Illinois Official Reports 

Appellate Court

Wells Fargo Bank, N.A. v. McCondichie, 2017 IL App (1st) 153576

Appellate Court 

Caption

WELLS FARGO BANK, N.A., acting as agent for HUD (The

Owner), Plaintiff-Appellee, v. VOLNEAT VANETTE 

McCONDICHIE, a/k/a Volnet McCondichie, Defendant-Appellant

(Harvie Bonner and Unknown Occupants, Defendants).

District & No. First District, Fifth Division

Docket No. 1-15-3576

Filed

Rehearing denied

March 31, 2017

May 3, 2017

Decision Under 

Review

Appeal from the Circuit Court of Cook County, No. 15-M1-712641; 

the Hon. Diana Rosario, Judge, presiding.

Judgment Reversed; cause remanded.

Counsel on

Appeal

Robert Habib, of Law Offices of Robert Habib, of Chicago, for 

appellant.

Michael N. Varak, of Pierce & Associates, PC, of Chicago, for 

appellee.

Panel JUSTICE REYES delivered the judgment of the court, with opinion.

Presiding Justice Gordon and Justice Lampkin concurred in the 

judgment and opinion.
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 OPINION 

¶ 1 Defendant Volneat McCondichie appeals from the circuit court’s order granting summary 

judgment in favor of plaintiff Wells Fargo Bank, N.A. on its claim for forcible entry and 

detainer. On appeal, defendant maintains that summary judgment should not have been 

granted where she was entitled to a relocation assistance fee pursuant to section 5-14-050 of 

the Protecting Tenants in Foreclosed Rental Property Ordinance (Ordinance) (Chicago 

Municipal Code § 5-14-050 (added June 5, 2013)). For the reasons that follow, we reverse and 

remand for further proceedings. 

¶ 2 BACKGROUND 

¶ 3 On July 24, 2014, Plaintiff became the owner of a property located at 7223 South Union 

Avenue, 2nd Floor, Chicago, Illinois (the property), pursuant to an order approving the judicial 

sale in a separate mortgage foreclosure cause of action. Almost a year later, on July 2, 2015, 

plaintiff filed a complaint in forcible entry and detainer for possession of the property, alleging 

that possession was being unlawfully withheld by defendants McCondichie, Harvie Bonner, 

and unknown occupants. Defendant filed an answer on September 1, 2015, but did not deny the 

allegations set forth in the complaint. Instead, defendant alleged that she resided in the 

property pursuant to a valid lease, which was executed on September 1, 2014, and that she was 

entitled to a relocation assistance fee pursuant to section 5-14-050 of the Ordinance because 

she is a “qualified tenant.” Defendant further alleged that plaintiff’s noncompliance with the 

Ordinance prevented it from obtaining a judgment in this matter. In her prayer for relief, 

defendant requested that a judgment be entered in her favor and that she be awarded costs. 

Defendant also attached the September 2014 lease as an exhibit to her answer. 

¶ 4 On November 10, 2015, plaintiff filed a motion for summary judgment, arguing it had a 

superior right to possession pursuant to the order approving the judicial sale and the underlying 

deed. In response, defendant asserted that she had resided in the property since January 6, 

2012, and was a “qualified tenant” under the Ordinance because she was a tenant in a 

foreclosure rental property pursuant to a “bona fide rental agreement” prior to plaintiff 

becoming the owner. Accordingly, she maintained that she was entitled to the $10,600 

relocation fee as provided in the Ordinance and that plaintiff is not entitled to possession of the 

property until it abided by said Ordinance. Attached to defendant’s response was copy of the 

executed January 6, 2012, lease. The lease indicated a termination date of January 6, 2013, but 

it contained further provisions that would establish a month-to-month tenancy after the 

expiration of the lease. Defendant also averred in an affidavit that she “moved into” the 

property on or about January 6, 2012, pursuant to the lease, which required her to pay $950 per 

month, and “continue[d] to reside in [the property] pursuant to a lease dated 9/1/14.” 

