                                                                            THIRD DIVISION
                                                                            October 25, 2006




No. 1-06-0609


MONICA M. GAYTON,                                            )   Appeal from the
                                                             )   Circuit Court of
                       Plaintiff-Appellee,                   )   Cook County
                                                             )
v.                                                           )
                                                             )   04 CH 04550
                                                             )
LOUIS E. KOVANDA,                                            )
                                                             )   Honorable
                       Defendant-Appellant.                  )   Philip L. Bronstein,
                                                             )   Judge Presiding.
                                                             )




          JUSTICE KARNEZIS delivered the opinion of the court:

          Plaintiff Monica Gayton filed suit against defendant Louis Kovanda to quiet title.

Kovanda filed a counterclaim alleging that Gayton violated the Illinois Uniform

Fraudulent Transfer Act (740 ILCS 160/1 et seq. (West 2002)) (Act). Gayton then filed

a motion for summary judgment on Kovanda’s counterclaim, which was granted.

Kovanda now appeals from the court’s order granting summary judgment in favor of

Gayton and argues summary judgment was improper.             For the following reasons, we

affirm.



                                         BACKGROUND
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       The following facts are undisputed. Monica and Joseph Gayton, husband and

wife, held title to the property commonly known as 3524 Riverside Drive, Wilmette,

Illinois (hereinafter the property), as joint tenants with rights of survivorship. On

February 2, 2001, Joseph transferred his interest in the property via a quitclaim deed to

his wife Monica.

       Louis Kovanda was a creditor of Joseph Gayton and had a judgment of

$414,000, plus court costs, entered in his favor against Joseph Gayton on November

20, 2003 (Kovanda v. Gayton, No. 03L009656, Cook Cnty. Cir. Ct.). Joseph Gayton

died on November 26, 2003. Kovanda recorded the notice of judgment against title to

the Wilmette property on December 3, 2003.

       On March 15, 2004, Monica Gayton filed an action in the circuit court of Cook

County against Kovanda to quiet title to the property. Monica alleged that Kovanda had

created a cloud on title by wrongfully recording the judgment as a lien against the

property because she was the sole owner of the property and the judgment was against

Joseph, who no longer had an interest in the property. Monica filed a motion for

summary judgment on October 28, 2004, seeking an order forcing Kovanda to release

the lien.

       On October 13, 2004, Kovanda filed an answer to Monica’s complaint and a

counterclaim wherein he alleged that Joseph’s transfer of his interest in the property to

Monica violated the Illinois Uniform Fraudulent Transfer Act (740 ILCS 160/1 et seq.

(West 2002)) Thereafter, on December 23, 2004, Kovanda voluntarily agreed to record


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a release of his judgment lien. Also on December 23, 2004, Monica withdrew the

motion for summary judgment she had filed on October 28, 2004.

       On February 23, 2005, Monica filed an amended complaint for slander of title

wherein she alleged again that Kovanda had improperly recorded the judgment lien

against the property.

       Monica filed a motion for summary judgment as to Kovanda’s counterclaim on

September 26, 2005. On December 7, 2005, the trial court granted Monica’s motion for

summary judgment as to Kovanda’s counterclaim. On January 31, 2006, Monica

voluntarily dismissed her complaint for slander of title.

       Kovanda filed a notice of appeal on February 28, 2006, seeking review of the

trial court’s order granting summary judgment to Monica as to his counterclaim.

                                        ANALYSIS

       Kovanda argues that the trial court erred in granting summary judgment in favor

of Gayton as to his counterclaim for violation of the Act.

       Summary judgment is appropriate where there is no genuine issue of material

fact and the moving party is entitled to judgment as a matter of law. Happel v. Wal-Mart

Stores, Inc., 199 Ill. 2d 179,186 (2002).   Whether a genuine issue of material fact

exists is determined from the pleadings, depositions, affidavits and admissions on file in

a case. Komater v. Kenton Court Associates, 151 Ill. App. 3d 632, 636 (1986).

Summary judgment may be granted in any case where an issue of fact is raised if, after

viewing the evidence in the light most favorable to the plaintiff, the trial court concludes


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that no liability exists as a matter of law. McCann v. Bethesda Hospital, 80 Ill. App. 3d

544 (1979). An order granting summary judgment should be reversed only if the

evidence shows that a genuine issue of material fact exists or the judgment was

incorrect as a matter of law. In re Estate of Herwig, 237 Ill. App. 3d 737, 741 (1992).

