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                                   Appellate Court                             Date: 2016.12.08
                                                                               10:41:43 -06'00'




             PNC Bank, National Ass’n v. Pattermann, 2016 IL App (3d) 150568



Appellate Court        PNC BANK, NATIONAL ASSOCIATION, Plaintiff-Appellee, v.
Caption                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 ASSOCIATION, Successor by Merger to Harris Bank
                       Naperville, RIVER RUN HOMEOWNERS ASSOCIATION, THE
                       LAW OFFICE OF EDWARD R. JACQUAYS, PANOS &
                       ASSOCIATES,       LLC     and      PNC    BANK,      NATIONAL
                       ASSOCIATION, Defendants (Gina Pattermann, Intervenor-
                       Appellant).



District & No.         Third District
                       Docket No. 3-15-0568



Filed                  September 23, 2016



Decision Under         Appeal from the Circuit Court of Will County, No. 10-CH-4508; the
Review                 Hon. Daniel Rippy, Judge, presiding.



Judgment               Certified question answered.



Counsel on             Timothy J. Somen, of Somen Law Firm, LLC, of Inverness, for
Appeal                 appellant.

                       Frank P. Andreano, of Castle Law, of Joliet, for appellee.
     Panel                    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
       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


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       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
       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 (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
                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, 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.

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       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.
       Id. 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
       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 ILCS 5/503(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 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.



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¶ 16                                  CONCLUSION

¶ 17   Certified question answered.




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