GMAC Mortgage, LLC v. Arrigo , 2014 IL App (2d) 130938 ( 2014 )

Illinois Official Reports
Appellate Court
GMAC Mortgage, LLC v. Arrigo, 2014 IL App (2d) 130938Appellate Court GMAC MORTGAGE, LLC, Plaintiff and Counterdefendant-
Caption Appellant, v. 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 and Counterplaintiffs-Appellees.
District & No. Second District
Docket No. 2-13-0938
Filed April 4, 2014
Rehearing denied May 20, 2014
Held Pursuant to a question certified by the trial court under Supreme Court
(Note: This syllabus Rule 308 in a foreclosure action, the appellate court answered that a
constitutes no part of the spouse who is not named as a titleholder of a house, but is married to
opinion of the court but the titleholder and maintains the property as her primary place of
has been prepared by the residence, cannot claim a homestead exemption in the property under
Reporter of Decisions section 12-901 of the Code of Civil Procedure.
for the convenience of
the reader.)
Decision Under Appeal from the Circuit Court of Du Page County, No. 11-CF-5214;
Review the Hon. Robert G. Gibson, Judge, presiding.
Judgment Certified question answered.
Counsel on Darnella J. Ward, of Fidelity National Law Group, of Chicago, for
Appeal appellant.
David R. Sweis, of Sweis Law Firm, P.C., of Oak Brook, for
appellees.
Panel JUSTICE JORGENSEN delivered the judgment of the court, with
opinion.
Justices Hudson and Birkett concurred in the judgment and opinion.
OPINION
¶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.
¶2 I. BACKGROUND
¶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
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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
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
argued that it was irrelevant that she claimed that she did not give her express waiver.
¶ 10 On July 17, 2013, the trial court denied the motion, relying on Brod v. Brod, 390 Ill. 312(1945), and reading it to hold that the spouse’s interest need not be formalized, but
acknowledging that more recent federal cases interpreting Illinois law supported GMAC’s
position. Subsequently, on August 29, 2013, it certified the following question: “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))].” Further, the court
stayed the proceedings pursuant to Rule 308(e). This court, on October 9, 2013, granted leave
to appeal on the question.
¶ 11 II. ANALYSIS
1
GMAC also joined Wells Fargo by virtue of a mortgage executed by Nicholas in 2004 to secure a
$25,000 note. GMAC also joined Lee Station Master and Lee Station Townhome because they are
townhome associations for the property and “may have some interest in the subject property for unpaid
assessments or other charges.”
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¶ 12 GMAC argues that defendants cannot seek partition, because Lina holds no ownership
interest in the subject property. It contends that recent case law, albeit from federal courts
interpreting Illinois law, warrants answering the certified question in the negative (and further
supports dismissal of defendants’ counterclaim). GMAC also argues that Brod, the supreme
court case upon which the trial court primarily relied, is factually and legally distinguishable
and is based on antiquated law. For the following reasons, we conclude that Lina cannot claim
the exemption and we answer the certified question in the negative.
¶ 13 Rule 308 provides a remedy of permissive appeal from an interlocutory order where the
trial court has deemed that it involves a question of law as to which there is substantial ground
for difference of opinion and that an immediate appeal from the order may materially advance
the ultimate termination of the litigation. Ill. S. Ct. R. 308 (eff. Feb. 26, 2010). Because an
interlocutory appeal under Rule 308 necessarily involves a question of law, our review is
de novo. In re Marriage of Mathis, 2012 IL 113496, ¶ 19. Further, this appeal raises a statutory
construction question. Issues of statutory construction also present questions of law that we
review de novo. Hall v. Henn, 208 Ill. 2d 325, 330 (2003).
¶ 14 The cardinal rule of statutory construction is to ascertain and effectuate the legislature’s
intent. Moore v. Green, 219 Ill. 2d 470, 479 (2006). The best indicator of that intent is the
express language of the statute, which should be given its plain and ordinary meaning. Wilkins
v. Williams, 2013 IL 114310, ¶ 14. In interpreting a statute, we must read the relevant
provisions in their entirety and in their context within the broader framework of the act of
which they are a part. Solon v. Midwest Medical Records Ass’n, 236 Ill. 2d 433, 440 (2010).
