text:
    BMO HARRIS BANK, N.A., f/k/a Harris Trust and Savings Bank, Plaintiff and Counterdefendant-Appellee, v. Arleta A. PORTER, Brian R. Porter, Urban Partnership Bank, Unknown Owners, and Non-Record Claimants, Defendants
    (Arleta A. Porter and Brian R. Porter, Defendants and Counterplaintiffs-Appellants).
    No. 1-17-1308
    Appellate Court of Illinois, First District, Fifth Division.
    Filed June 1, 2018
    Brian R. Porter, of Chicago, for appellants.
    Margaret A. Manetti, of Codilis & Associates, P.C., of Burr Ridge, for appellee.
   JUSTICE HALL delivered the judgment of the court, with opinion.

¶ 1 Defendants, Arleta A. and Brian R. Porter, appeal an order of the circuit court of Cook County that granted plaintiff BMO Harris Bank, N.A.'s (BMO Harris) motion to strike and dismiss defendants' third amended counterclaim with prejudice in a mortgage foreclosure action. For the reasons that follow, we affirm.

¶ 2 BACKGROUND

¶ 3 A. History

¶ 4 Defendants executed a mortgage and equity line of credit agreement with Harris Trust and Savings Bank on October 29, 2001. The initial credit limit was $100,000, although the mortgage indicated that the maximum lien amount for the line of credit was $125,000. According to its terms, the mortgage secured not only the amount then presently advanced under the credit agreement but also "any future amount which Lender may advance to grantor under the Credit Agreement within twenty (20) years from the date of [the] Mortgage. The revolving line of credit obligates Lender to make advances to Grantor so long as Grantor complies with all the terms of the Credit Agreement and Related Documents."

¶ 5 The credit agreement indicated that the term of the credit line began as of the date of the Agreement and continued until October 29, 2011 (maturity date), and that all indebtedness would be due and payable upon maturity. The agreement further stated that the lender may renew or extend the period during which defendants could obtain credit advances or make payments as well as renew or extend the credit line account itself. Additionally, the credit agreement indicated, within the "Change in Terms" section, that "[w]e may make changes to the terms of this Agreement if you agree to the change in writing at that time, if the change will unequivocally benefit you throughout the remainder of your Credit Line Account, or if the change is insignificant (such as changes relating to our data processing systems)."

¶ 6 The mortgage was in turn secured by real property located at 4505 South Oakenwald in Chicago, Illinois.

¶ 7 Plaintiff filed a foreclosure complaint against defendants in the circuit court on July 1, 2014, based on defendants' failure to pay the loan in full on October 29, 2011. Defendants filed their answer to the complaint on October 1, 2014, in which they only specifically denied paragraphs 3(J) and 4 of the complaint, which state:

"3(J). Statement as to defaults: Mortgagors have not paid the monthly installments of Principal, taxes, Interest and insurance for 10/29/2011, through the present; the Principal balance due on the Note and the Mortgage is $80,803.11, plus Interest, costs, advances and fees. Interest accrues pursuant to the note, and the current per diem is $6.09.
* * *
4. Plaintiff avers that in addition to persons designated by name herein and the Unknown defendants herein before referred to, there are other persons, and/or non-record claimants who are interested in this action and who have or claim to have some right, title, interest or line in, to or upon the real estate, or some part thereof, in this Complaint described including but not limited to the following:
Unknown owners and NonRecord Claimants, if any."

¶ 8 Defendants also filed affirmative defenses, alleging laches and lack of default due to the creation of a contract implied in law. Plaintiff filed a motion to dismiss the affirmative defenses, and in response, defendants amended their affirmative defenses and filed a counterclaim.

¶ 9 Defendants' counterclaim, filed on February 13, 2015, alleged breach of an implied-in-fact contract and breach of an implied-in-law contract. Plaintiff moved to dismiss the amended affirmative defenses and the counterclaim. The trial court set a briefing schedule, and after briefing by the parties, the trial court struck the count alleging breach of an implied-in-fact contract claim with leave to replead and struck the count alleging breach of an implied-in-law contract claim with prejudice.

¶ 10 Defendants subsequently filed an amended counterclaim alleging breach of an implied-in-fact contract, which plaintiff moved to dismiss. Following briefing by the parties, the trial court struck the amended counterclaim with leave to replead.

¶ 11 Defendants filed a second amended counterclaim on their breach of an implied-in-fact contract claim, and plaintiff again moved to dismiss. Following briefing by the parties, including supplemental briefs, the trial court struck the second amended counterclaim with leave to replead.

¶ 12 B. Third Amended Counterclaim

¶ 13 On June 16, 2016, defendants filed their third amended counterclaim, which is the subject of this appeal. The third amended counterclaim alleged breach of the extension of their credit agreement and breach of an implied-in-fact contract.

¶ 14 Paragraphs 1 through 35 of defendants' third amended counterclaim relate to defendants' count I, titled "Breach of Extension of Credit Agreement."

¶ 15 In paragraph 3, defendants alleged "[t]hat on October 29, 2011, [defendants] and [plaintiff] executed a 12-page Mortgage which secured a revolving line of credit of up to $125,000 with [defendants]

as the grantor, and [plaintiff] as the lender."

¶ 16 In paragraph 4, defendants' alleged

"[t]he only reference to the time period covered by said Mortgage in paragraph 3, is the statement 'this Mortgage...shall secure not only the amount which Lender has presently advanced to Grantor under the Credit Agreement, but also any future amounts which Lender may advance to Grantor under the Credit Agreement within twenty (20) years from the date of this Mortgage to the same extent as if such future advance were made as of the date of the execution of this Mortgage, or until October 29, 2021 ." (Emphasis added.)

¶ 17 In paragraph 5, defendants alleged "[t]hat the above-referenced Credit Agreement, secured by the Mortgage at issue, was also executed on October 29, 2001, with a maximum credit amount of $100,000 payable upon maturity on October 29, 2011."

¶ 18 In paragraph 6, defendants alleged "[t]hat the time period of the Mortgage at issue is unequivocally for a 20 year term or until October 29, 2021." (Emphasis added.)

