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Appellate Court Date: 2017.10.02
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Reverse Mortgage Solutions, Inc. v. Rahman, 2017 IL App (1st) 161035
Appellate Court REVERSE MORTGAGE SOLUTIONS, INC., Plaintiff-Appellant, v.
Caption RASHEEDA NAJII ABDUR RAHMAN, Individually; UNKNOWN
HEIRS and LEGATEES OF HARVEY T. COLLINS, if Any;
UNKNOWN OWNERS and NON RECORD CLAIMANTS;
WILLIAM BUTCHER, Special Representative of Deceased;
GERALD NORDGREN, Special Representative of the ESTATE OF
ROSALIND WYATT COLLINS, Deceased, Defendants-Appellees.
District & No. First District, Second Division
Docket Nos. 1-16-1035, 1-16-1069 cons.
Filed June 6, 2017
Decision Under Appeal from the Circuit Court of Cook County, No. 12-CH-35163; the
Review Hon. Pamela Myerson, Judge, presiding.
Judgment Reversed and remanded.
Counsel on James A. Roth, of Fidelity National Law Group, of Chicago, for
Appeal appellant.
Timothy B. Newitt, of Johnson, Westra, Broecker, Whittaker &
Newitt, P.C., of Carol Stream, for appellees.
Panel PRESIDING JUSTICE HYMAN delivered the judgment of the court,
with opinion.
Justices Pierce and Mason concurred in the judgment and opinion.
OPINION
¶1 In 1961, Harvey and Rosalind Collins bought a property in Chicago. In 1979, Harvey
signed a quitclaim deed, conveying the property to Rosalind. Rosalind died, and Harvey then
signed a mortgage, which eventually came into the hands of Reverse Mortgage Solutions
(RMS). After Harvey’s death, RMS tried to foreclose on the property, but the Collins’s
daughter, Rasheeda Rahman, fought the foreclosure.
¶2 We find that the 1979 quitclaim deed contains a sufficient description of the property to
convey it from Harvey to Rosalind. But, after Rosalind died intestate, Harvey inherited some
portion of the property through Rosalind’s estate, which he was able to convey through the
mortgage. We remand for further proceedings on RMS’s complaint. We also affirm the trial
court’s denial of Rahman’s request for sanctions against RMS.
¶3 BACKGROUND
¶4 In 1961, Harvey and Rosalind Collins, a married couple, purchased property at 1486 East
56th Street, Chicago, as joint tenants. Eighteen years later, in September 1979, Harvey
executed a quitclaim deed on the property to Rosalind. The quitclaim deed contains a
description of the property with skimpy detail, but notes that Rosalind resides at 1486 E. 56th
Street. At the bottom of the quitclaim deed appears the “address of property” as 1486 E. 56th
Street (while also stating that “the above address is for statistical purposes only and is not a part
of this deed”).
¶5 Rosalind died in May 2003. Harvey continued to reside at the property.
¶6 In 2006, Harvey executed a “home keeper” mortgage with All America Reverse Mortgage.
Harvey received $323,927.68 in exchange for a mortgage on the property. The mortgage note
attached and incorporated a legal description of the property. The mortgage was eventually
transferred to Reverse Mortgage Solutions. In July 2011, Harvey died.
¶7 RMS filed a complaint to foreclose on the property. The complaint also included a count to
reform the reverse mortgage Harvey had signed in 2006 because it contained the wrong legal
description. The complaint stated that the reformed mortgage should use the property
description from the 1979 quitclaim deed (which was attached to the foreclosure complaint).
¶8 Harvey and Rosalind’s daughter, Rasheeda Rahman, moved to dismiss the foreclosure
complaint. Rahman alleged that, due to the 1979 quitclaim deed, Harvey did not have title to
the property to convey in the 2006 mortgage, and, accordingly, RMS lacked standing to
foreclose.
