{ "id": 4288327, "name": "AMERICAN MANAGEMENT CONSULTANT, LLC, et al., Plaintiffs-Appellees, v. GEANIECE D. CARTER, Defendant-Appellant", "name_abbreviation": "American Management Consultant, LLC v. Carter", "decision_date": "2009-06-16", "docket_number": "No. 3\u201407\u20140714", "first_page": "39", "last_page": "66", "citations": [ { "type": "official", "cite": "392 Ill. App. 3d 39" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "857 N.E.2d 743", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 6, "year": 2006, "pin_cites": [ { "page": "74" }, { "page": "74" }, { "page": "74" }, { "page": "74" }, { "page": "74" }, { "page": "74" } ], "opinion_index": 0 }, { "cite": "367 Ill. App. 3d 1077", "category": "reporters:state", "reporter": "Ill. 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App. 3d", "case_ids": [ 5785609 ], "year": 1992, "pin_cites": [ { "page": "229-30" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/235/0224-01" ] }, { "cite": "891 N.E.2d 1", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 2007, "pin_cites": [ { "page": "16" } ], "opinion_index": 0 }, { "cite": "383 Ill. App. 3d 645", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 4278897 ], "year": 2007, "pin_cites": [ { "page": "658" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/383/0645-01" ] }, { "cite": "831 N.E.2d 1100", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 2005, "pin_cites": [ { "page": "1102", "parenthetical": "an ambiguity exists in a contract if an essential term is undefined and the court cannot ascertain a \"plain, ordinary, and popular meaning\" for the term" } ], "opinion_index": 0 }, { "cite": "357 Ill. App. 3d 1076", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 4136715 ], "year": 2005, "pin_cites": [ { "page": "1079", "parenthetical": "an ambiguity exists in a contract if an essential term is undefined and the court cannot ascertain a \"plain, ordinary, and popular meaning\" for the term" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/357/1076-01" ] }, { "cite": "823 N.E.2d 597", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "year": 2005, "pin_cites": [ { "page": "604" }, { "page": "605", "parenthetical": "\"a contract is not valid without enforceable essential terms\"" } ], "opinion_index": 0 }, { "cite": "355 Ill. App. 3d 830", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3600161 ], "weight": 2, "year": 2005, "pin_cites": [ { "page": "839" }, { "page": "839" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/355/0830-01" ] }, { "cite": "680 N.E.2d 784", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1997, "pin_cites": [ { "page": "789", "parenthetical": "\"Where two or more instruments are executed by the same contracting parties in the course of the same transaction, the instruments will be considered together and construed with reference to one another because they are, in the eyes of the law, one contract\"" } ], "opinion_index": 0 }, { "cite": "288 Ill. App. 3d 534", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 1596964 ], "year": 1997, "pin_cites": [ { "page": "541", "parenthetical": "\"Where two or more instruments are executed by the same contracting parties in the course of the same transaction, the instruments will be considered together and construed with reference to one another because they are, in the eyes of the law, one contract\"" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/288/0534-01" ] }, { "cite": "10 N.E. 204", "category": "reporters:state_regional", "reporter": "N.E.", "year": 1887, "pin_cites": [ { "page": "206" } ], "opinion_index": 0 }, { "cite": "119 Ill. 379", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 2902572 ], "year": 1887, "pin_cites": [ { "page": "386" } ], "opinion_index": 0, "case_paths": [ "/ill/119/0379-01" ] }, { "cite": "675 N.E.2d 168", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1996, "pin_cites": [ { "page": "171", "parenthetical": "\" 'where different instruments are executed as the evidence of one transaction or agreement, they are to be read and construed as constituting but a single instrument' \"" } ], "opinion_index": 0 }, { "cite": "285 Ill. App. 3d 949", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 1295581 ], "year": 1996, "pin_cites": [ { "page": "953", "parenthetical": "\" 'where different instruments are executed as the evidence of one transaction or agreement, they are to be read and construed as constituting but a single instrument' \"" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/285/0949-01" ] }, { "cite": "500 N.E.2d 1", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1986, "pin_cites": [ { "page": "6" } ], "opinion_index": 0 }, { "cite": "114 Ill. 2d 133", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5542652 ], "year": 1986, "pin_cites": [ { "page": "145" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/114/0133-01" ] }, { "cite": "869 N.E.2d 310", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 2007, "pin_cites": [ { "page": "321" } ], "opinion_index": 0 }, { "cite": "373 Ill. 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The first group consists of 'those fundamental in character, relating to an essential element of the contract which prevent a meeting of the minds of the parties and so no agreement is made.' [Citation.]\"" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/379/0864-01" ] }, { "cite": "432 N.E.2d 1204", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1982, "pin_cites": [ { "page": "1207" } ], "opinion_index": 0 }, { "cite": "104 Ill. App. 3d 556", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5477821 ], "year": 1982, "pin_cites": [ { "page": "559-60" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/104/0556-01" ] }, { "cite": "883 N.E.2d 711", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 2008, "pin_cites": [ { "page": "714", "parenthetical": "\"the existence of the contract is a question of law\"" } ], "opinion_index": 0 }, { "cite": "379 Ill. 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CARTER, Defendant-Appellant." ], "opinions": [ { "text": "JUSTICE McDADE\ndelivered the judgment of the court and the following opinion:\nPlaintiff, American Management Consultants LLC, filed a complaint against defendant, Geaniece Carter, pursuant to section 9 \u2014 209 of the Illinois Code of Civil Procedure (the Code) on forcible entry and detainer (735 ILCS 5/9 \u2014 209 (West 2006)) seeking past-due rent, utilities, and late charges totaling $1,002.73; possession of apartment 316C in Riverstone Apartments, 308 Woodcreek Drive, Boling-brook, Illinois; and attorney fees and costs. Following a hearing, the circuit court of Will County entered judgment in favor of plaintiff and awarded it $1,190.62 in unpaid rent for the months of July 2007 and August 2007, including a $35 late charge for August rent; $500 attorney fees; and $203 costs; and it also ordered that defendant turn over possession of the apartment to plaintiff within two weeks. The court denied plaintiffs request for unpaid utilities. For the reasons that follow, we reverse.\nBACKGROUND\nThe parties entered a 12-month written lease agreement in March 2007 for apartment 316C in plaintiffs apartment complex in Boling-brook. The lease agreement stated defendant\u2019s monthly rent as $675 per month. The agreement also provided that in consideration for entering a 12-month lease, plaintiff granted defendant a deduction of $112 per month from the rent from March 2, 2007, until March 31, 2008, on the condition defendant paid each month\u2019s rent in full on or before the fifth day of each month. The lease also provided that if defendant failed to tender the full month\u2019s rent by the fifth day of each month, defendant agreed to pay plaintiff an additional $75 plus $5 on the sixth day and each additional day rent remained unpaid in full. The parties\u2019 agreement defined these charges as additional rent. The lease provided that defendant was liable for all utility charges attributable to defendant\u2019s apartment and that defendant must pay those charges immediately upon receipt of an invoice or other written demand for payment.\nOccupants of plaintiff\u2019s property did not receive direct utilities bills from the service providers. Plaintiff provided occupants of its apartments a monthly statement of the rent due for that month and for the utility charges attributable to the occupants\u2019 apartments. Plaintiff provided defendant a statement of her rent and utilities charges for the months of March, April, and May 2007 that did not include the deduction granted defendant in consideration for entering a 12-month lease. Defendant deducted the appropriate amount ($112) from the total charges stated on the March, April, and May statements of charges and tendered the reduced amount. Those rent payments were accepted by plaintiff.\nIn June 2007, defendant received a statement of charges for her rent and utilities that included a deduction of $101.76 as a \u201crelocation credit.\u201d Plaintiff intended this \u201crelocation credit\u201d to reflect the deduction granted in consideration of entering a 12-month lease but stated an incorrect amount. It appears that defendant deducted the discount from the total charges stated on the monthly notice as she had in previous months and tendered that amount plus utilities for a total of $533.62 as full payment to plaintiff on June 5, 2007. Rhonda Banks, plaintiffs assistant manager for Riverstone Apartments, testified that defendant failed to pay the full amount due for June. Banks testified that as of June 2007, plaintiff had changed its billing practice. She admitted that defendant\u2019s June statement contained an error. However, she testified, the statement of charges also states that any errors did not absolve the tenant of his or her obligation to pay all charges in a timely fashion.\nOn June 13, 2007, defendant received a notice plaintiff posted on the door of defendant\u2019s apartment demanding payment of $201.52 by June 13, 2007, or $211.52 by June 15, 2007. The notice defendant received on June 13 stated that plaintiff previously provided defendant with notice to pay rent or quit the apartment within five days pursuant to section 9 \u2014 209 of the Code (735 ILCS 5/9 \u2014 209 (West 2006)). Defendant later testified she never received the five-day notice referenced in the June 13 demand for payment.