*1 1072 case, 466 N.E.2d In where, 206-07. court held that here, plaintiff seeks redress from the State wrong for a which occurred,

has he will already only permitted proceed Claims, Court of even if he will lose the thereby option obtaining injunctive relief. regard While the Trustee may this limitation as un “ fair, we can refer our supreme court’s observation that ‘[i]f inherent inequities doctrine of sovereign immunity are to be ” remedied, for it is the legislature and not this court to act.’ Patzner v. Baise 540, 548, 133 (1990), 714, 718, Ill. N.E.2d 552 quoting & v. S.J. Groves Sons Co. State Ill. 2d 131,136. N.E.2d reasons,

For foregoing circuit court of St. Clair County reversed.

Reversed. RARICK, JJ.,

CHAPMAN and concur. ASSOCIATION, Plaintiff-Appellee, PRAIRIE PRODUCTION CREDIT al., Defendants-Appellants. HENRI J. BIANUCCI et Fourth District No. 4 — 92—0201 Opinion September opinion filed filed on Supplemental 1992. 14,1992. rehearing denial of October *2 Moss, Phillip Lamkin, Lamkin, P.C., Ray Ray R. of Lamkin & Associates, Clinton, Moss & appellants. both of for Richardson, Richardson, counsel), Tietz & (Jeffrey of Decatur D. for appellee.

PRESIDING JUSTICE GREEN delivered the opinion court:

Section 12—101 of the Code of Civil Procedure (Code) states is not a lien on real estate for than longer 7 years “[a] from the time it is revived” (emphasis added) (Ill. Rev. entered 110, Stat. ch. par. 101). law, At common the method for re 12 — viving judgments through a proceeding in scire Smith (see facias v. Carlson 8 Ill. 2d 132 N.E.2d 513). Section 2-1601 the Code abolished that procedure and states that relief ob formerly tained in such a proceeding granted may through “a petition filed case which the original judgment was entered.” Ill. Rev. Stat. ch. par. 2 — 1601.

This case involves a a motion to a judgment brought aby creditor judgment debtors who had discharged after the lien of the at- judgment had tached to defendants’ residential property. That was later abandoned trustee. The principal are questions (1) whether a motion to revive a judgment ever lies after the judgment have, debtors subsequent the judgment, in bank- *3 if the ruptcy; (2) motion is permissible, what issues are to be consid- ered; whether, and (3) event, in any lien involved here was defeated or rendered void laws bankruptcy State laws. property (1) We hold: such a motion does lie where the lien of the judgment is preserved; (2) the issues presented on the motion are somewhat limited but included consideration of the enforceability i.e., involved, the judgment whether execution can be obtained thereon; (3) here, alleged the facts State laws did not de- feat or void the judgment lien. We defer to a in the Fed- eral courts to first determine the operation law plaintiff’s judgment lien. 10, 1984,

On plaintiff December Prairie Production Credit Associ- ation (PCA) obtained a judgment by confession on a note defendants Henri J. and Barbara J. Bianucci in the circuit court of $67,864.14 De Witt County. judgment was in the sum of plus $1,400 costs which included a thereafter, fee. Ten attorney days 20, 1984, December defendants a voluntary filed bankruptcy petition Illinois, in the United States District Court for the Central District of 28, 1985, and on October were from the they bankruptcy. 19, 1991, On September proceeding pursuant to section 2—1601 of Code, plaintiff filed a motion in the case in which the judgment 10, 1984, seeking was entered judgment. revive December response plaintiff’s Defendants filed motion contended judgment. They (1) stated amount inaccurate; owed; (2) payments (3) various further reduced the amount an unsecured claim filed in the al- bankruptcy by plaintiff had been lowed; (4) all of defendants’ real estate had been liquidated for the bankruptcy except (5) residential at the time of the property; no bankruptcy, equity existed the residential over and (a) above the amount due on a mortgage prior plaintiff’s which was judgment, (b) taxes, the lien for (c) defendants’ homestead exemp- tion. The response also stated that the residential premises had been sold.

The response was supported by the affidavit of the trustee who stated he bankruptcy, had abandoned residential property, and at the time of the no “ex- bankruptcy, property had value ceeding enforceable encumbrances the homestead exemp- tion.” In regard statement, to the latter the affidavit differed from the response in that the response stated the residential property had no value after considering prior various liens plaintiff’s while the affidavit said that the lack of equity existed after all considering encumbrances,” “enforceable which could have included plaintiff’s lien. A hearing was held at which no evidence was introduced. The cir- cuit court it concluded could not properly consider the potential en- forceability the judgment sought to be revived in determining whether to allow revival. On February the circuit court en- tered an order which found the judgment was “still in force and ef- fect, not reversed or set aside and paid by [had] [been] [had] defendants.” The court then ordered the revived and or- dered execution to issue.

