No. 1-14-2871 Fifth Division August 14, 2015

______________________________________________________________________________

IN THE APPELLATE COURT OF ILLINOIS FIRST DISTRICT ______________________________________________________________________________

) BANCO POPULAR NORTH AMERICA, ) Appeal from the Circuit Court ) of Cook County. Plaintiff-Appellee, ) ) No. 11 CH 3389 v. ) ) The Honorable MARK GIZYNSKI, ) Allen Walker, ) Judge Presiding. Defendant-Appellant ) ) (First National Insurance Company of America; ) West Bend Mutual Insurance Company; ) Unknown Owners and Non-Record Claimants, ) ) Defendants). ) ______________________________________________________________________________

JUSTICE GORDON delivered the judgment of the court, with opinion. Presiding Justice Palmer and Justice Reyes concurred in the judgment and opinion.

OPINION

¶1 In this mortgage foreclosure action, defendant, Mark Gizynski, appeals the orders of the

trial court (1) granting the motion of plaintiff, Banco Popular North America, for summary

judgment; and (2) confirming the sale of the subject property. For the following reasons, we

reverse and remand. No. 1-14-2871

¶2 BACKGROUND

¶3 On January 26, 2011, plaintiff Banco Popular North America filed a complaint to

foreclose on a commercial mortgage on property owned by defendant Mark Gizynski located

on West Belmont Avenue in Chicago.

¶4 On March 21, 2011, plaintiff filed a motion to appoint a receiver for the property.

Attached to the motion was an affidavit from William Bolsen, plaintiff's vice president,

which describes the property as four buildings. The first building has office space on the first

floor with a storage/warehouse area in the back, and the second and third floors were built as

offices with kitchen areas, but are currently occupied as residences. The second building has

a high one-story warehouse on the ground floor with a partial second floor built as an

office/studio. The third building has a high one-story warehouse on the ground floor. The

fourth building has office space on the first floor with a storage/warehouse area in the back,

and office space on the second floor with a storage area in the back.

¶5 On April 6, 2011, the trial court granted plaintiff's motion to appoint a receiver. The

order was entered on an electronic form, apparently by filling in blanks and selecting

options. 1 In the court's order, the court specifically found that "[t]he property does not fall

within the definition of 'Residential Real Estate' under the Illinois Mortgage Foreclosure Law

(735 ILCS 5/15-1219[] [(West 2010)])."

¶6 Section 15-1502.5 of the Illinois Mortgage Foreclosure Law (Foreclosure Law),

commonly known as the Homeowner Protection Act (the Act), describes protections afforded

1 The order is labeled "Form 20" and contains places for the trial court to "choose one" of a list of options. At least one paragraph was copied verbatim from plaintiff's uncontested motion to appoint a receiver. The five-page form contains a single line for the trial court to find that the property was not residential real estate under the Illinois Mortgage Foreclosure Law. 735 ILCS 5/15-1219 (West 2010). 2 No. 1-14-2871

to mortgagors of residential property (735 ILCS 5/15-1502.5 (West 2010)). The Act was

written to provide owners of single-family, owner-occupied properties an additional last-

minute escape valve to rescue their mortgages before the lender files a suit under the

Foreclosure Law. The grace period notice required by the Act directs the borrower to various

resources available for counseling and loan modification assistance. 735 ILCS 5/15-

1502.5(c) (West 2010). If a counseling agency approved by the United States Department of

Housing and Urban Development notifies the lender within the 30-day period that the

borrower is seeking approved counseling services, the lender cannot file suit until an

additional 30 days has passed. 735 ILCS 5/15-1502.5(c) (West 2010). A grace period notice

is required before any foreclosure action may be instituted. Section 15-1502.5(c) of the

Foreclosure Law provides that:

"No foreclosure action under Part 15 of Article XV of the Code of Civil

Procedure shall be instituted on a mortgage secured by residential real estate

before mailing the notice described in this subsection (c).

The notice required in this subsection (c) shall state the date on which the

notice was mailed, shall be headed in bold 14-point type 'GRACE PERIOD

NOTICE', and shall state the following in 14-point type: 'YOUR LOAN IS

MORE THAN 30 DAYS PAST DUE. YOU MAY BE EXPERIENCING

FINANCIAL DIFFICULTY. *** A LIST OF APPROVED COUNSELING

AGENCIES MAY BE OBTAINED FROM THE ILLINOIS DEPARTMENT OF

FINANCIAL AND PROFESSIONAL REGULATION.'