\nOn June 14, 2007, defendant contacted plaintiff and spoke to Sylvia, plaintiffs property manager. Sylvia informed defendant that the landlord had erred in stating the amount of the deduction in her June 2007 statement of charges but asserted that she had the responsibility to correct plaintiffs error and, therefore, she owed plaintiff an additional $101.76 for June rent plus late charges. Banks testified that the late charges at that time totaled $195. Defendant responded by reminding Sylvia that plaintiff caused her failure to pay the full amount due and stating that she should not be hable for late charges occasioned by plaintiffs error. Defendant also offered to pay $91.53 representing the actual amount defendant still owed taking into consideration the correct monthly deduction but not including any late fees. Banks agreed that the actual balance due for June was $91.52.\nSylvia declined defendant\u2019s offer and reasserted that defendant had to pay the late charges to resolve the issue. To this defendant responded by suggesting the matter be resolved in legal proceedings that could also address defendant\u2019s ongoing concerns over plaintiffs utilities billing practices.\nDefendant testified that before entering the lease agreement, plaintiff informed her that she would receive bills for water and gas utilities directly from the utilities providers. Plaintiff allegedly informed defendant that those monthly bills would state the amount of defendant\u2019s use of those utilities each month and a statement of the charges per unit of use. Defendant\u2019s first utility bill for March 2007 stated only a flat charge and did not include a statement of how the utility company determined that amount. Defendant contacted the utility provider and requested a statement of her usage and its calculations of her charges based on usage. The provider informed her that it did not have that information because it only sorted billing information plaintiff sent it. The provider suggested defendant contact plaintiff for a statement of her usage.\nDefendant testified that she next contacted the City of Boling-brook. The city informed her that plaintiff receives one water bill for the entire apartment complex. Defendant contacted plaintiff to request an explanation of how it apportioned charges for utilities. Plaintiff failed to respond to defendant\u2019s requests until defendant threatened to contact an attorney regarding her lease and state laws covering utilities billing. Thereafter, defendant met with Sylvia, who informed defendant that plaintiff did not meter occupants\u2019 water and gas usage and that all tenants pay the same amount for water and gas regardless of the amount of each tenant\u2019s actual use.\nOn June 20, 2007, defendant received a notice plaintiff posted on the door to defendant\u2019s apartment demanding payment of $276.52 in unpaid rent and late fees. The notice informed defendant that plaintiff would refuse to accept payment of July rent if defendant failed to pay that amount. On July 5, 2007, defendant attempted to pay plaintiff July rent. Sylvia returned defendant\u2019s tendered check. At that time Banks informed defendant that plaintiff was demanding payment of $907.73 for July rent ($563 including deduction), utilities ($58.21), and late fees ($200). On July 10, defendant received a third notice plaintiff posted on the door to defendant\u2019s apartment demanding payment of $1,002.73 within five days. Defendant did not pay. The notice stated that plaintiff posted it on the door to defendant\u2019s apartment with \u201cno one being in actual possession thereof.\u201d Defendant testified that as of July 10 she still lived in the apartment. Banks testified that as of the date of the hearing, defendant remained in possession of the apartment.\nOn July 20, 2007, defendant received a fourth notice posted on the door to her apartment demanding payment of $1,057.73 by July 21. Defendant filed a complaint with the police department accusing plaintiff of harassment. On August 11, defendant filed a complaint with the Bolingbrook police department stating that someone had entered her apartment without permission. Defendant testified that she informed plaintiff that its staff persistently entered her apartment without permission. She reported that she returned home to discover food eaten and that someone had been through her property.\nPlaintiff responded by informing defendant that it employed a system to prevent anyone from obtaining keys to tenants\u2019 apartments without authorization. Defendant testified that Sylvia later conceded that a painter had entered defendant\u2019s apartment on April 15. Defendant testified that prior to that date she installed a motion detector in her apartment. Defendant testified that the painter removed the motion detector from the wall, removed its batteries, and placed them on a table. In another instance, defendant encountered someone attempting to enter her apartment on June 20. When defendant confronted him, he informed defendant that he was performing pest control. Defendant testified that plaintiff never informed her these contractors would be entering her apartment.\nDefendant informed plaintiff that she refused to pay any charges for August because plaintiff had refused her tender of payment for July charges and defendant refused to pay any late fees. On August 12, 2007, defendant received a summons to appear on plaintiff\u2019s complaint in the circuit court of Will County seeking $1,002.73 for rent for June and July 2007, utilities, and late fees. The circuit court of Will County entered judgment in plaintiff\u2019s favor. This appeal followed.\nANALYSIS\nOn appeal, defendant argues that plaintiff violated the Illinois Landlord and Tenant Act (765 ILCS 705/0.01 et seq. (West 2006)) and the Federal Fair Debt Collection Practices Act (FDCPA) (15 U.S.C. \u00a71692 (2006)) by failing to properly serve notice of its demands for payment. Defendant also argues that the circuit court of Will County\u2019s judgment is erroneous in that it includes judgment for August 2007 rent for which plaintiff never served notice to pay pursuant to the Landlord and Tenant Act or the Fair Debt Collection Practices Act and which was not included in the summons served on defendant. Finally, defendant argues that plaintiff violated the Retaliatory Eviction Act (765 ILCS 720/1 et seq. (West 2006)) by initiating forcible entry and detainer proceedings only after she sought to remedy the parties\u2019 dispute in legal proceedings and after defendant initiated various complaints against plaintiff.\nA. Defendant\u2019s Allegations of Plaintiffs Alleged Violations of the Landlord and Tenant Act\nDefendant asserts that she offered to pay the full amount she owed plaintiff for the months of June and July but plaintiff refused and that plaintiffs refusal precludes judgment in its favor under section 9 \u2014 209 of the Code. Section 9 \u2014 209 of the Code reads as follows:\n\u201cA landlord or his or her agent may, anytime after rent is due, demand payment thereof and notify the tenant, in writing, that unless payment is made within a time mentioned in such notice, not less than 5 days after service thereof, the lease will be terminated. If the tenant does not within the time mentioned in such notice, pay the rent due, the landlord may consider the lease ended, and sue for the possession under the statute in relation to forcible entry and detainer, or maintain ejectment without further notice or demand. A claim for rent may be joined in the complaint, and a judgment obtained for the amount of rent found due, in any action or proceeding brought, in an action of forcible entry and detainer for the possession of the leased premises, under this section.\nNotice made pursuant to this Section shall, as hereinafter stated, not be invalidated by payments of past due rent demanded in the notice, when the payments do not, at the end of the notice period, total the amount demanded in the notice. The landlord may, however, agree in writing to continue the lease in exchange for receiving partial payment. To prevent invalidation, the notice must prominently state:\n\u2018Only FULL PAYMENT of the rent demanded in this notice will waive the landlord\u2019s right to terminate the lease under this notice, unless the landlord agrees in writing to continue the lease in exchange for receiving partial payment.\u2019\nCollection by the landlord of past rent due after the filing of a suit for possession or ejectment pursuant to failure of the tenant to pay the rent demanded in the notice shall not invalidate the suit.\u201d 735 ILCS 5/9 \u2014 209 (West 2006).\nDefendant cites Madison v. Rosser, 3 Ill. App. 3d 851, 279 N.E.2d 375 (1972), for the proposition that her offer to pay the full amount lawfully demanded in plaintiffs notice pursuant to section 9\u2014 209 of the Code precludes judgment in its favor in a forcible entry and detainer action. In Rosser, the court found that the evidence proved that the \u201cdefendant did tender to plaintiff the amount due\u201d as stated in the plaintiff\u2019s five-day notice to the defendant but the plaintiff refused the tender because he wanted the defendant out. Rosser, 3 Ill. App. 3d at 852, 279 N.E.2d at 375-76. The court held that having offered to pay the full amount due, the defendant\u2019s \u201cobligation under the notice was then satisfied.\u201d Rosser, 3 Ill. App. 3d at 852, 279 N.E.2d at 376. The court ruled that any \u201creason given by plaintiff for refusing the tender of rent is immaterial. Plaintiff could not predicate a forcible entry and detainer action on the ground that defendant had not complied with the terms of the notice.\u201d Rosser, 3 Ill. App. 3d at 852, 279 N.E.2d at 376.