2014 IL App (2d) 130938
Ill. App. Ct.2014Background
- GMAC Mortgage, LLC foreclosed on Nicholas Arrigo’s property; Lina Arrigo, Nicholas’s spouse, was not on title but lived there as her residence.
- Lina claimed a separate homestead exemption under 12-901 based on her residence status and alleged lack of a signed waiver.
- Trial court denied GMAC’s 2-619 motion and certified a Rule 308 question to determine if a non-titleholding spouse may claim the exemption.
- The certified question asked whether a non-titled spouse who is married to the titleholder and uses the property as her primary residence can claim the 12-901 homestead exemption.
- This Court answered the question in the negative, holding that Lina cannot claim the exemption.
- The decision relied on statutory construction, Illinois case law, and persuasive federal authorities to reject Lina’s claimed interest absent a formalized property interest.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether a non-titleholding spouse may claim 12-901 homestead exemption. | GMAC: Lina cannot claim exemption without ownership or formalized interest. | Lina: Residence and family rights warrant exemption despite no title. | Negative; non-titleholding spouse cannot claim exemption. |
| What is the controlling interpretation of 12-901 when two or more own property? | GMAC: Final sentence of 12-901 requires formal ownership. | Defendants: Shared possession suffices under broader text. | ambiguous; final sentence cap on combined exemptions, not a requirement of ownership. |
| Is Brod still controlling despite distinctions? | GMAC: Brod factually distinguishable and obsolete. | Defendants: Brod supports spouse entitlement under some circumstances. | Negative; Brod distinguishable; does not control in this context. |
Key Cases Cited
- In re Belcher, 551 F.3d 688 (7th Cir. 2008) (spouse may not claim homestead exemption without formalized interest)
- Brod v. Brod, 390 Ill. 312 (1945) (spouse cannot be deprived of homestead except via statutory methods; pre-1982 context)
- DeMartini v. DeMartini, 385 Ill. 128 (1943) (homestead cannot exist apart from the title upon which it depends)
- Bailey v. Hamilton, 337 Ill. 617 (1929) (homestead rights tied to existing title; occupancy alone insufficient)
- Willard v. Northwest National Bank of Chicago, 137 Ill. App. 3d 255 (1985) (will discuss homestead rights where one spouse’s title is involved)
- Schultz v. Schultz, 71 Ill. App. 2d 94 (1966) (something more than mere possession required for homestead)