Gmac Mortg., LLC v. Nicholas A. Arrigo, Lina Arrigo, Wells Fargo Bank, N.A.
| Decision Date | 20 May 2014 |
| Docket Number | No. 2–13–0938.,2–13–0938. |
| Citation | 2014 IL App (2d) 130938,8 N.E.3d 621,380 Ill.Dec. 451 |
| Parties | GMAC MORTGAGE, LLC, Plaintiff and Counterdefendant–Appellant, v. Nicholas A. ARRIGO, Lina Arrigo, Wells Fargo Bank, N.A., Lee Station Master Association, NFP, Lee Station Townhome Association, NFP, and Unknown Owners and Nonrecord Claimants, Defendants and Counterplaintiffs–Appellees. |
| Court | United States Appellate Court of Illinois |
OPINION TEXT STARTS HERE
Darnella J. Ward, Fidelity National Law Group, Chicago, for appellant.
David R. Sweis, Sweis Law Firm, P.C., Oak Brook, for appellees.
¶ 1 This interlocutory appeal under Illinois Supreme Court Rule 308(eff. Feb. 26, 2010) arises from a foreclosure proceeding that plaintiff, GMAC Mortgage, LLC, initiated against defendants, Nicholas A. Arrigo, Lina Arrigo, Wells Fargo Bank, N.A., Lee Station Master Association, NFP, Lee Station Townhome Association, NFP, and unknown owners and nonrecord claimants.Defendants counterclaimed and raised an affirmative defense, seeking partition based on Lina's claim to a homestead exemption.GMAC moved to dismiss pursuant to section 2–619 of the Code of Civil Procedure(Code)( 735 ILCS 5/2–619(West 2012)).The trial court denied the motion, but certified the following question pursuant to Rule 308: “Whether a spouse may claim her homestead exemption when that spouse is not on title to the property but is the spouse of the title holder and maintains the property as her primary place of residence under [section 12–901 of the Code (735 ILCS 5/12–901(West 2012)) ].”We granted GMAC's application for leave to appeal.For the following reasons, we answer the certified question in the negative.
¶ 3 In 2003, Nicholas purchased the subject property at 0S076 Lee Court in Winfield (tax parcel No. 04–13–201–077) with a $244,900 purchase-money mortgage from First Home Mortgage, and he refinanced on two occasions: first, in 2004, and, second, in 2009(with Guaranteed Rate, Inc., which later assigned the note to GMAC).
¶ 4 On November 2, 2011, GMAC filed a mortgage foreclosure complaint against defendants, seeking a judgment of foreclosure and sale because Nicholas, the owner of the property, defaulted on his obligations.In an amended complaint, it alleged that Nicholas, who was described as “A MARRIED MAN” in the mortgage, waived his homestead exemption.The balance due on the note and mortgage was $220,000.GMAC joined Lina, Nicholas's wife, as a defendant because she“may have some interest in the subject real estate.”1
¶ 5Defendants filed their answer, raising three affirmative defenses, including, as relevant here, unclean hands; specifically, Lina argued that her signature on a purported waiver of homestead rights was forged and that she was not present at the time of closing.Defendants asserted that the closing occurred at Nicholas's residence; Lina was not present and did not execute any documents associated with the refinance; Lina never received or signed a waiver of homestead rights; and James M. Rubel, the purported notary of the waiver, was not present at the closing and Lina had never come into contact with him.Defendants requested that the court dismiss the cause with prejudice.
¶ 6 On November 6, 2012, defendants filed their counterclaim for partition, raising allegations similar to those contained in their unclean-hands affirmative defense.They further alleged that, at the time of the refinance, the subject property was Lina's primary residence and she had homestead rights and was entitled to a $15,000 estate of homestead.
¶ 7 GMAC moved, in a combined motion, to strike and dismiss defendants' affirmative defenses and counterclaim (735 ILCS 5/2–615, 2–619 (West 2012)).As relevant here, the trial court granted the motion without prejudice as to the second affirmative defense (unclean hands) and counterclaim.
¶ 8 Lina filed an amended counterclaim for partition on April 3, 2013, alleging that she was entitled to her own homestead exemption because the subject property had been her primary residence since the time of the refinance and realleging that she did not sign the waiver of homestead rights and was not present at closing.
