{ "id": 2492367, "name": "AMERICAN PROPERTY MANAGEMENT COMPANY, d/b/a De Kalb Plaza Apartments, Plaintiff-Appellee, v. SHIRLEY GREEN-TALAEFARD, Defendant-Appellant", "name_abbreviation": "American Property Management Co. v. Green-Talaefard", "decision_date": "1990-03-15", "docket_number": "No. 2\u201489\u20140590", "first_page": "171", "last_page": "180", "citations": [ { "type": "official", "cite": "195 Ill. App. 3d 171" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "424 U.S. 319", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 12026449 ], "weight": 6, "pin_cites": [ { "page": "335" }, { "page": "33" }, { "page": "903" }, { "page": "348" }, { "page": "41" }, { "page": "909" } ], "opinion_index": 0, "case_paths": [ "/us/424/0319-01" ] }, { "cite": "643 F.2d 1261", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 1202697 ], "weight": 4, "pin_cites": [ { "page": "1277-78" }, { "page": "1280" }, { "page": "1280" }, { "page": "1279" } ], "opinion_index": 0, "case_paths": [ "/f2d/643/1261-01" ] } ], "analysis": { "cardinality": 814, "char_count": 20735, "ocr_confidence": 0.757, "pagerank": { "raw": 1.0091961852718293e-07, "percentile": 0.5416553243065523 }, "sha256": "7239e13c614d5b75ea9b76c0ca3a100a43aca664f6b66b2145c1d6ec83845a27", "simhash": "1:f222c669995e8793", "word_count": 3277 }, "last_updated": "2023-07-14T21:36:46.192333+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "AMERICAN PROPERTY MANAGEMENT COMPANY, d/b/a De Kalb Plaza Apartments, Plaintiff-Appellee, v. SHIRLEY GREEN-TALAEFARD, Defendant-Appellant." ], "opinions": [ { "text": "JUSTICE GEIGER\ndelivered the opinion of the court:\nThe defendant, Shirley Green-Talaefard, appeals from the trial court\u2019s order granting possession and a money judgment to the defendant\u2019s landlord, the plaintiff American Property Management Company, d/b/a De Kalb Plaza Apartments. On appeal, the defendant contends that the plaintiff improperly terminated the defendant\u2019s Federal housing assistance, which resulted in her ultimate inability to pay her rent and her subsequent eviction. We reverse the judgment and remand the cause with directions.\nThe following facts were adduced at a bench trial on the plaintiff\u2019s complaint in forcible entry and detainer. The proceedings were not transcribed; however, the parties have supplied the appellate court with a stipulated bystander\u2019s report. At trial the plaintiff presented the testimony of Lon VanOuwerkerk, who managed De Kalb Plaza Apartments for the plaintiff; Scott Clausen, the assistant manager; and Stephanie VanOuwerkerk, Lon\u2019s wife and the plaintiff\u2019s bookkeeper at the De Kalb Plaza facility. The defendant testified in her own behalf.\nAccording to Lon, approximately 30 units in the De Kalb Plaza are subsidized under a Federal housing-assistance program administered by the Department of Housing and Urban Development (HUD) (see 42 U.S.C. \u00a71437f (1989 Supp.)). The defendant has been a tenant in one of those such subsidized units since approximately October 1985.\nThe defendant was tendered a new lease on February 14, 1989, effective March 1, 1989, which called for a monthly rental payment of $287. Lon stated that defendant failed to make the full rental payment for March 1989, within the 10-day grace period provided in the lease, so he delivered a notice to her that her tenancy was terminated due to nonpayment. The defendant failed to make a rental payment in April, and the plaintiff commenced the instant action against her on April 13,1989.\nThe parties each produced leases which preceded the lease which became effective March 1, 1989. Plaintiff\u2019s exhibit No. 3, effective June 1, 1988, included the defendant\u2019s signature and that of her husband, Hadi Talaefard. Defendant\u2019s exhibit No. 1, effective January 1, 1989, is signed only by the defendant, as is the lease effective March 1,1989.\nParagraph three in each lease provides, in pertinent part:\n\u201c3. Rent: *** Tenant agrees to pay the monthly rent set forth in column (1) above on the date the rent is due at the Owner\u2019s address set forth above. The Owner certifies that HUD has authorized him/her to collect the type of charges shown in column (1) and that the amounts shown in column (1) do not exceed the amounts authorized by HUD. The Tenant understands that this monthly rent is less than the market (unsubsidized) rent due on this unit. This lower rent is available *** because HUD makes monthly payments to the Owner on behalf of the Tenant. The amount, if any, that HUD makes available monthly on behalf of the Tenant is called the tenant assistance payment and is shown on the \u2018Assistance Payment\u2019 line of the Certification and Recertification of Tenant Eligibility Form which is attachment A No. 1 to this Agreement.