\nDefendant argues that the meaning of \u201crent\u201d as used in section 9 \u2014 209 covers only the \u201cconsideration paid for the use or occupation of the property\u201d and not additional charges for utilities and late fees. She concedes that plaintiffs demand included additional amounts (for utilities and late fees) but asserts that because she offered to pay the full amount of the actual rent and only refused to pay the late fees, then pursuant to Rosser she satisfied her obligation under section 9 \u2014 209 and plaintiff is not entitled to judgment in its favor.\nAs evidence that plaintiff illegally sought to collect utilities payments, defendant interprets the parties\u2019 agreement not to contain any provision that she is required to make payment for utilities directly to plaintiff. Specifically, the agreement provides as follows:\n\u201cResident agrees to be responsible for all utilities charged or attributable to the use of the Resident\u2019s apartment ***. Resident(s) understand and acknowledge that none of these services are separately metered and are administered by the respective utility or billing companies.\nResident shall be solely responsible for all utility services charges attributed to the apartment Resident occupies and Resident shall pay such charges immediately upon receipt of an invoice or other written demand for payment.\u201d\nFor the proposition that defendant\u2019s \u201crent\u201d did not include utilities defendant also cites section 5 of the Tenant Payment Utility Disclosure Act (Utility Disclosure Act) (765 ILCS 740/5(a) (West 2006)) as evidence that plaintiffs attempt to collect utilities was unlawful. Section 5 of the Utility Disclosure Act provides, in pertinent part, as follows:\n\u201c(a) No landlord may demand payment for master metered public utility services pursuant to a lease provision providing for tenant payment of a proportionate share of public utility service without the landlord first providing the tenant with a copy in writing either as part of the lease or another written agreement of the formula used by the landlord for allocating the public utility payments among the tenants. *** The landlord shall also make available to the tenant upon request a copy of the public utility bill for any billing period for which payment is demanded. Nothing herein shall preclude a landlord from leasing property to a tenant, including the cost of utilities, for a rental which does not segregate or allocate the cost of the utilities.\u201d 765 ILCS 740/5(a) (West 2006).\nDefendant asserts she requested plaintiff provide her with a metered bill as well as an explanation of how it allocated utilities but that plaintiff refused. Defendant also relies on the court\u2019s decision in Payne v. Coates-Miller, Inc., 52 Ill. App. 3d 288, 367 N.E.2d 406 (1977), for the proposition that five-day notices pursuant to section 9\u2014209 that include charges other than for rent are ineffective.\nThe Payne court did not reach the issue defendant frames before this court. In Payne the trial court \u201centered an order temporarily enjoining the assessment of costs, expenses and attorneys\u2019 fees in connection with late rent payments against the named plaintiffs and all other tenants residing in buildings managed and operated by defendant before a forcible entry and detainer judgment has been obtained against said persons.\u201d Payne, 52 Ill. App. 3d at 291, 367 N.E.2d at 409. The limited question presented to the Payne court, as relevant to the instant appeal, was whether the trial court abused its discretion in granting the temporary injunction because the plaintiffs\u2019 claims were moot when the injunction issued. Payne, 52 Ill. App. 3d at 291, 367 N.E.2d at 409. The court did not decide whether the trial court properly enjoined the defendant\u2019s practice. It held only that \u201cthe controversy over the practice is likely to recur,\u201d and, \u201c[therefore, *** a real controversy existed and [the] claim was not moot.\u201d Payne, 52 Ill. App. 3d at 292, 367 N.E.2d at 410. (Ultimately the parties agreed to settle the case on the merits. Payne v. Coates-Miller, Inc., 105 Ill. App. 3d 273, 274, 434 N.E.2d 306-07 (1982).)\nIn Chicago Housing Authority v. Bild, 346 Ill. App. 272, 274, 104 N.E.2d 666, 667 (1952), \u201c[t]he sole question [was] whether the charge for excess use of electricity is rent within the meaning of statutes relating to landlord and tenant and forcible entry and detainer.\u201d The court rejected the defendant\u2019s argument that \u201cthe term \u2018rent\u2019 must be limited to the profit out of the lands and tenements and cannot include compensation for such services as electricity furnished the tenant, even though the parties by their agreement expressly include the furnishing of such services as a part of the consideration for the rent fixed in the lease.\u201d Bild, 346 Ill. App. at 275, 104 N.E.2d at 668. The court rejected the argument because \u201c[t]he lease *** expressly provided that the monthly rental fixed therein included heat, hot water, gas for cooking, and electricity, and, as heretofore stated, made provision for the payment of additional sums as rent when electricity in excess of the amounts fixed by the lease for the respective months was used.\u201d (Emphasis added.) Bild, 346 Ill. App. at 277, 104 N.E.2d at 668.\nDefendant attempts to distinguish Bild on the grounds that because the parties\u2019 agreement does not specifically define utilities payments as \u201crent,\u201d plaintiff cannot seek those amounts pursuant to a notice under section 9\u2014209. We do not read Bild so narrowly. The Bild court recognized that no public policy suggested \u201cthat the term \u2018rent\u2019 must be limited to the profit out of the lands and tenements and cannot include compensation for such services.\u201d Bild, 346 Ill. App. at 275, 104 N.E.2d at 667. The Bild court found that \u201ccourts recognize *** additional payments as rent for the use and occupancy of the premises.\u201d (Emphasis added.) Bild, 346 Ill. App. at 275, 104 N.E.2d at 667. Moreover, \u201c[s]imilar provisions in respect to taxes, insurance premiums and repairs are recognized as valid provisions creating additional rent obligations on the lessee.\u201d Bild, 346 Ill. App. at 275-76, 104 N.E.2d at 667. The court found that Illinois also \u201crecognize[d] provisions in leases for the payment of taxes as obligations for the payment of rent.\u201d Bild, 346 Ill. App. at 276, 104 N.E.2d at 667.\nFinally, the court quoted a Texas court of civil appeals favorably as follows:\n\u201c \u2018While rent is defined as the recompense for the use and occupancy of lands, \u201cit is not confined solely to compensation for the use of the land, for chattels are often demised with the land, and form no inconsiderable portion of the consideration for which rent is paid.\u201d 12 Am. & Eng. Enc. Law, p. 730, and authorities cited. The statute giving a lien for the rent of \u201cany residence, storehouse, or other building\u201d does not change the above proposition of law, and the fact that the rent of a house might be increased by the furniture contained therein would not demand separation of the rent of the house unfurnished from the increase by reason of the use of the furniture.\u2019 \u201d Bild, 346 Ill. App. at 276, 104 N.E.2d at 668, quoting Stein v. Stely, 32 S.W 782, 783 (Tex. Civ. App. 1895).\nAlthough plaintiff actually charged defendant for an equal share of the utilities bill for the entire property, the parties\u2019 agreement provided that defendant would only be responsible for her proportionate share. Therefore, defendant\u2019s proportionate share of the utilities bill is all that plaintiff was entitled to collect from defendant. Plaintiff violated section 5 of the Utility Disclosure Act by failing to provide defendant with the formula it used to determine defendant\u2019s proportionate share of the utilities. Even had the parties agreed that defendant was responsible for an equal share of the total utilities, plaintiff violated section 5 by failing to provide defendant with a copy of the public utility bill for the billing period for which it demanded payment. 765 ILCS 740/5(a) (West 2006).\nNonetheless, nothing in Illinois law restricts \u201crent\u201d within the meaning of the Code to include only those charges for additional sums beyond \u201cthe recompense for the use and occupancy of lands\u201d (Bild, 346 Ill. App. 3d at 276, 104 N.E.2d at 667) that the parties\u2019 lease expressly define as \u201crent.\u201d Regardless of plaintiffs alleged inclusion of utilities in its section 9 \u2014 209 notice to defendant, she admits that the trial court found that she is not responsible to plaintiff for any utility bills. Therefore, if plaintiff had erroneously included a demand for payment, its error did not prejudice defendant.\nB. Plaintiffs Alleged Violations of the Fair Debt Collection Practices Act\nDefendant argues that because plaintiffs notice pursuant to section 9\u2014209 was defective for seeking payment of an amount other than for rent, plaintiffs only recourse to collect a debt defendant owed it was to comply with the federal Fair Debt Collection Practices Act. Defendant argues that plaintiff violated or failed to comply with the FDCPA by referencing a judgment that has not occurred, by reporting her alleged delinquency to a credit reporting agency, and by posting notice of its demand to pay on defendant\u2019s apartment door within view of the general public.\nFor reasons we will discuss below, we agree that plaintiffs notice pursuant to section 9\u2014209 was defective and defeats its claim against defendant under section 9\u2014209. Therefore, we are not required to reach defendant\u2019s FDCPA argument to resolve her appeal. We will address the issue because we feel it vital to resolve any questions surrounding plaintiffs efforts to collect \u201cdebts\u201d from defendant and others like her, and also because resolution of the question is of significant importance to future litigants in forcible entry and detainer proceedings. We address the FDCPA faced with the reality that no Illinois court has ever applied the FDCPA to a forcible entry and detainer action pursuant to section 9 \u2014 209. The United States District Court for the Northern District of Illinois addressed the question in Galuska v. Blumenthal, No. 92 C 3781 (N.D. Ill. June 26, 1994).