Maniez v. Citibank

FIRST DIVISION

September 20, 2010

No. 1-09-0583

LOUIS MANIEZ, )
Appeal from the
)
Circuit Court of
Plaintiff-Appellant, ) Cook
County.
)
v. )
)
CITIBANK, F.S.B., HARBOR DRIVE )
CONDOMINIUM ASSOCIATION, ) No.
05 CH 20618
UNKNOWN OWNERS and NONRECORD )
CLAIMANTS, )
)
Defendants )
Honorable
)
Darryl B. Simko,
(Masayo Koshiyama and Robert )
Judge Presiding.
Jolly, )
 )

Defendants-Appellees). )

PRESIDING JUSTICE HALL delivered

the opinion of the court:

This is the second appeal

generated by the efforts of the

plaintiff, Louis Maniez, to prevail on

his complaint to foreclose a judgment

lien against the defendants, Masayo

Koshiyama and her husband, Robert

Jolly. In answer to a certified

question, this court held that a 1997

memorandum of judgment recorded by the

plaintiff did not create a valid lien

2
against the defendants' real property.

See Maniez v. Citibank, F.S.B., 383

Ill. App. 3d 38, 890 N.E.2d 662

(2008).

On remand, the circuit court

granted the defendants' motion to

dismiss the complaint pursuant to

section 2-619 of the Code of Civil

Procedure (735 ILCS 5/2-619 (West

2008)) (the Code). The plaintiff

appeals, raising the following issues:

(1) whether the doctrines of judicial

estoppel and equitable estoppel bar

Ms. Koshiyama from asserting the

3
invalidity of the plaintiff's 1997

judgment lien; (2) whether the

plaintiff's 2004 memorandum of

judgment created a valid judgment lien

that is binding on the Jolly estate;1

and (3) whether this court's prior

decision in Maniez should be overruled

under the exceptions to the law of the

case doctrine.

Our prior opinion was limited to

answering the certified question. The

issues presented in this appeal

require a more detailed history of

1
Defendant Robert Jolly died during the pendency of the

original circuit court proceedings.

4
this litigation.

BACKGROUND

I. Circuit Court Proceedings

In 1993, the plaintiff, Louis

Maniez, and the defendants entered

into a settlement agreement to resolve

pending litigation. The order entered

by the circuit court provided that Ms.

Koshiyama was to make certain payments

to the plaintiff. In the event she

failed to make the payments, a default

judgment would be entered against both

defendants for the remaining balance.

Ms. Koshiyama failed to make the

5
No. 1-09-0583

payments, and on February 28, 1997,

the plaintiff obtained a default

judgment against the defendants in the

amount of $110,348.83, plus statutory

interest. It is undisputed that a

memorandum of judgment was recorded on

February 28, 1997, and that the

memorandum specified the judgment date

as February 27, 1997, rather than

February 28, 1997, the actual date of

the judgment.

On February 6, 1998, Ms.

Koshiyama filed for bankruptcy. On

her Schedule A - Real Property, she
6
No. 1-09-0583

listed a 50% interest in a condominium

unit at 155 Harbor Drive, Chicago,

Illinois (the Harbor Drive Unit),

which she owned in joint tenancy with

Mr. Jolly. On her Schedule D -

Creditors Holding Secured Claims, she

listed the plaintiff and described his

claim as a "Judicial Lien" against the

Harbor Drive Unit. She listed the

value of the property as $550,000 and

the amount of the plaintiff's claim as

$110,348.83. She did not indicate on

the schedule that the plaintiff's

claim was disputed.
7
No. 1-09-0583

On February 25, 2004, the circuit

court granted the plaintiff's motion

to revive his judgment against the

defendants. The order specified the

correct judgment date of February 28,

1997, and provided that the judgment

was revived against both defendants.

However, as to Ms. Koshiyama, it was

"limited to in rem effect and only as

to real estate owned by Masayo

Koshiyama at the time she filed her

bankruptcy proceedings." Based on the

revived judgment, the plaintiff

recorded a memorandum of judgment on
8
No. 1-09-0583

February 26, 2004. However, the

memorandum stated the year of the

judgment as 1998 rather 1997, the

correct year of the judgment.

Ms. Koshiyama's bankruptcy case

was closed on January 21, 2005. On October

24, 2005, the plaintiff recorded the circuit court's February 25,

2004, order reviving the judgment and which specified

the correct judgment date of February

28, 1997.

On December 1, 2005, the

plaintiff filed the instant

foreclosure complaint against the

defendants. The defendants filed a

9
No. 1-09-0583

motion to dismiss the complaint

pursuant to section 2-619(a)(9) of the

Code (735 ILCS 5/2-619(a)(9) (West

2006)). The defendants alleged that

the 1997 memorandum of judgment did

not create a judgment lien on the

Harbor Drive Unit because the

memorandum referred to the judgment as

having been entered on February 27,

1997, whereas the judgment was entered

on February 28, 1997.

Defendant Robert Jolly died on

June 21, 2006.2 On October 19, 2006,

2
Hereinafter, the word "defendants" refers to Ms. Koshiyama

10
No. 1-09-0583

the circuit court granted the

plaintiff's motion to amend the

complaint to add Ms. Koshiyama, as

executrix of Mr. Jolly's estate, as a

party defendant. The court entered an

order denying the defendants' motion

to dismiss. On December 13, 2006, the

court modified its order by certifying

the following question to this court:

"'[w]hether a Memorandum of

Judgment inaccurately describing a

judgment as having been entered on

a specific date can serve to create

and the Jolly estate.

11
No. 1-09-0583

a lien as provided by the relevant

statute.'" Maniez, 383 Ill. App.

3d at 39.

This court allowed the appeal pursuant

to Supreme Court Rule 308 (155 Ill. 2d

R. 308).

II. Appellate Court Proceedings

In answer to the certified

question, this court held that a

memorandum of judgment inaccurately

describing a judgment as having been

entered on a specific date did not

create a lien under section 12-101 of

the Code. Maniez, 383 Ill. App. 3d at
12
No. 1-09-0583

45. In reaching that conclusion, the

court noted that under section 12-101,

a judgment was a lien on real estate

only from the time the memorandum of

judgment was filed in the recorder's

office. See 735 ILCS 5/12-101 (West

2002). However, there must also be an

enforceable judgment standing behind

the memorandum. Maniez, 383 Ill. App.

