2022 IL App (2d) 210543
Ill. App. Ct.2022Background:
- In 2000 Victor conveyed 312 E. Main St., Barrington to himself and his daughter Susan as joint tenants (recorded).
- In 2016 Barbara obtained a $388,394.92 judgment against Victor in Florida; Barbara assigned the judgment to Darlene.
- Darlene filed a memorandum of judgment lien against the Barrington property (Mar. 2019) and then sued to foreclose the lien (Apr. 2019).
- Victor died in Nov. 2020; the trial court dismissed him from the suit.
- Parties filed cross-motions for summary judgment on whether Victor’s interest (and the judgment lien) survived his death; the trial court held survivorship vested title in Susan and the lien was extinguished, and entered judgment for Susan.
- Appellate court affirmed: Victor’s joint-tenancy interest terminated at death, so neither 735 ILCS 5/12-157 nor 735 ILCS 5/15-1501(h)(1) entitled Darlene to foreclose on the Barrington property.
Issues:
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether a judgment lien against one joint tenant survives the debtor’s death so creditor can foreclose on the property | Westberg: Deceased Debtor statute (735 ILCS 5/12-157) and Foreclosure Law §15-1501(h)(1) permit enforcing judgment against deceased’s real estate and pursuing the deceased’s former ownership share | Barcroft: Joint tenancy’s right of survivorship vests entire title in surviving joint tenant at death; debtor had no interest at death, so no lien to foreclose | Court: Joint tenancy vested title in Susan at Victor’s death; Victor’s interest (and lien) extinguished; foreclosure cannot proceed against property |
| Applicability of 735 ILCS 5/12-157 (Deceased Debtor statute) | Westberg: Statute allows enforcement of money judgments against deceased debtor’s real estate after death | Barcroft: Statute applies to property passing through probate (heirs/estate); here property passed by survivorship and never became part of estate | Court: §12-157 inapplicable because Victor’s interest terminated at death and property did not pass through his estate |
| Applicability of 735 ILCS 5/15-1501(h)(1) (Special representatives) | Westberg: §15-1501(h)(1) permits foreclosure against the surviving joint tenant who now holds 100% interest | Barcroft: That provision is procedural—it governs appointment of special representatives, not substantive rights; it cannot resurrect an extinguished interest | Court: §15-1501(h)(1) is procedural; it does not create a substantive basis to foreclose an extinguished interest |
Key Cases Cited
- Harms v. Sprague, 105 Ill.2d 215 (1984) (mortgage or lien on a joint tenant’s interest does not survive the joint tenant’s death; survivorship vests whole estate in surviving joint tenant)
- Van Antwerp v. Horan, 390 Ill. 449 (1945) (judgment lien or levy on a joint tenant’s interest does not sever the joint tenancy and is extinguished if debtor dies before sale)
- People’s Trust & Savings Bank v. Haas, 328 Ill. 468 (1927) (judgment lien against a joint tenant’s interest is lost on the debtor’s death and surviving joint tenant takes free of the lien)
- Jackson v. Lacey, 408 Ill. 530 (1951) (sale procedures do not effect a conveyance that severs joint tenancy until redemption expires; lien does not survive death)
- Merchants Nat’l Bank of Aurora v. Olson, 27 Ill. App. 3d 432 (1975) (if judgment creditor waits and debtor dies before sale, lien is lost because no interest remains to attach)
- In re Estate of Martinek, 140 Ill. App. 3d 621 (1986) (joint tenancy passes outside probate; surviving joint tenant succeeds by virtue of the conveyance creating the joint tenancy, not as successor in probate)