                                 2017 IL App (1st) 162449
                                                                        SECOND DIVISION
                                                                         September 26, 2017

                                      No. 1-16-2449


THE CITY OF CHICAGO,                       )
                                           )
      Plaintiff-Appellee,                  )                     Appeal from the Circuit
                                           )                     Court of Cook County
v.                                         )                     County Department,
                                           )                     Municipal Division
FEDERAL NATIONAL MORTGAGE ASSOCIATION, )
                                           )                     Case No. 12 M1 400142
      Defendant-Appellant                  )
                                           )                     Hon. Pamela H. Gillespie,
(JOHN SOLUDCZYK; MORTGAGE ELECTRONIC       )                     Judge Presiding.
REGISTRATION SYSTEMS, INC., as nominee for )
Freedom Mortgage Corp.; FREEDOM MORTGAGE   )
CORPORATION; UNKNOWN OWNERS and NON-       )
RECORD CLAIMANTS,                          )
                                           )
      Defendants).                         )


     JUSTICE MASON delivered the judgment of the court, with opinion.
     Presiding Justice Neville and Justice Hyman concurred in the judgment and opinion.

                                        OPINION

¶1          The City of Chicago seeks to enforce an in personam money judgment against

     Federal National Mortgage Association (Fannie Mae) representing the amount the City

     expended to demolish certain property. Fannie Mae owned the property briefly after it

     purchased it at a foreclosure sale. At the time the City demolished the property and

     perfected its demolition lien, Fannie Mae, having sold the property more than two years

     earlier, was not the owner. We find that the procedure by which the City obtained its

     judgment did not comport with the statute authorizing a municipality to seek a money

     judgment for demolition costs and, therefore, we reverse.

¶2          The City filed this case in the circuit court of Cook County on January 17, 2012,

     asserting various claims arising out of alleged dangerous and unsafe conditions at
No. 1-16-2449

       property located at 535 W. 60th Street in Chicago. The complaint alleged a variety of

       dangerous conditions at the property, including (i) “stripped and inoperable” electrical

       and plumbing systems, (ii) lack of electric service to the building, (iii) smoke, water and

       fire damage and (iv) structural damage to the joists, rafters and roof.

¶3              Named as defendants were the property’s owner of record, John Soludczyk, and

       various lienholders, including JPMorgan Chase Bank, N.A., which was the plaintiff in a

       pending mortgage foreclosure against the property. According to public records,

       Soludczyk acquired the property by quitclaim deed on March 31, 2005, and JP Morgan

       Chase was the assignee of Mortgage Electronic Registration Systems, Inc. (MERS), the

       original lender that recorded its lien on the property the same date Soludczyk took title. 1

¶4              At issue on appeal are two counts of the complaint: count I, which sought to

       require the defendants to demolish the property or, alternatively, allow the City to

       demolish the property under Article 11, Division 31 of the Illinois Municipal Code,

       otherwise known as the Unsafe Property Act (65 ILCS 5/11-31-1(a) (West 2010)) (Act);

       and count IV, which sought a declaration that the property was a public nuisance and

       injunctive relief against defendants to abate the nuisance pursuant to the City’s Public

       Nuisance Ordinance (Municipal Code of Chicago §7-28-060 (2010)) (Code). In the


       1
           See Cook County Recorder of Deeds, http://cookrecorder.com (enter “20-16-311-023-
0000” in PIN-Address Quick Search bar, then follow “Show” hyperlink) (last visited September
18, 2017). We may take judicial notice of information posted on the Recorder of Deeds website.
See Illinois Rule of Evidence 2.01(b) (eff. Jan. 1, 2011) (court may take judicial notice of facts
“capable of accurate and ready determination by resort to sources whose accuracy cannot
reasonably be questioned”); JPMorgan Chase Bank v. Bank of America, N.A., 2015 IL App (1st)
140428, ¶ 44, fn. 4.

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No. 1-16-2449

      prayer for relief under count I, the City requested an order assessing the costs of the

      demolition “as a judgment against the defendants” and “[p]ermitting foreclosure of any

      City of Chicago liens entered against the subject property in this proceeding.” Count IV

      did not separately request any relief other than abatement of the nuisance.

