Maher, Jerome A. v. Harris Trust Savings

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 06-3565
JEROME A. MAHER,
Plaintiff-Appellee,
v.
HARRIS TRUST AND SAVINGS BANK,
HORIZON SAVINGS BANK AND
RESOLUTION TRUST CORPORATION,
Defendants.
APPEAL OF
CADLE COMPANY,
Judgment Creditor/Appellant.
____________
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 90 C 5118—James B. Zagel, Judge.
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ARGUED JUNE 8, 2007—DECIDED OCTOBER 25, 2007
____________
Before POSNER, FLAUM, and MANION, Circuit Judges.
MANION, Circuit Judge. Jerome Maher (“Maher”) and his
wife, Mary, own shares in a cooperative apartment as
tenants by the entirety. A judgment was entered against
Maher individually, and Cadle Company (“Cadle”) as
owner of the judgment filed suit to collect on that judg-
2 No. 06-3565
ment. Cadle filed a motion for turnover of Maher’s stock in
the cooperative. The district court granted Cadle’s motion,
and Maher filed a motion for reconsideration which the
district court granted. Cadle appeals, and we affirm.
I.
Maher and his wife own 320 shares of stock in the 1630
N. Sheridan Road Corporation (“Corporation”), which
owns land located at 1630 N. Sheridan Road, Wilmette,
Illinois. These shares are registered in the names of both
Jerome and Mary Maher as a tenancy by the entirety.
Along with their co-op shares, the Mahers own the right
to occupy unit #3A of the building located on the land
during their lifetime under the terms of a proprietary
lease with the Corporation. The Mahers exercise this
right and occupy unit #3A as their residence claiming it
as their homestead.
In 1993, the district court entered judgment in favor of
Resolution Trust Corporation against Maher in the sum
of $42,000.00; Maher’s wife has no obligation under this
debt. Cadle later purchased the judgment for consider-
ation. In January 2006, Cadle filed suit to collect the
judgment against Maher. After an examination of Maher’s
assets, Cadle filed a motion for Maher to turn over his
shares of stock in the Corporation to satisfy the judgment.
The district court granted Cadle’s motion.
Maher filed a motion for reconsideration, arguing
that because he and his wife owned the stock as tenants
by the entirety subject to the Corporation’s terms and
conditions, the stock represented an interest in their
homestead under Illinois law. Maher further noted that
his wife was not subject to the judgment. In response,
No. 06-3565 3
Cadle asserted that Maher’s stock is personal property
and therefore not protected by a tenancy by the entirety
and not homestead property. Maher argued in reply that
the stock represents an interest in real property which
constitutes his homestead and is exempt from turnover.
The district court granted Maher’s motion, concluding
that Maher’s stock in the cooperative represented an
interest in a homestead property which may be held in
tenancy by the entirety, thereby precluding it from transfer
to satisfy personal debt of only one of the spouses. Cadle
appeals.
II.
On appeal, Cadle challenges the turnover order. “The
district court’s turnover order is a final judgment, which
we review de novo.” Society of Lloyd’s v. Estate of McMurray,
274 F.3d 1133, 1134 (7th Cir. 2001) (citation omitted).
Because the parties’ substantive rights are based on
Illinois property law, we apply the law as the Supreme
Court of Illinois has applied it. When the Supreme Court
of Illinois has not ruled on the issue before us, we look to
the decisions of the state appellate courts “unless there
are persuasive indications that the state supreme court
would decide the issue differently.” Much v. Pac. Mut. Life
Ins. Co., 266 F.3d 637, 643 (7th Cir. 2001) (citations omit-
ted). Under Illinois law, statutes are to be interpreted
according to their plain language affording them their
plain and ordinary meaning. Moore v. Greene, 848 N.E.2d
1015, 1020-21 (Ill. 2006) (citations omitted). Statutes deal-
ing with the same subject under the doctrine of pari
materia are to be interpreted “with reference to one another
to give them harmonious effect.” People v. McCarty, 858
4 No. 06-3565
N.E.2d 15, 31 (Ill. 2006). This principle comports with the
“fundamental rule of statutory interpretation that all the
provisions of a statute must be viewed as a whole.” Id.(citations omitted).
