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Janice Barth and Daniel J. Adler v. James D. and Donald Kantowski

April 5, 2011

JANICE BARTH AND DANIEL J. ADLER, PLAINTIFFS-APPELLANTS,
v.
JAMES D. AND DONALD KANTOWSKI,
DEFENDANTS-APPELLEES.



Appeal from the Circuit Court of the 12th Judicial Circuit, Will County, Illinois,No. 09--CH--941 Honorable Richard J. Siegel, Judge, Presiding.

The opinion of the court was delivered by: Justice Schmidt

JUSTICE SCHMIDT delivered the judgment of the court, with opinion.

Justices McDade and O'Brien concurred in the judgment and opinion.

OPINION

The plaintiffs, Janice Barth and Daniel J. Adler, obtained a judgment against Gregory Pytlewski on February 27, 2002. The plaintiffs recorded the judgment and obtained a lien against Pytlewski's real property at 431 East Tenth Street, Lockport, Illinois (the subject property), that day. Pytlewski subsequently sold the property to James D. and Donald Kantowski, the defendants, in July 2008. Thereafter, on February 17, 2009, the plaintiffs filed a "[p]etition for satisfaction of money judgment by judicial sale of real property." The Kantowskis filed a motion to dismiss the plaintiffs' petition. The trial court granted the Kantowskis' motion. The plaintiffs appealed.

On appeal, the plaintiffs contend that the trial court had the power to foreclose on the lien against the subject property because they obtained an equitable lien by filing the instant case and serving the Kantowskis prior to the expiration of the original seven-year lien period. In the alternative, the plaintiffs contend that their later revival of the underlying judgment related back to the filing of the instant lawsuit. We affirm.

FACTS

The record shows that on August 26, 1994, Pytlewski filed a warranty deed in the office of the Will County recorder indicating that he was the owner of the subject property. Thereafter, on February 27, 2002, the trial court entered a judgment against Pytlewski for $800 in attorney fees owed to Adler and $16,403 in past-due child support owed to Barth. On that same day, each plaintiff recorded a memorandum of judgment against Pytlewski and cited Pytlewski's address as the subject property.

On July 11, 2008, the Kantowskis purchased the subject property from Pytlewski. Thereafter, on February 17, 2009, the plaintiffs filed a "[p]etition for satisfaction of money judgment by judicial sale of real property," alleging that as a result of the February 27, 2002, judgment, they had obtained a lien against the subject property that had yet to be satisfied. Thus, the plaintiffs contended that the court should order a judicial sale of the subject property and distribute the proceeds accordingly in order to satisfy their lien. The plaintiffs served the Kantowskis with their petition on February 26, 2009, one day prior to the expiration of the lien period. The record does not indicate that the plaintiffs took any action regarding the February 27, 2002, judgment prior to February 27, 2009.

On April 13, 2009, the Kantowskis filed a motion to dismiss the plaintiffs' complaint, which the court construed as a motion pursuant to section 2--619 (735 ILCS 5/2--619 (West 2008)) of the Code of Civil Procedure (the Code). In it, the Kantowskis alleged that under section 12--101 (735 ILCS 5/12--101 (West 2008)) of the Code, in order for the lien to exist on the subject property, the plaintiffs needed to obtain an order of revival and file a memorandum of the order of revival within seven years of the entry of the original February 27, 2002, judgment. The Kantowskis contended that since the plaintiffs failed to do so, their lien against the subject property expired on February 27, 2009, and thus, the subject property was free of the lien as of that date.

The court conducted a hearing on the motion to dismiss on June 16, 2009. The plaintiffs argued that since they filed the instant cause of action within seven years of the date of the original judgment, they did not need to revive the judgment and file a memorandum of the order of revival to preserve the lien on the subject property. At the hearing, the court inquired whether the plaintiffs had supporting law that "establishe[d] that [the] filing [of the instant lawsuit] toll[ed] the requirement, either toll[ed] the seven years or toll[ed] the requirement, ma[de] it superfluous to file the motion to extend the lien." Adler responded that he "d[id]n't believe [the court was] going to find a case like that."

The Kantowskis contended that the lien against the subject property expired after February 27, 2009, because the plaintiffs failed to properly revive it under section 12--101 of the Code. Thus, while the plaintiffs could revive the original judgments against Pytlewski, those judgments could no longer be a lien against the subject property because Pytlewski, the judgment debtor, no longer owned it.

The Kantowskis further argued that section 12--101 did not provide that a judgment creditor had the option of preserving his lien on a property by either obtaining an order of revival and recording a new memorandum of revival within the seven-year period, or by filing a lawsuit to close on the property within the seven-year period. Instead, section 12--101 required the judgment creditor to file the memorandum of revival within seven years of the entry of the original judgment, and courts have "strictly construe[d] [section 12--101] to a point of almost absurdity."

The Kantowskis also stated that they did not have actual notice of the lien against the subject property when they purchased it. Adler stated that he "talk[ed with] the attorney who issued the title. They missed it." Adler nonetheless ...


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