Our review of an order granting summary judgment is de novo. Outboard Marine Corp.

v. Liberty Mutual Insurance Co., 154 Ill. 2d 90, 102 (1992).

       In her motion for summary judgment, Gayton argued that even if Joseph’s

transfer of his interest in the property was fraudulent pursuant to the Act, Kovanda still

had no rights in the property because he did not perfect his judgment against the

property prior to Joseph’s death.

       The Illinois Uniform Fraudulent Transfer Act specifically addresses the issue of

fraudulent transfers and creditors and states in relevant part:

              “§ 5. (a) A transfer made or obligation incurred by a debtor is fraudulent

       as to a creditor, whether the creditor's claim arose before or after the transfer

       was made or the obligation was incurred, if the debtor made the transfer or

       incurred the obligation:

                     (1) with actual intent to hinder, delay, or defraud any creditor of the

              debtor; or

                     (2) without receiving a reasonably equivalent value in exchange for

              the transfer or obligation, and the debtor:

                            (A) was engaged or was about to engage in a business or a


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                   transaction for which the remaining assets of the debtor were

                   unreasonably small in relation to the business or transaction; or

                          (B) intended to incur, or believed or reasonably should have

                   believed that he would incur, debts beyond his ability to pay as they

                   became due.

            (b) In determining actual intent under paragraph (1) of subsection (a),

            consideration may be given, among other factors, to whether:

                   (1) the transfer or obligation was to an insider;

                   (2) the debtor retained possession or control of the property

            transferred after the transfer;

                   (3) the transfer or obligation was disclosed or concealed;

                   (4) before the transfer was made or obligation was incurred, the

            debtor had been sued or threatened with suit;

                   (5) the transfer was of substantially all the debtor's assets;

                   (6) the debtor absconded;

                   (7) the debtor removed or concealed assets;

                   (8) the value of the consideration received by the debtor was

            reasonably equivalent to the value of the asset transferred or the amount

            of the obligation

            incurred;

                   (9) the debtor was insolvent or became insolvent shortly after the


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              transfer was made or the obligation was incurred;

                      (10) the transfer occurred shortly before or shortly after a

              substantial debt was incurred; and

                      (11) the debtor transferred the essential assets of the business to a

              lienor who transferred the assets to an insider of the debtor.” 740 ILCS

              160/5 (West 2002).

       Assuming that Joseph’s transfer of his interest in the property was fraudulent

under section 5 (740 ILCS 160/5 (West 2002)), we must address Kovanda’s claim that

when a joint tenant fraudulently conveys his or her interest in a property, the

conveyance must be avoided and the property restored to a tenancy in common.

Kovanda argues Joseph Gayton’s voluntary transfer of his interest in the property

amounted to an immediate severance of the unities required to maintain a joint tenancy,

thereby extinguishing any rights of survivorship. Therefore, any title that would vest in

Joseph Gayton, for purposes of his creditors, would vest in Joseph as a tenant in

common and after his death, that interest would be owned by his estate.

       A joint tenancy is an estate that two or more individuals hold jointly with equal

rights. In re Estate of Alpert, 95 Ill. 2d 377, 381 (1983). With joint tenancy comes the

right of survivorship, which entitles the last surviving joint tenant to take the entire

estate. Harms v. Sprague, 105 Ill. 2d 215, 224 (1984).        A joint tenancy can be

severed when one tenant voluntarily or involuntarily destroys one of the four unities

(interest, time, title, and possession) that are crucial to the creation and continuance of


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a joint tenancy. Harms, 105 Ill. 2d at 220.

       Kovanda cites to In re Estate of Martinek, 140 Ill. App. 3d 621 (1986), in support

of his position that when a joint tenant fraudulently conveys his or her interest, reversal

of the fraudulent transfer results in a tenancy in common. In Martinek, George and

Shirley Martinek, husband and wife, obtained an interest in real property by an

assignment of contact rights and agreed to perform all of the terms and conditions as

agreed to by the assignors. The actual interest in the property had not yet been

deeded to them as they were paying for the property by way of an installment contract

initiated by the assignors. The original installment contract between the assignors and

the owner stated that upon satisfaction of the terms of the agreement, the buyers would

take title to the property as joint tenants. Upon George’s death, his heirs argued that

his estate and Shirley each owned a 50% interest in the property as tenants in common

because the contract was executory and no deed granting George and Shirley the

property in joint tenancy had yet been delivered.