¶ 15 Estates of homestead are statutory creations. Bank of Illmo v. Simmons, 142 Ill. App. 3d
741, 744 (1986). “Homestead is a freehold estate in land, the purpose of which is ‘to insure to
the family the possession and enjoyment of a home.’ ” Willard v. Northwest National Bank of
Chicago, 137 Ill. App. 3d 255, 264 (1985) (quoting Brod, 390 Ill. at 323). It further secures to
the homesteader “a shelter beyond the reach of his improvidence or financial misfortune.”
People v. One Residence Located at 1403 East Parham Street, 251 Ill. App. 3d 198, 201
(1993). Homestead exemption statutes are liberally construed. Id.¶ 16 Section 12-901 of the Code is the homestead exemption statute at issue here and provides:
“Every individual is entitled to an estate of homestead to the extent in value of $15,000
of his or her interest in a farm or lot of land and buildings thereon, a condominium, or
personal property, owned or rightly possessed by lease or otherwise and occupied by
him or her as a residence, or in a cooperative that owns property that the individual
uses as a residence. That homestead and all right in and title to that homestead is
exempt from attachment, judgment, levy, or judgment sale for the payment of his or her
debts or other purposes and from the laws of conveyance, descent, and legacy, except
as provided in this Code or in Section 20-6 of the Probate Act of 1975. This Section is
not applicable between joint tenants or tenants in common but it is applicable as to any
creditors of those persons. If 2 or more individuals own property that is exempt as a
homestead, the value of the exemption of each individual may not exceed his or her
proportionate share of $30,000 based upon percentage of ownership.” (Emphases
added.) 735 ILCS 5/12-901 (West 2012).
¶ 17 GMAC argues first that the plain language of the statute bars defendants’ claim because it
does not support their interpretation that Lina has her own homestead exemption apart from
Nicolas. The burden of proving the existence of a homestead is on the individual asserting it.
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First State Bank of Princeton v. Leffelman, 167 Ill. App. 3d 362, 366 (1988). To qualify for the
exemption, an “individual” must (1) occupy the property “as a residence”; and (2) have some
right in the property (“owned or rightly possessed by lease or otherwise”). 735 ILCS 5/12-901
(West 2012). It is undisputed that Lina is an individual who occupied the subject property as a
residence. It is also undisputed that she did not own or lease it. The question is whether she
“otherwise” rightly possessed it. The phrase “or otherwise” could encompass a broad range of
either similar or dissimilar possessory interests. See Black’s Law Dictionary 1101 (6th ed.
1990) (defining “otherwise” as “[i]n a different manner; in another way, or in other ways,” but
defining “other” as, inter alia, including “only others of like kind and character”). It is
ambiguous. GMAC, however, argues that the final sentence of the statute and federal case law
instruct that only a formalized interest satisfies this requirement.
¶ 18 The final sentence of the statute, which was added in 1994, 2 provides that, where two or
more individuals “own” the property, their exemptions may not exceed their proportionate
shares of $30,000 (i.e., the value of two exemptions). GMAC argues that this final sentence
reflects a legislative intent that some formalized right of possession is required for someone to
“otherwise” rightly possess the property, because that provision uses the term “own,” which, in
GMAC’s view, reflects the requirement of “ownership of some type.” Reading the statute as a
whole, however, we believe that the final sentence merely creates an ambiguity in cases such
as this. (As defendants assert, the legislature, had it intended such a limitation, would have
included language limiting the exemption to titleholders.) A reader whose circumstances do
not put him or her within the parameters of the final sentence would have to satisfy the “or
otherwise” requirement earlier in the statute, which, as previously noted, is ambiguous. We
disagree that the only reasonable reconciliation of the sentences is that two or more persons in
possession must own the property in order to qualify for the exemption. The broad language in
the early portion of the statute cannot be reconciled with the narrow language of the final
sentence, which, further, reflects that its purpose is not to clarify the types of interests that
satisfy the statute, but, rather, to place a cap on the exemption amount where property is owned
by two or more individuals.
