2017 IL App (1st) 162449
SECOND DIVISION
September 26, 2017
No. 1-16-2449
THE CITY OF CHICAGO, )
)
Plaintiff-Appellee, ) Appeal from the Circuit
) Court of Cook County
v. ) County Department,
) Municipal Division
FEDERAL NATIONAL MORTGAGE ASSOCIATION, )
) Case No. 12 M1 400142
Defendant-Appellant )
) Hon. Pamela H. Gillespie,
(JOHN SOLUDCZYK; MORTGAGE ELECTRONIC ) Judge Presiding.
REGISTRATION SYSTEMS, INC., as nominee for )
Freedom Mortgage Corp.; FREEDOM MORTGAGE )
CORPORATION; UNKNOWN OWNERS and NON- )
RECORD CLAIMANTS, )
)
Defendants). )
JUSTICE MASON delivered the judgment of the court, with opinion.
Presiding Justice Neville and Justice Hyman concurred in the judgment and opinion.
OPINION
¶1 The City of Chicago seeks to enforce an in personam money judgment against
Federal National Mortgage Association (Fannie Mae) representing the amount the City
expended to demolish certain property. Fannie Mae owned the property briefly after it
purchased it at a foreclosure sale. At the time the City demolished the property and
perfected its demolition lien, Fannie Mae, having sold the property more than two years
earlier, was not the owner. We find that the procedure by which the City obtained its
judgment did not comport with the statute authorizing a municipality to seek a money
judgment for demolition costs and, therefore, we reverse.
¶2 The City filed this case in the circuit court of Cook County on January 17, 2012,
asserting various claims arising out of alleged dangerous and unsafe conditions at
No. 1-16-2449
property located at 535 W. 60th Street in Chicago. The complaint alleged a variety of
dangerous conditions at the property, including (i) “stripped and inoperable” electrical
and plumbing systems, (ii) lack of electric service to the building, (iii) smoke, water and
fire damage and (iv) structural damage to the joists, rafters and roof.
¶3 Named as defendants were the property’s owner of record, John Soludczyk, and
various lienholders, including JPMorgan Chase Bank, N.A., which was the plaintiff in a
pending mortgage foreclosure against the property. According to public records,
Soludczyk acquired the property by quitclaim deed on March 31, 2005, and JP Morgan
Chase was the assignee of Mortgage Electronic Registration Systems, Inc. (MERS), the
original lender that recorded its lien on the property the same date Soludczyk took title. 1
¶4 At issue on appeal are two counts of the complaint: count I, which sought to
require the defendants to demolish the property or, alternatively, allow the City to
demolish the property under Article 11, Division 31 of the Illinois Municipal Code,
otherwise known as the Unsafe Property Act (65 ILCS 5/11-31-1(a) (West 2010)) (Act);
and count IV, which sought a declaration that the property was a public nuisance and
injunctive relief against defendants to abate the nuisance pursuant to the City’s Public
Nuisance Ordinance (Municipal Code of Chicago §7-28-060 (2010)) (Code). In the
1
See Cook County Recorder of Deeds, http://cookrecorder.com (enter “20-16-311-023-
0000” in PIN-Address Quick Search bar, then follow “Show” hyperlink) (last visited September
18, 2017). We may take judicial notice of information posted on the Recorder of Deeds website.
See Illinois Rule of Evidence 2.01(b) (eff. Jan. 1, 2011) (court may take judicial notice of facts
“capable of accurate and ready determination by resort to sources whose accuracy cannot
reasonably be questioned”); JPMorgan Chase Bank v. Bank of America, N.A., 2015 IL App (1st)
140428, ¶ 44, fn. 4.
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prayer for relief under count I, the City requested an order assessing the costs of the
demolition “as a judgment against the defendants” and “[p]ermitting foreclosure of any
City of Chicago liens entered against the subject property in this proceeding.” Count IV
did not separately request any relief other than abatement of the nuisance.