\u201d (Emphasis in original.)\nColumn 1 on each of the three leases provides for a monthly rental payment of $287 due on the first day of the month. None of the three leases submitted into evidence includes Attachment No. 1 as referred to in paragraph 3; however, the lease effective June 1, 1988, includes the following notation in a box entitled \u201cAdditional Agreements & Covenants:\u201d\n\u201cHUD $228.00 Tenant 59.00.\u201d\nThe lease effective January 1, 1989, contains a similar legend reading: \u201cRes $90.00[,] HUD $197.00.\u201d The lease effective March 1, 1989, contains no such legend.\nThe defendant also submitted a rental application executed by her husband on July 16, 1988. In it he provided information concerning his current employer and approximated his net monthly salary. The defendant testified that her husband was added as a signatory to her lease in June 1988 at his request.\nOn November 30, 1988, Stephanie VanOuwerkerk, plaintiff\u2019s bookkeeper, prepared a HUD Tenant Eligibility Form in which she calculated defendant\u2019s income status and the assistance payment the defendant would receive from HUD. Stephanie categorized the defendant\u2019s income status as \u201cvery low\u201d and calculated the defendant\u2019s portion of the rent at $90, with an assistance payment of $197. The form further indicates that the defendant\u2019s next annual recertification was to be effective January 1, 1990. The defendant certified the information contained in the Tenant Eligibility Form by signing it on December 2, 1988, simultaneous with her execution of the lease which became effective January 1, 1989. The defendant testified that she requested that her husband be left off the lease since he was not living with her.\nOn January 16, 1989, Lon delivered to the defendant a form purporting to be a notification of rent change. It provided as follows:\n\u201cThis is to notify you that on the basis of information obtained by the De Kalb Plaza management, your rent has been adjusted to $287.00. This new rent rate is effective March 1st, 1989. This notification amends paragraph 3 of your lease agreement which sets forth the amount of rent you pay each month.\nPlease come by the office no later than January 26th, 1989 to sign your new lease and to discuss this change.\u201d\nThe defendant and her husband met with Lon and Scott Clausen on January 26, 1989, to discuss the notice. On cross-examination Lon admitted that no new certification on defendant\u2019s income had been prepared in support of the lease effective March 1, 1989. He further admitted that although paragraph 17(a)(1) of the lease required HUD\u2019s approval for the termination of a tenant\u2019s rental subsidy, he had not obtained such approval. He stated, however, that he had received a directive from HUD permitting the termination of such subsidies without HUD approval in cases of fraud or where management believed the tenant had not provided all of the information requested by management.\nLon did not produce the alleged HUD directive. Lon further stated that although the January 16, 1989, notice did not explicitly state that the defendant\u2019s HUD rental subsidy was being terminated, such termination was clear from the language of the notice. Lon further testified that at the January 26 meeting, the parties made no specific reference to the termination of the defendant\u2019s rental subsidy and that no other meetings took place between the parties.\nTestifying for the plaintiff, Scott Clausen, the assistant manager at De Kalb Plaza, stated that he was present at the meeting with the defendant and her husband on January 26, 1989. He stated that the parties discussed the change in rent and indicated that management\u2019s concern was the defendant\u2019s husband\u2019s actual residence, his income, and his contribution to the support of the defendant. According to Clausen, sometime after the January 26 meeting the defendant provided him with a notarized statement from an individual named Hassan Azarpira. It was dated January 30, 1989, and stated that Hadi Talaefard, the defendant\u2019s husband, had been living with him for the past five months, seeking employment in the Chicago area. The plaintiff submitted this document as well as a claim eligibility notice from an Illinois unemployment compensation office which indicated that Hadi Talaefard was \u201cineligible due to wages\u201d for unemployment benefits.