In arguing for reversal, Cadle asserts that it has the
right to obtain Maher’s shares in the cooperative apart-
ment to satisfy the judgment. Specifically, Cadle contends
that stock in the cooperative apartment is personal prop-
erty and that only real property or a land trust may be
held in tenancy by the entirety. At oral argument, Cadle
conceded that Maher’s stock ownership in the cooperative
is entitled to a homestead exemption from judgment, but
only up to $15,000. This concession comports with Illi-
nois law. See 735 ILCS 5/12-901 (“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 occupied
by him or her as a residence, or in a cooperative that owns
property that the individual uses as a residence. . . . [Homestead
property] is exempt from attachment, judgment, levy,
or judgment for sale for payment of his or her debts or
other purposes . . . .”) (emphasis added).
Cadle claims, though, that Maher’s homestead exemp-
tion in the Corporation stock is limited to $15,000 under
735 ILCS 5/12-901 because the stock is personal property
that cannot be held as a tenancy by the entirety. We
disagree. The Illinois Tenancy Act provides in relevant
part:
Whenever a devise, conveyance, assignment, or other
transfer of property, including a beneficial interest in
a land trust, maintained or intended for maintenance as
a homestead by both husband and wife together during
No. 06-3565 5
coverture shall be made and the instrument of devise,
conveyance, assignment, or transfer expressly de-
clares that the devise or conveyance is made to tenants
by the entirety, or if the beneficial interest in a land
trust is to be held as tenants by the entirety, the estate
created shall be deemed to be in tenancy by the entirety.
765 ILCS 1005/1c (emphasis added). The Illinois Tenancy
Act specifically provides that property maintained as
a homestead may be held as a tenancy by the entirety,
and it does not differentiate between real or personal
property.1
The Illinois courts have not addressed the issue presently
before us about whether shares in a cooperative apartment
may be held as a tenancy by the entirety. However,
we conclude that in reviewing the Illinois homestead
and tenancy statutes the state courts would similarly
conclude that because Maher’s interest in the coopera-
tive qualifies as a homestead and that interest is
“maintained . . . as a homestead by both husband and
wife . . . the estate created shall be deemed to be in tenancy
by the entirety.” 765 ILCS 1005/1c.
Our analysis does not end here, however, but continues
pursuant to Federal Rule of Civil Procedure 69(a), “which
governs the collection proceedings in the federal courts,
1
We note that the statute specifically includes land trusts
which Illinois courts have recognized as being similar to
cooperative apartments. See Brandzel v. Koretsky, 384 N.E.2d 128,
130 (Ill. App. Ct. 1978) (noting that “[w]hether title is in a land
trust or held by a corporation is merely a matter of the con-
venience of the parties; the essence of the cooperative is the
agreement among the co-owners.”).
6 No. 06-3565
[and] adopts whatever procedures are followed by the
state courts in which the collection is sought, here [Illi-
nois], unless there is an applicable federal statute expressly
regulating the execution of judgments.” Vukadinovich v.
McCarthy, 59 F.3d 58, 62 (citation omitted). There is no
applicable federal statute regulating the execution of the
judgment against Maher as it relates to his interest in the
Corporation, so we look to 735 ILCS 5/12-112, “What [is]
liable to enforcement,” which provides that,
[a]ny real property, or beneficial interest in a land trust,
held in tenancy by the entirety shall not be liable to be
sold upon judgment entered on or after October 1, 1990
against only one of the tenants, except if the property
was transferred into tenancy by the entirety with the
sole intent to avoid the payment of debts existing at
the time of the transfer beyond the transferor’s ability
to pay those debts as they become due.
As we stated above, Maher’s interest in the Corporation is
held in tenancy by the entirety, and there are no allega-
tions that Maher fraudulently transferred his stock to a
tenancy by the entirety to avoid payment of his judgment.
Cadle relies upon New York law for its assertion that
ownership in a cooperative is not real property and is
always treated as personal property. Even in New York,
though, courts note,
The ownership interest of a tenant-shareholder in a
co-operative apartment is sui generis. It reflects only
an ownership of a proprietary lease, and therefore
arguably an interest in a chattel real, conditional
however upon his shareholder interest in the co-
operative corporation, an interest always treated as
personal property. The leasehold and the shareholding are
No. 06-3565 7
inseparable. For some special purposes, the real prop-
erty aspect may predominate.
State Tax. Comm’n v. Shor, 371 N.E.2d 523, 524 (N.Y. 1977)
(citations omitted, emphasis added). Even under New York
law it appears that the case before us involves such a
purpose.