¶5              In the foreclosure proceedings, JPMorgan Chase obtained a judgment of

      foreclosure and purchased the property at the foreclosure sale, which was confirmed by

      order entered on June 13, 2012. We gather from the foreclosure documents in the record

      that the mortgage was insured by Fannie Mae and that following the sale, Fannie Mae

      became the certificate holder and acquired the property. The City then named Fannie Mae

      as a defendant in this case. After Fannie Mae was added as a defendant, the City, without

      explanation, dismissed the case against Soludzcyk and JPMorgan Chase.

¶6              Although Fannie Mae filed an appearance through counsel, it does not appear that

      it actively participated in the demolition case and the only orders entered against Fannie

      Mae during the proceedings required it to “secure and keep secure the entire subject

      property by maintaining the property as secure and vacant.” In particular, the record

      contains no demand by the City that Fannie Mae remedy the dangerous and unsafe

      conditions at the property. On appeal, the City contends that an order of default was

      entered against Fannie Mae, but no such order appears in the record.

¶7              Fannie Mae owned the property for 10 months—from June 13, 2012, until April

      11, 2013—when it sold the property to Rachel Branton. The City did not thereafter name

      Branton as a defendant.

¶8              On April 9, 2013, two days before the sale to Branton, an order of demolition was

      entered in favor of the City and against Fannie Mae, the only remaining defendant, on


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No. 1-16-2449

       counts I and IV of the complaint. The City dismissed the other counts of the complaint.

       MERS, which had also been named as a defendant in the original complaint, was

       dismissed by the City on the same date the demolition order was entered.

¶9              The demolition order found that the conditions at the property were beyond repair

       and that a judgment in favor of the City on counts I and IV seeking demolition authority

       was warranted. The order provided that the City’s authority to demolish the property

       “shall become effective May 9, 2013.” The order also stipulated that the City’s

       demolition of the property would “result in a statutory in rem lien that attaches only to the

       subject parcel of real estate.” The order further provided that “[i]f the City seeks a

       personal judgment against any individual party to this action, it will proceed by separate

       motion directed to that party.” The court made a finding pursuant to Illinois Supreme

       Court Rule 304(a) (eff. Feb. 26, 2010) that there was no just reason to delay enforcement

       or appeal of the order and retained jurisdiction “for the purpose of ascertaining

       demolition costs for entry of a money judgment against the defendant owners, as defined

       by the applicable statutes and ordinances.” No party appealed the demolition order.

¶ 10            The City did not demolish the property until September 17, 2015, nearly two and

       a half years after entry of the demolition order and Fannie Mae’s sale to Branton. The

       City’s lien for the demolition costs was recorded against the property on February 24,

       2016.

¶ 11            On March 29, 2016, the City filed a “Motion to Ascertain Demolition and Other

       Costs.” Notice of the motion was sent only to Fannie Mae. The motion represented that

       the City had incurred demolition and litigation costs totaling $27,042 and requested a

       personal money judgment against Fannie Mae in the same amount. No authority for


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No. 1-16-2449

       entering the judgment against Fannie Mae was cited in the City’s motion and no support

       for the amount sought was attached to the motion.

¶ 12            Fannie Mae responded to the City’s motion, objecting to the entry of judgment

       because (i) the requested relief was unjust given that Fannie Mae was not the owner of

       the property when it fell into disrepair, when the City demolished it, or when the City's

       lien became effective by recordation, (ii) the City’s attempt to impose personal liability

       on Fannie Mae was not authorized under the Act and (iii) even if the Act applied, the City

       had not followed the required procedure to obtain a money judgment, which necessitated

       either foreclosure of the City’s demolition lien or the filing of a separate action under the

       Code of Civil Procedure seeking a money judgment.

¶ 13            In support of its motion, the City pointed to the retention of jurisdiction in the

       demolition order and argued that the Act authorized a money judgment against the

       “owner or owners” of demolished property. 65 ILCS 5/11-31-1 (West 2010). As Fannie

       Mae was an owner of the property when the demolition order was entered, the City

       argued it could impose personal liability on Fannie Mae for demolition costs even if

       Fannie Mae did not currently own the property. The City further argued that it could

       obtain a money judgment against Fannie Mae via a motion in the demolition case and

       that it was not required to foreclose its demolition lien or pursue a separate civil action.

