2015 IL App (1st) 142627 No. 1-14-2627 Opinion filed September 29, 2015 Second Division ______________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
FIRST DISTRICT
______________________________________________________________________________
MARQUETTE BANK, ) Appeal from the Circuit Court ) of Cook County. Plaintiff-Appellee, ) ) v. ) ) HEARTLAND BANK AND TRUST ) COMPANY, Successor Trustee to Western ) No. 12 CH 12873 Springs National Bank and Trust Company, Not ) Personally but as Trustee Under Trust Agreement ) Dated February 3, 2003, and Known as Trust No. ) 3987, LAWRENCE J. GESIAKOWSKI, GAIL T. ) GESIAKOWSKI, NON-RECORD CLAIMANTS ) AND UNKNOWN OWNERS, ) The Honorable ) Daniel P. Brennan, Defendants-Appellants. ) Judge, presiding. ______________________________________________________________________________
JUSTICE HYMAN delivered the judgment of the court, with opinion. Presiding Justice Pierce and Justice Simon concurred in the judgment and opinion.
OPINION
¶1 Defendant's principle argument on appeal concerns whether tenancy by the entirety can
be used as a defense to the foreclosure of a marital home owned by a land trust, an issue of first
impression. We need not address the availability of this defense under the statutory authority
generally and hold, instead, based on the specific facts here, that the trial court properly granted 1-14-2627
summary judgment in favor of plaintiff, Marquette Bank. Here, the wife's signing of a letter of
direction to the trustee of the land trust shows her consent to the mortgage, a joint debt, and, as
such, the defense of tenants by the entirety, even if statutorily allowed, was not available to
prevent the foreclosure of the defendants' marital home.
¶2 BACKGROUND
¶3 Defendant, Lawrence Gesiakowski, took out a business loan in 2007 to support his
automobile rebuilding business. As security for the loan, Marquette Bank requested his business
property and personal residence, which was placed in a land trust before the loan. Lawrence and
his wife, Gail, owned the beneficial land trust as tenants by the entirety.
¶4 The commercial loan was evidenced by a promissory note, dated March 2, 2007, in the
principal amount of $575,000, signed only by Lawrence, and secured by two mortgages: one for
the commercial property and one for the Gesiakowskis' home. The land trustee, at the express
written direction (letter of direction) of the sole beneficiaries of the land trust (the
Gesiakowskis), granted the mortgage to Marquette Bank. The mortgage reflects the land trustee
as the grantor and mortgagor.
¶5 When the loan matured in 2012, Lawrence defaulted, unable to pay due to the failure of
his business. Marquette Bank filed two separate mortgage foreclosure actions, one for the
commercial property and one for the Gesiakowskis' home.
¶6 The Gesiakowskis' objected to the foreclosure and sale of their home in an affirmative
defense, the subject of this appeal. They argued Marquette Bank could not sell their home to
satisfy the debt of only Lawrence because they owned their beneficial interest in the land trust as
tenants by the entirety as allowed by the Joint Tenancy Act (Act) (765 ILCS 1005/1c (West
2012)) and, therefore, section 12-112 of the Illinois Code of Civil Procedure (Code) (735 ILCS
-2- 1-14-2627
5/12-112 (West 2012)), precluded judicial foreclosure and the sale of their home. The trial court
disagreed and entered summary judgment in Marquette Bank's favor.
¶7 In denying the Gesiakowskis' affirmative defense, the trial court relied on land trust case
law bifurcating beneficial interest and the res of the land trust. The trial court held the
Gesiakowskis owned their beneficial interest in the land trust as personal property, not real
estate, as tenants by the entirety. At the hearing on the Gesiakowskis' motion to reconsider, the
court noted the importance of the letter of direction to its decision, finding the Gesiakowskis
expressly directed the trustee to execute the mortgage, thereby estopping them from asserting
their defense. The trial court concluded that no genuine issue of material fact remained as to Gail
Gesiakowski's knowledge concerning the mortgage.
¶8 The property was sold to Marquette Bank by the Cook County Sheriff at a judicial sale
under the order of judgment of foreclosure and sale. On July 22, 2014, the trial court granted
Marquette's motion for confirmation of the sale.
