2024 IL App (1st) 220725-U No. 1-22-0725 Order filed August 30, 2024 Fifth Division
NOTICE: This order was filed under Supreme Court Rule 23 and is not precedent except in the limited circumstances allowed under Rule 23(e)(1). ______________________________________________________________________________ IN THE APPELLATE COURT OF ILLINOIS FIRST DISTRICT ______________________________________________________________________________
ISSA AMER, d/b/a Amer Enterprises, ) Appeal from the ) Circuit Court of Plaintiff-Appellant, ) Cook County. ) v. ) ) HAROLD D. RIDER, JR., Individually and as Receiver ) No. 20 CH 7460 under Order of Court Dated July 18, 2016; REALTY & ) MORTGAGE CO.; REALTY & MORTGAGE ) BUILDING SERVICES CO.; and CARY G. SCHIFF, ) d/b/a Cary G. Schiff & Associates, ) Honorable ) Anna Helen Demacopoulos, Defendants-Appellees. ) Judge Presiding.
JUSTICE NAVARRO delivered the judgment of the court. Presiding Justice Mitchell and Justice Mikva concurred in the judgment.
ORDER
¶1 Held: We affirm the circuit court’s dismissal of plaintiff’s amended complaint with prejudice.
¶2 After Harold D. Rider, Jr., (Rider) was appointed as receiver in a mortgage foreclosure
action, his court-authorized agent, Realty & Mortgage Co. (Realty), filed a forcible entry and No. 1-22-0725
detainer action to obtain possession of a property that Issa Amer, doing business as Amer
Enterprises (Amer), leased. Following the eviction court entering an ex parte order of possession
for Amer’s premises, the Cook County Sheriff’s Office executed an eviction on the premises.
Later, Amer filed the instant lawsuit against Rider, both individually and as court-appointed
receiver, Realty, Realty & Mortgage Building Services Co. (Building Services), and Cary G.
Schiff, doing business as Cary G. Schiff & Associates (Schiff, and collectively, defendants), for
various causes of action related to the eviction. On defendants’ joint motion, the circuit court
dismissed all five counts of Amer’s amended complaint with prejudice. Amer now appeals that
dismissal and contends that the court erred for several reasons by dismissing his amended
complaint. For the reasons that follow, we affirm the court’s dismissal of Amer’s amended
complaint with prejudice.
¶3 I. BACKGROUND
¶4 A. The Underlying Litigation
¶5 In March 2015, Amer leased a warehouse located at 12613 South Kroll Drive in Alsip,
Illinois, which was a part of a larger industrial complex, from “Amazy-Alsip Centre.” Amer’s
lease listed “Issa Amer Amer Enterprises” as the lessee. According to the lease, the purpose of
leasing the warehouse was for the “storage of equipment.” Thereafter, the industrial complex
became subject to foreclosure proceedings in the circuit court of Cook County (Case No. 16 CH
7652). In July 2016, the foreclosure court entered an order appointing Rider as receiver to manage
the industrial property while the foreclosure action remained pending. The appointment order
granted Rider all of the powers enumerated in the Illinois Mortgage Foreclosure Law (Foreclosure
Law) (735 ILCS 5/15-1101 et seq. (West 2016)) and the authority to “collect all rents relating to
the property.” As part of the appointment order, the foreclosure court authorized Rider to retain
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Realty to assist him in managing the property, including lease management, tenant relations, and
rent billing and collections, pursuant to section 15-1704(c) of the Foreclosure Law (id. § 15-
1704(c)). The appointment order also stated that Rider could not employ legal counsel without
explicit court approval. Three months later, Rider filed his first receiver’s report, which described
his actions as receiver for the first three months of his appointment. According to a document
attached to Rider’s first receiver’s report, Amer’s property was known internally as “A+A World
of Furnishing & Remodeling.” The foreclosure court approved the report and granted Rider’s oral
motion to employ Schiff as “eviction counsel.”
