1010 Lake Shore Ass'n v. Deutsche Bank National Trust Co.

Illinois Official Reports

Appellate Court

1010 Lake Shore Ass’n v. Deutsche Bank National Trust Co.,
2014 IL App (1st) 130962

Appellate Court 1010 LAKE SHORE ASSOCIATION, Plaintiff-Appellee, v.
Caption DEUTSCHE BANK NATIONAL TRUST COMPANY, as Trustee
for Loan Tr 2004-1, Asset-Backed Certificates, Series 2004-1,
Defendant-Appellant.

District & No. First District, Second Division
Docket No. 1-13-0962

Filed August 12, 2014
Rehearing denied September 29, 2014
Modified upon
denial of rehearing October 7, 2014

Held Where defendant mortgagee purchased a condominium unit at a
(Note: This syllabus foreclosure sale but failed to make an assessment payment after the
constitutes no part of the sale pursuant to section 9(g)(3) of the Condominium Property Act to
opinion of the court but extinguish the plaintiff condominium association’s lien for the
has been prepared by the assessments not paid by the mortgagor, the trial court properly entered
Reporter of Decisions summary judgment for the association on its claim to enforce its lien
for the convenience of for the unpaid assessments, and the trial court’s award of attorney fees
the reader.) and costs was affirmed as reasonable.

Decision Under Appeal from the Circuit Court of Cook County, No. 12-M1-711284;
Review the Hon. Martin Moltz, Judge, presiding.

Judgment Affirmed.
 Counsel on Keith Werwas and David Pustinik, both of Potestivo & Associates,
Appeal P.C., of Chicago, for appellant.

Matthew J. Goldberg, of Bancroft, Richman & Goldberg, LLC, of
Chicago, for appellee.

Panel JUSTICE SIMON delivered the judgment of the court, with opinion.
Justice Pierce concurred in the judgment and opinion.
Justice Liu dissented, with opinion.

OPINION

¶1 Defendant, Deutsche Bank National Trust Co., appeals from orders of the circuit court of
Cook County granting summary judgment in favor of plaintiff, 1010 Lake Shore Association,
denying defendant’s motion to reconsider the court’s grant of summary judgment, and
awarding plaintiff attorney fees and costs. On appeal, defendant contends that the court erred
by granting summary judgment in favor of plaintiff because the court misinterpreted section
9(g)(3) of the Condominium Property Act (Act) (765 ILCS 605/9(g)(3) (West 2008)) and a
genuine issue of material fact existed regarding the amount of assessments incurred after the
foreclosure and sale of the subject property. Defendant also contends that the court abused its
discretion by denying its motion to reconsider and awarding the amount of attorney fees and
costs sought by plaintiff. For the reasons that follow, we affirm.

¶2 BACKGROUND
¶3 The record shows that defendant purchased the condominium unit at issue at a judicial sale
on June 17, 2010. On May 17, 2012, plaintiff filed a complaint alleging that defendant was
unlawfully withholding possession of the unit because, as of March 27, 2012, defendant owed
$62,530.81 in assessments. Plaintiff requested possession of the property, an award of all
unpaid assessments incurred as of the date of trial, attorney fees, and costs. On August 9, 2012,
plaintiff filed a motion for summary judgment, asserting that there were no questions of
material fact regarding defendant’s failure to pay assessments or the amount owed and that,
because defendant failed to make any payments following the foreclosure and sale, the lien
against the property which resulted from prior unpaid assessments had not been extinguished
and defendant was required to pay those assessments. Plaintiff attached the signed affidavit of
Mary Morrison, the property manager for plaintiff, in which Morrison averred that no
assessment payments had been made on the unit’s account since July 1, 2010, the outstanding
balance on the account as of August 8, 2012, was $67,935.16, assessments accrued at the rate
of $1,041.87 per month, and late fees accrued at the rate of $50 per month. Defendant
responded that it was not liable for any unpaid assessments incurred prior to its purchase of the
unit, which accounted for more than $43,000 of the total amount of unpaid assessments, and

