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SIXTH DIVISION
September 3, 2004

Contemnor Michael F. Sheahan, sheriff of Cook County, appeals from an order of thecircuit court adjudging him in contempt for refusing to execute an order of possession entered infavor of plaintiff Fairbanks Capital. On appeal, contemnor contends that the contempt order mustbe vacated and the possession order entered in favor of plaintiff be declared invalid.

BACKGROUND

In April 2002, plaintiff filed a mortgage foreclosure action (case No. 02 CH 7658) againstCelestine Moore pursuant to the Illinois Mortgage Foreclosure Law (Foreclosure Law) (735 ILCS 5/15-1501 et seq. (West 2002)). In August 2002, the trial court entered a judgment offoreclosure, and on December 30, 2002, the court entered an order approving the foreclosure saleand an order for possession of the premises located at 11325 S. Edbrooke, Chicago, Illinois. Thepossession order was directed against Celestine Moore; plaintiff did not seek or obtain apossession order in the foreclosure action directed against any person other than Celestine Moore.

In March 2003, less than 90 days after the order of possession was entered in theforeclosure action, plaintiff filed the complaint in the instant case pursuant to the Illinois ForcibleEntry and Detainer Act (Detainer Act) (735 ILCS 5/9-101 et seq. (West 2002)). The complaintnamed Stanley Coleman, Stanley Walson, and "Unknown Occupants" as defendants and soughtpossession of the same premises at issue in the foreclosure action. Attached as exhibits to thecomplaint were the foreclosure complaint, judgment, and order approving the sale in theforeclosure action. The complaint recites the facts of the foreclosure action and relies uponorders entered during that action as authority for seeking eviction of defendants.

Contemnor returned the original summons for each defendant as "not served"; they showthat service attempts were made on March 14, 2003, and March 18, 2003. The record reflectsthat summons were thereafter served upon the individual defendants and unknown occupants byposting a notice at the Cook County Building, Chicago City Hall, and the Daley Center andmailing the notice to the premises.

On April 8, 2003, the trial court entered a default order granting possession of thepremises to plaintiff. The order states "this Court finds that unknown occupants were properlynamed and properly served."

On May 12, 2003, contemnor attempted to execute the April 8, 2003, order forpossession. Present at the premises at that time were an agent of plaintiff, two of contemnor'sdeputies, and four movers prepared to remove defendants' personal property from the premises. Contemnor's deputies spent approximately 12 minutes at the premises. During that time, theyencountered two persons at the premises who were not personally named in the possession order:Stanley Walker and Michael McFadden. The deputies found information to substantiate thatthese two individuals resided at the premises - a telephone bill listed at the premises' address in thename of McFadden and recent mail addressed to Walker at that address. Based upon thisinformation, the deputies followed contemnor's office procedures and refrained from executingthe possession order against McFadden and Walker. Plaintiff filed a petition for a rule to showcause why contemnor should not be held in contempt for refusing to enforce the possession order,and the trial court thereafter held a rule-to-show-cause hearing.

The evidence at that hearing demonstrated that the policies and procedures regardingevictions followed by contemnor's deputies were developed as a result of a case previously filedagainst contemnor in federal district court. In that case, Rembert v. Sheahan, No. 92 C 67,tenants alleged that contemnor's office routinely enforced possession orders in mortgageforeclosure cases against generically described occupants and thereby violated the due processrights of those occupants. See Rembert v. Sheahan, 62 F.3d 937-38 (7th Cir. 1995). "[W]hile thetenants' case was pending in the district court, the Illinois legislature amended the [ForeclosureLaw], effective 1994, to include a provision that the parties believ[ed] affect[ed] [the] case." Rembert, 62 F.3d at 939. "The amended [Foreclosure Law] apparently mandate[d] that a partyseeking foreclosure include certain information in a foreclosure complaint (such as the names ofdefendants whose right to possess the mortgaged real estate is sought to be terminated)." Rembert, 62 F.3d at 939. Contemnor, in turn, contended that these amendments rendered thetenants' claim moot since he intended to comply with them and had changed his practices pursuantto them. Rembert, 62 F.3d at 939. Although the federal district court approved the genericnaming of occupants, it did not address contemnor's argument that the tenants' case was moot. Rembert, 62 F.3d at 939-40. On appeal, the Seventh Circuit Court of Appeals remanded the case,directing the district court to determine whether contemnor had refrained from engaging in thecomplained-of naming practices and thus rendered moot the tenants' claim that those practicesviolated their due process rights. Rembert, 62 F.3d at 943. In addition, the Seventh Circuitspecified that if the district court found the issue before it was not moot, it should then decidewhether contemnor's practices comport with Illinois law and whether Illinois law comports withthe United States Constitution. See Rembert, 62 F.3d at 941-43.