¶ 19 In paragraph 7, defendants alleged

"[t]hat page 1 of said Credit Agreement further provided in the 'Term' paragraph: 'You (PORTER) agree that we (Harris Trust and Savings Bank) may renew or extend the period during which you may obtain credit advances or make payments. You further agree that we may renew or extend your Credit Line Account.' Said 'Term' paragraph in the Credit Agreement does not require that a renewal or extension of time of the Credit Agreement be in writing." (Emphasis in original.)

¶ 20 In paragraph 8, defendants alleged

"[t]hat page 3 of said Credit Agreement provides in the 'Change in Terms' paragraph that 'We (Harris Trust and Savings Bank) may make changes to the terms of this Agreement if you (PORTER) agree to the change in writing at that time, if the change will unequivocally benefit you (PORTER) throughout the remainder of your Credit Line Account, or if the change is insignificant (such as changes related to our data processing systems).' Thus, a simple reading of the 'Change in Terms' paragraph make it plain that the sentence structure is an 'either or ' basis, rather than an 'either and ' basis. Put another way, the Bank could only make changes to the Credit Agreement if PORTER agreed in writing or if the change unequivocally benefitted Porter or if the change would be insignificant; rather than 'if PORTER agreed in writing and if the change benefitted PORTER and if the change was insignificant.' This language is key, as it clearly establishes that the only changes to the Credit Agreement which are required to be in writing are those which will not unequivocally benefit Counter-Plaintiff PORTER."

¶ 21 In paragraph 10, defendants alleged that they physically went into a BMO Harris branch and

"expressly asked the female BMO HARRIS agent-employee whom provided service, that in light of the 20-year period of the actual Mortgage (through October 2021), what steps should be taken by Counter-Plaintiffs to have Counter-Defendant extend the period during which to make payments on the outstanding balance of the Credit Agreement through October 2021, as was contractually provided as an option in the 'Term' section of said Credit Agreement (paragraph 6 above). Said BMO-Harris agent-employee provided [defendant] with a customer service number * * *."

¶ 22 In paragraph 11, defendants alleged that they again made payment and contacted plaintiff via the customer service number previously provided and again

"expressly asked, that in light of the 20-year period of the actual Mortgage (through October 2021), what steps should be taken by [defendants] to have [plaintiff] extend the period during which to make payments on the outstanding balance of the Credit Agreement through October 2021, as was contractually provided as an option in the 'Term' section of said Credit Agreement (paragraphs 6 through 8 above). That in direct response to these inquiries [plaintiff] directed [defendants] to continue to remit regular monthly payments on the outstanding Credit Agreement balance in order to effectuate an extension of time through October 2021 in which to pay the outstanding balance."

¶ 23 Paragraphs 12 and 13 made similar allegations as in paragraph 10 related to payments made by defendants from November 2011 through January 2012.

¶ 24 Paragraph 14 alleged that defendants tendered "in-person on-site payments each and every month to BMO Harris agent-employees" located at certain branches (although for 19 of the payments, defendants indicated "on-site payment location research continues"), and not all of the payments were equal amounts.

¶ 25 Paragraph 15 alleged that at the time of each payment on the credit agreement

"secured by the 20 year mortgage , brief conversations occurred between [defendants] and the BMO Harris agent-employees who serviced [them], and during each and every interchange, the BMO Harris agent-employees reassured [defendants] that continuing to remit regular monthly payments on the Credit Agreement extended the period of repayment through the time secured by the concurrent mortgage which runs through October 2021 ." (Emphasis added.)

¶ 26 Paragraph 16 alleged that plaintiff's direction to defendants to continue to remit regular monthly payments constituted an offer by plaintiff to defendants to extend the contractual period in which to make payments on the outstanding balance through the time secured by the concurrent mortgage which runs through October 2021.

¶ 27 Paragraph 17 alleged that defendants' on-site remittance of regular monthly payments to plaintiff for 31 consecutive months constituted an acceptance of the offer by plaintiff to extend the contractual period in which to make payments on the outstanding balance of the credit agreement.

¶ 28 Paragraph 18 alleged that the offer and acceptance described in paragraphs 16 and 17 to extend the time of repayment under the credit agreement through the period of when the concurrent mortgage ends in October 2021 unequivocally benefitted defendants and was thus not required to be in writing.

¶ 29 Paragraphs 19 through 28 alleged that when defendants went to make the June 2014 payment, it was not accepted; plaintiff filed the foreclosure action in July 2014, and that it was the first time that defendants were made aware that plaintiff was not honoring the extended time for repayment. At that time, defendants sought a loan modification, which was denied. Defendants allege that the denial was based on a credit report with negative information regarding defendants' repayment of the loan at issue and student loan payment information. In paragraph 29, defendants alleged

"[t]hat is not routine and customary practice for loan modification requests for homes with large equity balances, and upon which monthly loan payments have never been missed, to be rejected on the basis of student loans which have never been in default or in collections, and which have been current in excess of 2 years and 5 years respectively ." (Emphasis added.)

Additionally, defendants alleged in paragraph 30

"[t]hat in fact, [plaintiff] did not use the two aforementioned student loans which have never been in default or in collections, and which have been current in excess of 2 years and 5 years respectively, as its basis for rejecting the aforementioned loan modification request. Rather, [plaintiff] used its own wrongfully created adverse information on the second mortgage Credit Agreement at issue, after said [plaintiff] was already a party to a binding implied-in-fact contractual extension of said Credit Agreement ." (Emphasis added.)

¶ 30 Paragraphs 31 through 33 alleged that plaintiff's adverse reporting while accepting regular monthly payments on the "extended implied-in-fact contractual extension of said Credit Agreement at its own direction," "failing and neglecting to inform [defendants] that it considered them in default," and "reliance on the sole non-current account contained in the Transunion Consumer Relations report to deny a loan modification, which said [plaintiff] itself wrongfully created" all amounted to breach of the "implied-in-fact contractual extension of said Credit Agreement." In paragraph 34, defendants alleged that the acceptance of regular monthly payments on the "extended implied-in-fact contract at its own direction" caused them to detrimentally rely on the fact that they had an extended contract, and that they are now unable to secure financing on the credit agreement, all of which amounted to breach of contract.

