Can a Spouse Who Occupies a Property As His/Her Residence But Is Not On Title Claim a Homestead Exemption?
November 23rd, 2014
GMAC Mortgage, LLC v. Arrigo, 2014 Il App (2d) 130938 (2014)
by: Robert Handley
BURKE & HANDLEY, P.C.
1430 Branding Avenue, Suite 175
Downers Grove, Illinois 60515
GMAC Mortgage, LLC filed a mortgage foreclosure against Nicholas A. Arrigo and Lena Arrigo, his Wife, among others. The Arrigos filed a Counter-Claim and raised an Affirmative Defense. They sought partition based on Wife’s claim to a Homestead Exemption. GMAC moved to dismiss the Counter-Claim and Affirmative Defense pursuant to 735 ILCS 5/2-619. The DuPage County Trial Judge, Robert G. Gibson, denied the Motion to Dismiss. However, he certified the following question pursuant to Illinois Supreme Court 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 735 ILCS 5/2-901.”
Justice Ann B. Jorgensen of the Appellate Court for the Second Judicial District wrote the opinion.
The property was purchased in 2003 by Husband. Two Refinances and an Assignment later, GMAC filed its Mortgage Foreclosure based on Husband’s default. In its Amended Complaint, GMAC alleged that Husband, who was described as “A MARRIED MAN” in the Mortgage waived his Homestead Exemption. However, GMAC named Wife stating that she “may have some interest in the subject real estate”.
In their Answer, Husband and Wife raised the Affirmative Defense of unclean hands. Wife claimed forgery on the Homestead Waiver, attesting that she was not present at the time of the closing of the loan. The closing occurred at the residence when Wife was not present and she claimed that she did not execute any documents. The Wife also claimed that she never received or signed a waiver of homestead rights and that no notary was present at the closing.
Defendants also filed a Counter-Claim for partition, making similar allegations and further alleging that at the time of the refinance the property was Wife’s primary residence, that she had homestead rights to the property, and that she was entitled to a $15,000.00 estate of homestead.
GMAC filed a combined Motion to Strike and Dismiss Defendants’ Affirmative Defenses and Counter-Claim under 735 ILCS 5/2-615 and 735 ILCS 5/2-619. Wife then filed an Amended Counter-Claim for Partition with the additional allegations that she was not present at the closing and never waived her homestead rights. GMAC then filed a Motion to Dismiss Pursuant to 735 ILCS 5/2-619 only and argued that, as a matter of law, spouse may not claim a Homestead Exemption under 735 ILCS 5/12-901 when she was not a title holder. GMAC also argued that it was irrelevant that she claimed she did not sign the waiver of homestead rights.
The Trial Court denied the Motion to Dismiss. The Judge based his decision on Brod v. Brod, 390 Ill 3(12) 1945. In that case, the Supreme Court held that the Wife was entitled to the entire value of the $1,000.00 Homestead Exemption because the Husband, who had deserted his Wife, through no fault of hers and had offered no other suitable homestead for her couldn’t deprive her of a valuable right to the continuity of her home. The question in the Brod case was whether the Husband could deprive the Wife of her “acquired . . . right to occupy . . . without her consent.”
GMAC argued that Wife cannot seek partition because she has no ownership interest in the property. In its analysis, the Court first looked to the express language of 735 ILCS 5/12-901, which provides as follows:
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 by the Appellate Court in the Opinion.)
The Court grappled with the question of whether Wife “otherwise” rightly possessed the property and attempted to reconcile that portion of the Statute with the final sentence of the Statute which refers to “ownership”. The Court found the “or otherwise” section to be ambiguous. However, reading the Statue as a whole, the Court concluded that the final sentence merely creates an ambiguity in cases such as this and found that the broad language in the early portion of the Statute cannot be reconciled with the narrow language of the final sentence which reflects that its purpose is not to clarify the types of interest that satisfy the Statute but rather to place a cap on the exemption amount where the property is owned by two or more individuals.
From there, the Court went on to analyze the case law cited by GMAC. In Re: Belcher, 551 F. 3d 688 (7th Cir.) 2008 was a bankruptcy case that applied Illinois law. In that case, Husband and Wife filed a Chapter 7 Bankruptcy. The Trustee sold their home to satisfy their debts. Both the Husband and the Wife claimed the Homestead Exemptions. However, the Trustee objected to Husband’s claim. The Trustee argued that he was ineligible because his name was not on title to the home. Despite the fact that both the Husband and Wife lived in the home, the Belcher Court held that the Husband could not claim the Homestead Exemption if his name was not on title. The Belcher Court found “Illinois case law has consistently required a party to have a formalized property interest to claim a Homestead Exemption.”
Even though the Belcher Court acknowledged that a non-titled spouse has a potential equitable interest in a divorce or probate context, the fact that these potential or future equitable interests would be compromised was not found by this Appellate Court to be sufficient to justify Husband’s claim that he “owned or rightly possessed by lease or otherwise” the martial home.
Other cases cited by this Appellate Court stated “Homestead estates can have no existence separate from the title upon which it depends”; “a titled interest is required to sustain a homestead estate”; “something more than mere possession is required to entitle a party to a homestead estate”; and “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 house guest from the family home”; and “homestead right has no existence independent of the title.”
The Court also considered the “Rights of Married Persons Act,” 750 ILCS 65/16. This Act requires one spouse to provide a homestead for the other spouse before removing that spouse from the homestead without his or her consent. However, the Court agreed with the Belcher Court that the Act only protects the right of the non-titled spouse to housing somewhere and does not create a property interest in the martial home.
The “take away” from this case is that if a spouse attempts to assert a homestead interest against a third party, that spouse must have a titled interest in the property in addition to occupying the property as the primary residence.