Barth v. James D.

• Court: Appellate Court of Illinois
• Decided: April 5, 2011
• Docket: 3-09-0934 Rel
• Status: Published

Opinion

No. 3--09--0934

Opinion filed April 5, 2011 _________________________________________________________________

IN THE

APPELLATE COURT OF ILLINOIS

THIRD DISTRICT

A.D., 2011

JANICE BARTH and DANIEL J. ) Appeal from the Circuit Court ADLER, ) of the 12th Judicial Circuit, ) Will County, Illinois, Plaintiffs-Appellants, ) ) v. ) No. 09--CH--941 ) JAMES D. and DONALD KANTOWSKI, ) Honorable ) Richard J. Siegel, Defendants-Appellees. ) Judge, Presiding. _________________________________________________________________

JUSTICE SCHMIDT delivered the judgment of the court, with opinion. Justices McDade and O'Brien concurred in the judgment and opinion. _________________________________________________________________

OPINION

The plaintiffs, Janice Barth and Daniel J. Adler, obtained a

judgment against Gregory Pytlewski on February 27, 2002. The

plaintiffs recorded the judgment and obtained a lien against

Pytlewski's real property at 431 East Tenth Street, Lockport,

Illinois (the subject property), that day. Pytlewski

subsequently sold the property to James D. and Donald Kantowski,

the defendants, in July 2008. Thereafter, on February 17, 2009,

the plaintiffs filed a "[p]etition for satisfaction of money

judgment by judicial sale of real property." The Kantowskis

filed a motion to dismiss the plaintiffs' petition. The trial

court granted the Kantowskis' motion. The plaintiffs appealed. On appeal, the plaintiffs contend that the trial court had

the power to foreclose on the lien against the subject property

because they obtained an equitable lien by filing the instant

case and serving the Kantowskis prior to the expiration of the

original seven-year lien period. In the alternative, the

plaintiffs contend that their later revival of the underlying

judgment related back to the filing of the instant lawsuit. We

affirm.

FACTS

The record shows that on August 26, 1994, Pytlewski filed a

warranty deed in the office of the Will County recorder

indicating that he was the owner of the subject property.

Thereafter, on February 27, 2002, the trial court entered a

judgment against Pytlewski for $800 in attorney fees owed to

Adler and $16,403 in past-due child support owed to Barth. On

that same day, each plaintiff recorded a memorandum of judgment

against Pytlewski and cited Pytlewski's address as the subject

property.

On July 11, 2008, the Kantowskis purchased the subject

property from Pytlewski. Thereafter, on February 17, 2009, the

plaintiffs filed a "[p]etition for satisfaction of money judgment

by judicial sale of real property," alleging that as a result of

the February 27, 2002, judgment, they had obtained a lien against

the subject property that had yet to be satisfied. Thus, the

plaintiffs contended that the court should order a judicial sale

of the subject property and distribute the proceeds accordingly

2 in order to satisfy their lien. The plaintiffs served the

Kantowskis with their petition on February 26, 2009, one day

prior to the expiration of the lien period. The record does not

indicate that the plaintiffs took any action regarding the

February 27, 2002, judgment prior to February 27, 2009.

On April 13, 2009, the Kantowskis filed a motion to dismiss

the plaintiffs' complaint, which the court construed as a motion

pursuant to section 2--619 (735 ILCS 5/2--619 (West 2008)) of the

Code of Civil Procedure (the Code). In it, the Kantowskis

alleged that under section 12--101 (735 ILCS 5/12--101 (West

2008)) of the Code, in order for the lien to exist on the subject

property, the plaintiffs needed to obtain an order of revival and

file a memorandum of the order of revival within seven years of

the entry of the original February 27, 2002, judgment. The

Kantowskis contended that since the plaintiffs failed to do so,

their lien against the subject property expired on February 27,

2009, and thus, the subject property was free of the lien as of

that date.

