{ "id": 3218871, "name": "R. STARR, d/b/a George Ellison Management Company, Plaintiff-Appellee, v. GLYNNIS GAY, Defendant-Appellant", "name_abbreviation": "Starr v. Gay", "decision_date": "2004-12-30", "docket_number": "No. 1-03-2672", "first_page": "610", "last_page": "616", "citations": [ { "type": "official", "cite": "354 Ill. App. 3d 610" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "187 N.E.2d 265", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1962, "opinion_index": 0 }, { "cite": "38 Ill. App. 2d 342", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 5256791 ], "year": 1962, "pin_cites": [ { "page": "351" } ], "opinion_index": 0, "case_paths": [ "/ill-app-2d/38/0342-01" ] }, { "cite": "255 N.E.2d 284", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1970, "pin_cites": [ { "page": "292", "parenthetical": "subsequent purchaser has obligation to return security deposit to tenant where purchaser expressly assumes obligation or receives credit against purchase price for the amount of the deposit" } ], "opinion_index": 0 }, { "cite": "21 Ohio App. 2d 122", "category": "reporters:state", "reporter": "Ohio App. 2d", "case_ids": [ 6714004 ], "year": 1970, "pin_cites": [ { "page": "134", "parenthetical": "subsequent purchaser has obligation to return security deposit to tenant where purchaser expressly assumes obligation or receives credit against purchase price for the amount of the deposit" } ], "opinion_index": 0, "case_paths": [ "/ohio-app-2d/21/0122-01" ] }, { "cite": "627 N.E.2d 265", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1993, "opinion_index": 0 }, { "cite": "254 Ill. App. 3d 1085", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2979509 ], "year": 1993, "pin_cites": [ { "page": "1092" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/254/1085-01" ] }, { "cite": "631 N.E.2d 889", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1994, "opinion_index": 0 }, { "cite": "258 Ill. App. 3d 848", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2882272 ], "year": 1994, "pin_cites": [ { "page": "850" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/258/0848-01" ] }, { "cite": "288 N.Y.S.2d 837", "category": "reporters:state", "reporter": "N.Y.S.2d", "year": 1968, "pin_cites": [ { "page": "839-40" } ], "opinion_index": 0 }, { "cite": "56 Misc. 2d 468", "category": "reporters:state", "reporter": "Misc. 2d", "case_ids": [ 1192523 ], "year": 1968, "opinion_index": 0, "case_paths": [ "/misc2d/56/0468-01" ] }, { "cite": "27 Real Est. L.J. 225", "category": "journals:journal", "reporter": "Real Est. L.J.", "year": 1999, "pin_cites": [ { "page": "231" } ], "opinion_index": 0 }, { "cite": "766 N.E.2d 556", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 2002, "pin_cites": [ { "page": "559" } ], "opinion_index": 0 }, { "cite": "54 Mass. App. Ct. 558", "category": "reporters:state", "reporter": "Mass. App. Ct.", "case_ids": [ 987529 ], "year": 2002, "pin_cites": [ { "page": "561-62" } ], "opinion_index": 0, "case_paths": [ "/mass-app-ct/54/0558-01" ] }, { "cite": "11 U.S.C. \u00a7 523", "category": "laws:leg_statute", "reporter": "U.S.C.", "year": 2000, "pin_cites": [ { "page": "(a)(4)" } ], "opinion_index": 0 }, { "cite": "353 F.3d 537", "category": "reporters:federal", "reporter": "F.3d", "case_ids": [ 9067036, 9295599 ], "year": 2003, "pin_cites": [ { "page": "540", "parenthetical": "concluding that pursuant to section 5-12-080(a), landlords hold tenant security deposits as fiduciaries for purposes of section 523(a)(4) of the Bankruptcy Code (11 U.S.C. \u00a7 523(a)(4) (2000)) pertaining to exceptions to discharge of debt in bankruptcy" } ], "opinion_index": 0, "case_paths": [ "/br/303/0537-01", "/f3d/353/0537-01" ] }, { "cite": "812 A.2d 866", "category": "reporters:state_regional", "reporter": "A.2d", "weight": 2, "year": 2003, "pin_cites": [ { "page": "868" }, { "page": "868" } ], "opinion_index": 0 }, { "cite": "74 Conn. App. 460", "category": "reporters:state", "reporter": "Conn. App.", "case_ids": [ 1309155 ], "weight": 2, "year": 2003, "pin_cites": [ { "page": "463" }, { "page": "463" } ], "opinion_index": 0, "case_paths": [ "/conn-app/74/0460-01" ] }, { "cite": "754 N.E.2d 314", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 2001, "opinion_index": 0 }, { "cite": "197 Ill. 2d 28", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 259112 ], "year": 2001, "pin_cites": [ { "page": "35" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/197/0028-01" ] }, { "cite": "622 N.E.2d 788", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1993, "opinion_index": 0 }, { "cite": "156 Ill. 2d 511", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 777551 ], "weight": 2, "year": 1993, "pin_cites": [ { "page": "517" }, { "page": "518" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/156/0511-01" ] }, { "cite": "458 N.E.2d 1137", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1983, "pin_cites": [ { "parenthetical": "holding that the construction of a municipal ordinance is a matter of law" } ], "opinion_index": 0 }, { "cite": "120 Ill. App. 3d 692", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3593297 ], "year": 1983, "pin_cites": [ { "page": "697", "parenthetical": "holding that the construction of a municipal ordinance is a matter of law" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/120/0692-01" ] }, { "cite": "137 N.E.2d 801", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1956, "opinion_index": 0 }, { "cite": "9 Ill. 2d 448", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5320306 ], "year": 1956, "pin_cites": [ { "page": "451" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/9/0448-01" ] }, { "cite": "801 N.E.2d 974", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 2003, "opinion_index": 0 }, { "cite": "344 Ill. App. 3d 915", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3777347 ], "year": 2003, "pin_cites": [ { "page": "918" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/344/0915-01" ] }, { "cite": "95 N.E.2d 920", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1950, "opinion_index": 0 }, { "cite": "408 Ill. 33", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 2642646 ], "year": 1950, "pin_cites": [ { "page": "37" } ], "opinion_index": 0, "case_paths": [ "/ill/408/0033-01" ] }, { "cite": "229 N.E.2d 522", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1967, "opinion_index": 0 }, { "cite": "37 Ill. 2d 537", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2866454 ], "year": 1967, "pin_cites": [ { "page": "542" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/37/0537-01" ] } ], "analysis": { "cardinality": 729, "char_count": 14821, "ocr_confidence": 0.768, "pagerank": { "raw": 9.454378177621789e-08, "percentile": 0.5172859498758422 }, "sha256": "3b582cdca4a9cda261ae601214d3c678f0f8aa0539558f5182f3af864cf3b764", "simhash": "1:695219f6316642e0", "word_count": 2454 }, "last_updated": "2023-07-14T16:31:29.254043+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "R. STARR, d/b/a George Ellison Management Company, Plaintiff-Appellee, v. GLYNNIS GAY, Defendant-Appellant." ], "opinions": [ { "text": "JUSTICE HALL\ndelivered the opinion of the court:\nThe central issue in this case is whether the commingling prohibition set forth in section 5\u201412\u2014080(a) of the Chicago Residential Landlord and Tenant Ordinance (Ordinance) (Chicago Municipal Code \u00a7 5\u201412\u2014080(a) (amended November 6, 1991)) is violated when a landlord-seller of a subject property transfers a tenant\u2019s security deposit to a purchaser at closing by applying the amount of the deposit toward the property\u2019s purchase price and then giving the purchaser a bookkeeping credit against the .purchase price equal to the amount of the deposit. We hold that this \u201ccredit method\u201d of transferring a tenant\u2019s security deposit at closing does not violate the commingling prohibition contained in section 5\u201412\u2014080(a) of the Ordinance.\nBACKGROUND\nIn 1994, Glynnis Gay (tenant) entered into a written one-year lease agreement with R. Starr, d/b/a George Ellison Management Company (landlord), for lease of an apartment in a 40-unit building in Chicago in which the owner did not reside. Tenant gave landlord a security deposit of $435 when she rented the apartment. The parties renewed the lease four times.\nIn a letter dated April 13, 1999, sent by certified mail, tenant notified the landlord that pursuant to section 5\u201412\u2014110(d) of the Ordinance (Chicago Municipal Code \u00a7 5\u201412\u2014110(d) (amended November 6, 1991)), she intended to withhold a portion of her monthly rent unless the landlord corrected 50 defects and violations in her apartment and common areas of the building within 14 days from receipt of the letter. In May 1999, tenant paid landlord reduced rent which tenant claimed reflected the reduced value of the premises due to the landlord\u2019s failure to correct 20.5 of the violations.\nThe following month, the landlord filed a forcible entry and detainer claim to regain possession of tenant\u2019s apartment. In July 1999, while the case was still pending, the landlord sold the building in which tenant\u2019s apartment was located. On August 12, 1999, tenant filed affirmative defenses and counterclaims to the landlord\u2019s forcible entry and detainer claim.