RALPH J. SCHINDLER, JR., Plaintiff-Appellant,
NORMAN WATSON, PETER H. COZZI, ANNE V. COZZI, U.S. BANK, N.A., PERL MORTGAGE, INC., and UNKNOWN OWNERS AND OCCUPANTS, Defendants Peter H. Cozzi, Anne
Cozzi, and Perl Mortgage, Inc., Defendants-Appellees.
from the Circuit Court of Du Page County. No. 15-CH-1817
Honorable Bonnie M. Wheaton, Judge, Presiding.
JUSTICE HUTCHINSON delivered the judgment of the court, with
opinion. Presiding Justice Hudson and Justice Jorgensen
concurred in the judgment and opinion.
1 This case involves the expiration of a judgment lien on
real estate. Defendant Norman Watson, the judgment debtor,
sold the subject property to defendants Peter H. Cozzi and
Anne V. Cozzi roughly two months before the lien was
scheduled to expire. Plaintiff, Ralph J. Schindler, Jr., the
judgment creditor, apparently unaware of the sale, did
nothing to enforce his lien rights before the expiration
date. Afterward, he filed a foreclosure complaint, which the
trial court dismissed as untimely. He now contends that the
sale operated to extend the expiration date and allow his
foreclosure on the lien. He raises arguments similar to those
that were rejected in Barth v. Kantowski, 409
Ill.App.3d 420 (2011), a case decided by our Third District
Appellate Court. Although we decline to follow
Barth, we affirm the trial court's dismissal of
plaintiff's untimely foreclosure complaint.
2 I. BACKGROUND
3 The following facts are derived from the pleadings,
exhibits, and reports of proceedings.
4 On May 20, 2004, plaintiff obtained a judgment from the
trial court against Watson in the amount of $164, 303.20. The
judgment related to a $100, 000 credit line that plaintiff
had extended to a limited liability company. Watson had
personally guaranteed the indebtedness. On January 19, 2005,
plaintiff filed a memorandum of judgment with the Du Page
County recorder of deeds. Included was a certified copy of
the judgment against Watson, along with the legal description
and permanent real estate index number for property in
Bartlett that was owned by Watson. This recording created a
judgment lien on the subject property enforceable for seven
years from May 20, 2004, the date of the judgment's
entry. See 735 ILCS 5/12-101 (West 2004).
5 On March 25, 2011, approximately two months prior to the
scheduled expiration of the judgment and the corresponding
lien, Watson sold the subject property to the Cozzis. The
Cozzis obtained mortgage loans on the subject property from
defendants U.S. Bank, N.A., and Perl Mortgage, Inc. A copy of
the warranty deed conveying the subject property to the
Cozzis was filed with the Du Page County recorder of deeds on
April 6, 2011. Plaintiff, who was not given any notice of the
sale, made no timely attempt to revive his judgment or
foreclose on his lien.
6 More than four years later, on October 26, 2015, plaintiff
filed a "Verified Complaint for Foreclosure of Judgment
Lien." Plaintiff alleged that he was due the principal
amount of his lien, $164, 303.20, plus $101, 282.79 in
accrued interest, for a total of $265, 585.99. He requested
that the trial court order the sale of the subject property
and find that his judgment lien had priority over any
potential mortgage lien claims of U.S. Bank and Perl
7 The Cozzis filed a motion to dismiss plaintiff's
complaint, pursuant to section 2-619(a)(9) of the Code of
Civil Procedure (Code) (735 ILCS 5/2-619(a)(9) (West 2014)).
The Cozzis argued that plaintiff's judgment lien had
expired on May 20, 2011, and that plaintiff therefore lacked
any interest in the subject property. In a written response,
plaintiff argued that his claim was "similar to a claim
of financial injury." Plaintiff asserted that he was
injured on March 25, 2011, when Watson sold the subject
property to the Cozzis without satisfying his lien. Plaintiff
argued that his "cause of action" therefore
"arose" on March 25, 2011, and that he was
"merely seek[ing] to assert his rights as they existed
on that date."
8 During a hearing on the motion, the parties disputed
whether this case was controlled by Barth. The trial
court commented that this appeared to be a case of first
impression, that the Cozzis were "rolling the dice"
when they bought the property, and that the Cozzis were
fortunate that plaintiff had not acted in a timely manner to
enforce his lien. As in Barth, the trial court
determined that plaintiff was precluded from foreclosing on
the lien because it had expired. Accordingly, the trial court
granted the Cozzis' motion to dismiss with prejudice.
Plaintiff now brings this timely appeal.
9 II. ANALYSIS
10 The facts in this case are simple. Application of the law
becomes complicated. Defendants admit that the Cozzis were
aware of the lien when they purchased the subject property.
They acknowledge that the Cozzis knowingly risked having to
defend against a possible lien foreclosure. They argue,
however, that this risk was "short-lived, " as
plaintiff "never sought to enforce his lien rights
before the expiration of the lien." We agree with
defendants. For the reasons discussed herein, we believe that
plaintiff's undoing was his inaction during the final
year that his lien was enforceable against the subject
property. We therefore affirm the trial court's dismissal
of plaintiff's complaint.
11 A section 2-619 motion to dismiss admits the sufficiency
of the complaint, but asserts an affirmative matter that
defeats the claim. Bjork v. O'Meara, 2013 IL
114044, ¶ 21. The purpose of a section 2-619 motion is
to "dispose of issues of law and easily proved issues of
fact at the outset of litigation." Van Meter v.
Darien Park Dist., 207 Ill.2d 359, 367 (2003). We apply
the de novo standard of review to a trial
court's decision on a section 2-619 motion. Simmons
v. Campion, 2013 IL App (3d) 120562, ¶ 21. We may
affirm the court's decision on any basis supported by the
record. Id. ¶ 22.
12 We begin with a brief discussion of the standards
governing judgment liens in Illinois. At common law, a
judgment did not create a lien against the real property of
the judgment debtor. Dunn v. Thompson, 174
Ill.App.3d 944, 947 (1988). A judgment lien is a creation of
statute in derogation of the common law. Wells Fargo
Bank, NA v. Heritage Bank of Central Illinois, 2013 IL
App (3d) 110706, ¶ 26. Strict statutory compliance is
therefore required of a judgment creditor who wishes to
assert a lien against the debtor's real property.
Id. ¶ 29.
13 Section 12-101 of the Code provides for the creation of
liens on real estate by judgments. Pursuant to the statute,
"a judgment is a lien on the real estate of the
person against whom it is entered *** only from the time
a transcript, certified copy or memorandum of the judgment is
filed in the office of the recorder in the county in which
the real estate is located." (Emphasis added.) 735 ILCS
5/12-101 (West 2004). The lien may be foreclosed in the same