***

3 No. 1-14-2871

The sending of the notice required under this subsection (c) means depositing

or causing to be deposited into the United States mail an envelope with first-class

postage prepaid that contains the document to be delivered. The envelope shall be

addressed to the mortgagor at the common address of the residential real estate

securing the mortgage." 735 ILCS 5/15-1502.5(c) (West 2010).

¶7 Section 15-1219 of the Foreclosure Law defines residential real estate:

" 'Residential real estate' means any real estate, except a single tract of agricultural

real estate consisting of more than 40 acres, which is improved with a single

family residence or residential condominium units or a multiple dwelling structure

containing single family dwelling units for six or fewer families living

independently of each other, which residence, or at least one of which

condominium or dwelling units, is occupied as a principal residence either (i) if a

mortgagor is an individual, by that mortgagor, that mortgagor's spouse or that

mortgagor's descendants, or (ii) if a mortgagor is a trustee of a trust or an executor

or administrator of an estate, by a beneficiary of that trust or estate or by such

beneficiary's spouse or descendants or (iii) if a mortgagor is a corporation, by

persons owning collectively at least 50 percent of the shares of voting stock of

such corporation or by a spouse or descendants of such persons. The use of a

portion of residential real estate for non-residential purposes shall not affect the

characterization of such real estate as residential real estate." 735 ILCS 5/15-

1219 (West 2010).

4 No. 1-14-2871

¶8 On April 14, 2011, defendant filed a Chapter 7 bankruptcy case, and the foreclosure

proceedings were subject to an automatic stay. On October 17, 2011, the automatic stay was

lifted.

¶9 On October 27, 2011, defendant filed a motion to dismiss the foreclosure complaint

under section 2-615 of the Code of Civil Procedure (735 ILCS 5/2-615 (West 2010)).

Attached to the motion as an exhibit was an affidavit of defendant, averring that he had lived

at the subject property since 1986 as his residence.

¶ 10 On November 23, 2011, the court appointed receiver moved for approval of the receiver's

initial report. Attached to the motion was a copy of the initial report, which contained copies

of seven leases for units on the property. Five of those leases were on forms titled "Chicago

Apartment Lease," while the other two leases were on forms titled "Office Lease."

¶ 11 On December 13, 2011, defendant filed an amended 2-615 motion to dismiss the

complaint. The motion argued that the subject property met the definition of "Residential

Real Estate" pursuant to section 15-1219 of the Foreclosure Law (735 ILCS 5/15-1219 (West

2010)) because the property was a "multiple dwelling structure containing single family

dwelling units for six or fewer families." Defendant argued that, since plaintiff's complaint

was captioned as a "Commercial Foreclosure," the complaint was erroneously filed, and that

since plaintiff's motion to appoint a receiver described the property as commercial, the

motion was incorrectly pled and insufficient as a matter of law.

¶ 12 On April 6, 2012, plaintiff filed a response to defendant's motion to dismiss, arguing: (a)

that defendant's motion was legally deficient, (b) that even if part of the property was used as

residential that is not a basis to dismiss the claim, and (c) that the property is not residential

5 No. 1-14-2871

and that this issue was decided during the hearing on plaintiff's motion to appoint a receiver. 2

On April 20, 2012, defendant filed a reply. He argued that he was unable to attend the

hearing on plaintiff's motion to appoint a receiver because he was suffering from a

debilitating gastrointestinal illness. He attached an ambulance bill, dated April 15, 2011, to

his reply. He also attached a printout from the tax assessor's office, showing that a

homeowner exemption had been applied to the subject property. 3

¶ 13 On May 7, 2012, the motion was denied without prejudice.

¶ 14 On August 20, 2012, defendant filed a motion to vacate all orders and to dismiss

plaintiff's complaint for lack of subject matter jurisdiction. Defendant claimed that the

property met the section 15-1219 definition of residential property, and that, therefore, no

foreclosure action could be instituted without the mortgagee mailing the notice described in

section 15-1502.5 of the Foreclosure Law (735 ILCS 5/15-1502.5 (West 2010)). Section 15-

1502.5, the Homeowner Protection Act, provides a non-waivable notice requirement and 30-

day grace period that must be observed before a mortgagee institutes a foreclosure action

(735 ILCS 5/15-1502.5 (West 2010)). Defendant argues that since plaintiff did not comply

with the notice requirements of section 15-1502.5, the trial court lacked subject matter

jurisdiction. Attached to the motion was an affidavit from defendant, in which he averred

that he did not receive notice as required by section 15-1502.5, and that the subject property

was his primary residence. Also attached to the motion was an affidavit from Alderman

Ariel Reboyras, in which he averred that he personally knew defendant, and that defendant

occupied one of the units on the subject property as his primary residence, and that the

2 Defendant had notice of this hearing, but did not appear at it. 3 The printout does not clarify whether the homeowner exemption applied to the entire property, or just a portion of it. 6 No. 1-14-2871

property consists of five residential units and two office spaces. Also attached to the motion

were the affidavits of Zdieslaw Sieradz, Dominik & Justyna Podsiadlo, and Tomasz Plewa,

each of whom averred that they lived at the subject property as lessees and that the property

consists of five residential units and two office spaces.