¶5 In the foreclosure proceedings, JPMorgan Chase obtained a judgment of
foreclosure and purchased the property at the foreclosure sale, which was confirmed by
order entered on June 13, 2012. We gather from the foreclosure documents in the record
that the mortgage was insured by Fannie Mae and that following the sale, Fannie Mae
became the certificate holder and acquired the property. The City then named Fannie Mae
as a defendant in this case. After Fannie Mae was added as a defendant, the City, without
explanation, dismissed the case against Soludzcyk and JPMorgan Chase.
¶6 Although Fannie Mae filed an appearance through counsel, it does not appear that
it actively participated in the demolition case and the only orders entered against Fannie
Mae during the proceedings required it to “secure and keep secure the entire subject
property by maintaining the property as secure and vacant.” In particular, the record
contains no demand by the City that Fannie Mae remedy the dangerous and unsafe
conditions at the property. On appeal, the City contends that an order of default was
entered against Fannie Mae, but no such order appears in the record.
¶7 Fannie Mae owned the property for 10 months—from June 13, 2012, until April
11, 2013—when it sold the property to Rachel Branton. The City did not thereafter name
Branton as a defendant.
¶8 On April 9, 2013, two days before the sale to Branton, an order of demolition was
entered in favor of the City and against Fannie Mae, the only remaining defendant, on
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counts I and IV of the complaint. The City dismissed the other counts of the complaint.
MERS, which had also been named as a defendant in the original complaint, was
dismissed by the City on the same date the demolition order was entered.
¶9 The demolition order found that the conditions at the property were beyond repair
and that a judgment in favor of the City on counts I and IV seeking demolition authority
was warranted. The order provided that the City’s authority to demolish the property
“shall become effective May 9, 2013.” The order also stipulated that the City’s
demolition of the property would “result in a statutory in rem lien that attaches only to the
subject parcel of real estate.” The order further provided that “[i]f the City seeks a
personal judgment against any individual party to this action, it will proceed by separate
motion directed to that party.” The court made a finding pursuant to Illinois Supreme
Court Rule 304(a) (eff. Feb. 26, 2010) that there was no just reason to delay enforcement
or appeal of the order and retained jurisdiction “for the purpose of ascertaining
demolition costs for entry of a money judgment against the defendant owners, as defined
by the applicable statutes and ordinances.” No party appealed the demolition order.
¶ 10 The City did not demolish the property until September 17, 2015, nearly two and
a half years after entry of the demolition order and Fannie Mae’s sale to Branton. The
City’s lien for the demolition costs was recorded against the property on February 24,
2016.
¶ 11 On March 29, 2016, the City filed a “Motion to Ascertain Demolition and Other
Costs.” Notice of the motion was sent only to Fannie Mae. The motion represented that
the City had incurred demolition and litigation costs totaling $27,042 and requested a
personal money judgment against Fannie Mae in the same amount. No authority for
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No. 1-16-2449
entering the judgment against Fannie Mae was cited in the City’s motion and no support
for the amount sought was attached to the motion.
¶ 12 Fannie Mae responded to the City’s motion, objecting to the entry of judgment
because (i) the requested relief was unjust given that Fannie Mae was not the owner of
the property when it fell into disrepair, when the City demolished it, or when the City's
lien became effective by recordation, (ii) the City’s attempt to impose personal liability
on Fannie Mae was not authorized under the Act and (iii) even if the Act applied, the City
had not followed the required procedure to obtain a money judgment, which necessitated
either foreclosure of the City’s demolition lien or the filing of a separate action under the
Code of Civil Procedure seeking a money judgment.
¶ 13 In support of its motion, the City pointed to the retention of jurisdiction in the
demolition order and argued that the Act authorized a money judgment against the
“owner or owners” of demolished property. 65 ILCS 5/11-31-1 (West 2010). As Fannie
Mae was an owner of the property when the demolition order was entered, the City
argued it could impose personal liability on Fannie Mae for demolition costs even if
Fannie Mae did not currently own the property. The City further argued that it could
obtain a money judgment against Fannie Mae via a motion in the demolition case and
that it was not required to foreclose its demolition lien or pursue a separate civil action.