¶ 9 GMAC moved to dismiss the amended counterclaim pursuant to section 2–619 of the Code, arguing that, as a matter of law, a spouse may not claim the statutory homestead exemption under section 12–901 of the Code when that spouse has no formalized interest in or formalized possession of the home.It noted that Lina was not on the title to the subject property, and it argued that it was irrelevant that she claimed that she did not give her express waiver.
¶ 10 On July 17, 2013, the trial court denied the motion, relying on Brod v. Brod,390 Ill. 312, 61 N.E.2d 675(1945), and reading it to hold that the spouse's interest need not be formalized, but acknowledging that more recent federal cases interpreting Illinois law supported GMAC's position.Subsequently, on August 29, 2013, it certified the following question: “Whether a spouse may claim her homestead exemption when that spouse is not on title to the property but is the spouse of the title holder and maintains the property as her primary place of residence under [section 12–901 of the Code (735 ILCS 5/12–901(West 2012)) ].”Further, the court stayed the proceedings pursuant to Rule 308(e).This court, on October 9, 2013, granted leave to appeal on the question.
¶ 12 GMAC argues that defendants cannot seek partition, because Lina holds no ownership interest in the subject property.It contends that recent case law, albeit from federal courts interpreting Illinois law, warrants answering the certified question in the negative (and further supports dismissal of defendants' counterclaim).GMAC also argues that Brod,the supreme court case upon which the trial court primarily relied, is factually and legally distinguishable and is based on antiquated law.For the following reasons, we conclude that Lina cannot claim the exemption and we answer the certified question in the negative.
¶ 13 Rule 308 provides a remedy of permissive appeal from an interlocutory order where the trial court has deemed that it involves a question of law as to which there is substantial ground for difference of opinion and that an immediate appeal from the order may materially advance the ultimate termination of the litigation.Ill. S.Ct. R. 308(eff. Feb. 26, 2010).Because an interlocutory appeal under Rule 308 necessarily involves a question of law, our review is de novo.In re Marriage of Mathis,2012 IL 113496, ¶ 19, 369 Ill.Dec. 503, 986 N.E.2d 1139.Further, this appeal raises a statutory construction question.Issues of statutory construction also present questions of law that we review de novo.Hall v. Henn,208 Ill.2d 325, 330, 280 Ill.Dec. 546, 802 N.E.2d 797(2003).
¶ 14 The cardinal rule of statutory construction is to ascertain and effectuate the legislature's intent.Moore v. Green,219 Ill.2d 470, 479, 302 Ill.Dec. 451, 848 N.E.2d 1015(2006).The best indicator of that intent is the express language of the statute, which should be given its plain and ordinary meaning.Wilkins v. Williams,2013 IL 114310, ¶ 14, 372 Ill.Dec. 1, 991 N.E.2d 308.In interpreting a statute, we must read the relevant provisions in their entirety and in their context within the broader framework of the act of which they are a part.Solon v. Midwest Medical Records Ass'n,236 Ill.2d 433, 440, 338 Ill.Dec. 907, 925 N.E.2d 1113(2010).
¶ 15 Estates of homestead are statutory creations.Bank of Illmo v. Simmons,142 Ill.App.3d 741, 744, 97 Ill.Dec. 4, 492 N.E.2d 207(1986).“Homestead is a freehold estate in land, the purpose of which is ‘to insure to the family the possession and enjoyment of a home.’ ”Willard v. Northwest National Bank of Chicago,137 Ill.App.3d 255, 264, 92 Ill.Dec. 92, 484 N.E.2d 823(1985)(quotingBrod,390 Ill. at 323, 61 N.E.2d 675).It further secures to the homesteader “a shelter beyond the reach of his improvidence or financial misfortune.”People v. One Residence Located at 1403 East Parham Street,251 Ill.App.3d 198, 201, 190 Ill.Dec. 573, 621 N.E.2d 1026(1993).Homestead exemption statutes are liberally construed.Id.
¶ 16Section 12–901 of the Code is the homestead exemption statute at issue here and provides:
(Emphases added.)735 ILCS 5/12–901(West 2012).
¶ 17 GMAC argues first that the plain language of the statute bars defendants' claim because it does not support their interpretation that Lina has her own homestead exemption apart from Nicolas.The burden of proving the existence of a homestead is on the individual asserting it.First State Bank of Princeton v. Leffelman,167 Ill.App.3d 362, 366, 118 Ill.Dec. 127, 521 N.E.2d 195(1988).To qualify for the exemption, an “individual” must (1) occupy the property “as a residence”;...
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