Maniez v. Citibank, F.S.B.
| Decision Date | 20 September 2010 |
| Docket Number | No. 1-09-0583.,1-09-0583. |
| Citation | 344 Ill.Dec. 531,937 N.E.2d 237,404 Ill.App.3d 941 |
| Parties | Louis MANIEZ, Plaintiff-Appellant, v. CITIBANK, F.S.B., Harbor Drive Condominium Association, Unknown Owners and Nonrecord Claimants, Defendants (Masayo Koshiyama and Robert Jolly, Defendants-Appellees). |
| Court | United States Appellate Court of Illinois |
Cindy M. Johnson, Johnson & Newby, LLC, Chicago, for appellant.
Marc D. Sherman, Marc D. Sherman & Associates, P.C., Lincolnwood, for appellees.
[344 Ill.Dec. 534, 404 Ill.App.3d 943]
This is the second appeal generated by the efforts of the plaintiff, Louis Maniez, to prevail on his complaint to foreclose a judgment lien against the defendants, Masayo Koshiyama and her husband, Robert Jolly. In answer to a certified question, this court held that a 1997 memorandum of judgment recorded by the plaintiff did not create a valid lien against the defendants' real property. See Maniez v. Citibank, F.S.B., 383 Ill.App.3d 38, 321 Ill.Dec. 940, 890 N.E.2d 662 (2008).
[937 N.E.2d 241, 344 Ill.Dec. 535]
On remand, the circuit court granted the defendants' motion to dismiss the complaint pursuant to section 2-619 of the Code of Civil Procedure (735 ILCS 5/2-619 (West 2008)) (the Code). The plaintiff appeals, raising the following issues: (1) whether the doctrines of judicial estoppel and equitable estoppel bar Ms. Koshiyama from asserting the invalidity of the plaintiff's 1997 judgment lien; (2) whetherthe plaintiff's 2004 memorandum of judgment created a valid judgment lien that is binding on the Jolly estate; 1 and (3) whether this court's prior decision in Maniez should be overruled under the exceptions to the law of the case doctrine.
Our prior opinion was limited to answering the certified question. The issues presented in this appeal require a more detailed history of this litigation.
In 1993, the plaintiff, Louis Maniez, and the defendants entered into a settlement agreement to resolve pending litigation. The order entered by the circuit court provided that Ms. Koshiyama was to make certain payments to the plaintiff. In the event she failed to make the payments, a default judgment would be entered against both defendants for the remaining balance. Ms. Koshiyama failed to make the payments, and on February 28, 1997, the plaintiff obtained a default judgment against the defendants in the amount of $110,348.83, plus statutory interest. It is undisputed that a memorandum of judgment was recorded on February 28, 1997, and that the memorandum specified the judgment date as February 27, 1997, rather than February 28, 1997, the actual date of the judgment.
On February 6, 1998, Ms. Koshiyama filed for bankruptcy. On her Schedule A—Real Property, she listed a 50% interest in a condominium unit at 155 Harbor Drive, Chicago, Illinois (the Harbor Drive Unit), which she owned in joint tenancy with Mr. Jolly. On her Schedule D—Creditors Holding Secured Claims, she listed the plaintiff and described his claim as a "Judicial Lien" against the Harbor Drive Unit. She listed the value of the property as $550,000 and the amount of the plaintiff's claim as $110,348.83. She did not indicate on the schedule that the plaintiff's claim was disputed.
On February 25, 2004, the circuit court granted the plaintiff's motion to revive his judgment against the defendants. The order specified the correct judgment date of February 28, 1997, and provided that the judgment was revived against both defendants. However, as to Ms. Koshiyama, it was "limited to in rem effect and only as to real estate owned by Masayo Koshiyama at the time she filed her bankruptcy proceedings." Based on the revived judgment, the plaintiff recorded a memorandum of judgment on February 26, 2004. However, the memorandum stated the year of the judgment as 1998 rather 1997, the correct year of the judgment.
Ms. Koshiyama's bankruptcy case was closed on January 21, 2005. On October 24, 2005, the plaintiff recorded the circuit court's February 25, 2004, order reviving the judgment and which specified the correct judgment date of February 28, 1997.
On December 1, 2005, the plaintiff filed the instant foreclosure complaint against the defendants. The defendants filed a motion to dismiss the complaint pursuant
[344 Ill.Dec. 536, 937 N.E.2d 242]
to section 2-619(a)(9) of the Code (735 ILCS 5/2-619(a)(9) (West 2006)). The defendants alleged that the 1997 memorandum of judgment did not create a judgment lien on the Harbor Drive Unit because the memorandum referred to the judgment as having been entered on February 27, 1997, whereas the judgment was entered on February 28, 1997.