¶ 14            The trial court agreed with the City. On June 13, 2016, the court entered an order

       finding that “because the [d]emolition order was entered while Fannie Mae was the

       owner of the property and because the statute does not provide for relief from liability

       upon transfer of the property, Fannie Mae is liable for [d]emolition costs.” The court

       entered a personal money judgment against Fannie Mae in the amount of $27,042.


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       Although Fannie Mae was at that point the only party-defendant in the case, the court

       also granted the City leave to file a petition to foreclose its demolition lien, either as part

       of the demolition case or as a separate proceeding and retained jurisdiction “solely for the

       purpose of adjudicating the foreclosure.” The trial court made a finding pursuant to

       Illinois Supreme Court Rule 304(a) that there was no just reason for delaying

       enforcement or appeal of its order. Fannie Mae filed a timely notice of appeal.

¶ 15            We first address the basis for our jurisdiction. Fannie Mae posits that we have

       jurisdiction, pursuant to Illinois Supreme Court Rule 301 (eff. Feb. 1, 1994), on appeal

       from a final judgment in the demolition case. Alternatively, Fannie Mae contends the trial

       court's finding pursuant to Rule 304(a) (Ill. Sup. Ct. R. 304(a) (eff. Feb. 26, 2010)),

       confers appellate jurisdiction. The City relies exclusively on jurisdiction under Rule

       304(a), which, in cases involving multiple parties or claims for relief, allows an appeal

       from a final judgment “as to one or more but fewer than all of the parties or claims”

       provided the court makes a finding that “there is no just reason for delaying either

       enforcement or appeal or both.” Id.

¶ 16            At the time the trial court entered its June 13, 2016 judgment against Fannie Mae,

       there were no other defendants in the case and no other claims pending. Although the

       City argues in its brief that there were other claims asserted and other parties to the case,

       this overlooks that those parties and claims were voluntarily dismissed in 2012, before

       entry of the demolition order and long before the property was demolished. There is no

       indication in the record that the City ever revived any other claims or joined any other

       parties after they were dismissed. The court’s order finally resolved, as the City concedes,

       its only remaining claim against Fannie Mae.


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¶ 17            The fact that the court retained jurisdiction, for some unspecified period of time,

       over a claim the City had not yet asserted 2 against persons or entities not then parties to

       the case cannot transform the court's final judgment into something else. If the City later

       sought to reopen the case to pursue further proceedings against other parties, the court’s

       retention of jurisdiction would potentially apply, but that does not mean that the court’s

       order was anything other than a final judgment.

¶ 18            Therefore, we have jurisdiction over Fannie Mae’s appeal of a final judgment

       pursuant to Rule 301. We discourage the inclusion of Rule 304(a) findings as a matter of

       course when the order entered finally resolves the litigation in its entirety.

¶ 19            In this case of first impression, we must construe the Act to determine whether it

       authorizes a municipality to impose personal liability for demolition costs simply by

       filing a motion in the demolition case or whether those the municipality seeks to hold

       personally liable for those costs are entitled to greater procedural protections. We review

       this question of law de novo. Nelson v. Artley, 2015 IL 118058, ¶ 13.

¶ 20            As in any case involving statutory construction, we start with the language of the

       statute to determine the legislature’s intent. “Our primary objective is to ascertain and

       give effect to legislative intent, the surest and most reliable indicator of which is the

       statutory language itself, given its plain and ordinary meaning.” Board of Education of

       Springfield School District No. 186 v. Attorney General of Illinois, 2017 IL 120343, ¶ 24.

       In the absence of an ambiguity in the statute’s language, we must apply it as written




       2
           Disavowing any attempt at a double recovery, the City represents that since entry of the
June 13, 2016 order, it has not commenced proceedings to foreclose its lien.

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       without resort to extrinsic aids to statutory construction. Id. (citing People v. Collins, 214

       Ill. 2d 206, 214 (2005)).

¶ 21            Although the parties discuss only those subsections of the Act directly at issue

       here, a discussion of the Act’s overall structure is helpful to place those provisions in

       context. See Turk v. Turk, 2013 IL 116730, ¶ 15 (court should not consider words and

       phrases in isolation, but instead should interpret each word and phrase in light of the

       statute as a whole).

