Maureen Hartnett's List: Assessment Issues

•   (n) Claims of Privilege. When information or documents are withheld from  disclosure or discovery on a claim that they are privileged pursuant to a common law  or statutory privilege, any such claim shall be made expressly and shall be supported  by a description of the nature of the documents, communications or things not  produced or disclosed and the exact privilege which is being claimed.

• ule 277.  Supplementary Proceedings

   

  (a) When Proceeding May be Commenced and  Against Whom; Subsequent Proceeding Against Same Party. A supplementary  proceeding authorized by section 2--1402 of the Code of Civil Procedure may be  commenced at any time with respect to a judgment which is subject to  enforcement. The proceeding may be against the judgment debtor or any third  party the judgment creditor believes has property of or is indebted to the  judgment debtor. If there has been a prior supplementary proceeding with respect  to the same judgment against the party, whether he is the judgment debtor or a  third party, no further proceeding shall be commenced against him except by  leave of court. The leave may be granted upon ex parte motion of the  judgment creditor, but only upon a finding of the court, based upon affidavit of  the judgment creditor or some other person, having personal knowledge of the  facts, (1) that there is reason to believe the party against whom the proceeding  is sought to be commenced has property or income the creditor is entitled to  reach, or, if a third party, is indebted to the judgment debtor, (2) that the  existence of the property, income or indebtedness was not known to the judgment  creditor during the pendency of any prior supplementary proceeding, and (3) that  the additional supplementary proceeding is sought in good faith to discover  assets and not to harass the judgment debtor or third party.

   

  (b) How Commenced. The  supplementary proceeding shall be commenced by the service of a citation on the  party against whom it is brought. The clerk shall issue a citation upon oral  request. In cases in which an order of court is prerequisite to the commencement  of the proceeding, a copy of the order shall be served with the citation.

   

  (c) Citation--Form, Contents, and  Service. The citation by which a supplementary proceeding is commenced:
• h) Sanctions. Any person who  fails to obey a citation, subpoena, or order or other direction of the court  issued pursuant to any provision of this rule may be punished for contempt. Any  person who refuses to obey any order to deliver up or convey or assign any  personal property or in an appropriate case its proceeds or value or title to  lands, or choses in action, or evidences of debt may be committed until he has  complied with the order or is discharged by due course of law. The court may  also enforce its order against the real and personal property of that person.

1 more annotation...

• ) A judgmen

• t or order entered in the administration of a receivership, rehabilitation, liquidation, or other similar proceeding which finally determines a right or status of a party and which is not appealable under Rule 307(a).

   

  (3) A judgment or order granting or denying any of the relief prayed in a petition under section 2–1401 of the Code of Civil Procedure.
• An order finding a person or entity in contempt of court which imposes a monetary or other penalty.

• urity, including, but not limited to, letters of credit, escrow agreements,   and certificates of deposit, is presented to, approved by and   filed with the court within the time for filing the notice of appeal or   within any extension of time granted under paragraph (c) of this rule. Notice of   the presentment of the bond or other form of security shall be given  to the appellee by the judgment debtor to all parties.   The bond or other form of security ordinarily shall be in an amount   sufficient to cover the amount of the judgment, interest and   costs plus interest reasonably anticipated to accrue during the pendency of   the appeal. If a form of security other than an appeal bond is presented, the   appellant shall have the burden of demonstrating the adequacy of such other   security. If the court, after weighing all the relevant circumstances, including   the amount of the judgment, anticipated interest and costs, the availability and   cost of a bond or other form of security, the assets of the judgment debtor and   of the judgment debtor’s insurers and indemnitors, if any, and any other factors   the court may deem relevant, determines that a bond or other form of security in   the amount of the judgment plus anticipated interest and costs is not reasonably   available to the judgment debtor, the court may approve a bond or other form of   security in the maximum amount reasonably available to the judgment debtor. In   the event that the court approves a bond or other form of security in an amount   less than the amount of the judgment plus anticipated interest and costs, the   court shall impose additional conditions on the judgment debtor to prevent  dissipation or diversion of the judgment debtor’s assets during the appeal.