\nIn Galuska, the defendant \u201cfiled a forcible entry and detainer action in Cook County circuit court, seeking immediate possession of the property\u201d against the plaintiff. Galuska, slip op. at 2. The plaintiff subsequently sued the defendant in federal district court alleging that it violated the FDCPA. Galuska, slip op. at 2. The Galuska court framed the question before it as whether \u201can obligation to surrender adverse possession of real property to its legal owner is identical to an obligation to pay money\u201d such that the FDCPA applied to the defendant\u2019s forcible entry and detainer action in Illinois state court. Galuska, slip op. at 4. The court held that an action for forcible entry and detainer under Illinois state law was not identical to an action to collect a debt under the FDCPA and granted the defendant\u2019s motion for summary judgment on the plaintiffs complaint pursuant to the FDCPA. Galuska, slip op. at 4.\nWe decline to follow Galuska because we do not analyze its rationale to apply to the situation presented in the case at bar. The Galuska court based its holding exclusively on the United States Supreme Court\u2019s conclusions in BFP v. Resolution Trust Corp., 511 U.S. 531, 128 L. Ed. 2d 556, 114 S. Ct. 1757 (1994). The Galuska court acknowledged that \u201cthe facts and issues of that case, which involved an alleged fraudulent conveyance of judicially foreclosed property, differed from those of [its] present case\u201d but found that BFP\u2019s \u201cconclusions apply directly\u201d to the question before it. Galuska, slip op. at 4. In BFP, the Supreme Court held that \u201cwhen a State\u2019s judicial foreclosure procedures have been followed, it is \u2018black letter\u2019 law that the foreclosure will be presumed valid.\u201d BFP, 511 U.S. at 542, 128 L. Ed. 2d at 566, 114 S. Ct. at 1763. The Supreme Court went on to hold as follows:\n\u201cFederal statutes impinging upon important state interests cannot be construed without regard to the implications of our dual system of government. When the Federal Government takes over local radiations in the vast network of our national economic enterprise and thereby radically readjusts the balance of state and national authority, those charged with the duty of legislating must be reasonably explicit. It is beyond question that an essential state interest is at issue here: we have said that \u2018the general welfare of society is involved in the security of the titles to real estate\u2019 and the power to ensure that security \u2018inherent in the very nature of state government.\u2019 Nor is there any doubt that the interpretation urged by petitioner would have a profound effect upon that interest: the title of every piece of realty purchased at foreclosure would be under a federally created cloud. To displace traditional State regulation in such a manner, the federal statutory purpose must be clear and manifest.\u201d BFP, 511 U.S. at 544, 128 L. Ed. 2d at 568, 114 S. Ct. at 1764-65.\nThe BFP Court\u2019s holding and, consequently, Galuska are immediately distinguishable because plaintiff completely failed to follow this state\u2019s procedures in its forcible entry and detainer action against defendant. The forcible entry and detainer statute does convey the right to force a party in adverse possession to surrender possession. Section 9\u2014102 of the forcible entry and detainer statute provides that \u201c[t]he person entitled to the possession of lands or tenements may be restored thereto.\u201d 735 ILCS 5/9\u2014102(a) (West 2006). That right may only be invoked under specific circumstances.\nRelevant here, the party entitled to possession may force surrender of an adverse possession when \u201cany lessee of the lands or tenements, or any person holding under such lessee, holds possession without right after the termination of the lease or tenancy by its own limitation, condition or terms, or by notice to quit or otherwise.\u201d 735 ILCS 5/9\u2014102(a)(4) (West 2006). Section 9 \u2014 209 does not establish procedures for actions to surrender adverse possession of real property to its legal owner. Rather, section 9\u2014209 provides a statutory mechanism to terminate a lease. 735 ILCS 5/9\u2014209 (West 2006) (\u201cIf the tenant does not within the time mentioned in such notice, pay the rent due, the landlord may consider the lease ended, and sue for the possession under the statute in relation to forcible entry and detainer***\").\nFinally, the \u201c \u2018clear and manifest\u2019 federal statutory purpose\u201d of the FDCPA is well served by its application to the procedures and tactics plaintiff and those similarly situated use in cases like defendant\u2019s. As Galuska noted:\n\u201cThe language of the FDCPA announces its purpose in no uncertain terms:\nIt is the purpose of this subchapter to eliminate abusive debt collection practices by debt collectors, to insure that those debt collectors who refrain from using abusive debt collection practices are not competitively disadvantaged, and to promote consistent State action to protect consumers against debt collection abuses. \u00a715 U.S.C. 1692(e) (1988).\u201d Galuska, slip op. at 4.\nDespite the FDCPA\u2019s failure to include past-due rent in its explicit definition of \u201cdebt,\u201d we find that efforts to collect rent may (and in this case did) involve \u201cabusive *** collection practices.\u201d More importantly, this state has expressed, through the forcible entry and detainer statute, its desire for \u201cconsistent State action to protect\u201d renters. Because the collection of past-due rent directly involves the concerns addressed by the FDCPA, we find it permissible to apply the FDCPA to those cases despite any displacement such application may have on \u201ctraditional state regulation.\u201d Galuska, slip op. at 5. Accordingly, we now hold, as a matter of first impression, that lessors are required to comply with the FDCPA in their efforts to collect past-due rent from their lessees.\nDefendant argues that plaintiff violated the notice provisions of the FDCPA. Defendant also argues that plaintiff violated the FDCPA by referencing a judgment it had not received in effort to collect a debt and by posting notice on her door having the effect of telling others of her debt. The FDCPA reads, in pertinent part, as follows:\n\u201c(a) Notice of debt; contents\nWithin five days after the initial communication with a consumer in connection with the collection of any debt, a debt collector shall, unless the following information is contained in the initial communication or the consumer has paid the debt, send the consumer a written notice containing\u2014\n(1) the amount of the debt;\n(2) the name of the creditor to whom the debt is owed;\n(3) a statement that unless the consumer, within thirty days after receipt of the notice, disputes the validity of the debt, or any portion thereof, the debt will be assumed to be valid by the debt collector;\n(4) a statement that if the consumer notifies the debt collector in writing within the thirty-day period that the debt, or any portion thereof, is disputed, the debt collector will obtain verification of the debt or a copy of a judgment against the consumer and a copy of such verification or judgment will be mailed to the consumer by the debt collector; and\n(5) a statement that, upon the consumer\u2019s written request within the thirty-day period, the debt collector will provide the consumer with the name and address of the original creditor, if different from the current creditor.\n(b) Disputed debts\nIf the consumer notifies the debt collector in writing within the thirty-day period described in subsection (a) of this section that the debt, or any portion thereof, is disputed, or that the consumer requests the name and address of the original creditor, the debt collector shall cease collection of the debt, or any disputed portion thereof, until the debt collector obtains verification of the debt or a copy of a judgment, or the name and address of the original creditor, and a copy of such verification or judgment, or name and address of the original creditor, is mailed to the consumer by the debt collector. Collection activities and communications that do not otherwise violate this subchapter may continue during the 30-day period referred to in subsection (a) [of this section] unless the consumer has notified the debt collector in writing that the debt, or any portion of the debt, is disputed or that the consumer requests the name and address of the original creditor. Any collection activities and communication during the 30-day period may not overshadow or be inconsistent with the disclosure of the consumer\u2019s right to dispute the debt or request the name and address of the original creditor.\n(c) Admission of liability\nThe failure of a consumer to dispute the validity of a debt under this section may not be construed by any court as an admission of liability by the consumer.\n(d) Legal pleadings\nA communication in the form of a formal pleading in a civil action shall not be treated as an initial communication for purposes of subsection (a) [of this section].\n(e) Notice provisions\nThe sending or delivery of any form or notice which does not relate to the collection of a debt and is expressly required by [the Internal Revenue Code of 1986, chapter 94 of this title,] or any provision of Federal or State law relating to notice of data security breach or privacy, or any regulation prescribed under any such provision of law, shall not be treated as an initial communication in connection with debt collection for purposes of this section.\u201d 15 U.S.C. \u00a71692g (2006).