¶ 22            Various subsections of the Act specify procedures municipalities and others may

       pursue to remedy unsafe and hazardous buildings within a municipality's borders. Under

       subsection (a), the section invoked by the City in the trial court, a municipality may apply

       to demolish or take other action to address dangerous and unsafe buildings. 65 ILCS

       5/11-31-1(a) (West 2010). To accomplish this, the municipality must apply to the circuit

       court “for an order authorizing action to be taken with respect to a building if the owner

       or owners of the building, including the lien holders of record, after at least 15 days’

       written notice so to do, have failed to put the building in a safe condition or to demolish

       it.” Id. The hearing on the application “shall be expedited by the court and shall be given

       precedence over all other suits.” Id. Under subsection (b), a landowner or tenant of

       property within 1200 feet of any dangerous or unsafe building, may petition the

       municipality to institute an action under subsection (a) and, failing action by the

       municipality, the affected party may file an action seeking demolition, repair or other

       relief. 65 ILCS 5/11-31-1(b) (West 2010). If the owner fails to take action ordered by the

       court, the petitioner may ask the court to join the municipality as a party and the

       municipality may be ordered to take action required to remedy the unsafe or hazardous


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       conditions. Subsections (d), (e) and (f), address, respectively, (i) a municipality’s ability

       to have property declared abandoned so that the municipality may obtain title (65 ILCS

       5/11-31-1(d) (West 2010)); (ii) an expedited procedure for removing unsafe and

       hazardous buildings of less than three stories, potentially without the necessity of court

       proceedings (id., 5/11-31-1(e)); and (iii) a procedure for remediating environmental

       hazards at abandoned property (id., 5/11-31-1(f)).

¶ 23            Certain of the Act’s subsections also contain enforcement mechanisms. In

       particular, subsections (a), (b) and (f) provide for a lien to be recorded against the

       property in the amount of the demolition, repair, remediation or other cost, which, unless

       enforced under subsection (c), may be foreclosed in separate proceedings under the

       Mortgage Foreclosure Law relating to mortgages or mechanics’ liens (735 ILCS 5/15-

       1501, et seq. (West 2010)). 65 ILCS 5/11-31-1(a), (b), (f) (West 2012). Subsection (c), in

       turn, allows for a municipality to enforce its lien by petitioning the court presiding over

       the building case to retain jurisdiction to conduct proceedings to foreclose the lien. 65

       ILCS 5/11-31-1(c) (West 2010). An action to foreclose the lien may be commenced “at

       any time after the date the notice of lien is filed” with the recorder of deeds. 65 ILCS

       5/11-31-1(a), (b), (f) (West 2012). However enforced, a lien recorded within six months

       of the demolition or repair of the building is “superior to all prior existing liens and

       encumbrances, except taxes.” Id. The costs of any foreclosure proceedings, whether

       brought separately or as part of the building case, and any other costs related to

       enforcement of subsections (a), (b) or (f) “are a lien on the real estate and are recoverable

       by the municipality from the owner or owners of the real estate.” Id.




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¶ 24            Finally, there are enforcement provisions unique to subsection (a). Subsection (a)

       itself provides that a municipality may proceed against former owners of the property to

       recover the cost of demolition if those owners transferred the property within the 15-day

       period following notice from the municipality of the property’s unsafe or hazardous

       conditions. 65 ILCS 5/11-31-1(a) (West 2010) (cost of demolition or repair incurred by

       municipality or third parties “recoverable from the owner or owners of the real estate or

       the previous owner or both if the property was transferred during the 15-day notice

       period”). Separately, under subsection (g) of the Act, when a municipality has obtained a

       lien under subsection (a), it may also bring an action for a money judgment

                “against the owner or owners of the real estate in the amount of the lien in the

                same manner as provided for bringing causes of action in Article II of the Code of

                Civil Procedure [735 ILCS 5/2-101, et seq. (West 2016)] and, upon obtaining a

                judgment, file a judgment lien against all of the real estate of the owner or owners

                and enforce that lien as provided in Article XII of the Code of Civil Procedure

                [735 ILCS 5/12-101, et seq. (West 2016)].” 65 ILCS 5/11-31-1(g) (West 2010).

¶ 25            The Act does not anywhere provide for the filing of a motion by the municipality

       to obtain a money judgment against the “owner or owners” in the amount of demolition

       costs. Rather, the Act’s plain language requires the municipality, at its election, to pursue

       either foreclosure of its demolition lien or a separate civil action against those owners

       whom it seeks to hold personally liable.