¶6 In November 2016, “Realty & Mortgage Co. as Agent” filed a forcible entry and detainer
action in the municipal division of the circuit court of Cook County against “Furnishing &
Remodel A+A World Of” (Furnishing & Remodel) “and all unknown occupants” for allegedly
unlawfully withholding possession of the warehouse that Amer leased (Case No. 16 M1 720792).
Schiff was listed on the complaint as Realty’s attorney. Thereafter, the clerk of the circuit court
issued summonses. Multiple attempts at service through the Cook County Sherriff’s Office and a
special process server were made at the property Amer leased, but each attempt was unsuccessful.
Ultimately, Realty filed an affidavit for service by posting. In turn, the Cook County Sheriff’s
Office posted notice of the lawsuit at three different governmental offices in Chicago and sent a
notice to each defendant at the address of Amer’s property. On January 4, 2017, the eviction court
granted an ex parte order of possession in favor of Realty and against Furnishing & Remodel and
all unknown occupants for the property listed on Amer’s lease.
¶7 Later that month, the foreclosure court approved Rider’s second receiver’s report, in which
he stated that one of the five pending eviction actions was “AA World of Furnishing,” which had
the same address as the property Amer leased. In March 2017, the Cook County Sheriff’s Office
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performed an eviction of the property listed on Amer’s lease. According to an eviction worksheet,
the Cook County Sheriff’s Office made a forced entry. The worksheet further asserted that
possession of the property was tendered to Rosie Stephens, an agent of Realty. The following
month, the foreclosure court approved Rider’s third receiver’s report, in which he stated that “AA
World of Furnishing” with the same address listed on Amer’s lease had been evicted from the
industrial complex. Also that month, according to Amer’s amended complaint, Amer orally
demanded Realty return his personal property, but the company failed to do so.
¶8 In October 2017, an attorney for Amer sent a demand letter to Schiff, on behalf of Realty
and Building Services, asserting that Realty and Building Services, or their agents, wrongfully
entered Amer’s warehouse, and destroyed or appropriated his personal property. Amer’s attorney
requested Realty and Building Services return the appropriated property, provide damages for any
property destroyed, and provide an accounting of the items appropriated and destroyed. According
to Amer’s amended complaint, Realty and Building Services failed to return his personal property.
¶9 B. The Instant Litigation
¶ 10 In December 2020, Amer initiated the instant lawsuit against Realty and Building Services
in the chancery division of the circuit court of Cook County. Relevant here, Count I of his
complaint sought a declaration that the ex parte order of possession was void for a lack of
jurisdiction. On Realty and Building Services’ joint motion, the circuit court dismissed Amer’s
complaint under section 2-615 of the Code of Civil Procedure (Code) (735 ILCS 5/2-615 (West
2020)). The court, however, granted Amer leave to file an amended complaint and added that
“[n]othing in this order shall preclude [Amer] from filing a [section 2-1401] petition *** to vacate”
the ex parte order of possession in the eviction court.
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¶ 11 Amer evidently chose not to pursue relief in the eviction court and instead, he amended his
complaint and added as defendants, Rider, both individually and as court-appointed receiver, and
Schiff. In Count I of the amended complaint, which was again for a declaratory judgment, Amer
requested a declaration that the ex parte order of possession was void for a lack of subject-matter
jurisdiction because Realty, the named plaintiff, had no authority to bring the forcible entry and
detainer action. Additionally, Amer posited that Schiff had no authority to represent Realty in the
eviction action. Count II was for trover and conversion based on Rider, Realty, Building Services,
or agents thereof, allegedly destroying or converting approximately $250,000 worth of personal
property belonging to Amer that he had stored in the premises. Count III and Count IV were for
trespass and a violation of section 9-101 of the Code (id. § 9-101), respectively, based on Rider,
Realty, Building Services, or agents thereof, allegedly unlawfully making forcible entry into
Amer’s property. Lastly, Count V was for an accounting of the personal property of Amer’s that
Rider, Realty, Building Services, or agents thereof, allegedly took or destroyed. Although not clear
from the amended complaint, it appears Schiff is a defendant for all five counts
¶ 12 Defendants subsequently filed a joint motion to dismiss Amer’s amended complaint. First,
they argued that, under section 2-619(a)(1) of the Code (id. § 2-619(a)(1)), the circuit court did not
have jurisdiction because a claim brought against a court-appointed receiver and his agents must
be brought in the court that created the receivership, i.e., with the judge in the foreclosure case.
