                                2016 IL App (3d) 150568

                         Opinion filed September 23, 2016
_____________________________________________________________________________

                                        IN THE

                          APPELLATE COURT OF ILLINOIS

                                   THIRD DISTRICT

                                         2016

PNC BANK, NATIONAL ASSOCIATION,             )     Appeal from the Circuit Court
                                            )     of the 12th Judicial Circuit,
        Plaintiff-Appellee,                 )     Will County, Illinois.
                                            )
        v.                                  )
                                            )
STEVEN M. PATTERMANN, STEVEN M.             )
PATTERMANN, as Trustee of the Steven M. )
Pattermann Revocable Trust Instrument dated )
April 3, 2002 for benefit of Steven M.      )
Pattermann, HARRIS NATIONAL                 )     Appeal No. 3-15-0568
ASSOCIATION, successor by merger to         )     Circuit No. 10-CH-4508
Harris Bank Naperville, RIVER RUN           )
HOMEOWNERS ASSOCIATION, THE LAW )
OFFICE OF EDWARD R. JACQUAYS,               )
PANOS & ASSOCIATES, LLC and PNC             )
BANK, NATIONAL ASSOCIATION,                 )
                                            )
        Defendants.                         )
                                            )     Honorable
(Gina Pattermann, Intervenor-Appellant).    )     Daniel Rippy,
                                            )     Judge, Presiding.

_____________________________________________________________________________

      PRESIDING JUSTICE O’BRIEN delivered the judgment of the court, with opinion.
      Justices Holdridge and Wright concurred in the judgment and opinion.
_____________________________________________________________________________



                                       OPINION
¶1          Intervenor, Gina Pattermann, filed an interlocutory appeal from a grant of partial

     summary judgment disposing of her homestead interest in mortgaged property in a foreclosure

     action brought by PNC Bank against several defendants, including Gina’s ex-husband, defendant

     Steven Pattermann.


¶2                                                 FACTS

¶3          Steven and Gina Pattermann were married on August 14, 1998. Prior to the marriage,

     Steven held title to the property that is the subject of these proceedings, which was a vacant lot at

     that time. On or about February 2, 2001, Steven and Gina agreed to take out a mortgage from

     HSBC Mortgage Corporation to finance the building of the marital residence on the property.

     The property remained titled in Steven’s name alone, and Steven executed a mortgage and a

     promissory note to finance the construction. At that time, Gina executed a waiver of her

     homestead interest.

¶4          On April 3, 2002, Steven created the “Steven M. Pattermann Revocable Trust” (the

     Trust), and transferred title to the subject property to the Trust. The quitclaim deed expressly

     stated that Steven was married to Gina and provided: “Per the Attached [ ] hereby releasing and

     waiving all rights under and by virtue of the Homestead Exemption Laws of the State of

     Illinois.” It was only signed by Steven and contained only a notarization of Steven’s signature.

¶5          On September 2, 2003, Steven, as trustee of the Trust, signed a new mortgage and note

     for the subject property with the lender MidAmerica Bank, FSB, the predecessor in interest of

     the plaintiff, PNC Bank. The proceeds from this note paid off the original loan from HSBC

     Mortgage Corporation. Gina was not a party to the MidAmerica Bank transaction, and she did

     not reexecute a waiver of homestead. Thereafter, on June 24, 2005, Steven, as trustee of the



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     Trust, borrowed additional monies from MidAmerica Bank, signing another promissory note and

     a junior mortgage.

¶6          On August 24, 2005, Steven filed for divorce from Gina. In the divorce proceedings, the

     circuit court entered a judgment for dissolution of marriage that disposed of the marital assets of

     Steven and Gina. With respect to the subject property, the marital residence, the circuit court

     found that the vacant lot had been Steven’s nonmarital property but that it was transmuted to

     marital property because the home was built with nonmarital and marital funds and maintained

     by marital funds. The circuit court found that the fair market value of the marital residence was

     $900,000 and the equity in the residence was to be determined by subtracting the first mortgage

     from that amount. The circuit court further ruled that the junior mortgage, a home equity loan,

     was the sole responsibility of Steven. Upon refinancing of the mortgage and payment by Gina to

     Steven of sums due pursuant to the division of marital assets, Steven was ordered to deliver to

     Gina a quitclaim deed, conveying the property to Gina. The circuit court order stated that if Gina

     was unable to refinance with six months of the judgment, then the marital residence should be

     sold and the net proceeds divided in accordance with the judgment. Commencing on July 1,

     2008, Gina was to be responsible for the payment of the mortgage, real estate taxes, and

     expenses of the marital residence. The circuit court did not address Gina’s homestead interest.

     Gina appealed the dissolution judgment but did not raise any issue with respect to the marital

     residence other than to challenge its value as a marital asset when it was encumbered by the first

     mortgage. See In re Marriage of Pattermann, No. 3-09-0472 (2011) (unpublished order under

     Supreme Court Rule 23).

¶7          During the pendency of the dissolution appeal, on July 28, 2010, PNC Bank filed the

     current foreclosure action. PNC Bank alleged that the first mortgage was in default and that the


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       balance due at that time was $506,587.20. On July 10, 2014, PNC Bank filed a motion for partial

       summary judgment, seeking an order that Gina did not possess a homestead right in the subject

       property following the dissolution of marriage. The circuit court granted the motion, finding that

       Gina no longer possessed a homestead interest pursuant to GMAC Mortgage, LLC v. Arrigo,

       2014 IL App (2d) 130938. Gina’s motion for reconsideration was denied. However, the circuit

       court certified the issue to the appellate court and entered an appropriate Illinois Supreme Court

       Rule 308(a) (eff. Feb. 26, 2010) order. Gina filed an application for leave to appeal pursuant to

       Rule 308(b), which was allowed.

