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2022 IL App (2d) 210543 

No. 2-21-0543 

Opinion filed August 31, 2022 

IN THE 

APPELLATE COURT OF ILLINOIS 

SECOND DISTRICT 

DARLENE WESTBERG, as Assignee of 

Barbara Bergstrom, 

Plaintiff-Appellant, 

v. 

VICTOR N. BARCROFT; SUSAN 

BARCROFT; DRM PROPERTIES, LLC; 

SARA SINCLAIR; ZANE ANDERSON; 

KELLY BURLINGAME; UNKNOWN 

OWNERS AND TENANTS; and 

NONRECORD CLAIMANTS, 

Defendants 

(Susan Barcroft, Defendant-Appellee). 

) Appeal from the Circuit Court 

) of Lake County. 

) 

) 

) 

) No. 19-CH-535 

) 

) 

) 

) 

) 

) 

) 

) 

) Honorable 

) Stacey L. Seneczko, 

) Judge, Presiding. 

JUSTICE BRENNAN delivered the judgment of the court, with opinion. 

Justices Jorgensen and Schostok concurred in the judgment and opinion. 

OPINION 

¶ 1 Plaintiff, Darlene Westberg (as assignee of Barbara Bergstrom), sued, inter alios, 

defendants, Victor N. Barcroft and Victor’s daughter, Susan Barcroft, for foreclosure of a 

judgment lien against real property Victor and Susan owned in joint tenancy. During the pendency 

of the lawsuit, Victor passed away. The underlying judgment—the subject of the lien—was solely 

against Victor. The parties filed cross-motions for summary judgment on the issue of whether 
 

2022 IL App (2d) 210543 

Victor’s interest in the property extinguished upon his death. The trial court held that it did and 

that Darlene could no longer foreclose on the judgment lien against the property. Accordingly, the 

trial court granted summary judgment in favor of Susan and against Darlene. For the reasons set 

forth below, we affirm. 

¶ 2 I. BACKGROUND 

¶ 3 The following is derived from the pleadings and exhibits on file. 

¶ 4 A. Judgment Lien 

¶ 5 The location of the real property at issue is 312 East Main Street, Barrington (Barrington 

property). On July 5, 2000, Victor conveyed the Barrington property by quitclaim deed to himself 

and Susan as joint tenants. The quitclaim deed was recorded with the Lake County Recorder. A 

title insurance commitment for the Barrington property (with a July 18, 2019, commitment date) 

stated that title is vested in Victor and Susan as joint tenants. 

¶ 6 Approximately 16 years after the execution of the quitclaim deed, on June 14, 2016, 

Barbara obtained a judgment of $388,394.92 against Victor in Florida state court on a breach-ofcontract claim. Barbara assigned her interest in the judgment to Darlene. 

¶ 7 Three years later, on March 15, 2019, Darlene filed with the Lake County Recorder a 

memorandum of judgment lien against the Barrington property. There is no dispute that the 

memorandum of judgment and its filing created a valid judgment lien against the Barrington 

property. See 735 ILCS 5/12-101 (West 2018). The following month, on April 22, 2019, Darlene 

initiated this action by filing a single-count complaint for foreclosure of the judgment lien, against 

Victor, Susan, DRM Properties, LLC, unknown owners and tenants, and nonrecord claimants. The 

complaint was amended on September 30, 2020, to add as defendants Sara Sinclair—alleged to be 

a “friend” of Susan who “placed a mortgage on the Property after the Complaint was filed in this 

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matter”—and Zane Anderson and Kelly Burlingame—tenants at the Barrington property.1 Darlene 

sought a judgment of foreclosure and sale, a personal deficiency judgment against Victor, 

possession of the Barrington property, and termination of any possession rights. 

¶ 8 Approximately a month later, on November 2, 2020, Victor passed away. On June 18, 

2021, the trial court dismissed Victor from the lawsuit with prejudice. 

¶ 9 B. Cross-Motions for Summary Judgment 

¶ 10 On June 11, 2021, the parties filed cross-motions for summary judgment. Susan moved for 

summary judgment on the basis that Victor’s death precluded foreclosure of the judgment lien. 