¶ 26            The Act provides a quick and efficient means for a municipality to remove

       structures that pose a threat to public health and safety. Village of Lake Villa, 211 Ill. 2d

       at 130; City of Bloomington v. Bible Truth Crusade, 197 Ill. App. 3d 793, 796 (1990)


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No. 1-16-2449

       (“[The Act’s] purpose is to provide municipalities the power to abate public nuisances

       which may prove detrimental to public health, safety, and welfare. [Citation.] It is also

       intended that this procedure be an expeditious one.”). To that end, when a municipality

       applies to demolish a building under subsection (a), the court is required to make only

       two findings: (i) the building is dangerous and unsafe; and (ii) the building is beyond

       reasonable repair. Village of Lake Villa v. Stokovich, 211 Ill. 2d 106, 130-31 (2004)

       (citing City of Aurora v. Meyer, 38 Ill. 2d 131, 133 (1967)). Issues raised by an owner

       that require consideration of matters beyond the two required findings have been found

       more properly relegated to resolution elsewhere. See City of Bloomington, 197 Ill. App.

       3d at 796 (landowner’s claim of municipality’s misconduct in withholding funds it agreed

       to provide for demolition had no bearing on relevant issues in demolition proceeding and

       were more properly raised in other pending litigation); City of Peru v. Bernardi, 84 Ill.

       App. 3d 235, 239 (1980) (landowners’ claims that City’s demolition costs were excessive

       reserved for resolution in foreclosure proceedings; “The property interests of the

       [landowners] will be protected at a later date when the city must justify the

       reasonableness of its costs and expenses.”).

¶ 27            Also, when the legislature intended to subject prior owners of real property to

       automatic liability under the Act, it so provided. As noted, section 11-31-1(a) specifically

       provides for recovery of demolition costs against current or prior owners of real estate “or

       both” if the property is transferred during the 15-day period after notice from the

       municipality of the property’s unsafe or hazardous conditions. 65 ILCS 5/11-31-1(a)

       (West 2010). Because the legislature articulated a particular condition that would

       automatically subject a prior owner to liability for demolition costs, we hesitate to


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       assume, as the City does, that anyone who ever owned the property, no matter how

       briefly, is liable for demolition costs under any circumstances. See People v. Edwards,

       2012 IL 111711, ¶ 27 (“Where language is included in one section of a statute but

       omitted in another section of the same statute, we presume the legislature acted

       intentionally and purposely in the inclusion or exclusion.”) (citing Chicago Teachers

       Union, Local No. 1 v. Board of Education of the City of Chicago, 2012 IL 112566, ¶ 24).

¶ 28            Despite the Act’s straightforward language, the City argues that the filing of a

       motion for entry of a money judgment against Fannie Mae was appropriate and that it

       was not required to do anything other than that in order to hold Fannie Mae liable for the

       costs it incurred in demolishing the building. In other words, the City contends that by

       filing a motion that entails (i) no showing of a legally or factually viable claim against

       Fannie Mae, (ii) no burden of proof, and (iii) no evaluation of the sufficiency of the

       evidence, it may seek to impose personal liability for demolition and other costs on

       anyone who ever owned the property. The City further views the Act's language that a

       municipality “may” enforce its lien in several ways as permissive and argues that pursuit

       of a separate action to foreclose and enforce the demolition lien is not required. We

       disagree.

¶ 29            As a threshold matter, if the City is correct, the Act’s provisions for alternative

       means of enforcing the demolition lien would be surplusage. This interpretation of the

       Act would violate a fundamental precept of statutory construction. “Each word, clause

       and sentence of a statute must be given reasonable meaning, if possible, and should not

       be rendered superfluous.” Standard Mutual Insurance Co. v. Lay, 2013 IL 114617, ¶ 26;

       Majmudar v. House of Spices (India), 2013 IL App (1st) 130292, ¶ 10. The City also


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       does not explain why a municipality would ever resort to foreclosure proceedings or a

       separate action to enforce a demolition lien and obtain a money judgment if the same

       result could be accomplished merely through the filing of a motion following recordation

       of the lien.