Defendant Robert Jolly died on June 21, 2006.2 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 party defendant. The court entered an order denying the defendants' motion to dismiss. On December 13, 2006, the court modified its order by certifying the following question to this court:
In answer to the certified question, this court held that a memorandum of judgment inaccurately describing a judgment as having been entered on a specific date did not create a lien under section 12-101 of the Code. Maniez, 383 Ill.App.3d at 45, 321 Ill.Dec. 940, 890 N.E.2d 662. In reaching that conclusion, the court noted that under section 12-101, a judgment was a lien on real estate only from the time the memorandum of judgment was filed in the recorder's office. See 735 ILCS 5/12-101 (West 2002). However, there must also be an enforceable judgment standing behind the memorandum. Maniez, 383 Ill.App.3d at 41, 321 Ill.Dec. 940, 890 N.E.2d 662, citing Northwest Diversified, Inc. v. Desai, 353 Ill.App.3d 378, 388, 288 Ill.Dec. 818, 818 N.E.2d 753 (2004).
The plaintiff argued that the memorandum was a notice document and pointed out that the defendants never denied that a judgment was entered on February 28, 1997. While the plaintiff did not dispute the fact that the memorandum of judgment contained the wrong judgmentdate, he maintained that the mistake was merely a scrivener's error.
This court rejected the plaintiff's arguments. The court pointed out that the memorandum gave notice to prospective purchasers as well as the debtor. The memorandum setting forth February 27, 1997, as the date of the judgment did not place a prospective purchaser on notice that a judgment had been entered on February 28, 1997. Maniez, 383 Ill.App.3d at 43, 321 Ill.Dec. 940, 890 N.E.2d 662. The plaintiff's scrivener's error argument lacked merit because case law required strict compliance with section 12-101. Maniez, 383 Ill.App.3d at 44, 321 Ill.Dec. 940, 890 N.E.2d 662, citing Northwest Diversified, Inc., 353 Ill.App.3d at 391, 288 Ill.Dec. 818, 818 N.E.2d 753. Even if the wrong date was a scrivener's error, no judgment was entered on February 28, 1997. Without a judgment on that date, the 1997 memorandum referred to a nonexistent judgment; therefore, it did not create a judgment lien against the defendants' real property. Maniez, 383 Ill.App.3d at 44, 321 Ill.Dec. 940, 890 N.E.2d 662.
[937 N.E.2d 243, 344 Ill.Dec. 537]
Having answered the certified question, this court declined the defendants' request to go beyond the certified question and dismiss the complaint on the basis that the 2004 revival of the judgment lien was a nullity. The case was remanded to the circuit court. Maniez, 383 Ill.App.3d at 44-45, 321 Ill.Dec. 940, 890 N.E.2d 662. The plaintiff did not seek leave to appeal to the supreme court.
Upon remand to the circuit court, the defendants moved to dismiss the foreclosure complaint based on this court's determination in Maniez that no lien was created. They alleged that, as no subsequent lien could have been created due to Ms. Koshiyama's discharge of the debt in bankruptcy, the complaint should be dismissed with prejudice. The defendants alleged further that, even if the 2004 memorandum created a valid lien, it impaired Ms. Koshiyama's survivorship rights, rendering the lien void under the automatic stay issued in her bankruptcy case.
In his response to the motion to dismiss, the plaintiff maintained that Ms. Koshiyama was barred by judicial and equitable estoppel from asserting that he did not have a valid lien against her interest in the Harbor Drive Unit. The plaintiff further argued that, even if the 1997 memorandum was invalid, the 2004 memorandum created a valid lien against the Jolly estate's half interest in the Harbor Drive Unit because Ms. Koshiyama's and Mr. Jolly's joint tenancy ownership of the Harbor Drive Unit was severed when Ms. Koshiyama filed her bankruptcy petition.
On January 27, 2009, the circuit court granted the defendants' motion to dismiss. The plaintiff filed a timely notice of appeal.
This court reviews the dismissal of a complaint under section 2-619 de novo. Westmeyer v. Flynn, 382 Ill.App.3d 952, 954-55, 321 Ill.Dec. 406, 889 N.E.2d 671 (2008). Review of an appeal from a section 2-619 dismissal is similar to the review of an appeal from the grant of summary judgment. Westmeyer, 382 Ill.App.3d at 955, 321 Ill.Dec. 406, 889 N.E.2d 671. The court considers whether a genuine issue of material fact exists that would preclude the dismissal, or whether the dismissal is proper as a matter of law. Westmeyer, 382 Ill.App.3d at 955, 321 Ill.Dec. 406, 889 N.E.2d 671.
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