Susan argued that neither she nor Victor ever conveyed their interest in the Barrington property to 

another individual or entity. Thus, she owned a 100% undivided joint tenancy interest in the 

Barrington property. Accordingly, as the surviving joint tenant of the Barrington property, she 

became the sole owner of the property upon Victor’s death. Since the Florida judgment was solely 

against Victor, Susan argued that there was no basis upon which to foreclose on the judgment lien 

against the Barrington property. 

¶ 11 Darlene moved for summary judgment on the basis that the validity of the Florida judgment 

was undisputed and Susan failed to assert any affirmative defense to excuse Victor’s failure to 

satisfy the judgment. Darlene stated that she was no longer seeking a deficiency judgment and 

sought only to foreclose on Victor’s 50% interest in the Barrington property. Darlene argued that 

Victor’s death did not preclude this relief. Rather, according to Darlene, section 12-157 of the 

1

Subsequently, Anderson and Burlingame were voluntarily dismissed without prejudice 

and a default order was entered against Sinclair, DRM Properties, unknown owners and tenants, 

and nonrecord claimants. 

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Code of Civil Procedure (Code) (735 ILCS 5/12-157 (West 2018)), titled “Death of judgment 

debtor,” allows for foreclosure of the judgment lien. The statute provides that a money judgment 

may be enforced against the real estate of a deceased judgment debtor, or a sale may be made 

under such judgment, without reviving the judgment against the debtor’s heirs, legatees, or legal 

representatives. Id. 

¶ 12 Darlene also argued that section 15-1501(h) of the Illinois Mortgage Foreclosure Law 

(Foreclosure Law) (id. § 15-1501(h)), titled “Special Representatives,” provides an additional 

basis for foreclosure of the judgment lien. Specifically, subsection 15-1501(h)(1) (applicable 

through section 12-101 of the Code (id. § 12-101)—providing that a judgment lien on the judgment 

debtor’s real estate may be foreclosed in the same manner as a mortgage), states that, with respect 

to property that is the subject of the foreclosure action, the court is not required to appoint a special 

representative for a deceased mortgagor for the purpose of defending the action if there is a living 

person that holds a 100% interest in the property by virtue of being the deceased mortgagor’s 

surviving joint tenant or surviving tenant by the entirety, although a deficiency judgment against 

the deceased mortgagor is prohibited. Id. § 15-1501(h)(1). 

¶ 13 C. Trial Court’s Ruling 

¶ 14 Following briefing and argument, on August 20, 2021, the trial court entered an order, 

granting Susan’s motion for summary judgment and denying Darlene’s motion for summary 

judgment for the reasons stated on the record. In its oral findings, the trial court noted that it had 

“reviewed the statutes cited and the pertinent case law and [found] that the property automatically 

did pass to Susan Barcroft upon the death of Victor Barcroft, Susan being a joint tenant with 

Victor.” The trial court reasoned that “[t]he surviving joint tenant succeeds to the share of the 

deceased joint tenant by virtue of a conveyance, which created the joint tenancy[,] not as a 

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2022 IL App (2d) 210543 

successor of the deceased.” Citing the supreme court’s decision in Harms v. Sprague, 105 Ill. 2d 

215, 224-25 (1984), the trial court held that Victor’s property rights in the joint tenancy 

extinguished when he died. Thus, Victor “no longer had a property interest upon which the lien 

could attach.” 

¶ 15 The trial court found section 12-157 of the Code inapplicable because the Barrington 

property “transferred by way of the conveyance and not by some other means such as through 

[Victor’s] estate.” Section 12-157 references notice to the “heirs, legatees or legal representatives.” 

735 ILCS 5/12-157 (West 2018). While Susan happens to also be Victor’s heir, “she could very 

well have been not related to her [sic] in which case, according to [Darlene’s] contention, you’d 

be able to foreclose without any, I guess, notice to her outside of the litigation itself.” 