On remand, the district court entered a judgment order that included an injunctionprohibiting contemnor from executing possession orders in foreclosure actions against defendantsnot specifically named in those orders. The judgment order was dated November 3, 1995, andprovided directions to contemnor regarding how to distinguish an occupant of the subjectpremises from a bystander or an interloper with no legal claim to the premises. The order directedcontemnor to determine whether the person in question could produce a utility bill in his nameaddressed to the premises or any other mail addressed to him at the premises which waspostmarked within the previous two weeks.

The district court subsequently modified the injunction included in its November 1995judgment order on October 8, 1999, pursuant to a joint motion filed by contemnor and theplaintiffs in Rembert. The modification provided that its judgment order applied to "forcible entryand detainer actions seeking possession of foreclosed premises solely by virtue of the foreclosurepurchase and not for any separate reason set forth in the [Detainer Act]." Following thismodification, the Illinois legislature enacted Public Act 92-823 (Pub. Act 92-823, eff. August 21,2002), which amended the Detainer Act to provide for service upon and eviction of unknownoccupants who were neither served nor named in the complaint. See 735 ILCS 5/9-104, 9-107(West 2002). Thereafter, contemnor filed a motion with the district court seeking clarification,direction, and possible modification of the judgment order based upon the subject amendments. The district court declined to modify its judgment order, finding that these amendments"effectively render[ed] [its] October 8, 1999 judgment order moot."

In the instant case, at the rule-to-show-cause hearing, Deputy Sheriff Juliann DiCarotestified that whenever contemnor's office had a forcible entry and detainer case indicating that itwas based upon a mortgage foreclosure case, the policy of contemnor's office was to notify theofficers that "the [subject possession] order should be enforced as a mortgage foreclosure case." She testified that this policy was based upon the judgment in Rembert and explained that thedeputies in the instant case refrained from executing the possession order based upon this policy. Following the hearing, the trial court found contemnor in indirect civil contempt of court forfailing to carry out the eviction of two "unknown occupants."

Contemnor now appeals that order, contending that the contempt order must be vacatedand the possession order which he refused to execute be declared invalid.

ANALYSIS

We first address whether the trial court properly found contemnor to be in civil contemptbased upon his refusal to execute the possession order against the two individuals who werefound at the premises but not specifically named in the possession order.

"[T]he determination to enter a contempt finding is a matter of discretion with the trialcourt that cannot be disturbed on review absent an abuse of that discretion." Mid-AmericanElevator Co. v. Norcon, Inc., 287 Ill. App. 3d 582, 591 (1996). Judgments of contempt arevacated when the record reflects that the contemnor refused to execute an order for possession"solely in an attempt to obtain review of [that order], which, in good faith, he believed he couldnot discharge." Norwest Mortgage, Inc. v. Ozuna, 302 Ill. App. 3d 674, 681 (1998).