\nThe record demonstrates that defendant repeatedly disputed the debt but does not establish that defendant notified plaintiff in writing of her dispute. Although we hold that plaintiff is not entitled to relief under the forcible entry and detainer statute and, therefore, it is not necessary to our resolution of the instant appeal, we find that plaintiff failed to comply with the FDCPA. Plaintiffs notice pursuant to section 9 \u2014 209 and the June and July 2007 notices plaintiff posted on defendant\u2019s door do not comply with the requirements of section 1692g(a) of the FDCPA.\nC. Trial Court\u2019s Alleged Erroneous Inclusion of August Rent in Defendant\u2019s Judgment\nDefendant argues the trial court erred in awarding plaintiff a judgment including rent for August 2007 because plaintiff never made a claim for August rent in its section 9\u2014209 notices to defendant. Section 9\u2014209 of the Code provides that \u201c[a] claim for rent may be joined in the complaint, and a judgment obtained for the amount of rent found due, in any action or proceeding brought, in an action of forcible entry and detainer for the possession of the leased premises, under this section.\u201d 735 ILCS 5/9\u2014209 (West 2006).\nThe Code did not require plaintiff to include a demand for August rent in its section 9\u2014209 notice to defendant. Pursuant to section 9\u2014209, plaintiff may join a demand for all rent due with its demand for payment in its complaint for forcible entry and detainer. Nor does its failure to demand August rent in its section 9\u2014209 notice or its complaint for forcible entry and detainer preclude judgment in its favor for August rent if, in the detainer proceedings, the court determines that amount is due. Defendant does not dispute that she owes plaintiff rent for the month of August. Defendant admits that she failed to pay August rent on her assumption that it \u201cwould have been refused as was June and July.\u201d Defendant therefore concedes that the trial court properly determined that the \u201camount of rent found due\u201d includes rent for the month of August.\nBecause defendant admits she owed rent for August and nothing in the Code precludes judgment in plaintiff\u2019s favor for all rent \u201cdue,\u201d defendant\u2019s argument that the trial court erroneously included August rent in its judgment in plaintiffs favor must fail.\nD. Plaintiffs Alleged Violation of the Retaliatory Eviction Act Next, defendant argues that she established a prima facie case of retaliatory eviction and plaintiff failed to meet its burden to prove the eviction was nonretaliatory and, therefore, the trial court\u2019s order in favor of plaintiff must be reversed because \u201c[r]etaliatory eviction is a legitimate defense to forcible entry and detainer.\u201d Wood v. Wood, 284 Ill. App. 3d 718, 725, 672 N.E.2d 385, 390 (1996). The trial court\u2019s finding that the proponent of the defense failed to put forth sufficient evidence of retaliatory eviction will not be disturbed unless its finding is contrary to the manifest weight of the evidence. Shelby County Housing Authority v. Thornell, 144 Ill. App. 3d 71, 74-75, 493 N.E.2d 1109, 1112 (1986).\n\u201cIt is declared to be against the public policy of the State for a landlord to terminate or refuse to renew a lease or tenancy of property used as a residence on the ground that the tenant has complained to any governmental authority of a bona fide violation of any applicable building code, health ordinance, or similar regulation. Any provision in any lease, or any agreement or understanding, purporting to permit the landlord to terminate or refuse to renew a lease or tenancy for such reason is void.\u201d 765 ILCS 720/1 (West 2006).\nDefendant argues that plaintiff lacked any valid reason for filing its forcible entry and detainer action and did so only after defendant\u2019s complaints to various government agencies. In support of her contention that plaintiff lacked a valid reason for evicting her, defendant notes that plaintiff failed, in her estimation, to provide the statutorily required five-day notice to pay and subsequently refused her offer to pay the rent.\n\u201cThe prima facie elements of retaliatory eviction are that the tenant made complaints to a governmental authority, violations were found, the landlord was notified of the violations and the tenancy was terminated solely because of the tenant\u2019s complaints. [Citations.] Additionally, section 1 of the Act can be read only as barring the right of a landlord to terminate a lease and evict a tenant in those cases where the action is undertaken in retaliation for the tenant\u2019s complaints to governmental authority regarding code violations.\u201d Thornell, 144 Ill. App. 3d at 75, 493 N.E.2d at 1111-12.\nAs evidence that plaintiff filed its complaint in retaliation in violation of section 1 of the Retaliatory Eviction Act, defendant notes that plaintiff filed the complaint after she (a) contacted the Will County Legal Aid to question the validity of plaintiff\u2019s practice with regard to payment for utilities, (b) contacted the Village of Bolingbrook regarding the property\u2019s utility billing, and (c) complained to the Boling-brook police department that plaintiff was harassing her and that its staff allegedly entered her apartment illegally.\nAlthough \u201cthe retaliatory eviction defense has generally been recognized in the context of a landlord\u2019s retaliation for a tenant\u2019s complaints to governmental authorities regarding building codes *** [citations],\u201d this state \u201chas never decided the defense is limited to that recognized in the Eviction Act.\u201d Wood, 284 Ill. App. 3d at 725, 672 N.E.2d at 390. Rather, the court has recognized the possibility that circumstances may arise where a landlord\u2019s action in seeking to evict a tenant is so invidiously motivated and so contravenes public policy that the court could not implement the eviction in a forcible entry and detainer proceeding. Wood, 284 Ill. App. 3d at 725, 672 N.E.2d at 390, citing Seidelman v. Kouvavus, 57 Ill. App. 3d 350, 354, 373 N.E.2d 53, 56 (1978).\nTo that end, and as further evidence of plaintiffs improper motive, defendant points to plaintiffs posting four notices on her door \u201cfor the public to see\u201d and asserts that doing so was an attempt to intimidate her, plaintiffs alleged act of notifying a credit reporting agency of her delinquency before receiving a judgment in its favor, and plaintiff\u2019s refusal to explain its utilities billing practices. Although the plaintiff has the opportunity to assert a nonretaliatory reason for instigating forcible entry and detainer proceedings, defendant argues that the mere existence of a legitimate reason for eviction will not overcome the prohibition against retaliatory evictions if the evidence proves that the plaintiff was, in fact, motivated by any improper purpose.\nDefendant relies on Robinson v. Diamond Housing Corp., 463 F.2d 853, 865 (D.C. Cir. 1972), wherein the defendant asked the federal court to elucidate comprehensive guidelines for application of the Edwards defense, which provides that \u201ca tenant may assert the retaliatory motivation of his landlord as a defense to an otherwise proper eviction.\u201d Robinson, 463 F.2d at 856, citing Edwards v. Habib, 397 F.2d 687 (D.C. Cir. 1968), cert. denied, 393 U.S. 1016, 21 L. Ed. 2d 560, 89 S. Ct. 618 (1969). Although the Robinson court declined to enumerate guidelines for application of the Edwards defense, the court did clarify that \u201cthe Edwards defense deals with the landlord\u2019s subjective state of mind \u2014 that is, with his motive. If the landlord\u2019s actions are motivated by a desire to punish the tenant for exercising his rights or to chill the exercise of similar rights by other tenants, then they are impermissible.\u201d Robinson, 463 F.2d at 85.\nIn this case, the trial court\u2019s judgment rejecting defendant\u2019s retaliatory eviction defense is not contrary to the manifest weight of the evidence. Although defendant disputed the amount plaintiff sought to collect, she cannot dispute that, because plaintiff refused her timely tender of the apparently proper amount of the rent, she had not paid the actual rent due for June and July when plaintiff initiated forcible entry and detainer proceedings. In Thornell, the court affirmed the trial court\u2019s judgment that the defendant presented insufficient evidence of retaliatory eviction. The Thornell court affirmed the trial court\u2019s judgment rejecting the defense despite undisputed evidence in the record of numerous complaints against the plaintiff by the defendant. Thornell, 144 Ill. App. 3d at 75, 493 N.E.2d at 1112. The court found that where the defendant admitted that he made no attempt to pay the rent due, \u201cthe trier of fact could reasonably find that defendant\u2019s lease was terminated for failure to pay rent and not solely because of his complaints to HUD.\u201d Thornell, 144 Ill. App. 3d at 75, 493 N.E.2d at 1111-12.\nDespite the potential for reasonable inferences, this court would have to engage in speculation to find even that plaintiff was partially motivated by defendant\u2019s complaints. The role of this court, however, is not to reinterpret the evidence or to engage in speculation but only to determine if the evidence supports the trial court\u2019s judgment. Avery v. State Farm Mutual Automobile Insurance Co., 216 Ill. 2d 100, 208, 835 N.E.2d 801, 865-66 (2005) (\u201cAt best, the court is suggesting another possible interpretation of the testimony at issue and substituting its judgment for the circuit court\u2019s. This is not a reviewing court\u2019s role\u201d). Here, defendant admitted that her tender of rent for June and July was rejected by plaintiff because she disputed its attempt to collect late fees. The evidence supports a finding by the trial court that plaintiff filed its complaint for failure to pay rent. Its judgment is not against the manifest weight of the evidence and must be affirmed.\nAs demonstrated above, plaintiff has a valid basis for its forcible entry and detainer action against defendant. Moreover, plaintiff could properly seek payment of rent for August in the forcible entry and detainer action despite not including a demand for payment for August rent in its section 9 \u2014 209 notice to defendant. Finally, plaintiff did not improperly seek payment for utilities in its forcible entry and detainer action and, regardless, the trial court did not erroneously award plaintiff damages for unpaid utilities. Defendant\u2019s argument that plaintiff\u2019s cause of action is barred by the Retaliatory Eviction Act must, accordingly, fail.