Case: 1:13-cv Document #: 80 Filed: 04/04/14 Page 1 of 25 PageID #:663

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1 Case: 1:13-cv Document #: 80 Filed: 04/04/14 Page 1 of 25 PageID #:663 IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS EASTERN DIVISION ADRIAN ALANI and AMANDA PEREZ, on behalf of themselves and all others similarly situated and STATE OF ILLINOIS ex rel. ADRIAN ALANI and AMANDA PEREZ, v. Plaintiffs, FC HARRIS PAVILION APARTMENTS LIMITED PARTNERSHIP a/k/a HARRIS- PAVILION LIMITED PARTNERSHIP, et al., Defendants. ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) Case No. 13-cv-5959 Judge John Z. Lee Magistrate Judge Jeffrey Cole ANSWER TO FIRST AMENDED CLASS ACTION COMPLAINT Defendants, FC Harris Pavilion Apartments Limited Partnership a/k/a Harris-Pavilion Limited Partnership, Forest City Residential Management, Inc. d/b/a The Pavilion, Forest City Residential Group, Inc., and Forest City Equity Services, Inc. d/b/a Forest City Residential Development, Inc. ( Defendants ), answer Plaintiffs First Amended Complaint. 1. Plaintiffs Adrian Alani and Amanda Perez ( Plaintiffs ) are natural persons and residents of the County of Cook in the State of Illinois. Defendants lack knowledge or information sufficient to form a belief as to the truth of the allegations of this Paragraph. 2. From July 30, 2012 until June 2, 2013, Plaintiffs lived in Unit 707 at the subject matter complex. Defendants lack knowledge or information sufficient to form a belief as to the truth of the allegations of this Paragraph.

2 Case: 1:13-cv Document #: 80 Filed: 04/04/14 Page 2 of 25 PageID #: Throughout the Plaintiffs tenancy in 2013, Plaintiff Perez was pregnant with the Plaintiffs first child. Defendants lack knowledge or information sufficient to form a belief as to the truth of the allegations of this Paragraph. 4. Defendant FC Harris Pavilion Apartments Limited Partnership a/k/a Harris- Pavilion Limited Partnership ( FC Harris ) is an Illinois Limited Partnership with its designated office located at 2 North Lasalle Street, Suite 400, in Chicago, Illinois. Admit. 5. At all times herein relevant, according to records maintained by the Cook County Recorder of Deeds, FC Harris was and is the record owner of the subject matter complex. Admit. 6. At all times herein relevant, FC Harris was a subsidiary of an investment and securities firm named William Harris Investors, Inc. 7. Defendant Forest City Residential Management, Inc. ( Forest City Management ) is an Ohio Corporation with its principal offices located at 50 Public Square #1360, in Cleveland, Ohio. Defendants deny that #1360 is the correct suite, but admit the remaining allegations of this Paragraph. 8. At all times herein relevant, Forest City Management was and is the property management company for the subject matter complex. Admit. 9. Defendant Forest City Residential Group, Inc. ( Forest City Group ) is an Ohio Corporation with its principal offices located at 50 Public Square #1360, in Cleveland, Ohio. Admit. 10. At all times herein relevant, Defendants Forest City Group and Forest City Management acted as a single economic and business entity in their dealings with tenants at the subject matter complex. 2

3 Case: 1:13-cv Document #: 80 Filed: 04/04/14 Page 3 of 25 PageID #: Defendant Forest City Equity Services, Inc. d/b/a Forest City Residential Development ( Forest City Equity ), Inc. is an Ohio Corporation with its principal offices located at 50 Public Square #1360, in Cleveland, Ohio. Admit. 12. Forest City Management, Forest City Group, and Forest City Equity are collectively referred to herein as the Forest City Defendants. Defendants admit that plaintiffs complaint contains the usage alleged and deny all remaining allegations in this Paragraph. 13. At all times herein relevant, the Forest City Defendants were and are registered with the Illinois Secretary of State as Ohio corporations. Admit. 14. The Forest City Defendants share the same offices, and use the same stationary and letterhead bearing the combined logo Forest City. The letterhead contains the address and contact information for Forest City Group at the top and Forest City Management at the bottom. 15. At all times herein relevant, Defendants Forest City Group and Forest City Management used their combined letterhead to communicate with tenants at the subject matter property, including with the Plaintiffs through their undersigned counsel. 16. At all times herein relevant, the Forest City Defendants used a single combined website located at Admit. 17. At all times herein relevant, all Forest City Defendants shared the same corporate officers, commingled assets, and otherwise failed to maintain corporate formalities and separateness. 18. At all times herein relevant, all Defendants herein were landlords as that term is defined by (b) of the Residential Landlord and Tenant Ordinance ( RLTO ) contained in the Chicago Municipal Code. 3