“A ‘cooperative apartment house,’ frequently referred
to in this connection simply as a ‘cooperative,’ is a multi-
unit dwelling in which each resident has (1) an interest
in the entity owning the building, and (2) a lease entitling
the resident to occupy a particular apartment within the
building.” 15A Am. Jur. 2d Condominiums and Coopera-
tive Apartments § 62 (2007). In other words, “[s]hares of
stock [ ] are sold to persons who will occupy the housing
units, the number of shares [ ] depending on the value
of the particular apartment or unit. ‘Proprietary’ leases
are issued by the corporation to the shareholders.”
Sinnissippi Apartments, Inc. v. Hubbard, 448 N.E.2d 607, 610
(Ill. App. Ct. 1983) (citation omitted). Because an individ-
ual’s stock ownership and proprietary lease are inter-
twined, Illinois courts have acknowledged the unique,
hybrid nature of cooperative apartments. See, e.g., Harper
Square Hous. Corp. v. Hayes, 713 N.E.2d 666, 669-70 (Ill. App.
Ct. 1999); Quality Mgmt. Servs. v. Banker, 685 N.E.2d 367,
369 (Ill. App. Ct. 1997). They have recognized that “[t]he
primary interest of every stockholder in such a corpora-
tion is the long term propriety lease and the stock is
incidental to such purpose and merely affords the prac-
tical means of combining an ownership interest with the
method of sharing proportionately the assessments for
maintenance and taxes.” Sinnissippi Apartments, Inc., 448
N.E.2d at 611 (citation omitted). Further, the Illinois
homestead statute lists an individual’s interest in a cooper-
8 No. 06-3565
ative, separate and distinct from personal property,
which also may qualify as a homestead, belying Cadle’s
assertion that an interest in a cooperative is always treated
as personal property. Other evidence that a cooperative
member’s interest in the cooperative has aspects of an
interest in real estate is illustrated by the Illinois Property
Tax Code. 35 Illinois Compiled Statute 200/15-175 and
35 Illinois Compiled Statute 200/15-170 direct coopera-
tives to credit to the qualifying cooperative members the
appropriate pro-rated amount of the homestead and
senior citizen homestead real estate property tax exemp-
tions the cooperative receives. Also, while the Illinois Code
of Civil Procedure does not define “real property,” other
sections of the Illinois statutory code include such interests
as lifetime proprietary leases in their definitions of real
property. See 315 ILCS 25/3 & 315 ILCS 20/3-8 (defining
real property to include “lands, lands under water, struc-
tures and . . any rights, legal or equitable, including terms
for years . . . .” (emphasis added)). Finally, the purposes of
homestead and tenancy by the entirety are similar in that
they protect an individual’s interest in his home beyond
the reach of creditors: to a limited extent in the case of
homestead (up to $15,000) and completely with a tenancy
by the entirety, “the primary purpose of [which] is to
protect the ability of a married couple to retain occupancy
of the marital homestead against the creditors of only
one spouse while the marriage is intact . . . .” In re Tolson,
338 B.R. 359, 368 (C.D. Ill. 2005). See People v. One Residence
Located at 1403 East Parham Street, 621 N.E.2d 1026, 1031
(Ill. App. Ct. 1993) (“[T]he purpose of the homestead
exemption is to secure to the homesteader a shelter bey-
ond the reach of his improvidence.”) (citing Holterman v.
Poynter (1935), 198 N.E. 723, 725 (Ill. 1935)). In light of the
nature and characteristics of ownership in a cooperative
No. 06-3565 9
apartment, including the proprietary lease, the fact that
such ownership may be held in tenancy by the entirety
under the Illinois Tenancy Act, and the purposes of the
Illinois homestead and tenancy by the entirety exclusion
from judgment statutes, we conclude that the Mahers’
ownership interest in the Corporation constitutes real
property for the purposes of 735 ILCS 5/12-112 and is
therefore excluded from satisfaction of Jerome Maher’s
judgment.
III.
Because Maher owns his shares in the Corporation with
his wife in tenancy by the entirety, turnover of that stock
to Cadle to satisfy Maher’s judgment is impermissible
under Illinois law. Accordingly, we AFFIRM the district
court’s denial of Cadle’s motion for turnover of Maher’s
stock.
A true Copy:
Teste:
_____________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—10-25-07