Ms. Foster Fights Back and Wins on Appeal!

Ms. Foster Fights Back and Wins on Appeal!

Tamara Foster and her children moved into a modest house in the Galewood neighborhood of Chicago in early December 2008. The Foster’s lived happily in the property for several years under a series of one year written leases, the most recent one expiring on December 31, 2011.

Unbeknownst to Ms. Foster, a mortgage foreclosure case was filed against her landlord in September 2010. After the judgment of foreclosure against the landlord in April 2011, the lender, Fifth Third Mortgage Company, sent a property manager to Ms. Foster’s home to inspect the property. As instructed, Ms. Foster faxed the property manager a copy of her lease. Then in early August 2011, Fifth Third, being the only bidder at the sheriff’s auction, re-acquired the property and sent Ms. Foster a notice (required by law) informing her that it owned the property and providing her with a contact in Cincinnati, Ohio who she could call if she had questions or needed repairs.

A short time later, Ms. Foster received a notice from Fifth Third’s attorneys asking Ms. Foster to move within 90 days and advising her of Fifth Third’s intent to file an eviction case in court if she did not. In October 2011, Ms. Foster contacted Fifth Third’s attorneys and informed them that she had a lease through December 31, 2011, which she had given to the property manager back in July. The law firm asked her to fax them a copy of the lease, which she did.

Eleven days before the Foster’s lease expired, Fifth Third filed a court eviction case against the Foster family. Despite the fact that Fifth Third had received copies of the lease in July and October, their court complaint alleged that the Fosters were living in the property “…without plaintiff’s permission and without a lease…” Ms. Foster secured the legal services of a Chicago non-profit law office, who zealously represented her interests at the Daley Center. Her attorneys argued that the foreclosure did not automatically terminate Ms. Foster’s lease and, therefore, Fifth Third could not file an eviction against the family until their lease ran out on December 31, 2011. The circuit court judge ruled against the Foster family in late February 2012 and an eviction order was issued from the court.

On her own and without legal assistance, Ms. Foster filed an appeal from her judgment of eviction and wrote requests to “stay” the eviction to both the circuit court and the court of appeals so that the sheriff would not lock them out of their home while the appeal was being considered. However both requests were denied and the family was evicted from their home. Ms. Foster went into a shelter temporarily and the children went to stay with relatives. Ms. Foster filed her “brief” (a written legal argument) with the three-judge panel at the court of appeals. Fifth Third filed its “response brief.” Approximately two months later she came to LCBH for assistance with her appeal.

While it’s fairly unusual to accept a case this late in the process, after evaluating the case, we felt that not only could we help Ms. Foster seek the justice she deserved, but if we were successful, we may also, at the same time, be able to help others with leases that are being grossly dishonored by financial institutions. LCBH staff attorney, Frank Avellone noted, “This case may provide an opportunity to re-affirm what, prior to the foreclosure crisis, had been long standing precedents regarding when leases survive a transfer of property.” After securing the court’s permission, Frank, along with one of our legal interns, Michael Griffin, filed a “reply brief” on behalf of Ms. Foster.

On May 14, 2013, Ms. Foster won her case when the court of appeals ruled in her favor. The court agreed with Ms. Foster’s assertion that the foreclosure case did not automatically terminate her lease and, consequently, Fifth Third’s eviction was premature when it was filed before the lease ended. This win for Ms. Foster was a symbolic personal victory whose only hope was that a rightful decision in her case could help others in similar situations. To effectuate her hope, and extend this victory, LCBH has recently filed a motion with the court of appeals requesting that it publish this important decision so that it may be used as authority (precedent) in other court cases around the state.

The Foster family was reunited in late April. Ms. Foster is no longer in the shelter and the kids are with her in a new apartment. Thank you, Tamara, for recognizing unfairness and standing up to meet injustice head on, and thank you for letting us share your story.

UPDATE

LCBH filed a successful motion with the court of appeals requesting that it publish this important decision. While the mortgage company opposed the publication, the court approved LCBH’s motion and the decision was published on June 28, 2013 as “Fifth Third Mortgage Company v. Foster, 2013 IL App (1st) 121361” and may now be used as authority (precedent) in other court cases around the state. It is available on the State of Illinois website. LCBH would like to thank Ms. Foster for her incredible tenacity as well as staff attorney Frank Avellone and law student Michael Griffin for all their hard work on this case.