4 Case: 1:13-cv Document #: 80 Filed: 04/04/14 Page 4 of 25 PageID #: At all times herein relevant, according to records maintained by the Illinois Secretary of State, The Pavilion was not a recognized or authorized alias name for any Defendant herein. Admit. 20. On or about July 30, 2012, Plaintiffs and Defendants entered into a written lease agreement (the Lease ) for Unit 0707 at the subject matter complex (the subject matter unit ). See Lease, a true and accurate copy of which is attached hereto as Exhibit A. Defendants deny that a copy of the lease was attached to the amended complaint. Defendants have attached a copy of the lease as Exhibit 1 to this answer. Defendants admit that Adrian Alani entered into the attached lease for Unit 0707 at the subject matter complex and that Forest City Residential Management, Inc. signed that lease as agent for the owner. Defendants deny the remaining allegations of this Paragraph. 21. The terms of the Lease included a term of tenancy from July 30, 2012 through October 31, Admit. 22. Pursuant to the Lease, the Plaintiffs monthly rental rate was $1003, and the security deposit was $350. Admit. 23. The Lease identified Forest City Management as the Management Agent authorized to act on behalf of Owner[.] Admit. 24. Plaintiff Adrian Alani signed the Lease on behalf of the Plaintiffs. Defendants admit that Adrian Alani signed the lease. Defendants deny the remaining allegations of this Paragraph. 25. The Plaintiffs Lease was a standardized form document with boilerplate language. At the bottom of each page of the Lease was written Pavilion Lease Agreement 02/12. 4

5 Case: 1:13-cv Document #: 80 Filed: 04/04/14 Page 5 of 25 PageID #:667 Defendants admit that plaintiff Alani signed the form lease attached as Exhibit 1 hereto. Defendants deny all allegations inconsistent with that document and deny that this Paragraph correctly characterizes the lease. 26. Upon information and belief, the Defendants used the same form lease for the Plaintiffs and all other tenants at the subject matter complex from February 2012 through the present. 27. Leasing consultant Tammie Cowans prepared and executed the Lease on behalf of the Defendants. 28. On or about July 12, 2012, Plaintiff Alani paid $64.71 to the Defendants as prepaid rent. 29. On or about July 30, 2012, Plaintiff Alani paid $350 to Defendants as a security deposit. 30. On or about July 30, 2012, Plaintiffs moved into the subject matter property. Defendants lack knowledge or information sufficient to form a belief as to the truth of the allegations of this Paragraph. 31. Sometime prior to July 30, 2012, a pipe burst in the ceiling of Plaintiffs unit. 32. The resulting water leak damaged the Plaintiffs ceiling and caused mold growth. date. 33. Defendants did not repair the damage to the ceiling prior to Plaintiffs move-in 34. Defendants never informed Plaintiffs that a pipe had burst in the ceiling of Plaintiffs unit. 5

6 Case: 1:13-cv Document #: 80 Filed: 04/04/14 Page 6 of 25 PageID #:668 Defendants deny the allegations in this Paragraph to the extent they imply that a pipe had burst in the ceiling of Plaintiffs unit. Defendants admit the remaining allegations of this Paragraph. 35. The ceiling in the Plaintiffs unit was made, in part, of friable asbestos. Defendants admit that ceiling coating in the subject matter unit contained asbestos and deny the remaining allegations of this Paragraph. 36. Defendants never informed Plaintiff that the subject matter unit contained friable asbestos. 37. Defendants never informed Plaintiff that the friable asbestos in the subject matter unit had been damaged. 38. Since at least 1992, at all relevant times herein, the ceilings and walls in units on floors 1-15 of the subject matter building contained friable asbestos. Defendants deny that the allegations in this Paragraph accurately characterize Defendants records regarding the presence of asbestos the subject matter building and deny the remaining allegations in this Paragraph. 39. At all times herein relevant, Defendants were aware of the existence of asbestos. Defendants admit that they are aware that there is such a thing as asbestos. filed. 40. Plaintiffs did not discover their unit contained asbestos until after this lawsuit was 41. In correspondence between employees of Defendants after Plaintiffs movein date, at least one employee was instructed not to repair the water-damaged ceiling in Plaintiffs unit due to the presence of asbestos. 6