\nE. Plaintiffs Alleged Violation of Section 9 \u2014 211 of the Code.\nNext, defendant argues that plaintiff violated section 9\u2014211 of the Code by improperly posting its five-day notice on her door while she was still in possession of and residing in the apartment. Regardless of the existence of a valid lease between the parties, we find that plaintiffs act of posting notice on defendant\u2019s door defeats plaintiffs claim because plaintiff failed to effect service of process in compliance with statutory requirements.\nThe law provides that a plaintiff in a forcible entry and detainer action bears the burden of proving to the trial court his or her right to possession of the property in question. Harper Square Housing Corp. v. Hayes, 305 Ill. App. 3d 955, 963, 713 N.E.2d 666, 672 (1999). An action to recover possession of a premises is a special statutory proceeding and, as we have already discussed, a party seeking this remedy must strictly comply with the requirements of the statute. In re A.H., 195 Ill. 2d 408, 416, 748 N.E.2d 183, 189 (2001); Nance v. Bell, 210 Ill. App. 3d 97, 99, 568 N.E.2d 974, 975-76 (1991). Where the statute includes a requirement that written demand is made prior to filing a complaint, the demand must be made in strict compliance with the statute. Williams v. Manchester, 228 Ill. 2d 404, 419, 888 N.E.2d 1, 10 (2008); Eddy v. Kerr, 96 Ill. App. 3d 680, 681, 422 N.E.2d 176, 177 (1981).\nSection 9 \u2014 211 provides three methods of serving a notice of termination upon a tenant who is in actual possession of the premises. Section 9 \u2014 211 reads as follows:\n\u201cAny demand may be made or notice served by delivering a written or printed, or partly written and printed, copy thereof to the tenant, or by leaving the same with some person of the age of 13 years or upwards, residing on or in possession of the premises; or by sending a copy of the notice to the tenant by certified or registered mail, with a returned receipt from the addressee; and in case no one is in the actual possession of the premises, then by posting the same on the premises.\u201d 735 ILCS 5/9 \u2014 211 (West 2006).\nSection 9 \u2014 211 provides that the notice required in section 9 \u2014 209 proceedings may be served \u201cby posting the same on the premises\u201d only \u201cin case no one is in the actual possession of the premises.\u201d The five-day notice plaintiff included in the record as \u201cExhibit A\u201d shows that it was posted on defendant\u2019s door because \u201cno one\u201d was in \u201cactual possession\u201d of the premises. Contrary to the proof of service, at trial the landlord did not dispute that defendant was in possession of the premises at the time of service. In fact, Ms. Banks, the assistant manager, testified that defendant was still in possession of the premises on the date of trial.\nWe are aware that the court has held that \u201cthe methods of service suggested in the *** statute are not meant to be exhaustive. [Citation.] Illinois cases have upheld a landlord\u2019s -written notice even when the method of service deviated slightly from those noted in the statute. [Citation.]\u201d Prairie Management Corp. v. Bell, 289 Ill. App. 3d 746, 752, 682 N.E.2d 141, 145 (1997). Plaintiff\u2019s reliance on Bell is misplaced. The Bell case is distinguishable because the Bell court did not consider the section of the statute involved here, which only allows service by posting when the defendant is no longer in possession.\nWe now consider the issue that has been raised. The forcible entry and detainer statute is \u201cin derogation of the common law.\u201d Yale Tavern, Inc. v. Cosmopolitan National Bank, 259 Ill. App. 3d 965, 971, 632 N.E.2d 80, 85 (1994). The supreme court has given clear direction that \u201ca statute in derogation of the common law cannot be construed as changing the common law beyond what the statutory language expresses ***. *** Indeed, \u2018statutes in derogation of common law are to be strictly construed ***.\u2019 \u201d Williams, 228 Ill. 2d at 419, 888 N.E.2d at 10, quoting Summers v. Summers, 40 Ill. 2d 338, 342, 239 N.E.2d 795, 798 (1968). Section 9\u2014211 is an exclusive list of permissible delivery methods and must be strictly enforced. Section 9\u2014211 simply does not \u201cexpress\u201d that posting notice on the occupant\u2019s door when she is in actual possession of the premises is a method of \u201cdelivering *** copy thereof to the tenant.\u201d 735 ILCS 5/9\u2014211 (West 2006).\nAlthough we recognize that defendant actually did receive notice of plaintiffs forcible entry and detainer action, strictly construing the statute, as we must, we hold that the method by which notice was \u201cserved\u201d requires a finding that defendant did not receive proper notice and precludes plaintiff from obtaining relief under the statute. The face of the five-day notice contained in the record did not allow the trial court to conclude that proper service occurred based on the affidavit of service. Without proper service of notice, defendant\u2019s due process rights were violated and the court could not go forward on the purely statutory proceeding of forcible entry.\nE Plaintiffs Failure to Comply With the Forcible Entry and Detainer Statute\nDespite the foregoing conclusions, which we feel are mandated by existing law and that we are obligated to address based on the parties\u2019 arguments, defendant\u2019s arguments to this court highlight what we see as a threshold and decisive question in this case that the parties did not address. That is, whether they entered a valid lease agreement in the first instance. The question is threshold because, absent a valid lease agreement, defendant had no basis to invoke the power of the court pursuant to section 9 \u2014 209 to remove plaintiff from the premises. The question is decisive because we find the parties did not enter a valid lease agreement.\nFirst, as to the existence of a valid lease agreement as a prerequisite to the court\u2019s authority under section 9\u2014209, we note that Illinois law draws a clear distinction between an action for rent and an action for possession pursuant to the forcible entry and detainer statute. Sianis v. Kettler, 168 Ill. App. 3d 1071, 1074-75, 523 N.E.2d 157, 160 (1988). The statute provides an alternate remedy to landlords beyond any the parties agreed to in their lease. Here, for example, the \u201clease agreement\u201d specifically provides that the landlord may terminate the parties\u2019 agreement only under limited circumstances enumerated in the lease. The forcible entry and detainer statute provides a mechanism by which plaintiff could consider the lease ended other than for reasons listed in the terms of the \u201clease agreement.\u201d\nThe forcible entry and detainer statute is in derogation of common law. Perry v. Evanston Young Men\u2019s Christian Ass\u2019n, 92 Ill. App. 3d 820, 823, 416 N.E.2d 340, 343 (1981). Because the statute is contrary to common law it must be strictly construed. Williams v. Manchester, 228 Ill. 2d 404, 419, 888 N.E.2d 1, 10 (2008) (\u201c \u2018[S]tatutes in derogation of common law are to be strictly construed and nothing is to be read into such statutes by intendment or implication.\u2019 [Citation.]\u201d). Section 9\u2014209 grants the landlord the right to \u201csue for the possession under the statute in relation to forcible entry and detainer, or maintain ejectment\u201d after the lease is ended. 735 ILCS 5/9\u2014209 (West 2006) (upon meeting certain conditions \u201cthe landlord may consider the lease ended, and sue for the possession under the statute in relation to forcible entry and detainer\u201d (emphasis added)). The plain language of the statute predicates the right to sue \u201cunder the statute in relation to forcible entry and detainer\u201d on the existence \u2014 and termination \u2014 of a lease.\nMoreover, the forcible entry and detainer statute specifically defines what a lease is within the meaning of the statute. 735 ILCS 5/9 \u2014 214 (West 2006). For purposes of the statute, \u201c[t]he term \u2018lease\u2019 *** includes every letting, whether by verbal or written agreement.\u201d (Emphasis added.) 735 ILCS 5/9 \u2014 214 (West 2006). We find that the legislature clearly only intended the statute to apply to those situations where the parties have, at minimum, an actual \u201cagreement\u201d as to the letting of the subject property that is enforceable under the law. Here, the parties\u2019 alleged \u201cagreement\u201d is evidenced by the written \u201clease agreement.\u201d The court has the sole authority to determine whether the parties in fact reached an enforceable \u201cagreement\u201d in that written lease. Jannusch v. Naffziger, 379 Ill. App. 3d 381, 384, 883 N.E.2d 711, 714 (2008) (\u201cthe existence of the contract is a question of law\u201d).\nThe authority granted under the forcible entry and detainer statute and the proceedings and remedies provided by the Act are part of a comprehensive statutory scheme and, therefore, \u201cthe legislature may define it in such a way as to limit or preclude the circuit court\u2019s authority.\u201d In re A.H., 195 Ill. 2d 408, 416, 748 N.E.2d 183, 189 (2001).\n\u201c \u2018When a court\u2019s power to act is controlled by statute, the court is governed by the rules of limited jurisdiction\u2019 and the court \u2018must proceed within the strictures of the statute ***.\u2019 [Citation.] The court, therefore, has only the subject matter jurisdiction accorded to it by the statute and \u2018[a]ny action taken by the circuit court that exceeds its jurisdiction is void and may be attacked at any time.\u2019 [Citation.]\u201d In re A.H., 195 Ill. 2d at 416, 748 N.E.2d at 189.