Maniez v. Citibank ( 2008 )

SECOND DIVISION
Date Filed: June 10, 2008
No. 1-06-3713
LOUIS MANIEZ, ) Appeal from the
) Circuit Court of
Plaintiff-Appellee, ) Cook County.
)
v. ) No. 05 CH 20618
)
CITIBANK, F.S.B., HARBOR DRIVE )
CONDOMINIUM ASSOCIATION and )
UNKNOWN OWNERS and NONRECORD )
CLAIMANTS, ) Honorable
) Darryl B. Simko,
Defendants ) Judge Presiding.
)
(Masayo Koshiyama and Robert )
Jolly, )
)
Defendants-Appellants). )
JUSTICE HALL delivered the opinion of the court:
This case comes before us as a permissive appeal of a
certified question pursuant to Supreme Court Rule 308 (155 Ill.
2d R. 308). The plaintiff, Louis Maniez, filed a complaint to
foreclose a judgment lien against the defendants, Masayo
Koshiyama and Robert Jolly.1 The circuit court denied the
defendants' motion to dismiss but certified the following
question:
1
Robert Jolly died during the pendency of the circuit court
proceedings. On October 19, 2006, the circuit court granted the
plaintiff's motion to amend the complaint to add Ms. Koshiyama,
as executrix of Mr. Jolly's estate, as a defendant.
No. 1-06-3713
"[w]hether a Memorandum of Judgment inaccurately describing
a judgment as having been entered on a specific date can
serve to create a lien as provided by the relevant statute."
This court allowed the appeal pursuant to Rule 308.
On December 1, 2005, the plaintiff filed his foreclosure
complaint against the defendants. He alleged that the amount of
the judgment was $196,774, subject to additional charges for
interest and late fees. Attached to the complaint were the
following documents: the February 28, 1997, circuit court order
entering judgment against the defendants and in favor of the
plaintiff in the amount of $110,348.83 plus statutory interest; a
memorandum of judgment entered on February 28, 1997, stating that
a judgment in favor of the plaintiff and against the defendants
had been entered by the court on February 27, 1997; a February
25, 2004, order granting the plaintiff's petition for revival of
the February 28, 1997, judgment; a memorandum of revival of
judgment entered on February 25, 20042; and the legal description
of the real property.
The defendants filed a motion to dismiss the foreclosure
complaint pursuant to section 2-619(a)(9) of the Code of Civil
2
The February 25, 2004 memorandum of judgment was limited to
in rem effect and only as to real estate owned by Ms. Koshiyama
at the time she filed for bankruptcy.
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No. 1-06-3713
Procedure (735 ILCS 5/2-619(a)(9) (West 2006)) (the Code).
Pertinent to the certified question, the defendants alleged that
the 1997 memorandum of judgment did not create a judgment lien on
the real property because the memorandum referred to the judgment
as having been entered on February 27, 1997, whereas the judgment
was entered on February 28, 1997. On October 19, 2006, the
circuit court denied the defendants' motion to dismiss. On
December 13, 2006, the circuit court modified its October 19,
2006, order by certifying the question of the validity of the
judgement lien to this court. As previously noted, this court
granted leave to appeal.
ANALYSIS
The defendants contend that no judgment lien was created
because the plaintiff failed to comply with the requirements of
section 12-101 of the Code (735 ILCS 5/12-101 (West 1996)).
I. Standard of Review
Where the appeal concerns a question of law certified by the
circuit court pursuant to Rule 308, presenting a question of
statutory interpretation and arising in the context of an order
denying a section 2-619 motion, the court's review is de novo.
Terrill v. Oakbrook Hilton Suites & Garden Inn, L.L.C., 338 Ill.
App. 3d 631, 634, 788 N.E.2d 789 (2003).
II. Discussion
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Section 12-101 provides in pertinent part as follows:
"[A] judgment is a lien on the real estate of the
person against whom it is entered, only from the time a
transcript, certified copy or memorandum of judgment is
filed in the office of the recorder of the county in which
the real estate is located.
* * *
The term 'memorandum' as used in this Section means a
memorandum or copy of the judgment signed by a judge or a
copy attested by the clerk of the court entering it and
showing the court in which entered, date, amount, number of
the case in which it was entered, name of the party in whose
favor and name and last known address of the party against
whom entered." 735 ILCS 5/12-101 (West 2002).