¶9 RMS then filed an amended complaint for foreclosure and reformation and moved to quiet
title, alleging that the 1979 quitclaim deed was a nullity because it did not sufficiently describe
the property; thereafter, Harvey inherited the entire property after Rosalind’s death. RMS
included a count for an equitable lien, alleging that Harvey had represented that he had full title
when he acquired the mortgage and RMS should have first claim on the property.
¶ 10 Again Rahman moved to dismiss under section 2-619(a)(9) of the Code of Civil Procedure
(735 ILCS 5/2-619(a)(9) (West 2014)), alleging that Harvey lacked full title to the property
when he acquired the mortgage due to the 1979 deed. RMS replied by asserting the invalidity
of the 1979 deed and arguing that, even if it was valid, Harvey still had a mortgageable interest
and RMS was entitled to an equitable lien. The trial court granted Rahman’s motion to dismiss,
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in part holding that the quitclaim deed’s description, though incomplete, was legally sufficient.
The trial court also held that RMS had alleged only theories, not facts, as to how Harvey had
regained interest in the property. The trial court noted that probate law would not have
automatically vested interest in real property to Rosalind’s heirs, and if Harvey did not have an
interest in the property, then he could not have promised that interest in the mortgage. The trial
court dismissed the claim for an equitable lien with prejudice, and the counts to foreclose and
quiet title without prejudice, while the reformation claim remained pending.
¶ 11 RMS filed a third amended complaint to quiet title and for foreclosure, reformation, a
declaratory judgment, unjust enrichment, constructive trust, equitable lien, and accounting.
Rahman moved to dismiss the quiet title, foreclosure, reformation, and declaratory judgment
counts, and answered the other counts. In responding, RMS included an affidavit from Richard
Bales, a lawyer for a title company. Bales stated that he had reviewed the relevant documents
and, based on his review, “the 1979 deed conveyance is ambiguous on its face.” The trial court
dismissed the quiet title, foreclosure, reformation, and declaratory judgment counts with
prejudice. The trial court held that the 1979 quitclaim deed was effective and that the Bales
affidavit was “self-serving.” The court also held that RMS had not alleged enough facts
showing that Harvey had regained an interest in the property.
¶ 12 Rahman petitioned for sanctions under Illinois Supreme Court Rule 137 (Ill. S. Ct. R. 137
(eff. July 1, 2013)), alleging that RMS’s complaints had not been well grounded in fact or law;
the trial court denied the petition. RMS eventually voluntarily dismissed the remaining counts.
¶ 13 Rahman filed a timely notice of appeal as to the trial court’s denial of sanctions; RMS filed
a timely notice of appeal as to the dismissal of its claims.
¶ 14 STANDARD OF REVIEW
¶ 15 We review the trial court’s dismissal of a complaint under section 2-619 de novo. Evanston
Insurance Co. v. Riseborough, 2014 IL 114271, ¶ 13. A section 2-619 motion admits the legal
sufficiency of the complaint but argues that some defense or affirmative matter defeats the
claim. Ball v. County of Cook, 385 Ill. App. 3d 103, 107 (2008).
¶ 16 We review the trial court’s denial of a motion for sanctions for an abuse of discretion. Lake
Environmental, Inc. v. Arnold, 2015 IL 118110, ¶ 16.
¶ 17 ANALYSIS
¶ 18 The Quitclaim Deed Was Legally Sufficient.
¶ 19 RMS first asserts that due to an incomplete legal description of the property, the 1979
quitclaim deed was invalid.
¶ 20 A quitclaim deed must include a description of the real estate conveyed. 765 ILCS 5/10
(West 2014). We presume that, in executing the deed, the grantor intends to convey the
property he or she owns. City of Virginia v. Mitchell, 2013 IL App (4th) 120629, ¶ 32. If the
land cannot be located from the description in the deed, the deed is void for uncertainty. Id. The
purpose of this description is to identify the deed’s subject matter, and the description is
sufficient if it allows a competent surveyor to identify it with reasonable certainty. Brunotte v.