¶ 30            But beyond the applicable principles of statutory construction that compel the

       result we reach, the City’s position must be rejected because it violates fundamental

       principles of due process.

¶ 31            The reason for the Act’s various provisions regarding the post-demolition or

       repair enforcement of a municipality's lien is obvious: an action seeking the demolition or

       repair of an unsafe and hazardous building is an expedited, in rem proceeding directed

       only against the property. Village of Lake Villa, 211 Ill. 2d at 130. The public policy

       favoring the ability of municipalities to expeditiously demolish or repair structures that

       pose hazards to public health and safety supports the abbreviated procedure and limited

       burden of proof required to achieve that result.

¶ 32            Such proceedings are not designed to resolve issues concerning which owner or

       owners of the property are responsible for the property’s unsafe and hazardous condition

       and should therefore be liable for the demolition or repair costs. A municipality may be

       content, as Fannie Mae points out, to rely on its recorded lien as a cloud on title that must

       be paid before the property may be sold. If that is the case, the municipality need do

       nothing other than perfect its lien. But if a municipality seeks to affirmatively recover the

       amount of the lien, the Act contemplates that the municipality will either (i) foreclose the

       lien, which is superior to all other prior encumbrances on the property, and obtain

       satisfaction of the lien through a judicial sale of the property or (ii) sue the owner or


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       owners in a separate civil action, in which case, any money judgment obtained will be

       enforceable as any other civil money judgment.

¶ 33            The City’s interpretation of the Act—allowing it to simply file a motion in order

       to impose personal liability—would impair the due process rights of those it seeks to hold

       personally liable for demolition costs. This is best illustrated by Fannie Mae’s position in

       this case. Fannie Mae acquired the property through a foreclosure sale, 3 long after the

       property’s unsafe and hazardous conditions prompted the City’s action. There is no

       evidence in the record that Fannie Mae exacerbated the property’s condition during the

       10 months it owned the property and the only action Fannie Mae was ordered to take was

       to maintain the property as secure and vacant. The City makes much of the fact that

       Fannie Mae did not answer the demolition complaint and argues that the complaint’s

       allegations were, therefore, deemed admitted. But the City overlooks that there were no

       allegations in the complaint directed to Fannie Mae and, consequently, nothing for Fannie

       Mae to answer. Fannie Mae was under no constraints to retain ownership of the property

       and the record does not disclose any relationship between the demolition order and the

       sale to Branton. In particular, the record contains no advance notice directed to Fannie

       Mae or anyone else, of the April 9, 2013 order of demolition. Thus, there is no basis to

       conclude that Fannie Mae rushed to complete the sale to Branton in an attempt to avoid

       liability for demolition costs. There is also no indication that, at the time of the sale to

                3
                    The record does not reveal the circumstances of Fannie Mae’s acquisition of the
       property. Given that the mortgage documents were on standard forms approved by
       Fannie Mae, it is reasonable to assume that at least a portion of the original loan to
       Soludczyk was insured by Fannie Mae and that once Fannie Mae paid out after default, it
       accepted an assignment of the certificate of sale from JPMorgan Chase.

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No. 1-16-2449

       Branton, Fannie Mae was aware that, years later, the City would seek payment of

       demolition costs (not yet incurred) only from Fannie Mae and not from previous owners

       whose conduct caused the property’s condition. Yet, with no opportunity to contest the

       legal and factual basis for or amount of its liability for demolition costs through motion

       practice, discovery or an evidentiary hearing, Fannie Mae was adjudged solely

       responsible for those costs. See City of Peru, 84 Ill. App. 3d at 239 (recognizing that

       property owner’s interests would be protected by opportunity to contest reasonableness of

       demolition costs in later foreclosure proceeding). We cannot countenance the result

       advocated by the City as it is antithetical to the notice and opportunity to be heard that are

       the hallmarks of due process. Passalino v. City of Zion, 237 Ill. 2d 118, 124 (2010); see

       also People v. Al Momani, 2016 IL App (4th) 150192, ¶ 10, quoting Mathews v. Eldridge,

       424 U.S. 319, 333 (1976) (“The fundamental requirement of due process is the

       opportunity to be heard at a meaningful time and in a meaningful manner.” (internal

       quotation marks removed)).