¶ 31 Paragraph 35 alleged that plaintiff's initiation of the underlying foreclosure action constituted breach of the extended period of the credit agreement.

¶ 32 Paragraphs 36 to 38 related to defendants' count II, titled "Breach of Implied-in-Fact Contract." Paragraph 36 incorporated paragraphs 1 to 35. Paragraph 37 alleged that the offer and acceptance described in paragraphs 16 and 17

"connotes a new a [sic] distinct implied-in-fact contractual agreement on the outstanding balance of the loan at issue with the original balance satisfied by the new and distinct agreement, and with repayment of the former balance to be completed in the new and distinct implied-in-fact contract at the end of the term of the mortgage on October 29, 2021 ."

Paragraph 38 alleged that plaintiff's initiation of the foreclosure action constitutes a breach of said implied-in-fact contract.

¶ 33 C. Plaintiff's Section 2-615 Motion

¶ 34 Plaintiff filed a section 2-615 ( 735 ILCS 5/2-615 (West 2016) ) motion to dismiss defendants' third counterclaim with prejudice, in which it argued that defendants' contention of an implied-in-fact contract conflicts with basic contract law and that the claim was otherwise insufficiently pled.

¶ 35 In response, defendants' argued that their counterclaim sufficiently pled a breach of contract cause of action, that dismissal would not be a proper remedy under section 2-615, and that plaintiff's motion was not limited to the face of the counterclaim.

¶ 36 In reply, plaintiff contended that neither the mortgage nor the credit agreement supported defendants' claim and that defendants had not, by the admission in their own pleading, sought a 20-year loan but instead sought an extension of time to pay the balance of the matured loan.

¶ 37 On February 23, 2017, oral argument was held before the trial court on plaintiff's motion to dismiss defendants' third amended counterclaim. The trial court's order indicated that the third amended complaint would be disposed of by separate written order. On March 13, 2017, the court entered a written order which stated in pertinent part:

"IT IS HEREBY ORDERED that
1. Pursuant to this Court's Order and findings entered February 23, 2017, the Court finds and holds that:
a. As there is no dispute that money was owed on the subject loan and the [sic ] is no allegation of sufficient consideration raised to support the claim for an oral contract, there is no binding contract even taking all facts alleged as true.
b. The Court therefore strikes and dismisses defendants' Third Amended Counterclaim with prejudice;
c. There is no just reason for delaying enforcement or appeal or both of this final order."

¶ 38 On March 22, 2017, defendants filed a motion to reconsider the February 23, 2017, order, which was denied on April 27, 2017. Defendants filed a timely notice of appeal on May 22, 2017, seeking a review of the trial court's order striking their third amended counterclaim with prejudice. Defendants subsequently filed a motion in this court to stay the trial proceedings pending review of this interlocutory appeal, which was granted on August 9, 2017.

¶ 39 ANALYSIS

¶ 40 On appeal, defendants challenge the trial court's dismissal of their third amended counterclaim with prejudice on plaintiff's motion pursuant to section 2-615.

¶ 41 A. Illinois Supreme Court Rule 342

¶ 42 As a preliminary matter, we admonish defendants to heed the Illinois Supreme Court Rules regarding briefing. First, Illinois Supreme Court Rule 342 (eff. July 1, 2017) requires appellants to attach, as an appendix, "a complete table of contents, with page references, of the record on appeal." The purported appendix to appellants' brief is incomplete and does not reflect the requirements of the rule.

¶ 43 Illinois Supreme Court rules are not advisory suggestions but mandatory rules to be followed. In re Marriage of Hluska , 2011 IL App (1st) 092636, ¶ 57, 356 Ill.Dec. 612, 961 N.E.2d 1247. While failure to abide by the rules may result in the brief being stricken, we nevertheless will address the merits of the appeal. Hluska , 2011 IL App (1st) 092636, ¶¶ 57-58, 356 Ill.Dec. 612, 961 N.E.2d 1247.

¶ 44 B. Guiding Principles

¶ 45 A section 2-615 motion attacks the legal sufficiency of a complaint. Tyrka v. Glenview Ridge Condominium Ass'n , 2014 IL App (1st) 132762, ¶ 33, 382 Ill.Dec. 879, 13 N.E.3d 292. When ruling on a 2-615 motion, a court must accept as true all well-pleaded facts in the complaint, as well as reasonable inferences that may be drawn from those facts. Tyrka , 2014 IL App (1st), ¶ 33, 382 Ill.Dec. 879, 13 N.E.3d 292. A trial court should only dismiss a count or cause of action if it is readily apparent from the pleadings that there is no possible set of facts that would entitle the plaintiff to the requested relief. Jordan v. Knafel , 355 Ill. App. 3d 534, 539, 291 Ill.Dec. 527, 823 N.E.2d 1113 (2005). The question for the trial court is whether the allegations of the complaint, when construed in the light most favorable to the plaintiff, are sufficient to establish the cause of action. Jordan , 355 Ill. App. 3d at 539, 291 Ill.Dec. 527, 823 N.E.2d 1113.

¶ 46 Our supreme court has emphasized that Illinois is a fact-pleading jurisdiction and that plaintiffs are required to allege sufficient facts to bring a claim within a legally recognized cause of action. Marshall v. Burger King Corp. , 222 Ill. 2d 422, 429-30, 305 Ill.Dec. 897, 856 N.E.2d 1048 (2006). Although plaintiffs are not required to set forth evidence in a complaint, they also cannot set forth "simply conclusions." Marshall , 222 Ill. 2d at 429-30, 305 Ill.Dec. 897, 856 N.E.2d 1048. Conclusory allegations unsupported by specific facts will not suffice. Marshall , 222 Ill. 2d at 429-30, 305 Ill.Dec. 897, 856 N.E.2d 1048.

¶ 47 On appeal, our review of a trial court's section 2-615 dismissal order is de novo . DeHart v. DeHart , 2013 IL 114137, ¶ 18, 369 Ill.Dec. 136, 986 N.E.2d 85 (citing Bonhomme v. St. James , 2012 IL 112393, ¶ 34, 361 Ill.Dec. 1, 970 N.E.2d 1 ). De novo consideration means that we perform the same analysis that a trial judge would perform. Khan v. BDO Seidman, LLP , 408 Ill. App. 3d 564, 578, 350 Ill.Dec. 63, 948 N.E.2d 132 (2011).

