                                  Illinois Official Reports

                                          Appellate Court



                    GMAC Mortgage, LLC v. Arrigo, 2014 IL App (2d) 130938




Appellate Court              GMAC MORTGAGE, LLC, Plaintiff and Counterdefendant-
Caption                      Appellant, v. NICHOLAS A. ARRIGO, LINA ARRIGO, WELLS
                             FARGO BANK, N.A., LEE STATION MASTER ASSOCIATION,
                             NFP, LEE STATION TOWNHOME ASSOCIATION, NFP, and
                             UNKNOWN OWNERS and NONRECORD CLAIMANTS,
                             Defendants and Counterplaintiffs-Appellees.



District & No.               Second District
                             Docket No. 2-13-0938



Filed                        April 4, 2014
Rehearing denied             May 20, 2014


Held                         Pursuant to a question certified by the trial court under Supreme Court
(Note: This syllabus         Rule 308 in a foreclosure action, the appellate court answered that a
constitutes no part of the   spouse who is not named as a titleholder of a house, but is married to
opinion of the court but     the titleholder and maintains the property as her primary place of
has been prepared by the     residence, cannot claim a homestead exemption in the property under
Reporter of Decisions        section 12-901 of the Code of Civil Procedure.
for the convenience of
the reader.)



Decision Under               Appeal from the Circuit Court of Du Page County, No. 11-CF-5214;
Review                       the Hon. Robert G. Gibson, Judge, presiding.



Judgment                     Certified question answered.
     Counsel on               Darnella J. Ward, of Fidelity National Law Group, of Chicago, for
     Appeal                   appellant.

                              David R. Sweis, of Sweis Law Firm, P.C., of Oak Brook, for
                              appellees.




     Panel                    JUSTICE JORGENSEN delivered the judgment of the court, with
                              opinion.
                              Justices Hudson and Birkett concurred in the judgment and opinion.




                                               OPINION

¶1          This interlocutory appeal under Illinois Supreme Court Rule 308 (eff. Feb. 26, 2010) arises
       from a foreclosure proceeding that plaintiff, GMAC Mortgage, LLC, initiated against
       defendants, Nicholas A. Arrigo, Lina Arrigo, Wells Fargo Bank, N.A., Lee Station Master
       Association, NFP, Lee Station Townhome Association, NFP, and unknown owners and
       nonrecord claimants. Defendants counterclaimed and raised an affirmative defense, seeking
       partition based on Lina’s claim to a homestead exemption. GMAC moved to dismiss pursuant
       to section 2-619 of the Code of Civil Procedure (Code) (735 ILCS 5/2-619 (West 2012)). The
       trial court denied the motion, but certified the following question pursuant to Rule 308:
       “Whether a spouse may claim her homestead exemption when that spouse is not on title to the
       property but is the spouse of the title holder and maintains the property as her primary place of
       residence under [section 12-901 of the Code (735 ILCS 5/12-901 (West 2012))].” We granted
       GMAC’s application for leave to appeal. For the following reasons, we answer the certified
       question in the negative.

¶2                                        I. BACKGROUND
¶3         In 2003, Nicholas purchased the subject property at 0S076 Lee Court in Winfield (tax
       parcel No. 04-13-201-077) with a $244,900 purchase-money mortgage from First Home
       Mortgage, and he refinanced on two occasions: first, in 2004, and, second, in 2009 (with
       Guaranteed Rate, Inc., which later assigned the note to GMAC).
¶4         On November 2, 2011, GMAC filed a mortgage foreclosure complaint against defendants,
       seeking a judgment of foreclosure and sale because Nicholas, the owner of the property,
       defaulted on his obligations. In an amended complaint, it alleged that Nicholas, who was
       described as “A MARRIED MAN” in the mortgage, waived his homestead exemption. The