¶9 ANALYSIS
¶ 10 Summary judgment is proper where there are no genuine issues of material fact and the
moving party is entitled to judgment as a matter of law. 735 ILCS 5/2-1005 (West 2012). The
trial court may grant summary judgment after considering "the pleadings, depositions,
admissions, exhibits, and affidavits on file in the case" and construing that evidence in favor of
the nonmoving party. Purtill v. Hess, 111 Ill. 2d 229, 240 (1986). Summary judgment aids in
the expeditious disposition of a lawsuit, but it is a drastic measure that should be allowed only
"when the right of the moving party is clear and free from doubt." Id. If the plaintiff fails to
establish any element of his or her claim, summary judgment is appropriate. Pyne v. Witmer,
-3- 1-14-2627
129 Ill. 2d 351, 358 (1989). We review the trial court's decision to grant summary judgment de
novo. Outboard Marine Corp. v. Liberty Mutual Insurance Co., 154 Ill. 2d 90, 102 (1992).
¶ 11 Real estate held as tenants by the entirety protects a spouse against having his or her
homestead property sold to satisfy the individual debts of the other spouse. 735 ILCS 5/12-112
(West 2012). This type of ownership operates under the fictional assumption that a husband and
wife are one for legal purposes—it conveys the property to them as one person; they each own
100% of the property. See John V. Orth, Tenancy by the Entirety: The Strange Career of the
Common-Law Marital Estate, 1997 B.Y.U. L. Rev. 35, 38 (1997) (" 'And therefore, if an estate
in fee be given to a man and his wife, they are neither properly joint-tenants, nor tenants in
common: for husband and wife being considered as one person in law, they cannot take the
estate by moieties, but both are seised of the entirety, per tout et non per my; the consequence of
which is, that neither the husband nor the wife can dispose of any part without the assent of the
other, but the whole must remain to the survivor.' " (quoting 2 Sir William Blackstone,
Commentaries 182 (photo. reprint 1978) (R. Burn ed., 1783))).
¶ 12 The law in Illinois exempts real estate owned jointly as spouses from collection by any
creditor that obtains a judgment against one spouse individually, unless "the property was
transferred into tenancy by the entirety with the sole intent to avoid the payment of debts existing
at the time of the transfer beyond the transferor's ability to pay those debts as they become due."
735 ILCS 5/12-112 (West 2012). The exemption protects an innocent spouse from losing the
marital home because of the individual debts of his or her spouse. Premier Property
Management, Inc. v. Chavez, 191 Ill.
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2015 IL App (1st) 142627 No. 1-14-2627 Opinion filed September 29, 2015 Second Division ______________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
FIRST DISTRICT
______________________________________________________________________________
MARQUETTE BANK, ) Appeal from the Circuit Court ) of Cook County. Plaintiff-Appellee, ) ) v. ) ) HEARTLAND BANK AND TRUST ) COMPANY, Successor Trustee to Western ) No. 12 CH 12873 Springs National Bank and Trust Company, Not ) Personally but as Trustee Under Trust Agreement ) Dated February 3, 2003, and Known as Trust No. ) 3987, LAWRENCE J. GESIAKOWSKI, GAIL T. ) GESIAKOWSKI, NON-RECORD CLAIMANTS ) AND UNKNOWN OWNERS, ) The Honorable ) Daniel P. Brennan, Defendants-Appellants. ) Judge, presiding. ______________________________________________________________________________
JUSTICE HYMAN delivered the judgment of the court, with opinion. Presiding Justice Pierce and Justice Simon concurred in the judgment and opinion.
OPINION
¶1 Defendant's principle argument on appeal concerns whether tenancy by the entirety can
be used as a defense to the foreclosure of a marital home owned by a land trust, an issue of first
impression. We need not address the availability of this defense under the statutory authority
generally and hold, instead, based on the specific facts here, that the trial court properly granted 1-14-2627
summary judgment in favor of plaintiff, Marquette Bank. Here, the wife's signing of a letter of
direction to the trustee of the land trust shows her consent to the mortgage, a joint debt, and, as
such, the defense of tenants by the entirety, even if statutorily allowed, was not available to
prevent the foreclosure of the defendants' marital home.
¶2 BACKGROUND
¶3 Defendant, Lawrence Gesiakowski, took out a business loan in 2007 to support his
automobile rebuilding business. As security for the loan, Marquette Bank requested his business
property and personal residence, which was placed in a land trust before the loan. Lawrence and
his wife, Gail, owned the beneficial land trust as tenants by the entirety.