DeWitt, 360 Ill. 518, 528 (1935). Further, a deed will not be declared void for uncertainty “if it
is possible, by any reasonable rules of construction, to ascertain from the description, aided by
extrinsic evidence, what property it is intended to convey.” Id.
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¶ 21 Though the description in the 1979 quitclaim deed is truncated, it is not inaccurate. Instead
of the full description used in the 1961 deed, it omits several lines. This is a harder case than
City of Virginia, where the deed referred to the property’s address as on a “road” instead of a
“street” and was not void for an insufficient description. 2013 IL App (4th) 120629, ¶ 33. But,
like in City of Virginia, no one disputes that the property existed and Harvey owned it (with
Rosalind) when he executed the deed in 1979. In light of the presumption that Harvey intended
to convey the property he owned (and the extrinsic evidence of the 1961 deed containing the
full legal description of the property), we find that the quitclaim deed incorporates a sufficient
legal description and is not void for uncertainty.
¶ 22 That Harvey continued to reside at the property after 1979 does not change our conclusion.
Since he and Rosalind remained married until her death, it is not probative of his intent in the
quitclaim deed that he lived with his wife and stayed in the home after she died. We also are not
convinced that Harvey’s representation to the mortgage company that he owned the property in
fee simple means that he had not intended to execute a quitclaim deed almost 30 years earlier.
It seems far more likely that Harvey, a layman, assumed he had inherited the property outright
after his wife’s death.
¶ 23 RMS relies heavily on the affidavit of an attorney for a title company, Richard Bales. The
affidavit, however, contributes nothing to the factual record. Bales has no knowledge about the
making the 1979 deed or the 2006 mortgage that would help us ascertain Harvey’s intent in
executing either document. And, Bales’s legal opinion that the 1979 deed is ambiguous adds
no substance to the analysis, as the trial court recognized.
¶ 24 Harvey’s Inheritance
¶ 25 Since the 1979 quitclaim deed was valid, Harvey successfully conveyed his interest in the
property to Rosalind, and she owned the entire property in her lifetime. The next question is,
what became of the property after Rosalind’s death?
¶ 26 RMS contends that Rosalind died intestate (shown by no will having been filed or a probate
estate opened after her death). Under the laws of intestacy, Rosalind’s real and personal estate
would be divided equally between Harvey and Rahman after payment of all “just claims”
against Rosalind’s estate. 755 ILCS 5/2-1(a) (West 2014). So, RMS argues, Harvey owned a
half-interest and could enter into a valid mortgage against that interest.
¶ 27 In both the trial court and her brief, Rahman prevaricates on the question of whether her
mother died intestate. She speculates that Rosalind may have had a will that excluded Harvey
from inheriting any interest in the property. She then goes on to chastise RMS for arguing that
Rosalind was intestate “without any information or belief.” This hedging is not well taken. As
one of Rosalind’s heirs, Rahman certainly is in a good position to know whether her mother
had a will, and certainly has an interest to know. Further, a special representative appointed to
represent Rosalind’s estate reported in 2014 that it appeared no will was filed after Rosalind
died, and no probate estate was opened. If Rahman had contrary information, she did not
provide it. RMS did have information and belief to argue Rosalind’s intestacy. RMS did not
need to do any more to prove a negative (the non-existence of a will).
¶ 28 Rahman’s equivocation seeks to avoid cases that let Harvey mortgage any portion of
property he inherits. A cotenant can mortgage his or her interest in a jointly held property.