7 Case: 1:13-cv Document #: 80 Filed: 04/04/14 Page 7 of 25 PageID #:669 Defendants deny that the allegations accurately characterize the correspondence and deny the allegations to the extent they are inconsistent with the actual terms of the correspondence. Defendants deny the remaining allegations in this Paragraph. 42. Since at least 1992, at all relevant times herein, the ceilings and walls in the boiler room of the building contained asbestos. 43. Defendants did not adequately or reasonably maintain the asbestos in the subject matter building. 44. Until in or around 2013, Defendants took no measurements regarding the amount of the asbestos in the units and common areas, made no maintenance checks regarding the condition of the asbestos, and failed to repair the asbestos after damage and water leaks. 45. At all times herein relevant, Defendants did not provide their maintenance employees with the compliant gear and clothing required by Illinois and federal law for working with asbestos. 46. At all times herein relevant, Defendants did not employ on staff any persons with training, certification, or licensure in asbestos remediation. 47. At all times during the Plaintiffs tenancy, the subject matter unit suffered from a myriad of unsafe, unsanitary, and uninhabitable conditions, including without limitation the following: (a) (b) (c) an infestation of toxic mold throughout the walls and ceiling of the bedroom and closet; water-damaged asbestos in the ceiling; a filthy, unsanitary, damaged, and dangerous carpet; (c) a leaking air conditioner during the Spring of 2013; (d) a thick buildup of dust and grime in the heating unit, ductwork, and vents, creating a significant fire hazard; 7

8 Case: 1:13-cv Document #: 80 Filed: 04/04/14 Page 8 of 25 PageID #:670 (e) (f) a smoking smell caused by the burning dust, making the heating unit unusable; and other unsafe, unsanitary, and uninhabitable conditions. 48. At all relevant times herein, the common areas of the building contained toxic mold and asbestos. 49. Throughout their tenancy, Plaintiffs repeatedly complained to the Defendants regarding the problems in the subject matter unit, including without limitation the mold problems, both orally and in writing. 50. However, Defendants failed to ameliorate these unsafe, unsanitary, and uninhabitable conditions. 51. On no fewer than six occasions during Plaintiffs tenancy, employees and/or authorized agents of Defendants entered the Plaintiffs unit, without two-day advance notice to the Plaintiffs, and applied paint over the mold-covered walls. 52. However, those employees and/or agents of the Defendants did not remove, eradicate, or remediate the mold before they painted, or otherwise ameliorate the water leak causing the growth of the mold. 53. The agents of Defendant who painted over the mold in 2012 did not fill out a mold report. 54. Because the mold had not been removed, the mold quickly grew through the new coat of paint within days of each painting job in the subject matter unit. 55. Each time Plaintiffs complained to Defendants in 2012 regarding mold in the subject matter unit, an employee or agent of Defendants falsely informed Plaintiffs that mold was not actually present in the subject matter unit. 8

9 Case: 1:13-cv Document #: 80 Filed: 04/04/14 Page 9 of 25 PageID #: On or about May 6, 2013, Plaintiff Alani called 311 to report the toxic mold infestation to the City of Chicago. 57. Within two weeks thereafter, on or about May 16, 2013, employees and/or agents of the Defendants entered the subject matter unit without two-day advance notice to the Plaintiffs, enclosed the Plaintiffs closet with non-airtight plastic sheeting and duct tape, and then left the subject matter unit without making any other efforts to remediate or eradicate the mold. 58. As a result of the Defendants actions in sealing the Plaintiffs closet, the Plaintiffs were deprived of the use of their closet for the remainder of their tenancy. 59. As a result of the toxic mold infestation, both Plaintiffs experienced health problems throughout their tenancy requiring medical care and treatment. 60. Plaintiffs, and the Plaintiffs unborn child, subsequently required medical treatment for those health problems as a result of the toxic mold. 61. Additionally, the mold damaged, destroyed, or rendered unusable a number of articles of Plaintiffs personal property in the subject matter unit. 62. After Defendants complained for the fourth time to Defendants regarding the mold, Defendants retained a third party mold inspector, Cardno ATC, to inspect the subject matter unit. Defendants admit that Forest City Residential Management, Inc. retained Cardno ATC to inspect the subject matter unit and deny the remaining allegations in this Paragraph. 63. Cardno ATC discovered a high level of stachybotrys mold in the Plaintiffs unit, as well as several other types of mold. 9