¶ 15 On November 20, 2012, plaintiff filed a response to defendant's motion to vacate. In its

response, plaintiff argued that even if the property was residential, the trial court would still

have subject matter jurisdiction, and that the property was not residential, because: (1) it did

not meet the section 15-1219 definition of "Residential Real Estate"; (2) defendant was not

an occupant; and (3) the trial court's previous finding in the order appointing a receiver that

the property was not "Residential Real Estate" has become the law of the case.

¶ 16 On December 31, 2012, defendant filed a reply and attached affidavits from: (1) Arthur

Czaja, defendant's counsel, (2) Ted Lach, owner of a company located near the subject

property, and (3) Jim Morgan, another owner of a company located near the subject property.

Each affiant averred that defendant occupied one of the units on the subject property as his

primary residence. Also attached was an affidavit from Jessie Leszanczuk, who averred that

she owned Realty Zone, LLC, a company located at the subject property, and that the office

space occupied by Realty Zone, LLC, lacked a full bathroom and was not suitable for a

residence. Defendant had thus supplied a total of nine affidavits to support his claim that the

property contained five residential units and two offices and that he occupied one of the units

as his primary residence. 735 ILCS 5/15-1219 (West 2010) (residential real estate includes a

multi-dwelling structure with six or fewer dwelling units where one is occupied by the

mortgagor as his primary residence).

7 No. 1-14-2871

¶ 17 On February 22, 2013, the trial court denied defendant's motion to vacate and to dismiss

for lack of subject matter jurisdiction.

¶ 18 On March 21, 2013, defendant filed a motion for summary judgment. In the motion,

defendant claimed that summary judgment was proper because his property was "Residential

Real Estate" and that plaintiff had not provided a section 15-1502.5 grace period notice (735

ILCS 5/15-1502.5 (West 2010)). On April 26, 2013, plaintiff filed a response which

reiterated the arguments in its November 20, 2012, response to defendant's motion to vacate.

On May 8, 2013, defendant filed a reply.

¶ 19 On May 17, 2013, the trial court denied defendant's motion for summary judgment.

¶ 20 On June 5, 2013, plaintiff filed a motion for summary judgment. Plaintiff claimed that

defendant had provided no evidence to suggest (1) that plaintiff was not the owner and legal

holder of the mortgage, (2) that defendant has not defaulted on the loan, or (3) that defendant

had any other defense.

¶ 21 On September 23, 2013, defendant filed a response to plaintiff's motion for summary

judgment, in which defendant claimed that there was a material issue of fact as to whether

defendant occupied one of the units at the property as his primary residence and whether the

property was "Residential Real Estate." 735 ILCS 5/15-1219 (West 2010). On November 4,

2013, plaintiff filed a reply, claiming that defendant did not raise a genuine issue of a

material fact as to the nonresidential nature of the property, and even if the property was used

as residential, defendant had not raised a genuine issue of fact as to whether he had been

prejudiced by the lack of notice.

¶ 22 On November 18, 2013, the trial court granted plaintiff's motion for summary judgment

and, on January 17, 2014, the trial court entered a judgment of foreclosure and sale.

8 No. 1-14-2871

¶ 23 On January 24, 2014, plaintiff served a notice of sale, and the sale was scheduled for

February 21, 2014.

¶ 24 On February 14, 2014, defendant filed an emergency motion to stay the judicial sale, and

a motion to reconsider the order granting summary judgment. In the motion to reconsider,

defendant again claimed that one of the units at the property was being used as his residence.

¶ 25 On February 21, 2014, the scheduled day of the sale, the trial court granted defendant's

emergency motion to stay the judicial sale.

¶ 26 On March 21, 2014, plaintiff filed a response to defendant's motion to reconsider, in

which plaintiff claimed that defendant's motion merely restated prior arguments and

presented no new facts. On April 18, 2014, defendant filed a reply.

¶ 27 On April 28, 2014, the trial court denied defendant's motion to reconsider. In the same

order, the trial court ordered that the "sale date of April 30, 2014 shall stand."

¶ 28 On July 2, 2014, plaintiff filed a motion for entry of an order approving the report of sale.

Attached to the motion was a copy of an independent assessment of the property which,

among other things, described it as being zoned C1-2, or "neighborhood commercial."