Defendants also argued that, under section 2-615 of the Code (id. § 2-615), Amer’s amended
complaint was insufficient at law because he relied on conclusory allegations unsupported by
specific facts. In response, Amer contended that the court had jurisdiction and defendants had
failed to provide any legal authority authorizing Realty to bring the initial forcible detainer action.
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Lastly, Amer argued that his amended complaint sufficiently alleged facts supporting his various
causes of action.
¶ 13 Following the parties’ briefing, the circuit court dismissed all five counts of Amer’s
amended complaint with prejudice under section 2-615 of the Code (id.). Concerning Count I, the
court stated:
“the requested relief *** for Declaratory Judgment is a collateral attack on a
previous judgement and does not seek to declare the rights of the parties going
forward and is therefore an inappropriate Declaratory Judgments cause of action.
[The count] is dismissed with prejudice because plaintiff can never allege sufficient
facts as an independent cause of action to declare a previously entered judgement
void in a collateral proceeding.”
Concerning Counts II through V, the court stated it:
“takes judicial notice of the court orders appointing the receiver and approving the
receivership reports in the foreclosure action, Case No. 2016-CH-07652, and the
attachments to the complaint that contradict the allegations in the complaint and
therefore the Court finds that Plaintiff could never state a cause of action for Counts
II-V.”
¶ 14 This appeal followed.
¶ 15 II. ANALYSIS
¶ 16 Amer contends for various reasons that the circuit court erred by dismissing his amended
complaint. 1 A motion to dismiss under section 2-615 “challenges the legal sufficiency of a
1 Schiff is the only appellee to have filed an appellee brief in this matter.
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complaint based on defects apparent on its face.” Marshall v. Burger King Corp., 222 Ill. 2d 422,
429 (2006). The question on review from such a dismissal “is whether the allegations of the
complaint, when construed in the light most favorable to the plaintiff, and taking all well-pleaded
facts and all reasonable inferences that may be drawn from those facts as true, are sufficient to
establish a cause of action upon which relief may be granted.” Napleton v. Village of Hinsdale,
229 Ill. 2d 296, 305 (2008). We review a section 2-615 dismissal de novo. Id. Additionally, we
may affirm the court’s dismissal on any basis supported by the record. American Freedom
Insurance Co. v. Garcia, 2021 IL App (1st) 200231, ¶ 32.
¶ 17 A. Count I
¶ 18 We first turn to Count I of Amer’s amended complaint. In Count I, Amer alleged the ex
parte order of possession from the eviction court was void for a lack of subject-matter jurisdiction.
However, on appeal, Amer contends that the circuit court should have considered that the order
was void for a lack of subject-matter jurisdiction and a lack of personal jurisdiction because he
was never properly served. Although Amer can raise a new theory of voidness for the first time on
appeal (see Casteel v. Jiminez, 2022 IL App (1st) 201288, ¶ 23), he did argue in briefing below
that the eviction court lacked personal jurisdiction over him due to a lack of service.
¶ 19 Whether an order is void “depends on whether the court entering the challenged order
possessed jurisdiction over the parties and the subject matter.” In re Marriage of Mitchell, 181 Ill.
2d 169, 174 (1998). Where there is a lack of jurisdiction, any ensuing order from the court is void.
Id. In Sarkissian v. Chicago Board of Education, 201 Ill. 2d 95, 105 (2002), our supreme court
asserted that “petitions seeking relief from void judgments [or orders] are section 2-1401
petitions.” Id. And thus, following Sarkissian, this court has stated that pleadings to challenge a
judgment or order as void “must be brought under section 2-1401 [of the Code].” OneWest Bank,
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FSB v. Topor, 2013 IL App (1st) 120010, ¶ 14; see also Cook v. Burnette, 341 Ill. App. 3d 652,
660 (2003) (asserting that “because the banks’ petitions were filed for the purpose of seeking to
vacate a void order, we must categorize them as” petitions under section 2-1401).