¶ 19 We turn next to the case law upon which GMAC relies, which it admits consists primarily
of recent federal cases interpreting Illinois law. In re Belcher, 551 F.3d 688 (7th Cir. 2008), a
bankruptcy case, is the most instructive. It warrants extensive consideration, as we adopt its
reasoning herein. In that case, a couple filed for chapter 7 bankruptcy protection and, after the
trustee sold their home to satisfy their debts, both the husband and the wife claimed homestead
exemptions under section 12-901 of the Code. The trustee objected to the husband’s claim,
arguing that he was ineligible because his name was not on the title to the home. Both the
husband and the wife lived in the home, but the husband was neither on the title nor liable for
payment of the mortgage. The Belcher court held that the husband could not claim the
homestead exemption from the sale proceeds of the home, where his name was not on the title
and he did not have any other formalized interest in the property. Id. at 689. The court based its
decision on its view that “Illinois caselaw has consistently required a party to have a
formalized property interest to claim a homestead exemption.” Id. The court noted that lower
federal bankruptcy courts in the circuit had been divided on the issue and that the only district
2
Pub. Act 88-672, § 25 (eff. Dec. 14, 1994).
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court to reach the issue had held that the exemption did not apply unless the spouse’s name was
on the title. Id. at 690. 3 In reaching its conclusion that a spouse must have a formalized
property interest in the home to claim a homestead exemption under the statute, the Belcher
court began its analysis by assessing the nature of the husband’s interest. Id. at 690-91. It noted
that, under Illinois divorce laws, a nontitled spouse has a potential equitable interest in the
marital home upon divorce and that the probate statute allows a surviving spouse to claim an
equitable interest in the marital home (when the titled spouse dies, regardless of whether the
surviving spouse’s name was ever on the title). Id. at 691. However, neither of the foregoing
situations was triggered where the spouses were still married and alive when they filed their
bankruptcy petition. Id. The Belcher court rejected the husband’s argument that his future or
potential equitable interest was sufficient to claim that he “owned or rightly possessed by lease
or otherwise” the marital home. Id.
¶ 20 In reaching this conclusion, the Belcher court relied (as does GMAC here) on Illinois case
law that, it noted, “suggested that a titled interest is required to sustain a homestead estate.” Id.
(citing DeMartini v. DeMartini, 385 Ill. 128, 137 (1943) (homestead estate can have no
existence separate from the title upon which it depends)); see also First National Bank & Trust
Co. of Rockford v. Sandifer, 121 Ill. App. 2d 479, 482 (1970) (“[s]ome title, no matter what its
extent, is also necessary to claim a homestead exemption”); Sterling Savings & Loan Ass’n v.
Schultz, 71 Ill. App. 2d 94, 112 (1966) (same as to woman claiming exemption based on land
she possessed as a beneficiary of a land trust; noting that “something more than mere
possession is required to entitle a party to a homestead estate”); Jones v. Kilfether, 12 Ill. App.
2d 390, 396-97 (1956) (husband’s mere occupancy of property that was fully titled in his wife
did not give him a right of homestead and, thus, a right to eject a houseguest from the family
home; homestead right has no existence independent of the title). The Belcher court conceded
that the foregoing cases turned on the definition of “householder” that was used in pre-1982
versions of the homestead statute, which permitted only one spouse to claim an exemption.
Belcher, 551 F.3d at 692. However, the court determined that subsequent developments led it
to conclude that the “1982 expansion of the homestead exemption did not eliminate the
requirement of a formalized property interest.” Id. (noting that the 1982 amendment 4 replaced
“householder” with “individual” and, therefore, more than one person could claim the
exemption). In this respect, the court then assessed the final sentence of the statute, which,
again, was added in 1994, and it concluded that the legislature’s use of the terms “own” and
3
Bankruptcy court cases holding that spouses could claim homestead exemptions, even if they did
not hold title to the premises, include In re Miller, 174 B.R. 279 (Bankr. N.D. Ill. 1994),
In re Silverman, 98 B.R. 415 (Bankr. C.D. Ill. 1988), and In re Reuter, 56 B.R. 39 (Bankr. N.D. Ill.