3d at 41, citing Northwest

Diversified, Inc. v. Desai, 353 Ill.

App. 3d 378, 388, 818 N.E.2d 753

(2004).

The plaintiff argued that the
13
No. 1-09-0583

memorandum was a notice document and

pointed out that the defendants never

denied that a judgment was entered on

February 28, 1997. While the

plaintiff did not dispute the fact

that the memorandum of judgment

contained the wrong judgment date, he

maintained that the mistake was merely

a scrivener's error.

This court rejected the

plaintiff's arguments. The court

pointed out that the memorandum gave

notice to prospective purchasers as

well as the debtor. The memorandum
14
No. 1-09-0583

setting forth February 27, 1997, as

the date of the judgment did not place

a prospective purchaser on notice that

a judgment had been entered on

February 28, 1997. Maniez, 383 Ill.

App. 3d at 43. The plaintiff's

scrivener's error argument lacked

merit because case law required strict

compliance with section 12-101.

Maniez, 383 Ill. App. 3d at 44, citing

Northwest Diversified, Inc., 353 Ill.

App. 3d at 391. Even if the wrong

date was a scrivener's error, no

judgment was entered on February 28,
15
No. 1-09-0583

1997. Without a judgment on that

date, the 1997 memorandum referred to

a nonexistent judgment; therefore, it

did not create a judgment lien against

the defendants' real property.

Maniez, 383 Ill. App. 3d at 44.

Having answered the certified

question, this court declined the

defendants' request to go beyond the

certified question and dismiss the

complaint on the basis that the 2004

revival of the judgment lien was a

nullity. The case was remanded to the

circuit court. Maniez, 383 Ill. App.
16
No. 1-09-0583

3d at 44-45. The plaintiff did not

seek leave to appeal to the supreme

court.

III. Circuit Court Proceedings on

Remand

Upon remand to the circuit court,

the defendants moved to dismiss the

foreclosure complaint based on this

court's determination in Maniez that

no lien was created. They alleged

that, as no subsequent lien could have

been created due to Ms. Koshiyama's

discharge of the debt in bankruptcy,

the complaint should be dismissed with
17
No. 1-09-0583

prejudice. The defendants alleged

further that, even if the 2004

memorandum created a valid lien, it

impaired Ms. Koshiyama's survivorship

rights, rendering the lien void under

the automatic stay issued in her

bankruptcy case.

In his response to the motion to

dismiss, the plaintiff maintained that

Ms. Koshiyama was barred by judicial

and equitable estoppel from asserting

that he did not have a valid lien

against her interest in the Harbor

Drive Unit. The plaintiff further
18
No. 1-09-0583

argued that, even if the 1997

memorandum was invalid, the 2004

memorandum created a valid lien

against the Jolly estate's half

interest in the Harbor Drive Unit

because Ms. Koshiyama's and Mr.

Jolly's joint tenancy ownership of the

Harbor Drive Unit was severed when Ms.

Koshiyama filed her bankruptcy

petition.

On January 27, 2009, the circuit

court granted the defendants' motion

to dismiss. The plaintiff filed a

timely notice of appeal.
19
No. 1-09-0583

ANALYSIS

I. Dismissal of the Foreclosure

Complaint

A. Standard of Review

This court reviews the dismissal

of a complaint under section 2-619 de

novo. Westmeyer v. Flynn, 382 Ill.

App. 3d 952, 954-55, 889 N.E.2d 671

(2008). Review of an appeal from a

section 2-619 dismissal is similar to

the review of an appeal from the grant

of summary judgment. Westmeyer, 382

Ill. App. 3d at 955. The court

considers whether a genuine issue of
20
No. 1-09-0583

material fact exists that would

preclude the dismissal, or whether the

dismissal is proper as a matter of

law. Westmeyer, 382 Ill. App. 3d at

955.

B. Discussion

1. Judicial and Equitable Estoppel

The plaintiff contends that Ms.

Koshiyama is judicially and equitably

estopped from contesting the validity

of his 1997 judgment lien because she

listed the plaintiff as a secured

creditor on her bankruptcy schedule.3

3
The plaintiff acknowledges that his
21
No. 1-09-0583

The plaintiff argues that judicial

estoppel applies because, in the

foreclosure case, Ms. Koshiyama took a

position that conflicted with the

position she took in her bankruptcy

case. He further argues that

equitable estoppel applies because the

scheduling of the lien in her

bankruptcy case caused the plaintiff

to refrain from asserting rights he

might otherwise have asserted in the

bankruptcy proceeding.

estoppel arguments do not apply to the

Jolly estate.
22
No. 1-09-0583

a. Waiver and Forfeiture

The defendants respond that the

plaintiff has either waived or

forfeited his right to raise judicial

estoppel.4 They point out that in

their original motion to dismiss, they

raised the validity of the judgment

lien, but the plaintiff failed to

argue judicial estoppel, either in the

original circuit court proceedings or

in the Rule 308 appeal to this court.

"Waiver" means the voluntary

4
The defendants do not specifically address equitable

estoppel in their waiver and forfeiture arguments.

23
No. 1-09-0583

relinquishment of a known right.

People v. Blair, 215 Ill. 2d 427, 444

n.2, 831 N.E.2d 604 (2005). Waiver

arises from an affirmative act, is

consensual and consists of an

intentional relinquishment of a known

right. People v. Houston, 229 Ill. 2d

1, 9 n.3, 890 N.E.2d 424 (2008).

Forfeiture occurs when a party seeks

to raise an issue on appeal it failed

to raise in the lower court. Blair,

215 Ill. 2d at 443-44.

Notwithstanding the distinction

between "waiver" and "forfeiture,"
24
No. 1-09-0583

neither applies in this case.

Contrary to the defendants'

argument, the plaintiff was not

required to raise judicial estoppel as

a defense to the defendants' motion to

dismiss. Section 2-613 of the Code

requires that affirmative defenses,

such as estoppel, must be raised in

the answer to the complaint or in the

reply to the answer. See 735 ILCS

5/2-613(d) (West 2008). In R&B

Kapital Development, LLC v. North

Shore Community Bank & Trust Co., 358

Ill. App. 3d 912, 921, 832 N.E.2d 246
25
No. 1-09-0583

(2005), this court held that an

affirmative defense is properly

asserted in a section 2-615 motion to

dismiss only if the defense is

apparent from the face of the

complaint. R&B Kapital Development,

LLC, 358 Ill. App. 3d at 921. The

court did not hold that the defendant

was required to raise the affirmative

defense in the motion to dismiss.