\nBoth Lon and Clausen stated that the defendant told them Talaefard was not living with her; however, both testified that they continued to see Talaefard in and around the apartment complex throughout January 1989. Clausen further testified that he directed a mailman to deliver Talaefard\u2019s mail to defendant\u2019s mailbox.\nThe defendant testified that although she and Talaefard were married in December 1987, the couple had never lived together. She stated that she and her children had lived in apartment 502A at De Kalb Plaza Apartments for approximately four years and that she was employed at Northern Illinois University as a secretary. According to the defendant, Talaefard visited her often and had stayed with her two to four evenings a week through January 1989. She denied that her husband ever lived with her at the De Kalb Plaza Apartments on a continuous basis. She further stated that she was unaware of his current whereabouts.\nThe defendant testified that she received the notification of rent change, that she read it, and that she attended a meeting on January 26, 1989, concerning the notice. She stated, however, that she did not understand she was to pay the full amount of rent. On February 14, 1989, defendant signed a new lease effective March 1, 1989. On March 2, 1989, she tendered $90 to Lon, who refused to accept it and demanded payment of the full amount of the rent. Lon delivered a notice of termination of tenancy to the defendant on March 10, 1989, and subsequently commenced the forcible entry and detainer action against her.\nAt trial, defendant\u2019s counsel attempted to submit photocopies of Federal housing regulations as well as excerpts of provisions of the HUD handbook which she stated were applicable to the Federal housing subsidy program at issue. The plaintiff objected to the submission of those documents, and, despite defense counsel\u2019s argument that the trial court was required to take judicial notice of the Federal regulations, the trial court sustained the plaintiff\u2019s objection.\nIn closing argument, plaintiff\u2019s counsel asserted that the defendant had executed a new lease, had failed to pay the required rent, had been appropriately notified of the termination of her tenancy, and had failed to resolve the dispute with her landlord. Plaintiff\u2019s counsel further asserted that the defendant\u2019s allegations concerning the plaintiff\u2019s failure to properly terminate the defendant\u2019s rental subsidy were immaterial to the plaintiff\u2019s complaint.\nDefendant\u2019s counsel argued that the defendant\u2019s housing assistance had not been properly terminated pursuant to the parties\u2019 lease and that the plaintiff\u2019s termination of the defendant\u2019s housing assistance violated defendant\u2019s due process rights. Defendant\u2019s counsel further argued that each lease in evidence contained identical language requiring HUD\u2019s approval, which plaintiff failed to obtain, to terminate a tenant\u2019s housing assistance.\nRelying on basic landlord-tenant law, the trial court found that rent of $287 was due, that the defendant had failed to pay the rent, and that the plaintiff was entitled to possession. The court did not address the issue of the propriety of the termination of the defendant\u2019s housing-assistance subsidy. The court subsequently denied the defendant\u2019s amended post-trial motion to vacate the judgment but, upon the parties\u2019 agreement that the defendant pay the full rent during the pendency of this appeal, granted the defendant\u2019s oral motion for a stay of execution of the judgment pending appeal. The defendant\u2019s timely appeal ensued.\nThe plaintiff contends that the instant cause involves no more than a tenant\u2019s failure to pay her rent and the landlord\u2019s concomitant right to evict her for this failure. It is apparent from the record, however, that the plaintiff\u2019s unilateral termination of the defendant\u2019s housing-assistance benefits directly resulted in the defendant\u2019s inability to pay her rent. In short, the plaintiff\u2019s conduct brought about defendant\u2019s alleged breach. Thus, the issue before us is not simply whether plaintiff properly terminated defendant\u2019s lease but, rather, whether defendant\u2019s failure to pay rent, under the circumstances presented, constitutes cause for such termination.\nIn order to resolve this matter, we must consider an issue the trial court failed to address, i.e., the propriety of the plaintiff\u2019s unilateral termination of the defendant\u2019s housing-assistance benefits. At the outset, we note that the defendant has a property interest in the continued receipt of such benefits, which may not be terminated without regard for the defendant\u2019s due process rights. See Holbrook v. Pitt (7th Cir. 1981), 643 F.2d 1261, 1277-78.