1985). Bankruptcy court cases holding that a spouse must have a titled interest include In re Popa, 218
B.R. 420 (Bankr. N.D. Ill. 1998), In re Hartman, 211 B.R. 899 (Bankr. C.D. Ill. 1997), and In re Owen,
74 B.R. 697 (Bankr. C.D. Ill. 1987). See also Popa v. Peterson, 238 B.R. 395 (N.D. Ill. 1999) (district
court case; spouse must hold title to claim exemption).
4
The 1982 Revisory Act (Pub. Act 82-783, art. III, § 43 (eff. July 13, 1982)).
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“ownership” in the statute “establishes that something more than mere possession is required
to claim the homestead exemption.” Id. at 692 (noting legislative history). 5
¶ 21 The Belcher court rejected the argument that the combination of (1) section 16 of the
Rights of Married Persons Act (750 ILCS 65/16 (West 2012)), which requires one spouse to
provide a homestead for the other spouse before removing that spouse from the homestead
without his or her consent, 6 (2) section 27 of the Conveyances Act (765 ILCS 5/27 (West
2012)), which requires that a spouse’s release or waiver of homestead rights be express, 7 and
(3) “the potential equitable interests of a nontitled spouse under Illinois’ divorce and probate
laws” gives the nontitled spouse who lives in the marital home a property interest sufficient to
claim the exemption. Belcher, 551 F.3d at 692-93. The Belcher court concluded that the Rights
of Married Persons Act “only protects the right of the nontitled spouse to have housing
somewhere. *** [It] does not create a property interest in the marital home because it does not
guarantee a possessory interest in that property.” (Emphases in original.) Id. at 693. According
to the court, even if it did, the interest would be merely one to occupy the residence, and
Illinois case law, in its view, “consistently” had held that “ ‘something more than mere
possession is required to entitle a party to a homestead estate.’ ” Id. (quoting Schultz, 71 Ill.
App. 2d at 112). Turning to the Conveyances Act’s provision concerning waivers of the right
to homestead accommodation, the court concluded that it “does not inform the determination
of what interest in property gives rise to a homestead exemption.” Id. It concluded that
“homestead exemptions are designed to protect property from third-party creditors. Yet the
Rights of Married Persons Act and the [Conveyances Act] address only the rights of a nontitled
spouse vis-à-vis the titled spouse; they are silent regarding the rights of third-party creditors.”
Id.
¶ 22 Finally, the Belcher court noted that its conclusion that the husband was not entitled to a
homestead exemption avoided an anomalous result in that, if the husband had individually
5
See 88th Ill. Gen. Assem., House Proceedings, Nov. 30, 1994, at 41 (statements of Representative
Hoffman) (“[New sentence] specifically provides that if two or more persons own property that is
exempt as a homestead, the value of each personal exemption may not exceed his or her proportionate
share of $15,000 based on the percentage of ownership. For instance, you and your wife own, with
regard to the homestead exemption, own property, you would go in and sign up for $7,500 apiece. If
you, your wife and your wife’s sister lived with you and was [sic] ownership, you couldn’t get $7,500
apiece. You would get $15,000 total.”); see also In re Hartman, 211 B.R. 899 (Bankr. C.D. Ill. 1997)
(referring to legislative history as “scant” and holding that a spouse with no ownership interest is not
entitled to homestead exemption).
6
“Neither the husband nor wife can remove the other or their children from their homestead without
the consent of the other, unless the owner of the property shall, in good faith, provide another
homestead suitable to the condition in life of the family; and if he abandons her, she is entitled to the
custody of their minor children, unless a court of competent jurisdiction, upon application for that
purpose, shall otherwise direct.” 750 ILCS 65/16 (West 2012).
7
“No deed or other instrument shall be construed as releasing or waiving the right of homestead,
unless the same shall contain a clause expressly releasing or waiving such right. And no release or
waiver of the right of homestead by the husband or wife shall bind the other spouse unless such other
spouse joins in such release or waiver.” 765 ILCS 5/27 (West 2012).
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declared bankruptcy, his home would not be part of his estate under the bankruptcy statute,
because his wife owned it and he had no legal or equitable interest in it. Id. (citing 11 U.S.C.