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 that a genuine issue of material fact existed regarding the amount of assessments that were
incurred after it purchased the unit. On October 29, 2012, the court entered orders granting
summary judgment in favor of plaintiff in the amount of $70,018.90 and granting plaintiff
possession of the property.
¶4 On November 20, 2012, plaintiff filed a fee petition requesting $7,423.50 in attorney fees
and costs. On November 28, 2012, defendant filed a motion to reconsider the order granting
summary judgment, asserting that the court misinterpreted section 9(g)(3) of the Act, the
amount of assessments due after the foreclosure and sale was unclear, and plaintiff’s claim was
barred by the doctrine of res judicata. On December 17, 2012, defendant filed a response to
plaintiff’s fee petition, asserting that plaintiff was not entitled to any attorney fees because the
court erred by granting summary judgment, the amount of attorney fees was unreasonable, and
plaintiff failed to provide sufficient support for its request of $698.50 for filing costs. On
February 19, 2013, the court entered an order denying defendant’s motion to reconsider,
awarding plaintiff $6,725 in attorney fees and $698.50 in costs, and finding there was no just
reason for delaying an appeal from its order.

¶5 ANALYSIS
¶6 I. Summary Judgment
¶7 A. Section 9(g)(3)
¶8 Defendant contends that the court erred by granting summary judgment in favor of plaintiff
because the court’s decision was based on a misinterpretation of section 9(g)(3) of the Act. A
party is entitled to summary judgment when the pleadings, depositions, admissions, affidavits,
and exhibits on file, viewed in the light most favorable to the nonmoving party, show there is
no genuine issue of material fact and the moving party is entitled to judgment as a matter of
law. Kajima Construction Services, Inc. v. St. Paul Fire & Marine Insurance Co., 227 Ill. 2d
102, 106 (2007). The circuit court’s ruling on a motion for summary judgment is reviewed
de novo. Abrams v. City of Chicago, 211 Ill. 2d 251, 258 (2004).
¶9 A court’s primary objective in construing a statute is to ascertain and give effect to the
intent of the legislature. Prazen v. Shoop, 2013 IL 115035, ¶ 21. The first step in determining
legislative intent is to examine the language of the statute, and when the language is clear and
unambiguous, the statute must be given its plain meaning without resort to further aids of
statutory construction. Alvarez v. Pappas, 229 Ill. 2d 217, 228 (2008).
¶ 10 Section 9(g)(3) consists of two sentences, the first of which provides that “[t]he purchaser
of a condominium unit at a judicial foreclosure sale *** shall have the duty to pay the unit’s
proportionate share of the common expenses for the unit assessed from and after the first day
of the month after the date of the judicial foreclosure sale.” 765 ILCS 605/9(g)(3) (West 2008).
The second sentence provides that “[s]uch payment confirms the extinguishment of any lien
created pursuant to paragraph (1) *** of this subsection (g) by virtue of the failure or refusal of
a prior unit owner to make payment of common expenses, where the judicial foreclosure sale
has been confirmed by order of the court.” Id. Section 9(g)(1) provides that “[i]f any unit
owner shall fail or refuse to make any payment of the common expenses or the amount of any
unpaid fine when due,” the amount of any unpaid assessments, together with any interest, late
charges, reasonable attorney fees, and costs of collections, “shall constitute a lien on the
interest of the unit owner in the property.” 765 ILCS 605/9(g)(1) (West 2008).