\nThe supreme court has found that under these circumstances we \u201cmust determine\u201d whether the court\u2019s order under the statute was proper \u201cor whether that action would exceed the jurisdiction of the court and be void.\u201d (Emphasis added.) In re A.H., 195 Ill. 2d at 416, 748 N.E.2d at 189. We are obligated to address plaintiffs full compliance with the terms of the statute \u2014 including the existence of a valid and enforceable agreement for the letting of the subject property \u2014 despite the parties\u2019 failure to fully address the question.\nOur determination in this regard is based on undisputed facts and is a determination we make as a matter of law. Moreover, our failure to address this question would result in an injustice to defendant. For all of these reasons, our consideration of plaintiffs full compliance with all of the statute\u2019s requirements is proper. State Farm Mutual Automobile Insurance Co. v. Suarez, 104 Ill. App. 3d 556, 559-60, 432 N.E.2d 1204, 1207 (1982) (\u201cThe general rule *** is that the theory upon which a case is presented may not be changed upon review, and that an issue not presented to the trial court cannot be raised for the first time on appeal. [Citation.] However, this general rule is not rigid and inflexible. Where injustice might result, this court may consider questions of law not presented below. [Citations.] Reviewing courts have decided issues not presented to or decided by the court whose decision is being reviewed. [Citations.]\u201d).\nFor the court to recognize the parties\u2019 agreement, triggering its authority to act under the statute, the written agreement must evidence a meeting of the minds between the parties. Wheeler-Dealer, Ltd. v. Christ, 379 Ill. App. 3d 864, 871, 885 N.E.2d 350, 356 (2008) (\u201cMistakes are divided into two groups. The first group consists of \u2018those fundamental in character, relating to an essential element of the contract which prevent a meeting of the minds of the parties and so no agreement is made.\u2019 [Citation.]\u201d). We begin by noting that \u201c[f]or a lease to be valid in Illinois \u2018there must be agreement as to the extent and bounds of the property, the rental price and time and manner of payment, and the term of the lease.\u2019 \u201d (Emphasis added.) Regency Commercial Associates, LLC v. Lopax, Inc., 373 Ill. App. 3d 270, 281, 869 N.E.2d 310, 321 (2007), quoting Ceres Illinois, Inc. v. Illinois Scrap Processing, Inc., 114 Ill. 2d 133, 145, 500 N.E.2d 1, 6 (1986).\nHere, the \u201clease agreement\u201d provides that the \u201c[ojwner has given Resident a rental concession [of] *** $112 off per month during the term of this Agreement.\u201d However, plaintiff admitted that it gave defendant a statement of charges that included a deduction of $101.76 as a \u201crelocation credit.\u201d That same statement of charges informed defendant that plaintiffs own errors in preparing the statement of charges would not result in any liability to plaintiff or absolve the tenant of his or her obligation to pay all of the correct charges in a \u201ctimely\u201d fashion. Plaintiff\u2019s apparent attempt to indemnify itself against its own negligence or wrongdoing in failing to properly credit defendant per the terms of the parties\u2019 alleged agreement and to provide her with an accurate statement of charges as contemplated by the express terms of the \u201clease agreement\u201d presents other insurmountable obstacles to finding that the parties entered an enforceable agreement.\nBefore turning to the issue of plaintiffs ill-executed attempt at self-indemnification, we find that the problems with plaintiffs \u201cstatement of charges\u201d are independently sufficient to find that the parties failed to reach an enforceable agreement for the letting of the apartment. First, we find that although plaintiff provided the \u201cstatement of charges\u201d monthly and that they were not part of the parties\u2019 \u201clease agreement,\u201d they nonetheless formed part of the parties\u2019 agreement. Defendant provided the notice to plaintiff in the course of the parties\u2019 ongoing transaction for the lease of the premises.\nThe \u201clease agreement\u201d provided that plaintiff would provide defendant a statement of the full amount of consideration for her use of the premises (including utilities) on a monthly basis. Therefore, for purposes of construing the \u201cagreement\u201d between the parties, we may properly consider the monthly statement of charges part of the written lease. Timothy Christian Schools v. Village of Western Springs, 285 Ill. App. 3d 949, 953, 675 N.E.2d 168, 171 (1996) (\u201c \u2018where different instruments are executed as the evidence of one transaction or agreement, they are to be read and construed as constituting but a single instrument\u2019 \u201d), quoting Wilson v. Roots, 119 Ill. 379, 386, 10 N.E. 204, 206 (1887); In re Estate of Mayfield, 288 Ill. App. 3d 534, 541, 680 N.E.2d 784, 789 (1997) (\u201cWhere two or more instruments are executed by the same contracting parties in the course of the same transaction, the instruments will be considered together and construed with reference to one another because they are, in the eyes of the law, one contract\u201d).\nThe parties\u2019 alleged agreement contains irreconcilable contradictions. Contradictions exist in the nature of the deduction from the agreed rent (as a \u201crelocation credit\u201d or as consideration for entering a 12-month lease) and the amount of the deduction. We may normally hesitate to find that a simple billing error is sufficient to abrogate an entire contract. But in this case, the terms of the contract (evidenced, in part, in the statement of charges) require one party to the lease to pay an amount the parties did not agree to or that party becomes liable for additional charges the parties did agree to under the express terms of the agreement. Additional contradictions exist in the \u201cagreement\u201d in that it also provides that those additional charges are not triggered (in the form of late fees) unless the lessee fails to pay the (correct) rent yet the lessee is obligated by the agreement, as interpreted by plaintiff and as admitted by defendant, to pay an incorrect amount.\nThere is yet another contradiction concerning the billing for utilities. The \u201clease agreement\u201d obligates defendant to pay an amount \u2014 to be included in her statement of charges \u2014 for utilities attributable to her unit. The \u201cagreement\u201d recites that the plaintiff does not maintain separate meters, but that the usage is administered by the utility providers. Implicit in this provision is the potential for defendant to control her monthly \u201crent\u201d by regulating her use of applicable utilities. Instead, however, plaintiff did nothing more than take the monthly utility amount, divide by the number of units, and bill defendant for her equal share. That formula for determining payment was not included in the lease. Even though, as we have previously noted, defendant could not complain about the utility billing in attacking the judgment because the trial court did not include any payment for utilities in the judgment calculation, it is nonetheless relevant on the issue of whether there was a meeting of the minds rendering this a valid contract.\nWe cannot find that anyone would \u201cagree\u201d to lease an apartment under such terms. (Nor, in fairness, do we make an explicit finding that plaintiff maliciously intended to set up a fraud against its tenants. Nonetheless, the effect of its practices and evident lack of skill in drafting contracts is to permit it to bill, under the guise of a binding contract, whatever it likes for the rental of its property.)\nWe find that there was no meeting of the minds between the parties as to one or more essential term of the \u201cagreement\u201d; specifically, the total consideration for use of the apartment or a consistent means of calculating that amount. Therefore we hold that the parties failed to enter an enforceable contract. Quinlan v. Stouffe, 355 Ill. App. 3d 830, 839, 823 N.E.2d 597, 604 (2005) (\u201cSince a meeting of the minds between the parties occurs when there has been assent to the same things in the same sense on all essential terms and conditions, the parties here did not have a meeting of the minds ***. [Citation.] As a result, the parties did not enter into a contract that had certain and enforceable essential terms\u201d).\nRegardless of our finding that there was not and could not have been a meeting of the minds between the parties that defendant would, effectively, be required to pay whatever plaintiff chose to bill in a particular month, we further find that, under the terms of the \u201cagreement,\u201d including the notice to tenants that they are required to pay the \u201ccorrect\u201d rental amount regardless of what is stated on the billing statement plaintiff provides, an essential term of the \u201cagreement\u201d is effectively undefined, preventing the formation of an enforceable contract.\nThe \u201clease agreement\u201d purports to set forth the circumstances under which the lessee becomes liable for late fees. Under the \u201cagreement,\u201d tenants are required to provide additional consideration for use of the apartments if they do not make payment on time. Were we to enforce the parties\u2019 \u201cagreement\u201d (including the billing statement) as written, a party to the \u201cagreement\u201d would be liable for late fees she may not know she incurred because she paid the amount stated on plaintiffs bill. Under such an arrangement, tenants would never know, from month to month, how much consideration is due under the contract. Under these specific circumstances we must find that the total consideration for the use of the property is undefined and the \u201clease agreement\u201d is ambiguous. Hunt v. Farmers Insurance Exchange, 357 Ill. App. 3d 1076, 1079, 831 N.E.2d 1100, 1102 (2005) (an ambiguity exists in a contract if an essential term is undefined and the court cannot ascertain a \u201cplain, ordinary, and popular meaning\u201d for the term).