\nOn October 13, 1999, the trial court entered an order granting the landlord\u2019s oral motion to dismiss its forcible entry and detainer claim. The matter was then reassigned for further proceedings regarding tenant\u2019s counterclaims.\nThe landlord-purchaser then filed a forcible entry and detainer claim against tenant but shortly thereafter entered into a settlement agreement with tenant in August 2000. As part of the settlement agreement, the landlord-purchaser deposited into an escrow account with tenant\u2019s attorney the sum of $4,000; tenant received $1,000 from the escrow deposit. Tenant also agreed to vacate the building on or before August 31, 2000, and waive all claims against the landlord-purchaser relating to her security deposit.\nAfter a protracted exchange of discovery motions, tenant filed her first amended counterclaims against the landlord on October 1, 2002. Count IV of the first amended counterclaims pertained to tenant\u2019s allegation that as part of the transaction for the sale of the subject building, the landlord improperly commingled her security deposit with landlord assets in violation of section 5\u201412\u2014080(a) of the Ordinance, when instead of transferring the security deposit to the landlord-purchaser via check, the landlord transferred the value of the security deposit by applying the amount of the deposit toward the purchase price and then giving the landlord-purchaser a bookkeeping credit against the purchase price equal to the amount of the deposit. Tenant argued that such a transfer improperly commingled her security deposit with landlord assets and thereby constituted a conversion of her deposit.\nOn May 6, 2003, the trial court denied tenant\u2019s motion for partial summary judgment as to count IY but the court stated that it was willing to give tenant\u2019s counsel a Rule 304(a) (155 Ill. 2d R. 304(a)) finding regarding the matter. Tenant\u2019s counsel accepted the trial court\u2019s offer and thereafter consented to landlord\u2019s counsel orally moving for partial summary judgment in order to allow the court to render its Rule 304(a) finding.\nThe trial court then entered an order granting landlord\u2019s counsel\u2019s oral motion for partial summary judgment as to count IY ruling as a matter of law that the transfer at issue did not violate section 5\u201412\u2014080(a) of the Ordinance. As promised, the trial court made a finding that pursuant to Supreme Court Rule 304(a), there was no just reason to delay enforcement or appeal of its order granting partial summary judgment in favor of the landlord as to count IY Tenant timely appealed after her motion for reconsideration was denied.\nANALYSIS\nIn ruling on the tenant\u2019s motion for partial summary judgment as to count IY the trial court was required to interpret section 5\u201412\u2014080(a) of the Ordinance. The same rules that govern the interpretation of statutes apply in construing municipal ordinances. City of East St. Louis v. Union Electric Co., 37 Ill. 2d 537, 542, 229 N.E.2d 522 (1967); City of Nameoki v. City of Granite City, 408 Ill. 33, 37, 95 N.E.2d 920 (1950); Sternic v. Hunter Properties, Inc., 344 Ill. App. 3d 915, 918, 801 N.E.2d 974 (2003). As in the case of a statute, the primary objective in construing an ordinance is to ascertain and give effect to the intent of the lawmaking body as disclosed by the language contained in the ordinance. Reitman v. Village of River Forest, 9 Ill. 2d 448, 451, 137 N.E.2d 801 (1956).\nInterpreting or construing a municipal ordinance is a matter of law for the trial court and is appropriate for summary judgment. See Young v. Village of Glen Ellyn, 120 Ill. App. 3d 692, 697, 458 N.E.2d 1137 (1983) (holding that the construction of a municipal ordinance is a matter of law). The purpose of summary judgment is not to try a question of fact but to determine whether a genuine issue of material fact exists. Gilbert v. Sycamore Municipal Hospital, 156 Ill. 2d 511, 517, 622 N.E.2d 788 (1993). Summary judgment is an efficient means of disposing of litigation but it is also a drastic measure and, therefore, should only be employed when the right of the moving party is clear and free from doubt. Gilbert, 156 Ill. 2d at 518. This court reviews the grant of summary judgment de novo. Morris v. Margulis, 197 Ill. 2d 28, 35, 754 N.E.2d 314 (2001).