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¶ 11 Defendant asserts that it cannot be required to pay the more than $40,000 in assessments
that were incurred under section 9(g)(1) prior to its purchase of the unit because section 9(g)(3)
provides that the purchaser of a condominium unit at a foreclosure sale only has a duty to pay
its share of common expenses assessed from and after the first day of the month following the
sale. Plaintiff responds that the plain language of section 9(g)(3) provides that a lien arising
from unpaid assessments by the prior owner under section 9(g)(1) is not extinguished until the
new owner pays its share of the common expenses assessed after the foreclosure and sale.
Thus, the issue presented by the parties is whether the purchaser of a condominium unit that
does not pay its assessments following its purchase of the unit can be held responsible for
assessments that were not paid by the previous owner or whether, pursuant to section 9(g)(3), a
new owner may never be held responsible for past assessments. As such, we will limit our
consideration to that specific statutory question.
¶ 12 While we agree with defendant that the first sentence of section 9(g)(3) provides that the
purchaser of a unit at a foreclosure sale only has a duty to pay its share of the common
expenses assessed from the first day of the month after the date of the sale, the second sentence
of section 9(g)(3), which defendant does not address, provides that the making of that payment
“confirms the extinguishment” of a lien created under section 9(g)(1). The word “confirm” is
defined as meaning “[t]o give formal approval to,” “[t]o verify or corroborate,” and “[t]o make
firm or certain.” Black’s Law Dictionary 340 (9th ed. 2009). Thus, section 9(g)(3), as a whole,
provides that the purchaser of a unit at a judicial foreclosure sale has a duty to pay assessments
which are incurred after the sale and that the effect of making such a payment is to approve,
verify, and make certain the extinguishment of a preexisting lien created under section 9(g)(1).
As such, we determine that, under the plain language of section 9(g)(3), a lien created under
section 9(g)(1) for unpaid assessments by a previous owner is not fully extinguished following
a judicial foreclosure and sale until the purchaser makes a payment for assessments incurred
after the sale.
¶ 13 In addition, a court should interpret a statute as a whole and, “if possible, so that no term is
rendered superfluous or meaningless.” Wisnasky-Bettorf v. Pierce, 2012 IL 111253, ¶ 16. If
this court adopted defendant’s interpretation of section 9(g)(3) and held that the purchaser of a
unit at a foreclosure sale may never be required to pay assessments that are incurred prior to the
sale, we would be holding that a lien created under section 9(g)(1) for unpaid assessments by a
previous owner is fully extinguished by the foreclosure and sale. Such a holding would render
the second sentence of section 9(g)(3) superfluous and meaningless because the
extinguishment of the section 9(g)(1) lien would have already been confirmed before the
purchaser was required to make any assessment payments under section 9(g)(3).
¶ 14 Defendant, citing section 15-1509(c) of the Illinois Mortgage Foreclosure Law (735 ILCS
5/15-1509(c) (West 2008)) and BCGS, L.L.C. v. Jaster, 299 Ill. App. 3d 208, 213 (1998),
asserts that it cannot be required to pay any assessments incurred prior to the foreclosure and
sale of the unit because such a holding would contradict well-settled law, which provides that
all outstanding claims on property that has been the subject of a foreclosure and sale are
extinguished and that the purchaser takes the property free of any such claims. However, when
a general statutory provision and a specific statutory provision relate to the same subject, the
statute relating to that one specific subject must prevail over the statute designed to apply to
cases more generally. Murray v. Chicago Youth Center, 224 Ill. 2d 213, 233 (2007). Thus,
section 9(g)(3), which is contained in the Condominium Property Act and relates to the
payment of assessments by the purchaser of a condominium unit at a judicial foreclosure sale
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 and the effect the making of such a payment has on the status of a lien arising from a previous
owner’s failure to make assessment payments, is a specific statutory provision that must
control over the general rule of foreclosure law cited by defendant. As such, we conclude that a
lien created pursuant to section 9(g)(1) is not fully extinguished by a foreclosure and sale
because the purchaser must make an assessment payment under section 9(g)(3) to confirm the
extinguishment of that lien and that the court did not misinterpret section 9(g)(3) when it
granted summary judgment in favor of plaintiff.
¶ 15 In reaching that conclusion, we have considered Pembrook Condominium Ass’n-One v.
North Shore Trust & Savings, 2013 IL App (2d) 130288, a recent case involving section
9(g)(3), and find it distinguishable. In Pembrook, the court held that a condominium
association was not entitled to unpaid assessments incurred prior to the defendant’s purchase
of a unit at a foreclosure sale because the defendant tendered payment for association charges
incurred the month after its purchase and extinguished any lien which may have existed under
section 9(g)(1) as a result of the prior owner’s failure to make assessments payments. Id. ¶ 17.
In doing so, the court stated that “[t]o hold that plaintiff’s lien survived the payments would
contradict the plain and necessary implication of section 9(g)(3). If the payments extinguished
the lien that had been created under section 9(g)(1), then plaintiff cannot enforce that lien.” Id.
In this case, however, defendant has not made any association payments after it purchased the
unit and, therefore, never extinguished the preexisting lien created pursuant to section 9(g)(1).1
¶ 16 We also point out that we have considered the legislative history behind section 9(g)(3) and
that we find it to be mostly inconclusive regarding the issue before us and, to the extent it
provides any guidance, further supports our conclusion. Regarding the bill that added the
second sentence to section 9(g)(3), Senator Marovitz stated that it “just clarifies when the
foreclosure sale extinguishes the lien of the association.” 87th Ill. Gen. Assem., Senate
Proceedings, June 19, 1991, at 158 (statements of Senator Marovitz). Senator Marovitz later
stated that the bill “confirms the extinguishment of a lien on a condominium for common
expenses by payment of those expenses at a foreclosure sale of the condominium by the
purchaser. And if the sale is not completed, the lien is not extinguished.” 87th Ill. Gen. Assem.,
Senate Proceedings, June 20, 1991, at 109 (statements of Senator Marovitz). In the House,
Representative Williams stated that the bill “provides that when the purchaser pays for
common expense, it clears up the priority of liens in that particular situation.” 87th Ill. Gen.
Assem., House Proceedings, June 27, 1991, at 74-75 (statements of Representative Williams).
Thus, while the legislators’ statements that the payment of common expenses extinguishes an
association’s lien supports our conclusion that a section 9(g)(1) lien is not fully extinguished
until the purchaser makes a payment required by section 9(g)(3), those statements are
somewhat contradicted by Senator Marovitz’s indication that such a payment would be made
at the foreclosure sale.