Therefore, the plaintiff has not

intentionally relinquished his right

to raise the defense of judicial

estoppel.
26
No. 1-09-0583

Similarly, the plaintiff did not

forfeit his right to raise judicial

estoppel in the present proceedings by

not raising it in the prior

proceedings. The circuit court denied

the defendants' motion to dismiss,

rejecting the defendants' argument

challenging the validity of the

plaintiff's lien. Due to the

intervening Rule 308 appeal, and the

filing of their motion to dismiss

after remand to the circuit court, the

defendants had not yet answered the

complaint. Only then would the
27
No. 1-09-0583

plaintiff be required to file a reply,

if he wished to raise any estoppel

defenses.

Finally, the principles of waiver

and forfeiture are binding on the

parties but do not limit this court's

jurisdiction. See People v. McCarty,

223 Ill. 2d 109, 142, 858 N.E.2d 15

(2006); Redelmann v. K.A. Steel

Chemicals, Inc., 377 Ill. App. 3d 971,

879 N.E.2d 505 (2007). We turn to the

merits of the plaintiff's estoppel

arguments.

b. Judicial Estoppel
28
No. 1-09-0583

Under the doctrine of judicial

estoppel, a party who takes a

particular position in a legal

proceeding is estopped from taking a

contrary position in a subsequent

legal proceeding. Moy v. Ng, 371 Ill.

App. 3d 957, 962, 864 N.E.2d 752

(2007). Our courts have identified

five elements necessary for judicial

estoppel to apply: (1) the party must

have taken two positions; (2) the

positions must be factually

inconsistent; (3) the positions were

taken in separate judicial or quasi-
29
No. 1-09-0583

judicial proceedings; (4) the person

intended the trier of fact to accept

the truth of the facts alleged; and

(5) the party succeeded in the first

proceeding and received some benefit

therefrom. Moy, 371 Ill. App. 3d at

962. Judicial estoppel applies to

statements of fact and not to legal

opinions or conclusions. McNamee v.

Sandore, 373 Ill. App. 3d 636, 650,

869 N.E.2d 1102 (2007).5
5
While Johnson v. Du Page Airport Authority, 268 Ill. App.

3d 409, 644 N.E.2d 802 (1994), extended judicial estoppel to

legal inconsistencies, the supreme court's decision in People v.

Jones, 223 Ill. 2d 569, 861 N.E.2d 967 (2006), restored the

understanding of judicial estoppel as barring factual

30
No. 1-09-0583

In the present case, Ms.

Koshiyama disclosed the existence of

the plaintiff's judgment lien in her

bankruptcy case. She later contested

the validity of the lien in the

instant proceedings when the plaintiff

sought to foreclose it. The listing

of the claim was a statement of fact.

By challenging the validity of the

lien, she was not denying the fact

that the plaintiff had recorded a

memorandum of judgment against the

inconsistencies, not legal inconsistencies. McNamee, 373 Ill.

App. 3d at 650.

31
No. 1-09-0583

Harbor Drive Unit. The plaintiff

points out that Ms. Koshiyama failed

to indicate on her bankruptcy schedule

that the lien claim was disputed.

However, there is no evidence that the

lien claim was the subject of a

dispute at the time the schedule was

filed. Therefore, Ms. Koshiyama did

not take a position in the foreclosure

case factually inconsistent with the

one she took in her bankruptcy case.

c. Equitable Estoppel

"Equitable estoppel is typically

invoked 'where a person by his or her
32
No. 1-09-0583

statements and conduct leads a party

to do something that the party would

not have done but for such statements

and conduct.'" Trossman v.

Philipsborn, 373 Ill. App. 3d 1020,

1040, 869 N.E.2d 1147 (2007), quoting

Geddes v. Mill Creek Country Club,

Inc., 196 Ill. 2d 302, 313, 751 N.E.2d

1150 (2001). Our supreme court has

defined equitable estoppel "as the

effect of the person's conduct whereby

the person is barred from asserting

rights that might otherwise have

existed against the other party who,
33
No. 1-09-0583

in good faith, relied upon such

conduct and has been thereby led to

change his or her position for the

worse." Geddes, 196 Ill. 2d at 313.

In order to establish equitable

estoppel, the party claiming it must

demonstrate: (1) that the other party

misrepresented or concealed material

facts; (2) that the other party knew

at the time that he or she made the

representations that they were untrue;

(3) that the party claiming estoppel

did not know that the representations

were untrue when they were made and
34
No. 1-09-0583

when they were acted upon; (4) that

the other person intended the party

claiming estoppel would act upon the

representations; (5) that the party

claiming estoppel reasonably relied on

the representations to his or her

detriment; and (6) that the party

claiming estoppel would be prejudiced

by his or her reliance on the

representations if the other person

were allowed to deny the truth

thereof. Geddes, 196 Ill. 2d at 313-

14. The "fraud element" may be

satisfied where a fraudulent or unjust
35
No. 1-09-0583

effect results from allowing another

person to raise a claim inconsistent

with his or her former declarations.

Geddes, 196 Ill. 2d at 314.

The party claiming estoppel has

the burden of proving it by clear and

unequivocal evidence. Geddes, 196

Ill. App. 3d at 314. Whether estoppel

has been established is dependant on

the facts of each case. Geddes, 196

Ill. 2d at 314.

The plaintiff maintains that he

relied to his detriment on Ms.

Koshiyama's representation in her
36
No. 1-09-0583

bankruptcy proceeding that he had a

judgment lien against the Harbor Drive

Unit. The plaintiff alleges that, had

Ms. Koshiyama's 50% interest in the

Harbor Drive Unit been liquidated, the

unsecured creditors would have

received an $80,000 distribution from

her bankruptcy estate, rather then the

$15,000 actual distribution. He

further alleges that since Ms.

Koshiyama listed him as a secured

creditor, he was unable to file an

unsecured claim, which would have

allowed him to participate in the
37
No. 1-09-0583

$15,000 distribution.