¶ 48 C. Contract Implied in Fact

¶ 49 Defendants contend that their third amended counterclaim sufficiently pleaded a cause of action for breach of an implied-in-fact contract. Specifically, in support of their claim that they sufficiently pleaded consideration, they argue that (1) plaintiff's own complaint and exhibits were a stipulation and admission that defendants were to pay interest as consideration on the outstanding loan balance; (2) defendants' motion for reconsideration stated the new contractual agreement would require defendants to pay between 6% and 18% annual percentage rate as consideration on the balance of the outstanding loan for an additional 120 months; and (3) defendants' third amended counterclaim plainly stated in paragraphs 11, 12, 16, and 17 that part and parcel of the asserted offer and acceptance was for defendants to have a loan balance through the entirety of the new agreement until it ended on October 29, 2021. Defendants also contend that it is clear, through plaintiff's representatives, that plaintiff offered a new and/or modified payment plan of the debt at issue to run until the end of the 20-year mortgage.

¶ 50 We first note that no transcripts from any of the oral arguments in the trial court were included as part of the record in this appeal. Specifically, we are without the findings made by the trial court on February 23, 2017, during the hearing on plaintiff's motion to dismiss defendants' third amended counterclaim, which the court refers to in its March 13, 2017, order. It is defendants' duty, as appellant, to present a sufficiently complete record of the trial court proceedings to support their claim of error. Foutch v. O'Bryant , 99 Ill. 2d 389, 391-92, 76 Ill.Dec. 823, 459 N.E.2d 958 (1984). In the absence of such a record, we will presume that the trial court's judgment was in conformity with the law and with sufficient factual basis. Foutch , 99 Ill. 2d at 392, 76 Ill.Dec. 823, 459 N.E.2d 958. Any doubts arising from the incompleteness of the record will be resolved against the appellant. Foutch , 99 Ill. 2d at 392, 76 Ill.Dec. 823, 459 N.E.2d 958.

¶ 51 We thus turn our discussion to whether defendants have sufficiently pled facts to establish a contract implied in fact. Generally, whether a contract implied in fact exists is a question of law, the determination of which is reviewed de novo . Wood v. Wabash County , 309 Ill. App. 3d 725, 727-28, 243 Ill.Dec. 107, 722 N.E.2d 1176 (1999). The existence of a contract implied in fact, however, depends on the facts, circumstances, and expressions by the parties demonstrating intent to be bound. Century 21 Castles by King, Ltd. v. First National Bank of Western Springs , 170 Ill. App. 3d 544, 548, 121 Ill.Dec. 174, 524 N.E.2d 1222 (1988).

¶ 52 A contract implied in fact must contain all elements of an express contract; the only difference between an express contract and an implied contract is that an implied contract is inferred from the facts and conduct of the parties, rather than from an oral or written agreement. In re Marriage of Bennett , 225 Ill. App. 3d 828, 831, 167 Ill.Dec. 308, 587 N.E.2d 577 (1992). Thus, a contract implied in fact arises not by express agreement but, rather by a promissory expression that may be inferred from the facts and circumstances that show intent to be bound. Kohlenbrener v. North Suburban Clinic, Ltd. , 356 Ill. App. 3d 414, 419, 292 Ill.Dec. 422, 826 N.E.2d 563 (2005). Therefore, to sufficiently plead an implied-in-fact contract, defendants had to plead the essential elements of a contract, supplied by implication from the parties' conduct or actions. Marriage of Bennett , 225 Ill. App. 3d at 831-32, 167 Ill.Dec. 308, 587 N.E.2d 577.

¶ 53 The elements of a contract are an offer, acceptance, and consideration. Trapani Construction Co. v. The Elliot Group, Inc. , 2016 IL App (1st) 143734, ¶ 42, 407 Ill.Dec. 754, 64 N.E.3d 132. Thus, a contract implied in fact contains all of the elements of a contract, including a meeting of the minds. Trapani Construction Co. , 2016 IL App (1st) 143734, ¶ 42, 407 Ill.Dec. 754, 64 N.E.3d 132. In reviewing defendants' third amended counterclaim, we accept as true all well-pleaded facts and reasonable inferences therefrom, but we need not accept conclusions or inferences which are not supported by specific factual allegations. Nuccio v. Chicago Commodities, Inc. , 257 Ill. App. 3d 437, 443, 195 Ill.Dec. 670, 628 N.E.2d 1134 (1993).

¶ 54 We reiterate that our review of a section 2-615 motion is de novo . Additionally, we may affirm on any basis or ground for which there is a factual basis in the record regardless of the trial court's reasons. Guinn v. Hoskins Chevrolet , 361 Ill. App. 3d 575, 586, 296 Ill.Dec. 930, 836 N.E.2d 681 (2005).

¶ 55 An examination of defendants' third amended counterclaim reveals it is replete with conclusory statements without sufficient facts to support them. We further note that the allegations of the third amended counterclaim are nearly identical to those contained in its predecessors.

¶ 56 Having reviewed defendants' third amended counterclaim as a whole, we find that it failed to establish the elements of a contract implied in fact. We find no evidence of offer, acceptance, or consideration. Nor have defendants shown that there was a meeting of the minds.

¶ 57 1. Offer and Acceptance

¶ 58 In terms of offer, defendants' conclusion that the maturity date under the terms of the mortgage was "unequivocally" 20 years is unsupported by any facts. Defendants' own pleading indicates that at the time of maturity of the loan, October 2011, they knew they would be unable to pay the loan off and sought options. Defendants' allegation relies on their interpretation of a contract term within the mortgage, which is itself a conclusion. Defendants made no allegation that they ever in fact relied on it being a 20-year loan until October 2011, and their interpretation fails to consider the plain language of the mortgage, credit agreement, and related documents, which stated that all of the documents were to be considered together and not separately. A court must consider a contract in the context of the entire agreement. Wilson v. Wilson , 217 Ill. App. 3d 844, 850, 160 Ill.Dec. 752, 577 N.E.2d 1323 (1991). Additionally, the credit agreement specifically stated that it matured on October 29, 2011. Furthermore, the mortgage indicated that defendants would be in default if they did not meet the repayment terms of the credit agreement. Thus we find no offer of a 20-year loan.