The court conducted a hearing on the motion to dismiss on

June 16, 2009. The plaintiffs argued that since they filed the

instant cause of action within seven years of the date of the

original judgment, they did not need to revive the judgment and

file a memorandum of the order of revival to preserve the lien on

the subject property. At the hearing, the court inquired whether

the plaintiffs had supporting law that "establishe[d] that [the]

filing [of the instant lawsuit] toll[ed] the requirement, either

3 toll[ed] the seven years or toll[ed] the requirement, ma[de] it

superfluous to file the motion to extend the lien." Adler

responded that he "d[id]n't believe [the court was] going to find

a case like that."

The Kantowskis contended that the lien against the subject

property expired after February 27, 2009, because the plaintiffs

failed to properly revive it under section 12--101 of the Code.

Thus, while the plaintiffs could revive the original judgments

against Pytlewski, those judgments could no longer be a lien

against the subject property because Pytlewski, the judgment

debtor, no longer owned it.

The Kantowskis further argued that section 12--101 did not

provide that a judgment creditor had the option of preserving his

lien on a property by either obtaining an order of revival and

recording a new memorandum of revival within the seven-year

period, or by filing a lawsuit to close on the property within

the seven-year period. Instead, section 12--101 required the

judgment creditor to file the memorandum of revival within seven

years of the entry of the original judgment, and courts have

"strictly construe[d] [section 12--101] to a point of almost

absurdity."

The Kantowskis also stated that they did not have actual

notice of the lien against the subject property when they

purchased it. Adler stated that he "talk[ed with] the attorney

who issued the title. They missed it." Adler nonetheless

believed that the Kantowskis had constructive notice of the lien.

4 The court granted the Kantowskis' motion to dismiss. The

plaintiffs filed an amended motion to reconsider. In it, they

noted that they had revived the original judgments on May 21,

2009, and recorded them on June 5, 2009. According to the

plaintiffs, the court retained jurisdiction over the parties and

the subject property because they filed the instant suit during

the requisite seven-year period of section 12--101 of the Code

(735 ILCS 5/12--101 (West 2008)). Thus, the plaintiffs believed

that they had obtained an equitable lien against the subject

property and the court could properly order a judicial sale of

the subject property to satisfy the judgment. In the

alternative, the plaintiffs argued that the revival of the

judgment should relate back to the filing of the instant cause of

action. The plaintiffs also alleged that "[t]here [we]re many

additional potential facts which could be plead [sic], including

potential knowledge by the Defendants herein of the judgment at

the time of the purchase, which would mean that the Defendants

were not bona fide purchasers." The court denied the plaintiffs'

motion. The plaintiffs appealed.

ANALYSIS

On appeal, the plaintiffs first contend that the trial court

had the power to foreclose on the judgment lien because they had

obtained an equitable lien on the subject property by filing the

instant case and serving the Kantowskis prior to the expiration

of the original seven-year lien period.

At common law, a judgment against a person did not create a

5 lien against the real property of the judgment debtor. See Dunn

v. Thompson, 174 Ill. App. 3d 944 (1988). Rather, a judgment

lien is a creation of statute. See 735 ILCS 5/12--101 (West

2008). Specifically, pursuant to section 12--101 of the Code, a

judgment is a lien on the real estate of the judgment debtor only

from the time a transcript, certified copy, or memorandum of the

judgment is filed in the recorder's office in the county where

the real estate is located. 735 ILCS 5/12--101 (West 2008).

Unless a judgment is revived within seven years of its entry

or last revival and a memorandum of the order of revival is filed

before the expiration of the prior memorandum of the judgment, a

properly filed judgment lien expires seven years from the date of

its entry or last revival. 735 ILCS 5/12--101 (West 2008). Once

a judgment is revived, it is a lien on the real estate of the

person against whom it was entered from the time a transcript,

certified copy, or memorandum of the order of revival is filed

with the recorder in the county where the real estate is located.