¶ 14 The trial court agreed with the City. On June 13, 2016, the court entered an order
finding that “because the [d]emolition order was entered while Fannie Mae was the
owner of the property and because the statute does not provide for relief from liability
upon transfer of the property, Fannie Mae is liable for [d]emolition costs.” The court
entered a personal money judgment against Fannie Mae in the amount of $27,042.
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Although Fannie Mae was at that point the only party-defendant in the case, the court
also granted the City leave to file a petition to foreclose its demolition lien, either as part
of the demolition case or as a separate proceeding and retained jurisdiction “solely for the
purpose of adjudicating the foreclosure.” The trial court made a finding pursuant to
Illinois Supreme Court Rule 304(a) that there was no just reason for delaying
enforcement or appeal of its order. Fannie Mae filed a timely notice of appeal.
¶ 15 We first address the basis for our jurisdiction. Fannie Mae posits that we have
jurisdiction, pursuant to Illinois Supreme Court Rule 301 (eff. Feb. 1, 1994), on appeal
from a final judgment in the demolition case. Alternatively, Fannie Mae contends the trial
court's finding pursuant to Rule 304(a) (Ill. Sup. Ct. R. 304(a) (eff. Feb. 26, 2010)),
confers appellate jurisdiction. The City relies exclusively on jurisdiction under Rule
304(a), which, in cases involving multiple parties or claims for relief, allows an appeal
from a final judgment “as to one or more but fewer than all of the parties or claims”
provided the court makes a finding that “there is no just reason for delaying either
enforcement or appeal or both.” Id.
¶ 16 At the time the trial court entered its June 13, 2016 judgment against Fannie Mae,
there were no other defendants in the case and no other claims pending. Although the
City argues in its brief that there were other claims asserted and other parties to the case,
this overlooks that those parties and claims were voluntarily dismissed in 2012, before
entry of the demolition order and long before the property was demolished. There is no
indication in the record that the City ever revived any other claims or joined any other
parties after they were dismissed. The court’s order finally resolved, as the City concedes,
its only remaining claim against Fannie Mae.
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¶ 17 The fact that the court retained jurisdiction, for some unspecified period of time,
over a claim the City had not yet asserted 2 against persons or entities not then parties to
the case cannot transform the court's final judgment into something else. If the City later
sought to reopen the case to pursue further proceedings against other parties, the court’s
retention of jurisdiction would potentially apply, but that does not mean that the court’s
order was anything other than a final judgment.
¶ 18 Therefore, we have jurisdiction over Fannie Mae’s appeal of a final judgment
pursuant to Rule 301. We discourage the inclusion of Rule 304(a) findings as a matter of
course when the order entered finally resolves the litigation in its entirety.
¶ 19 In this case of first impression, we must construe the Act to determine whether it
authorizes a municipality to impose personal liability for demolition costs simply by
filing a motion in the demolition case or whether those the municipality seeks to hold
personally liable for those costs are entitled to greater procedural protections. We review
this question of law de novo. Nelson v. Artley, 2015 IL 118058, ¶ 13.
¶ 20 As in any case involving statutory construction, we start with the language of the
statute to determine the legislature’s intent. “Our primary objective is to ascertain and
give effect to legislative intent, the surest and most reliable indicator of which is the
statutory language itself, given its plain and ordinary meaning.” Board of Education of
Springfield School District No. 186 v. Attorney General of Illinois, 2017 IL 120343, ¶ 24.
In the absence of an ambiguity in the statute’s language, we must apply it as written
2
Disavowing any attempt at a double recovery, the City represents that since entry of the
June 13, 2016 order, it has not commenced proceedings to foreclose its lien.
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without resort to extrinsic aids to statutory construction. Id. (citing People v. Collins, 214
Ill. 2d 206, 214 (2005)).
¶ 21 Although the parties discuss only those subsections of the Act directly at issue
here, a discussion of the Act’s overall structure is helpful to place those provisions in
context. See Turk v. Turk, 2013 IL 116730, ¶ 15 (court should not consider words and
phrases in isolation, but instead should interpret each word and phrase in light of the
statute as a whole).