¶ 29 On August 20, 2014, during the hearing on plaintiff's motion, defendant argued that

plaintiff had not given him a required written notice of the sale. Defendant claimed that the

lack of notice caused him prejudice because, by the April 28 hearing denying the motion to

reconsider when defendant received actual notice of the sale date, it was too late to file an

emergency motion to stay the sale, or to pressure a potential buyer into making a firm offer.

Notwithstanding defendant's argument, the trial court granted plaintiff's motion and entered

an order approving the sale.

9 No. 1-14-2871

¶ 30 Less than 30 days later, on September 17, 2014, defendant filed a notice of appeal, which

stated that the relief he sought from the reviewing court was the "denial of plaintiff's motion

for summary judgment and [the] denial of plaintiff's motion for order approving sale." This

appeal followed.

¶ 31 ANALYSIS

¶ 32 On this appeal, defendant claims, first, that the trial court erred in granting plaintiff's

motion for summary judgment because: (1) there was a genuine issue of material fact

concerning whether his property fell within the purview of the Homeowner Protection Act

(735 ILCS 5/15-1502.5 (West 2010)); and (2) assuming arguendo that the property was

being used as residential within the purview of the act, then defendant was entitled to a grace

period notice which plaintiff concedes it did not provide. Second, defendant claims that the

trial court abused its discretion by approving the April 30, 2014, judicial sale, because

plaintiff failed to provide defendant notice of the sale at least seven days prior to its

scheduled date.

¶ 33 In response, plaintiff argues, first, that defendant's failure to provide key parts of the

record requires dismissal of the appeal. Second, plaintiff argues that the trial court properly

entered summary judgment, because (1) the property is not residential under the act; (2)

plaintiff forfeited this issue; and (3) the lack of a grace period notice does not bar entry of

summary judgment for defendant. Third, plaintiff argues that defendant waived notice of the

judicial sale and failed to properly move to vacate the sale.

¶ 34 For the following reasons, we reverse the trial court's grant of summary judgment for

plaintiff and remand for further proceedings consistent with this opinion.

10 No. 1-14-2871

¶ 35 I. Summary Judgment

¶ 36 On this appeal, defendant claims, first, that the trial court erred in granting plaintiff's

motion for summary judgment because: (1) there was a genuine issue of material fact

concerning whether the subject property is residential under the Homeowner Protection Act;

and (2) assuming arguendo that the property was residential, then defendant was entitled to a

grace period notice which plaintiff concedes it did not provide. A trial court is permitted to

grant summary judgment only "if the pleadings, depositions, and admissions on file, together

with the affidavits, if any, show that there is no genuine issue as to any material fact and that

the moving party is entitled to a judgment as a matter of law." 735 ILCS 5/2-1005(c) (West

2010). The trial court must view these documents and exhibits in the light most favorable to

the nonmoving party. Home Insurance Co. v. Cincinnati Insurance Co.,

(2004). In appeals from summary judgment rulings, we conduct a de novo review. State

Farm Mutual Automobile Insurance Co. v. Progressive Northern Insurance Co.,

, ¶ 63. De novo consideration means we perform the same analysis that a

trial judge would perform. Khan v. BDO Seidman, LLP,

(2011).

¶ 37 "Summary judgment is a drastic measure and should only be granted if the movant's right

to judgment is clear and free from doubt." Outboard Marine Corp. v. Liberty Mutual

Insurance Co.,

(1992). However, "[m]ere speculation, conjecture, or

guess is insufficient to withstand summary judgment." Sorce v. Naperville Jeep Eagle, Inc.,

(1999). The party moving for summary judgment bears the intial

burden of proof. Nedzvekas v. Fung,

(2007). The movant may

meet his burden of proof either by affirmatively showing that some element of the case must

be resolved in his favor or by establishing " 'that there is an absence of evidence to support

11 No. 1-14-2871

the nonmoving party's case.' " Nedzvekas, 375 Ill. App. 3d at 624 (quoting Celotex Corp. v.

Catrett,

(1986)). " 'The purpose of summary judgment is not to try an

issue of fact but *** to determine whether a triable issue of fact exists.' " Schrager v. North

Community Bank,

(2002) (quoting Luu v. Kim,

(2001)). We may affirm on any basis appearing in the record, whether or not the

trial court relied on that basis or its reasoning was correct. Ray Dancer, Inc. v. DMC Corp.,

(1992).

¶ 38 To the extent that reviewing the grant of summary judgment requires us to determine how

the statute defines the term "residential real estate" (735 ILCS 5/15-1219 (West 2010)), that

is a question of statutory interpretation. Issues of statutory construction are questions of law,

and are also reviewed de novo. Wells Fargo Bank, N.A. v. McCluskey,

, ¶ 10.