¶ 59 Nor were there any facts presented to support defendants' alternate conclusion that plaintiff affirmatively extended their credit agreement by accepting late payments, thus satisfying the element of offer. Defendants' alleged "brief conversations" with unnamed bank employees at various locations, some which were undisclosed in the pleadings, while making varying payments were factually insufficient to support this conclusion. Defendants made no allegation that these unnamed employees were authorized to offer an extension, and defendants' own alleged behavior of asking each and every month contradicts their allegation that they relied on any perceived extension during the time that they continued to make payments beyond the maturity date of the loan. Defendants did not identify what employees they spoke to, and the listing of dates, payments, and locations was incomplete. We also note that the listing of payments made after October 2011 shows that defendant paid various amounts each month; the amounts paid ranged from just over $200 up to $725.

¶ 60 Defendants' allegations are conclusions; one of which hinges on the construction of language in the mortgage documents that defendants construe in their own favor without factual support. The other conclusion hinges on acceptance of defendants' carving out of certain provisions of the documents and ignoring others without any factual support or agreement by plaintiff. A general allegation that a contract exists without a statement of supporting facts is a mere legal conclusion. Nuccio , 257 Ill. App. 3d at 444, 195 Ill.Dec. 670, 628 N.E.2d 1134.

¶ 61 Illinois is a fact-pleading jurisdiction, and conclusory statements are insufficient to sustain a cause of action. Marshall , 222 Ill. 2d at 429-30, 305 Ill.Dec. 897, 856 N.E.2d 1048. Defendants' attempt to adopt certain portions of their original loan documents while ignoring others is in dereliction of basic contract law. A contract must be read as a whole, and all parts construed together. J.M. Process Systems, Inc. v. W.L. Thompson Electric Co. , 218 Ill. App. 3d 350, 354, 161 Ill.Dec. 137, 578 N.E.2d 264 (1991). The mortgage, credit agreement, and related documents signed by defendants on October 29, 2001, clearly stated that together they comprise the complete agreement between the parties. Based on a plain reading of those documents, it is clear that defendants' loan was a revolving credit line with a 10-year maturity date (October 29, 2011), at which time the entire balance became due. There was no automatic extension of the repayment terms under the plain language of the contract, nor were defendants entitled to an automatic extension of the repayment terms. To the extent that defendants' third amended counterclaim makes conclusions on the meaning or intention of the original loan documents, we find that it contains insufficient facts to establish that the original mortgage term was 20 years. When interpreting a contract, a court must consider the document as a whole rather than focus on isolated portions. Cress v. Recreation Services, Inc. , 341 Ill. App. 3d 149, 170, 277 Ill.Dec. 149, 795 N.E.2d 817 (2003).

¶ 62 Here, the mortgage specifically stated that Lender would not relinquish any of its rights under the mortgage unless it did so in writing, that "[t]he fact that Lender delays or omits to exercise any right will not mean that the lender has given up that right," and that "just because Lender consents to one or more of Grantor's requests, that does not mean Lender will be required to consent to any of Grantor's future requests." We believe that plaintiff's acceptance of defendants' payments from 2011-14 was no more than an act of leniency by plaintiff and was not an offer. At most, it was an exercise of plaintiff's discretion under the terms of the mortgage. We therefore conclude that defendants' third amended complaint failed to show that there was a valid offer of a 20-year loan initially or that there was an offer to extend the terms of the loan.

¶ 63 2. Consideration

¶ 64 Even if we accepted defendants' contention that there was an offer and acceptance for extension, we still would agree with the trial court that defendants' third amended counterclaim fails to establish any allegation of consideration.

¶ 65 Valid consideration, on the part of both parties, is one of the essential requirements for the formation of a contract. Marque Medicos Fullerton, LLC v. Zurich American Insurance Co. , 2017 IL App (1st) 160756, ¶ 65, 416 Ill.Dec. 190, 83 N.E.3d 1027. In support of their claim that they sufficiently pleaded consideration, defendants contend that (1) plaintiff's own complaint and exhibits were a stipulation and admission that defendants were to pay interest as consideration on the outstanding loan balance; (2) defendants' motion for reconsideration stated the new contractual agreement would require defendants to pay between 6% and 18% annual percentage rate as consideration on the balance of the outstanding loan for an additional 120 months; and (3) defendants' third amended counterclaim plainly stated in paragraphs 11, 12, 16, and 17 that part and parcel of the asserted offer and acceptance was for defendants to have a loan balance through the entirety of the new agreement until it ended on October 29, 2021. However, the preexisting duty rule provides that where a party does what it is already legally obligated to do, there is no consideration, as there is no detriment. White v. Village of Homewood , 256 Ill. App. 3d 354, 357, 195 Ill.Dec. 152, 628 N.E.2d 616 (1993). For an extension of the payment of a note to be binding on the parties, it must be for a definite period and must be supported by consideration. Mitchell v. Peterson , 97 Ill. App. 3d 363, 367, 52 Ill.Dec. 817, 422 N.E.2d 1026 (1981).

¶ 66 According to the terms of the original loan documents, plaintiff was already authorized to charge between 6% and 18% in interest for installments due under the credit agreement. Therefore, the interest payments that defendants reference, not in their third amended counterclaim but in their motion to reconsider, were not additional interest providing consideration for the alleged extension agreement. See Waters v. Simpson , 7 Ill. 570, 576 (1845) (payment of interest nothing more than required in original contract is insufficient consideration to support a promise to forbear the collection of the note; such promise would be a mere gratuity and could not be enforced). As such, there was no valid consideration to support defendants' claimed contract implied in fact.

¶ 67 CONCLUSION

¶ 68 For the foregoing reason, we affirm the decision of the trial court.

¶ 69 Affirmed.

Justices Lampkin and Rochford concurred in the judgment and opinion.

      BMO Harris Bank, N.A. is formerly known as Harris Bank, N.A., and Harris Trust and Savings Bank.

