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GMAC Mortgage, LLC v. Arrigo

Court of Appeals of Illinois, Second District

April 4, 2014

GMAC MORTGAGE, LLC, Plaintiff and Counterdefendant-Appellant,

Page 622

Appeal from the Circuit Court of Du Page County. No. 11-CF-5214. Honorable Robert G. Gibson, Judge, Presiding.


Pursuant to a question certified by the trial court under Supreme Court Rule 308 in a foreclosure action, the appellate court answered that a spouse who is not named as a titleholder of a house, but is married to the titleholder and maintains the property as her primary place of residence, cannot claim a homestead exemption in the property under section 12-901 of the Code of Civil Procedure.

Darnella J. Ward, of Fidelity National Law Group, of Chicago, for appellant.

David R. Sweis, of Sweis Law Firm, P.C., of Oak Brook, for appellees.

JUSTICE JORGENSEN delivered the judgment of the court, with opinion. Justices Hudson and Birkett concurred in the judgment and opinion.



Page 623

[¶1] This interlocutory appeal under Illinois Supreme Court Rule 308 (eff. Feb. 26, 2010) arises from a foreclosure proceeding that plaintiff, GMAC Mortgage, LLC, initiated against defendants, Nicholas A. Arrigo, Lina Arrigo, Wells Fargo Bank, N.A., Lee Station Master Association, NFP, Lee Station Townhome Association, NFP, and unknown owners and nonrecord claimants. Defendants counterclaimed and raised an affirmative defense, seeking partition based on Lina's claim to a homestead exemption. GMAC moved to dismiss pursuant to section 2-619 of the Code of Civil Procedure (Code) (735 ILCS 5/2-619 (West 2012)). The trial court denied the motion, but certified the following question pursuant to Rule 308: " Whether a spouse may claim her homestead exemption when that spouse is not on title to the property but is the spouse of the title holder and maintains the property as her primary place of residence under [section 12-901 of the Code (735 ILCS 5/12-901 (West 2012))]." We granted GMAC's application for leave to appeal. For the following reasons, we answer the certified question in the negative.


[¶3] In 2003, Nicholas purchased the subject property at 0S076 Lee Court in Winfield (tax parcel No. 04-13-201-077) with a $244,900 purchase-money mortgage from First Home Mortgage, and he refinanced on two occasions: first, in 2004, and, second, in 2009 (with Guaranteed Rate, Inc., which later assigned the note to GMAC).

[¶4] On November 2, 2011, GMAC filed a mortgage foreclosure complaint against defendants, seeking a judgment of foreclosure and sale because Nicholas, the owner of the property, defaulted on his obligations. In an amended complaint, it alleged that Nicholas, who was described as " A MARRIED MAN" in the mortgage, waived his homestead exemption. The balance due on the note and mortgage was $220,000. GMAC joined Lina, Nicholas's wife, as a defendant because she " may have some interest in the subject real estate." [1]

[¶5] Defendants filed their answer, raising three affirmative defenses, including, as relevant here, unclean hands; specifically, Lina argued that her signature on a purported waiver of homestead rights was forged and that she was not present at the time of closing. Defendants asserted that the closing occurred at Nicholas's residence; Lina was not present and did not execute any documents associated with the refinance; Lina never received or signed a waiver of homestead rights; and James M. Rubel, the purported notary of the waiver, was not present at the closing and Lina had never come into contact with him. Defendants requested that the court dismiss the cause with prejudice.

[¶6] On November 6, 2012, defendants filed their counterclaim for partition, raising allegations similar to those contained in their unclean-hands affirmative defense. They further alleged that, at the time of the refinance, the subject property was Lina's primary residence and she had homestead rights and was entitled to a $15,000 estate of homestead.

[¶7] GMAC moved, in a combined motion, to strike and dismiss defendants' affirmative

Page 624

defenses and counterclaim (735 ILCS 5/2-615, 2-619 (West 2012)). As relevant here, the trial court granted the motion without prejudice as to the second affirmative defense (unclean hands) and counterclaim.

[¶8] Lina filed an amended counterclaim for partition on April 3, 2013, alleging that she was entitled to her own homestead exemption because the subject property had been her primary residence since the time of the refinance and realleging that she did not sign the waiver of homestead rights and was not present at closing.

[¶9] GMAC moved to dismiss the amended counterclaim pursuant to section 2-619 of the Code, arguing that, as a matter of law, a spouse may not claim the statutory homestead exemption under section 12-901 of the Code when that spouse has no formalized interest in or formalized possession of the home. It noted that Lina was not on the title to the subject property, and it ...

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