   

    (b) Other Stays of Enforcements   of Nonmoney Judgments and Other Appealable Orders.   Except in cases provided for in paragraph (e) of   this rule, on notice and motion, and an opportunity for opposi

• d) Stays by the Reviewing Court. Except in cases provided for in paragraph (e) of this   rule, application for a stay ordinarily must be made in the first instance to   the trial circuit court. A motion for a stay may be made   to the reviewing court, or to a judge thereof, but such a motion must show that   application to the trial circuit court is not practical,   or that the trial circuit court has denied an   application or has failed to afford the relief that the applicant has requested,   and must be accompanied by suggestions in support of the motion and a supporting   record (Rule 328), if the record on appeal has not been filed. If a stay is   granted by the reviewing court or a judge thereof, the clerk shall notify the   parties and transmit to the clerk of the trial circuit  court or administrative agency a certified copy of the order granting the stay.

   

    (e) Automatic Stay Pending Appeal of Termination   of

• The amendment is designed to  preserve the right of appeal. The traditional method of securing a judgment is  to require an appeal bond in the amount of the judgment plus anticipated  interest and costs. In recent years, changes in the insurance market have made  appeal bonds costly in many cases and unavailable in some cases. When an  alternative type of security (e.g., letters of credit, escrow agreement,  certificate of deposit) offers comparable assurance of payment at lower cost,  requiring an appeal bond needlessly increases the cost of appeal. When seeking  to file a form of security other than an appeal bond, it is the judgment  debtor’s burden to demonstrate that the other form of security is an adequate  substitute.

     

  It is anticipated that the   amount of the bond or other form of security will normally be in an amount   sufficient to cover the judgment, interest, and costs. In some limited   instances, however, the appeal bond requirement may be so

• ragraph (f) provides that the granting of the appeal from an order allowing a new trial ipso facto operates as a stay. The former rule required the giving of some kind of a bond to make a stay effective. A bond is not always appropriate. Paragraph (f) requires a bond only after a showing of good cause.

• (b) Discretionary Acceleration of Other Appeals. Any time after the docketing statement is filed in the reviewing court, the court, on its own motion, or on the motion of any party, for good cause shown, may place the case on an accelerated docket. The motion shall be supported by an affidavit stating reasons why the appeal should be expedited. If warranted by the circumstances, the court may enter an order accepting a supporting record prepared pursuant to Rule 328, consisting of those lower court pleadings, reports of proceedings or other materials that will fully present the issues. In its discretion the court may accept memoranda in lieu of formal briefs. The court may then enter an order setting forth an expedited schedule for the disposition of the appeal.

   

   

• cedure If No Verbatim Transcript Is Available (Bystander's  Report). If no verbatim transcript of the evidence of proceedings is  obtainable the appellant may prepare a proposed report of proceedings from  the best available sources, including recollection. In any trial court, a party  may request from the court official any audiotape, videotape or other  recording of the proceedings. The court official or any person who prepared  and kept, in accordance with these rules, any audiotape, videotape, or other  report of the proceedings shall produce a copy of such materials to be  provided at the party's expense.  Such material may be transcribed for use  in preparation of a bystander's report. The proposed report shall be served  on all parties within 28 days after the notice of appeal is filed. Within 14  days after service of the proposed report of proceedings, any other party  may serve proposed amendments or an alternative proposed report of  proceedings. Within 7 days thereafter, the appellant shall, upon notice,  present the proposed report or reports and any proposed amendments to the  trial court for settlement and approval. The court, holding hearings if  necessary, shall promptly settle, certify, and order filed an accurate report  of proceedings. Absent stipulation, only the report of proceedings so certified shall be included in the record on appeal.

   

  (d) Agreed Statement of Facts. The parties by written stipulation may  agree upon a statement of facts material to the controversy

• s rule requires that upon filing   the record on appeal in the reviewing court the appellant shall serve notice of   the filing on the other parties to the appeal and send a copy of the notice to   the reviewing court. This notice is important because the briefing schedule is   framed in terms of the due date of the briefs rather than the date of service of   each successive brief, and the due date of the first brief is marked in terms of   the date on which the record is filed. Until 1979, it was provided in this rule   that after the filing of the record and the payment of the prescribed fee the   case should be docketed and that the notice include the docket number. These   provisions were eliminated in that year because of the provision in amended Rule   303(f) for the docketing of the appeal at an earlier stage of the proceedings.   (See the committee comments to Rule 303(f).) Notice of the docket number is no   longer required because it will appear on the docketing statement served under  Rule 303(g).