                                                   -2-
       balance due on the note and mortgage was $220,000. GMAC joined Lina, Nicholas’s wife, as a
       defendant because she “may have some interest in the subject real estate.” 1
¶5          Defendants filed their answer, raising three affirmative defenses, including, as relevant
       here, unclean hands; specifically, Lina argued that her signature on a purported waiver of
       homestead rights was forged and that she was not present at the time of closing. Defendants
       asserted that the closing occurred at Nicholas’s residence; Lina was not present and did not
       execute any documents associated with the refinance; Lina never received or signed a waiver
       of homestead rights; and James M. Rubel, the purported notary of the waiver, was not present
       at the closing and Lina had never come into contact with him. Defendants requested that the
       court dismiss the cause with prejudice.
¶6          On November 6, 2012, defendants filed their counterclaim for partition, raising allegations
       similar to those contained in their unclean-hands affirmative defense. They further alleged
       that, at the time of the refinance, the subject property was Lina’s primary residence and she had
       homestead rights and was entitled to a $15,000 estate of homestead.
¶7          GMAC moved, in a combined motion, to strike and dismiss defendants’ affirmative
       defenses and counterclaim (735 ILCS 5/2-615, 2-619 (West 2012)). As relevant here, the trial
       court granted the motion without prejudice as to the second affirmative defense (unclean
       hands) and counterclaim.
¶8          Lina filed an amended counterclaim for partition on April 3, 2013, alleging that she was
       entitled to her own homestead exemption because the subject property had been her primary
       residence since the time of the refinance and realleging that she did not sign the waiver of
       homestead rights and was not present at closing.
¶9          GMAC moved to dismiss the amended counterclaim pursuant to section 2-619 of the Code,
       arguing that, as a matter of law, a spouse may not claim the statutory homestead exemption
       under section 12-901 of the Code when that spouse has no formalized interest in or formalized
       possession of the home. It noted that Lina was not on the title to the subject property, and it
       argued that it was irrelevant that she claimed that she did not give her express waiver.
¶ 10        On July 17, 2013, the trial court denied the motion, relying on Brod v. Brod, 390 Ill. 312
       (1945), and reading it to hold that the spouse’s interest need not be formalized, but
       acknowledging that more recent federal cases interpreting Illinois law supported GMAC’s
       position. Subsequently, on August 29, 2013, it certified the following question: “Whether a
       spouse may claim her homestead exemption when that spouse is not on title to the property but
       is the spouse of the title holder and maintains the property as her primary place of residence
       under [section 12-901 of the Code (735 ILCS 5/12-901 (West 2012))].” Further, the court
       stayed the proceedings pursuant to Rule 308(e). This court, on October 9, 2013, granted leave
       to appeal on the question.


¶ 11                                           II. ANALYSIS

           1
            GMAC also joined Wells Fargo by virtue of a mortgage executed by Nicholas in 2004 to secure a
       $25,000 note. GMAC also joined Lee Station Master and Lee Station Townhome because they are
       townhome associations for the property and “may have some interest in the subject property for unpaid
       assessments or other charges.”

                                                     -3-
¶ 12        GMAC argues that defendants cannot seek partition, because Lina holds no ownership
       interest in the subject property. It contends that recent case law, albeit from federal courts
       interpreting Illinois law, warrants answering the certified question in the negative (and further
       supports dismissal of defendants’ counterclaim). GMAC also argues that Brod, the supreme
       court case upon which the trial court primarily relied, is factually and legally distinguishable
       and is based on antiquated law. For the following reasons, we conclude that Lina cannot claim
       the exemption and we answer the certified question in the negative.
¶ 13        Rule 308 provides a remedy of permissive appeal from an interlocutory order where the
       trial court has deemed that it involves a question of law as to which there is substantial ground
       for difference of opinion and that an immediate appeal from the order may materially advance
       the ultimate termination of the litigation. Ill. S. Ct. R. 308 (eff. Feb. 26, 2010). Because an
       interlocutory appeal under Rule 308 necessarily involves a question of law, our review is
       de novo. In re Marriage of Mathis, 2012 IL 113496, ¶ 19. Further, this appeal raises a statutory
       construction question. Issues of statutory construction also present questions of law that we
       review de novo. Hall v. Henn, 208 Ill. 2d 325, 330 (2003).
¶ 14        The cardinal rule of statutory construction is to ascertain and effectuate the legislature’s
       intent. Moore v. Green, 219 Ill. 2d 470, 479 (2006). The best indicator of that intent is the
       express language of the statute, which should be given its plain and ordinary meaning. Wilkins
       v. Williams, 2013 IL 114310, ¶ 14. In interpreting a statute, we must read the relevant
       provisions in their entirety and in their context within the broader framework of the act of
       which they are a part. Solon v. Midwest Medical Records Ass’n, 236 Ill. 2d 433, 440 (2010).
¶ 15        Estates of homestead are statutory creations. Bank of Illmo v. Simmons, 142 Ill. App. 3d
       741, 744 (1986). “Homestead is a freehold estate in land, the purpose of which is ‘to insure to
       the family the possession and enjoyment of a home.’ ” Willard v. Northwest National Bank of
       Chicago, 137 Ill. App. 3d 255, 264 (1985) (quoting Brod, 390 Ill. at 323). It further secures to
       the homesteader “a shelter beyond the reach of his improvidence or financial misfortune.”
       People v. One Residence Located at 1403 East Parham Street, 251 Ill. App. 3d 198, 201
       (1993). Homestead exemption statutes are liberally construed. Id.
¶ 16        Section 12-901 of the Code is the homestead exemption statute at issue here 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. That homestead and all right in and title to that homestead is
                exempt from attachment, judgment, levy, or judgment sale for the payment of his or her
                debts or other purposes and from the laws of conveyance, descent, and legacy, except
                as provided in this Code or in Section 20-6 of the Probate Act of 1975. This Section is
                not applicable between joint tenants or tenants in common but it is applicable as to any
                creditors of those persons. If 2 or more individuals own property that is exempt as a
               homestead, the value of the exemption of each individual may not exceed his or her
               proportionate share of $30,000 based upon percentage of ownership.” (Emphases
               added.) 735 ILCS 5/12-901 (West 2012).
¶ 17        GMAC argues first that the plain language of the statute bars defendants’ claim because it
       does not support their interpretation that Lina has her own homestead exemption apart from
       Nicolas. The burden of proving the existence of a homestead is on the individual asserting it.