¶ 22 Various subsections of the Act specify procedures municipalities and others may
pursue to remedy unsafe and hazardous buildings within a municipality's borders. Under
subsection (a), the section invoked by the City in the trial court, a municipality may apply
to demolish or take other action to address dangerous and unsafe buildings. 65 ILCS
5/11-31-1(a) (West 2010). To accomplish this, the municipality must apply to the circuit
court “for an order authorizing action to be taken with respect to a building if the owner
or owners of the building, including the lien holders of record, after at least 15 days’
written notice so to do, have failed to put the building in a safe condition or to demolish
it.” Id. The hearing on the application “shall be expedited by the court and shall be given
precedence over all other suits.” Id. Under subsection (b), a landowner or tenant of
property within 1200 feet of any dangerous or unsafe building, may petition the
municipality to institute an action under subsection (a) and, failing action by the
municipality, the affected party may file an action seeking demolition, repair or other
relief. 65 ILCS 5/11-31-1(b) (West 2010). If the owner fails to take action ordered by the
court, the petitioner may ask the court to join the municipality as a party and the
municipality may be ordered to take action required to remedy the unsafe or hazardous
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conditions. Subsections (d), (e) and (f), address, respectively, (i) a municipality’s ability
to have property declared abandoned so that the municipality may obtain title (65 ILCS
5/11-31-1(d) (West 2010)); (ii) an expedited procedure for removing unsafe and
hazardous buildings of less than three stories, potentially without the necessity of court
proceedings (id., 5/11-31-1(e)); and (iii) a procedure for remediating environmental
hazards at abandoned property (id., 5/11-31-1(f)).
¶ 23 Certain of the Act’s subsections also contain enforcement mechanisms. In
particular, subsections (a), (b) and (f) provide for a lien to be recorded against the
property in the amount of the demolition, repair, remediation or other cost, which, unless
enforced under subsection (c), may be foreclosed in separate proceedings under the
Mortgage Foreclosure Law relating to mortgages or mechanics’ liens (735 ILCS 5/15-
1501, et seq. (West 2010)). 65 ILCS 5/11-31-1(a), (b), (f) (West 2012). Subsection (c), in
turn, allows for a municipality to enforce its lien by petitioning the court presiding over
the building case to retain jurisdiction to conduct proceedings to foreclose the lien. 65
ILCS 5/11-31-1(c) (West 2010). An action to foreclose the lien may be commenced “at
any time after the date the notice of lien is filed” with the recorder of deeds. 65 ILCS
5/11-31-1(a), (b), (f) (West 2012). However enforced, a lien recorded within six months
of the demolition or repair of the building is “superior to all prior existing liens and
encumbrances, except taxes.” Id. The costs of any foreclosure proceedings, whether
brought separately or as part of the building case, and any other costs related to
enforcement of subsections (a), (b) or (f) “are a lien on the real estate and are recoverable
by the municipality from the owner or owners of the real estate.” Id.
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¶ 24 Finally, there are enforcement provisions unique to subsection (a). Subsection (a)
itself provides that a municipality may proceed against former owners of the property to
recover the cost of demolition if those owners transferred the property within the 15-day
period following notice from the municipality of the property’s unsafe or hazardous
conditions. 65 ILCS 5/11-31-1(a) (West 2010) (cost of demolition or repair incurred by
municipality or third parties “recoverable from the owner or owners of the real estate or
the previous owner or both if the property was transferred during the 15-day notice
period”). Separately, under subsection (g) of the Act, when a municipality has obtained a
lien under subsection (a), it may also bring an action for a money judgment
“against the owner or owners of the real estate in the amount of the lien in the
same manner as provided for bringing causes of action in Article II of the Code of
Civil Procedure [735 ILCS 5/2-101, et seq. (West 2016)] and, upon obtaining a
judgment, file a judgment lien against all of the real estate of the owner or owners
and enforce that lien as provided in Article XII of the Code of Civil Procedure
[735 ILCS 5/12-101, et seq. (West 2016)].” 65 ILCS 5/11-31-1(g) (West 2010).
¶ 25 The Act does not anywhere provide for the filing of a motion by the municipality
to obtain a money judgment against the “owner or owners” in the amount of demolition
costs. Rather, the Act’s plain language requires the municipality, at its election, to pursue
either foreclosure of its demolition lien or a separate civil action against those owners
whom it seeks to hold personally liable.