¶ 5 In reply, plaintiff argued that the Ordinance did not apply to defendant because the former 

owner’s property rights were foreclosed on July 24, 2014, when the order approving the 

judicial sale of the property was entered in plaintiff’s favor. Thus, when defendant entered into 

a lease with the former property owner in September 2014, that lease was not a “bona fide 

lease” as required by the Ordinance. Plaintiff concluded that defendant failed to provide any 

basis for the claim that plaintiff is liable for the relocation fee pursuant to the Ordinance and 

that there was no genuine issue of material fact that precluded the entry of summary judgment. 
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¶ 6 The circuit court granted plaintiff’s motion and entered an order of possession in favor of 

plaintiff on December 11, 2015. This appeal followed. 

¶ 7 ANALYSIS 

¶ 8 On appeal, defendant contends that the circuit court erred in entering summary judgment in 

favor of plaintiff where she was a qualified tenant pursuant to a bona fide rental agreement 

under the Ordinance. According to defendant, pursuant to her original lease, she was a 

month-to-month tenant at the time plaintiff obtained possession of the property and, thus, is 

entitled to the $10,600 relocation assistance fee. 

¶ 9 In response, plaintiff asserts that the Ordinance cannot form the basis for an affirmative 

defense to a forcible entry and detainer action. Plaintiff further argues that even if it is a viable 

defense, defendant (1) did not raise her argument regarding the month-to-month tenancy 

before the circuit court, and (2) failed to present any evidence that she had a bona fide rental 

agreement where there was never any acceptance of rent to create such a month-to-month 

tenancy. 

¶ 10 Summary judgment is appropriate 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 2014). The purpose of summary judgment is not to decide issues of fact but 

rather to determine whether any genuine issue of fact exists. Gilbert v. Sycamore Municipal 

Hospital, 156 Ill. 2d 511, 517 (1993). The circuit court must view the documents and exhibits 

in a light most favorable to the nonmoving party. Banco Popular North America v. Gizynski,

2015 IL App (1st) 142871, ¶ 36. Summary judgment is a drastic measure and may be granted 

only if the movant’s right to judgment is clear and free from doubt. Outboard Marine Corp. v. 

Liberty Mutual Insurance Co., 154 Ill. 2d 90, 102 (1992). The purpose of summary judgment is 

not to try an issue of fact but rather to determine whether a triable issue of fact exists. Robidoux 

v. Oliphant, 201 Ill. 2d 324, 335 (2002). If the moving party supplies facts, which, if not 

contradicted, would entitle the party to judgment as a matter of law, the nonmoving party 

cannot rely on his pleadings alone to create a genuine issue of material fact. Fields v. 

Schaumburg Firefighters’ Pension Board, 383 Ill. App. 3d 209, 224 (2008). Instead, 

“[a]lthough a plaintiff is not required to prove his case at the summary judgment stage, in order 

to survive a motion for summary judgment, the nonmoving party must present a factual basis 

that would arguably entitle the party to a judgment.” Robidoux, 201 Ill. 2d at 335. A reviewing 

court will not reverse an order granting summary judgment unless it finds that a material 

question of fact is present and the moving party is not entitled to judgment as a matter of law. 

Chmielewski v. Kahlfeldt, 237 Ill. App. 3d 129, 137 (1992). We review the circuit court’s grant 

of summary judgment de novo. Palm v. 2800 Lake Shore Drive Condominium Ass’n, 2013 IL 

110505, ¶ 28. Under de novo review, we perform the same analysis that a trial court would 

perform. Khan v. BDO Seidman, LLP, 408 Ill. App. 3d 564, 578 (2011). 

¶ 11 Our review of the record reveals that plaintiff’s noncompliance with the Ordinance is a 

viable defense to the forcible entry and detainer action. Section 9-106 of the Forcible Entry and 

Detainer Act states that “[t]he defendant may under a general denial of the allegations of the 

complaint offer in evidence any matter in defense of the action.” 735 ILCS 5/9-106 (West 

2014). Section 9-106 continues, “no matters not germane to the distinctive purpose of the 

proceeding shall be introduced by joinder, counterclaim or otherwise.” Id. Thus, while forcible 
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entry and detainer proceedings determine which party has a right to possession of and not title 

to real estate (Wood v. Wood, 284 Ill. App. 3d 718, 722 (1996)), an issue germane to the 

proceedings may be introduced by the defendant. Our supreme court has defined “germane” 

within this context to mean “closely allied” or “closely related; closely connected; relevant; 

pertinent; appropriate.” (Internal quotation marks omitted.) Rosewood Corp. v. Fisher, 46 Ill. 

