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04/05/89 Security Savings & Loan v. William Hofmann Et Al

April 5, 1989

SECURITY SAVINGS & LOAN ASSOCIATION, PLAINTIFF AND COUNTER-DEFENDANT-APPELLEE

v.

WILLIAM HOFMANN ET AL, DEFENDANTS AND COUNTERPLAINTIFFS-APPELLANTS



APPELLATE COURT OF ILLINOIS, THIRD DISTRICT

537 N.E.2d 18, 181 Ill. App. 3d 419, 130 Ill. Dec. 197 1989.IL.481

Appeal from the Circuit Court of Rock Island County; the Hon. Wilbur S. Johnson, Judge, presiding.

APPELLATE Judges:

JUSTICE HEIPLE delivered the opinion of the court. WOMBACHER, P.J., and SCOTT, J., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE HEIPLE

The plaintiff filed an action seeking to foreclose a mortgage upon certain real estate located in Rock Island County, and the defendants filed a counterclaim, asserting they had a judgment lien on the property which was superior to the plaintiff's interests. Cross-motions for summary judgment were filed, and the court granted the motion filed by the plaintiff. The defendants appeal, and we reverse.

Roger and Sandra Hofmann's marriage was dissolved in October of 1979. The court ordered Roger to pay Sandra $151,290 as alimony in gross and granted Sandra a lien against Rock Island County real estate awarded to Roger to satisfy the alimony award. At that time, Roger was paying for the real estate pursuant to a contract for deed and did not hold title to the property. Sandra filed what she calls a " lis pendens notice of the judgment" in Rock Island County on December 5, 1979, but the judgment itself was not recorded. The trial court judgment was reversed following Roger's appeal to this court. (Hofmann v. Hofmann (1981), 99 Ill. App. 3d 526.) The supreme court reversed this court's decision and remanded the cause to the circuit court for further proceedings. Hofmann v. Hofmann (1983), 94 Ill. 2d 205.

In April of 1983, before the case was decided on remand and before Roger Hofmann obtained title to the Rock Island property, Roger and his new wife obtained a mortgage on the property from the plaintiff herein, Security Savings and Loan Association. According to the record, the plaintiff disbursed the funds on the verbal recommendation of its attorney, who indicated that the plaintiff's mortgage would be a first and paramount lien on the real estate. The mortgage was properly recorded on April 4, 1983.

On June 29, 1983, the circuit court, on remand, entered a judgment against Roger and in favor of Sandra in the amount of $186,195. The court again specifically made the judgment a lien against the Rock Island real estate awarded to Roger. Sandra filed a " lis pendens notice of the judgment" and also filed a certificate of judgment in Rock Island County on July 14, 1983.

On September 7, 1983, the plaintiff's attorney issued to the plaintiff his written preliminary report of title, noting that Roger Hofmann did not have title to the subject real estate, and further noting that there were "judgment liens" against the property, namely the two lis pendens notices and the certificate of judgment Sandra had previously filed. On October 12, 1983, Roger obtained the deed to the property.

On April 12, 1985, Sandra Hofmann, n/k/a Sandra Fausett, executed a written document assigning all of her right, title, and interest in the judgments previously entered against Roger in their dissolution case to William and Donna Hofmann, the defendants herein and the parents of Roger.

Subsequently, Roger and his current wife were in arrears with their mortgage payments, and the plaintiff instituted foreclosure proceedings on February 18, 1986. William and Donna Hofmann were added as defendants in that action by court order on July 2, 1986. On September 11, 1986, the defendants filed an affirmative defense and counterclaim, asserting that they had a lien prior and superior to that of the plaintiff by virtue of the assignment of Sandra's interest in the judgment lien. The parties filed cross-motions for summary judgment. The court granted the plaintiff's motion on the complaint, denied the defendants' motion for summary judgment on the counterclaim, and entered a separate judgment for foreclosure and sale. The defendants appeal from the order granting summary judgment to the plaintiff and continue to maintain that their lien is prior and superior to the plaintiff's lien. We agree and therefore reverse.

The defendants contend that the plaintiff had actual and constructive knowledge of the existing judgment lien on the property and, therefore, the plaintiff cannot claim to possess a prior and superior lien by virtue of its status as a bona fide purchaser without notice. On appeal, the plaintiff argues primarily that the defendants do not have a lien against the property, first, because Sandra Hofmann's alimony award was personal and, therefore, not assignable and, second, because the real estate subject to the lien was not sufficiently described in the dissolution order. Alternatively, the plaintiff contends that if a lien was created, it was not until the certificate of judgment was filed, which occurred after the plaintiff recorded its mortgage.

With regard to the plaintiff's first argument, we find that consideration of the issue of assignability has been waived by the plaintiff's failure to raise it prior to this appeal. Similarly, the plaintiff's argument regarding the sufficiency of the legal ...


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