¶4 The commercial loan was evidenced by a promissory note, dated March 2, 2007, in the
principal amount of $575,000, signed only by Lawrence, and secured by two mortgages: one for
the commercial property and one for the Gesiakowskis' home. The land trustee, at the express
written direction (letter of direction) of the sole beneficiaries of the land trust (the
Gesiakowskis), granted the mortgage to Marquette Bank. The mortgage reflects the land trustee
as the grantor and mortgagor.
¶5 When the loan matured in 2012, Lawrence defaulted, unable to pay due to the failure of
his business. Marquette Bank filed two separate mortgage foreclosure actions, one for the
commercial property and one for the Gesiakowskis' home.
¶6 The Gesiakowskis' objected to the foreclosure and sale of their home in an affirmative
defense, the subject of this appeal. They argued Marquette Bank could not sell their home to
satisfy the debt of only Lawrence because they owned their beneficial interest in the land trust as
tenants by the entirety as allowed by the Joint Tenancy Act (Act) (765 ILCS 1005/1c (West
2012)) and, therefore, section 12-112 of the Illinois Code of Civil Procedure (Code) (735 ILCS
-2- 1-14-2627
5/12-112 (West 2012)), precluded judicial foreclosure and the sale of their home. The trial court
disagreed and entered summary judgment in Marquette Bank's favor.
¶7 In denying the Gesiakowskis' affirmative defense, the trial court relied on land trust case
law bifurcating beneficial interest and the res of the land trust. The trial court held the
Gesiakowskis owned their beneficial interest in the land trust as personal property, not real
estate, as tenants by the entirety. At the hearing on the Gesiakowskis' motion to reconsider, the
court noted the importance of the letter of direction to its decision, finding the Gesiakowskis
expressly directed the trustee to execute the mortgage, thereby estopping them from asserting
their defense. The trial court concluded that no genuine issue of material fact remained as to Gail
Gesiakowski's knowledge concerning the mortgage.
¶8 The property was sold to Marquette Bank by the Cook County Sheriff at a judicial sale
under the order of judgment of foreclosure and sale. On July 22, 2014, the trial court granted
Marquette's motion for confirmation of the sale.
¶9 ANALYSIS
¶ 10 Summary judgment is proper where there are no genuine issues of material fact and the
moving party is entitled to judgment as a matter of law. 735 ILCS 5/2-1005 (West 2012). The
trial court may grant summary judgment after considering "the pleadings, depositions,
admissions, exhibits, and affidavits on file in the case" and construing that evidence in favor of
the nonmoving party. Purtill v. Hess, 111 Ill. 2d 229, 240 (1986). Summary judgment aids in
the expeditious disposition of a lawsuit, but it is a drastic measure that should be allowed only
"when the right of the moving party is clear and free from doubt." Id. If the plaintiff fails to
establish any element of his or her claim, summary judgment is appropriate. Pyne v. Witmer,
-3- 1-14-2627
129 Ill. 2d 351, 358 (1989). We review the trial court's decision to grant summary judgment de
novo. Outboard Marine Corp. v. Liberty Mutual Insurance Co., 154 Ill. 2d 90, 102 (1992).
¶ 11 Real estate held as tenants by the entirety protects a spouse against having his or her
homestead property sold to satisfy the individual debts of the other spouse. 735 ILCS 5/12-112
(West 2012). This type of ownership operates under the fictional assumption that a husband and
wife are one for legal purposes—it conveys the property to them as one person; they each own
100% of the property. See John V. Orth, Tenancy by the Entirety: The Strange Career of the
Common-Law Marital Estate, 1997 B.Y.U. L. Rev. 35, 38 (1997) (" 'And therefore, if an estate
in fee be given to a man and his wife, they are neither properly joint-tenants, nor tenants in
common: for husband and wife being considered as one person in law, they cannot take the
estate by moieties, but both are seised of the entirety, per tout et non per my; the consequence of
which is, that neither the husband nor the wife can dispose of any part without the assent of the
other, but the whole must remain to the survivor.' " (quoting 2 Sir William Blackstone,
Commentaries 182 (photo. reprint 1978) (R. Burn ed., 1783))).
¶ 12 The law in Illinois exempts real estate owned jointly as spouses from collection by any
creditor that obtains a judgment against one spouse individually, unless "the property was
transferred into tenancy by the entirety with the sole intent to avoid the payment of debts existing
at the time of the transfer beyond the transferor's ability to pay those debts as they become due."