   

  The 1985 change is intended to make   the automated record-keeping system in the appellate and supreme courts operate  more smoothly.

   

   

    

• ergency   Motions and Bail Motions. Each District of the Appellate Court shall   promulgate and publish rules setting forth the procedure for emergency   motions, including notice requirements. Subject to the rules of each   District, an emergency motion must specify the nature of the emergency and   the grounds for the specific relief requested. Except in the most extreme   and compelling circumstances, a motion for an extension of time will not   be considered an emergency. Motions regarding bail in criminal cases or   bonds in civil and criminal cases shall be considered emergency motions if   so designated by the movant.

   

  (h)   Dispositive Motions.
• nless received after the due date, the time of filing records, briefs or other papers required to be filed within a specified time will be the date on which they are actually received by the clerk of the reviewing court. If received after the due date, the time of mailing, or the time of delivery to a third-party commercial carrier for delivery to the clerk within three business days, shall be deemed the time of filing. Proof of mailing or delivery to a third-party commercial carrier shall be as provided in Rule 12(b)(3). This rule also applies to the notice of appeal filed in the trial court.
  

• ervice of Process. A copy of the motion together with the proposed   complaint shall be served upon the other party or parties, including the nominal   party or parties, and proof of service shall be filed at the time the motion is  filed.

   

  (c) Judge a Nominal Party. In an original action to review a judge's judicial   act the judge is a nominal party, only, in the proceeding, and need not respond   to the motion or complaint unless instructed to do so by the court. The judg

11 more annotations...

• • Mr. Scharnak,
    I have not yet received the transcripts of the case testimony in the two default cases, October 4, 2012, and November 16, 2012. Please send the written transcripts of ALL proceedings heard by Honorable Judge George Scully. I want a complete word by word, or if not exactly every word, the specifics of the case including what you said, what Ms. Susan Hess said and exactly what Judge Scully said.
    
    I was supposed to receive those transcripts by now, within 30 days. If there was a written statement by Judge Scully, or you prepared a statement and Scully signed it, stating that this Default Jedgment did not require transcrips, please send that immediately, but NO later than Monday, January 7, 2012.  Signed, Maureen Anne Hartnett
• • Find out where the transcripts are for both the first and second cases
• (a) Default Cases - In all default cases, all testimony shall be recorded, transcribed, and filed with the Clerk of the Court.

1 more annotation...

• That homestead and all right in
  14		and title to that homestead is exempt from attachment,
  15		judgment, levy, or judgment sale for the payment of his or her
  16		debts or other purposes and from the laws of conveyance,
  17		descent, and legacy, except as provided in this Code or in
  18		Section 20-6 of the Probate Act of 1975. This Section is not
  19		applicable between joint tenants or tenants in common but it is
  20		applicable as to any creditors of those persons. If 2 or more
  21		individuals own property that is exempt as a homestead, the
  22		value of the exemption of each individual may not exceed his or
  23		her proportionate share of $30,000 based upon percentage of

• The only communications that are non discoverable are those communications where the only parties involved are board members and the association’s attorney or those communications within a litigation committee. 

• What we recommend to protect communications where the property manager will be involved, or if knowledgeable Board Members important to the litigation are voted out of office, resign or retire, is that you create a Litigation Committee and include among its members, your Property Manager, current Board Members, and any former Board Members who have information that is important to the litigation.  That way, communications as between those persons and our office can be protected from disclosure and will not result in a breach of the attorney-client privilege.  Please contact us so that we may discuss how to set up a litigation committee and to draft the necessary corporate resolutions for doing so.

   

  Contributed by Jason E. Orth

1 more annotation...

• • Important issue for case.
• Every member of a Board of Directors of any community association owes a fiduciary duty to each of the members of their respective association.  A fiduciary relationship is a relationship in which there is special confidence in one who, in equity and good conscience, is bound to act in good faith with due regard to the interests of the other.
• As part of their fiduciary duty owed to members of their association, members of the Board of Directors are required to comply with procedures in the association’s bylaws as well as the strictures of the statue applicable to such an association, including the Condominium Property Act, Common Interest Community Association Act, and the Illinois Not-For-Profit Act.  When a member of a Board of Directors is sued for breach of this fiduciary duty, they are sued individually in their capacity as a member of the board for the actions, or oftentimes alleged inactions, taken while a member of that Board.

1 more annotation...