\nIn this case, we find that since a landlord-seller\u2019s \u201ccredit method\u201d of transferring a tenant\u2019s security deposit at closing does not violate the commingling prohibition contained in section 5\u201412\u2014080(a) of the Ordinance, no genuine issue of material fact exists as to this issue, and therefore, the trial court did not err in granting the landlord\u2019s motion for partial summary judgment as to count IV\nA security deposit has been defined as money a tenant deposits with a landlord as security for the tenant\u2019s full and faithful performance of the lease terms. Beal Bank, S.S.B. v. Airport Industrial Ltd. Partnership, 74 Conn. App. 460, 463, 812 A.2d 866, 868 (2003). Under the terms of a lease agreement, a security deposit remains the tenant\u2019s property which the landlord holds in \u201ctrust\u201d for the tenant\u2019s benefit subject to the tenant fulfilling its obligations under the lease. Beal Bank, S.S.B., 74 Conn. App. at 463, 812 A.2d at 868; see also In re McGee, 353 F.3d 537, 540 (7th Cir. 2003) (concluding that pursuant to section 5\u201412\u2014080(a), landlords hold tenant security deposits as fiduciaries for purposes of section 523(a)(4) of the Bankruptcy Code (11 U.S.C. \u00a7 523(a)(4) (2000)) pertaining to exceptions to discharge of debt in bankruptcy).\nSecurity deposit provisions like section 5\u201412\u2014080(a) are designed to keep tenant monies out of the reach of creditors of landlords and prevent risks inherent in commingling, such as a landlord\u2019s intentional or inadvertent personal use of tenant funds contained in a commingled account. See, e.g., Neihaus v. Maxwell, 54 Mass. App. Ct. 558, 561-62, 766 N.E.2d 556, 559 (2002).\nSection 5\u201412\u2014080(e) of the Ordinance (Chicago Municipal Code \u00a7 5\u201412\u2014080(e) (amended November 6, 1991)) authorizes a landlord of residential property holding tenants\u2019 security deposits to transfer those deposits along with accrued interest to the new owner upon sale of the property. However, this section does not specify a particular method for transferring a tenant\u2019s security deposit during such a sale.\nTenant contends that the \u201ccredit method\u201d of transferring her security deposit to the landlord-purchaser upon sale of the property violated the commingling prohibition contained in section 5\u201412\u2014080(a) of the ordinance. Specifically, tenant maintains that the landlord breached its fiduciary duty to her and violated section 5\u201412\u2014080(a)\u2019s commingling prohibition when the landlord transferred the value of her and other tenants\u2019 security deposits to the landlord-purchaser by applying the aggregate amount of the deposits ($22,225) toward the purchase price of the subject property and then giving the landlord-purchaser a credit against the purchase price equal to the amount of the deposits. Tenant argues that this method of transfer exposed her security deposit to creditor claims of the landlord and landlord-purchaser and amounted to a failure to keep her deposit in a separate federally insured account. Tenant\u2019s contentions are merit-less.\nIt has been determined that there are a number of methods, including the \u201ccredit method,\u201d that landlords can use to properly transfer a tenant\u2019s security deposit. See S. Saltz, Nonresidential Security Deposits, 27 Real Est. L.J. 225, 231 (1999) (\u201ctransfer of security deposits can be accomplished by the transfer of separate accounts in which non-commingled security deposits are held, by the transfer of other assets which are deposited as the security deposit, or by a credit against the purchase price in the amount of commingled security deposits\u201d); R. Graham, The Closing, RPST FL\u2014CLE 4 \u20141, \u00a7 4.45 (1997) (\u201cA credit to the buyers for the amount of tenant security deposits has the effect of reducing the cash to the sellers and giving the buyers the money that must be refunded to the tenant at the end of the term\u201d).\n\u201cA security deposit and interest due thereon shall continue to be the property of the tenant making such deposit, shall not be commingled with the assets of the landlord, and shall not be subject to the claims of any creditor of the landlord or of the landlord\u2019s successors in interest, including a foreclosing mortgagee or trustee in bankruptcy.\u201d Chicago Municipal Code \u00a7 5\u201412\u2014080(a) (amended November 6, 1991).