                                                   -4-
       First State Bank of Princeton v. Leffelman, 167 Ill. App. 3d 362, 366 (1988). To qualify for the
       exemption, an “individual” must (1) occupy the property “as a residence”; and (2) have some
       right in the property (“owned or rightly possessed by lease or otherwise”). 735 ILCS 5/12-901
       (West 2012). It is undisputed that Lina is an individual who occupied the subject property as a
       residence. It is also undisputed that she did not own or lease it. The question is whether she
       “otherwise” rightly possessed it. The phrase “or otherwise” could encompass a broad range of
       either similar or dissimilar possessory interests. See Black’s Law Dictionary 1101 (6th ed.
       1990) (defining “otherwise” as “[i]n a different manner; in another way, or in other ways,” but
       defining “other” as, inter alia, including “only others of like kind and character”). It is
       ambiguous. GMAC, however, argues that the final sentence of the statute and federal case law
       instruct that only a formalized interest satisfies this requirement.
¶ 18       The final sentence of the statute, which was added in 1994, 2 provides that, where two or
       more individuals “own” the property, their exemptions may not exceed their proportionate
       shares of $30,000 (i.e., the value of two exemptions). GMAC argues that this final sentence
       reflects a legislative intent that some formalized right of possession is required for someone to
       “otherwise” rightly possess the property, because that provision uses the term “own,” which, in
       GMAC’s view, reflects the requirement of “ownership of some type.” Reading the statute as a
       whole, however, we believe that the final sentence merely creates an ambiguity in cases such
       as this. (As defendants assert, the legislature, had it intended such a limitation, would have
       included language limiting the exemption to titleholders.) A reader whose circumstances do
       not put him or her within the parameters of the final sentence would have to satisfy the “or
       otherwise” requirement earlier in the statute, which, as previously noted, is ambiguous. We
       disagree that the only reasonable reconciliation of the sentences is that two or more persons in
       possession must own the property in order to qualify for the exemption. The broad language in
       the early portion of the statute cannot be reconciled with the narrow language of the final
       sentence, which, further, reflects that its purpose is not to clarify the types of interests that
       satisfy the statute, but, rather, to place a cap on the exemption amount where property is owned
       by two or more individuals.
¶ 19       We turn next to the case law upon which GMAC relies, which it admits consists primarily
       of recent federal cases interpreting Illinois law. In re Belcher, 551 F.3d 688 (7th Cir. 2008), a
       bankruptcy case, is the most instructive. It warrants extensive consideration, as we adopt its
       reasoning herein. In that case, a couple filed for chapter 7 bankruptcy protection and, after the
       trustee sold their home to satisfy their debts, both the husband and the wife claimed homestead
       exemptions under section 12-901 of the Code. The trustee objected to the husband’s claim,
       arguing that he was ineligible because his name was not on the title to the home. Both the
       husband and the wife lived in the home, but the husband was neither on the title nor liable for
       payment of the mortgage. The Belcher court held that the husband could not claim the
       homestead exemption from the sale proceeds of the home, where his name was not on the title
       and he did not have any other formalized interest in the property. Id. at 689. The court based its
       decision on its view that “Illinois caselaw has consistently required a party to have a
       formalized property interest to claim a homestead exemption.” Id. The court noted that lower
       federal bankruptcy courts in the circuit had been divided on the issue and that the only district