      No transcript of those proceedings was filed in this appeal.


source: Caselaw Access Project

license: Public Domain

text:
    Maurice H. GRIMES, on Behalf of Himself and All Persons Similarly Situated, Plaintiff-Appellant, v. SAGE TELECOM COMMUNICATIONS, LLC, Defendant-Appellee.
    No. 1-17-1455
    Appellate Court of Illinois, First District, FIFTH DIVISION.
    June 1, 2018
    Russell C. Green, of Chicago, for appellant.
    Trent P. Cornell, of Troutman Sanders, of Chicago, for appellee.
   JUSTICE HALL delivered the judgment of the court, with opinion.

¶ 1 The plaintiff, Maurice H. Grimes, on behalf of himself and all persons similarly situated, brought a class action suit against the defendant, Sage Telecom Communications, LLC, seeking damages for breach of contract between the defendant and the plaintiff and other consumers. The plaintiff had not yet filed a motion to certify the class, when the defendant made a tender of relief to him. The circuit court granted the defendant's motion to dismiss pursuant to section 2-619 of the Code of Civil Procedure (Code) ( 735 ILCS 5/2-619 (West 2016) ).

¶ 2 The plaintiff appeals, contending that the circuit court erred in dismissing his complaint. The plaintiff requests that this court determine that to be effective, statutory costs-whether specifically requested or not-must be included in the tender of relief. He further requests that we revisit cases holding that a class action is moot if a tender of relief is made before the plaintiff files a motion for certification of the class. For reasons discussed below, we affirm the dismissal of the plaintiff's complaint.

¶ 3 BACKGROUND

¶ 4 The following facts are taken from the pleadings contained in the record on appeal.

¶ 5 On November 10, 2016, the plaintiff filed his class action complaint for breach of contract. The complaint alleged that the defendant provided telephone service to him for which he paid a monthly charge of $53.84, in advance. Due to a service interruption between August 28, and September 10, 2015, the plaintiff, along with other customers of the defendant, was without telephone service, depriving him of the ability to conduct business and personal matters over the telephone. The plaintiff sought relief as follows:

"A. for an order determining that this action may proceed as a class action, and designating the appropriate class;
B. for a declaratory judgment determining the rights of the class members to a refund of a portion of their monthly fees;
C. for damages for a pro rata share of each class member's monthly fees paid to [the defendant] in such sum as the evidence may support;
D. for such other relief as may be necessary and appropriate."

¶ 6 The defendant was served with summons on November 28, 2016. At the request of the defendant, the plaintiff agreed to extend the time for it to answer the complaint or otherwise plead to January 25, 2017.

¶ 7 In a hand-delivered letter dated January 19, 2017, the defendant offered to resolve the dispute and enclosed a cashier's check in the amount of $100 payable to the plaintiff. The defendant requested that on or before January 20, 2017, the plaintiff notify the defendant that he was dismissing the complaint with prejudice. Otherwise, the defendant would file a section 2-619 motion to dismiss the complaint.

¶ 8 On January 20, 2017, the defendant filed its appearance and a motion to dismiss. In the motion, the defendant alleged that the tendered amount of $100 covered the full monthly payment of $53.84 plus interest. The defendant further alleged that the plaintiff had agreed to the extension of time and had not filed a motion to certify the class. Finally, the defendant pointed out that Illinois courts have held that a voluntary acceptance of the tender by a plaintiff was not required.

¶ 9 On February 6, 2017, the plaintiff filed a motion for certification of the class. He also filed a memorandum of law in response to the motion to dismiss. In the memorandum, the plaintiff argued that the defendant's tender of $100 did not constitute complete relief in that it did not include the cost he incurred in filing the complaint and the service of process fee. He alleged that the defendant was not acting in good faith when it requested the extension of time to respond to the complaint but never mentioned the possibility of a settlement.

¶ 10 In its reply, the defendant pointed out that the plaintiff's actual damages for the two-week loss of service was $26.92, and with prejudgment interest at 5%, the total amount was $28.94. Therefore, its $100 tender was in excess of the full amount of the plaintiff's damages. The defendant maintained that the plaintiff was not required to wait until after the defendant appeared to file his motion to certify the class. On March 29, 2017, the circuit court ordered the parties to file supplemental memoranda addressing the costs issue.

¶ 11 On May 3, 2017, after considering the briefs and arguments, the circuit court granted the defendant's motion. In its order, the court noted that, generally, a class action complaint is moot where the putative class representative's claims are resolved prior to the filing of a motion for class certification. The court further noted that the plaintiff did not dispute that "he did in fact receive tender of the full amount he individually sought in his complaint, and that such tender was received prior to any motion for class certification being filed in this matter." Citing Hillenbrand v. Meyer Medical Group, S.C. , 308 Ill. App. 3d 381, 241 Ill.Dec. 832, 720 N.E.2d 287 (1999), the circuit court found that, to be effective, the tender of relief did not require the inclusion of fees and costs. The court concluded that the plaintiff's claim was moot and dismissed the case with prejudice.

¶ 12 The plaintiff filed a timely notice of appeal from the circuit court's May 3, 2017, order dismissing the complaint with prejudice.

¶ 13 ANALYSIS

¶ 14 On appeal, the plaintiff contends that without the inclusion of the costs of filing his complaint and the service of summons on the defendant, the defendant's tender was not effective, as it did not give him complete relief. In addition, the plaintiff seeks modification of existing case law requiring him to file a motion to certify the class prior to a tender of relief offer to avoid dismissal on mootness grounds.

¶ 15 I. Standard of Review

¶ 16 Dismissal pursuant to section 2-619 is reviewed de novo .

Barber v. American Airlines, Inc. , 241 Ill. 2d 450, 455, 350 Ill.Dec. 535, 948 N.E.2d 1042 (2011). A section 2-619 motion to dismiss admits the legal sufficiency of the complaint but asserts an affirmative defense or other matter that avoids or defeats the plaintiff's claim. Barber , 241 Ill. 2d at 455, 350 Ill.Dec. 535, 948 N.E.2d 1042. De novo review also applies to the construction of a statute. In re Marriage of Baumgartner , 384 Ill. App. 3d 39, 48, 322 Ill.Dec. 337, 890 N.E.2d 1256 (2008).