¶ 20 Section 2-1401 of the Code (735 ILCS 5/2-1401 (West 2020)) permits a party to seek
relief from a final judgment or order more than 30 days after its entry through filing a petition.
PNC Bank, National Ass’n v. Kusmierz, 2022 IL 126606, ¶ 15. Although “[t]he petition must be
filed in the same proceeding in which the order or judgment was entered,” it “is not a continuation
thereof.” 735 ILCS 5/2-1401(b) (West 2020). Rather, the petition commences a new proceeding.
Sarkissian, 201 Ill. 2d at 102. As a general rule, a section 2-1401 petition must be filed within two
years after the entry of the challenged order or judgment (735 ILCS 5/2-1401(c) (West 2020)), and
allege: “(1) due diligence in presenting the defense or claim, (2) due diligence in filing the petition,
and (3) a meritorious defense.” Kusmierz, 2022 IL 126606, ¶ 15. However, these general
requirements do not apply to a petition brought on voidness grounds (Sarkissian, 201 Ill. 2d at
104), and a party may challenge a void order at any time. EMC Mortgage Corp. v. Kemp, 2012 IL
113419, ¶ 15.
¶ 21 In the instant case, Count I of Amer’s amended complaint sought a judgment declaring the
eviction court’s ex parte order of possession void for a lack of jurisdiction. Amer indisputably did
not reference section 2-1401 of the Code, which was the proper vehicle to challenge the allegedly
void order. See OneWest, 2013 IL App (1st) 120010, ¶ 14; Cook, 341 Ill. App. 3d at 660. More
importantly, Amer filed Count I of his amended complaint in the present case, not the eviction
action. As discussed, a section 2-1401 petition “must be filed in the same proceeding in which the
[challenged] order or judgment was entered,” even though the petition “is not a continuation
thereof.” 735 ILCS 5/2-1401(b) (West 2020).
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¶ 22 Amer’s misstep is similar to the defendants’ mistake in First Midwest Bank v. Allen, 2023
IL App (5th) 220143-U. There, during a mortgage foreclosure action, the defendants filed a section
2-1401 petition seeking relief from an allegedly void order that had been entered in an earlier
foreclosure case involving the same parties. Id. ¶ 4. The circuit court found that the defendants’
section 2-1401 petition had not been filed in the proper case, but went on to deny the petition on
its merits. Id. ¶ 13. On appeal, the appellate court acknowledged that Sarkissian had relaxed certain
requirements of a section 2-1401 petition challenging an allegedly void order or judgment, but
observed that our supreme court “did not indicate *** the requirement that the petition be filed in
the same proceeding in which the challenged order or judgment was entered” was “not applicable
to a section 2-1401 petition attacking a void order.” Id. ¶ 18. As such, the appellate court concluded
that the defendants’ section 2-1401 petition had been filed in the wrong action. Id. ¶ 20.
¶ 23 Like the defendants in Allen, Amer filed Count I of his amended complaint improperly in
this action rather than in the eviction action. See 735 ILCS 5/2-1401(b) (West 2020); Allen, 2023
IL App (5th) 220143-U, ¶ 20. Amer did this despite the circuit court not so subtly directing him to
file a section 2-1401 petition in the eviction court when it dismissed his initial complaint. Given
the relief Amer seeks in Count I, the court correctly concluded that he could never obtain such
relief through the filing of a declaratory judgment in the instant case. As such, the court properly
dismissed Count I of Amer’s complaint with prejudice. See Smith v. Central Illinois Regional
Airport, 207 Ill. 2d 578, 584-85 (2003) (dismissal with prejudice is proper when “it is clear that
no set of facts can be proved under the pleading which would entitle the plaintiff to relief”).