2d 249, 256 (1970). We find the Ordinance at issue here is “closely allied” with the Forcible 

Entry and Detainer Act, particularly where the Ordinance provides that the qualified tenant 

must bring a claim for relocation assistance prior to the entry of a judgment of possession of 

the rental unit. See Chicago Municipal Code § 5-14-050(e)(2) (added June 5, 2013). 

¶ 12 Plaintiff disagrees and argues that its obligation to pay a relocation assistance fee is 

triggered by a qualified tenant vacating the property pursuant to section 5-14-050(b) of the 

Ordinance. Thus, plaintiff maintains, to the extent that defendant here did not allege she had 

already vacated the property, the question of whether it is obligated to pay the relocation 

assistance fee cannot form the basis of an affirmative defense. 

¶ 13 Plaintiff’s argument is premised on the following language of the Ordinance: “The owner 

shall pay the relocation fee to the qualified tenant no later than seven days after the day of 

complete vacation of the rental unit by the qualified tenant.” Chicago Municipal Code 

§ 5-14-050(b) (added June 5, 2013). We decline to consider a defendant’s performance of this 

provision to be a condition precedent for a defendant to seek relief under the Ordinance. A 

fundamental principle of statutory construction is to view all provisions of a statutory 

enactment as a whole. Accordingly, words and phrases should not be construed in isolation but 

must be interpreted in light of its other relevant provisions. Michigan Avenue National Bank v. 

County of Cook, 191 Ill. 2d 493, 504 (2000); see Pooh-Bah Enterprises, Inc. v. County of 

Cook, 232 Ill. 2d 463, 492 (2009) (the same rules of construction apply to interpreting 

municipal ordinances as apply to construing statutes). 

¶ 14 The Ordinance, when read as a whole, provides that: “the owner of a foreclosed rental 

property shall pay a one-time relocation assistance fee of $10,600 to a qualified tenant unless 

the owner offers such tenant the option to renew or extend the tenant’s current rental 

agreement.” Chicago Municipal Code § 5-14-050(a)(1) (added June 5, 2013). The Ordinance 

further provides that an owner, i.e. plaintiff, “shall not be liable to pay the relocation fee to any 

qualified tenant *** against whom the owner has obtained a judgment for possession of the 

rental unit.” Chicago Municipal Code § 5-14-050(e)(2) (added June 5, 2013). Thus, it follows 

that a tenant’s claim to a relocation fee from an owner, if not previously asserted in a separate 

legal action, must be raised during the eviction proceedings. See Chicago Municipal Code 

§ 5-14-070(a) (added June 5, 2013) (allowing a tenant to bring a private cause of action under 

the Ordinance). In this instance, defendant raised this issue in her answer. It would be 

paradoxical, indeed, to hold that defendant’s claim is not a defense germane to the issue of 

possession where, at this point in time, if defendant was required to present her claim in a 

separate legal action, she would be denied recovery based on the language of the Ordinance. 

This is particularly true where the purpose of the Ordinance is to “protect and promote the 

health, safety and welfare of its residents and mitigate the damaging effects on our 

communities of foreclosures, which individually are catastrophic for the families and tenants 

who lose their homes.” Chicago Municipal Code § 5-14-010 (added June 5, 2013). Indeed, 

upon examining the Ordinance as a whole, we construe this provision of the Ordinance to 
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merely provide a time frame for when an owner must relinquish payment. See Chicago 

Municipal Code § 5-14-050(b) (added June 5, 2013). 