"At common law, a court-entered judgment did not create a
lien upon the real estate of a debtor." Dunn v. Thompson, 174
Ill. App. 3d 944, 947, 529 N.E.2d 297 (1988). A judgment lien is
purely a statutory creation. Dunn, 174 Ill. App. 3d at 947. The
purpose of the statute "is remedial and affords a means of
collecting a judgment by forcing the sale of the judgment
debtor's property, real or personal, or both, to the extent
necessary to satisfy the debt and costs." Haugens v. Holmes, 314
Ill. App. 166, 169, 41 N.E.2d 109 (1942). "Section 12-101 of the
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No. 1-06-3713
[Code] provides specific guidelines for the creation of a
judgment lien against the real estate of the debtor." Dunn, 174
Ill. App. 3d at 947. Strict compliance with section 12-101 is
required. Northwest Diversified, Inc. v. Desai, 353 Ill. App. 3d
378, 387, 818 N.E.2d 753 (2004).
In order to create a lien against real estate, a memorandum
of judgment must be recorded and there must be an enforceable
judgment standing behind the memorandum. Northwest Diversified,
Inc., 353 Ill. App. 3d at 388. In order to have a valid judgment
with which to create a lien, the judgment "'must be final, valid,
and for a definite amount of money'" and "'it must be such a
judgment that execution may issue thereon.'" Northwest
Diversified, Inc., 353 Ill. App. 3d at 386, quoting Dunn, 174
Ill. App. 3d at 947.
In Northwest Diversified, Inc., the judgment-creditor
assigned the judgment to the plaintiff. The plaintiff filed a
memorandum of judgment in Lake County against property owned by
the defendant debtor and attempted to levy and execute the
judgment against the defendant's property. The sale was set
aside because there was no valid assignment of the judgment and
because the memorandum of judgment contained an inaccurate
judgment amount. Northwest Diversified, Inc., 353 Ill. App. 3d
at 391.
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No. 1-06-3713
Northwest Diversified, Inc. is distinguishable. In that
case, the judgment amount was inaccurate because it failed to
contain a credit amount that was not accounted for in the
memorandum of judgment. Section 12-101 specifically requires
that the amount of the judgment be set forth in the memorandum of
judgment. The credit, part of a reaffirmed assignment, was
agreed to a year after the original memorandum of judgment was
filed in Lake County, but the parties failed to file a memorandum
of judgment after the reaffirmed assignment. Nonetheless, the
case illustrates that the filing of a memorandum of judgment with
incorrect information did not satisfy the strict compliance
standard the courts require in connection with section 12-101.
In response, the plaintiff notes that the memorandum of
judgment required by section 12-101 has been characterized as a
notice document. See First National Bank & Trust Co. v.
Wissmiller, 182 Ill. App. 3d 481, 484, 538 N.E.2d 190 (1989).
The plaintiff points out that the defendants have never denied
that a judgment was entered on February 28, 1997, and the record
supports the fact that they knew the judgment was entered. While
the plaintiff does not dispute that the memorandum of judgment
contains the wrong date of the judgment, he maintains that
insertion of the wrong date into the memorandum of judgment does
not invalidate the judgment where there was a valid judgment and
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No. 1-06-3713
the mistake was attributable to a scrivener's error.
The plaintiff's reliance on First National Bank of Mt. Zion
v. Fryman, 236 Ill. App. 3d 754, 602 N.E.2d 876 (1992), is
misplaced. The case actually provides support for the
defendants. In that case, the defendant entered into an
agreement for deed with the Yeagers but because he failed to make
the last payment, he did not receive a deed. The property went
into foreclosure, and the defendant purchased it at the
foreclosure sale and received a deed on December 5, 1985.
However, the plaintiff had received a money judgment against Mr.
Yeager, Sr., and recorded a certified copy of the judgment on
March 1, 1984. Subsequently, the plaintiff filed suit against
the defendant to foreclose the judgment lien. After the
plaintiff was awarded a judgment lien, the defendant appealed.
The issue was whether the memorandum of judgment required a
judge's signature to be valid. The court held that only the
judgment required the judge's signature. The court noted that
the document filed by the plaintiff constituted a memorandum of
judgment since it showed the court entering judgment, and the
date and amount of the judgment, the case number and the names of
the parties for and against whom the judgment was entered, as
required by section 12-101.
Pertinent to the present case, the court then stated as
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No. 1-06-3713
follows:
"Moreover, the purpose of this section [12-101] was
satisfied by the filing of this document. A memorandum of
judgment is a notice document. [Citation.] The recordation
of this document was sufficient to put defendant on notice
of the judgment against James Yeager, Sr., and, thus,
satisfied the purpose of this section." First National Bank
of Mt. Zion, 236 Ill. App. 3d at 759.