Cadle Co. II v. Stauffenberg, 221 Ill. App. 3d 267, 269 (1991). And if a cotenant who owns less
than the entire interest attempts to mortgage the whole property, the mortgage stays in force for
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the actual interest of the mortgagor. Id.; see also South Side Bank & Trust Co. v. Sherlock
Homes, Inc., 6 Ill. App. 2d 138, 141 (1955) (though mortgage purported to grant greater estate
than mortgagor actually owned, conveyance was void only as to excess). “Where part of a real
estate sales contract can be performed, that part will be enforced even where another part of the
contract is unenforceable or where part of the conveyance agreement fails.” Harris v. Adame,
2015 IL App (1st) 123306, ¶ 34. Rahman only speculates that the mortgage company would
not have entered into the mortgage with Harvey had it known he owned less than the whole.
¶ 29 RMS did allege sufficient facts that Rosalind died intestate and that Harvey had inherited
some portion of the property. We acknowledge that its pleadings, done in the alternative, were
not terribly helpful on this point, and until Rosalind’s estate is sorted out, we will not know
how much he inherited. But the probate proceedings of Rosalind’s estate have never been in
RMS’s control. The fact that no one opened an estate immediately after Rosalind’s death is not
RMS’s fault.
¶ 30 We do not know how much of that property Harvey would have inherited, and thus we
cannot say how much of it Harvey could have mortgaged. (Other things we do not know
include whether Harvey realized that he did not own the entire property, whether Rahman
knew that her father had entered into the mortgage, and when the mortgage company
discovered the 1979 quitclaim deed.) These are facts that require discovery. Dismissal of the
case under 2-619 was error, and we remand for further proceedings on RMS’s claims.
¶ 31 Rule 137 Sanctions
¶ 32 Rahman filed a cross-appeal, asking us to reverse the trial court’s denial of her motion for
sanctions under Rule 137. Rahman alleged that RMS’s complaints were meritless and reflected
a failure to research the facts or law before filing. She now alleges that the trial court should
have required RMS to answer her petition, should have held a hearing on the petition’s
allegations, and should have given a rationale for its decision.
¶ 33 Rule 137 states that an attorney’s signature on a pleading indicates that to the best of the
attorney’s knowledge “after reasonable inquiry,” the pleading is “well grounded in fact and is
warranted by existing law.” Ill. S. Ct. R. 137(a) (eff. July 1, 2013). If the trial court finds
otherwise, it may impose “an appropriate sanction” on the offending party, including attorney
fees. Id. The rule requires that, when a trial court imposes sanctions, it must provide a written
explanation containing specific reasons for the sanctions. Ill. S. Ct. R. 137(d) (eff. July 1,
2013). As to a denial of a motion for sanctions, the rule does not require an explanation. Lake
Environmental, 2015 IL 118110, ¶ 14. Likewise, that rule does not state that a trial court must
require the opposing party to answer the petition or hold a hearing, and we will not read these
requirements into the rule. Dowd & Dowd, Ltd. v. Gleason, 181 Ill. 2d 460, 487 (1998)
(“[b]ecause Rule 137 is penal in nature, it will be strictly construed”). As Lake Environmental
points out, “[i]f the drafters of the rule intended to impose such a requirement, they would have
done so with specific language to that effect.” 2015 IL 118110, ¶ 14. Rahman’s attorneys cite
Lake Environmental for the abuse-of-discretion standard, but apparently failed to read further.
¶ 34 We find that the trial court did not abuse its discretion in denying Rule 137 sanctions.
Contrary to Rahman’s arguments, this was by no means an open-and-shut case, either factually
or legally. Cf. Nelson v. Chicago Park District, 408 Ill. App. 3d 53, 67-68 (2011) (upholding
trial court’s imposition of sanctions where attorneys brought second action that was
res judicata of first action). RMS’s multiple complaints are certainly not a model of efficiency,
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but neither are they an abuse of the judicial process, or “vexatious and harassing.” Dismuke v.
Rand Cook Auto Sales, Inc., 378 Ill. App. 3d 214, 217 (2007).
¶ 35 We reverse the trial court’s dismissal of RMS’s third amended complaint but affirm its
denial of Rahman’s request for sanctions.
¶ 36 Reversed and remanded.
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