\nPlaintiff apparently concedes that the defendant has a property interest in her entitlement to the continuation of housing-assistance benefits but claims that the defendant has waived her due process rights by failing to assert them at the trial level. Our review of the record satisfies us that the defendant sufficiently invoked her due process claims both in her closing argument at trial and in her post-trial motion.\nWe now consider whether the defendant was accorded due process prior to the termination of her housing-assistance benefits. The plaintiff correctly states that due process \u201cis a flexible concept that requires such procedural protections as the particular situation demands\u201d (Holbrook, 643 F.2d at 1280). In Holbrook, the United States Court of Appeals for the Seventh Circuit enumerated several factors the court must weigh in its due process determination, including: (1) the private interest to be affected by the termination of the entitlement; (2) the risk of erroneous deprivation; and (3) the burden on the governmental entity to provide varying degrees of procedural safeguards. 643 F.2d at 1280, citing Mathews v. Eldridge (1976), 424 U.S. 319, 335, 47 L. Ed. 2d 18, 33, 96 S. Ct. 893, 903.\nClearly, the private interest at stake is significant: as a practical matter, defendant\u2019s loss of housing-assistance benefits may result in her and her children\u2019s loss of their shelter.\nIn order to weigh the next factor, i.e., the risk of erroneous deprivation of housing-assistance benefits, we must consider the procedural safeguards actually used by the plaintiff in the instant matter. The Supreme Court has stated that notice and the opportunity to be heard are essential in order to accord due process to an individual faced with a significant loss. (Mathews, 424 U.S. at 348, 47 L. Ed. 2d at 41, 96 S. Ct. at 909.) Indeed, the parties\u2019 leases of June 1, 1988, January 1, 1989, and March 1, 1989, provide these basic elements of due process in paragraph 4, \u201cChanges in the Tenant\u2019s Share of the Rent,\u201d and paragraph 17, \u201cTermination of Assistance.\u201d\nParagraph 4 provides, in part:\n\u201cThe Owner agrees to implement changes in the Tenant\u2019s rent or rental assistance payment only in accordance with the time frames and administrative procedures set forth in HUD\u2019s handbooks, instructions and regulations related [sic] to administration of multifamily subsidy programs. *** The Notice [of changes in the tenant\u2019s rent or tenant assistance payment] will state the new amount the Tenant is required to pay, the date the new amount is effective, and the reasons for the change in rent.\u201d (Emphasis added.)\nParagraph 17 authorizes the landlord to terminate a tenant\u2019s housing-assistance benefit if the tenant provides false information to the landlord for the purpose of obtaining such assistance or if the tenant fails to submit household composition and income information to the landlord in a timely manner. In either case, paragraph 17(b) provides:\n\u201cThe Owner agrees to give the Tenant written notice of the proposed termination. The notice will advise the Tenant that, during the ten calendar days following the date of the notice, he/she may request to meet the Owner to discuss the proposed termination of assistance. If the Tenant requests a discussion of the proposed termination, the Owner agrees to meet with the Tenant.\u201d (Emphasis added.)\nOn January 16, 1989, as noted above, the plaintiff did provide defendant with notice of a change in her rent. The deficiency in this notice, however, is threefold. First, although the notice purports to amend paragraph 3 of the lease effective January 1, 1989, by changing the defendant\u2019s rent to $287 per month, paragraph 3 already provided for a monthly rent of $287 by virtue of its reference to column 1. In fact, column 1 provided for a monthly rent of $287 on all three of the leases submitted into evidence.\nSecond, nowhere does the notice state that the plaintiff proposed to terminate (or, as is the case here, had already terminated) the defendant\u2019s housing-assistance benefits. Although Lon, the plaintiff\u2019s manager, testified that the notice clearly implied that the defendant\u2019s benefits were being terminated since it stated her rent was being changed, the defendant testified she did not understand she was to pay the full rental amount.\nThird, the notice is also deficient in its failure to state the reason or reasons for the \u201crent change.