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In re Estate of Carlen

Court of Appeals of Illinois, Fifth District

March 11, 2015

David V. Carlen, Respondent-Appellant) (First State Bank of Beecher City, Petitioner-Appellee,

Page 1011

Appeal from the Circuit Court of Effingham County. No. 94-P-61. Honorable James J. Eder, Judge, presiding.

For Appellant: Michael J. Meyer, Effingham, IL.

For Appellee: William W. Austin, Christopher P. Clasby, Siemer, Austin & Fuhr, Effingham, IL.

PRESIDING JUSTICE CATES delivered the judgment of the court, with opinion. Justice Chapman concurred in the judgment and opinion. Justice Welch dissented, with opinion.



Page 1012

[¶1] This is an appeal from orders of the circuit court of Effingham County which reopened the estate of Walter L. Carlen, deceased, for the purpose of reviving a judgment which had been previously obtained against the estate, but which was about to lapse due to the passage of time.

[¶2] On June 7, 1994, the decedent, Walter L. Carlen, died. His will was admitted to probate on July 5, 1994, in the circuit court of Effingham County, and David V. Carlen and Lisa M. Carlen were appointed as independent coexecutors of the estate. For reasons not relevant to this decision, Lisa M. Carlen withdrew as a coexecutor, leaving David V. Carlen (Executor) as the sole executor of the estate. The verified petition for independent administration set the approximate value of the estate at $40,000.

[¶3] At the time of the decedent's death, the First State Bank of Beecher City (Bank) was in possession of several promissory notes executed bye the decedent. The Bank also had a security interest in the decedent's farm machinery and equipment, made in conjunction with a loan to Carlen Fertilizer, Inc., the business operated by the decedent prior to his death. On January 3, 1995, the Bank filed a claim against the estate, seeking to hold the estate accountable for all of the decedent's debts. In January of 1998, the court found in favor of the Bank's claim and entered judgment against the estate in the amount of $139,470.13, plus costs.

[¶4] Once the Bank determined that the assets of the Carlen estate were inadequate to satisfy its judgment, the Bank began an aggressive campaign against the Carlen estate hoping to find additional assets or attach property that had been transferred predeath into the Walter L. Carlen Revocable Trust, dated November 1991. The Bank believed that the trust property should also be used to satisfy the Bank's judgment. The Executor objected to the use of the trust res to satisfy the majority of the Bank's debt and claimed that the property in trust was not a part of the Carlen estate. The parties engaged in contentious litigation which lasted for more than six years.[1] Ultimately, the court found that certain parcels contained within the Walter L. Carlen trust were available to satisfy the indebtedness to the Bank. On March 15, 2000, the court entered an order for a judicial lien in favor of the Bank, consisting of the previous " judgment entered in the amount of $139,470.13 *** plus interest on the Judgment [in] the sum of $25,551.69 *** from January 9, 1998, to February 23, 2000, at the rate of 9% per annum." The court further ordered " [t]hat any and all property subject to the Walter L. Carlen Revocable Trust, above and beyond the sum of $165,021.82, [was] not subject to this lien."

[¶5] On August 14, 2006, toward the end of the legal mê lé e between the parties, and

Page 1013

some eight years after the Bank's judgment was entered against the estate, the Bank filed its first " Petition to Revive Judgment." At the time this petition was filed, the Carlen estate was still open. As a result of an objection by the Executor, the Bank filed an " Amended Petition to Revive Judgment" on September 20, 2006. In its amended petition, the only request made by the Bank was for the accrued interest from the date of judgment to August 14, 2006. On January 18, 2007, the court entered an order approving the Bank's amended petition for revival of the judgment, giving the estate credit for monies paid by the estate on the Bank's debt and granting statutory postjudgment interest from June 27, 1998, to December 14, 2006. The court found that the Bank was entitled to judgment as of December 14, 2006, in the " total sum of $227,944.52, consisting of $129,373.52 in principal and $98,571.00 in post-judgment interest."

[¶6] On March 27, 2007, almost 13 years after decedent's death, the court approved the inventory and final accounting submitted by the Executor. In its order, the court found that the Bank appeared to have been the only creditor of the estate and that there were no assets available for distribution to the heirs. The court further stated " that the Executor [had] completed all duties necessary in his capacity as Executor *** and there [was] no just reason to delay closing the Estate." The Executor was then discharged from his duties, and the estate was closed on March 27, 2007.

[¶7] On June 28, 2013, almost 19 years after the estate was originally opened and some 6 years after the closure of the Carlen estate, the Bank filed a " Petition to Reopen Estate" pursuant to section 24-9 of the Probate Act of 1975 (755 ILCS 5/24-9 (West 2006)). The Bank alleged that its judgment remained unpaid and that its unsatisfied judgment was " an unsettled portion of the estate" within the meaning of the statute.

[¶8] On July 2, 2013, the court, finding that notice was unnecessary, entered an ex parte order granting the Bank's petition, vacated its March 27, 2007, order closing the estate, and further vacated that portion of the order discharging the Executor. Additionally, the court required that a new ...

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