       On appeal, the court found that Shirley Martinek was the sole owner of the

property after George’s death, as the surviving joint tenant. The property was not part

of George’s estate and therefore his heirs had no claim to it. Martinek, 140 Ill. App. 3d

at 630.

       Kovanda’s reliance of In re Estate of Martinek is misplaced as it does not

address the issue of the severance of a joint tenancy by way of a fraudulent transfer.

Although we are cognizant of the principle that when a joint tenant acts to destroy any


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of the unities of joint tenancy, including the conveyance of his or her interest in the

estate, the estate changes into a tenancy in common and any right of survivorship is

extinguished (Klajbor v. Klajbor, 406 Ill. 513, 517 (1950)), we do not believe that this

general principle is intended to apply to situations where there is a fraudulent transfer of

a joint tenant’s interest in the property. Support for our conclusion comes from Gilbert

Brothers, Inc v. Gilbert, 258 Ill. App. 3d 395 (1994).

       In Gilbert Brothers, the plaintiff filed an action against Helen Gilbert and her son

Steven, as trustee of the Mary Helen Gilbert trust, under the Act for fraudulent transfer

of funds held in a certificate of deposit. Prior to her husband Nick’s death, Nick and

Helen owned the certificate of deposit as joint tenants. Nick had an action for violation

of a noncompetition clause pending against him and while the suit was pending

transferred his interest in the certificate of deposit to his wife Helen. Nick died in 1986,

and in 1990 Gilbert Brothers obtained a judgment against Nick on the noncompetition

suit. In 1991, the company filed a memorandum of judgment. The company filed suit

under the Act alleging that Nick’s conveyance of the certificate of deposit to his wife

Helen was fraudulent because at the time of the conveyance Nick expected that

judgment on the suit might be rendered against him and that the conveyance was made

to prevent the judgment from becoming a lien on the property. The trial court dismissed

the complaint.

       On appeal, the court found that the trial court properly dismissed the company’s

complaint based on the fact that it was not filed within the applicable statute of


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limitations. Moreover, the court found:

       “[A]part from the dismissal, the Company’s claim is moot because the Company

       alleges that Nick, as a joint tenant, fraudulently transferred his interest to the

       other joint tenant, his wife, and then he died. Assuming the Company was

       successful on the merits of its claim for fraudulent transfer, the court would

       reinstate the property as it was at the time prior to the fraudulent transfer.

       Because Nick’s death occurred prior to any judgment received by the Company,

       the property would have been transferred to the surviving joint tenant at that

       time of death, extinguishing any rights the Company may have had.” Gilbert

       Bros. Inc., 258 Ill. App. 3d at 400.

         Similarly here, assuming that Joseph’s conveyance of his interest in the

property to Monica was fraudulent, the court should treat the property as if the

fraudulent transfer had not been made. Therefore, subsequent to Joseph’s transfer of

his interest to Monica and prior to Joseph’s death, Joseph and Monica owned the

property in joint tenancy. See also DeMartini v. DeMartini, 385 Ill. 128 (1943) (a

fraudulent conveyance is void only as against creditors and the conveyance is treated

as if it had not been made). When Joseph died, the property passed to Monica as a

joint tenant through rights of survivorship.   See also McDonald v. Estate of Gayton,

No. 04 C 0334 (N.D. Ill August 30, 2005). It is of no consequence that Kovanda

obtained the judgment prior to Joseph’s death because a judgment only becomes a lien

on the real estate of the person against whom it is entered from the time the judgment


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is filed with the recorder of deeds in the county in which the property is located. 735

ILCS 5/12-101 (West 2002); Cochran v. Cutler, 39 Ill. App. 3d 602 (1976). Kovanda did

not file the judgment until December 3, 2003, after Joseph ceased to have any interest

in the property due to his death. Accordingly, based on the foregoing, we find that the

trial court did not err in granting summary judgment for Monica.

      The judgment of the trial court is affirmed.

      Affirmed.

      THEIS, P.J., and HOFFMAN, J., concur.




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