\u201d The notice merely states that the defendant\u2019s rent is being changed, \u201con the basis of information obtained by the *** management,\u201d when, in fact, Lon\u2019s testimony and the plaintiffs appellate brief suggest that Lon terminated the defendant\u2019s benefits because she failed to provide necessary household composition and income information. In short, we determine that the plaintiff failed to give proper notice to the defendant that it had terminated her housing-assistance benefits.\nThe plaintiff\u2019s manager did meet with the defendant to discuss the notice. Lon testified, however, that at this meeting no specific reference was made to the termination of the defendant\u2019s benefits. Lon and Scott Clausen both stated that the meeting was focused on Hadi Talaefard, the defendant\u2019s husband, i.e., where he was living, whether he had income, and whether he contributed to the defendant\u2019s support. Although Lon stated that the defendant never answered these questions, his testimony was contradicted by the defendant and by Clausen. The defendant stated that she told Lon and Clausen that her husband did not live with her; and shortly after the meeting she confirmed this statement by providing Clausen with the sworn statement of Hassan Azarpira. She also gave Clausen an unemployment form which confirmed that Talaefard had not earned wages from the named employer for four quarters, ending with the third quarter of 1988.\nThe record fails to disclose what, if any, effort the plaintiff made to confirm or disprove the information provided by defendant. We note further that although defendant\u2019s lease, effective January 1, 1989, provided for a monthly subsidy of $197 based on a HUD recertification procedure followed by plaintiff, Lon testified that he did not perform a new recertification for the lease effective March 1, 1989, which provided no subsidy. In other words, Lon terminated defendant\u2019s housing-assistance benefits without affording her any due process protection and failed to reconsider the termination when the defendant provided the information he had requested.\nWe find that in contrast to the severe hardship upon defendant resulting from the plaintiff\u2019s unilateral termination of her housing-assistance benefits, the burden on the plaintiff to employ procedural measures to safeguard the defendant\u2019s rights is minimal.\nOur determination that plaintiff terminated defendant\u2019s housing-assistance benefits in violation of her due process rights is not affected by plaintiff\u2019s assertion that it had been authorized by HUD to proceed without HUD\u2019s approval. First, the plaintiff failed to produce the alleged directive containing the authority. Second, and more important, no matter what the directive said, it could not have authorized the plaintiff to terminate welfare tenants\u2019 housing benefits in the absence of proper procedure. A decision by HUD to give the plaintiff the unreviewable right to cut off a tenant\u2019s benefits would clearly \u201coffendQ the concepts of fairness and nonarbitrariness which are at the heart of the constitutional requirement of due process.\u201d Holbrook, 643 F.2d at 1279.\nThe plaintiff brought about defendant\u2019s breach of the March 1, 1989, lease by its improper termination of her housing-assistance benefits. Accordingly, the plaintiff is not entitled to possession of the unit or to a money judgment. Thus, we reverse the judgment of the circuit court. Further, we vacate the circuit court\u2019s order that the defendant pay the full monthly rental amount of $287 during the pendency of this appeal and remand the cause with directions that the circuit court calculate the amount which the plaintiff must refund to the defendant as a result of this order.\nReversed and remanded with directions.\nDUNN and WOODWARD, JJ., concur.", "type": "majority", "author": "JUSTICE GEIGER" } ], "attorneys": [ "Anne S. Quincy, Jerry Brask, and Sarah Megan, all of Prairie State Legal Services, of Batavia, for appellant.", "James R. Buck, of Klein, Stoddard & Buck, of Sycamore, for appellee." ], "corrections": "", "head_matter": "AMERICAN PROPERTY MANAGEMENT COMPANY, d/b/a De Kalb Plaza Apartments, Plaintiff-Appellee, v. SHIRLEY GREEN-TALAEFARD, Defendant-Appellant.\nSecond District\nNo. 2\u201489\u20140590\nOpinion filed March 15, 1990.\nAnne S. Quincy, Jerry Brask, and Sarah Megan, all of Prairie State Legal Services, of Batavia, for appellant.\nJames R. Buck, of Klein, Stoddard & Buck, of Sycamore, for appellee." }, "file_name": "0171-01", "first_page_order": 193, "last_page_order": 202 }