Here, the record reflects that contemnor did believe in good faith that he could notlawfully execute the subject possession order. Specifically, he acted in accordance with themodified injunction issued by the federal district court in Rembert. That injunction, as modified,prohibited him from executing possession orders against generically named occupants in "forcibleentry and detainer actions seeking possession of foreclosed premises solely by virtue of aforeclosure purchase and not for any separate reason set forth in the [Detainer Act]." The orderentered in the instant detainer action did seek possession of foreclosed premises against unknownoccupants solely by virtue of a foreclosure purchase and thus directed contemnor to executeprecisely the type of order which the Rembert injunction prohibited him from executing. Whilethe federal district court in Rembert ultimately dismissed the case before it as moot based uponamendments to the Detainer Act, it did not specify how those amendments rendered the casemoot. Nor did the district court state how those amendments related to the Foreclosure Law orto the prior decision of the Seventh Circuit Court of Appeals remanding Rembert. We cannotconclude contemnor failed to act in good faith in light of the following factors: (1) the Rembertdecision issued by the Seventh Circuit Court of Appeals, (2) the federal district court's judgmentorder and injunction on remand prohibiting possession orders in foreclosure actions againstdefendants not specifically named, (3) the district court's October 8, 1999 modification to theinjunction included in that judgment order, (4) the uncertainty regarding how, if at all, theamendments to the Detainer Act included in Public Act 92-823 relate to the procedure contemnorwas required to follow in the instant case, and (5) the refusal of the federal district court to furthermodify its judgment order based on its finding that the amendments to the Detainer Act renderedits October 8, 1999 order moot. Accordingly, we hold that the trial court's contempt finding andimposition of fines constituted an abuse of discretion.

The second and primary issue before us is whether the April 8, 2003, possession orderauthorizing contemnor to assert possession against "unknown occupants" pursuant to theDetainer Act was valid. This issue requires us to determine whether the Foreclosure Law or theDetainer Act governs how occupants must be identified in possession orders entered in detaineractions that derive from foreclosure actions and are filed less than 90 days after entry of sale andpossession orders in those foreclosure actions.

Contemnor contends that the occupants his deputies encountered on the subject premiseswere required to be specifically named pursuant to sections 15-1508(g), 15-1701(h)(1), and 15-1701(f) of the Foreclosure Law (735 ILCS 5/15-1508(g), 15-1701(f), (h)(1) (West 2002)). Plaintiff responds that the generic naming of "unknown occupants" pursuant to the Detainer Actwas proper in the instant case.

Determination of the validity of the subject possession order requires us to interpretprovisions of the Detainer Act and Foreclosure Law, and we therefore apply de novo review. SeeCity of Chicago v. Harris Trust & Savings Bank, 346 Ill. App. 3d 609, 617 (2004). "Whenconstruing a statute, our primary goal is to determine and give effect to the intent of thelegislature." Seasons-4, Inc. v. Hertz Corp., 338 Ill. App. 3d 565, 571 (2003). "Inquiries intolegislative intent begin with the language of the statute, which is 'the most reliable indicator of thelegislature's objectives in enacting a particular law.' " Seasons-4, 338 Ill. App. 3d at 571, quotingMichigan Avenue National Bank v. County of Cook, 191 Ill. 2d 493, 504 (2000). "We must givestatutory language its plain and ordinary meaning, and when the language is clear andunambiguous, we must apply the statute without resorting to additional aids of statutoryconstruction." Seasons-4, 338 Ill. App. 3d at 571. "When construing a statute, we mayconsider 'the reason and necessity for the statute and the evils it was intended to remedy.' " Seasons-4, 338 Ill. App. 3d at 571, quoting In re Marriage of Beyer, 324 Ill. App. 3d 305, 309(2001).

Section 15-1508(g) of the Foreclosure Law states in relevant part:

"An order of possession authorizing the removal of a personfrom possession of the mortgaged real estate shall be entered andenforced only against those persons personally named as individualsin the complaint or the petition under subsection (h) of Section 15-1701 and in the order of possession and shall not be entered andenforced against any person who is only generically described as anunknown owner or nonrecord claimant or by another genericdesignation in the complaint.

Notwithstanding the preceding paragraph, the failure topersonally name, include, or seek an award of possession of themortgaged real estate against a person in the confirmation ordershall not abrogate any right that the purchaser may have topossession of the mortgaged real estate and to maintain aproceeding against that person for possession under Article 9 ofthis Code [the Detainer Act] or subsection (h) of Section 15-1701;and possession against a person who (1) has not been personallynamed as a party to the foreclosure and (2) has not been providedan opportunity to be heard in the foreclosure proceeding may besought only by maintaining a proceeding under Article 9 of thisCode or subsection (h) of section 15-1701." 735 ILCS 5/15-1508(g) (West 2002).