Defendants have appealed, indicated, contending, we have (1) their was, itself, sufficient to prohibit the circuit court from reviving the if the judgment; (2) even could be in rem on an revived basis order to enforce the lien of the judgment, the court erred in refusing to consider the enforceability lien; the judgment and (3) the laws of bankruptcy and Illinois property *4 law rendered the lien judgment unenforceable.

Plaintiff agrees that discharge defendants’ in dis- bankruptcy charged them any personal from liability on the con- judgment but tends that the existence of a judgment against resi- dential real estate permitted the court to revive the judgment as far as the lien was concerned. Plaintiff the correctly maintains refused to consider the of enforceability judgment lien and con-

1076 event, in tends any question of the of validity the lien under law bankruptcy considered, should not be because defendants have at- tempted open to up bankruptcy proceedings get bankruptcy consider the validity Although the lien. the bankruptcy court has reopen refused to the proceeding, plaintiff maintains that that since order is still subject the Federal appeals process, neither the trial court nor this court should consider that matter.

In support of their that the position bankruptcy pre any vents revival the pre-bankruptcy judgment, defendants rely 20, upon Trustees Schools No. v. Township Range No. 5 Cham (1948), 83, 525, berlain 334 Ill. App. 78 N.E.2d v. Co Martinez gan (1943), 468, 320 Ill. 51 App. gives N.E.2d 595. Neither case strong Rather, support to defendants’ theory. proper we conclude the rule is that set forth in Farmers State Bank 196 (1990), Hansen Ill. 751, 3d App. 553 N.E.2d Rochelle State Bank v. Gavic (1979), Ill. App. 388 N.E.2d Finance Co. v. Erickson Avco Ill. App. 2d N.E.2d Ill. Chamberlain, In brought against a suit was to revive a judgment joint judgment debtors, one of whom had been bank- discharged The circuit ruptcy. only against court revived the non- judgment bankrupt latter contending defendant. The the court appealed in not entering erred also a judgment against bankrupt. affirmed, appellate The law one holding: (1) bankruptcy joint debtor was liable for the whole when the other bank- goes debt rupt; (2) judgment whether the of revival was in error because against was not revived as to with a judgment bankrupt stay enforcement as to the did need to as the bankrupt be decided bankrupt was not The indicate complaining. Chamberlain court did against that little a good reviving judgment would have resulted from defendants a en- accompanied by perpetual injunction prohibiting both against forcement discharged bankruptcy. the debtor Martinez, In circuit court a motion for revival struck had judgment against two debtors who judgment The subsequent entry judgment. appellate affirmed, contention that liens noting creditors’ discharged by arising might from the not have not be appeal for the first time on and would raised considered. Hansen, regard order of revival in

In the circuit court entered an discharged in subsequently debtor was an in rem order reviv- of revival stated it bankruptcy. order estate only against real to be enforceable ing *5 bankruptcy. at the time of their owned the debtors by had aban- bankrupts that all real estate of the been record showed affirmed, noting that a dis- the trustee. The court by appellate doned release liens against prop- in does not charge bankruptcy necessarily (citing Gavie), and the of the bankrupt owned the revival erty the and not merely previous judgment was a continuation of a judgment. new Gavie, 20, following May

In the chain of events occurred. On 1974, a confession on a note was obtained judgment by promissory plaintiff against judg- that that defendant and memorandum of that ment was filed with the recorder of deeds in the where that county 24, 1, 1974, defendant’s real located on 1974. May July estate was On that plaintiff voluntary petition filed a in in a Federal dis- bankruptcy listing trict court the debt of the note as an unsecured The peti- debt. tion in did not list the a lien. bankruptcy confessed On 25, 1974, that defendant in September discharged was bankruptcy, and his residential real estate was determined to and set exempt apart to him. Gavie April

On defendant filed a motion in the cir- cuit court to set aside the on the that by confession basis the underlying debt had been in The circuit discharged bankruptcy. opened judgment by confession and held the debt underlying had discharged That court then entered an or- bankruptcy. der the lien releasing judgment. Gavie,

On appeal reversed and remanded appellate with directions to restore the lien of the confession. The judgment by general held that the rule that a discharge bankruptcy per- is sonal to the and does not of the bankrupt release Co., Avco Finance bankrupt controlled. 1A Collier on Bankruptcy (14th 2d Bankruptcy 1978), ed. and 9 Am. (1963), Jur. §17.29 §753 Co., Avco Finance were cited in In support decision. suit for conversion was held to lie plain- to recover a chattel which the tiff note, had a lien to secure a though even the owner-debtor on the note had No trustee or bankruptcy. other court official had ever taken of the chattel. possession

