proof for motions under both of these sections. See In re
       Haley D., 2011 IL 110886, ¶ 57 (section 2-1401); Espedido v. St. Joseph Hospital, 172 Ill.
       App. 3d 460, 467 (1988) (section 2-1203). Nowhere does section 9-111 indicate that plaintiff
       should bear the burden of showing that the debt has not been satisfied. Indeed, plaintiff won
       judgment at trial because it proved that defendant was delinquent in paying his assessments,
       and it is defendant, not plaintiff, who is now asking the trial court to vacate that judgment
       on the ground that his account is current. As is the case with sections 2-1203 and 2-1401, the
       party seeking to have the judgment vacated should bear the burden of proving any necessary
       supporting facts. The trial court’s decision to place the burden of proof on plaintiff rather
       than defendant was therefore improper.
¶ 15       There is one important issue about this allocation of the burden that the trial court should
       be careful to consider in cases of this nature, however, and that is the parties’ relative access
       to information regarding the satisfaction of the debt. In situations where an owner cures the
       default by paying the money owed directly to the association, the owner should have no

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       trouble producing evidence proving that the debt has been paid. But in situations that involve
       a lease of the property under section 9-111.1, we can foresee problems arising when owners
       lack access to information about the lease and rental payments because that information is
       held by the condo association or its agents. That appears to be part of the problem in this
       case, given that all of the relevant documents were allegedly held by Phoenix Rising. We are
       confident, however, that the trial court has sufficient tools at its disposal to compel the
       production of relevant documents and, if necessary, impose sanctions for the failure to
       produce them, and the parties also have the ability to subpoena documents and witnesses for
       the purpose of an evidentiary hearing and to enforce those subpoenas through the trial court.
       But regardless of how the evidence is produced, defendant has the burden of proof under
       section 9-111 and must demonstrate to the trial court’s satisfaction that the default has been
       cured before the judgment of possession can be vacated.
¶ 16        The second issue deals with the trial court’s findings that plaintiff had a duty to exercise
       its right to possession of defendant’s property reasonably, that Phoenix Rising was negligent
       in collecting rent from the tenant, and that plaintiff is liable for Phoenix Rising’s negligence.
       Aside from the fundamental problem of the complete lack of any evidence supporting the
       second finding, these questions are collateral to the issue of possession and should not have
       been reached by the trial court. Section 9-106 mandates that, “[e]xcept as otherwise provided
       in Section 9-120 [which deals with leased premises involved in criminal activity], no matters
       not germane to the distinctive purpose of the proceeding shall be introduced by joinder,
       counterclaim or otherwise.” (Emphasis added.) 735 ILCS 5/9-106 (West 2010). Although
       section 9-106 deals primarily with pleadings and evidence, there is nothing in the plain
       language of the section that excludes postjudgment proceedings from its requirements.
       Indeed, the term “distinctive purpose of the proceeding” refers to the limited nature of a
       forcible entry and detainer action, which is “to adjudicate the parties’ rights to possession of
       the premises, and, therefore, such proceedings should not be burdened by matters not directly
       related to the issue of which party is entitled to possession.” Great American Federal Savings
       & Loan Ass’n v. Grivas, 137 Ill. App. 3d 267, 275 (1985). A motion under section 9-111 is
       designed for the sole purpose of determining whether the defendant is entitled to regain
       possession from the plaintiff after judgment, so section 9-106’s germaneness requirement
       applies with equal force to postjudgment proceedings such as this one.
¶ 17        But the trial court did not confine its inquiry to the issue of possession, contrary to the
       mandate of section 9-106. The only purpose of a hearing on a motion to vacate the judgment
       of possession is to answer two factual questions: (1) whether “the default in the payment of
       the proportionate share of expenses has been cured,” and (2) whether the premises are
       currently leased to a tenant. 735 ILCS 5/9-111 (West 2010). By considering the collateral
       question of whether plaintiff’s agent had been negligent in leasing the property and whether
       plaintiff was liable for that negligence, the trial court allowed defendant to introduce issues
       that are not germane to the paramount issue of possession. See generally Sawyier v. Young,
       198 Ill. App. 3d 1047, 1054 (1990) (identifying germane issues).
¶ 18        Given the parties’ allegations about the unusual circumstances of this case, we
       understand why the court felt that plaintiff’s duties regarding the alleged lease and Phoenix
       Rising’s alleged negligence should be addressed. But those issues are not germane to

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       possession and therefore cannot be considered in the limited context of a forcible entry and
       detainer action, even after judgment. If defendant wishes to pursue his claim that plaintiff is
       liable for Phoenix Rising’s alleged negligence, then he should test that claim in a collateral
       tort action, but he may not inject it into this particular proceeding.

¶ 19      Reversed and remanded.




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