¶ 26 The Act provides a quick and efficient means for a municipality to remove
structures that pose a threat to public health and safety. Village of Lake Villa, 211 Ill. 2d
at 130; City of Bloomington v. Bible Truth Crusade, 197 Ill. App. 3d 793, 796 (1990)
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(“[The Act’s] purpose is to provide municipalities the power to abate public nuisances
which may prove detrimental to public health, safety, and welfare. [Citation.] It is also
intended that this procedure be an expeditious one.”). To that end, when a municipality
applies to demolish a building under subsection (a), the court is required to make only
two findings: (i) the building is dangerous and unsafe; and (ii) the building is beyond
reasonable repair. Village of Lake Villa v. Stokovich, 211 Ill. 2d 106, 130-31 (2004)
(citing City of Aurora v. Meyer, 38 Ill. 2d 131, 133 (1967)). Issues raised by an owner
that require consideration of matters beyond the two required findings have been found
more properly relegated to resolution elsewhere. See City of Bloomington, 197 Ill. App.
3d at 796 (landowner’s claim of municipality’s misconduct in withholding funds it agreed
to provide for demolition had no bearing on relevant issues in demolition proceeding and
were more properly raised in other pending litigation); City of Peru v. Bernardi, 84 Ill.
App. 3d 235, 239 (1980) (landowners’ claims that City’s demolition costs were excessive
reserved for resolution in foreclosure proceedings; “The property interests of the
[landowners] will be protected at a later date when the city must justify the
reasonableness of its costs and expenses.”).
¶ 27 Also, when the legislature intended to subject prior owners of real property to
automatic liability under the Act, it so provided. As noted, section 11-31-1(a) specifically
provides for recovery of demolition costs against current or prior owners of real estate “or
both” if the property is transferred during the 15-day period after notice from the
municipality of the property’s unsafe or hazardous conditions. 65 ILCS 5/11-31-1(a)
(West 2010). Because the legislature articulated a particular condition that would
automatically subject a prior owner to liability for demolition costs, we hesitate to
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assume, as the City does, that anyone who ever owned the property, no matter how
briefly, is liable for demolition costs under any circumstances. See People v. Edwards,
2012 IL 111711, ¶ 27 (“Where language is included in one section of a statute but
omitted in another section of the same statute, we presume the legislature acted
intentionally and purposely in the inclusion or exclusion.”) (citing Chicago Teachers
Union, Local No. 1 v. Board of Education of the City of Chicago, 2012 IL 112566, ¶ 24).
¶ 28 Despite the Act’s straightforward language, the City argues that the filing of a
motion for entry of a money judgment against Fannie Mae was appropriate and that it
was not required to do anything other than that in order to hold Fannie Mae liable for the
costs it incurred in demolishing the building. In other words, the City contends that by
filing a motion that entails (i) no showing of a legally or factually viable claim against
Fannie Mae, (ii) no burden of proof, and (iii) no evaluation of the sufficiency of the
evidence, it may seek to impose personal liability for demolition and other costs on
anyone who ever owned the property. The City further views the Act's language that a
municipality “may” enforce its lien in several ways as permissive and argues that pursuit
of a separate action to foreclose and enforce the demolition lien is not required. We
disagree.
¶ 29 As a threshold matter, if the City is correct, the Act’s provisions for alternative
means of enforcing the demolition lien would be surplusage. This interpretation of the
Act would violate a fundamental precept of statutory construction. “Each word, clause
and sentence of a statute must be given reasonable meaning, if possible, and should not
be rendered superfluous.” Standard Mutual Insurance Co. v. Lay, 2013 IL 114617, ¶ 26;
Majmudar v. House of Spices (India), 2013 IL App (1st) 130292, ¶ 10. The City also
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does not explain why a municipality would ever resort to foreclosure proceedings or a
separate action to enforce a demolition lien and obtain a money judgment if the same
result could be accomplished merely through the filing of a motion following recordation
of the lien.