§ 541 (2000)). The interpretation that the couple had proposed, i.e., that, in a joint bankruptcy
proceeding, the husband could “rely on this potential interest to protect some of the proceeds
from the sale of the house from creditors,” would create an “irreconcilable conflict” that
Illinois courts would avoid creating. Id.¶ 23 Here, GMAC contends that, pursuant to Belcher, Lina cannot claim her own homestead
exemption without demonstrating ownership or a formalized interest. GMAC further argues
that Brod, a 1945 case upon which the trial court relied, is factually and legally distinguishable
and based on antiquated law with no bearing here. In Brod, the husband, who had deserted his
wife, brought an action to partition their jointly owned residence in which the wife still lived.
The supreme court held that the wife was entitled to the entire value of the $1,000 homestead
exemption, where the husband had left and abandoned the homestead, was living separate and
apart from the wife through no fault of hers, and had offered no other suitable homestead for
her. Brod, 390 Ill. at 326. Specifically, it stated: “we hold that a wife who owns property jointly
with her husband, cannot be deprived of her valuable right to the continuity of a home, whether
it be called right of occupancy or homestead, by any other than the methods prescribed by
statute, and that when a husband institutes partition proceedings against the wife involving the
home, he must either bona fidely provide another suitable homestead for her or set off to her
under the statute the homestead interest of $1,000.” Id. In discussing the homestead
exemption’s purpose and public policy, however, the Brod court noted that, where one spouse
“own[s] the entire fee,” he or she cannot, by deed alone, deprive the other spouse of his or her
homestead interest without that spouse’s consent or other acts. Id. at 323-24. The homestead
statute in Brod provided:
“ ‘That every householder having a family, shall be entitled to an estate of homestead,
to the extent and value of $1,000, in the farm or lot of land and buildings thereon,
owned or rightly possessed, by lease or otherwise, and occupied by him or her as a
residence; and such homestead, and all right and title therein, shall be exempt from
attachment, judgment, levy or execution, sale for the payment of his debts, or other
purposes, and from the laws of conveyance, descent and devise, except as hereinafter
provided.’ ” (Emphases added.) Id. at 320-21 (quoting Ill. Rev. Stat. 1943, ch. 52, ¶ 1).
¶ 24 The Brod court noted older authority that held that a wife’s homestead interest is a present
interest of value. Id. at 324 (citing Bailey v. Hamilton, 337 Ill. 617, 621 (1929) (further noting
that by “marriage and residence” the wife “acquired the right to occupy” the premises as her
homestead and her “husband could not deprive her of that right without her consent”)). The
Bailey court stated that the wife’s homestead interest constitutes “a continuous right of
occupancy, which is a real and substantial interest,” and that the right is more than an estate in
land vested in the householder. Bailey, 337 Ill. at 622. “It is an estate which gives to the spouse
of the householder a right to present enjoyment of it, even as against the wishes of such
householder. It cannot be conveyed without her signature, and if the husband abandons her and
her family, it continues in her.” Id. at 623.
¶ 25 GMAC argues that the trial court erred in relying on Brod (and that the certified question
should be answered in the negative) because: (1) the case is factually distinguishable because
the husband and wife in that case held title as joint tenants, they purchased under a contract
running to both parties, and the wife provided funds for the purchase; thus, there was a
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formalized interest under which the wife claimed her own homestead exemption; (2) the case
addressed a pre-1982-amendment version of the homestead exemption statute; and (3) the
portion upon which the trial court here relied was obiter dictum (see Lebron v. Gottlieb
Memorial Hospital, 237 Ill. 2d 217, 236 (2010) (obiter dictum (or dictum) “is a remark or
opinion that a court uttered as an aside” and “is not essential to the outcome of the case, is not
an integral part of the opinion, and is generally not binding authority or precedent within the
stare decisis rule”)).
¶ 26 Defendants urge that Brod controls and that the relevant language in that case is not
obiter dictum but was central to the court’s holding. The court did not base its decision, they
further urge, on the fact that the parties in that case were joint tenants. They point to the court’s
comment that “[i]n the view which we take of this case, it is immaterial as far as the final result
is concerned whether the right of the wife in a joint tenancy with her husband is designated a
right of occupancy or a homestead.” (Emphasis added.) Brod, 390 Ill. at 323. The court
continued: “The proposition that husband cannot, by his deed alone, even though he own the
entire fee, deprive his wife of her homestead interest is so well established that citation of
authority is unnecessary.” Id. Classifying the foregoing language as obiter dicta, defendants
argue, would “unjustly diminish its value,” because it reflects the policy providing the
foundation of Brod’s holding.