Section 15-1701(h)(1) of the Foreclosure Law states in relevant part:

"The mortgagee-in-possession of the mortgaged real estate*** may, at any time during the pendency of the foreclosure and upto 90 days after the date of the order confirming the sale, file asupplemental petition for possession against a person not personallynamed as a party to the foreclosure. The supplemental petition forpossession shall name each such occupant against whom possessionis sought and state the facts upon which the claim for relief ispremised." 735 ILCS 5/15-1701(h)(1) (West 2002).

Section 15-1701(f) of the Foreclosure Law states that "[t]he provisions of this Articleproviding for possession of mortgaged real estate shall supersede any other inconsistent statutoryprovisions." 735 ILCS 5/15-1701(f) (West 2002).

Section 9-104 of the Detainer Act was amended in 2002 and states in relevant part:

"[I]f those in possession are unknown occupants *** then[the notice of demand for possession may be made] by delivering acopy of the notice, directed to 'unknown occupants', to theoccupant *** or by posting a copy of the notice on the premisesdirected to 'unknown occupants.' " 735 ILCS 5/9-104 (West 2002).

In addition, section 9-107 of the Detainer Act provides that unknown occupants may beconstructively served with process by posting or publication and mailing of notices and providesthat a subsequently entered order of possession is enforceable against unknown occupants. 735ILCS 5/9-107 (West 2002).

The parties do not dispute that sections 9-104 and 9-107 of the Detainer Act authorizeexecution of possession orders in detainer actions against generically named occupants onpremises not subject to a prior foreclosure action. Furthermore, the parties do not dispute thatsection 15-1508(g) of the Foreclosure Law prohibits execution of possession orders againstgenerically named occupants in foreclosure actions. The parties do dispute, however, whether theDetainer Act authorizes execution of possession orders against generically named occupantswhen, as in the instant case, the claimant files a detainer action less than 90 days after obtaining anorder of foreclosure and possession for the same premises pursuant to the Foreclosure Law.

Contemnor contends "plaintiff impermissibly attempted to circumvent the foreclosurestatute by filing this forcible entry case seeking an order for possession against 'unknownoccupants.' " In support of this contention, contemnor argues that section 15-1701(f) of theForeclosure Law, which states that the Foreclosure Law's provisions providing for possession ofmortgaged real estate shall supersede any other inconsistent provisions, precluded execution ofthe possession order obtained in the instant detainer action. Specifically, contemnor argues thatthe Detainer Act's provision authorizing execution of possession orders against unknownoccupants is inconsistent with the Foreclosure Law's provisions prohibiting execution of suchorders.

Plaintiff responds that the possession order directed against unknown occupants was validand enforceable. Plaintiff contends that the Detainer Act and the Foreclosure Law "are notinconsistent, but rather, are separate and distinct bases to seek relief under Illinois law." Plaintiffclaims that the Detainer Act applies to all forcible entry and detainer claims, regardless of whetherthey relate to foreclosures.

The plain language of section 15-1508(g) of the Foreclosure Law prohibits execution of apossession order which authorizes removal of generically described persons from mortgagedpremises. 735 ILCS 5/15-1508(g) (West 2002). The plain language of section 15-1701(h)(1) ofthe Foreclosure Law gives claimants in foreclosure actions the opportunity to file a supplementalpetition that specifically names additional occupants against whom possession is sought during the90 days after entry of the order confirming the sale. 735 ILCS 5/15-1701(h)(1) (West 2002). The unambiguous language of these two provisions of the Foreclosure Law demonstrates thelegislature's intent to preclude removal of generically described occupants from foreclosedpremises during the 90 days immediately following entry of the order confirming the sale andgranting possession of the foreclosed premises pursuant to the Foreclosure Law. Theseprovisions reflect the legislature's intent to encourage parties seeking possession of foreclosedpremises to attempt to identify unknown occupants and provide those occupants with notice oftheir interest in the foreclosed property during the 90 days following entry of the orderauthorizing the foreclosure sale and providing for possession.