          2
           Pub. Act 88-672, § 25 (eff. Dec. 14, 1994).


                                                    -5-
       court to reach the issue had held that the exemption did not apply unless the spouse’s name was
       on the title. Id. at 690. 3 In reaching its conclusion that a spouse must have a formalized
       property interest in the home to claim a homestead exemption under the statute, the Belcher
       court began its analysis by assessing the nature of the husband’s interest. Id. at 690-91. It noted
       that, under Illinois divorce laws, a nontitled spouse has a potential equitable interest in the
       marital home upon divorce and that the probate statute allows a surviving spouse to claim an
       equitable interest in the marital home (when the titled spouse dies, regardless of whether the
       surviving spouse’s name was ever on the title). Id. at 691. However, neither of the foregoing
       situations was triggered where the spouses were still married and alive when they filed their
       bankruptcy petition. Id. The Belcher court rejected the husband’s argument that his future or
       potential equitable interest was sufficient to claim that he “owned or rightly possessed by lease
       or otherwise” the marital home. Id.
¶ 20        In reaching this conclusion, the Belcher court relied (as does GMAC here) on Illinois case
       law that, it noted, “suggested that a titled interest is required to sustain a homestead estate.” Id.
       (citing DeMartini v. DeMartini, 385 Ill. 128, 137 (1943) (homestead estate can have no
       existence separate from the title upon which it depends)); see also First National Bank & Trust
       Co. of Rockford v. Sandifer, 121 Ill. App. 2d 479, 482 (1970) (“[s]ome title, no matter what its
       extent, is also necessary to claim a homestead exemption”); Sterling Savings & Loan Ass’n v.
       Schultz, 71 Ill. App. 2d 94, 112 (1966) (same as to woman claiming exemption based on land
       she possessed as a beneficiary of a land trust; noting that “something more than mere
       possession is required to entitle a party to a homestead estate”); Jones v. Kilfether, 12 Ill. App.
       2d 390, 396-97 (1956) (husband’s mere occupancy of property that was fully titled in his wife
       did not give him a right of homestead and, thus, a right to eject a houseguest from the family
       home; homestead right has no existence independent of the title). The Belcher court conceded
       that the foregoing cases turned on the definition of “householder” that was used in pre-1982
       versions of the homestead statute, which permitted only one spouse to claim an exemption.
       Belcher, 551 F.3d at 692. However, the court determined that subsequent developments led it
       to conclude that the “1982 expansion of the homestead exemption did not eliminate the
       requirement of a formalized property interest.” Id. (noting that the 1982 amendment 4 replaced
       “householder” with “individual” and, therefore, more than one person could claim the
       exemption). In this respect, the court then assessed the final sentence of the statute, which,
       again, was added in 1994, and it concluded that the legislature’s use of the terms “own” and




           3
            Bankruptcy court cases holding that spouses could claim homestead exemptions, even if they did
       not hold title to the premises, include In re Miller, 174 B.R. 279 (Bankr. N.D. Ill. 1994),
       In re Silverman, 98 B.R. 415 (Bankr. C.D. Ill. 1988), and In re Reuter, 56 B.R. 39 (Bankr. N.D. Ill.
       1985). Bankruptcy court cases holding that a spouse must have a titled interest include In re Popa, 218
       B.R. 420 (Bankr. N.D. Ill. 1998), In re Hartman, 211 B.R. 899 (Bankr. C.D. Ill. 1997), and In re Owen,
       74 B.R. 697 (Bankr. C.D. Ill. 1987). See also Popa v. Peterson, 238 B.R. 395 (N.D. Ill. 1999) (district
       court case; spouse must hold title to claim exemption).