Here, the existence of did prevent entering revival, circuit court from an order of but even if revival was otherwise the court in error in not permitted, was in rem limiting the to operating language revival Under the only. 1991, 11, order of on February appeal, strong argument could liability. be made that the revived created personal

The circuit court’s determination it could not consider enforceability judgment lien at the hearing on the motion revive based decision in Bank Eau Claire v. Reed 232 Ill. N.E. where stated judgment under a scire to revive a judgment is not “[t]he facias quod recuperet [(one granting right due, to recover)] for the amount object but its it judgment just as existed and formerly it reinvest with same attributes and conditions which origi nally belonged (Emphasis added.) to it.” The major thrust of the deci *6 sion was set forth in the following language:

“The to in only question be determined a proceeding by scire to a judgment revive is whether the has a plaintiff right, facias against defendant, as to judgment have the executed. That in Stevens, rule was stated Smith 183[, v. 133 Ill. 24 N.E. 511], and in connection with the rule the quoted court from Dowling 91 McGregor, Pa. St. as follows: ‘The only defense in the trial of the scire on a is of a denial the ex- facias istence of the proof or of a subsequent satisfaction or available, discharge thereof.’ The defenses go and which to the plaintiff’s right, against defendant, as have the executed, are, record, that there is no such or the judg- paid released, ment has been or there has an accord Claire, (Emphasis added.) satisfaction.” (Bank Eau of Ill. at 83 N.E. at 821.) Bank Eau Claire defendant to raise the issue attempted record, to the he process was never served with before contrary judg- entered, ment agreed but the the circuit supreme him to properly permit refused attack the under- collaterally lying judgment. Court, Unlimited,

More recently, J.D. Inc. v. Investors Inc. agreed 81 Ill. N.E .2d this App. with general that the of a concept scope proceeding judg to revive However, ment the Bank Eau was narrow. Claire indi cated, the this nature underlying question proceeding involved against is whether the has a defendant to have execu plaintiff right Here, most, tion on at that execu judgment sought to be revived. against tion obtained the real estate abandoned could dispute discharge the trustee. Plaintiff does not that defendants’ full of the here prevented would have is even if that shown introduction information outside discharge so, requires If that in a logic record. that is of one or judgment arising the in effect of a from existence rem liens, discharge more of those liens must con- question sidered even if information outside the record is to do required so. The trial court should have considered assertion that the lien of the on underlying judgment the abandoned residential had been discharged. here, Under the format of the pleadings defendants’ showing of a valid bankruptcy, burden of proof was on plaintiff show existence of a valid lien to support the in sought. rem revival

The defendants maintained no such valid existed. The basis of their theory law, is that under both law and State no lien existed in the because, residential property at the time of the bank- decree, ruptcy plaintiff’s judgment lien was inferior to a mortgage the premises, a lien against premises taxes, those for real estate defendants’ combined exemptions $15,000, homestead and the value of the property was less than the amount of those prior items. They contend that plaintiff’s under these destroyed circumstances. Defendants’ response plaintiff’s motion indicated this situation existed while the affidavit in support motion only set forth that when plaintiff’s included, encumbrance was the value of encumbrances the residential or ex- property equaled ceeded the value of the property.

One aspect defendants’ foregoing contentions arises from the following provisions of section 506 of title 11 of the United States *7 (11 Code U.S.C. (1988)) (hereinafter Section Bankruptcy Code). §506 506(a) of the Bankruptcy Code states:

“An allowed claim of a creditor secured a lien on by interest, which the estate has an or that is to subject setoff title, under section 553 of this is a secured claim to the extent of the value of such creditor’s interest in the estate’s interest in such or property, to the extent of the amount subject to set- off, be, as the case may and is an claim unsecured to the extent that the value of such creditor’s interest or the amount so sub- ject to setoff is less than the amount such allowed claim. Such value shall be of the light purpose determined of the valuation and or use of proposed disposition prop- such erty, and in conjunction with on such or any hearing disposition use or on a plan affecting such (11 creditor’s interest.” U.S.C. §506(a)(1988).)

Section 506(d)of the Bankruptcy Code states:

“To the extent that a lien secures a claim the debtor that is not an claim, void, allowed secured such lien is unless—

(1) such claim was only disallowed under section 502(bX5) title; 502(e) this or (2) such claim is not an allowed secured claim due to the failure of any entity to file a proof of such claim under section 501 of this title.” §506(d)(1988). U.S.C.

Defendants maintain that under section 506(a) of Bankruptcy Code, plaintiff’s is a secured claim only to the extent of the value of the bankrupt estate’s interest in the residential property— therefore, which is zero—and lien plaintiff’s is not a secured claim and is thus void section of the 506(d) Bankruptcy Code.