¶8                                                ANALYSIS

¶9            Gina argues that the circuit court erred in holding that her homestead interest was

       extinguished by the divorce judgment. The question certified for review is whether a former

       spouse loses her homestead exemption in property arising pursuant to section 12-901 of the Code

       of Civil Procedure (the Code) (735 ILCS 5/12-901 (West 2012)) by virtue of divorce where the

       divorce decree grants the former spouse specific formal rights in the property, effects a self-

       executing present conveyance of those rights, and does not otherwise address or dispose of the

       former spouse’s homestead interest in the property. PNC Bank argues that the certified question

       is purely hypothetical in this case but, in any event, Gina’s homestead rights terminated upon her

       divorce. Our review of this issue is de novo. In re M.M.D., 213 Ill. 2d 105, 113 (2004).

¶ 10          The estate of homestead is one of statutory creation. GMAC Mortgage, LLC v. Arrigo,

       2014 IL App (2d) 130938, ¶ 15. Section 12-901 of the Code is the homestead exemption statute

       and provides:

                       “Every individual is entitled to an estate of homestead to the extent in value of

                  $15,000 of his or her interest in a farm or lot of land and buildings thereon, a


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                    condominium, or personal property, owned or rightly possessed by lease or otherwise

                    and occupied by him or her as a residence, or in a cooperative that owns property that

                    the individual uses as a residence.” 735 ILCS 5/12-901 (West 2012).

¶ 11             “A homestead is a possessory estate, requires actual possession by a householder, and

       some right in the property to which the homestead attaches.” Rice v. United Mercantile Agencies

       of Louisville, Kentucky, 395 Ill. 512, 515 (1946). “[I]t is not necessary that the householder have

       a fee title upon which to predicate his homestead estate.” Rice, 395 Ill. at 515. The question,

       then, is what right in the property, less than a fee title, is sufficient for a homestead right to

       attach?

¶ 12             In concluding that Gina did not have a right in the property to which homestead could

       attach, the circuit court relied on GMAC Mortgage, LLC v. Arrigo, 2014 IL App (2d) 130938. In

       Arrigo, the Second District concluded that the wife of the titleholder to property, where the wife

       maintained her primary place of residence, could not claim the homestead exemption because

       she held no formalized interest in the property. Id. ¶ 12. In that case, the husband held title to the

       property where both the husband and the wife maintained their primary place of residence, but

       the wife did not own or lease the property. Id. ¶ 17. In reaching its conclusion that the wife could

       not claim a homestead exemption, the Arrigo court relied on In re Belcher, 551 F.3d 688 (7th

       Cir. 2008), a bankruptcy case wherein the Seventh Circuit, applying Illinois law, concluded that

       a husband, whose name was not on the title or the mortgage and who did not have any other

       formalized interest in the property, could not claim a homestead exemption. In re Belcher, 551

       F.3d at 689. In reaching its decision, however, the Seventh Circuit noted that a nontitled spouse

       had a potential equitable interest in the marital home under Illinois divorce and probate laws, but

       neither of those situations were triggered in Belcher where both spouses were still alive and


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       married at the time the bankruptcy petition was filed. Id. at 691; Arrigo, 2014 IL App (2d)

       130938, ¶ 19; see also In re Smith, 811 F.3d 228, 243 (7th Cir. 2016) (recognizing the potential

       interest of a divorced spouse or a surviving spouse despite lack of title).

¶ 13          In this case, though, one of those situations noted in Belcher was triggered in that the

       dissolution proceedings preceded the foreclosure proceedings. Under the Illinois Marriage and

       Dissolution of Marriage Act, Gina had a potential equitable interest in the marital home. See 750

       ILCS5/503(b)(1) (West 2012) (“For purposes of distribution of property ***, all property

       acquired by either spouse after the marriage and before a judgment of dissolution of marriage or

       declaration of invalidity of marriage *** is presumed marital property.”). In the dissolution

       proceedings, the circuit court determined that the marital home was marital property and made

       rulings with respect to the marital home without any mention of the homestead exemption. PNC

       Bank argues that the circuit court conclusively determined all interests Gina may have had in the

       property, including any homestead interest, in the dissolution judgment, even though the

       judgment made no mention of homestead.

¶ 14          Section 12-905 of the Code provides that “[i]n case of a dissolution of marriage, the court

       granting the dissolution of marriage may dispose of the homestead estate according to the

       equities of the case.” 735 ILCS 5/12-905 (West 2012). Gina contends that, while the circuit court

       had the authority to adjudicate the parties’ respective homestead interests, it was not required to

       do so. PNC Bank cites In re Marriage of Naguit, 104 Ill. App. 3d 709 (1982), wherein the

       Appellate Court, Fifth District, found that a wife could not raise the issue of her homestead

       exemption for the first time on appeal from a divorce judgment. Id. at 723. The marital home in

       that case, though, was found to be nonmarital property belonging to the husband, resulting in the

       extinguishment of any equitable or formalized interest of the wife in the home at the time of the


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       dissolution judgment. Id. Conversely, in this case, the marital home was ruled to be marital

       property. It is possible that the circuit court, in determining the disposition of the marital home,

       disposed of Gina’s homestead estate. But the statutory language that the circuit court “may” do

       so did not require it to do so. 735 ILCS 5/12-905 (West 2012).

¶ 15           Thus, we answer the certified question in the negative. A former spouse does not, as a

       matter of law, lose her homestead exemption in property by virtue of a divorce decree that grants

       her an interest in the property but does not address or dispose of the former spouse’s homestead

       interest in the property.

¶ 16                                            CONCLUSION



¶ 17           Certified question answered.




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