1
To the extent the dissent relies upon the portion of the Pembrook opinion stating that the
association’s lien could not be enforced against the mortgagee with regard to charges assessed before
the mortgagee obtained title to the property, we note that the part of the opinion cited by the dissent
relies on general foreclosure law and does not take into account section 9(g)(3) of the Act and that
Newport Condominium Ass’n v. Talman Home Federal Savings & Loan Ass’n of Chicago, 188 Ill. App.
3d 1054 (1988), the case upon which the Pembrook court relied, was decided before section 9(g)(3) was
amended to include its second sentence (Pub. Act 87-692 (eff. Jan. 1, 1992)).
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¶ 17 Regardless, we need not consider interpretative aids such as the legislative history of the
statute because, for the reasons set forth above, the statutory language of section 9(g)(3) is
clear and unambiguous. Ultsch v. Illinois Municipal Retirement Fund, 226 Ill. 2d 169, 184
(2007). Section 9(g)(1) creates a lien on the property, not a personal judgment against the
foreclosure purchaser, when assessment payments are not made for the first full month
following the judicial foreclosure sale. Lake Hinsdale Village Condominium Ass’n v.
Department of Public Aid, 298 Ill. App. 3d 192, 196 (1998). Because of defendant’s
nonpayment of common expenses after the judicial foreclosure sale, section 9(g)(3) clearly
provides that the lien against the property was not extinguished and the court properly
concluded that the lien against the property remains.

¶ 18 B. Genuine Issue of Material Fact
¶ 19 Defendant next contends that the court erred by granting summary judgment because a
genuine issue of material fact existed regarding the amount of assessments incurred following
its purchase of the unit. However, attached to plaintiff’s motion for summary judgment was
Morrison’s affidavit, in which she set forth the outstanding balance on the unit’s account and
the rate at which monthly assessments and late fees would add to that balance. As “facts
contained in an affidavit in support of a motion for summary judgment which are not
contradicted by counteraffidavit are admitted and must be taken as true for purposes of the
motion” (Purtill v. Hess, 111 Ill. 2d 229, 241 (1986); Village of Arlington Heights v. Anderson,
2011 IL App (1st) 110748, ¶ 14), Morrison’s averment as to the amount of unpaid assessments
must be taken as true with regard to the summary judgment motion. Thus, we conclude that
there is no genuine issue of material fact regarding the amount of assessments owed by
defendant and that the court did not err by granting summary judgment in favor of plaintiff.
¶ 20 Defendant claims that the account history for the unit, which was attached to Morrison’s
affidavit, reflects that assessment payments were made after it purchased the unit and that
those payments confirmed the extinguishment of the lien arising from the previous owner’s
unpaid assessments. While defendant would presumably know whether or not it made
assessment payments, defendant did not raise this argument in its response to plaintiff’s
motion for summary judgment, motion to reconsider, reply in support of its motion to
reconsider, or appellant’s brief. Instead, defendant has made this argument for the first time in
its reply brief on appeal, at which time plaintiff does not have an opportunity to respond to
defendant’s claim. Issues not raised before the circuit court cannot be argued for the first time
on appeal (Robidoux v. Oliphant, 201 Ill. 2d 324, 344 (2002)) and points not argued in an
appellant’s brief “are waived and shall not be raised in the reply brief, in oral argument, or on
petition for rehearing” (Ill. S. Ct. R. 341(h)(7) (eff. Feb. 6, 2013)). Thus, defendant has
forfeited any claim that plaintiff was not entitled to summary judgment because assessment
payments were made after defendant purchased the unit.