As noted, de novo consideration means we perform the same analysis that a trial judge would

perform. Khan v. BDO Seidman, LLP,

(2011).

¶ 39 A. Sufficiency of the Record

¶ 40 As an initial matter, we consider plaintiff's argument that the record is not sufficient for

us to consider this appeal. Plaintiff claims that defendant failed to include key parts of the

record, including portions that would be critical to defendant's argument. While plaintiff

specifically claims that defendant failed to include the February 21, 2014, order staying the

judicial sale, that order is present in the record at page 2962. All of the record entries

plaintiff claims to be missing implicate the matter decided in the August 20, 2014, order

approving the report of sale, and that order–as well as a transcript of the hearing producing

it–are in the record. Thus the record is sufficiently complete for us to consider the merits of

the arguments raised on appeal. In addition, if plaintiff believed that the record on appeal

12 No. 1-14-2871

was insufficient, it could have moved to supplement that record pursuant to Illinois Supreme

Court Rule 329 (eff. Jan. 1, 2006).

¶ 41 B. Forfeiture

¶ 42 Also, as an initial matter, we do not find persuasive defendant's argument that plaintiff

forfeited the issue of the residential nature of the property. Plaintiff claims that, since

defendant failed to appeal the April 6, 2011, order which found that the property was not

residential and which appointed a receiver, he forfeited the issue, and the finding in that order

became the law of the case. An order appointing a receiver "may" be reviewed in an

interlocutory appeal pursuant to Illinois Supreme Court Rule 307 (eff. Feb. 26, 2010). In

support, plaintiff quotes Hwang v. Tyler,

(1993), which states that

"[g]enerally, a party's failure to timely appeal from an order which was appealable under

Rule 307(a) renders that order the law of the case" (citing Wolfe v. Illini Federal Saving &

Loan Ass'n,

(1987)).

¶ 43 However, in a subsequent case, our supreme court held that, since "[t]he optional nature

of Rule 307 is manifest from the language it employs," a party's "failure to file an appeal

from the interlocutory order did not result in a forfeiture." Salsitz v. Kreiss,

, 11-

12 (2001). The court explained: "Rule 307 plainly states that an appeal 'may' be taken to the

appellate court from an interlocutory order of the circuit court. Use of the word 'may' is

generally regarded as indicating that action is permissive rather than mandatory. [Citation.]

There is no basis for construing the term differently here." Salsitz,

.

Salsitz involved an appeal concerning the arbitrability of disputes, which is appealable under

Rule 307(a)(1) (Salsitz,

), while motions appointing receivers are appealable

under Rule 307(a)(5). Nonetheless, the "may" in Rule 307(a) applies to both subsections,

13 No. 1-14-2871

and thus Salsitz governs our case. Pursuant to Salsitz, defendant did not waive the issue by

opting not to file an interlocutory appeal.

¶ 44 Since we are not persuaded by plaintiff's preliminary arguments, we turn now to

defendant's substantive claims.

¶ 45 C. Residential Real Estate

¶ 46 Defendant first claims that the trial court erred by granting summary judgment for

plaintiff, because the issue of whether his property was residential under the Act presented, at

least, a genuine issue of material fact. Defendant argues that section 15-1219 necessitated a

finding that his property was "Residential Real Estate" (735 ILCS 5/15-1219 (West 2010)),

and that he was thus entitled to the protections described in section 15-1502.5 of the

Foreclosure Law (735 ILCS 5/15-1502.5 (West 2010)). Plaintiff responds that the property

was not residential under the Act.

¶ 47 The goal of a court when constructing a statute is to ascertain and give effect to the

legislature's intent. Stewart v. Industrial Comm'n,

(1987). The best

indication of legislative intent is the statute's language. Krohe v. City of Bloomington,

(2003). "In the absence of a statutory definition indicating a different

legislative intent, words are to be given their ordinary and commonly understood meanings.

[Citation.] 'The dictionary can be used as a resource to ascertain the ordinary and popular

meaning of words.' " Bailey v. Illinois Liquor Control Comm'n,

(2010) (quoting Cojeunaze Nursing Center v. Lumpkin,

(1994)).

However, we must assume that the legislature did not intend an absurd result. Stewart,

.

14 No. 1-14-2871

¶ 48 As noted, section 15-1502.5 is entitled "Homeowner protection" and it provides, in

relevant part, that: "if a mortgage secured by residential real estate becomes delinquent by

more than 30 days the mortgagee shall send via U.S. mail a notice advising the mortgagor

that he or she may wish to seek approved housing counseling." (Emphasis added.) 735

ILCS 5/15-1502.5(c) (West 2010). 4 Defendant argues that since his property was a multiple

dwelling structure used as residential by him and four others, he was entitled to the

protections this section provides.