735 ILCS 5/12--101 (West 2008); see also Wolff v. Groshong, 101

Ill. App. 3d 606, 608 (1981) ("a revived judgment is not a lien

on the real estate of a judgment debtor unless and until a

transcript, certified copy or memorandum of the order of revival

is filed in the office of the recorder of deeds in the county in

which the real estate is located"). Therefore, if the judgment

creditor fails to properly revive the judgment and file a

memorandum of the order of revival prior to the expiration of the

lien, the lien lapses. Wolff, 101 Ill. App. 3d 606.

6 Since the creation and revival of a judgment lien are

statutory in nature, courts require strict compliance with

section 12--101. See Northwest Diversified, Inc. v. Desai, 353

Ill. App. 3d 378 (2004). We review de novo the trial court's

dismissal of a section 2--619 motion. Wackrow v. Niemi, 231 Ill.

2d 418 (2008).

In this case, the plaintiffs obtained the original judgment

against Pytlewski on February 27, 2002, and filed a memorandum of

the judgment that day. Thus, under section 12--101 of the Code,

the lien attached to the subject property on February 27, 2002.

On July 11, 2008, when the Kantowskis purchased the subject

property, the lien existed. However, the record does not

indicate that the plaintiffs took any action to revive the

judgment, nor did they file a memorandum of an order of revival,

prior to the expiration of the original lien on February 27,

2009, as required by section 12--101 to preserve the lien on the

subject property. Thus, the plaintiffs did not strictly comply

with section 12--101 and, as a result, their judgment lien on the

subject property expired on February 27, 2009.

At the time the lien expired, Pytlewski, the judgment

debtor, did not own the subject property; the Kantowskis owned

it. Thus, since the subsequent May 2009 revival and June 2009

recording occurred after the original lien had lapsed, and since

it constituted "a lien on the real estate of the person against

whom it [was] entered," the plaintiffs were left to try to

collect their judgment against property currently owned by

7 Pytlewski, and not from the subject property as owned by the

Kantowskis. 735 ILCS 5/12--101 (West 2008).

We therefore conclude that since the plaintiffs allowed the

judgment lien against the subject property to lapse and did not

revive the judgment and make the requisite filing while the

judgment debtor owned the property, the plaintiffs' lien cannot

be asserted against the Kantowskis and the subject property. See

Wolff, 101 Ill. App. 3d 606.

The plaintiffs nonetheless contend that they obtained an

equitable lien on the property by filing the instant suit.

However, they have not cited, and our research has not revealed,

a case where a court has permitted the plaintiff to file a

lawsuit in lieu of complying with the requirements of section

12--101 and then successfully assert the judgment lien against a

subsequent owner of the property who was not the judgment debtor.

In reaching our conclusion, our careful review of the cases

cited by the plaintiffs reveals that they do not support the

plaintiffs’ contention that they obtained an equitable lien on

the subject property by filing the instant cause of action and

serving the Kantowskis prior to the expiration of the original

lien period. The plaintiffs specifically relied on Davidson v.

Burke, 143 Ill. 139 (1892), and Thomas v. Richards, 13 Ill. 2d

311 (1958).

Both the Davidson and Thomas cases involved instances where

the trial court created an equitable lien on the property at

issue in favor of a judgment creditor after the original judgment

8 lien had lapsed. See Davidson, 143 Ill. at 149 ("[i]n a case

where the plaintiff ha[d] no lien on the property sought to be

reached, it [was] the filing of the bill in equity, after the

return of the execution at law, which [gave] to the plaintiff a

specific lien"); see also Thomas, 13 Ill. 2d at 316 (court

recognized "that by the filing of the original creditor's suit

against the subject property the original judgment became a lien

thereon and that the lien continued thereafter up to the time of

the decree irrespective that in the meantime seven years had

elapsed from the date of the original judgment").