¶ 30 But beyond the applicable principles of statutory construction that compel the
result we reach, the City’s position must be rejected because it violates fundamental
principles of due process.
¶ 31 The reason for the Act’s various provisions regarding the post-demolition or
repair enforcement of a municipality's lien is obvious: an action seeking the demolition or
repair of an unsafe and hazardous building is an expedited, in rem proceeding directed
only against the property. Village of Lake Villa, 211 Ill. 2d at 130. The public policy
favoring the ability of municipalities to expeditiously demolish or repair structures that
pose hazards to public health and safety supports the abbreviated procedure and limited
burden of proof required to achieve that result.
¶ 32 Such proceedings are not designed to resolve issues concerning which owner or
owners of the property are responsible for the property’s unsafe and hazardous condition
and should therefore be liable for the demolition or repair costs. A municipality may be
content, as Fannie Mae points out, to rely on its recorded lien as a cloud on title that must
be paid before the property may be sold. If that is the case, the municipality need do
nothing other than perfect its lien. But if a municipality seeks to affirmatively recover the
amount of the lien, the Act contemplates that the municipality will either (i) foreclose the
lien, which is superior to all other prior encumbrances on the property, and obtain
satisfaction of the lien through a judicial sale of the property or (ii) sue the owner or
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owners in a separate civil action, in which case, any money judgment obtained will be
enforceable as any other civil money judgment.
¶ 33 The City’s interpretation of the Act—allowing it to simply file a motion in order
to impose personal liability—would impair the due process rights of those it seeks to hold
personally liable for demolition costs. This is best illustrated by Fannie Mae’s position in
this case. Fannie Mae acquired the property through a foreclosure sale, 3 long after the
property’s unsafe and hazardous conditions prompted the City’s action. There is no
evidence in the record that Fannie Mae exacerbated the property’s condition during the
10 months it owned the property and the only action Fannie Mae was ordered to take was
to maintain the property as secure and vacant. The City makes much of the fact that
Fannie Mae did not answer the demolition complaint and argues that the complaint’s
allegations were, therefore, deemed admitted. But the City overlooks that there were no
allegations in the complaint directed to Fannie Mae and, consequently, nothing for Fannie
Mae to answer. Fannie Mae was under no constraints to retain ownership of the property
and the record does not disclose any relationship between the demolition order and the
sale to Branton. In particular, the record contains no advance notice directed to Fannie
Mae or anyone else, of the April 9, 2013 order of demolition. Thus, there is no basis to
conclude that Fannie Mae rushed to complete the sale to Branton in an attempt to avoid
liability for demolition costs. There is also no indication that, at the time of the sale to
3
The record does not reveal the circumstances of Fannie Mae’s acquisition of the
property. Given that the mortgage documents were on standard forms approved by
Fannie Mae, it is reasonable to assume that at least a portion of the original loan to
Soludczyk was insured by Fannie Mae and that once Fannie Mae paid out after default, it
accepted an assignment of the certificate of sale from JPMorgan Chase.
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Branton, Fannie Mae was aware that, years later, the City would seek payment of
demolition costs (not yet incurred) only from Fannie Mae and not from previous owners
whose conduct caused the property’s condition. Yet, with no opportunity to contest the
legal and factual basis for or amount of its liability for demolition costs through motion
practice, discovery or an evidentiary hearing, Fannie Mae was adjudged solely
responsible for those costs. See City of Peru, 84 Ill. App. 3d at 239 (recognizing that
property owner’s interests would be protected by opportunity to contest reasonableness of
demolition costs in later foreclosure proceeding). We cannot countenance the result
advocated by the City as it is antithetical to the notice and opportunity to be heard that are
the hallmarks of due process. Passalino v. City of Zion, 237 Ill. 2d 118, 124 (2010); see
also People v. Al Momani, 2016 IL App (4th) 150192, ¶ 10, quoting Mathews v. Eldridge,
424 U.S. 319, 333 (1976) (“The fundamental requirement of due process is the
opportunity to be heard at a meaningful time and in a meaningful manner.” (internal
quotation marks removed)).
