Joint Mortgage Debt Means No Tenancy By Entirety Protection for Homeowners

The Illinois First District recently affirmed a mortgage foreclosure summary judgment for a plaintiff mortgage lender in a case involving the protection given to tenancy by the entirety (TBE) property.

In Marquette Bank v. Heartland Bank and Trust, 2015 IL App (1st) 142627, the main issue was whether a marital home was protected from foreclosure where it was owned by a land trust, the beneficiaries of which were a husband and wife; each owning beneficial interests TBE.

The defendants argued that since their home was owned by a land trust and they were the TBE beneficial owners of that land trust, the plaintiff could not foreclose its mortgage.

Affirming summary judgment, the appeals court examined the interplay between land trust law and how TBE property impacts judgment creditors’ rights.

The Illinois Joint Tenancy Act (765 ILCS 1005/1c) allows land trust beneficiaries to own their interests TBE and Code Section 12-112 (735 ILCS 5/12-112) provides that a TBE land trust beneficial interest “shall not be liable to be sold upon judgment entered….against only one of the tenants, except if the property was transferred into [TBE] 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.”

TBE ownership protects marital residence property from a foreclosing creditor of only one spouse.  In TBE ownership, a husband and wife are considered a single unit – they each own 100% of the home – and the judgment creditors of one spouse normally can’t enforce a money judgment against the other spouse by forcing the home’s sale.

An exception to this rule is where property is conveyed into TBE solely to evade one spouse’s debt.  Another limitation on TBE protection is where both spouses are jointly liable on a debt.  In the joint debt setting, a judgment against one spouse will attach to the marital home and can be foreclosed on by the judgment creditor.

Code Section 12-112 provides that where property is held in a land trust and the trust’s beneficial owners are husband and wife, a creditor of only one of them can’t sell the other spouse’s beneficial land trust interest. 735 ILCS 5/12-112.

The Court rejected the defendants argument that as TBE land trust beneficiaries of the marital home, the spouse defendants were immune from foreclosure.  It noted that both spouses signed letters of direction authorizing the land trustee (owner) to mortgage the property, the mortgage documents allowed the plaintiff to foreclose in the event of default and empowered the lender to sell all or any part of the property. (¶¶ 16-18)

Summary Quick-Hits:

  • TBE property ownership protects an innocent spouse by saving the marital home from a judgment creditor’s foreclosure suit where only one spouse is liable on a debt;
  • A land trust beneficial interest is considered personal property and can be jointly owned in tenancy by the entirety;
  • Where spouses are jointly (both) liable on an underlying debt, TBE property can be sold to satisfy the joint debt.

 

Denial of Motion for Judgment in Citation Proceedings Not Final – Appeal Dismissed (IL 1st Dist.)

While there are nuances and some exceptions to it, the general rule is that only “final” orders are appealable.  If a trial court’s order is final, the losing party can appeal it.  If the order isn’t final – meaning, the case is still going on – the losing party can’t appeal it.  Whether an order is final is often overlooked during the heat of trial battle.  However, as today’s feature case illustrates, the failure to appreciate the final versus non-final order distinction can doom an appeal as premature.

National Life Real Estate Holdings, LLC v. International Bank of Chicago, 2016 IL App (1st) 151446, the plaintiff judgment creditor won a $3MM-plus judgment against an individual and two LLC defendants. In trying to enforce the money judgment, the plaintiff issued a third-party citation to IBC, the respondent and defendant.

Upon learning that after IBC disbursed $3.5MM in loan funds to two businesses associated with the individual judgment debtor after it received the third-party citation, the plaintiff moved for judgment against IBC on the basis that it violated its obligations as a third-party citation respondent (to not transfer any of the judgment debtor’s property).

The circuit court denied the plaintiff’s motion.  It found that since the loan funds disbursed by IBC were not paid to and didn’t belong to the judgment debtor, IBC did not flout the citation’s “restraining provision” (which prevents a citation respondent from disposing of property belonging to a judgment debtor).  Affirming, the appeals court discussed the pertinent rules governing when orders entered in post-judgment proceedings can be appealed.

  • An appeal can only be taken from a “final order”‘
  • An order is final where it disposes of the rights of the parties, either upon the entire lawsuit or upon a separate and definite part of it;
  • A final order entered in a post-judgment proceeding is appealable, too;
  • A post-judgment order is deemed final when the judgment creditor is in a position to collect against the judgment debtor or third-party or the judgment creditor is prevented from doing so by court order;
  • A post-judgment order that does not (a) leave a creditor in position to collect a judgment or that (b) conclusively bars the creditor from collecting, is not final for purposes of appeal. 