• We are often able to avoid having the judge determine the stay of possession.  That is, when the facts and circumstances are appropriate, we pursue negotiation of agreed installment payment plan order with owners (with the minimum required stay period) that meet the needs of each association and without requiring the judge to determine the length of the stay of possession!

   

  Contributed by Chad R. Souders

•   The property manager is the “quarterback” of the team. The Board of Directors appoints a professional condominium management company to manage the common elements and assets of the association.  The role of the professional management company is to provide quality and timely information to the Board of Directors. This enables the Board to make informed policy decisions pertaining to the preservation and care of the common elements and assets of the association, as well as the welfare, safety and lifestyle of the residents. Once the Board has made a decision, the management company is delegated and entrusted with the responsibility of implementing that decision in an expeditious and efficient fashion.  Professional management provides for the day-to-day operation of the association and implementation of the Board’s directives, creates and implements maintenance programs and scheduled maintenance, assists in the preparation of the annual budget, the annual accounting, and invoices for and collects assessments from owners, and maintains the association books and records.   Finally, the property manager is the liaison between Board and vendors, and usually has a good “stable” of reliable vendors.
• The association’s banker provides operating checking accounts; reserve accounts; investment advice; lockbox services; and loans for common element maintenance, repair, or replacement.

• ools of the trade of the
• (2) Under Illinois law, every person is entitled to

  an estate in homestead, when it is owned and occupied as a residence, to the extent in value of $15,000, which homestead is exempt from judgment.

• Temporary restraining order.   No temporary restraining order shall be granted without notice to the adverse party unless it clearly appears from specific facts shown by affidavit or by the verified complaint that immediate and irreparable injury, loss, or damage will result to the applicant before notice can be served and a hearing had thereon. Every temporary restraining order granted without notice shall be indorsed with the date and hour of signing; shall be filed forthwith in the clerk's office; shall define the injury and state why it is irreparable and why the order was granted without notice; and shall expire by its terms within such time after the signing of the order, not to exceed 10 days, as the court fixes, unless within the time so fixed the order, for good cause shown, is extended for a like period or unless the party against whom the order is directed consents that it may be extended for a longer period. The reasons for the granting of the extension shall be stated in the written order of the court. In case a temporary restraining order is granted without notice, the motion for a preliminary injunction shall be set for hearing at the earliest possible time and takes precedence over all matters except older matters of the same character; and when the motion comes on for hearing the party who obtained the temporary restraining order shall proceed with the application for a preliminary injunction and, if he or she does not do so, the court shall dissolve the temporary restraining order. 

• om: Maureen Hartnett <hartnettmaureena@gmail.com>
   Date: Mon, Dec 3, 2012 at 4:19 PM
  Subject: Re: Board President
  To: Susan Hess <sue2800@rcn.com>
  Cc: "Scharnak, Joseph W." <JWScharnak@arnstein.com>, Tom Randall <trandall@winningreen.com>
  
• Article 1 Definitions:

  
  

     1.17: Board: The parties determined pursuant to Article V hereof, and who are vested with the authority and responsibility of administering the Property [for the Association, a Not for Profit Corporation]*

    

  
  

  Since the Board is ultimately liable for the management and administration of the Property, through the Property Manager's Contract and scope of duties, I felt compelled to inform and work with a member of the Board, to quickly resolve the above referenced issue.

    

  
  

  Since you do not recall the Court proceedings and Associate Judge Leonard Murray's rulings, decisions and order, I must speak with another individual, with authority to make decisions, to resolve this matter. Your comment, "Where were you?" (loudly spoken and rudely suggesting I had not heard the court proceedings nor Judge Murray's  decision),  when I informed you of my notes of Judge Murray's decisions, not only gave me pause, but caused deep concern.  He was quite clear, reviewed the copy of my assessment accounting that the Association's attorney gave him - for many minutes - he and I even had a brief conversation....remember he told us about all of his degrees, made a joke?   It was memorable, which makes me wonder why you didn't clearly understand his decision.

    
• am aware that the 2800 Lake Shore Drive Condominium Association Board President, Mr. Thomas Randall,  was not available to speak with me the other day. The message I received was that "he does not speak with residents". The information given to me was clear and concise, but thank you for your note to further pass along Mr. Randall's message.