There is no evidence that at the

time she filed her bankruptcy petition

in 1998, Ms. Koshiyama knew that the

plaintiff's judgment lien was invalid

and concealed that fact from the

plaintiff. The plaintiff could not

claim that he reasonably relied on the

bankruptcy filing because he possessed

the same knowledge regarding the date

of the judgment and the date on the

memorandum of judgment that he

attributed to Ms. Koshiyama. In other

words, if Ms. Koshiyama knew at the
38
No. 1-09-0583

time she filed for bankruptcy that the

plaintiff's lien was invalid, so did

the plaintiff because the basis of

their knowledge was the same.

The plaintiff argues that

estoppel may be based on a failure to

disclose when coupled with an

affirmative statement or act,

misleading the party asserting

estoppel. Estoppel by silence may

arise only where there is knowledge of

the facts on one side and ignorance on

the other. In Town & Country Bank of

Springfield v. James M. Canfield
39
No. 1-09-0583

Contracting Co., 55 Ill. App. 3d 91,

370 N.E.2d 630 (1977), the court

explained:

"'[I]f the means of knowledge are

equally open to both parties, there

can be no estoppel. ***

A person is not estopped by

his silence where there is no

positive

duty and

opportun

ity to

speak,

or the
40
No. 1-09-0583

party is

in

ignoranc

e of his

rights.'

" Town

&

Country

Bank of

Springfi

eld, 55

Ill.

App. 3d

at 95,
41
No. 1-09-0583

quoting

Puterbau

gh,

Chancery

Pleading

&

Practice

§675, at

1372

(7th ed.

1930).

In this case, both the plaintiff and

Ms. Koshiyama were ignorant of the

fact that the 1997 judgment lien was
42
No. 1-09-0583

invalid at the time of the bankruptcy

proceedings.

The plaintiff cites Bianucci v.

Prairie Production Credit Ass'n, No.

92-3046 (C.D. Ill. August 21, 1992)

(not reported in F. Supp.), aff'd sub

nom In re Bianucci, 4 F.3d 526 (7th

Cir. 1993), and In re Elmes, 289 B.R.

100 (Bankr. N.D. Ill. 2003). In

Bianucci, the district court ruled

that the debtors waited too long

before moving to reopen their

bankruptcy to discharge a judgment

lien they failed to list in their
43
No. 1-09-0583

bankruptcy proceedings. In Elmes, the

court held that a lien holder did not

violate the debtors' bankruptcy

discharge by filing contempt action in

state court against them to enforce a

lien. However, the court then held

that the debtors could properly avoid

the lien, rejecting the lienholder's

argument that the debtors had waited

too long before moving to avoid the

lien. Neither the facts nor the

holdings in those cases support the

plaintiff's estoppel arguments.

We conclude that neither judicial
44
No. 1-09-0583

estoppel nor equitable estoppel barred

Ms. Koshiyama from asserting that the

plaintiff's 1997 judgment lien was

invalid.

2. Validity of the 2004 Judgment Lien

Against

the Jolly Estate

The plaintiff maintains that the

2004 memorandum created a valid lien,

enforceable against the Jolly estate.

The defendants respond that the 2004

memorandum was void because it

violated the automatic stay order

entered in Ms. Koshiyama's bankruptcy
45
No. 1-09-0583

case by interfering with her right of

survivorship in the Harbor Drive Unit.

See In re Berg, 387 B.R. 524, 564

(Bankr. N.D. Ill. 2008); but see In re

Lipuma, 167 B.R. 522 (Bankr. N.D. Ill.

1994) (recognizing a split of

authority among the federal circuits

as to whether an act violating an

automatic stay was void or voidable).

At oral argument of this case,

counsel for the defendants pointed out

that the 2004 memorandum specified the

wrong year, 1998 instead of 1997.

Therefore, under Maniez, as the 2004
46
No. 1-09-0583

memorandum failed to comply with the

requirements of section 12-101, it

failed to create a valid lien.

However, following the close of Ms.

Koshiyama's bankruptcy case, the

plaintiff recorded the order reviving

the judgment. The order contained the

correct date of the judgment, and

under section 12-101, the order

qualified as a memorandum of judgment.

See Maniez, 383 Ill. App. 3d at 40-41;

735 ILCS 5/12-101 (West 2004).6

6
Under section 12-101, a memorandum includes a copy of the

judgment "signed by a judge." 735 ILCS 5/12-101(d) (West 2004).

We note that, while it contains the information required by

47
No. 1-09-0583

Therefore, while the 2004 memorandum

was void, the October 24, 2005,

recording of the court order reviving

the judgment created a valid lien and

did not violate the automatic stay

because it was filed after the close

of Ms. Koshiyama's bankruptcy case.

The defendants then argue that,

section 12-101, the October 24, 2005, order does not bear the

judge's signature. However, the order is stamped with the

judge's name and the date. As this court has recognized, "the

law has consistently interpreted 'signed' to embody not only the

act of subscribing a document, but also anything which can

reasonably be understood to symbolize or manifest the signer's

intent to adopt a writing as his or her own and be bound by it.

This may be accomplished in a multitude of ways, only one of

which is a handwritten subscription." Just Pants v. Wagner, 247

Ill. App. 3d 166, 173-74, 617 N.E.2d 246 (1993).

48
No. 1-09-0583

even if the plaintiff had a valid

judgment lien against the Harbor Drive

Unit that he could enforce against Mr.

Jolly, upon Mr. Jolly's death, the

lien was not enforceable against Ms.

Koshiyama, the surviving joint tenant.

In Harms v. Sprague, 105 Ill. 2d 215,

473 N.E.2d 930 (1984), the supreme

court held that a mortgage executed by

one joint tenant did not survive as a

lien on the property upon the death of

the joint tenant/mortgagor. The court

explained as follows:

"A surviving joint tenant succeeds
49
No. 1-09-0583

to the share of the deceased joint

tenant by virtue of the conveyance

which created the joint tenancy,

not as the successor of the

deceased. [Citation.] The property

right of the mortgaging joint

tenant is extinguished at the

moment of his death. While John

Harms was alive, the mortgage

existed as a lien on his interest

in the joint tenancy. Upon his

death, his interest ceased to exist

and along with it the lien of the

mortgage." Harms, 105 Ill. 2d at
50
No. 1-09-0583

224.

In the present case, the

plaintiff's judgment against Ms.