¶ 49 Section 15-1219 of the Foreclosure Law defines "Residential Real Estate" as:

"[A]ny real estate *** which is improved with a single family residence or

residential condominium units or a multiple dwelling structure containing single

family dwelling units for six or fewer families living independently of each other,

which residence, or at least one of which condominium or dwelling units, is

occupied as a principal residence *** (i) if a mortgagor is an individual, by that

mortgagor, that mortgagor's spouse or that mortgagor's descendants ***. The use

of a portion of residential real estate for non-residential purposes shall not affect

the characterization of such real estate as residential." (Emphasis added.) 735

ILCS 5/15-1219 (West 2010).

Thus, the plain language of the statute defines "residential real estate" to include a structure

with six or fewer single family dwelling units, where one of the units is occupied by the

mortgagor as his principal residence.

¶ 50 The parties have not cited any authority, and we have discovered none in conducting our

own research, in which any court has interpreted the term "single family dwelling unit" for

4 This section is quoted more fully (infra ¶ 59) and its protections are discussed more fully in the following section of this opinion. 15 No. 1-14-2871

purposes of section 15-1219 of the Foreclosure Law. 5 However, in the context of other

statutes, this court has found that the term " '[d]welling unit' reflects the current or intended

future use of a space as a residence." (Emphasis added.) Skarin Custom Homes, Inc. v. Ross,

(2009) (finding that inhabited structure fit definition of dwelling

unit under Residential Real Property Disclosure Act); see also Grady v. Sikorski,

(2004) (finding that uninhabitable structure was not a residential dwelling

unit under Residential Real Property Disclosure Act); People v. Silva,

(1993) (holding that when the court "could have inferred that complainant intended

either to live in the unoccupied space or to rent the space to a tenant," the unoccupied space

was a dwelling under residential burglary statute (superseded by statute (720 ILCS 5/2-6(b)

(West 1992)))). In the absence of a definition within the statute itself, we apply the "current

or intended future use" standard in determining if a unit is a dwelling unit. In other words, the

court must determine how the property is being used.

¶ 51 Defendant's property has a total of seven units. At the time of the foreclosure, both the

current and intended future use of five of those units was as residences. Those units have

facilities for sanitation and food preparation and are being rented to single families as

residences or "single family dwelling units." 735 ILCS 5/15-1219 (West 2010). In fact, the

leases to these units are titled "Chicago Apartment Lease." Two of the seven units do not

have such facilities, and were being rented to businesses as offices. The leases to those units

5 Section 15-1202.5 of the Foreclosure Law defines a "dwelling unit" as "a room or suite of rooms providing complete, independent living facilities for at least one person, including permanent provisions for sanitation, cooking, eating, sleeping, and other activities routinely associated with daily life." 735 ILCS 5/15-1202.5 (West 2010). However, this definition applies only to certain sections of the Foreclosure Law, and sections 15-1219 and 15-1502.5 are not among them. 735 ILCS 5/15-1202.5 (West 2010). Assuming, arguendo, that this definition did apply, the units in the subject property currently used as residences meet the requirements of the definition, and those units not currently in use as residences do not. 16 No. 1-14-2871

are titled "Office Lease." Defendant's primary residence was in one of the five residential

units. The parties do not contest these facts, and affidavits attached to defendant's motions,

as well as the numerous receiver reports in the record, support these facts. Accordingly,

since the property was used as a residence, defendant was entitled to the protections provided

to mortgagors of residential real estate by the Foreclosure Law. 735 ILCS 5/15-1502.5(c)

(West 2010).

¶ 52 Plaintiff claims that the presence of two nonresidential units prevents the subject property

from being residential real estate. Plaintiff argues, first, that the property is not a "multiple

dwelling structure" because it also contains two offices; and second, that the "non-

residential" sentence of the statute does not apply because the property must first be found to

be a "multiple dwelling structure" before this sentence applies. We do not find plaintiff's

arguments to be persuasive.

¶ 53 Plaintiff argues, first, that because of the two offices, the property does not qualify as a

"multiple dwelling structure containing single family dwelling units for six or fewer

families." 735 ILCS 5/15-1219 (West 2010). In other words, plaintiff reads the statute as

requiring a "multiple dwelling structure having only single family dwelling units for six or

fewer families." However, the dictionary does not define the word "containing" as meaning

"having only." Merriam-Webster's Third New International Dictionary of the English

Language defines "contain" as "to have within" or "to consist of wholly or in part."

