                           ILLINOIS OFFICIAL REPORTS
                                         Appellate Court




                 Fifth Third Mortgage Co. v. Foster, 2013 IL App (1st) 121361




Appellate Court            FIFTH THIRD MORTGAGE COMPANY, Plaintiff-Appellee, v.
Caption                    TAMARA FOSTER, Defendant-Appellant.



District & No.             First District, Second Division
                           Docket No. 1-12-1361


Rule 23 Order filed        May 14, 2013
Rule 23 Order
withdrawn                  June 25, 2013
Opinion filed              June 28, 2013


Held                       Summary judgment was improperly entered for plaintiff mortgagee in its
(Note: This syllabus       forcible entry and detainer action filed before the expiration of
constitutes no part of     defendant’s lease, since defendant was not named in plaintiff’s
the opinion of the court   foreclosure action and plaintiff had no authority to file the forcible entry
but has been prepared      and detainer action until after the lease expired.
by the Reporter of
Decisions for the
convenience of the
reader.)


Decision Under             Appeal from the Circuit Court of Cook County, No. 11-M1-730099; the
Review                     Hon. George F. Scully, Jr., Judge, presiding.



Judgment                   Reversed.
Counsel on                 Lawyers’ Committee for Better Housing, of Chicago (Frank G. Avellone
Appeal                     and Mark Swartz, of counsel), for appellant.

                           Tamara Foster, of Chicago, appellant pro se.

                           Kluever & Platt, LLC, of Chicago (Andrew L. Platt and M. Reas
                           Bowman, of counsel), for appellee.


Panel                      PRESIDING JUSTICE HARRIS delivered the judgment of the court,
                           with opinion.
                           Justices Quinn and Simon concurred in the judgment and opinion.



                                             OPINION

¶1           Defendant Tamara Foster appeals from the trial court’s orders granting summary
        judgment in favor of plaintiff, Fifth Third Mortgage Co., in its forcible entry and detainer
        (FED) action against her, and denying her motion to reconsider. On appeal, defendant
        contends that summary judgment was improper where there was a question of fact as to
        whether plaintiff was aware of the existence of a written lease before it filed its FED action
        and where plaintiff lacked legal authority to file such an action until after the expiration of
        that lease.
¶2           The following facts can be gleaned from the record. At all times relevant to this appeal,
        defendant rented a house in Chicago. In August 2011, plaintiff obtained ownership rights to
        the house as the result of foreclosure proceedings, to which defendant was not a party. On
        September 9, 2011, plaintiff served defendant and all other unknown occupants of the house
        with a notice to vacate the property and a demand for possession. The notice indicated that
        defendant would be required to surrender possession of the house within 90 days “unless you
        provide evidence to the undersigned law firm that you are a bona fide tenant pursuant to
        section 702(a)(2) (Supp. II 2009) of the Federal ‘Protecting Tenants at Foreclosure Act of
        2009’ (‘PTFA’) [(12 U.S.C. § 5220(a)(2) (Supp. II 2009))].” The notice further stated that
        if defendant wished to claim protection under the PTFA, she was required to provide the law
        firm with a copy of her lease, a return telephone number, and receipts for the last six rent
        payments made to the landlord.
¶3           More than 90 days later, on December 20, 2011, plaintiff filed a FED action against
        defendant, seeking possession of the house and contending that defendant was unlawfully
        continuing to reside there without plaintiff’s permission and without a lease granting tenancy
        in the property. Thereafter, defendant was served with the complaint and summons and filed
        her appearance and a jury demand.


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¶4        On January 26, 2012, plaintiff filed a motion for summary judgment, arguing that no
     genuine issue of material fact existed and that, as a matter of law, it was entitled to judgment
     for possession of the house. Defendant responded, moving for summary judgment in her
     favor and dismissal of the action with prejudice. In her response, defendant asserted that no
     genuine issues of material fact existed; that she was a bona fide tenant under the PTFA; that
     her lease did not expire until December 31, 2011; and that plaintiff had no legal authority to
     file a FED action until after her lease expired. Defendant asserted that plaintiff’s filing was
     premature and did not provide her with due process and that, therefore, plaintiff was not
     entitled to possession. According to defendant’s argument, plaintiff would have to issue a
     new notice if it intended to evict her. Defendant attached a copy of her lease to her response.
¶5        Following a hearing, the transcript of which does not appear in the record, the trial court
     granted plaintiff’s motion for summary judgment. In its decision, the trial court stated that
     the material facts were undisputed, including that defendant made no response to the 90-day
     notice and that defendant claimed to be a bona fide tenant under the PTFA, pursuant to a
     written lease with an expiration date of December 31, 2011. The trial court observed that
     although the PTFA provides a bona fide tenant the right to occupy premises until the end of
     the remaining term of a lease, the PTFA did not state whether a plaintiff must wait until the
     expiration of the lease to commence eviction. The court determined that in the instant case,
     where it had found that defendant did not respond to the 90-day notice required by the PTFA
     and plaintiff was without knowledge of the existence of a lease, it was proper for plaintiff
     to have filed the FED action after the PTFA notice period expired. The court stated it was
     “specifically not addressing the question of whether or not Plaintiff would have been
     required to wait until the expiration of a known lease before commencing an action against
     a bona fide tenant.” The court concluded that the existence of a bona fide lease restricted it
     from entering an order for possession enforceable prior to the expiration of the lease but that
     the expiration date had passed and that, therefore, as a matter of law, plaintiff had a superior
     right to possession. The trial court entered an order for possession with enforcement stayed
     until February 27, 2012.
¶6        Defendant filed a motion to reconsider. In the motion, she argued that the 90-day notice
     was facially defective because it terminated her tenancy before her bona fide lease period
     expired. Defendant further asserted that because plaintiff filed its FED action before her lease
     expired, the filing was premature, the trial court lacked subject matter jurisdiction, and the
     resulting order granting summary judgment in plaintiff’s favor was void. Finally, defendant
     argued that contrary to the trial court’s factual findings, plaintiff was indeed aware of the
     existence of her lease prior to filing its FED action. She asserted that she provided plaintiff’s
     attorneys with a copy of her lease in response to the 90-day notice, and in support of that
     argument, she attached a copy of a fax cover sheet addressed to the law firm, dated October
     13, 2011, indicating that a copy of the lease was attached. Defendant also asserted that she
     had earlier provided plaintiff with a copy of her lease via a fax sent to the “real estate agent
     for plaintiff.” In support, defendant again attached a copy of a fax cover sheet, this one dated
     July 28, 2011, indicating that a copy of the lease was attached.
¶7        The trial court denied defendant’s motion to reconsider. Defendant filed a timely notice
     of appeal.