An interpretation of those provisions given statutory was United Court Supreme States recently Dewsnup v. Timm (1992), 502 U.S. 116 L. Ed. 2d 112 S. Ct. 773. situation The there was to very similar the situation of the lien by plaintiff, claimed ex there, cept that plaintiff’s bargained-for lien was mortgage and lien, not a judicial and issue before a bankruptcy arose rather in a to than revive a lower judgment. The tribunals had determined that because the liened were properties there aban trustee, doned and estate had no interest in the mortgaged provisions of sections property, 506(a) (d) of the Code applicable. were not Bankruptcy Dewsnwp Court did not discuss effect of abandonment.

Rather, Court language concluded that the of section 506 of the Code Bankruptcy sufficiently ambiguous that the Court could not Congress determine from enacting intended the rule depart that liens full force little pass through bankruptcy precedent existed for the secured value reducing indebtedness As the Court property. Dewsnwp emphasized being pro- that the tected a mortgage concerning parties negoti- there was which the had ated, uncertainty judicial exists to whether as that here such would be treated under section 506 of the Code in the Bankruptcy mortgage. same manner as that stated,

As motion to the presented has defendants have seeking reopen plaintiff’s proceedings (d) lien declared sections pursuant 506(a) void Code aside for The bankruptcy and set other reasons. Bankruptcy *8 relief, court the The of appeal question denied and has been taken. the of of is technical and operation Bankruptcy section 506 the Code on this issue is appropriate We deem the take complicated. position to defer to the Federal courts. remand, on the circuit

Accordingly, we will direct the until a ruling refrain from on the motion to revive court issue seek to has made on the defendants final determination courts If the courts the bank uphold the Federal decide. Federal have case, circuit will then court’s refusal to the the ruptcy reopen 506(d) Notably, Bankruptcy decide that issue. section being of “void” the lien speaks Code in terms the lien involved where a claim is not allowed Since a instru secures which an claim. “void” at the time, created can be attacked circuit any ment if eventually court would not exceed its it should declare jurisdiction void, of eliminating any the thus basis for revival the judgment. then that Illinois We move defendants’ assertion law plaintiff’s allegations lien has been under the of defendants’ destroyed rely upon reasoning of the Second response. They Appel- District late Court in Ill. App. Cochran Cutler N.E.2d 59. opinion The in that case a rule when recognized that party subject holds a lien property exemption, a homestead and is sold property having exemption, owner the homestead that lien is if the destroyed day value on the of sale not sufficient to cover the sum of the of all liens prior value and the homestead The exemption. purpose protect stated rule is to homesteader’s interest property. setting forgo- After forth rules, ing the Cochran court then determined that ex- equity some isted beyond the homesteader’s rule exemption held the stated above was not appropriate to that case. spoke Cochran a rule somewhat to that in similar However,

section 506(d) of Code. does Bankruptcy that rule not operate unless a homestead interest is involved and until home- is, effect, Moreover, stead interest being sold. the value to the lien property subject which is sold is determined at the being time sale Although before. defendants in their re- allege sponse sold, the residential premises they have been make no allegation bring other which would the rule set forth in into Cochran play.

Accordingly, we reverse the order of the cause remand to the circuit court of De County. Witt That shall forbear until concerning Federal courts request for relief is determined. The shall finally circuit court then determine the validity of lien. If plaintiff’s judgment the Federal courts have re- solved the question plaintiff’s whether lien remained in force, the ruling circuit shall follow that on the determination validity of plaintiff’s lien. If the Federal courts do not resolve that

question in that proceeding, the circuit court must then make that de- cision. order Any of revival found to appropriate can rem effect and must so state.

Reversed, and cause remanded with directions.

STEIGMANN and McCULLOUGH, JJ., concur.

SUPPLEMENTAL OPINION ON DENIAL OF REHEARING PRESIDING JUSTICE GREEN delivered the opinion of the court:

At the request plaintiff in its petition for rehearing denial of that petition, we modify that opinion by making the fol- lowing finding. Pursuant to our power under section 12—104 of the Code (Ill. Rev. Stat. ch. par. 104), we find that per- 12— iod of time between the circuit court’s February order of re- vival final decision of the circuit court acting pursuant to the mandate issued from this decision is and will be a time of restraint within the meaning section 12—104 of the Code.

STEIGMANN McCULLOUGH, JJ., concur. ILLINOIS,

THE THE PEOPLE OF STATE OF Plaintiff-Appellee, v. JONES, LAVERT Defendant-Appellant. (3rd Division)

First District No. 1 — 87—2346 Opinion 16, 1992. September filed