¶ 24 B. Counts II through V
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¶ 25 Amer next contends that the circuit court erred in finding that the various court orders in
the foreclosure action and the attachments to his amended complaint contradicted the allegations
of his amended complaint such that he could never state a cause of action in Counts II through V.
¶ 26 When the circuit court reviews a motion to dismiss under section 2-615, it may consider
matters that are subject to judicial notice. Khan v. Deutsche Bank AG, 2012 IL 112219, ¶ 47. And
the court may take judicial notice of orders from closely related proceedings. See In re Marriage
of DeBow, 236 Ill. App. 3d 1038, 1040 (1992); Goad v. Evans, 191 Ill. App. 3d 283, 291 (1989).
Furthermore, “[a]n exhibit attached to a complaint becomes part of the pleading for every purpose,
including the decision on a motion to dismiss.” Gagnon v. Schickel, 2012 IL App (1st) 120645, ¶
18. And “[w]here an exhibit contradicts the allegations in a complaint, the exhibit controls.” Id.
¶ 27 Nevertheless, Schiff posits that Amer could not bring Counts II through V in the instant
case. Relying on section 2-415(c) of the Code (735 ILCS 5/2-415(c) (West 2020)), Schiff argues
that Amer had to file these causes of action in the court that created the receivership, i.e., the
foreclosure case. Section 2-415(c) of the Code provides that:
“Every receiver of any property appointed by any court of this State may be sued
in respect of any act or transaction of the receiver in carrying on the business
connected with the property, without the previous leave of the court in which the
receiver was appointed; but the action shall be subject to the jurisdiction of the court
in which the receiver was appointed, so far as the same is necessary to the ends of
justice.” Id.
¶ 28 As a preliminary manner, we take judicial notice that the foreclosure court discharged
Rider as receiver in July 2017, which is the same month that the foreclosure proceedings were
completed. See In re Marriage of DeBow, 236 Ill. App. 3d at 1040. Despite this, Schiff fails to
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explain how a third party could re-open a foreclosure case to assert causes of action against a
discharged receiver and related entities. Regardless, Schiff’s interpretation of section 2-415(c) is
too narrow. A judge in the circuit court of Cook County appointed Rider as receiver, and Amer
filed his lawsuit against Rider and related entities in the circuit court of Cook County. Amer
properly complied with the requirements of section 2-415(c). See Wolfe v. Illini Federal Saving &
Loan Ass’n, 158 Ill. App. 3d 321, 324 (1987) (where a receiver had been appointed during
mortgage foreclosure proceedings in the circuit court of Madison County, the appellate court
interpreted section 2-415(c) as “permit[ting] an original action against [the] receiver” in a separate
case filed in the circuit court of Madison County and noted that, “in practice an original action
against a receiver has been permitted after discharge by the circuit court”).
¶ 29 Having concluded that Amer properly filed Counts II through V of his amended complaint
in the instant case, we now turn to the propriety of the circuit court’s dismissal of those counts,
beginning with Count II. Therein, Amer raises a cause of action for trover and conversion based
on Rider, Realty, Building Services, or agents thereof, allegedly taking and destroying
approximately $250,000 worth of Amer’s personal property that he had stored on the premises.
“The modern action for the tort called conversion is descended from the old common law action
of trover.” Restatement (Second) of Torts § 222A (1965); see also In re Thebus, 108 Ill. 2d 255,
259 (1985) (citing to Restatement (Second) of Torts § 222A (1965)). As such, our analysis of
Count II can be accomplished solely through the common law cause of action of conversion.
“Conversion is any unauthorized act that deprives a person of their property permanently or for an
indefinite amount of time.” Wei Quan v. Arcotech Uniexpat, Inc., 2018 IL App (1st) 180227, ¶ 12.
To plead a claim for conversion, the plaintiff must sufficiently allege “that (1) he has a right to the
property; (2) he has an absolute and unconditional right to the immediate possession of the
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property; (3) he made a demand for possession; and (4) the defendant wrongfully and without
authorization assumed control, dominion, or ownership over the property.” Cirrincione v. Johnson,
184 Ill. 2d 109, 114 (1998). Though a tenant has been evicted from his premises, he still has a right
to his personal property therein such that a claim for conversion could potentially succeed. See
Mayle v. Urban Realty Works, LLC, 2022 IL App (1st) 210470, ¶¶ 1, 77, 81.