¶ 15 Having determined that defendant properly raised this defense before the circuit court, we 

turn to consider the merits of the appeal. The question before this court is whether there was a 

genuine issue of material fact as to whether defendant was a qualified tenant pursuant to a 

bona fide rental agreement under the Ordinance, thus preventing entry of judgment as a matter 

of law. 

¶ 16 Plaintiff contends that defendant is not a qualified tenant because she submitted “two 

different leases that were not bona fide” to the circuit court. Plaintiff maintains that the 

Ordinance fails to include a definition of “bona fide” and turns instead to the Illinois Mortgage 

Foreclosure Law for the definition of “bona fide lease.” Under that definition, plaintiff argues, 

a lease is bona fide only if it is entered prior to the date the trial court entered the order 

confirming the judicial sale. See 735 ILCS 5/15-1224(d) (West 2014). Plaintiff concludes that 

because the lease at issue here was entered after the order confirming the judicial sale, the lease 

is not bona fide. 

¶ 17 The relevant portion of the Ordinance at issue provides: 

“[T]he owner of a foreclosed rental property shall pay a one-time relocation assistance 

fee of $10,600 to a qualified tenant unless the owner offers such tenant the option to 

renew or extend the tenant’s current rental agreement with an annual rental rate ***.”1

Chicago Municipal Code § 5-14-050(a)(1) (added June 5, 2013). 

A “qualified tenant” means a person who:

“(1) is a tenant in a foreclosed rental property on the day that a person becomes the 

owner of that property; and (2) has a bona fide rental agreement to occupy the rental 

unit as the tenant’s principal residence.” Chicago Municipal Code § 5-14-020 (added 

June 5, 2013). 

The Ordinance further sets forth that the term “rental agreement” has the meaning ascribed to it 

in section 5-12-030 of the Chicago Municipal Code: 

“ ‘Rental agreement’ means all written or oral agreements embodying the terms and 

conditions concerning the use and occupancy of a dwelling unit by a tenant.” Chicago 

Municipal Code § 5-12-030 (amended May 12, 2010). 

For the purposes of the definition of “rental agreement” the Ordinance states:

“(1) a rental agreement shall be considered bona fide only if:

 (i) the mortgagor, or any child, spouse, or parent of the mortgagor residing in 

the same dwelling unit with the mortgagor, is not the tenant; 

 (ii) the rental agreement was a result of an arms-length transaction; and 

 (iii) the rental agreement requires the receipt of rent that is not substantially less 

than fair market rent for the property, or the rental unit’s rent is reduced or 

subsidized due to a government subsidy.” Chicago Municipal Code § 5-14-020 

(added June 5, 2013). 2

 

1

It is undisputed that plaintiff did not offer defendant the option to renew or extend her current 

rental agreement. 

2We observe that several factual issues are not contested by the parties in regards to whether 

defendant is a “qualified tenant” with a “bona fide rental agreement.” Specifically, it is undisputed that 
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¶ 18 We find the Ordinance, and the definitions it expressly references, govern our 

interpretation of a “qualified tenant” and “bona fide rental agreement” and therefore decline to 

adopt plaintiff’s suggestion that we apply the Illinois Mortgage Foreclosure Law in this 

instance. See Solich v. George & Anna Portes Cancer Prevention Center of Chicago, Inc., 158 

Ill. 2d 76, 81 (1994) (because the text of the statute itself is considered the surest reflection of 

that intent, where statutory language is clear, courts must give it effect as written without 

recourse to outside sources of interpretation). Moreover, defendant produced two leases for the 

property, one that was dated after the order approving the judicial sale was entered and the 

other dated when the mortgagor was in possession of the property. Thus, the issue in this case 

is whether the initial January 2012 lease, and not the September 2014 lease, was a bona fide

rental agreement. 

¶ 19 To that end, plaintiff asserts that defendant is not a qualified tenant pursuant to a bona fide

rental agreement because she (1) failed to raise the issue that she was a month-to-month tenant 

before the circuit court and (2) failed to demonstrate that there was any acceptance of rent to 

create a month-to-month tenancy. 

¶ 20 We disagree that defendant failed to raise this issue. A copy of defendant’s original lease 

was provided to the circuit court. The original lease included a provision that a 

month-to-month tenancy would be created if defendant remained in the property after the lease 

expired. Defendant alleged she resided in the property from January 6, 2012, to the present. 