¶ 21 II. Motion to Reconsider
¶ 22 Defendant contends that the court abused its discretion by denying its motion to reconsider
because the court erred in its application of section 9(g)(3) of the Act and plaintiff’s claim was
barred by the doctrine of res judicata. As we have already concluded that the circuit court did
not err in its application of section 9(g)(3), we need only consider whether plaintiff’s claim was
barred by the doctrine of res judicata.

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¶ 23 The purpose of a motion to reconsider is to bring to the circuit court’s attention newly
discovered evidence, changes in the law, or errors in the court’s previous application of
existing law. Martinez v. River Park Place, LLC, 2012 IL App (1st) 111478, ¶ 23. The decision
to grant or deny a motion to reconsider lies within the sound discretion of the circuit court and
will not be disturbed on appeal absent an abuse of that discretion. Midway Park Saver v. Sarco
Putty Co., 2012 IL App (1st) 110849, ¶ 17. A circuit court abuses its discretion when its ruling
is arbitrary, fanciful, or unreasonable, or when no reasonable person would adopt its view.
Blum v. Koster, 235 Ill. 2d 21, 36 (2009).
¶ 24 Defendant asserts that, by seeking to recover unpaid assessments that were incurred prior
to the judicial foreclosure and sale, plaintiff was collaterally attacking the prior orders entering
a judgment of foreclosure and sale and approving the sale and that plaintiff was barred from
doing so because it could have raised the issue of prior unpaid assessments in the foreclosure
action. The doctrine of res judicata provides that a final judgment on the merits acts as an
absolute bar to a subsequent action between the same parties involving the same claim,
demand, or cause of action and that the bar extends to all matters that were decided or could
have been decided in the prior action. Wilson v. Edward Hospital, 2012 IL 112898, ¶ 9. Thus,
res judicata only applies if there is a final judgment on the merits rendered by a court of
competent jurisdiction, an identity of cause of action, and an identity of parties or their privies.
Cooney v. Rossiter, 2012 IL 113227, ¶ 18. An identity of cause of action exists when the
claims arise from a single group of operative facts. River Park, Inc. v. City of Highland Park,
184 Ill. 2d 290, 311 (1998).
¶ 25 We initially point out that defendant’s res judicata claim was not based on any newly
discovered evidence or changes in the law and that defendant has not provided any explanation
as to the reason it did not raise this argument in its response to plaintiff’s motion for summary
judgment. As a party may not raise a new legal theory in a motion to reconsider (North River
Insurance Co. v. Grinnell Mutual Reinsurance Co., 369 Ill. App. 3d 563, 572 (2006)),
defendant was not entitled to relief on the res judicata claim raised in its motion to reconsider.
Moreover, there is no identity of cause of action between plaintiff’s claim and the foreclosure
action because they are based on different operative facts, as plaintiff’s claim is based on
defendant’s failure to pay assessments incurred after the foreclosure sale, which had no
bearing on the foreclosure action. As such, we conclude that the court did not abuse its
discretion by denying defendant’s motion to reconsider.