¶ 30 In the instant case, the allegations in Count II of Amer’s amended complaint are insufficient
to state a claim for conversion. We acknowledge that Amer sufficiently alleges that he stored
personal property on the premises, made both an oral and written demand to Realty and Building
Services for the return of such property, and Rider, Realty or Building Services failed to return his
property. Moreover, nothing in the exhibits attached to Amer’s amended complaint—the lease, the
various orders from the foreclosure action and eviction action, and his attorney’s written demand
for the return of his personal property—or other court orders in the record from the foreclosure
action and eviction action subject to judicial notice contradict the allegations of his amended
complaint. But, critically, Amer’s amended complaint does not identify the personal property
allegedly converted. All the pleading does is generally allege that Amer’s personal property, which
he stored on the premises, had been taken or destroyed. Such an allegation is insufficient to state
a claim for conversion, as “the subject of conversion is required to be an identifiable object of
property of which the plaintiff was wrongfully deprived.” In re Thebus, 108 Ill. 2d at 260; see also
Mid-America Fire & Marine Insurance Co. v. Middleton, 127 Ill. App. 3d 887, 892 (1984)
(asserting that “conversion will lie only for a specific chattel”).
¶ 31 Although we liberally construe a pleading (see Papadakis v. Fitness 19 IL 116, LLC, 2018
IL App (1st) 170388, ¶ 21) and recognize that Amer made a demand for an accounting of his
personal property that was allegedly taken or destroyed, such a vague allegation by Amer does not
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suffice. In a conversion action, a plaintiff’s allegations will be insufficient to state a claim when
he does not “identify[ ] who was responsible for the removal of [his] personal property from [an]
apartment.” Mayle, 2022 IL App (1st) 210470, ¶ 79. It follows logically then that a plaintiff’s
allegations will be insufficient to state a claim for conversion when he does not identify the
personal property allegedly taken or destroyed. Consequently, Amer’s allegations are insufficient
to state a claim for conversion against defendants.
¶ 32 Additionally, because Amer has not argued that the circuit court’s dismissal being made
with prejudice was in error nor is there any evidence in the record that he requested leave to file a
second amended complaint, we have no choice but to find the court properly dismissed Count II.
See Bajwa v. Metropolitan Life Insurance Co., 208 Ill. 2d 414, 435 (2004) (“The general rule is
that where a trial court dismisses a complaint and plaintiff does not seek leave to amend, the cause
of action must stand or fall on the sufficiency of the stricken pleading.”).
¶ 33 Turning to Count III of Amer’s amended complaint, wherein he claims that defendants
committed trespass based on Rider, Realty, Building Services, or agents thereof, unlawfully
making entry onto his property. “A defendant commits the tort of trespass by entering onto a
plaintiff’s land without permission, invitation, or other right.” Schweihs v. Chase Home Financial
LLC, 2021 IL App (1st) 191779, ¶ 30. “[A] defendant can be liable in trespass not only for his own
entry onto the plaintiff’s land but also if he causes a thing or third person to enter onto it.” Id.
¶ 34 But here, the exhibits attached to Amer’s amended complaint demonstrate that he cannot
state a claim for trespass. See Gagnon, 2012 IL App (1st) 120645, ¶ 18 (asserting that “[w]here an
exhibit contradicts the allegations in a complaint, the exhibit controls”). In the foreclosure action,
the foreclosure court appointed Rider, as receiver, to manage the industrial complex where Amer’s
premises was located while the foreclosure action remained pending, which the Foreclosure Law
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allowed. See 735 ILCS 5/15-1704(a) (West 2016). Pursuant to that appointment, the Foreclosure
Law granted Rider “full power and authority to operate, manage and conserve such property,”
including, but not limited to, the power to “collect the rents *** from the mortgaged real estate.”