10 Case: 1:13-cv Document #: 80 Filed: 04/04/14 Page 10 of 25 PageID #: According to the Centers for Disease Control, stachybotrys is highly toxic. 65. Stachybotrys mold produces mycotoxins which are extremely damaging to human tissue, and in laboratory studies have resulted in death in laboratory animals exposed to stachybotrys. 66. According to the records of Cardno ATC, Cardno ATC discovered high levels of mold, including stachybotrys, in numerous other units in the subject matter building, as well as in the common areas. 67. Cardno ATC also confirmed the existence of friable asbestos in the subject matter unit and elsewhere in the subject matter building. Defendants deny the allegations in this Paragraph accurately characterize the Cardno ATC report, and deny any allegations that are inconsistent with the actual terms of Cardno ATC s report. 68. According to the Centers for Disease Control, friable asbestos is extremely toxic. 69. On or about May 20, 2013, Plaintiffs wrote to Defendants via their undersigned counsel, stating that Plaintiffs would be terminating their lease as of June 1, 2013 as a result of the Defendants failure to remediate the mold in the subject matter unit. Defendants admit that plaintiffs counsel wrote a letter dated May 20, 2013 to Theresa Morelli, Managing Counsel, Residential Group. Defendants deny all allegations of this Paragraph that are inconsistent with the actual terms of that letter. mold. 70. No Defendant ever informed Plaintiffs that their unit contained stachybotrys Admit. 71. On or about June 2, 2013, Plaintiffs vacated the subject matter property, leaving it in substantially the same condition as when they moved in, subject only to normal wear and tear. 10

11 Case: 1:13-cv Document #: 80 Filed: 04/04/14 Page 11 of 25 PageID #: At all times during their tenancy, Plaintiffs complied with all applicable statutory and lease provisions, including without limitation the timely payment of rent. 73. On or about July 3, 2013, Defendants sent Plaintiff a bill for $4,709 (the bill ). See Bill, a true and accurate copy of which is attached hereto as Exhibit B. Defendants deny that a copy of any bill is attached to the complaint and therefore lack knowledge of information sufficient to form a belief as to the truth of the remaining allegations of this Paragraph. 74. The bill stated that the $4,709 included charges for outstanding rent from July 1, 2013 until October 31, Defendants deny that a copy of any bill is attached to the complaint and therefore lack knowledge of information sufficient to form a belief as to the truth of the remaining allegations of this Paragraph. 75. The bill stated that the $4,709 included charges for mold remediation in the subject matter apartment. Defendants deny that a copy of any bill is attached to the complaint and therefore lack knowledge of information sufficient to form a belief as to the truth of the remaining allegations of this Paragraph. 76. The bill stated See the itemized charges for a complete listing of the work. Defendants deny that a copy of any bill is attached to the complaint and therefore lack knowledge of information sufficient to form a belief as to the truth of the remaining allegations of this Paragraph. 77. No itemization or listing of work was included with the bill. Defendants deny that a copy of any bill is attached to the complaint and therefore lack knowledge of information sufficient to form a belief as to the truth of the remaining allegations of this Paragraph. 11

12 Case: 1:13-cv Document #: 80 Filed: 04/04/14 Page 12 of 25 PageID #: The bill stated, inter alia, that YOU WILL BE HELD RESPONSIBLE FOR RENT THROUGH YOUR LEASE END DATE OR UNTIL A NEW RESIDENT MOVES INTO YOUR FORMER UNIT. (capitals original). Defendants deny that a copy of any bill is attached to the complaint and therefore lack knowledge of information sufficient to form a belief as to the truth of the remaining allegations of this Paragraph. 79. The bill stated that the Plaintiffs full security deposit had been applied towards the purportedly outstanding balance. Defendants deny that a copy of any bill is attached to the complaint and therefore lack knowledge of information sufficient to form a belief as to the truth of the remaining allegations of this Paragraph. 80. The bill stated that the outstanding balance had been referred to Defendants collections department. Defendants deny that a copy of any bill is attached to the complaint and therefore lack knowledge of information sufficient to form a belief as to the truth of the remaining allegations of this Paragraph. 81. The bill demanded immediate payment of $4,709. Defendants deny that a copy of any bill is attached to the complaint and therefore lack knowledge of information sufficient to form a belief as to the truth of the remaining allegations of this Paragraph. 82. After the Plaintiffs filed the instant lawsuit, Defendants posted the purported owelty of $4,709 to Plaintiff Alani s credit report, thus damaging his credit. 83. Plaintiffs have retained Berton N. Ring, P.C. as their attorneys via a written fee agreement, and have expressly assigned all claims for attorney fees to Berton N. Ring, P.C. Defendants lack knowledge of information sufficient to form a belief as to the truth of the allegations in this Paragraph. 12