As illustrated by the above case, the purpose of recording
the memorandum of judgment is not just to alert the debtor that a
judgment has been entered but prospective purchasers as well. In
the present case, the memorandum of judgment showing a judgment
date of February 27, 1997, would not have sufficed to put a
purchaser on notice that a judgment had been entered against the
defendants on February 28, 1997.
With regard to the plaintiff's scrivener's error argument,
we find In re Application of the County Collector, 295 Ill. App.
3d 703, 692 N.E.2d 1211 (1998), instructive. In that case,
Midwest purchased property at a tax sale and received a tax deed.
The owner sued to set aside the issuance of the tax deed on the
grounds that Midwest's notice sale failed to comply with section
22-10 of the Property Tax Code (35 ILCS 200/22-10 (West 1994))
when it failed to "'completely fill[]in' the forms" by omitting
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No. 1-06-3713
the prefix portion of the certificate numbers from the statutory
notice form. In re Application of the County Collector, 295 Ill.
App. 3d at 707.
The reviewing court noted that the statute required strict
compliance with section 22-10. After rejecting Midwest's
argument that the omission of the numbers was harmless error, the
court addressed Midwest's alternative argument that the omission
was a typographical or scrivener's error which did not operate to
defeat the validity of the tax deed, stating as follows:
"To judge the merits of this argument, we must consider this
court's opinion in Petition of Ohr [In re Application of
Cook County Collector, 100 Ill. App. 3d 178, 426 N.E.2d 947
(1981)]. In that case, the court found noncompliance with
the statutory notice requirements, where the take notice
misstated that the subject property was in Hickory Hills; in
actuality, the property was located in Bridgeview.
[Citation.] The court went on to distinguish an early case
considered by our supreme court [Garrick v. Chamberlain, 97
Ill. 620, 638 (1880)], where the high court found a notice
valid even though it misdescribed the property as 'lot 5,
lot 23' rather than 'lot 5, in Block 23.' (Emphasis
omitted.) [Citation.] The court in Ohr stated:
'[W]e find that the mistake in Garrick was readily
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No. 1-06-3713
apparent on the face of the notice. When a
typographical error is readily apparent on the face of
[the] notice, the error does not necessarily mean that
the notice fails to comply with the statutory notice
requirements.' [Citation.]" In re Application of the
County Collector, 295 Ill. App. 3d at 709.
The court rejected Midwest's scrivener's error argument
finding that the evidence indicated that the omission was not a
mistake but rather the product of Midwest's belief that the
omitted numbers were irrelevant. Pertinent to the case before
us, the court then stated as follows:
"Second, neither Garrick nor Ohr supports the proposition
implicit in Midwest's fallback argument: that notice forms
containing scrivener's errors necessarily comply with the
statutory notice requirements. Thus, even if Midwest's
omission of the prefix were a mere typographical or
scrivener's error, Ohr leaves open the possibility that such
errors may also constitute noncompliance with the notice
requirements of the Property Tax Code." In re Application
of the County Collector, 295 Ill. App. 3d at 710.
Finally, noting that its decision might be viewed as a "rigid and
legalistic application" of section 22-10's strict compliance
language, the court pointed out that the "purpose of the tax
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No. 1-06-3713
sales provisions of the Property Tax Code is to coerce tax
delinquent property owners to pay their taxes, not to assist tax
petitioners in depriving the true owners of their property." In
re Application of the County Collector, 295 Ill. App. 3d at 710.
As noted above, case law requires strict compliance with
section 12-101. See Northwest Diversified, Inc., 353 Ill. App.
3d at 391 (court noted that real estate sales had been set aside,
even after the redemption period had expired, where the judgment
lien statute was not strictly complied with and an irregularity
existed in the sale). Even if we were to agree with the
plaintiff that the inclusion of the incorrect date in the
memorandum of judgment was a scrivener's error, we must strictly
adhere to the requirements of section 12-101. The memorandum of
judgment referred to a judgment date of February 27, 1997. No
judgment, valid or otherwise, was entered on that date. It is
undisputed that no judgment was entered on that date. Unlike
Garrick, the scrivener's error in this case was not readily
apparent on the face of the memorandum. Since a valid judgment
lien cannot be created without a valid judgment, the February 28,
1997, memorandum of judgment, referring to a nonexistent
judgment, did not create a lien against defendants' real
property.
The defendants then argue that if no lien was created by the
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No. 1-06-3713
recording of the original memorandum of judgment, the revival of
the judgment in 2004 was a nullity. Since the plaintiff would
have no lien against the defendants' property, in the interest of
judicial economy, the defendants urge this court to enter an
order dismissing the complaint. See Dowd & Dowd v. Gleason,
Ltd., 181 Ill. 2d 460, 472, 693 N.E.2d 358 (1998) (court may go
beyond the limits of a certified question in the interests of
judicial economy). However, we are not required to do so. We
have previously held that our review is strictly limited to the
question identified by the circuit court's order and would not be
expanded on appeal to encompass other matters that could have
been included but were not. Levy v. Markal Sales Corp., 311 Ill.