¶ 27 We conclude that Brod is distinguishable because the couple in that case owned the
property as joint tenants, the case involved a dispute between a husband and a wife and not a
couple against a creditor, and, perhaps most significantly, the case did not center on section
12-901 of the Code, which is the homestead exemption statute at issue here. The Brod couple
owned the property as joint tenants, and the court explicitly stated that “we hold that a wife
who owns property jointly with her husband cannot,” in partition proceedings, “be deprived of
her valuable right to the continuity of a home, whether it be called a right of occupancy or
homestead, by any other than the methods prescribed by statute, and” in partition proceedings
the husband “must either bona fidely provide another suitable homestead for her or set off to
her under the statute the homestead interest of $1,000.” Id. at 326. The reference to a suitable
homestead is a clear reference to what is now section 16 of the Rights of Married Persons Act,
which, as noted above, precludes a spouse from removing the other spouse or their children
without the other’s consent unless the owner provides another suitable homestead. 750 ILCS
65/16 (West 2012). The Brod language upon which defendants here primarily rely, that the
“proposition that a husband cannot, by his deed alone, even though he own the entire fee,
deprive his wife of her homestead interest is so well established that citation of authority is
unnecessary” (Brod, 390 Ill. at 323), is directly followed by language reflecting that the court
was considering statutes not at issue here:
“Other than by a written instrument, signed and acknowledged as required by statute[,
i.e., section 12-904 of the Code, which addresses releases, waivers, and conveyances,
and section 27 of the Conveyances Act, which requires an express release or waiver], a
wife can be deprived of her interest in the homestead, whether it be an estate in land or
a right of occupancy, only by her abandonment of the premises as her residence, her
desertion of the family[, i.e., under section 12-902 of the Code, which addresses the
exemption after death or desertion], or a decree of divorce making disposition of the
homestead estate.” Id. at 323-24.
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Furthermore, directly following the foregoing quotation, the Brod court discusses Bailey and
quotes the holding in that case, specifically that, as between a husband and a wife and by
statute, “ ‘where a homestead exists neither can change the residence of the other from that
homestead without such other’s consent or unless another suitable homestead is provided.’ ”
Id. at 324 (quoting Bailey, 337 Ill. at 622). The Bailey court was also clearly referring to what is
now section 16 of the Rights of Married Persons Act, which, again, addresses removal from the
homestead and requires either consent or provision of another suitable homestead. 750 ILCS
65/16 (West 2012).
¶ 28 We reject defendants’ argument that the certified question must be answered in the
affirmative because the homestead exemption statute and its “companion” statutes reflect the
legislature’s intent to create a homestead estate in marital property. Defendants point to section
16 of the Rights of Married Persons Act and section 27 of the Conveyances Act. We agree with
the Belcher court that these statutes (and other provisions in the Code addressing homestead
estates) do not affect our analysis of section 12-901 of the Code. Stated differently, they have
no bearing on what type of property or other interest may give rise to a homestead exemption
under section 12-901 of the Code. Section 16 of the Rights of Married Persons Act does not
purport to create a right in a particular property. Section 27 of the Conveyances Act
presupposes a right of homestead and does not create one. Turning to the Code, we recognize
that various aspects of the homestead estate are set forth in 13 sections of the Code (735 ILCS
5/12-901 to 12-912 (West 2012)) and that two or more statutes that relate to the same subject
should be “read harmoniously so that no provisions are rendered inoperative” (Knolls
Condominium Ass’n v. Harms, 202 Ill. 2d 450, 458-59 (2002)). Our conclusion here does not
run afoul of this maxim, or of the one instructing that homestead exemption statutes are to be
liberally construed, because the sections upon which defendants rely address different rights
and procedures and do not touch upon the exemption that is addressed in section 12-901 of the
Code. Section 12-902, for example, addresses death or desertion and has no application here,
and section 12-904, which addresses releases, waivers, and conveyances, similarly does not
come into play, because we are not addressing whether Lina waived an exemption.