13 Case: 1:13-cv Document #: 80 Filed: 04/04/14 Page 13 of 25 PageID #: Plaintiffs bring this action on behalf of themselves and three described classes of similarly situated individuals. 85. CLASS A consists of all tenants of the subject matter complex between August 1, 2011 and the present whose security deposits were not returned, or who did not receive interest on their deposit, or who were not informed where their security deposits were being kept, in violation of RLTO Class A was dismissed by the Court on December 16, 2013, and is repleaded here together with all subclasses for purposes of preserving the Class for appeal. Defendants admit Class A was dismissed by the Court on December 16, 2013 and deny the remaining allegations in this Paragraph. 86. CLASS B consists of all tenants at the subject matter complex between August 1, 2011 and the present whose units suffered from unsafe, unsanitary, and uninhabitable conditions, including without limitation an infestation of toxic mold. 87. CLASS C consists of all tenants at the subject matter complex between August 1, 2011 and the present who were subjected to Defendants unlawful enforcement of illegal lease provisions in violation of of the RLTO. Class C was dismissed by the Court on December 16, 2014, and is repleaded here together with all subclasses for purposes of preserving a potential appeal. Defendants admit Class C was dismissed by the Court on December 16, 2013 and deny the remaining allegations in this Paragraph. 88. CLASS D consists of all tenants at the subject matter complex between August 1, 2011 and the present whose units contained friable asbestos, and who were not informed by Defendants of the existence of said asbestos. 89. CLASS E consists of all tenants at the subject matter property who were exposed to toxic mold, mycotoxins, or asbestos either in their units or in the common areas at the subject matter property, and will require medical monitoring as a result of that exposure. 90. Class El consists of all members of Class E who have suffered injuries as a result of friable asbestos at the subject matter property, which injuries are known or unknown, and who currently require or will require medical monitoring as a result of that exposure. 13

14 Case: 1:13-cv Document #: 80 Filed: 04/04/14 Page 14 of 25 PageID #: Class E2 consists of all members of Class E who have suffered injuries as a result of exposure to toxic mold or mycotoxins at the subject matter property, which injuries are known or unknown, and who currently require or will require medical monitoring as a result of that exposure. 92. The membership in each class potentially exceeds one thousand in number, as there were at least that many tenants at the subject matter complex at any one time between August 1, 2011 and the present. 93. At all relevant times herein, a website entitled Apartment Ratings, located at provided an online forum for tenants living at the subject matter complex to provide reviews of their tenancies. Defendants lack knowledge or information sufficient to form a belief as to the truth of the allegations in this Paragraph. 94. As of the date of this filing, numerous reviews of the subject matter property posted to various websites mentioned the unsafe, unsanitary, and uninhabitable conditions at the subject matter property. Defendants lack knowledge or information sufficient to form a belief as to the truth of the allegations in this Paragraph. Defendants deny the substance of the statements alleged in this Paragraph. 95. As of February 13, 2014, no fewer than one hundred tenants who posted on the Apartment Ratings web page for the subject matter complex described unsafe, unsanitary, and uninhabitable conditions at the subject matter complex, including without limitation the following: a severe infestation of toxic black mold throughout the entire complex, including the common areas and numerous units, and which killed family members of at least one tenant; bed bug infestations throughout the entire complex, including the common areas; leaking plumbing in the common areas and multiple units; inoperable appliances; 14

15 Case: 1:13-cv Document #: 80 Filed: 04/04/14 Page 15 of 25 PageID #:677 inoperable air conditioning and heating throughout the entire complex, including the common areas and numerous units; other unsafe, unsanitary, and uninhabitable conditions. Defendants lack knowledge or information sufficient to form a belief as to the truth of the allegations in this Paragraph. Defendants deny the substance of the statements alleged in this Paragraph. 96. As of February 13, 2014, the Pavilion had a 12% recommendation rating from 144 reviews on the Apartment Ratings Web Page. Defendants lack knowledge or information sufficient to form a belief as to the truth of the allegations in this Paragraph. Defendants deny the substance of the statements alleged in this Paragraph. 97. As of February 13, 2014, over 68% of reviews on the website Yelp provided one-star reviews, and described the aforementioned unsafe, unsanitary, and/or uninhabitable conditions at the subject matter complex. Defendants lack knowledge or information sufficient to form a belief as to the truth of the allegations in this Paragraph. Defendants deny the substance of the statements alleged in this Paragraph. 98. According to Defendants records, asbestos was present in all units on floors 1-15 of the subject matter building during the Plaintiffs tenancy. Defendants deny that the allegations in this Paragraph accurately characterize Defendants records and deny the allegations to the extent they are inconsistent with the actual terms of Defendants records. 99. According to Defendants records, Defendants have been aware of friable asbestos in the subject matter property since at least Defendants deny that the allegations in this Paragraph accurately characterize Defendants records and deny the allegations to the extent they are inconsistent with the actual terms of Defendants records. 15