Accordingly, whether defendant was a qualified tenant pursuant to a month-to-month tenancy 

was before the circuit court. 

¶ 21 Our review of the record reveals, however, that a genuine issue of material fact does exist 

as to whether defendant actually had a valid month-to-month tenancy under the provisions of 

the original lease. The original lease provided in pertinent part: 

“Upon termination date [January 6, 2013], Tenant shall be required to vacate the 

Premises unless one of the following circumstances occur: 

 (i) Landlord and Tenant formally extend this Illinois Lease Agreement in writing or 

create and execute a new, written, and signed Illinois Lease Agreement; or 

 (ii) Landlord willingly accepts new Rent from Tenant, which does not constitute 

past due Rent.

 In the event that Landlord accepts new rent from Tenant after the termination date, 

a month-to-month tenancy shall be created. If at any time either party desires to 

terminate the month-to-month tenancy, such party may do so by providing to the other 

party written notice of intention to terminate at least 30 days prior to the desired date of 

termination of the month-to-month tenancy. 

 

(1) defendant was a tenant in a foreclosed rental property on the day plaintiff became the owner; (2) the 

property was defendant’s primary residence; (3) a rental agreement existed between defendant and the 

original owner in 2012; (4) defendant was not the mortgagor or the child, spouse, or parent of the 

mortgagor; (5) the rental agreement was the result of an arms-length transaction; and (6) the rent is not 

substantially less than fair market value or reduced or subsidized due to a government subsidy. See 

Chicago Municipal Code § 5-14-020 (added June 5, 2013); § 5-12-030 (amended May 12, 2010). Thus, 

the only factual question that the parties dispute on appeal is whether defendant is a “qualified tenant” 

under the Ordinance. 
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 *** Rent shall continue at the rate specified in this Illinois Lease Agreement, or as 

allowed by law. All other terms and conditions as outlined in this Illinois Lease 

Agreement shall remain in full force and effect.”

¶ 22 Instead of filing a counteraffidavit, plaintiff merely argues that defendant must establish 

that she paid rent during her month-to-month tenancy so as to survive summary judgment. A 

nonmoving party, however, need not prove its case in order to withstand summary judgment; it 

must merely present some factual basis that would entitle it to judgment. See Selvy v. Beigel, 

283 Ill. App. 3d 532, 538 (1996). In accordance with this proposition, if any facts upon which 

reasonable persons may disagree are identified (including any inferences that may be fairly 

drawn from those facts leading to different conclusions), the circuit court must deny the motion 

and direct the resolution of those facts and inferences to be made at trial. Winnetka Bank v. 

Mandas, 202 Ill. App. 3d 373, 387 (1990). 

¶ 23 Here, defendant presented some factual basis that would entitle her to judgment. In support 

of her claim, defendant attached to her response to the motion for summary judgment an 

affidavit in which she averred that she had resided in the property since January 6, 2012, 

pursuant to a rental agreement that required her to pay $950 each month to the property owner. 

Defendant further averred that she continued to reside in the property and attached a copy of 

the original lease. Viewing the pleadings, admissions, and affidavits on file in the light most 

favorable to defendant, as we must, these documents set forth a genuine issue of material fact 

as to whether defendant was a month-to-month tenant pursuant to the original lease at the time 

the order approving the judicial sale was entered in favor of plaintiff. See Gizynski, 2015 IL 

App (1st) 142871, ¶ 36. Thus, our de novo review of the record reveals that plaintiff’s right to a 

judgment of possession is not clear and free from doubt as a question of material fact remains. 

See Outboard Marine Corp., 154 Ill. 2d at 102. Accordingly, the summary judgment of the 

circuit court is reversed and the matter is remanded for further proceedings consistent with this 

opinion. 

¶ 24 CONCLUSION 

¶ 25 For the reasons stated above, the judgment of the circuit court is reversed, and we remand 

for further proceedings consistent with this opinion. 

¶ 26 Reversed; cause remanded.