(¶10); See 735 ILCS 5/2-1402; Ill. Sup. Ct. R. 304(b)(4).

The trial court’s order denying the judgment creditor’s motion for judgment wasn’t final as it didn’t end the lawsuit.  The appeals court noted the case is still pending and the judgment creditor may still have valid claims against IBC.  Since the trial court’s denial of the judgment creditor’s motion didn’t foreclose it from future collection efforts, the denial of the motion wasn’t a final and appealable order.  As a consequence, the creditor’s appeal was premature and properly dismissed.

Afterwords:

In hindsight, the plaintiff should have requested a Rule 304(a) finding that the order denying the motion for judgment was appealable.  While the court could have denied the motion, it would have at least give the creditor a shot at having an appeals court review the trial court’s order.

Going forward, the plaintiff should issue third-party citations to the loan recipients (the two business entities) and see if it can link the individual debtor to those businesses.  The plaintiff should also issue discovery to IBC to obtain specifics concerning the post-citation loan.  This information could give the plaintiff ammunition for future litigation against IBC relating to the loans.

 

LLC Stopped From Selling Member’s Residence In Violation of Prior Charging Order – Utah Federal Court

Q: Can A Court Stop An LLC That Pays the Monthly Mortgage of One of Its Members From Selling that Member’s Home Where A Charging Order Has Issued Against the LLC to Enforce a Money Judgment Against the LLC Member?

A: Yes.

Q2: How So?

A2: By selling the member’s property and paying off the member’s mortgage with the sale proceeds, the LLC is effectively “paying the member” to the exclusion of the plaintiff judgment creditor.

Source: Earthgrains Baking Companies, Inc. v. Sycamore Family Bakery, Inc., et al, USDC Utah 2015 (https://casetext.com/case/earthgrains-baking-cos-v-sycamore-family-bakery-inc-3)

In this case, the plaintiff won a multi-million dollar money judgment against a corporate and individual defendant in a trademark dispute.  The plaintiff then secured a charging order against a LLC of which the individual defendant was a 48% member.  When the LLC failed to respond to the charging order, the plaintiff moved for an order of contempt against the LLC and sought to stop the LLC from selling the defendant’s home.

The court granted the contempt motion.  First, the court found that it had jurisdiction over the LLC.  The LLC argued that Utah lacked jurisdiction over it since the LLC was formed in Nevada.  The LLC claimed that under the “internal affairs” doctrine, the state of the LLC’s formation – Nevada – governs legal matters concerning the LLC.

Disagreeing, the court noted that a LLC’s internal affairs are limited only to “matters peculiar to the relationships among or between the corporation and its current officers, directors, and shareholders.”  The internal affairs doctrine does not apply to claims of third party creditors.  Here, since the plaintiff was a creditor of the LLC’s member, this was not a dispute between LLC and member.  As a result, the internal affairs rule didn’t apply and the Utah court had jurisdiction over the LLC since a LLC member lived in Utah.  (See Cosgrove v. Bartolotta, 150 F.3d 729, 731 (7th Cir. 1998)).

The Charging Order required the LLC to pay any distribution that would normally go to the member directly to the plaintiff until the money judgment was satisfied.  The Charging Order specifically mentions transfers characterized or designated as payment for defendant’s “loans,” among other things.

The LLC was making monthly mortgage payments on the member’s home and listed the home for sale in the amount of $4M.  Plaintiff wanted to prevent the sale since there was a prior $2M mortgage on the home.

In blocking the sale, the court found that if the LLC sold the member’s home and paid off the member’s mortgage lender with the proceeds, this would violate the Charging Order since it would constitute an indirect payment to the member.  The court deemed any payoff of the member’s mortgage a “distribution” (a direct or indirect transfer of money or property from LLC to member) under the Utah’s LLC Act. (Utah Code Ann. § 48-2c-102(5)(a)).

Since the Charging Order provided that any loan payments involving the member were to be paid to the plaintiff until the judgment is satisfied, the court found that to allow the LLC to sell the property and disburse the proceeds to a third party (the lender) would harm the plaintiff in its ability to satisfy the judgment.

Afterwords:

An interesting case that discusses the intricacies of charging orders and the thorny questions that arise when trying to figure out where to sue an LLC that has contacts in several states.  The case portrays a court willing to give an expansive interpretation of what constitutes an indirect distribution from an LLC to its member. 

Earthgrains also reflects a court endeavoring to protect a creditor’s judgment rights where an LLC and its member appear to be engaging in misdirection (if not outright deception) in order to elude the creditor.

[A special thanks to attorney and Forbes contributor Jay Adkisson for alerting me to this case (http://www.forbes.com/sites/jayadkisson/)]