16 Case: 1:13-cv Document #: 80 Filed: 04/04/14 Page 16 of 25 PageID #: According to public records, Defendants have previously been the subject of no fewer than three class action lawsuits brought by both employees and tenants, alleging that Forest City did not disclose the existence of mold and asbestos in its properties in New York and California The Plaintiff will fairly and adequately protect the interests of each class. The Plaintiffs counsel, Berton N. Ring, P.C., is experienced in class action matters, and a class action is the most appropriate means for the fair and efficient adjudication of the claims herein The identities of all members of each class can be easily determined from the records of each Defendant herein. COUNT I CLASS A VIOLATIONS OF RLTO Count I was dismissed by this Court with prejudice on December 16, Plaintiffs replead Count I here for the purposes of preserving this cause of action for appeal, as well as possible reinstatement pending the outcome of Plaintiffs Motion for Reconsideration. All substantive allegations are repleaded herein in their entirety. Defendants admit that Count I was dismissed by this Court with prejudice on December 16, 2013 and deny the remaining allegations of this Paragraph. COUNT II CLASS B FAILURE TO MAINTAIN 103. The Plaintiffs restate and re-allege paragraphs of this First Amended Complaint as if fully set forth herein. Defendants restate and re-allege each of their prior answers to the preceding paragraphs Pursuant to RLTO , [t]he landlord shall maintain the premises in compliance with all applicable provisions of the municipal code and shall promptly make any and all repairs necessary to fulfill this obligation. Defendants admit the actual terms of the ordinance and deny all allegations in this Paragraph that are inconsistent with the actual terms of the ordinance. 16

17 Case: 1:13-cv Document #: 80 Filed: 04/04/14 Page 17 of 25 PageID #: Pursuant to RLTO , material noncompliance with Section shall include, but is not limited to, any of the following circumstances[.] Failure to maintain heating facilities or gas-fired appliances in compliance with the requirements of the municipal code; Failure to maintain floors, interior walls or ceilings in sound condition and good repair; Failure to prevent the accumulation of stagnant water; Failure to exterminate insects, rodents or other pests; Failure to provide adequate light or ventilation as required by the municipal code; Failure to maintain plumbing facilities, piping, fixtures, appurtenances and appliances in good operating condition and repair; Failure to maintain and repair any equipment which the landlord supplies or is required to supply; or Failure to maintain the dwelling unit and common areas in a fit and habitable condition. Defendants admit the actual terms of the ordinance and deny all allegations in this Paragraph that are inconsistent with the actual terms of the ordinance Pursuant to Section of the Chicago Municipal Code, Defendants were required to maintain the asbestos in the subject matter building in accordance with the provisions of the Municipal Code. Defendants admit the actual terms of the municipal code and deny all allegations in this Paragraph that are inconsistent with the actual terms of the municipal code The Defendants violated RLTO and by one or more of the following: (a) (b) (c) failing to ameliorate or repair the unsafe, unsanitary, and uninhabitable conditions in the subject matter unit; failing to remove, remediate, or ameliorate the toxic mold in Plaintiffs unit; failing to remove, remediate, or maintain the friable asbestos in Plaintiffs unit; 17

18 Case: 1:13-cv Document #: 80 Filed: 04/04/14 Page 18 of 25 PageID #:680 (d) other violations of the RLTO As a direct and proximate result of the Defendants conduct, Plaintiffs and other tenants similarly situated have suffered damages. COUNT III CLASS B BREACH OF IMPLIED WARRANTY OF HABITABILITY 109. The Plaintiffs restate and re-allege paragraphs of this First Amended Class Action Complaint, inclusive of Count II, as if fully set forth herein. Defendants restate and re-allege each of their prior answers to the preceding paragraphs Illinois law implies a warranty of habitability into every residential lease agreement. Allegations in this Paragraph include legal conclusions to which no answer is required. To the extent any answer is required, Defendants deny that Plaintiffs have a valid claim under applicable law The Defendants breached the warranty of habitability by failing to ameliorate or repair the unsafe, unsanitary, and uninhabitable conditions in the subject matter unit Plaintiffs are entitled to recover the difference in value between the subject matter unit had it conformed to the RLTO, and the non-conforming unit the Defendants actually delivered to the Plaintiffs. COUNT IV CLASS C ATTEMPTED AND ACTUAL ENFORCEMENT OF ILLEGAL LEASE PROVISIONS Count IV was dismissed by this Court with prejudice on December 16, Plaintiffs replead Count IV here for the purposes of preserving this cause of action for appeal, as well as possible reinstatement pending the outcome of Plaintiffs Motion for Reconsideration. All substantive allegations are repleaded herein in their entirety. 18