¶ 26 III. Attorney Fees
¶ 27 Defendant further contends that the court abused its discretion by awarding plaintiff
$7,423.50 in attorney fees and costs, asserting that plaintiff was not entitled to any attorney
fees because the court erred by granting summary judgment in plaintiff’s favor. However, as
we have already concluded that the court did not err by granting summary judgment in
plaintiff’s favor, we need only consider defendant’s challenge to the reasonableness of the
amount of attorney fees and costs awarded by the court.
¶ 28 The party seeking attorney fees bears the burden of presenting sufficient evidence to
establish that the requested fees are reasonable. Palm v. 2800 Lake Shore Drive Condominium
Ass’n, 401 Ill. App. 3d 868, 879 (2010). In determining the reasonable value of attorney fees, a
court should consider the skill and standing of the attorney, the nature of the cause, novelty and
difficulty of the questions at issue, importance of the subject matter, degree of responsibility
involved in managing the case, time and labor required, customary charges in the community,
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 benefits resulting to the client, and the connection between the amount of fees sought and the
amount of money involved in the litigation. Goldfine v. Barack, Ferrazzano, Kirschbaum &
Perlman, 2013 IL App (1st) 111779, ¶ 53. A circuit court’s decision regarding the amount of
attorney fees to which a party is entitled will not be reversed absent an abuse of discretion.
Peleton, Inc. v. McGivern’s, Inc., 375 Ill. App. 3d 222, 225 (2007).
¶ 29 Defendant asserts that the amount of attorney fees plaintiff requested in its fee petition was
unreasonable because during the course of litigation plaintiff’s counsel “merely sent demand
letters and drafted a complaint and motion for summary judgment.” In the fee petition, counsel
for plaintiff represented that his firm expended approximately 40.6 hours prosecuting the
action against defendant. In support, plaintiff attached a copy of the fee statement which sets
forth the legal services provided, the identity of the attorney providing the legal services, an
itemization of the time expended for the individual service, and the hourly rate charged. As
such, plaintiff presented the court with sufficient evidence to establish that the requested fees
were reasonable, and the court did not abuse its discretion by granting plaintiff’s request for
attorney fees. To the extent defendant claims that the amount of attorney fees was excessive in
light of the amount of money at stake in the underlying claim, we point out that the amount of
attorney fees awarded by the court was less than 10% of the judgment entered in plaintiff’s
favor. Further, while defendant also asserts that plaintiff failed to provide sufficient evidence
to support the award of $698.50 for filing costs, the record shows that plaintiff attached copies
of receipts for each cost to its reply in support of its fee petition. As such, we find ample
support for the amount of attorney fees and costs awarded by the circuit court.

¶ 30 CONCLUSION
¶ 31 Based upon the record herein, we affirm the judgment of the circuit court of Cook County.

¶ 32 Affirmed.

¶ 33 JUSTICE LIU, dissenting.
¶ 34 I disagree with the majority’s analysis of the relevant statutory provisions at issue in this
case, namely, section 9(g)(3) of the Act (765 ILCS 605/9(g)(3) (West 2008)) and section
15-1509(c) of the Illinois Mortgage Foreclosure Law (Foreclosure Law) (735 ILCS
5/15-1509(c) (West 2008)). Based upon its interpretation of these two provisions, the majority
now creates the rule that a mortgagee who takes title to a condominium unit–in this particular
case, as the purchaser of the unit in a foreclosure sale–is liable to the condominium association
for unpaid assessments incurred by the mortgagor (i.e., the previous owner) prior to the date on
which the mortgagee took title, even if the condominium association was a named party in the
foreclosure suit and had its lien interest terminated in that suit. In my opinion, this holding is
inconsistent with the plain language of section 9(g)(3) of the Act and section 15-1509(c) of the
Foreclosure Law. Furthermore, the majority’s opinion essentially allows an association to
revive a lien on the property that was previously extinguished in the foreclosure action brought
by the mortgagee, by initiating a forcible entry and detainer claim after the mortgagee takes
title. Section 15-1509(c) of the Foreclosure Law expressly bars such a claim. Accordingly, I
respectfully dissent from the portion of the majority’s decision that affirms the circuit court’s
order imposing liability on the defendant for assessments that became due prior to July 1, 2010.