The appointment order also granted Rider the same authority regarding the collection of rent. In
addition, the appointment order authorized Rider to retain Realty to assist him in managing the
property, including lease management, tenant relations, and rent billing and collections, which the
Foreclosure Law allowed. See id. § 15-1704(c) (providing that “[a] receiver may *** delegate
managerial functions to a person in the business of managing real estate of the kind involved who
is financially responsible, not related to the mortgagee or receiver and prudently selected”). And
during foreclosure proceedings, the foreclosure court granted Rider’s motion to employ Schiff as
eviction counsel, which the Foreclosure Law allowed. See id. § 15-1704(b)(4) (providing that a
court-appointed receiver “shall have the *** authority to *** employ counsel”).
¶ 35 Together, the foreclosure court orders and the Foreclosure Law allowed Realty, as Rider’s
agent, to institute an eviction action at the commercial property using Schiff as eviction counsel.
See Bleck v. Cosgrove, 32 Ill. App. 2d 267, 275 (1961) (where, during foreclosure proceedings, a
receiver was appointed and the appointment order authorized him “ ‘to take charge of the real
estate—and to collect the rents,’ ” the appellate court concluded that “[t]he authority to collect rent
is not confined to prayful begging on bended knee at the door of the tenant but includes the right
to institute appropriate legal action,” which authorized eviction proceedings against a tenant). To
this end, Realty, as Rider’s agent, had the authority to file the eviction action against Furnishing
& Remodel and all unknown occupants at the address of Amer’s property. That eviction action, in
turn, led to the eviction court granting an ex parte order of possession for Amer’s premises and the
Cook County Sheriff’s Office executing an eviction of Amer’s premises.
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¶ 36 It is true that Amer’s lease generally entitled him to possession and control of the subject
premises to the exclusion of all others, including the lessor. See Illinois Central R.R. Co. v.
Michigan Central R.R. Co., 18 Ill. App. 2d 462, 477 (1958). But Realty, as Rider’s agent, prevailed
in the forcible entry and detainer action, resulting in it obtaining an order of possession for Amer’s
premises. The purpose of the Forcible Entry and Detainer Act (Forcible Entry Act) (735 ILCS 5/9-
101 et seq. (West 2016)) “is to provide a speedy remedy to allow a person who is entitled to the
possession of certain real property to be restored to possession.” Wells Fargo Bank, N.A. v. Watson,
2012 IL App (3d) 110930, ¶ 14. It is a “mechanism for the peaceful adjudication of possession
rights in the trial court.” Circle Management, LLC. V. Oliver, 378 Ill. App. 3d 601, 608 (2007).
Because Realty, as Rider’s agent, obtained an order of possession for Amer’s premises through a
forcible entry and detainer action, the eviction court concluded that Realty, as Rider’s agent,
legally had the right to enter and possess Amer’s property. Therefore, Realty, as Rider’s court-
authorized agent, had the legal right to enter Amer’s premises, and Amer’s cause of action for
trespass necessarily fails. Consequently, the circuit court properly dismissed Count III with
prejudice. See Bajwa, 208 Ill. 2d at 435.
¶ 37 Turning to Count IV of Amer’s amended complaint, wherein he claims that defendants
violated section 9-101 of the Code (735 ILCS 5/9-101 (West 2020)). This section provides that
“[n]o person shall make an entry into lands or tenements except in cases where entry is allowed
by law, and in such cases he or she shall not enter with force, but in a peaceable manner.” Id. The
crux of Amer’s allegations in Count IV is that Rider, Realty, Building Services, or agents thereof,
unlawfully made entry into Amer’s property in a nonpeaceful manner, which resulted in damage
to his personal property.