19 Case: 1:13-cv Document #: 80 Filed: 04/04/14 Page 19 of 25 PageID #:681 Defendants admit that Count IV was dismissed by this Court with prejudice on December 16, 2013 and deny the remaining allegations of this Paragraph. COUNT V CLASS D VIOLATIONS OF THE ILLINOIS CONSUMER FRAUD AND DECEPTIVE BUSINESS PRACTICES ACT at this time. Defendants have filed a Motion to Dismiss Count V and therefore no answer is required COUNT VI CLASS D NEGLIGENCE 126. Plaintiffs restate and re-allege paragraphs of this First Amended Complaint, inclusive of Counts II, III, and V, as if fully set forth herein. Defendants re-allege each of their prior answers to the preceding paragraphs Defendants owed a duty to Plaintiffs to disclose the existence of friable asbestos in the subject matter unit before and/or during Plaintiffs tenancy Defendants owed a duty to Plaintiffs to disclose the existence of stachybotrys and other molds in the subject matter unit before and/or during the Plaintiffs tenancy Defendants failed to disclose the existence to Plaintiffs the existence of mold and/or asbestos in the subject matter unit, either before or during Plaintiffs tenancy By failing to disclose the existence of the friable asbestos and mold in the subject matter unit, Defendants breached their duty of care to the Plaintiffs Defendants owed a duty to Plaintiffs to ameliorate and/or maintain the mold and/or friable asbestos in the subject matter unit. 19

20 Case: 1:13-cv Document #: 80 Filed: 04/04/14 Page 20 of 25 PageID #: Defendants took little or no actions to ameliorate the mold and/or friable asbestos in the subject matter unit By failing to ameliorate the mold and/or friable asbestos in the subject matter unit, Defendants breached their duty of care to the Plaintiffs As a direct and proximate result of Defendants actions, Plaintiffs have suffered damages, including without limitation personal injuries, medical bills, moving expenses, property damage, emotional distress, and other damages. at this time. COUNT VII CLASS E MEDICAL MONITORING Defendants have filed a Motion to Dismiss Count VII and therefore no answer is required PRIVATE ATTORNEY GENERAL CLAIM COUNT VIII VIOLATIONS OF ILLINOIS COLLECTIONS AGENCY ACT Against the Forest City Defendants Only Brought by Plaintiffs on Behalf of the State of Illinois Count VI was dismissed by this Court with prejudice on December 16, Plaintiffs replead Count VI here for the purposes of preserving this cause of action for appeal. All substantive allegations are repleaded herein in their entirety. Defendants admit that Count VI was dismissed by this Court with prejudice on December 16, 2013 and deny the remaining allegations of this Paragraph. INDIVIDUAL CAUSES OF ACTION COUNT VII VIOLATIONS OF RLTO The Plaintiffs restate and re-allege paragraphs of this First Amended Class Action Complaint as if fully set forth herein. 20

21 Case: 1:13-cv Document #: 80 Filed: 04/04/14 Page 21 of 25 PageID #:683 Defendants restate and re-allege each of their prior answers to the preceding paragraphs On or about May 6, 2013, Plaintiff Alani called 311 to report the toxic mold infestation to the City of Chicago. Defendants lack knowledge or information sufficient to form a belief as to the truth of the allegations of this Paragraph Within two weeks thereafter, on or about May 16, 2013, employees and/or agents of the Defendants entered the subject matter unit and without prior permission from the Plaintiffs, enclosed the Plaintiffs closet with non-airtight plastic sheeting and duct tape, and then left the subject matter unit without making any other efforts to remediate the mold As a result of the Defendants actions in sealing the Plaintiffs closet, the Plaintiffs were deprived of the use of their closet for the remainder of their tenancy Pursuant to RLTO , It is unlawful for any landlord or any person acting at his direction knowingly to oust or dispossess or threaten or attempt to oust or dispossess any tenant from a dwelling unit without authority of law, by plugging, changing, adding or removing any lock or latching device; or by blocking any entrance into said unit; or by removing any door or window from said unit; or by interfering with the services to said unit; including but not limited to electricity, gas, hot or cold water, plumbing, heat or telephone service; or by removing a tenant s personal property from said unit; or by the removal or incapacitating of appliances or fixtures, except for the purpose of making necessary repairs; or by the use or threat of force, violence or injury to a tenant s person or property; or by any act rendering a dwelling unit or any part thereof or any personal property located therein inaccessible or uninhabitable. Defendants admit the actual terms of the ordinance and deny all allegations in this Paragraph that are inconsistent with the actual terms of the ordinance. 21