¶ 34            The City relies on State Oil v. Illinois, 352 Ill. App. 3d 813 (2004), to argue that a

       construction of the Act that would allow an owner of property to escape liability for

       demolition costs by selling the property would frustrate the Act’s purposes. State Oil

       involved liability for remediation of environmental contamination as a result of leaks

       from underground storage tanks at a former gas station. Section 57.2 of the

       Environmental Protection Act (415 ILCS 5/57.2 (West 1996)) provided that “the owner

       or operator, or both, of an underground storage tank shall be liable” for all costs incurred

       by the State to remediate environmental conditions stemming from the tank. State Oil, the

       entity that operated the gas station when the leaks began, argued its status as a former


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No. 1-16-2449

       owner absolved it of liability for the ongoing contamination. 352 Ill. App. 3d at 818-19.

       Rejecting this contention, the court found, “[a]llowing an owner to escape liability by

       simply selling a property would *** be absurd, and we cannot attribute such an intent to

       the legislature.” Id. at 819. And the circuit court appears to have adopted that reasoning

       when it noted that the Act “does not provide for relief from liability upon transfer of the

       property.”

¶ 35            In fact, State Oil illustrates why the City’s position is incorrect. In State Oil, the

       State sued both the former owners and operator of the gas station as well as the current

       owners and operator. The current owners pursued a cross-claim against the former

       owners alleging that the former owners falsely represented at the time the property was

       purchased that the tanks were not leaking and that the current owners did nothing to

       contribute to the leaks. Thus, in the context of the State’s effort to hold them liable, the

       current owners had the opportunity to litigate their claims against those they contended

       were responsible for the contamination. The procedure advocated by the City affords

       Fannie Mae no similar opportunity.

¶ 36            And any argument that the City believed that liability for demolition costs is joint

       and several is belied by its conduct in dismissing those parties who were likely

       responsible for the property’s condition in the first place (Soludczyk, MERS and

       JPMorgan Chase) and in failing to join the party who allowed the property to remain in

       its unsafe and hazardous condition for two and one-half years following the demolition

       order (Branton).

¶ 37            The City argues that it was “free to limit its litigation costs” by selecting Fannie

       Mae as the party to pay the demolition costs, to the exclusion of other owners of the


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       property. This argument makes no sense. If, as the City contends, it was required only to

       file a motion in order to hold any owner liable for demolition costs, it would have

       incurred no additional cost to allow Soludczyk, MERS, JPMorgan Chase to remain as

       parties, add Branton after her acquisition of the property and include all parties in its

       notice of motion seeking payment of the demolition costs.

¶ 38            The City raises a new argument on appeal in favor of the judgment against Fannie

       Mae, citing provisions of the Municipal Code of Chicago, §§13-12-130, 13-12-145

       (2010), which it contends authorize the entry of a money judgment without the additional

       requirement of either foreclosure of the demolition lien or pursuit of a separate civil

       action. Apart from the fact that these provisions were never cited by the City in the trial

       court, Fannie Mae correctly notes that these sections (which simply mirror the Act’s

       language regarding the City’s ability to recover the cost of the demolition from “the

       owner or owners”) contain no enforcement provisions and, therefore, in order to enforce

       its lien for demolition costs, the City would have to invoke the provisions of the Act. As

       we have concluded that nothing in the Act authorizes a municipality to satisfy its lien for

       demolition or repair costs without either foreclosing the lien or pursuing a separate civil

       action, the City's new argument fails as well.

¶ 39            Fannie Mae also asks that we determine whether a municipality may impose

       personal liability for demolition costs on individuals or entities that did not cause the

       unsafe or hazardous building conditions and who owned the property at some time prior

       to demolition, but who do not own the property either when it is demolished or when the

       City perfects its demolition lien. We decline to resolve this issue as it is unnecessary to

       the resolution of this appeal. If the City elects to pursue foreclosure or a separate civil


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       action against Fannie Mae, Fannie Mae is entitled to contest both the legal and factual

       basis for the City's claim against it on any grounds available.

¶ 40            Because the circuit court’s judgment against Fannie Mae was based on a

       misapplication of the Act's enforcement procedures and because the Act does not

       authorize a municipality to obtain a money judgment by filing a motion in the in rem

       demolition case, we reverse the judgment of the circuit court of Cook County.

¶ 41            Reversed.




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