We recognize sections 9-104 and 9-107 of the Detainer Act provide that possessionorders may be enforced against generically described occupants and appear, on their face, toconflict with the provision in the Foreclosure Law prohibiting the execution of such orders. Wenote, however, that the plain language of section 15-1701(f) of the Foreclosure Law states thatthe Foreclosure Law's provisions "shall supersede any other inconsistent statutory provisions." 735 ILCS 5/15-1701(f) (West 2002)). Thus, to the extent the provisions of the Detainer Act areinconsistent with provisions in the Foreclosure Law, we conclude that the Foreclosure Law'sprovisions control. Furthermore, we note that "[i]t is *** a fundamental rule of statutoryconstruction that where there exists a general statutory provision and a specific statutoryprovision, either in the same or in another act, both relating to the same subject, the specificprovision controls and should be applied." Knolls Condominium Ass'n v. Harms, 202 Ill. 2d 450,459 (2002). The subject provisions of the Detainer Act authorize enforcement of possessionorders against generically named occupants, but they do not provide a specific time line duringwhich such orders may be entered. Nor do those provisions expressly address execution ofpossession orders against occupants residing on foreclosed property. In contrast, the applicableprovisions of the Foreclosure Law specifically apply to foreclosed property and provide a specific90-day window for parties seeking possession to file a supplemental petition naming specificoccupants.

Plaintiff argues that "the legislature could have amended the [Detainer] Act in 2002 toprohibit orders of possession of foreclosed premises solely by virtue of a foreclosure purchase, butit chose not to do so." Plaintiff's argument is not persuasive. As contemnor notes in its replybrief, when the legislature amended the Detainer Act in 2002 to authorize execution of possessionorders against generically described occupants, it did not similarly amend the Foreclosure Law. The legislature is presumed to have been aware that the Foreclosure Law prohibited genericdescriptions of occupants in possession orders and that the possession-related provisions of theForeclosure Law superseded any inconsistent provisions included in other statutes. See, e.g.,State of Illinois v. Mikusch, 138 Ill. 2d 242, 248 (1990) (noting that courts will presume that "thelegislature, in enacting various statutes, acts rationally and with full knowledge of all previousenactments"). Despite the presence of the prohibitions against the generic naming of occupantsincluded in the Foreclosure Law, the legislature did not repeal or modify those prohibitions at thetime it amended the Detainer Act. Its decision to leave these prohibitions in place reflects that itdid not intend to modify their scope, effect, or application.

Finally, we recognize, as plaintiff notes in its brief, that section 15-1508(g) of theForeclosure Law provides that claimants may seek possession under the Detainer Act. As notedearlier, the plain language of section 15-1508(g) states in relevant part:

"[T]he failure to personally name, include, or seek an awardof possession of the mortgaged real estate against a person in theconfirmation order shall not abrogate any right that the purchasermay have to possession of the mortgaged real estate and tomaintain a proceeding against that person for possession underArticle 9 of this Code or subsection (h) of Section 15-1701 ***[.]" 735 ILCS 5/15-1508(g) (West 2002).

This language makes reference to a purchaser's right to seek a possession order against anunknown occupant under the Detainer Act. It does not, however, state that this right isunconditional. Rather, the language states that the failure to name a specific occupant does notnegate "any right that the purchaser may have *** to maintain a proceeding against that personfor possession under [the Detainer Act]." (Emphasis added.) 735 ILCS 5/15-1508(g) (West2002). As noted above, the right which a purchaser actually has to execute a possession orderobtained in a detainer action is not categoric but is limited by the Foreclosure Law. For thereasons previously discussed, we hold that while a claimant may seek possession under theDetainer Act against specifically named occupants at any time, his right to execute a possessionorder under the Detainer Act against generically named occupants on mortgaged property mayonly be exercised after 90 days have elapsed from the date of the initial order of possession in theforeclosure action.

CONCLUSION

Based on the foregoing reasons, we vacate the trial court's judgment for contempt and itsentry of fine against contemnor and remand this case for further proceedings consistent with thisopinion.

Vacated and remanded.

FITZGERALD SMITH, P.J., and GALLAGHER, J., concur.