¶ 34 The City relies on State Oil v. Illinois, 352 Ill. App. 3d 813 (2004), to argue that a
construction of the Act that would allow an owner of property to escape liability for
demolition costs by selling the property would frustrate the Act’s purposes. State Oil
involved liability for remediation of environmental contamination as a result of leaks
from underground storage tanks at a former gas station. Section 57.2 of the
Environmental Protection Act (415 ILCS 5/57.2 (West 1996)) provided that “the owner
or operator, or both, of an underground storage tank shall be liable” for all costs incurred
by the State to remediate environmental conditions stemming from the tank. State Oil, the
entity that operated the gas station when the leaks began, argued its status as a former
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owner absolved it of liability for the ongoing contamination. 352 Ill. App. 3d at 818-19.
Rejecting this contention, the court found, “[a]llowing an owner to escape liability by
simply selling a property would *** be absurd, and we cannot attribute such an intent to
the legislature.” Id. at 819. And the circuit court appears to have adopted that reasoning
when it noted that the Act “does not provide for relief from liability upon transfer of the
property.”
¶ 35 In fact, State Oil illustrates why the City’s position is incorrect. In State Oil, the
State sued both the former owners and operator of the gas station as well as the current
owners and operator. The current owners pursued a cross-claim against the former
owners alleging that the former owners falsely represented at the time the property was
purchased that the tanks were not leaking and that the current owners did nothing to
contribute to the leaks. Thus, in the context of the State’s effort to hold them liable, the
current owners had the opportunity to litigate their claims against those they contended
were responsible for the contamination. The procedure advocated by the City affords
Fannie Mae no similar opportunity.
¶ 36 And any argument that the City believed that liability for demolition costs is joint
and several is belied by its conduct in dismissing those parties who were likely
responsible for the property’s condition in the first place (Soludczyk, MERS and
JPMorgan Chase) and in failing to join the party who allowed the property to remain in
its unsafe and hazardous condition for two and one-half years following the demolition
order (Branton).
¶ 37 The City argues that it was “free to limit its litigation costs” by selecting Fannie
Mae as the party to pay the demolition costs, to the exclusion of other owners of the
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property. This argument makes no sense. If, as the City contends, it was required only to
file a motion in order to hold any owner liable for demolition costs, it would have
incurred no additional cost to allow Soludczyk, MERS, JPMorgan Chase to remain as
parties, add Branton after her acquisition of the property and include all parties in its
notice of motion seeking payment of the demolition costs.
¶ 38 The City raises a new argument on appeal in favor of the judgment against Fannie
Mae, citing provisions of the Municipal Code of Chicago, §§13-12-130, 13-12-145
(2010), which it contends authorize the entry of a money judgment without the additional
requirement of either foreclosure of the demolition lien or pursuit of a separate civil
action. Apart from the fact that these provisions were never cited by the City in the trial
court, Fannie Mae correctly notes that these sections (which simply mirror the Act’s
language regarding the City’s ability to recover the cost of the demolition from “the
owner or owners”) contain no enforcement provisions and, therefore, in order to enforce
its lien for demolition costs, the City would have to invoke the provisions of the Act. As
we have concluded that nothing in the Act authorizes a municipality to satisfy its lien for
demolition or repair costs without either foreclosing the lien or pursuing a separate civil
action, the City's new argument fails as well.
¶ 39 Fannie Mae also asks that we determine whether a municipality may impose
personal liability for demolition costs on individuals or entities that did not cause the
unsafe or hazardous building conditions and who owned the property at some time prior
to demolition, but who do not own the property either when it is demolished or when the
City perfects its demolition lien. We decline to resolve this issue as it is unnecessary to
the resolution of this appeal. If the City elects to pursue foreclosure or a separate civil
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action against Fannie Mae, Fannie Mae is entitled to contest both the legal and factual
basis for the City's claim against it on any grounds available.
¶ 40 Because the circuit court’s judgment against Fannie Mae was based on a
misapplication of the Act's enforcement procedures and because the Act does not
authorize a municipality to obtain a money judgment by filing a motion in the in rem
demolition case, we reverse the judgment of the circuit court of Cook County.
¶ 41 Reversed.
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