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¶ 35 In its opinion, the majority acknowledges that under section 9(g)(3) of the Act, the
defendant, as a mortgagee who purchased the unit at a foreclosure sale, “only has a duty to pay
its share of the common expenses assessed from the first day of the month after the date of the
sale.” Supra ¶ 12. However, in determining the scope of the liability imposed upon the
defendant for delinquent assessments owed to the condominium association, the majority
relies on the portion of section 9(g)(3) which states that the mortgagee’s payment of
assessments that become due after it takes title “confirms the extinguishment of any lien
created pursuant to paragraph (1) or (2) of this subsection (g) by virtue of the failure or refusal
of a prior unit owner to make payment of common expenses, where the judicial foreclosure
sale has been confirmed by order of the court.” 765 ILCS 605/9(g)(3) (West 2008). According
to the majority, “a lien created under section 9(g)(1) for unpaid assessments by a previous
owner is not fully extinguished following a judicial foreclosure and sale until the purchaser
makes a payment for assessments incurred after the sale.” Supra ¶ 12. The majority reasons
that the phrase “ ‘[s]uch payment confirms the extinguishment of any lien’ ” would be merely
superfluous if a purchaser of a foreclosure property is never required to pay assessments that
are incurred prior to a foreclosure sale. Supra ¶ 10 (quoting 765 ILCS 605/9(g)(3) (West
2008)).
¶ 36 While I take issue with the general proposition that section 9(g)(3) should be construed to
mean that a condominium association’s lien will survive the foreclosure suit when a final
judgment has been entered disposing of its interests in the property, or that the association can
enforce a claim against the mortgagee for unpaid assessments incurred by the mortgagor, the
key dispute that I have with the majority’s analysis is the notion that section 15-1509(c) of the
Mortgage Foreclosure Law has no relevant application in this case because section 9(g)(3) of
the Act “is a specific statutory provision that must control over the general rule of foreclosure
law cited by defendant.” Supra ¶ 14. To the contrary, section 15-1509(c) expressly bars claims
brought by “all parties to the foreclosure” after the sale is approved by the court. Section
15-1509(c) provides in relevant part:
“Claims Barred. Any vesting of title *** by deed pursuant to subsection (b) of Section
15-1509 [delivery of the deed after confirmation of sale], unless otherwise specified in
the judgment of foreclosure, shall be an entire bar of (i) all claims of parties to the
foreclosure ***.” (Emphasis added.) 735 ILCS 5/15-1509(c) (West 2008).
¶ 37 The majority apparently acknowledges the fact that section 15-1509(c) of the Mortgage
Foreclosure Law is applicable to bar claims on the property by parties in a foreclosure action
following confirmation of the sale, but finds that this provision potentially conflicts with
section 9(g)(3) of the Act. The majority resolves this purported conflict by concluding that
section 9(g)(3) is the more specific statutory provision of the two, and notes that “when a
general statutory provision and a specific statutory provision relate to the same subject, the
statute relating to that one specific subject must prevail over the statute designed to apply to
cases more generally.” Supra ¶ 14 (citing Murray, 224 Ill. 2d at 233). While I also recognize
this tenet of statutory interpretation, I would elect to follow the doctrine of in pari materia
when applying the two provisions in the case before us. “Under this doctrine of construction,
two legislative acts that address the same subject are [to be] considered with reference to one
another, so that they may be given harmonious effect.” Land v. Board of Education of the City
of Chicago, 202 Ill. 2d 414, 422 (2002).
¶ 38 Upon comparing section 9(g)(3) of the Act to section 15-1509(c) of the Mortgage
Foreclosure Law, I do not find a conflict. These provisions, read together, establish a
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 complementary procedure for extinguishing a lien held by a condominium association
following a judicial foreclosure sale. Section 15-1509(c) of the Mortgage Foreclosure Law
applies in the first instance when a condominium association has been named a party in the
foreclosure action. It expressly states that “all claims of parties to the foreclosure and ***
nonrecord claimant who is given notice of the foreclosure” are barred after title is vested with
the purchaser of the property. 735 ILCS 5/15-1509(c) (West 2008); see also 735 ILCS
5/15-1501(a), (b) (West 2008) (distinguishing between necessary parties in a foreclosure suit
and permissible parties). Section 9(g)(3) of the Act, on the other hand, applies in the situation
where a condominium association with an enforceable lien was not named as a party in the
foreclosure suit or provided with notice of foreclosure as a nonrecord claimant. It provides an
avenue for the purchaser to extinguish a preexisting lien that survives the foreclosure action, by
paying the assessments that accrue after the date of the sale. 765 ILCS 605/9(g)(3) (West
2008). Section 9(g)(3) does not, however, create a vehicle for liability on a lien interest that has
been terminated in the foreclosure suit and therefore no longer exists.
¶ 39 In this case, the plaintiff was purportedly a party in the foreclosure action and, therefore,
had an opportunity to assert its lien based on the outstanding assessments owed by the
mortgagor before final judgment was entered in the action.2 Therefore, we can presume that
the plaintiff’s lien based on preforeclosure assessments was adjudicated during the proceeding.
Because there is no evidence that the judgment of foreclosure provided for any specific relief
in favor of the association, we can reasonably conclude that the lien was extinguished when the
court approved the sale and distribution of proceeds. Additionally, the plaintiff cannot now
enforce its extinguished lien based on the amount owed prior to July 1, 2010 by simply
attaching that amount onto a claim against the mortgagee for assessments incurred on or after
July 1, 2010. Circumventing section 15-1509(c) of the Mortgage Foreclosure Law cannot
rationally be the intended purpose or effect of section 9(g)(3) of the Act.
¶ 40 Next, the majority finds this case distinguishable from Pembrook Condominium Ass’n-One
v. North Shore Trust & Savings, 2013 IL App (2d) 130288, because the mortgagee in that case
tendered payment for the assessments that became due following the sale. In Pembrook, the
condominium association filed a forcible entry and detainer action against the mortgagee after
the mortgagee purchased the unit in the foreclosure sale for overdue assessments owed by the
mortgagor. The association argued that the mortgagee had failed to name the association as a
party in the foreclosure suit and, therefore, disputed the proposition that its lien was
extinguished upon sale of the unit. The trial court dismissed the association’s claim for the
preforeclosure assessments. On appeal, we affirmed the trial court’s decision for two reasons:
(1) based on case authority, the mortgagee was not legally responsible for assessments that
accrued prior to the date the mortgagee took title, and (2) under section 9(g)(3) of the Act, the
condominium association had no basis for recovery because the mortgagee tendered payment
for the assessments that became due after it took title. 2013 IL App (2d) 130288, ¶ 9. We
acknowledged in Pembrook that the condominium association may not have been a party in the
foreclosure suit; however, we decided that “[e]ven if [the association’s] lien survived the
foreclosure judgment in favor of [the mortgagee], it could not be enforced against [the