Koshiyama was discharged in

bankruptcy. While Mr. Jolly was

alive, the plaintiff had a judgment

lien against Mr. Jolly's interest in

the joint tenancy, as of October 24,

2005, when the court order reviving

the judgment was recorded. As in

Harms, when Mr. Jolly died in 2006,

his interest ceased to exist, and Ms.

Koshiyama, as the surviving joint

tenant, took the property free of the
51
No. 1-09-0583

plaintiff's judgment lien.

The plaintiff then asserts that

the judgment lien survived the death

of Mr. Jolly because the filing of the

bankruptcy petition severed the joint

tenancy and rendered Ms. Koshiyama and

Mr. Jolly tenants-in-common.

Therefore, the judgment lien remained

on Mr. Jolly's undivided one-half

interest in the Harbor Drive Unit

because it passed to Ms. Koshiyama by

inheritance, not as the surviving

joint tenant. In order to resolve

whether the plaintiff's judgment
52
No. 1-09-0583

remained a lien on the Harbor Drive

Unit upon Mr. Jolly's death, we must

determine if the filing of a petition

in bankruptcy severs the joint tenancy

There is a split of authority

among the courts on this issue. Some

federal and state courts have

concluded that the filing of a

bankruptcy petition severs the joint

tenancy. See Taylor v. Canterbury, 92

P.3d 961 (Colo. 2004); In re Chadwick,

113 B.R. 540 (Bankr. W.D. Mo. 1990);

In re Tyson, 48 B.R. 412 (Bankr. C.D.

Ill. 1985); In re Panholzer, 36 B.R.
53
No. 1-09-0583

647 (Bankr. D. Md. 1984); In re

Lambert, 34 B.R. 41 (Bankr. D. Colo.

1983). Other courts have found that

the filing of the petition does not

sever the joint tenancy. See In re

DeMarco, 114 B.R. 121 (Bankr. N.D. W.

Va. 1990); In re Anthony, 82 B.R. 386

(Bankr. W.D. Pa. 1987); In re Spain,

55 B.R. 849 (N.D. Ala. 1985).

The Bankruptcy Code (11 U.S.C. §

101 et seq. (2006)) does not address

specifically whether the filing of a

petition in bankruptcy severs the

joint tenancy. The courts in the
54
No. 1-09-0583

above cases arrived at their

conclusions by analyzing the

provisions of the Bankruptcy Code in

light of their own state laws

governing property interests. See

Lambert, 34 B.R. at 42 (state law

determines the nature, extent and

effect of the debtor's interest in

property). We examine first the

interest of a joint tenant under

Illinois law.

a. Property Interests Under Illinois

Joint Tenancy Law

A joint tenancy is "'a present
55
No. 1-09-0583

estate in all the joint tenants, each

being seized of the whole.'" Harms,

105 Ill. 2d at 224, quoting Partridge

v. Berliner, 325 Ill. 253, 257, 156

N.E.2d 352 (1927). An inherent

feature in the estate of joint tenancy

is the right of survivorship, which is

the right of the last survivor to take

the whole of the estate. Harms, 105

Ill. 2d at 224. The creation and the

perpetuation of the joint tenancy are

dependent on four unities: interest,

title, time, and possession. Harms,

105 Ill. 2d at 220. The voluntary or
56
No. 1-09-0583

involuntary destruction of any of the

unities by one of the joint tenants

will sever the joint tenancy. Harms,

105 Ill. 2d at 220. The severance of

the joint tenancy extinguishes the

right of survivorship. Jackson v.

O'Connell, 23 Ill. 2d 52, 55, 177

N.E.2d 194 (1961).

Illinois courts have held that a

joint tenant can sever a joint tenancy

by conveying his or her interest to a

third party, even without the consent

or permission of the other joint

tenant. See Olney Trust Bank v.
57
No. 1-09-0583

Pitts, 200 Ill. App. 3d 917, 921, 558

N.E.2d 398 (1990), citing Johnson v.

Beneficial Finance Co. of Illinois,

Inc., 154 Ill. App. 3d 672, 674, 506

N.E.2d 1025 (1987), and Johnson v.

Johnson, 11 Ill. App. 3d 681, 684, 297

N.E.2d 285 (1973). In Olney Trust

Bank, the court held that the joint

tenancy was severed where one joint

tenant conveyed his interest by way of

a deed in lieu of foreclosure. Olney

Trust Bank, 200 Ill. App. 3d at 921.

Our courts have held that a lien

or a mortgage on a joint tenant's
58
No. 1-09-0583

interest does not sever the joint

tenancy. See Harms, 105 Ill. 2d at

223; Jackson v. Lacey, 408 Ill. 530,

97 N.E.2d 839 (1951); Van Antwerp v.

Horan, 390 Ill. 449, 61 N.E.2d 358

(1945). Even the making of a levy

upon a joint tenant's interest does

not sever the joint tenancy. As the

court in Van Antwerp explained:

"Under the law and procedure

in this State, it appears that the

levy is

just

another
59
No. 1-09-0583

step in

the

process

directed

toward a

final

sale.

It is,

however,

not such

an act

as can

be said

to have
60
No. 1-09-0583

the

effect

of a

divestit

ure of

title.

There

has not

been, as

yet, the

destruct

ion of

identity

of
61
No. 1-09-0583

interest

or of

any

other

unity

which

must

occur

before

we can

say the

estate

of joint

tenancy
62
No. 1-09-0583

has been

severed

and

destroye

d.

There

does not

appear

to have

been, by

reason

of the

levy,

such
63
No. 1-09-0583

interfer

ence

with, or

diminuti

on of,

the

interest

of the

one

joint

tenant

as to

enable

us to
64
No. 1-09-0583

say that

there

has been

a

destruct

ion of

the

identity

of

interest

; and

such a

destruct

ion is
65
No. 1-09-0583

necessar

y before

we can

say that

there

has been

a

terminat

ion and

severanc

e of the

joint

tenancy.

We
66
No. 1-09-0583

therefor

e hold

that the

levy of

the

executio

n upon

the

share of

one of

the

joint

tenants

does not
67
No. 1-09-0583

sever or

terminat

e the

joint

tenancy.

" Van

Antwerp,

390 Ill.

at 455.

In Jackson, the court held that, even

though there had been a sale of the

joint tenant's interest, there was no

conveyance until the period of

redemption had passed. The court
68
No. 1-09-0583

concluded that the title was not

divested and, therefore, the joint

tenancy was unaltered. Jackson, 408

Ill. at 533.