¶ 29 We also find defendants’ reliance on Willard, a more recent appellate court decision, to be
misplaced. In that case, the husband, who was the sole titleholder, conveyed the couple’s
residence into a land trust and assigned his beneficial interest as security for a loan. The wife
did not sign any of the relevant documents. The husband defaulted on the loan, and the
property was sold. The Willard court stated that the wife had a homestead “right,” noting that
the homestead statutes 8 “benefit[ ] not just the householder, but the family, and affords the
householder’s spouse a veto-like power where alienation or encumbrance of the homestead are
concerned.” Willard, 137 Ill. App. 3d at 264. However, the court did not state that the wife was
entitled to a homestead exemption; it referred to a single homestead “interest” (based upon the
husband’s title and quoting section 12-904 of the Code, which addresses releases, waivers, and
conveyances) and determined that the couple might be entitled to a setoff for the amount of the
exemption or a declaration that the sale was void. Id.
¶ 30 Finally, defendants attempt to distinguish Belcher, arguing that it involved a bankruptcy
and that the application of the homestead exemption to a debtor’s bankruptcy estate differs
8
The Willard court referred to section 12-901 and/or section 12-904 of the Code as the “Homestead
Exemption.” Id.
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greatly from a refinancing lender’s ability to enforce a mortgage conveyed to it by a married
person without the written release of his or her spouse. Belcher, they contend, is
distinguishable because the court’s primary concern there was the debtor in bankruptcy
receiving proceeds from the sale of a home surrendered to the bankruptcy trustee. The court
read into the statute, according to defendants, a requirement that there exist a formalized
interest, “despite the fact that no Illinois case has used such language when interpreting” the
statute. They assert that the court was seeking to prevent inequitable hardships to the
title-holding spouse’s creditors after the debtors surrendered their home to the trustee. Id.
Here, Lina is claiming that her homestead rights were never conveyed to a lender in a
refinancing transaction, and she is not seeking relief in the form of a chapter 7 discharge (from
all allowable debts in exchange for surrendering property to a court-appointed trustee). We
disagree that this distinction warrants a different result. We further disagree that no Illinois
case supports the Belcher court’s holding that a formalized interest must support a claim for an
exemption. The Belcher court relied on cases stating that the homestead estate can have no
existence separate from the title upon which it depends. For example, in De Martini, which
was decided two years before Brod, the supreme court stated:
“The right of homestead being by our present statute enlarged into an estate, it follows
that like all other estates, it can have no separate existence apart from the title on which
it depends. We have held that the estate of homestead created by the statute is based
upon the title of the householder, and can have no separate existence independently of
the title, which constitutes one of the essential elements, and from which it is
inseparable.” DeMartini, 385 Ill. at 136.
That the statute now allows multiple individuals to claim the exemption does not alter the
requirement, in our view, that each person seeking to claim an exemption must have a
sufficient interest in the property.
¶ 31 Defendants further assert that the Belcher court did not consider Brod in its analysis and
that Brod “is far more authoritative than the Seventh Circuit’s consideration of homestead in
the context of a Chapter 7 bankruptcy.” As discussed, Brod does not guide our decision in this
case.
¶ 32 We recognize that we are bound by supreme court decisions that have not been overruled
or modified, no matter their age. Trotter v. Chicago Housing Authority, 163 Ill. App. 3d 398,
407 (1987); see also Trossman v. Philipsborn, 373 Ill. App. 3d 1020, 1043 (2007); People v.
Long, 55 Ill. App. 3d 764, 773 (1977). However, this case presents no such scenario. As we
have demonstrated, Brod is distinguishable. Further, there is appellate court authority for the
proposition that mere possession is insufficient to allow a nontitled spouse to claim the
homestead exemption in section 12-901 of the Code and there is recent persuasive federal case
law, whose reasoning we adopt herein, consistent with Illinois authority.
¶ 33 III. CONCLUSION
¶ 34 For the foregoing reasons, we answer the certified question in the negative, finding that a
spouse who is not on title to property, but is the spouse of the titleholder and maintains the
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property as her primary place of residence, cannot claim the homestead exemption under
section 12-901 of the Code.
¶ 35 Certified question answered.
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