22 Case: 1:13-cv Document #: 80 Filed: 04/04/14 Page 22 of 25 PageID #: The Defendants made no repairs of any kind to the unsafe, unsanitary, or uninhabitable conditions in the subject matter unit at any time before, during, or after they sealed the Plaintiffs closet The Defendants made no repairs to the subject matter unit in any way connected with their sealing of the Plaintiffs closet Pursuant to RLTO , [i]f a tenant in a civil legal proceeding against his landlord establishes that a violation of this section has occurred he shall be entitled to recover possession of his dwelling unit or personal property and shall recover an amount equal to not more than two months rent or twice the actual damages sustained by him, whichever is greater. A tenant may pursue any civil remedy for violation of this section regardless of whether a fine has been entered against the landlord pursuant to this section. Defendants admit the actual terms of the ordinance and deny all allegations in this Paragraph that are inconsistent with the actual terms of the ordinance. COUNT VIII BREACH OF CONTRACT 149. The Plaintiffs restate and re-allege paragraphs of this First Amended Class Action Complaint as if fully set forth herein. Defendant re-allege each of their prior answers to the preceding paragraphs Paragraph 20 of the Plaintiffs Lease provided, in relevant part, that [a]t all times during this Lease, Landlord shall maintain the Property and mechanical devices within the Premises in a clean, safe, and workable condition as required by state/local law. Defendants admit the actual terms of the lease and deny all allegations of this Paragraph that are inconsistent with the actual terms of the lease Defendants failed to ameliorate the unsafe, unsanitary, and uninhabitable conditions at the subject matter property Defendants took little or no action to ameliorate the unsafe, unsanitary, and uninhabitable conditions at the subject matter property. 22

23 Case: 1:13-cv Document #: 80 Filed: 04/04/14 Page 23 of 25 PageID #: By failing to ameliorate the unsafe, unsanitary, and uninhabitable conditions at the subject matter property, the Defendants breached their Lease agreement with the Plaintiffs As a direct and proximate result of the Defendants breach, the Plaintiffs have suffered damages, including without limitation a loss of value to their unit, damaged or destroyed property, and medical injuries. DEFENSES Without conceding that they bear the burden of proof as to any issue, the Defendants assert the following defenses to the Plaintiffs Amended Complaint: First Defense The claims of Plaintiffs and all classes of persons Plaintiffs purport to represent are barred in whole or in part by the applicable statute(s) of limitations. Second Defense The claims of Plaintiffs and all classes of persons Plaintiffs purport to represent are barred in whole or in part by offset. Third Defense The claims of Plaintiffs and all classes of persons Plaintiffs purport to represent are barred by the doctrines of waiver, unclean hands, estoppel and/or laches. Fourth Defense The claims of Plaintiffs and all classes of persons Plaintiffs purport to represent are barred by failure, refusal, and/or neglect to mitigate or avoid the damages complained of in the Complaint. 23

24 Case: 1:13-cv Document #: 80 Filed: 04/04/14 Page 24 of 25 PageID #:686 Fifth Defense Plaintiffs and all the classes of persons Plaintiffs purport to represent are estopped from pursuing the claims set forth in the Complaint, and each purported cause of action contained therein, by reason of their own actions and course of conduct. Sixth Defense Plaintiffs cannot maintain a class action because they cannot satisfy the requirements of Rule 23 of the Federal Rules of Civil Procedure. Seventh Defense Defendants failed to cooperate with and/or permit reasonable access to the subject property for repairs to the subject apartment. Eighth Defense The claims of Plaintiffs are barred by the fact that Plaintiffs breached the lease at issue. Defendants reserve the right to assert additional defenses or affirmative defenses as established by the facts of this case. Dated: April 4, 2014 Respectfully submitted, BAKER & HOSTETLER LLP By: /s/ George J. Tzanetopoulos George J. Tzanetopoulos gtzanetopoulos@bakerlaw.com Katharine E. Heitman kheitman@bakerlaw.com 191 North Wacker Drive, Suite 3100 Chicago, Illinois Telephone: Facsimile: Attorneys for Defendants FC Harris Pavilion Apartments Limited Partnership, Forest City Residential Management, Inc., Forest City Residential Group, Inc., Forest City Equity Services, Inc. 24

25 Case: 1:13-cv Document #: 80 Filed: 04/04/14 Page 25 of 25 PageID #:687 CERTIFICATE OF SERVICE I, George J. Tzanetopoulos, an attorney, hereby certify that on April 4, 2014, I served the foregoing ANSWER TO FIRST AMENDED CLASS ACTION COMPLAINT upon the following attorneys of record via the United States District Court s CM/ECF system. Stuart M. Clarke Berton N. Ring Berton N. Ring, P.C. 123 West Madison Street Suite 1500 Chicago, Illinois /s/ George J. Tzanetopoulos

26 Case: 1:13-cv Document #: 80-1 Filed: 04/04/14 Page 1 of 20 PageID #:688

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