\nOne court has found that a security deposit transfer similar to the one at issue in this case did not constitute improper commingling or conversion. See Tow v. Maidman, 56 Misc. 2d 468,_, 288 N.Y.S.2d 837, 839-40 (1968) (landlord\u2019s transfer of tenants\u2019 security deposits to purchaser at time of closing by extending a credit against purchase price of building equal to the amount of the deposits did not constitute an improper commingling or conversion of the deposits, where the deposits were not depleted during the transaction and the purchaser acknowledged holding the deposited funds as security).\nIn the instant case, as in Tow, there is no indication that the tenant\u2019s security deposit was depleted during the transfer. Furthermore, the momentary use of the value of the tenant\u2019s security deposit as a credit during closing did not expose the deposit to attachment by creditors of the landlord or landlord-purchaser.\nAttachment is a pretrial remedy wherein a defendant\u2019s property is seized and held until the rights of the parties are determined in the principal action. Cozart v. Cozart, 258 Ill. App. 3d 848, 850, 631 N.E.2d 889 (1994). The purpose of attachment is to permit a creditor to secure and hold a debtor\u2019s property to satisfy a debt which the creditor hopes to prove. Old Kent Bank v. Stoller, 254 Ill. App. 3d 1085, 1092, 627 N.E.2d 265 (1993).\nA landlord\u2019s \u201ccredit method\u201d of transferring a tenant\u2019s security deposit at closing does not suddenly render the deposit attachable landlord property. Prior to the transfer, a tenant\u2019s security deposit is held in trust by the landlord, and after the transfer, the deposit is then held in trust for the tenant\u2019s benefit by the new owner, since the new owner received a credit against the purchase price for the amount of the deposit. See, e.g., Tuteur v. P & F. Enterprises, Inc., 21 Ohio App. 2d 122, 134, 255 N.E.2d 284, 292 (1970) (subsequent purchaser has obligation to return security deposit to tenant where purchaser expressly assumes obligation or receives credit against purchase price for the amount of the deposit).\nWe hold that a landlord\u2019s \u201ccredit method\u201d of transferring a tenant\u2019s security deposit at closing does not violate the commingling prohibition contained in section 5\u201412\u2014080(a) of the Ordinance. A real estate closing statement that includes a credit in the amount of a tenant\u2019s security deposit complies with section 5\u201412\u2014080(a) of the Ordinance.\nAs a final note, we reject the landlord\u2019s argument that his transfer of tenant\u2019s security deposit at closing could not have violated section 5\u201412\u2014080(a) of the Ordinance, on the ground that at the time he was no longer the \u201clandlord.\u201d It is true that a voluntary sale of realty by a landlord terminates the relation of landlord and tenant as between the original lessor and tenant. Bellows v. Ziv, 38 Ill. App. 2d 342, 351, 187 N.E.2d 265 (1962). However, the landlord has failed to cite any legal authority holding that, during closing, a landlord loses his status as a landlord under the ordinance. Moreover, pursuant to section 5\u201412\u2014080(e) of the Ordinance, a transferor remains jointly and severally liable for the tenant\u2019s security deposit after sale of the premises, unless and until such transferor transfers said deposit and satisfies the notice requirements of the section. There is nothing in the record indicating that the landlord complied with the notice requirements of section 5\u201412\u2014080(e) of the Ordinance.\nAccordingly, for the reasons set forth above, we affirm the judgment of the circuit court of Cook County granting the landlord\u2019s oral motion for partial summary judgment as to count IV of tenant\u2019s first amended counterclaims.\nAffirmed.\nHOFFMAN and SOUTH, JJ, concur.\nThe landlord-purchaser is not a party to this appeal.\nSeetion 5\u201412\u2014080(a) of the Ordinance provides in relevant part as follows:", "type": "majority", "author": "JUSTICE HALL" } ], "attorneys": [ "Jon A. Duncan, of Armstrong & Associates, EC., of Oak Park, for appellant.", "Jerome Wiener and James R. Griffin, both of Schain, Burney, Ross & Citron, Ltd., of Chicago, for appellee." ], "corrections": "", "head_matter": "R. STARR, d/b/a George Ellison Management Company, Plaintiff-Appellee, v. GLYNNIS GAY, Defendant-Appellant.\nFirst District (2nd Division)\nNo. 1\u201403\u20142672\nOpinion filed December 30, 2004.\nJon A. Duncan, of Armstrong & Associates, EC., of Oak Park, for appellant.\nJerome Wiener and James R. Griffin, both of Schain, Burney, Ross & Citron, Ltd., of Chicago, for appellee." }, "file_name": "0610-01", "first_page_order": 628, "last_page_order": 634 }