Maniez v. Citibank

• Court: Appellate Court of Illinois
• Decided: June 10, 2008
• Docket: 1-06-3713 Rel
• Status: Published

Opinion

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.

2 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

3 No. 1-06-3713

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

4 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.

5 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

6 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

7 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

8 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

9 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

10 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

11 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.

12 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_________________________________