App. 3d 552, 554, 724 N.E.2d 1008 (2000). Therefore, we decline
to dismiss the foreclosure complaint.
In answering the certified question, we conclude that a
memorandum of judgment inaccurately describing a judgment as
having been entered on a specific date does not create a lien
under section 12-101 of the Code.
Certified question answered; case remanded.
SOUTH and KARNEZIS, JJ., concur.
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REPORTER OF DECISIONS - ILLINOIS APPELLATE COURT
(Front Sheet to be attached to each Opinion)
Please use the ]
following form: ]
] THE CHICAGO PROVINCE O F THE
] SOCIETY O F JESUS, and
] FIRST NONPROFIT INSURANCE COMPANY
] a/s/o The Chicago Province of the
] Society of Jesus,
]
] Plaintiffs-A ppellees,
] v.
]
] CLARK AND DICKENS, L.L.C., NEW
] CH ICA GO PA RT NE RS , L.L.C.,
] HENEGHAN WRECKING CO., HARD
] RO CK CO NC RE TE CU TTER S, INC.,
] ILLINOIS DRILLING AND TESTING
] CO M PA NY , and KE VIN SALM ON ,
]
] Defendants-Appellees
]
] Pioneer Concrete Raising
] Services, Inc., Quality
] Excava tion, Inc., and West
] Suburban Concrete Company;
]
] Defendan ts-App ellants;
]
] Found ation En gineering , Inc.,
] Ro bert L. M iller and Associa tes,
] and Chatain and Company,
]
] Defendan ts.
Complete ]
TITLE ]
of Case. ]
Docket No. ] No. 1-07-0960; 1-07-1003 (Cons.)
] Appellate Court of Illinois
COURT ] First District, First Division
]
] JUNE 09, 2008
Opinion Filed ] (Month, Day and Year)
]
JUSTICES ] JUSTICE ROBERT E. GORDON delivered the opinion of the court.
]
] CAHILL, P.J., and WOLFSON, J., concur.
]
APPEAL from the ] Lower Court and Trial Judge(s) in form indicated
Circuit Court ] in margin:
of Cook County; ] Appeal from the Circuit Court of Cook County.
the Hon:______ ]
Judge Presiding ] Honorable Brigid Mary McGrath, , Judge Presiding.
For APPELLANTS ]Indicate if attorney represents APPELLANTS or
John Doe of ]APPELLEES and include attorneys of counsel.
No. 1-06-3713
Chicago. ]Indicate the word NONE if not represented.
For APPELLEES, ]-----------------------------------------------------------------------------------------------
Smith and ]
Smith, of ]
Chicago. ]
Brown, ]
of Counsel. ] The Hunt Law Group, LLC
] Chicago, Illinois 60606
Also add atty. ] Attorneys for Defendant-Appellant - Pioneer & Concrete Raising Serv.
for third party ] Attn: Brian J. Hunt and W. Scott Trench
appellants ] OF COUNSEL
or appellees. ]
] Mulherin, Rehfeldt & Varchetto, P.C.
] Wheaton, Illinois 60187
] Attorneys for Defendant-Appellant Quality Excavation, Inc.
] Attn: Stephen A. Rehfeldt
] OF COUNSEL
]
] Belgrade & O’Donnell, P.C.
] Chicago, Illinois 60606
] Attorneys for Defendant-Appellant- West Suburban Concrete Co.
] Attn: John A. O’Donnell, P.C. and George M. Velcich
] OF COUNSEL
]
] Stellato & Schwartz, Ltd.
] Chicago, Illinois 60602
] Attorneys for Plaintiff-Appellee First NonProfit Ins. Co.
] a/s/o The Chicago Province of the Society of Jesus
] Attn: Ester Joy Schwartz; Richard D. Foody;
] Donald E. Stellato; and David S. Allen
] OF COUNSEL
]
] Sudekum, Cassidy & Schulruff, Chtd.
] Chicago, Illinois 60602
] Attorneys for Plaintiff-Appellee - The Chicago Province
] of the Society of Jesus
] Attn: Frederick J. Sudekum III; Jeffrey D. Naffzinger;
] and Florence M. Schumacher
] OF COUNSEL
]
___________________(USE REVERSE SIDE IF NEEDED_________________________________
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