First National Bank v. Fryman

602 N.E.2d 876, 236 Ill. App. 3d 754, 176 Ill. Dec. 930, 1992 Ill. App. LEXIS 1731
CourtAppellate Court of Illinois
DecidedOctober 29, 1992
DocketNo. 4—92—0014
StatusPublished
Cited by9 cases

This text of 602 N.E.2d 876 (First National Bank v. Fryman) is published on Counsel Stack Legal Research, covering Appellate Court of Illinois primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
First National Bank v. Fryman, 602 N.E.2d 876, 236 Ill. App. 3d 754, 176 Ill. Dec. 930, 1992 Ill. App. LEXIS 1731 (Ill. Ct. App. 1992).

Opinion

JUSTICE McCULLOUGH

delivered the opinion of the court:

Plaintiff First National Bank of Mt. Zion purchased a parcel of land located in Macon County following a foreclosure of a judgment lien which was entered on December 12, 1991, and confirmed on December 23, 1991. Defendant John Fryman had acquired title to this property through a previous foreclosure proceeding in December 1985. Defendant appeals the judgment of foreclosure entered on December 12, 1991, and subsequent order of sale regarding this property, contending plaintiff (1) never obtained a valid lien against his property and (2) if a valid lien was created, it lapsed because of plaintiff’s failure to revive its judgment which created the lien after seven years from the date it was entered. We affirm.

On February 18, 1976, defendant entered into an agreement for deed to purchase from James R. Yeager, Sr., and James R. Yeager, Jr., the subject property. Plaintiff was the escrow agent for this transaction. Defendant failed to make the final payment on the agreement and thus did not acquire title to the property. The property was encumbered by a mortgage to Millikin National Bank of Decatur which, in 1983, commenced foreclosure proceedings against the Yeagers and defendant in Macon County case No. 83 — CH—11. Judgment of foreclosure was entered against both Yeagers on May 30, 1985. The property was ordered sold and the clerk of the court was directed to apply the proceeds first to defendant for his interest in the property. The Us pendens notice in this mortgage foreclosure was not filed until January 31, 1985. Defendant was the successful purchaser at the foreclosure sale and he received judicial deed to the property on December 6,1985.

On September 7, 1983, plaintiff filed a complaint in Macon County case No. 83 — L—192 seeking a money judgment against James Yeager, Sr. Plaintiff was awarded such a judgment in the amount of $43,488.87 on February 24, 1984. On March 1, 1984, plaintiff recorded a “Certified Copy of Judgment” in the recorder’s office of Macon County. In that document, the circuit clerk did “Certify that on February 24, A.D. 1984, a Judgment was entered by said Court as follows:

Judgment AGAINST (Name and address) JAMES YEAGER. Amount Forty Thousand Five Hundred Thirty Four Dollars & Forty Six [Count] 1 & Two Thousand Nine Hundred Fifty Four Dollars & Forty One & Costs [Count] 2. In favor of (Name) FIRST NATIONAL BANK OF MT.' ZION Court Case Number 83 — L—192.”

That document also contained the docket entry for February 24, 1984, which stated:

“Court convened for the transaction of business on February 24, 1984. And thereupon, there were had among others the following proceedings. Judge Donald W. Morthland.
Plaintiff’s exhibits Nos. 1 and 2 offered and admitted into evidence. Judgment in favor of the plaintiff and. against the defendant on count I in the sum of $40,534.46. Judgment in favor of the plaintiff and against the defendant on count II, in the sum of $2,9.54.41, and costs of suit. See written judgment order on file.”

On November 13, 1990, plaintiff filed a complaint to foreclose the judgment lien against defendant. In that complaint, plaintiff alleged the “Certified Copy of Judgment” filed with the Macon County recorder’s office on March 1, 1984, created a judgment lien on the property owned by defendant. Defendant filed a motion to dismiss pursuant to section 2 — 619 of the Code of Civil Procedure (Code) (Ill. Rev. Stat. 1989, ch. 110, par. 2 — 619) alleging no judgment lien was created since the document filed in the Macon County recorder’s office was not a certified copy of the judgment entered against James Yeager, Sr., on February 24, 1984. On January 2, 1991, the trial court denied defendant’s motion, finding the document was a memorandum of judgment as defined in section 12 — 101 of the Code (Ill. Rev. Stat. 1989, ch. 110, par. 12 — 101). Defendant then filed a motion for reconsideration of the trial court’s order of January 2, 1991, or alternatively, a finding pursuant to Supreme Court Rule 308 (134 Ill. 2d R. 308) for leave to file-an interlocutory appeal. Both of defendant’s motions were denied on January 17,1991.

Next, defendant filed a motion for summary judgment (Ill. Rev. Stat. 1989, ch. 110, par. 2 — 1005) alleging the facts uncovered through discovery established that plaintiff’s lien, if valid, only attached to an undivided one-half interest in the premises since the February 24, 1984, judgment was only rendered against James Yeager, Sr. The motion further alleged that the judgment had lapsed since it had not been revived or executed and levied upon because seven years had passed since the judgment was entered. Plaintiff responded that the judgment of foreclosure action was tantamount to a levy under section 12 — 108 of the Code (Ill. Rev. Stat. 1989, ch. 110, par. 12 — 108), which extended the seven-year period for one year in order to conduct a sale pursuant to the levy. In the alternative, plaintiff contended the bankruptcy of James Yeager, Sr., which was filed on August 19, 1984, and closed on September 22,1989, extended the seven-year period.

The trial court granted defendant’s motion in part, finding plaintiff’s judgment only attached to an undivided one-half interest in the property. The court expressly found, although the judgment was not revived within seven years of its rendition or within any extended period because of the bankruptcy, revival of the judgment was not required because the foreclosure proceeding was commenced by plaintiff within seven years of the rendition of the judgment. Accordingly, that part of defendant’s motion was denied.

Plaintiff then moved for summary judgment, which was granted on December 12, 1991. A judgment lien in the sum of $74,000 against an undivided one-half interest in the premises was awarded to plaintiff. The property was sold and the foreclosure sale was confirmed on December 23, 1991. The trial court stayed issuance of the judicial deed for 30 days after the issue of the order confirming the sale and further ordered that if a notice of appeal was filed with the appellate court, the issuance of a judicial deed would be stayed until the mandate issued from the appellate court. Defendant filed his notice of appeal on January 3, 1992.

Defendant first contends no judgment lien in favor of plaintiff was created since the document recorded in the Macon County recorder’s office was not a certified copy of the judgment nor a memorandum of judgment. Section 12 — 101 of the Code provided in pertinent part:

“As to real estate included within class two, a judgment is a lien on the real estate of the person against whom it is entered in any county in this State, including the county in which it is entered, only from the time a transcript, certified copy or memorandum of the judgment is filed in the office of the recorder in the county in which the real estate is located.” (Ill. Rev. Stat. 1983, ch. 110, par. 12 — 101.)

Thus, there are three documents that could be recorded to create a judgment lien: (1) transcript; (2) certified copy of the judgment; or (3) memorandum of judgment. Unquestionably, the document recorded on March 1, 1984, is not a transcript nor do we believe it is a certified copy of the judgment.

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Cite This Page — Counsel Stack

Bluebook (online)
602 N.E.2d 876, 236 Ill. App. 3d 754, 176 Ill. Dec. 930, 1992 Ill. App. LEXIS 1731, Counsel Stack Legal Research, https://law.counselstack.com/opinion/first-national-bank-v-fryman-illappct-1992.