Barth v. KANTOWSKI
409 Ill. App. 3d 420
Ill. App. Ct.2011Background
- Judgment against Pytlewski for $800 in fees and $16,403 in past-due child support entered Feb 27, 2002, with memorandum of judgment recorded against the subject property that day.
- Lien attached to the subject property when the memorandum of judgment was filed (Feb 27, 2002).
- Kantowskis purchased the subject property from Pytlewski on July 11, 2008.
- Plaintiffs filed a petition for satisfaction of money judgment by judicial sale of real property on Feb 17, 2009, asserting the lien could be satisfied via judicial sale.
- Lien expiration occurred on Feb 27, 2009 unless revived and a memorandum of revival filed before that date; Kantowskis moved to dismiss April 13, 2009 under 2-619 and 12-101.
- Plaintiffs revived the judgment in May 2009 and recorded in June 2009, but the court entered judgment dismissing the petition, leading to the appeal.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether plaintiffs obtained an equitable lien by filing the action before lapse of the original lien period. | Barth/Adler argue the filing tolled or created an equitable lien. | Kantowskis contend only revival under 12-101 preserves lien; filing later cannot create an equitable lien. | No equitable lien; lien lapsed under 12-101. |
| Whether failure to revive under 12-101 voided the lien against the Kantowskis’ property. | Lien should survive as long as action filed within seven years of original judgment. | Strict compliance required; no revival memorandum filed before expiration. | Lien expired; revival after expiration cannot preserve lien. |
| Whether the later revival relates back to the instant suit to preserve the lien. | revival should relate back to filing of the complaint to preserve the lien. | Relief by relate-back not supported; revival must occur within seven years with proper memorandum. | Revival cannot relate back to preserve the lien. |
Key Cases Cited
- Wolff v. Groshong, 101 Ill.App.3d 606 (1981) (revived judgment is not a lien unless a transcript, copy, or memorandum is filed)
- Northwest Diversified, Inc. v. Desai, 353 Ill.App.3d 378 (2004) (strict compliance with 12-101 to preserve a lien)
- Davidson v. Burke, 143 Ill.139 (1892) (lis pendens equitable levy when fraudulently conveyed property)
- Thomas v. Richards, 13 Ill.2d 311 (1958) (creditor's bill under Chancery Act; last remnants repealed; time rules for liens)