Summary
The Illinois Appellate Court affirmed dismissal of the plaintiffs’ petition seeking a judicial sale of real property to satisfy a judgment lien. The court held that the lien expired when the plaintiffs failed to revive the judgment and record a memorandum of revival within the statutory seven-year period under 735 ILCS 5/12-101. Filing the lawsuit and later reviving and recording the judgment did not create an equitable lien or relate back to preserve the expired lien against subsequent purchasers.
Topics
Practice areas
Questions Presented
- Whether filing and serving a petition for judicial sale before expiration of the seven-year judgment-lien period created an equitable lien or otherwise preserved the statutory lien against the property.
- Whether the plaintiffs' later revival of the judgment and filing of a memorandum of revival related back to the filing of the lawsuit to preserve the lien against the property purchased by the Kantowskis.
- Whether the circuit court properly dismissed the petition under section 2-619 of the Code of Civil Procedure.
Holdings
- Filing and serving the petition did not substitute for strict compliance with section 12-101. Because plaintiffs did not revive the judgment and file a memorandum of the order of revival before the original lien expired, the judgment lien against the subject property lapsed.
- Plaintiffs did not acquire an equitable lien merely by filing and serving the petition for judicial sale, and the circuit court properly refused to order a judicial sale.
- The May 2009 revival and June 2009 recording did not relate back to the February 2009 filing of the lawsuit and therefore did not preserve the lapsed lien against the subject property.
Key quotations
“Therefore, if the judgment creditor fails to properly revive the judgment and file a memorandum of the order of revival prior to the expiration of the lien, the lien lapses.” (6)
“Thus, for the foregoing reasons, we conclude that while the Kantowskis purchased the subject property subject to the judgment against Pytlewski, the plaintiffs' lien on the subject property lapsed because they failed to strictly comply with the requirements of section 12--101 (735 ILCS 5/12--101 (West 2008)).” (11)
Factual background
Plaintiffs obtained a February 27, 2002, judgment against Pytlewski for attorney fees and past-due child support and recorded memoranda of judgment against his Lockport, Illinois, property that same day. Pytlewski sold the property to James and Donald Kantowski in July 2008. Plaintiffs filed a petition for judicial sale on February 17, 2009, and served the Kantowskis on February 26, 2009, but did not revive the judgment or record a memorandum of revival before the lien expired on February 27, 2009. They later revived and recorded the judgment in May and June 2009.
Procedural history
Barth and Adler obtained a 2002 judgment against Gregory Pytlewski and recorded memoranda of judgment creating a lien against his real property. Pytlewski sold the property to the Kantowskis in July 2008. Plaintiffs filed a petition for judicial sale on February 17, 2009, and served the Kantowskis one day before the seven-year lien period expired, but did not revive the judgment or record a memorandum of revival until May and June 2009. The circuit court dismissed the petition under section 2-619 of the Code of Civil Procedure and denied reconsideration; the appellate court affirmed.