¶ 17 II. Discussion

¶ 18 A. Costs

¶ 19 The plaintiff contends that the cost of filing the complaint and the service of process fee must be included in the tender for it to be effective. In support of his contention, he relies on sections 5-108 and 5-126 of the Code ( 735 ILCS 5/5-108, 5-126 (West 2016) ). We note that the plaintiff does not contend that the tender was conditional.

¶ 20 An award of costs under section 5-108 of the Code is appropriate only where a plaintiff recovers a judgment in an action for damages. Hillenbrand , 308 Ill. App. 3d at 389, 241 Ill.Dec. 832, 720 N.E.2d 287. In the present case, the defendant's tender of relief was not the result of a judgment entered in the plaintiff's favor; rather, the tender resulted in a judgment of dismissal of the plaintiff's complaint in favor of the defendant. See Hillenbrand , 308 Ill. App. 3d at 389, 241 Ill.Dec. 832, 720 N.E.2d 287. Therefore, section 5-108 does not require that, to be effective, the tender must include the court costs incurred by the plaintiff in initiating the litigation.

¶ 21 Section 5-126 provides as follows:

"Costs after tender. Whoever is guilty of a trespass or injury or whoever owes another unliquidated damages or demands arising out of a contract may at any time, before or after suit is brought, tender what he or she shall conceive sufficient amends for the injury done or to pay the unliquidated damages or demands; and if suit has been commenced, also the costs of suit up to the time of making the tender. If it appears that the sum tendered was sufficient amends for the injury done or to pay the damages, and if suit has been commenced was also sufficient to pay the costs of suit up to the time of making the tender, the plaintiff shall not be allowed to recover any costs incurred after the tender, but shall be liable to the defendant for the defendant's costs incurred after that time." 735 ILCS 5/5-126 (West 2016).

¶ 22 The plaintiff's reliance on section 5-126 of the Code is also misplaced. The record on appeal supports the defendant's assertion that the plaintiff did not raise this argument in the circuit court. There is no mention of section 5-126 in the plaintiff's response to the motion to dismiss or in his supplemental memorandum on the issue of costs. The plaintiff did not address the defendant's assertion of forfeiture in his reply brief.

¶ 23 "A reviewing court will not consider on review issues and arguments which were not presented to or considered by the trial court."

Jeanblanc v. Sweet , 260 Ill. App. 3d 249, 254, 198 Ill.Dec. 293, 632 N.E.2d 623 (1994). Where aspects of the arguments the defendants raised on appeal were distinct from the ones they raised in the trial court, their appellate contentions were forfeited. Jeanblanc , 260 Ill. App. 3d at 254, 198 Ill.Dec. 293, 632 N.E.2d 623. However, forfeiture does not bar this court from considering an issue or argument. See Maniez , 404 Ill. App. 3d at 948, 344 Ill.Dec. 531, 937 N.E.2d 237 (the principles of waiver and forfeiture are binding on the parties but do not limit the reviewing court's jurisdiction).

¶ 24 There are obvious distinctions between a tender under section 5-126 and a tender to the named plaintiff in a class action suit. Section 5-126 deals only with limiting the expenditure of costs when a sufficient offer of settlement is made. The tender can be made at any time and does not control the viability of the suit. In a class action suit, such as the one in this case, the tender renders the suit moot, regardless of whether the named plaintiff accepts the tender, if made prior to the plaintiff's filing of a motion to certify the class.

¶ 25 The plaintiff forfeited his argument based on section 5-126 of the Code. Even in the absence of forfeiture, we conclude that section 5-126 does not apply to a tender of relief to the named plaintiff in a class action suit.

¶ 26 The plaintiff maintains that his general prayer for relief should be read to include a request for costs. We disagree. Section 2-604 of the Code ( 735 ILCS 5/2-604 (West 2016) ) provides in pertinent part as follows:

"Prayer for Relief. * * * Except in case of default, the prayer for relief does not limit the relief obtainable, but where other relief is sought the court shall, by proper orders, and upon terms that may be just, protect the adverse party against prejudice by reason of surprise." 735 ILCS 5/2-604 (West 2016).

¶ 27 In Kleczek v. Jorgensen , 328 Ill. App. 3d 1012, 263 Ill.Dec. 187, 767 N.E.2d 913 (2002), the reviewing court held that a general prayer for relief in a complaint, for " 'any other relief as the court deems equitable and proper' " was not a " 'specific prayer' " within the meaning of section 2-604. See Kleczek , 328 Ill. App. 3d at 1026-27, 263 Ill.Dec. 187, 767 N.E.2d 913 (where the complaint requested rescission, the general prayer for relief did not forewarn the defendants that the plaintiffs would seek the difference between the rescission amount and the sale price as a measure of damages).

¶ 28 Likewise, in the present case, the plaintiff requested specific relief in the form of reimbursement of a portion of the monthly charge based on the two-week service interruption. He did not request costs as part of the relief sought, and his prayer "for such other relief as may be necessary and appropriate" was not a specific prayer within the meaning of section 2-604 of the Code.

¶ 29 In sum, the plaintiff was not entitled to the inclusion of costs in the defendant's tender to afford him the complete relief he sought in his complaint.

¶ 30 B. Motion to Certify the Class

¶ 31 The plaintiff contends that the defendant's actions in requesting an extension of time to respond to the complaint and then presenting a tender of relief amounted to a "pick off" of the putative class representative. Relying on Arriola v. Time Insurance Co. , 323 Ill. App. 3d 138, 256 Ill.Dec. 168, 751 N.E.2d 221 (2001), he maintains that the "pick off" is an exception to a dismissal based on mootness where there has been a tender of relief. However, in Barber , our supreme court specifically rejected the "pick off" exception. Barber , 241 Ill. 2d at 459, 350 Ill.Dec. 535, 948 N.E.2d 1042.