Webster's Third New International Dictionary 491 (1993). Not only does this definition fail

to suggest that "contain" implies an exhaustive list, it explicitly states that an object which

consists "in part" of something contains it. Defendant's property consists in part of "single

17 No. 1-14-2871

family dwelling units for six or fewer families living independently." 735 ILCS 5/15-1219

(West 2010).

¶ 54 Plaintiff argues further that if we fail to adopt its interpretation then "even a high-rise

tower with hundreds of commercial units would be deemed 'residential' if one owner lived in

a single unit on the property." Plaintiff's understanding of the concept is incorrect. The court

does not look at the total project of a multiple-dwelling structure to determine the character

of the property for the purposes of determining whether a statutory notice is required. The

court looks at the multiple-dwelling structure and first determines whether it contains single-

family dwelling units for six or fewer families living independently of each other. The court

then determines how only the units are being used, and if one unit is being used as a single-

family dwelling unit, the occupant of that unit is entitled to the protections provided to

mortgagors of residential real estate by the Foreclosure Law. 735 ILCS 5/15-1502.5 (West

2010). In addition, the statute specifically provides that "[t]he use of a portion of residential

real estate for non-residential purposes shall not affect the characterization of such real estate

as residential." 735 ILCS 5/15-1219 (West 2010).

¶ 55 Plaintiff also argues that the property must first be characterized as a multiple dwelling

structure before the nonresidential sentence applies. Initially, we note that the property has

five units being used as dwelling units, and can be characterized as a multiple dwelling

structure on that ground. Furthermore, the sentence about nonresidential real estate states

that it is to be used in determining whether a property should be "characteriz[ed]" as

residential real estate. 735 ILCS 5/15-1219 (West 2010). Similarly, the phrase "multiple

dwelling structure" is also to be used in determining whether a property should be

characterized as residential property. 735 ILCS 5/15-1219 (West 2010). Thus, both

18 No. 1-14-2871

sentences are part of the same determination. There is no indication that one sentence trumps

the other, or that one sentence must be considered first, as plaintiff argues. Both lines are to

be utilized in the same determination. Thus, we do not find persuasive plaintiff's arguments

that one sentence trumps the other.

¶ 56 Plaintiff finally argues that the property cannot be characterized as a multiple dwelling

structure because it has "two entirely separate commercial spaces." What plaintiff appears to

be arguing is that we should read the statute as permitting, not the commercial "use of a

portion of residential real estate," but rather the commercial "use of a portion of a residential

unit." However, the statute was not written that way.

¶ 57 Even if the plain meaning of the statute's words are unclear, the purpose of the statute

necessitates this result. "[I]f the meaning of an enactment is unclear from the statutory

language itself, the court may look beyond the language employed and consider the purpose

behind the law *** as well as other sources of legislative history." Home Star Bank &

Financial Services v. Emergency Care & Health Organization, Ltd.,

.

A statute's title can be used to provide guidance in resolving statutory ambiguities. Home

Star,

, ¶ 40. Section 15-1502.5 of the Foreclosure Law, which uses the

definition of "Residential Real Estate" in section 15-1219 and which defendant claims is the

statute violated by plaintiff, is entitled "Homeowner protection." 735 ILCS 5/15-1502.5

(West 2010). We see no reason to interpret the definition of a term used in a "Homeowner

protection" act in a way which would limit the protections homeowners have against banks

foreclosing on their mortgages. While this is the interpretation that plaintiff urges, it is not

one which furthers the purpose behind the law.

19 No. 1-14-2871

¶

-Day Grace Period

¶ 59 Defendant next claims that, since his property was residential real estate, he was entitled

to the following protections described in section 1502.5 of the Foreclosure Law:

"[I]f a mortgage secured by residential real estate becomes delinquent by more

than 30 days the mortgagee shall send via U.S. mail a notice advising the

mortgagor that he or she may wish to seek approved housing counseling.

Notwithstanding anything to the contrary in this Section, nothing shall preclude

the mortgagor and mortgagee from communicating with each other during the

initial 30 days of delinquency or reaching agreement on a sustainable loan

workout plan, or both.

No foreclosure action under Part 15 of Article XV of the Code of Civil

Procedure shall be instituted on a mortgage secured by residential real estate

before mailing the notice described in this subsection (c).

***

(d) Until 30 days after mailing the notice provided for under subsection (c) of

this Section, no legal action shall be instituted under Part 15 of Article XV of the

Code of Civil Procedure.

***

(h) There shall be no waiver of any provision of this Section." (Emphasis

added.) 735 ILCS 5/15-1502.5 (West 2010).