           4
            The 1982 Revisory Act (Pub. Act 82-783, art. III, § 43 (eff. July 13, 1982)).



                                                      -6-
       “ownership” in the statute “establishes that something more than mere possession is required
       to claim the homestead exemption.” Id. at 692 (noting legislative history). 5
¶ 21        The Belcher court rejected the argument that the combination of (1) section 16 of the
       Rights of Married Persons Act (750 ILCS 65/16 (West 2012)), which requires one spouse to
       provide a homestead for the other spouse before removing that spouse from the homestead
       without his or her consent, 6 (2) section 27 of the Conveyances Act (765 ILCS 5/27 (West
       2012)), which requires that a spouse’s release or waiver of homestead rights be express, 7 and
       (3) “the potential equitable interests of a nontitled spouse under Illinois’ divorce and probate
       laws” gives the nontitled spouse who lives in the marital home a property interest sufficient to
       claim the exemption. Belcher, 551 F.3d at 692-93. The Belcher court concluded that the Rights
       of Married Persons Act “only protects the right of the nontitled spouse to have housing
       somewhere. *** [It] does not create a property interest in the marital home because it does not
       guarantee a possessory interest in that property.” (Emphases in original.) Id. at 693. According
       to the court, even if it did, the interest would be merely one to occupy the residence, and
       Illinois case law, in its view, “consistently” had held that “ ‘something more than mere
       possession is required to entitle a party to a homestead estate.’ ” Id. (quoting Schultz, 71 Ill.
       App. 2d at 112). Turning to the Conveyances Act’s provision concerning waivers of the right
       to homestead accommodation, the court concluded that it “does not inform the determination
       of what interest in property gives rise to a homestead exemption.” Id. It concluded that
       “homestead exemptions are designed to protect property from third-party creditors. Yet the
       Rights of Married Persons Act and the [Conveyances Act] address only the rights of a nontitled
       spouse vis-à-vis the titled spouse; they are silent regarding the rights of third-party creditors.”
       Id.
¶ 22        Finally, the Belcher court noted that its conclusion that the husband was not entitled to a
       homestead exemption avoided an anomalous result in that, if the husband had individually

           5
             See 88th Ill. Gen. Assem., House Proceedings, Nov. 30, 1994, at 41 (statements of Representative
       Hoffman) (“[New sentence] specifically provides that if two or more persons own property that is
       exempt as a homestead, the value of each personal exemption may not exceed his or her proportionate
       share of $15,000 based on the percentage of ownership. For instance, you and your wife own, with
       regard to the homestead exemption, own property, you would go in and sign up for $7,500 apiece. If
       you, your wife and your wife’s sister lived with you and was [sic] ownership, you couldn’t get $7,500
       apiece. You would get $15,000 total.”); see also In re Hartman, 211 B.R. 899 (Bankr. C.D. Ill. 1997)
       (referring to legislative history as “scant” and holding that a spouse with no ownership interest is not
       entitled to homestead exemption).

           6
            “Neither the husband nor wife can remove the other or their children from their homestead without
       the consent of the other, unless the owner of the property shall, in good faith, provide another
       homestead suitable to the condition in life of the family; and if he abandons her, she is entitled to the
       custody of their minor children, unless a court of competent jurisdiction, upon application for that
       purpose, shall otherwise direct.” 750 ILCS 65/16 (West 2012).

           7
            “No deed or other instrument shall be construed as releasing or waiving the right of homestead,
       unless the same shall contain a clause expressly releasing or waiving such right. And no release or
       waiver of the right of homestead by the husband or wife shall bind the other spouse unless such other
       spouse joins in such release or waiver.” 765 ILCS 5/27 (West 2012).