\n\u201cIt is a well-established precept that for an agreement to be legally binding, it must be reasonably definite and certain in its terms. \u2018When material terms and conditions are not ascertainable, there is no enforceable contract, even if the intent to contract is present.\u2019 \u201d Midwest Builder Distributing, Inc. v. Lord & Essex, Inc., 383 Ill. App. 3d 645, 658, 891 N.E.2d 1, 16 (2007), quoting Wagner Excello Foods, Inc. v. Fearn International, Inc., 235 Ill. App. 3d 224, 229-30, 601 N.E.2d 956, 960 (1992). The total amount of monthly rent (including those additional amounts that the parties contemplated in the \u201clease agreement\u201d) for the apartment, or a standard by which a tenant could consistently determine the total amount of rent due, is neither certain nor ascertainable from this \u201clease agreement.\u201d\nReturning to plaintiffs attempt to indemnify its own negligence, we find that the \u201cagreement\u201d contains a provision contrary to the public policy of this state. Plaintiff gave defendant a notice stating that its error in billing defendant had no effect on her obligation to pay the \u201ccorrect\u201d amount due under the \u201clease agreement.\u201d However, the lease agreement contains a waiver of liability only for\n\u201cdamages by reason of any injury *** connected with said premises or the land surrounding said premises *** or the acts of neglect of co-residents, visitors, or other occupants of said premises, or of any owners or occupants of adjacent *** property, and Resident hereby agrees to indemnify and hold harmless Owner from any liability, loss or obligations resulting from any such injuries or damages.\u201d\nGenerally, \u201c[b]arring a statutory provision to the contrary, contracts that clearly and explicitly provide indemnity against one\u2019s own negligence are valid and enforceable.\u201d Buenz v. Frontline Transportation Co., 227 Ill. 2d 302, 310 n.l, 882 N.E.2d 525, 530 n.l (2008). However, \u201c[b]ecause an agreement to indemnify a party for its own negligence is so unusual and extraordinary, the intent to indemnify to that extent must be beyond doubt by express stipulation.\u201d Blackshare v. Banfield, 367 Ill. App. 3d 1077, 1079, 857 N.E.2d 743, 74 (2006). This is so because \u201c[t]o impose *** the duty to indemnify against injuries or damages entirely out of his control is unreasonable in the absence of clear language in the contract imposing exactly that duty.\u201d Banfield, 367 Ill. App. 3d at 1079-80, 857 N.E.2d at 74. Where there is no clear intent, that portion of the agreement is unenforceable against the indemnitor. Banfield, 367 Ill. App. 3d at 1079-80, 857 N.E.2d at 74. Further, \u201cindemnity contracts are to be strictly construed, and any ambiguity in the agreement is to be construed most strongly against the indemnitee.\u201d Banfield, 367 Ill. App. 3d at 1079, 857 N.E.2d at 74.\nThe parties\u2019 \u201clease agreement\u201d does not contain an \u201cexpress stipulation\u201d that plaintiff is indemnified for its negligence in billing defendant. Although defendant agreed to pay additional consideration for use of the apartment based on when she pays her monthly rent, nowhere in the \u201clease agreement\u201d does defendant agree to pay additional consideration or to hold plaintiff harmless for billing errors that, under the \u201clease agreement\u201d as written, obligate defendant to pay additional consideration for use of the apartment in the form of \u201clate fees.\u201d The terms of the \u201cagreement\u201d obligating defendant to pay the \u201clate fees\u201d regardless of plaintiff\u2019s negligence in causing defendant to incur them are even more onerous in this case because of the potential for exactly what happened here: plaintiff attempted to enforce the \u201clease agreement\u201d as literally written (including the billing notices contemplated in the \u201clease agreement\u201d) and collect \u201clate fees\u201d despite its own error; defendant rightly refused to pay the additional charges caused by plaintiffs negligence in preparing her billing statement because nothing in her understanding of the parties\u2019 actual \u201cagreement\u201d or the \u201clease agreement\u201d obligated her to do so; and plaintiff began forcible entry and detainer proceedings resulting in defendant losing her home.\nUnder the terms of the \u201cagreement,\u201d which we find unenforceable, defendant became obligated to pay additional consideration for use of the apartment for reasons entirely out of her control. The \u201clease agreement\u201d contains no clear language imposing that duty. See Banfield, 367 Ill. App. 3d at 1079-80, 857 N.E.2d at 74. Accordingly, we hold that to the extent the parties\u2019 \u201cagreement\u201d as a whole imposes that duty, it is unenforceable against defendant. Banfield, 367 Ill. App. 3d at 1079-80, 857 N.E.2d at 74.\nG. Conclusions\nPlaintiff did not violate the Retaliatory Eviction Act. We find that plaintiff violated section 9 \u2014 211 of the Code. Because proper service of notice is a prerequisite to the right to forcible entry and detainer and defendant did not receive proper service, the trial court\u2019s order in favor of defendant must be reversed. We also find that plaintiff violated the Fair Debt Collection Practices Act. Finally, we find that by defining what is a lease and, necessarily, what is not a lease, the legislature intended to convey its intent that a valid lease agreement, and a failure to comply with its terms, are necessary to invoke the power of the State to wrest possession of the premises from the lessor. The statute does not abrogate the need for a lease. The statute instead explicitly recognizes the lessee\u2019s right to comply with the terms of the parties\u2019 agreement, assuming one exists, before the lessor may invoke the power of the court. The statute provides a mechanism by which the landlord may \u201cconsider the lease ended\u201d in circumstances other than those spelled out in the parties\u2019 agreement when it has taken certain steps and the possessor has failed to act as provided by the statute\u2019s terms.\nIn this case, defects in the parties\u2019 alleged \u201cagreement\u201d prevent us from finding that the parties did in fact have a valid, enforceable \u201cagreement\u201d within the meaning of the statute and Illinois law. The \u201clease agreement\u201d is not definite in stating defendant\u2019s rent. The amount defendant must pay in any given month to avoid liability to plaintiff for damages under the terms of the parties \u201cagreement\u201d (in the form of \u201clate fees\u201d) or repercussions under state law (as in this case under the forcible entry and detainer statute) is not ascertainable from the \u201clease agreement.\u201d Accordingly the contract is unenforceable. Stouffe, 355 Ill. App. 3d at 839, 823 N.E.2d at 605 (\u201ca contract is not valid without enforceable essential terms\u201d). Finally, we find that because the \u201clease agreement\u201d does not clearly and explicitly provide indemnity against plaintiffs own negligence yet the entirety of the written \u201cagreement\u201d attempts to indemnify plaintiff, it is not enforceable. Buenz, 227 Ill. 2d at 310, 882 N.E.2d at 530.\nBecause we find that the record before this court proves that the parties never entered a valid \u201clease agreement,\u201d plaintiff could not invoke the right to consider the lease ended and sue for possession under the statute or maintain an action for ejectment. Even were we to consider the \u201clease agreement\u201d a valid and enforceable agreement for the \u201cletting\u201d of the subject property within the meaning of the statute, plaintiff failed to comply with the terms of the statute and effectuate notice in compliance with section 9 \u2014 211.\nCONCLUSION\nFor all of the foregoing reasons, the judgment of the circuit court of Will County is reversed.\nReversed.", "type": "majority", "author": "JUSTICE McDADE" }, { "text": "JUSTICE WRIGHT,\nspecially concurring:\nAn action to recover possession of premises is a special statutory remedy that begins with a threshold determination of whether the five-day notice was properly served within the parameters of the statutory requirements. Without the proper service of the written five-day demand to cure the alleged contractual violations, the circuit court could not properly begin to consider the merits of the complaint attempting to invoke the landlord\u2019s statutory ability to terminate the lease, evict the tenant, and seek damages.\nThe author has included a thorough and instructive discussion of warranted concerns related to the Fair Debt Collection Practices Act and the validity of the lease itself. I respectfully suggest those issues are not determinative of the outcome of this appeal. I prefer to reserve an analysis of the merits of the complaint for another day since this tenant may no longer be in possession or may be able to remedy any monetary deficiencies if and when a five-day notice is properly served.\nI specially concur because I agree that this landlord is not entitled to relief under the forcible entry and detainer statute based on the defective notice to the tenant occupying the premises. However, I agree that the circuit court\u2019s decision must be reversed on the basis of defective notice alone.\nFor these reasons I specially concur.\nSCHMIDT, J., joins in this special concurrence.", "type": "concurrence", "author": "JUSTICE WRIGHT," } ], "attorneys": [ "Geaniece D. Carter, of Romeoville, appellant pro se.", "Wayne Shapiro and M. Anne Hannigan, both of Law Office of Wayne Shapiro, of Chicago, for appellees." ], "corrections": "", "head_matter": "AMERICAN MANAGEMENT CONSULTANT, LLC, et al., Plaintiffs-Appellees, v. GEANIECE D. CARTER, Defendant-Appellant.\nThird District\nNo. 3\u201407\u20140714\nOpinion filed June 16, 2009.\nWRIGHT, J., specially concurring, joined by SCHMIDT, J.\nGeaniece D. Carter, of Romeoville, appellant pro se.\nWayne Shapiro and M. Anne Hannigan, both of Law Office of Wayne Shapiro, of Chicago, for appellees." }, "file_name": "0039-01", "first_page_order": 55, "last_page_order": 82 }