2
Although neither party has presented this court with a record containing the judgment of
foreclosure or the order confirming the sale, the plaintiff does not dispute that it was a party in the
foreclosure action.

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 mortgagee] to the extent that it was based on association charges that came due before [the
mortgagee] obtained title to the property.” Id. ¶ 14. Further, we found to be controlling, based
on Newport Condominium Ass’n v. Talman Home Federal Savings & Loan Ass’n of Chicago,
188 Ill. App. 3d 1054, 1059-60 (1988), the rule that “the obligation to pay condominium
assessments is a covenant that runs with the land and is binding only upon title holders,” and,
therefore, a mortgagee that subsequently obtains title following a foreclosure is not liable for
the assessments which accrued prior to the date on which it took title.3
¶ 41 The majority’s rationale for distinguishing Pembrook does not take into account the
broader rule applied in that case that the mortgagee is not liable for the assessments incurred
prior to taking title. Pembrook was not based solely on the fact that the mortgagee complied
with section 9(g)(3) of the Act by tendering payment for the assessments that accrued after the
sale. Furthermore, although the Pembrook decision was not predicated on the application of
section 15-1509(c) of the Mortgage Foreclosure Law, I believe that it is still instructive.
Simply put, under Pembrook and Newport, even if section 15-1509(c) of the Mortgage
Foreclosure Law does not apply–for instance, if the mortgagee has failed to name the
condominium association as a party in the foreclosure action–the association may not enforce
the lien related to delinquent assessments owed by the prior owner against a mortgagee who
subsequently takes title to the unit. This does not mean, however, that the plaintiff is left with
no recourse for the unpaid assessments owed by the prior mortgagor; the plaintiff can pursue a
collection action directly against the mortgagor.
¶ 42 Based on the foregoing reasons, I respectfully disagree with the majority’s reasoning and,
therefore, dissent from its ruling. I would affirm the circuit court’s judgment solely on the
defendant’s liability for the unpaid assessments incurred on or after July 1, 2010; reverse the
remainder of the judgment on liability and damages for assessments incurred prior to July 1,
2010; and remand the cause to the circuit court for a prove-up of the assessments due from the
defendant on or after July 1, 2010, including applicable late charges, interest, and legal fees
and costs consistent with the Act and/or condominium association bylaws and declaration.

3
In Newport, we held that the mortgagee had “constructive” title when it took the sheriff’s deed to
the condominium unit. The rule in Newport nonetheless applies to a mortgagee that takes actual title to
the property.
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