¶ 60 Plaintiff does not contest that the notice, required by section 1502.5(c) quoted above, was

never given. However, plaintiff argues that this notice was unnecessary. Plaintiff cites

Aurora Loan Services, LLC v. Pajor,

, ¶ 27, in support of its

20 No. 1-14-2871

argument that, even when the process utilized "did not occur exactly as the statute dictates,

the law would not require a futile act to redo the process." (Internal quotation marks

omitted.) However, Pajor is distinguishable from the case on appeal. In Pajor, notice of the

grace period was given more than 30 days before the filing of the foreclosure action, but the

notice had been given before the plaintiff had officially become the mortgagee. Pajor,

, ¶ 26. Thus, the Pajor court held that where "the mortgagor has alleged

only a technical defect in the notice," dismissal of the foreclosure complaint would be futile.

Pajor,

, ¶ 27. By contrast, in the present case, plaintiff concedes

that the required notice was never given.

¶ 61 Plaintiff argues that, since defendant was on notice after the foreclosure action was filed,

and since he had "ample time to communicate and negotiate with the bank," there was no

need for the notice required by section 15-1502.5 of the Foreclosure Law. However, the

statute expressly states "before" (735 ILCS 5/15-1502.5(c) (West 2010)), and this court has

held that the purpose of section 15-1502.5 is to encourage workouts for mortgages in default

before a foreclosure action is brought. See Bank of America, N.A. v. Adeyiga,

. In Adeyiga, we explained:

"The Homeowner Protection Act[6] was written to provide owners of *** owner-

occupied properties an additional last-minute escape valve to rescue their

mortgages before the lender files a suit under the Foreclosure Law. The grace

6 The Homeowner Protection Act requires a mortgagee to give notice to delinquent mortgagors 30 days before instituting a foreclosure action, where the mortgage is secured by residential property. The Act describes in detail the information that needs to be included in the notice, including information on where to find approved housing counseling agencies and how to contact the mortgagee. The Act does not distinguish between single-family residences and multiple-dwelling structures; its protections apply to any "mortgage secured by residential real estate," so long as the mortgagor has not filed for bankruptcy relief. 735 ILCS 5/15-1502.5(c) (West 2010). 21 No. 1-14-2871

period notice required by the Act directs the borrower to various resources

available for counseling and loan modification assistance. 735 ILCS 5/15-

1502.5(c) (West 2010). If a Housing and Urban Development (HUD)-approved

counseling agency notifies the lender within the 30-day period that the borrower

is seeking approved counseling services, the lender cannot file suit until an

additional 30 days has passed. 735 ILCS 5/15-1502.5(e) (West 2010)."

(Emphasis added.) Adeyiga,

.

Although Adeyiga involved a single-family dwelling and our case involves a multiple-

dwelling structure, the protections provided by section 15-1502.5 are the same when the

multiple-dwelling structure has six or fewer units being used as residential units and when

the owner uses one of the units as his primary residence. In Adeyiga, where the defendant

never received a grace-period notice, this court held that the defendant's right to a grace-

period notice was not waived. Adeyiga,

, ¶ 107. Section 15-

1502.5(h) of the Foreclosure Law specifically states that the grace-period notice cannot be

waived. 735 ILCS 5/15-1502.5(h) (West 2010).

¶ 62 Plaintiff argues that defendant did not show ample prejudice. However, even though we

cannot assume that had defendant received such notice, he necessarily would have been able

to create a workout plan, "it is the intent of the legislature for each mortgagor to have this

opportunity prior to any foreclosure action." (Emphasis added.) Adeyiga,

. This opportunity was never given to defendant. Plaintiff has not cited any

case law that says that a defendant must show prejudice if no statutory notice is given under

section 15-1502.5 of the Foreclosure Law.

22 No. 1-14-2871

¶ 63 Thus, we do not find persuasive plaintiff's argument that the statutorily-required written

notice was not necessary. Since defendant claims that his property was used as residential as

his primary residence and the required notice was not given, there is a genuine issue of

material fact that must be decided and thus, the trial court erred by granting summary

judgment in favor of plaintiff and we must reverse.

¶ 64 II. Notice of the April 30, 2014, Judicial Sale

¶ 65 Defendant also claims that the trial court erred in approving the April 30, 2014, judicial

sale, because he was never given notice of the postponed sale by plaintiff. However, since

we are reversing on the first issue, we need not consider the merits of the second.

¶ 66 CONCLUSION

¶ 67 In sum, we reverse the trial court's grant of summary judgment and remand for further

proceedings consistent with this opinion.

¶ 68 Reversed and remanded.

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