                                                       -7-
       declared bankruptcy, his home would not be part of his estate under the bankruptcy statute,
       because his wife owned it and he had no legal or equitable interest in it. Id. (citing 11 U.S.C.
       § 541 (2000)). The interpretation that the couple had proposed, i.e., that, in a joint bankruptcy
       proceeding, the husband could “rely on this potential interest to protect some of the proceeds
       from the sale of the house from creditors,” would create an “irreconcilable conflict” that
       Illinois courts would avoid creating. Id.
¶ 23        Here, GMAC contends that, pursuant to Belcher, Lina cannot claim her own homestead
       exemption without demonstrating ownership or a formalized interest. GMAC further argues
       that Brod, a 1945 case upon which the trial court relied, is factually and legally distinguishable
       and based on antiquated law with no bearing here. In Brod, the husband, who had deserted his
       wife, brought an action to partition their jointly owned residence in which the wife still lived.
       The supreme court held that the wife was entitled to the entire value of the $1,000 homestead
       exemption, where the husband had left and abandoned the homestead, was living separate and
       apart from the wife through no fault of hers, and had offered no other suitable homestead for
       her. Brod, 390 Ill. at 326. Specifically, it stated: “we hold that a wife who owns property jointly
       with her husband, cannot be deprived of her valuable right to the continuity of a home, whether
       it be called right of occupancy or homestead, by any other than the methods prescribed by
       statute, and that when a husband institutes partition proceedings against the wife involving the
       home, he must either bona fidely provide another suitable homestead for her or set off to her
       under the statute the homestead interest of $1,000.” Id. In discussing the homestead
       exemption’s purpose and public policy, however, the Brod court noted that, where one spouse
       “own[s] the entire fee,” he or she cannot, by deed alone, deprive the other spouse of his or her
       homestead interest without that spouse’s consent or other acts. Id. at 323-24. The homestead
       statute in Brod provided:
                “ ‘That every householder having a family, shall be entitled to an estate of homestead,
                to the extent and value of $1,000, in the farm or lot of land and buildings thereon,
                owned or rightly possessed, by lease or otherwise, and occupied by him or her as a
                residence; and such homestead, and all right and title therein, shall be exempt from
                attachment, judgment, levy or execution, sale for the payment of his debts, or other
                purposes, and from the laws of conveyance, descent and devise, except as hereinafter
                provided.’ ” (Emphases added.) Id. at 320-21 (quoting Ill. Rev. Stat. 1943, ch. 52, ¶ 1).
¶ 24        The Brod court noted older authority that held that a wife’s homestead interest is a present
       interest of value. Id. at 324 (citing Bailey v. Hamilton, 337 Ill. 617, 621 (1929) (further noting
       that by “marriage and residence” the wife “acquired the right to occupy” the premises as her
       homestead and her “husband could not deprive her of that right without her consent”)). The
       Bailey court stated that the wife’s homestead interest constitutes “a continuous right of
       occupancy, which is a real and substantial interest,” and that the right is more than an estate in
       land vested in the householder. Bailey, 337 Ill. at 622. “It is an estate which gives to the spouse
       of the householder a right to present enjoyment of it, even as against the wishes of such
       householder. It cannot be conveyed without her signature, and if the husband abandons her and
       her family, it continues in her.” Id. at 623.
¶ 25        GMAC argues that the trial court erred in relying on Brod (and that the certified question
       should be answered in the negative) because: (1) the case is factually distinguishable because
       the husband and wife in that case held title as joint tenants, they purchased under a contract
       running to both parties, and the wife provided funds for the purchase; thus, there was a