735 ILCS 5/12-112 (West 2012). The exemption protects an innocent spouse from losing the
marital home because of the individual debts of his or her spouse. Premier Property
Management, Inc. v. Chavez, 191 Ill. 2d 101, 104 (2000). Accordingly, where both spouses are
judgment debtors, borrowers or guarantors, their real estate is not protected from judgment based
on their ownership as tenants by the entirety.
-4- 1-14-2627
¶ 13 The Gesiakowskis argue that the Act and section 12-112 of the Code bar foreclosure of a
mortgage because their home has been placed in an Illinois land trust and, as beneficiaries, they
own the beneficial personal property interest as tenants by entirety. They claim that their
ownership of beneficial interest in the land trust as tenants by entirety should be treated as the
legal equivalent of owning the real property held in the land trust as tenants by entirety.
¶ 14 The Act and section 12-112 of the Code have no application. Marquette Bank was
granted the mortgage at the direction of both of the Gesiakowskis and holds the mortgage
directly on the property. Tenancy by the entirety ownership of the beneficial interest in the land
trust, as discussed in section 12-112 of the Code, only precludes the sale of the joint owners'
personal property interest to satisfy a money judgment against the other owner. 735 ILCS 5/12-
112 (West 2012). The protection afforded by tenancy by the entirety ownership depends on
whether the debt is individual or joint. See In re Tolson, 338 B.R. 359, 370 (Bankr. C.D. Ill.
2005). A property held as tenants by the entirety may be sold the same as if title was held in joint
tenancy to enforce a joint debt. Id.
¶ 15 The letter of direction specifically authorized and directed the land trustee to execute and
deliver the mortgage on the Gesiakowskis' home as security for the business loan. Under the trust
agreement, the land trustee could not act without the direction of the Gesiakowskis. Both Gail
and Lawrence directed the land trustee by stating in their letter of direction:
"We hereby authorize and direct you in your capacity as Trustee under the Trust
Agreement *** to execute ***and to deliver the following described documents,
copies of which are attached hereto ***and expressly made a part of this Letter of
Direction: Mortgage dated March 2, 2007 to Lender."
-5- 1-14-2627
Both Gail and Lawrence signed the letter after attesting (i) that each of them as beneficiaries had
"read, examined and approved the documents described above;" (ii) that everything stated in the
documents was "true and correct;" and (iii) that all of the representations and warranties were
"made for the purpose of inducing [Land Trustee] to act as directed above."
¶ 16 We are unpersuaded by the Gesiakowskis' contention that by signing the letter of
direction, Gail merely acknowledged that Lawrence "mortgaged his half-interest." The letter of
direction contains nothing, the evidence in the record contains nothing, and the mortgage
documents contain nothing, suggesting the mortgage only encumbered a half-interest in their
marital home.
¶ 17 By signing the letter of direction, Gail expressly directed the owner of the property, the
land trustee, to execute a mortgage as a lien on their home and as security for the note. The letter
of direction does not state it only applies to Lawrence's half-interest nor does it limit the scope of
the mortgage to only Lawrence's interest. At the Gesiakowskis' direction, the land trustee
expressly mortgaged "all of Grantor's right, title, and interest in and to the" property.
Accordingly, Marquette Bank's mortgage of the Gesiakowskis' home was created at the express
written direction of the Gesiakowskis.
¶ 18 The mortgage provides that in the event of default, the lender may obtain a judicial
decree "foreclosing Grantor's [Land Trustee] interest in all or any of the Property." Under the
mortgage, Marquette has the right to "sell all or any part of the Property" on a default. The
default on the mortgage payments gave Marquette the right to foreclose the mortgage and cause
the judicial sale of the home under the terms of the mortgage and the relevant portions of the
Illinois Mortgage Foreclosure Law (735 ILCS 5/15-1701 et seq. (West 2012)).
-6- 1-14-2627
¶ 19 Marquette Bank established a prima facie case for foreclosure and the Gesiakowskis
failed to meet their burden to prove payment under the terms of the mortgage or establish a valid
defense.
¶ 20 CONCLUSION
¶ 21 The trial court properly granted summary judgment in favor of Marquette Bank and held
it was entitled to judgment of foreclosure and sale.
¶ 22 Affirmed.
-7-