    

   

  I asked a former 2800 LSD Board member if she knew who would be an appropriate person to speak with regarding the ongoing assessment issue we have been dealing with, and she gave me three names. Mr. Randall's was the only number that was listed.  I am highly motivated to resolve this issue and since the conflict does not appear to be resolved and I do not wish to incur further legal fees and costs, I would like to resolve this matter with a representative of the Board.  According to the 2800 LSD Declaration of Condominium Ownership, By-Laws, etc., Sec. 1.17 Board: Definition:

1 more annotation...

• I appreciate your correspondence sent yesterday.

  
  

  I was home sick the entire day yesterday and today and just read your note today, Tuesday, February 12, 2013. Please let Mr. Morris know I have withdrawn the appeal.

   

  
  

  I cannot continue to 'fight' a case that was brought about fraudulently  and without cause, while at the same time trying to get my career back on track.

  
  

  What I want to do is try to settle this case and since the attorney involved, Mr. Scharnak, not only told me over five times that "You DO know Ms. Hess - the property manager at 2800 Lake Shore Drive-  is trying to 'make up' a case against you to evict you", when she instructed him to send 30 day demand letters prior to 30 days, and further when Mr. Scharnak defied the original Judge's ruling - causing my assessment account to become late,  I would think that the firm would rather settle the case than have further legal actions taken as I can do that with an attorney's help. 

   

  
  

  This case is so complicated, due to the two judges involved, Judge Scully not knowing about Judge Murray, and Judge Murray has his hands tied, while also trying to help me - I have had a hard time finding legal advice that isn't too expensive.

   

  
  

  Please ask Mr. Morris to call me at his earliest convenience so we can settle this.  I would like to move forward with my life. I will not file charges against Mr. Scharnak for fraud if Arnstein & Lehr tries in good faith to negotiate a settlement.

• Since you hung up on me without reviewing all of the materials and refusing to meet with me to review the actions taken against me by your attorney, Joseph Scharnak, and the Property Manager of 2800 Lake Shore Drive, Susan Hess, who he represents,  I have no choice but to seek relief from elsewhere in your firm.
    
  
  I have been victimized  by your firm, by Joseph Scharnak telling me on at least 5 separate occasions that Ms. Hess was "trying to make or manufacture  a case against me to evict me", and by the 2800 Lake Shore Drive Board, who has ignored my requests for intervention.  The first time I heard Mr. Scharnak tell me that "You DO know that Susan Hess is trying to "make up" a case to evict you was in November of 2011.  He repeated this sentence over four more times. Further:
   
  
  
  •  when on March 8, 2012, Judge Leornard Murray, said NO,  he would NOT approve or endorse the legal fees already commingled with my common area assessments;  that Mr. Scharnak's 30-day demand letters were "hair-triggered" and that "this case should never have been filed:", both Hess and Scharnak defied the Judge's ruling. 
   
  • As I explained, Hess refused to allow me to pay the legal fees last December over a few months.
  • I then read the law.
  • I then tried to find a policy for the Association of when an account was considered 'late'.
   
  • The Rules, By Laws and the Condominium Property Act all stated different policies. However, the Illinois Condominium Property Act takes precedence in this matter. For your information the Act states:

• do not know who you sent my information to, so I hope you do not mind that I am e-mailing a few documents which support my claims. Anyone can write a letter and make such claims of "innocence" - I'm certain you have heard it your entire career.

   

   

  I must protect my self and interests so I have included the following for your and your colleagues review:

   

  Exhibit 1: Demand Letter sent to me from Joseph Scharnak. What is blatent about this letter and the 3 others, is I spoke with the management office and Heather Collins received 'approval' from Ms Hess for my few late assessment payments.

   

   

  Had there been a problem with me paying less than 30 days late, I would have paid, and not paid my other obligation. Heather no longer works here however her brother does. I hope to receive a letter which will corroborate that I was incredibly proactive in letting the 2800 LSD office know I would be up to 23 or so days late - for a very brief period.

   

   

  Heather always put the phone down, went to ensure my payment was ok and always said yes. The curious matter with the December - well actually  - November of 2011 payment - is that I had received an OK to pay the 9th or 12th.

   

   

  I was awaiting new checks and when they did not arrive Saturday, I went to Chase at 9 AM and had them prepare a cashers check for the assessments. I keep copies of everything so I was a shock when 3 days later, Mr. Scharnak's 30 day demand letter arrived.