                                                    -8-
       formalized interest under which the wife claimed her own homestead exemption; (2) the case
       addressed a pre-1982-amendment version of the homestead exemption statute; and (3) the
       portion upon which the trial court here relied was obiter dictum (see Lebron v. Gottlieb
       Memorial Hospital, 237 Ill. 2d 217, 236 (2010) (obiter dictum (or dictum) “is a remark or
       opinion that a court uttered as an aside” and “is not essential to the outcome of the case, is not
       an integral part of the opinion, and is generally not binding authority or precedent within the
       stare decisis rule”)).
¶ 26       Defendants urge that Brod controls and that the relevant language in that case is not
       obiter dictum but was central to the court’s holding. The court did not base its decision, they
       further urge, on the fact that the parties in that case were joint tenants. They point to the court’s
       comment that “[i]n the view which we take of this case, it is immaterial as far as the final result
       is concerned whether the right of the wife in a joint tenancy with her husband is designated a
       right of occupancy or a homestead.” (Emphasis added.) Brod, 390 Ill. at 323. The court
       continued: “The proposition that husband cannot, by his deed alone, even though he own the
       entire fee, deprive his wife of her homestead interest is so well established that citation of
       authority is unnecessary.” Id. Classifying the foregoing language as obiter dicta, defendants
       argue, would “unjustly diminish its value,” because it reflects the policy providing the
       foundation of Brod’s holding.
¶ 27       We conclude that Brod is distinguishable because the couple in that case owned the
       property as joint tenants, the case involved a dispute between a husband and a wife and not a
       couple against a creditor, and, perhaps most significantly, the case did not center on section
       12-901 of the Code, which is the homestead exemption statute at issue here. The Brod couple
       owned the property as joint tenants, and the court explicitly stated that “we hold that a wife
       who owns property jointly with her husband cannot,” in partition proceedings, “be deprived of
       her valuable right to the continuity of a home, whether it be called a right of occupancy or
       homestead, by any other than the methods prescribed by statute, and” in partition proceedings
       the husband “must either bona fidely provide another suitable homestead for her or set off to
       her under the statute the homestead interest of $1,000.” Id. at 326. The reference to a suitable
       homestead is a clear reference to what is now section 16 of the Rights of Married Persons Act,
       which, as noted above, precludes a spouse from removing the other spouse or their children
       without the other’s consent unless the owner provides another suitable homestead. 750 ILCS
       65/16 (West 2012). The Brod language upon which defendants here primarily rely, that the
       “proposition that a husband cannot, by his deed alone, even though he own the entire fee,
       deprive his wife of her homestead interest is so well established that citation of authority is
       unnecessary” (Brod, 390 Ill. at 323), is directly followed by language reflecting that the court
       was considering statutes not at issue here:
               “Other than by a written instrument, signed and acknowledged as required by statute[,
               i.e., section 12-904 of the Code, which addresses releases, waivers, and conveyances,
               and section 27 of the Conveyances Act, which requires an express release or waiver], a
               wife can be deprived of her interest in the homestead, whether it be an estate in land or
               a right of occupancy, only by her abandonment of the premises as her residence, her
               desertion of the family[, i.e., under section 12-902 of the Code, which addresses the
               exemption after death or desertion], or a decree of divorce making disposition of the
               homestead estate.” Id. at 323-24.



                                                     -9-
       Furthermore, directly following the foregoing quotation, the Brod court discusses Bailey and
       quotes the holding in that case, specifically that, as between a husband and a wife and by
       statute, “ ‘where a homestead exists neither can change the residence of the other from that
       homestead without such other’s consent or unless another suitable homestead is provided.’ ”
       Id. at 324 (quoting Bailey, 337 Ill. at 622). The Bailey court was also clearly referring to what is
       now section 16 of the Rights of Married Persons Act, which, again, addresses removal from the
       homestead and requires either consent or provision of another suitable homestead. 750 ILCS
       65/16 (West 2012).
¶ 28       We reject defendants’ argument that the certified question must be answered in the
       affirmative because the homestead exemption statute and its “companion” statutes reflect the
       legislature’s intent to create a homestead estate in marital property. Defendants point to section
       16 of the Rights of Married Persons Act and section 27 of the Conveyances Act. We agree with
       the Belcher court that these statutes (and other provisions in the Code addressing homestead
       estates) do not affect our analysis of section 12-901 of the Code. Stated differently, they have
       no bearing on what type of property or other interest may give rise to a homestead exemption
       under section 12-901 of the Code. Section 16 of the Rights of Married Persons Act does not
       purport to create a right in a particular property. Section 27 of the Conveyances Act
       presupposes a right of homestead and does not create one. Turning to the Code, we recognize
       that various aspects of the homestead estate are set forth in 13 sections of the Code (735 ILCS
       5/12-901 to 12-912 (West 2012)) and that two or more statutes that relate to the same subject
       should be “read harmoniously so that no provisions are rendered inoperative” (Knolls
       Condominium Ass’n v. Harms, 202 Ill. 2d 450, 458-59 (2002)). Our conclusion here does not
       run afoul of this maxim, or of the one instructing that homestead exemption statutes are to be
       liberally construed, because the sections upon which defendants rely address different rights
       and procedures and do not touch upon the exemption that is addressed in section 12-901 of the
       Code. Section 12-902, for example, addresses death or desertion and has no application here,
       and section 12-904, which addresses releases, waivers, and conveyances, similarly does not
       come into play, because we are not addressing whether Lina waived an exemption.
¶ 29       We also find defendants’ reliance on Willard, a more recent appellate court decision, to be
       misplaced. In that case, the husband, who was the sole titleholder, conveyed the couple’s
       residence into a land trust and assigned his beneficial interest as security for a loan. The wife
       did not sign any of the relevant documents. The husband defaulted on the loan, and the
       property was sold. The Willard court stated that the wife had a homestead “right,” noting that
       the homestead statutes 8 “benefit[ ] not just the householder, but the family, and affords the
       householder’s spouse a veto-like power where alienation or encumbrance of the homestead are
       concerned.” Willard, 137 Ill. App. 3d at 264. However, the court did not state that the wife was
       entitled to a homestead exemption; it referred to a single homestead “interest” (based upon the
       husband’s title and quoting section 12-904 of the Code, which addresses releases, waivers, and
       conveyances) and determined that the couple might be entitled to a setoff for the amount of the
       exemption or a declaration that the sale was void. Id.
¶ 30       Finally, defendants attempt to distinguish Belcher, arguing that it involved a bankruptcy
       and that the application of the homestead exemption to a debtor’s bankruptcy estate differs