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¶ 38 In the instant case, Amer attempts to bring an independent cause of action for a violation
of section 9-101 of the Code (735 ILCS 5/9-101 (West 2020)) outside forcible entry and detainer
proceedings. But this section does not provide an independent cause of action, but rather regulates
the appropriate way of restoring possession under forcible entry proceedings. See Bush v. Cooper,
2017 IL App (1st) 160746-U, ¶ 24 (“[S]ection 9-101 does not provide a cause of action, but
regulates the proper way of restoring the possession of a property under the Code; namely, if a
party is entitled to the possession of the property under the Code, she shall enter in a peaceable
manner”). Moreover, while a plaintiff may bring “an action for an improper eviction” pursuant to
the Forcible Entry Act, the remedy is “re-possession but not *** tort damages.” (Emphasis in
original.) Bozek v. Bank of America, N.A., 2021 IL App (1st) 191978, ¶ 91. Count IV of Amer’s
amended complaint seeks tort damages for defendants’ alleged violation of section 9-101 of the
Code, which is impermissible. See id. ¶¶ 91-92. Consequently, the circuit court properly dismissed
Count IV of Amer’s amended complaint with prejudice. See Bajwa, 208 Ill. 2d at 435.
¶ 39 Lastly, Count V of Amer’s amended complaint is a cause of action for an accounting. In
that count, Amer alleges that Rider, as a receiver, was a fiduciary and he, by and through his agents
Realty, Building Services or their agents, breached that fiduciary duty by unlawfully entering his
premises and destroying or converting his personal property. Amer further claims that he had no
adequate remedy at law for that breach.
¶ 40 “An accounting is a statement of receipts and disbursements to and from a particular
source.” Tufo v. Tufo, 2021 IL App (1st) 192521, ¶ 93. “The right to an accounting is not an
absolute right, but one which should be accorded only on equitable principles.” Tarin v. Pellonari,
253 Ill. App. 3d 542, 555 (1993). To plead a cause of action for an accounting, a plaintiff must
sufficiently allege “that there is no adequate remedy at law and one of the following: (1) a breach
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of a fiduciary relationship between the parties, (2) a need for discovery, (3) fraud, or (4) the
existence of mutual accounts that are of a complex nature.” MacLeod v. Commonwealth Edison,
2024 IL App (2d) 230237, ¶ 39. However, courts “typically do not enforce the requirement that
there be no adequate legal remedy when the accounting is based on a breach of fiduciary duty.”
Chicago Architectural Metals, Inc. v. Bush Construction Co., 2022 IL App (1st) 200587, ¶ 61.
Amer’s cause of action for an accounting, as pled, thus rests upon a breach of a fiduciary
relationship between Rider and him.
¶ 41 In order to breach a fiduciary duty, one must exist in the first place. Neade v. Portes, 193
Ill. 2d 433, 444 (2000). “A receiver is considered an officer of the court that appointed him,” and
he “owes fiduciary duties to the parties in the litigation.” City of Chicago v. Jewellery Tower, LLC,
2021 IL App (1st) 201352, ¶ 48. In other words, a receiver appointed in a mortgage foreclosure
action owes a fiduciary duty to the parties involved in the mortgage foreclosure action. And indeed,
Amer cites PSL Realty Co. v. Granite Investment Co., 76 Ill. App. 3d 978 (1979), aff’d in part,
rev’d in part, 86 Ill. 2d 291 (1981), for this proposition. But to the extent that Rider, as a court-
appointed receiver, owed a fiduciary duty to Amer as a third party outside of the foreclosure
proceedings, Amer fails to provide any case law supporting that proposition. “This court is not a
repository for an appellant to foist the burden of argument and research.” Graham v. Lakeview
Pantry, 2019 IL App (1st) 182003, ¶ 26. When a party fails to cite authority in support of an
argument, he forfeits that argument. Id. As Amer’s cause of action for an accounting is premised
upon a fiduciary duty existing between him and Rider, and he failed to provide any authority to
support that proposition, Amer has forfeited his argument that the circuit court erred in dismissing
his cause of action for an accounting. See id. Consequently, the circuit court properly dismissed
Count V of Amer’s amended complaint with prejudice. See Bajwa, 208 Ill. 2d at 435.
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¶ 42 III. CONCLUSION
¶ 43 For the reasons stated, we affirm the judgment of the circuit court of Cook County.
¶ 44 Affirmed.
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