Davidson and Thomas are each materially unlike the instant

case. First, Davidson involved a fraudulent transfer of the

property at issue. Specifically, the Davidson court noted that

the judgment debtor had conveyed the land at issue for "pretend[]

consideration" and with the intention of defrauding the judgment

creditor. Davidson, 143 Ill. at 143. In creating the equitable

lien on that property, the court "held that a suit in chancery

being instituted to subject land fraudulently conveyed to the

satisfaction of a judgment, the lis pendens is an equitable levy,

and secure[d] a lien to the complainant." Davidson, 143 Ill. at

149; see also Thomas, 13 Ill. 2d 311 (the judgment debtors

confessed judgment against the property at issue only after the

property had been conveyed among various family members via

quitclaim deed).

We acknowledge that for the first time in their motion to

reconsider, the plaintiffs contended that they had "potential

9 knowledge" that the Kantowskis were not bona fide purchasers of

the subject property. However, the plaintiffs attached no

evidence in support of this allegation. The record also does not

support this contention, as Adler acknowledged that the title

company "missed" the instant lien during its search of the

property. Furthermore, a litigant may not raise a new legal

theory for the first time in a motion to reconsider. Holzer v.

Motorola Lighting, Inc., 295 Ill. App. 3d. 963 (1998).

Therefore, the plaintiffs have not properly shown that relief is

warranted due to fraud perpetrated by Pytlewski or the

Kantowskis.

Second, in Thomas, the court noted that "[t]he original

complaint was clearly a creditor's bill to satisfy the

plaintiff's judgment out of an equitable estate not otherwise

subject to levy and sale under execution, pursuant to the

provisions of section 49 of the Chancery Act." Thomas, 13 Ill.

2d at 315; see also Davidson, 143 Ill. at 148 ("[t]he questions

to be considered arise wholly out of the chancery proceedings").

However, the Illinois legislature repealed the last remnant of

the Chancery Act during the 1980s. Furthermore, we agree with

the statement of the Davidson court, that recognized that

"[w]here statutes prescribe the time during which judgments shall

have the force of liens on the lands of judgment debtors, one who

has neglected to enforce his judgment lien in proper time will

not, in equity, be relieved from the consequences of his

neglect." Davidson, 143 Ill. 2d at 147. We believe this

10 statement has particular importance in the case of innocent

purchasers, as we disfavor a policy that would require innocent

purchasers to sell their property to pay the judgment of another,

especially in light of the judgment creditor's right to continue

to try to collect the judgment from the judgment debtor.

Thus, we find Davidson and Thomas inapposite. Rather, we

believe that pursuant to section 12--101 of the Code, the

plaintiffs were required to revive the judgment and make the

requisite filing to properly preserve the lien on the subject

property prior to its expiration. They did not. Therefore, we

conclude that the plaintiffs do not have an equitable lien on the

subject property, and the trial court did not err by refusing to

order a judicial sale.

The plaintiffs also contend that the subsequent revival of

the judgement and the filing of the memorandum of the order of

revival should relate back to the filing of the instant lawsuit

in order to preserve the plaintiffs' lien on the subject

We acknowledge that a judgment can be revived 20 years after

it was entered. See 735 ILCS 5/2--1602 (West 2008) (a petition

to revive a judgment can be filed any time in the seventh year

after its entry or last revival, or at any time within 20 years

after its entry if the judgment becomes dormant). However,

merely reviving a judgment does not preserve a lien on real

property, as the law requires the judgment creditor to file the

memorandum of the order of revival before the expiration of the

11 prior judgment lien to properly preserve it. See 735 ILCS 5/12--

101 (West 2008). Here, the plaintiffs did not, and they have not

cited authority that would permit this court to conclude that the

subsequent May 2009 revival of the original judgment and the June

2009 filing of the memorandum of the order of revival related

back to the filing of the instant lawsuit in order to preserve

the lien.

Thus, for the foregoing reasons, we conclude that while the

Kantowskis purchased the subject property subject to the judgment

against Pytlewski, the plaintiffs' lien on the subject property

lapsed because they failed to strictly comply with the

requirements of section 12--101 (735 ILCS 5/12--101 (West 2008)).

Therefore, the trial court properly granted the Kantowskis'

motion to dismiss.

CONCLUSION

The judgment of the circuit court of Will County is

affirmed.