          8
           The Willard court referred to section 12-901 and/or section 12-904 of the Code as the “Homestead
       Exemption.” Id.

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       greatly from a refinancing lender’s ability to enforce a mortgage conveyed to it by a married
       person without the written release of his or her spouse. Belcher, they contend, is
       distinguishable because the court’s primary concern there was the debtor in bankruptcy
       receiving proceeds from the sale of a home surrendered to the bankruptcy trustee. The court
       read into the statute, according to defendants, a requirement that there exist a formalized
       interest, “despite the fact that no Illinois case has used such language when interpreting” the
       statute. They assert that the court was seeking to prevent inequitable hardships to the
       title-holding spouse’s creditors after the debtors surrendered their home to the trustee. Id.
       Here, Lina is claiming that her homestead rights were never conveyed to a lender in a
       refinancing transaction, and she is not seeking relief in the form of a chapter 7 discharge (from
       all allowable debts in exchange for surrendering property to a court-appointed trustee). We
       disagree that this distinction warrants a different result. We further disagree that no Illinois
       case supports the Belcher court’s holding that a formalized interest must support a claim for an
       exemption. The Belcher court relied on cases stating that the homestead estate can have no
       existence separate from the title upon which it depends. For example, in De Martini, which
       was decided two years before Brod, the supreme court stated:
               “The right of homestead being by our present statute enlarged into an estate, it follows
               that like all other estates, it can have no separate existence apart from the title on which
               it depends. We have held that the estate of homestead created by the statute is based
               upon the title of the householder, and can have no separate existence independently of
               the title, which constitutes one of the essential elements, and from which it is
               inseparable.” DeMartini, 385 Ill. at 136.
       That the statute now allows multiple individuals to claim the exemption does not alter the
       requirement, in our view, that each person seeking to claim an exemption must have a
       sufficient interest in the property.
¶ 31        Defendants further assert that the Belcher court did not consider Brod in its analysis and
       that Brod “is far more authoritative than the Seventh Circuit’s consideration of homestead in
       the context of a Chapter 7 bankruptcy.” As discussed, Brod does not guide our decision in this
       case.
¶ 32        We recognize that we are bound by supreme court decisions that have not been overruled
       or modified, no matter their age. Trotter v. Chicago Housing Authority, 163 Ill. App. 3d 398,
       407 (1987); see also Trossman v. Philipsborn, 373 Ill. App. 3d 1020, 1043 (2007); People v.
       Long, 55 Ill. App. 3d 764, 773 (1977). However, this case presents no such scenario. As we
       have demonstrated, Brod is distinguishable. Further, there is appellate court authority for the
       proposition that mere possession is insufficient to allow a nontitled spouse to claim the
       homestead exemption in section 12-901 of the Code and there is recent persuasive federal case
       law, whose reasoning we adopt herein, consistent with Illinois authority.




¶ 33                                     III. CONCLUSION
¶ 34      For the foregoing reasons, we answer the certified question in the negative, finding that a
       spouse who is not on title to property, but is the spouse of the titleholder and maintains the



                                                    - 11 -
       property as her primary place of residence, cannot claim the homestead exemption under
       section 12-901 of the Code.

¶ 35      Certified question answered.




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