The Association held the hearing at a meeting on August 24, 2017, even though the Association knew that the Unit Owner would be out of town. The Unit Owner filed a motion to dismiss count 2 because the cause of action was not permitted in a forcible entry and detainer action. The trial court granted the dismissal of count 2 without prejudice. The trial court found for the Unit Owner and the Association timely appealed.
August 24 Order
The Appellate Court found that the August 24 hearing did not provide the Unit Owner an opportunity for a hearing. The Court noted that not only was the hearing held at a time that the Unit Owner was on vacation, the other times presented were at times that the Association was working. The Association tries to claim on appeal that the Unit Owner refused the hearing by not selecting the times offered; however, the Court found that the Unit Owner was in regular communication with the Board and communicated that the times presented would not work because of her work schedule and vacation. Moreover, the Court was unpersuaded by the argument that due process is not denied if a party fails to avail themselves. The court found that the evidence clearly showed the Unit Owner wanted to attend, but the Association failed to engage in a discussion to schedule the hearing so that the Unit Owner could attend. The Association makes an additional argument that it offered the Unit Owner an opportunity for a hearing on November 20 as a sort of appeal. The Court stated that an appeal of an adverse decision does not cure the initial issue of being deprived of notice and an opportunity to be heard. For these reasons, the Court affirmed the trial courts finding that the Unit Owner was deprived of notice and an opportunity to be heard. The Court did not address the issue with the Association not following the procedures under the governing documents.
January 31 Order
The Association also claims that the trial court could have relied on its January 31 order, which were separate fines imposed due to separate violations of the governing documents. The Court again affirmed the finding of the trial court, finding that the Association failed to provide 30 days’ notice as is required by section 9-104.1(a) of the Forcible Entry and Detainer Act. The Court found that if the Association wanted to evict for the fines imposed on January 31, they were required to issue a 30 days’ notice in accordance with the Forcible Entry and Detainer Act. They were not able to rely on the 30 days’ notice issued for different fines imposed on A ugust 24.
Newport Condo. Ass'n v. Blackball Corp. 401(K) PSP (First District – Second Division, May 25, 2021)
Newport Condo alleged that in October 2014, Blackhall was assigned the mortgage on a condominium unit that was owned by Shana Pearson. The following day, Pearson quit claimed her interest to Blackhall and that Pearson owned assessments on the unit at the time of the transfer. Blackhall granted a mortgage on the property to Wu. In early 2017, Blackhall transferred the property to Wu pursuant to a deed in lieu of foreclosure. Wu filed an answer and counterclaim to the first amended complaint and sought a determination that Newport Condo's lien for unpaid assessments had been extinguished. Wu
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