We conclude that Illinois

requires a conveyance of the joint

tenant's interest in the property to

sever a joint tenancy. We now turn to

the relevant sections of the

Bankruptcy Code to determine if the

filing of a petition in bankruptcy

constitutes a conveyance of the

debtor/joint tenant's interest in the

property.
69
No. 1-09-0583

b. The Bankruptcy Code

Prior to the reforms to

bankruptcy law in the late 1970s,

section 70a of the Bankruptcy Act (11

U.S.C. §70a (1976)) provided that the

bankruptcy trustee was vested with the

title of the debtor to all his or her

nonexempted property as of the date of

the filing of the bankruptcy petition.

Spain, 55 B.R. at 852; 4A Collier on

Bankruptcy §70, at 60 (14th ed. 1978);

see Flynn v. O'Dell, 281 F.2d 810 (7th

Cir. 1960) (holding that the filing of

the bankruptcy petition severed the
70
No. 1-09-0583

joint tenancy since the debtor's

interest (title) was transferred to

the trustee, distinguishing Jackson

and Van Antwerp).

The 1979 Bankruptcy Code omitted

section 70a. In its place,

Congress enacted section 541, which

provides in pertinent part as

follows:

"Sec. 541. Property of the estate

(a) The commencement of a case

*** creates an estate. Such estate

is comprised of all of the

following property, wherever
71
No. 1-09-0583

located and by whomever held:

(1) *** all legal or

equitable interests of the debto

r in

prope

rty

as of

the

comme

nceme

nt of

the

case.

" 11
72
No. 1-09-0583

U.S.C

.

§541(

a)

(1994

).

In place of the title of the debtor's

property passing to the

trustee, the debtor's legal and

equitable interests in the property

become part of the bankruptcy estate.

In support of his position that

filing a petition in bankruptcy severs

a joint tenancy, the plaintiff relies
73
No. 1-09-0583

on Tyson.

The defendants respond that decisions

of the federal courts are not binding

on this court. See SI Securities v.

Bank of Edwardsville, 362 Ill. App. 3d

925, 933, 841 N.E.2d 995 (2005).

However, this court may follow federal

decisions if it finds them persuasive.

Baker v. Jewel Food Stores, Inc., 355

Ill. App. 3d 62, 69, 823 N.E.2d 93

(2005).

In Tyson, the bankruptcy court

held that the filing of a

chapter 11 bankruptcy petition severed
74
No. 1-09-0583

the joint tenancy, relying on Lambert.7

The court in Lambert noted that, while

cases under the prior Bankruptcy Act

held that a filing in bankruptcy

severed a joint tenancy, the present

Bankruptcy Code did not explicitly

provide for the transfer of title of

the debtor's property to the

bankruptcy trustee; merely that the

trustee could administer the property

of the estate. The court found that

the legislative history provided

clarification, explaining as follows:

7
The debtor in Lambert filed a chapter 7 petition.

75
No. 1-09-0583

"'The debtor's interest in property

also includes "title" to property,

which is an interest, just as are a

possessory interest, or leasehold

interest, for example.' [Citation.]

And further, in that same report,

it is stated: 'Once the estate is

created, no interests in property

of the estate remain in the

debtor.'" Lambert, 34 B.R. at 43,

quoting S. Rep. No. 95-989, at 82-

83 (1978), reprinted in 1978

U.S.C.A.N. 5758, 5868.

While some sections of the
76
No. 1-09-0583

Bankruptcy Code appeared to

indicate that a joint tenancy survived

the filing of a bankruptcy petition,

the court in Lambert found that the

same sections supported a finding that

the joint tenancy was severed, further

explaining as follows:

"Sec[tion] 363(h) provides in

pertinent part, '... the trustee

may sell both the estate's interest

... and the interest of any co-

owner in property which the debtor

had, immediately before the

commencement of the case, an
77
No. 1-09-0583

undivided interest as a ... joint

tenant ... .' (Emphasis added.)

Likewise, Sec[tion] 522(b)(2)(B)

provides in pertinent part that a

debtor may exempt from property of

the estate '... any interest in

property in which the debtor had,

immediately before the commencement

of the case, an interest as a ...

joint tenant ... . (Emphasis

added.)" Lambert, 34 B.R. at 43,

quoting 11 U.S.C. §§363(h),

522(b)(2)(B) (1982).

Relying on Lambert, the court in
78
No. 1-09-0583

Tyson held that, by filing

his petition in bankruptcy, the

husband lost any joint tenancy

interest he may have had in real

property he owned with his wife.

Therefore, his bankruptcy estate had a

one-half interest in the real

property. Tyson, 48 B.R. at 412.

Notwithstanding their position

that federal decisions are not binding

on this court, the defendants maintain

that the

decision in Anthony demonstrates that

where state law requires
79
No. 1-09-0583

the severance of title and not just

the possibility of a change in title,

the filing of a chapter 7 bankruptcy

petition will not sever the joint

tenancy.

In Anthony, the debtor owned

property in joint tenancy with her

mother. Following the filing of the

debtor's bankruptcy petition, her

mother died. A creditor argued that

the filing of the bankruptcy petition

severed the joint tenancy, rendering

the debtor and her mother, tenants-in-

common. The creditor further argued
80
No. 1-09-0583

that the debtor "inherited" her

mother's one-half interest with the

judgment lien attached because she did

not acquire her mother's interest by

right of survivorship. The bankruptcy

court held that the filing of the

petition did not sever the joint

tenancy.

In reaching that conclusion, the

court, as did the court in Lambert,

examined the language of section

363(h) of the Bankruptcy Code under

which the trustee was given the

authority to use, sell or lease an
81
No. 1-09-0583

undivided interest in property, such

as a joint tenancy. Unlike the court

in Lambert, the court in Anthony did

not find the use of the past tense

"had" to describe the debtor's

interest in the property significant.

Instead, the court focused on the

provision that the trustee was

permitted to sell the debtor's

interest only if partition were

impractical, if the sale would produce

significantly more than its parts and

if the benefits to the estate

outweighed the detriment to the co-
82
No. 1-09-0583

owners. The court concluded as

follows:

"The language of 11 U.S.C. §363(h),

(i), and (j) does not sound as

though a joint tenancy is

automatically severed by the filing

of a bankruptcy petition as a

federal rule of bankruptcy law. It

sounds permissive, as though the

trustee may sever a joint tenancy

if the estate benefits and if the

rights of the non-debtor/co-tenant

are protected.