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¶8          Summary judgment is appropriate when the record, including any documents attached
       to the summary judgment motion, “show that there is no genuine issue as to any material fact
       and that the moving party is entitled to a judgment as a matter of law.” 735 ILCS 5/2-1005(c)
       (West 2010). Our review of a trial court’s decision on a motion for summary judgment is de
       novo. JP Morgan Chase Bank, N.A. v. Earth Foods, Inc., 238 Ill. 2d 455, 461 (2010).
¶9          On appeal, defendant contends that summary judgment was improper where there was
       a question of fact as to whether plaintiff was aware of the existence of a written lease and
       where plaintiff lacked legal authority to file a FED action until after the expiration of that
       lease. Defendant argues that because plaintiff acted prematurely in filing its action, the trial
       court lacked subject matter jurisdiction and the order granting plaintiff summary judgment
       is void.
¶ 10        We agree with defendant that plaintiff lacked legal authority to file a FED action prior
       to the expiration of her lease.
¶ 11        Contrary to plaintiff’s arguments, a final order in a foreclosure matter does not
       automatically terminate a lease that is subordinate to the mortgage. 735 ILCS 5/15-1701(e)
       (West 2010). Rather, lawful occupants of foreclosed properties cannot be removed except
       by FED proceedings or unless they were made a party to foreclosure proceedings. Agribank,
       FCB v. Rodel Farms, Inc., 251 Ill. App. 3d 1050, 1055 (1993) (citing 735 ILCS 5/15-1701(e)
       (West 1992)).1 Here, it is not argued that defendant was a party to the foreclosure
       proceedings. In addition, the “Order Approving Report of Sale and Distribution, Confirming
       Sale and Order of Possession” included in the record does not list defendant as a party to the
       foreclosure proceedings, and the order provides that “No occupants other than the individuals
       named in this Order of Possession may be evicted without a Supplemental Order of
       Possession or an order from the Forcible Entry and Detainer Court.” Given these
       circumstances, plaintiff was required to initiate FED proceedings against defendant in order
       to terminate her lease.
¶ 12        The Forcible Entry and Detainer Act allows a party to file a FED action against a lessee
       “[w]hen any lessee of the lands or tenements, or any person holding under such lessee, holds
       possession without right after the termination of the lease or tenancy by its own limitation,
       condition or terms, or by notice to quit or otherwise.” 735 ILCS 5/9-102(a)(4) (West 2010).
       A FED action is a special summary proceeding which demands strict adherence to statutory
       requirements in order to establish jurisdiction. Avdich v. Kleinert, 69 Ill. 2d 1, 6 (1977);
       Figueroa v. Deacon, 404 Ill. App. 3d 48, 52 (2010). Where a FED action is filed
       prematurely, it cannot be maintained. Avdich, 69 Ill. 2d at 6, 9.
¶ 13        Here, defendant’s lease was to expire on December 31, 2011. Plaintiff filed its FED
       action on December 20, 2011, prior to the expiration of the lease. Under section 9-102(a)(4),


               1
                 We note that plaintiff relies upon Agribank for the proposition that a final order in a
       foreclosure matter “automatically terminates” any lease subordinate to that mortgage. However, the
       Agribank opinion specifically states that while this was the case prior to 1992, legislative
       amendments to the Illinois Mortgage Foreclosure Law in that year changed the law. Agribank, 251
       Ill. App. 3d at 1055.

                                                  -4-
       the FED action was premature. Due to plaintiff’s failure to comply with the statutory
       requirements of the Forcible Entry and Detainer Act, the circuit court had no jurisdiction
       over the matter. Avdich, 69 Ill. 2d at 6; Figueroa, 404 Ill. App. 3d at 53. Accordingly, we
       reverse the judgment of the circuit court.
¶ 14       For the reasons explained above, we reverse the judgment of the circuit court.

¶ 15      Reversed.




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