Maniez v. Citibank, F.S.B.

• Decision Date: 10 June 2008
• Docket Number: No. 1-06-3713.,1-06-3713.
• Citation: 890 N.E.2d 662,383 Ill.App.3d 38
• Parties: Louis MANIEZ, Plaintiff-Appellee, v. CITIBANK, F.S.B., Harbor Drive Condominium Association and Unknown Owners and Nonrecord Claimants, Defendants (Masayo Koshiyama and Robert Jolly, Defendants-Appellants).
• Court: United States Appellate Court of Illinois

890 N.E.2d 662

383 Ill.App.3d 38

Louis MANIEZ, Plaintiff-Appellee, v. CITIBANK, F.S.B., Harbor Drive Condominium Association and Unknown Owners and Nonrecord Claimants, Defendants (Masayo Koshiyama and Robert Jolly, Defendants-Appellants).

No. 1-06-3713.

Appellate Court of Illinois, First District, Second Division.

June 10, 2008.

Rehearing Denied July 15, 2008.

Marc D. Sherman, Marc D. Sherman & Associates, P.C., Lincolnwood, for Appellants.

William E. Nelson, Teller, Levit & Silvertrust, P.C., Chicago, for Appellee.

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:

"[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 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, 273 Ill.Dec. 198, 788 N.E.2d 789 (2003).

II. Discussion

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, 124 Ill.Dec 477, 529 N.E.2d 297 (1988). A judgment lien is purely a statutory creation. Dunn, 174 Ill.App.3d at 947, 124 Ill.Dec. 477, 529 N.E.2d 297. 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 [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, 124 Ill.Dec. 477, 529 N.E.2d 297. Strict compliance with section 12-101 is required. Northwest Diversified, Inc. v. Desai, 353 Ill.App.3d 378, 387, 288 Ill.Dec. 818, 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, 288 Ill.Dec. 818, 818 N.E.2d 753. 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, 288 Ill.Dec. 818, 818 N.E.2d 753, quoting Dunn, 174 Ill. App.3d at 947, 124 Ill.Dec. 477, 529 N.E.2d 297.

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, 288 Ill.Dec. 818, 818 N.E.2d 753.

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, 131 Ill.Dec. 2, 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 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, 176 Ill.Dec. 930, 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 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, 176 Ill.Dec. 930, 602 N.E.2d 876.

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, 230 Ill.Dec. 45, 692 N.E.2d 1211 (1998),...