In this case the trustee has
83
No. 1-09-0583

not attempted to administer this

property by severing or selling the

whole. We hold that the filing of

a petition does not sever a joint

tenancy with right of survivorship,

unless the trustee actually

executes against such property by

attempting to sever or to sell the

whole in order to liquidate such

property. Pennsylvania does not

sever a joint tenancy upon the

entry of a judgment, but severs

upon alienation, such as execution.

We would go no further." Anthony,
84
No. 1-09-0583

82 B.R. at 388.

Additional support for the

defendants' position is found in

Spain. There, the bankruptcy court

maintained that the failure of the

Code to carry forward section 70a,

which transferred the title of the

debtor to the trustee was an error.

The court

in Spain found no authority in the

Code for the decisions in Panholzer

and Lambert, where the courts held

that the filing of the petition was a

conveyance that severed the joint
85
No. 1-09-0583

tenancy. The court in Spain concluded

as follows:

"The debtor does not transfer his

title to [section] 541 property of

the estate but holds his title

subject to the exercise by the

trustee of his rights to sell, use

or lease such property by

appropriation ***. The debtor

retains the full use, possession

and enjoyment jointly with the

trustee and the right to refuse to

turn over or deliver such property

in proper cases. There is no
86
No. 1-09-0583

voluntary or involuntary transfer

of property upon filing. It may

never take place at the option of

the trustee and never occurs as to

wholly exempt property. The

trustee has no title to property of

the estate until he elects to take

affirmative action and proceedings

are had or orders made." Spain, 55

B.R. at 854.

As did the court in Anthony, the court

relied on section 363(h) to find that

no transfer took place by the filing

of the petition
87
No. 1-09-0583

and that the trustee's rights were no

better than those of a

creditor who proceeds to levy and

sale. Spain, 55 B.R. at 855.

In summary, the Bankruptcy Code

provides that the debtor's legal and

equitable interests in property are

transferred to the bankruptcy estate.

However, under Illinois law, more than

a transfer of the debtor's interest in

property is required to sever the

joint tenancy. Illinois law requires

a conveyance, which does not occur

until the trustee sells or otherwise
88
No. 1-09-0583

disposes of the property and title

passes. Therefore, in Illinois, the

filing of a bankruptcy petition does

not sever a joint tenancy.

We conclude that the filing of

Ms. Koshiyama's bankruptcy petition

did not sever the joint tenancy. The

October 24, 2005, recording of the

court order reviving the judgment

created a valid lien against Mr.

Jolly's interest in the Harbor Drive

Unit. But, upon his death, his

interest in the property ceased to

exist and with it the plaintiff's
89
No. 1-09-0583

judgment lien. Harms, 105 Ill. 2d at

224. Therefore, the plaintiff does

not have a judgment lien on the Harbor

Drive Unit, enforceable against the

Jolly estate.

II. Whether the Decision in Maniez

Should be Overruled

A. Law of the Case Doctrine

Under the law of the case

doctrine, parties may not relitigate

issues previously decided in the same

case. Long v. Elborno, 397 Ill. App.

3d 982, 989, 922 N.E.2d 555 (2010).

Questions of law that were decided on
90
No. 1-09-0583

a previous appeal are binding on the

trial court as well as on the

appellate court in subsequent appeals.

Long, 397 Ill. App. 3d at 989. The

purpose of the doctrine is

"to protect settled expectations of

the parties, ensure uniformity of

decisions, maintain consistency

during the course of a single case,

effectuate proper administration of

justice, and bring litigation to an

end. [Citation.] An additional

concern addressed by the law of the

case doctrine is the maintenance of
91
No. 1-09-0583

the prestige of the courts, for the

reason that if an appellate court

issues contrary opinions on the

same issue in the same case, its

prestige is undercut. [Citation.]"

Emerson Electric Co. v. Aetna

Casualty & Surety Co., 352 Ill.

App. 3d 399, 417, 815 N.E.2d 924

(2004).

There are two recognized

exceptions to the law of the case

doctrine: (1) when a higher court

makes a contrary ruling on the same

issue subsequent to the lower court's
92
No. 1-09-0583

decision, and (2) when a reviewing

court finds that its prior decision

was palpably erroneous. Long, 397

Ill. App. 3d at 989. The plaintiff

asserts that the law of the case

doctrine does not preclude

reconsideration where the facts before

the court have changed or error or

injustice is manifest. See Aardvark

Art, Inc. v. Lehigh/Steck-Warlick,

Inc., 284 Ill. App. 3d 627, 633, 627

N.E.2d 1271 (1996).

B. Discussion

The plaintiff acknowledges that
93
No. 1-09-0583

this court's prior opinion in Maniez

constitutes the law of the case.

However, he maintains that this court

may reconsider its decision under the

exceptions to the law of the case

doctrine.

1. The Palpably Erroneous Exception

The defendants maintain that the

palpably erroneous exception applies

only where the appellate court has

remanded the case for a new trial on

all issues. See Alwin v. Village of

Wheeling, 371 Ill. App. 3d 898, 911,

864 N.E.2d 897 (2007). However, in
94
No. 1-09-0583

People v. Sutton, 375 Ill. App. 3d

889, 894, 874 N.E.2d 212 (2007), this

court referred to the palpably

erroneous exception without the new

trial qualifier. See Sutton, 375 Ill.

App. 3d at 894. Recently, in People

v. Jacobazzi, 398 Ill. App. 3d 890

(2009), the Second District Appellate

Court reviewed the relevant case law

and concluded that the new trial

qualifier was not a definitive part of

the palpably erroneous exception.

Jacobazzi, 398 Ill. App. 3d at 931.

Because its prior decision "was
95
No. 1-09-0583

palpably erroneous and worked a

manifest injustice," the court chose

to revisit it. See Jacobazzi, 398

Ill. App. 3d at 932.

