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No. 3-07-0714 ______________________________________________________________________________ Filed June 16, 2009 IN THE APPELLATE COURT OF ILLINOIS THIRD DISTRICT A.D., 2009 AMERICAN MANAGEMENT CONSULTANT, LLC., and RIVER STONE APARTMENTS, Plaintiffs-Appellees, v. GEANIECE D. CARTER, Defendant-Appellant. ) ) ) ) ) ) ) ) ) ) ) Appeal from the Circuit Court of the Twelfth Judicial Circuit, Will County, Illinois,

No. 07-LM-2279 The Honorable James E. Egan Judge, Presiding.

JUSTICE McDADE delivered the judgment of the court and the following opinion:

Plaintiff, American Management Consultants LLC, filed a complaint against defendant, Geaniece Carter, pursuant to section 9-209 of the Illinois Code of Civil Procedure (the Code) on forcible entry and detainer (735 ILCS 5/9-209 (West 2006)) seeking past-due rent, utilities, and late charges totaling $1,002.73; possession of apartment 316C in Riverstone Apartments, 308 Woodcreek Drive, Bolingbrook, 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 plaintiff's request for unpaid

utilities. For the reasons that follow, we reverse. BACKGROUND The parties entered a 12-month written lease agreement in March 2007 for apartment 316C in plaintiff's apartment complex in Bolingbrook. The lease agreement stated defendant's 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's 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's 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' agreement defined these charges as additional rent. The lease provided that defendant was liable for all utility charges attributable to defendant's apartment and that defendant must pay those charges immediately upon receipt of an invoice or other written demand for payment. Occupants of plaintiff's 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' 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. In June 2007, defendant received a statement of charges for her rent and utilities that -2-

included a deduction of $101.76 as a "relocation credit." Plaintiff intended this "relocation credit" 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, plaintiff's 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's 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. On June 13, 2007, defendant received a notice plaintiff posted on the door of defendant's 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 9-209 of the Code (735 ILCS 5/9-209 (West 2006)). Defendant later testified she never received the five-day notice referenced in the June 13 demand for payment. On June 14, 2007, defendant contacted plaintiff and spoke to Sylvia, plaintiff's 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 plaintiff's 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 -3-

she should not be liable for late charges occasioned by plaintiff's 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. Sylvia declined defendant's 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's ongoing concerns over plaintiff's utilities billing practices. Defendant 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's use of those utilities each month and a statement of the charges per unit of use. Defendant's 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. Defendant testified that she next contacted the City of Bolingbrook. 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's requests until defendant threatened to contact an attorney regarding her lease and state laws covering utilities billing. Thereafter, defendant met with Sylvia, who -4-

informed defendant that plaintiff did not meter occupants' water and gas usage and that all tenants pay the same amount for water and gas regardless of the amount of each tenant's actual use. On June 20, 2007, defendant received a notice plaintiff posted on the door to defendant's 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's 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's 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's apartment with "no one being in actual possession thereof." 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. On 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. Plaintiff responded by informing defendant that it employed a system to prevent anyone -5-

from obtaining keys to tenants' apartments without authorization. Defendant testified that Sylvia later conceded that a painter had entered defendant's 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. Defendant 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's 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's favor. This appeal followed. ANALYSIS On 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.

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