¶ 32 The court in Barber traced the origins of the "pick off" exception to Arriola , where, in dicta , the appellate court held that the plaintiff must have a reasonable opportunity to move for class certification before the case can be dismissed. Barber , 241 Ill. 2d at 458, 350 Ill.Dec. 535, 948 N.E.2d 1042 (citing Arriola , 323 Ill. App. 3d at 152, 256 Ill.Dec. 168, 751 N.E.2d 221 ). The court in Barber agreed with Justice Cahill, who dissented in the appellate decision in Barber , that the exception " 'has no basis in the law.' " Barber , 241 Ill. 2d at 458-59, 350 Ill.Dec. 535, 948 N.E.2d 1042 (quoting Barber v. American Airlines, Inc. , 398 Ill. App. 3d 868, 889, 339 Ill.Dec. 119, 925 N.E.2d 1240 (2010) (Cahill, P.J., dissenting) ).

¶ 33 The plaintiff contends that allowing the defendant to remove him as the class representative leads to an unreasonable result and is bad policy. He points out that he agreed to the extension requested by the defendant as a professional courtesy and that settlement was not mentioned or discussed at that time. The plaintiff further points out that until the defendant appeared, he had no one upon whom to serve the motion to certify the class, and he could not initiate any discovery without a court order. See Ill. S. Ct. R. 201(d) (eff. July 30, 2014). Therefore, his February 6, 2017, motion to certify the class was filed "[a]s soon as practicable after the commencement of an action brought as a class action." 735 ILCS 5/2-802 (West 2016). The plaintiff maintains that he was denied an award of costs only because he sought to represent a class. Had he brought an individual claim, under section 5-126 he would be entitled to those same costs.

¶ 34 As an appellate court, we are bound to follow the holding in Barber . "Once our supreme court has declared the law with respect to an issue, this court must follow that law, as only the supreme court has authority to overrule or modify its own decisions." John Crane, Inc. v. Admiral Insurance Co. , 2013 IL App (1st) 1093240-B, ¶ 69, 372 Ill.Dec. 167, 991 N.E.2d 474. Moreover, nothing prevented the plaintiff from filing his motion to certify the class at any time at the time of or after filing the class action complaint. He was not required to wait until the defendant filed an appearance. See Ballard RN Center, Inc. v. Kohll's Pharmacy & Homecare, Inc. , 2015 IL 118644, ¶ 44, 400 Ill.Dec. 620, 48 N.E.3d 1060 (where the plaintiff's motion for class certification was filed concurrently with the class action complaint, it was pending before the tender of relief and precluded the finding of mootness). Any need for additional discovery or further development of the facts to support the motion for class certification is left to the discretion of the trial court. Ballard RN Center, Inc. , 2015 IL 118644, ¶ 43, 400 Ill.Dec. 620, 48 N.E.3d 1060 (rejecting the argument that the motion to certify must be meritorious to bar the finding of mootness based on the tender of relief). Finally, we observe that it was the plaintiff who chose to pursue his claim against the defendant in a class action suit rather than as an individual.

¶ 35 CONCLUSION

¶ 36 For all the foregoing reasons, we conclude that the defendant's tender mooted the plaintiff's class action, and the dismissal of the complaint was proper. Gatreaux v. DKW Enterprises, LLC , 2011 IL App (1st) 103482, ¶ 32, 354 Ill.Dec. 892, 958 N.E.2d 1088. The judgment of the circuit court dismissing the complaint with prejudice is affirmed.

¶ 37 Affirmed.

Presiding Justice Reyes and Justice Lampkin concurred in the judgment and opinion.

      In G.M. Sign, Inc. v. Swiderski Electronics, Inc. , 2014 IL App (2d) 130711, 384 Ill.Dec. 261, 16 N.E.3d 357, the appellate court held that the dismissal of the class action complaint on the grounds of mootness was error where the tender of relief was conditioned on its acceptance within 12 days. The offer had expired by the time the defendant moved to dismiss. G.M. Sign, Inc. , 2014 IL App (2d) 130711, ¶ 33, 384 Ill.Dec. 261, 16 N.E.3d 357 (to moot a plaintiff's claim, the offer must be unconditional).

      The court in Jeanblanc used the term "waiver." Whereas "waiver" is the intentional relinquishment of a known right, "forfeiture" refers to issues that could have been raised but were not, and are therefore barred. See Maniez v. Citibank, F.S.B. , 404 Ill. App. 3d 941, 947-48, 344 Ill.Dec. 531, 937 N.E.2d 237 (2010). The term "forfeiture" rather than "waiver" described the basis for the court's refusal to consider the appellate arguments in Jeanblanc .


text:
    SYLVA, LLC, Plaintiff-Appellee, v. BALDWIN COURT CONDOMINIUM ASSOCIATION, INC., Defendant-Appellant.
    No. 1-17-0520
    Appellate Court of Illinois, First District, FIRST DIVISION.
    June 4, 2018
    Richard D. Grossman, of Law Offices of Richard D. Grossman, of Chicago, for appellant.
    John F. Cloutier, of Cloutier Law Group, of Chicago, for appellee.
   JUSTICE GRIFFIN delivered the judgment of the court, with 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 Illinois 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 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, 417 Ill.Dec. 728, 89 N.E.3d 376. We review a trial court's interpretation of a statute de novo. J & J Ventures Gaming, LLC v. Wild, Inc. , 2016 IL 119870, ¶ 25, 409 Ill.Dec. 31, 67 N.E.3d 243.

¶ 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, 398 Ill.Dec. 95, 43 N.E.3d 1005. 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, 400 Ill.Dec. 288, 48 N.E.3d 237. 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 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 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, April 11, 2006, at 30-39; see also Country Club Estates Condominium Ass'n v. Bayview Loan Servicing LLC , 2017 IL App (1st) 162459, ¶ 15, 416 Ill.Dec. 663, 84 N.E.3d 1140. 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, 400 Ill.Dec. 288, 48 N.E.3d 237. 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, 413 Ill.Dec. 20, 77 N.E.3d 625. 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 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, 400 Ill.Dec. 288, 48 N.E.3d 237.

¶ 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 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, 6 Ill.Dec. 731, 363 N.E.2d 413 (1977) ; see also PNC Bank, National Ass'n v. Wilson , 2017 IL App (2d) 151189, ¶ 25, 411 Ill.Dec. 791, 74 N.E.3d 100 (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.

Presiding Justice Pierce and Justice Mikva concurred in the judgment and opinion.