In arguing that the decision in

Maniez was palpably

erroneous, the plaintiff maintains

that this court should have

determined that the order reviving the

judgment and the recording of the

order with the correct date of the

judgment acted to reform the original

judgment memorandum.8 The plaintiff's

8
The plaintiff's reformation argument referred to the 2004

96
No. 1-09-0583

reliance on L. E. Myers Co. v. Harbor

Insurance Co., 67 Ill. App. 3d 496,

384 N.E.2d 1340 (1978), is misplaced.

In that case, the court held that a

third party was bound by the voluntary

reformation of an insurance policy to

correct a mutual mistake by the

contracting parties. The court

determined that the third party's lack

of knowledge of the mistake was not

determinative because there was no

memorandum of judgment. As we have found that the 2004 memorandum

did not create a valid judgment lien, we will consider the

October 24, 2005, order, which did create a valid lien, in

connection with the reformation argument.

97
No. 1-09-0583

reliance on the mistake. L. E. Myers

Co., 67 Ill. App. 3d at 504. In the

present case, the parties never agreed

that there was a mutual mistake, and

the plaintiff never sought reformation

of the 1997 memorandum.

The plaintiff then maintains that

this court's decision in Maniez is

erroneous because it contradicted the

holding in Dillman v. Nadelhoffer, 23

Ill App. 168 (1887). In that case,

the appellate court held that a

judgment debtor could not defeat the

execution of a judgment by showing
98
No. 1-09-0583

that the judgment date was incorrect.

Dillman was decided prior to 1935 and

therefore lacks precedential

authority. See Bryson v. News America

Publications, Inc., 174 Ill. 2d 77,

95, 672 N.E.2d 1207 (1996) (appellate

decisions issued prior to 1935 have no

binding authority). Moreover, the

plaintiff's reliance on Dillman is

misplaced. In the present case, there

was no issue as to the correctness of

the date of the plaintiff's judgment

and no question that the plaintiff

could execute on his judgment, which
99
No. 1-09-0583

were the issues in Dillman. Dillman

did not address whether an incorrect

judgment date in the recorded

memorandum of judgment created a lien

on real property.

The plaintiff does not address or

distinguish the cases this court

relied on in reaching its decision in

Maniez. While maintaining that it was

error to allow a scrivener's error to

defeat the lien in this case, the

plaintiff ignores the basis for this

court's decision: that the recording

of the memorandum of judgment with an
100
No. 1-09-0583

incorrect judgment date did not

satisfy the strict compliance standard

required in complying with section 12-

101. Maniez, 383 Ill. App. 3d at 42.

Moreover, this court explained why the

scrivener's error argument did not aid

the plaintiff. See Maniez, 383 Ill.

App. 3d at 44 ("Even if we were to

agree with the plaintiff that the

inclusion of the incorrect date in the

memorandum of judgment was a

scrivener's error, we must strictly

adhere to the requirements of section

12-101"). Therefore, the plaintiff
101
No. 1-09-0583

has failed to establish that this

court's decision in Maniez was

palpably erroneous.

2. Best Interest of Society and

Manifest Injustice

As an alternative ground for

overturning this court's decision in

Maniez, the plaintiff contends that

the decision was contrary to the best

interests of society and resulted in a

manifest injustice in this case,

citing Devines v. Maier, 728 F.2d 876

(7th Cir. 1984). In that case, the

court held that the law of the case
102
No. 1-09-0583

doctrine should not be applied "'where

the law as announced is clearly

erroneous, and establishes a practice

which is contrary to the best

interests of society, and works a

manifest injustice in a particular

case.'" Devines, 728 F.2d at 880,

quoting United States v. Habig, 474

F.2d 57, 60 (7th Cir. 1973).

As we noted previously, federal

decisions are not binding on

this court. The two Illinois cases

cited by the plaintiff do not

reference consideration of the "best
103
No. 1-09-0583

interest of society." See People v.

Williams, 138 Ill. 2d 377, 391-92, 563

N.E.2d 385 (1990); Aardvark Art, Inc.,

284 Ill. App. 3d at 633; see also

Jacobazzi, 398 Ill. App. 3d at 931.

The plaintiff's discussion of the

reformation of judgments under the

mortgage foreclosure law fails to

consider that, because the

requirements of section 12-101 were

not strictly adhered to, no lien was

created in this case. Therefore,

there was nothing to be reformed or

foreclosed upon. In any event, we
104
No. 1-09-0583

strongly disagree with the plaintiff

that the decision in Maniez was

contrary to the best interests of

society. As we explained in Maniez,

"the purpose of recording the

memorandum of judgment is not just to

alert the debtor that a judgment had

been entered but prospective

purchasers as well." Maniez, 383 Ill.

App. 3d at 43. Strict adherence to

section 12-101 assures that the

public, as well as the judgment

debtor, has reliable information as to

existence of a lien on real property.
105
No. 1-09-0583

Finally, the plaintiff argues

that the decision in Maniez resulted

in a manifest injustice to him. He

incorporates his prior arguments on

judicial and equitable estoppel. As

neither

judicial nor equitable estoppel barred

Ms. Koshiyama from

asserting the invalidity of the

plaintiff's lien, those

arguments do not establish that an

injustice occurred.

The plaintiff also argues that it

would be a manifest
106
No. 1-09-0583

injustice to allow Ms. Koshiyama, as

the surviving joint tenant,

to benefit by receiving the property

free from the plaintiff's

judgment lien because of a scrivener's

error. As we explained in rejecting

the plaintiff's palpably erroneous

argument, this was not a case of

scrivener's error. Moreover, if the

plaintiff believed that he had a valid

judgment lien on the Harbor Drive Unit

property, he fails to explain why he

waited almost a year after the close

of Ms. Koshiyama's bankruptcy case to
107
No. 1-09-0583

seek to foreclose the judgment lien.

Finally, the plaintiff is not without

a remedy for inaccuracy of the

judgment date in the memorandums. We

conclude that the plaintiff has failed

to establish that the decision in

Maniez resulted in a manifest

injustice under the circumstances of

this case.

CONCLUSION

As the plaintiff no longer had a

valid judgment lien against the Harbor

Drive Unit, the circuit court's

dismissal of the complaint to
108
No. 1-09-0583

foreclose the judgment lien was

proper.

The judgment of the circuit court

of Cook County is affirmed.

Affirmed.

GARCIA and LAMPKIN, JJ., concur.

109
No. 1-09-0583

110
No. 1-09-0583

111
No. 1-09-0583

112
No. 1-09-0583

113