¶ 16 The trial court also rejected the applicability of section 15-1501(h)(1) of the Foreclosure 

Law. Citing the appellate court’s decision in Deutsche Bank National Trust Co. v. Estate of 

Schoenberg, 2018 IL App (1st) 160871, ¶ 21, the trial court reasoned that section 15-1501(h) of 

the Foreclosure Law “does not modify the mortgagee’s rights with respect to the foreclosure 

action. It does not create, define or regulate any rights of the parties to the action.” Rather, section 

15-1501(h) merely addresses “the procedural aspect of who is a necessary party.” The trial court 

distinguished JP Morgan Mortgage Acquisition Corp. v. Bell, 2020 IL App (3d) 190128, ¶¶ 37-

38, in which the appellate court rejected the surviving tenant by the entirety’s argument that the 

deceased tenant by the entirety was a necessary party to the mortgage foreclosure action and held 

that the action could proceed solely against the surviving tenant by the entirety. The trial court 

reasoned that, in Bell, “both tenants by the entirety executed the mortgage even though the 

[deceased tenant by the entirety] was the only one who signed the note.” Therefore, the deceased 

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2022 IL App (2d) 210543 

tenant by the entirety was not a necessary party under section 15-1501(h). The trial court stated 

that the Bell decision did not “hold beyond that as [Darlene] argues.” 

¶ 17 Accordingly, the trial court entered judgment in favor of Susan and against Darlene. In its 

written order, the trial court further provided that “[a]ll defaults, technical or otherwise, entered 

against Defendants DRM Properties, LLC, Sara Sinclair, all tenants, unknown owners, and nonrecord claimants are hereby vacated, and all claims against them are dismissed as moot” and that 

“[t]his Order disposes of all claims and all Parties, thereby closing the matter.” 

¶ 18 Darlene timely appealed. 

¶ 19 II. ANALYSIS 

¶ 20 On appeal, Darlene argues that the trial court misconstrued both section 12-157 of the Code 

and section 15-1501(h)(1) of the Foreclosure Law. Susan responds that the trial court did not 

misinterpret the statutes; rather, the statutes are not applicable in the first instance. We agree with 

Susan and hold that the trial court properly granted summary judgment in her favor. 

¶ 21 Summary judgment is proper when “the pleadings, depositions, and admissions on file, 

together with the affidavits, if any, show that there is no genuine issue as to any material fact and 

that the moving party is entitled to a judgment as a matter of law.” 735 ILCS 5/2-1005(c) (West 

2018). “The purpose of summary judgment is not to try a question of fact, but rather to determine 

whether a genuine question of material fact exists.” Bagent v. Blessing Care Corp., 224 Ill. 2d 154, 

162 (2007). In determining whether there is a genuine issue of material fact, the pleadings, 

depositions, admissions, and affidavits must be construed strictly against the movant and liberally 

in favor of the opponent. Id. A triable issue of fact exists where there is a dispute as to a material 

fact or where, although the material facts are not in dispute, reasonable minds might differ in 

drawing inferences from those facts. Id. at 162-63. Although summary judgment can aid in the 

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expeditious disposition of a lawsuit, it is a drastic measure and, thus, should be allowed only where 

the movant’s right to judgment is “clear and free from doubt.” Williams v. Manchester, 228 Ill. 2d 

404, 417 (2008). We review summary judgment rulings de novo. Id. 

¶ 22 Darlene essentially argues that the trial court improperly read a joint-tenancy-interest 

exception into section 12-157 and a joint-indebtedness requirement into section 15-1501(h)(1). 

Susan responds that section 12-157 applies to a judgment against the debtor’s estate and heirs, not 

to a surviving joint tenant. Susan also responds that section 15-1501(h)(1) provides no basis for 

foreclosure of the judgment lien against the Barrington property, because she was neither a 

mortgagor nor a person who owes payment of indebtedness secured by a mortgage. Moreover, the 

Barrington property had passed to her unencumbered by the judgment lien against Victor. 

¶ 23 Resolving the parties’ arguments requires a review of joint tenancy law and interpretation 

of section 12-157 of the Code and section 15-1501(h)(1) of the Foreclosure Law. The fundamental 

objective of statutory construction is to ascertain and give effect to the legislature’s intent. 

Rosenbach v. Six Flags Entertainment Corp., 2019 IL 123186, ¶ 24. The most reliable indicator 

of legislative intent is the statutory language, given its plain and ordinary meaning. Id. Each word, 

clause, and sentence of a statute must be given a reasonable construction, and no term should be 

rendered superfluous. 1010 Lake Shore Ass’n v. Deutsche Bank National Trust Co., 2015 IL 

118372, ¶ 21. A court may not depart from the plain and unambiguous language by reading into 

the statute exceptions, limitations, or conditions not expressed therein. Rosenbach, 2019 IL 

123186, ¶ 24. We review de novo questions of statutory interpretation. Id. ¶ 18. With these 

concepts in mind, we consider whether the trial court properly held that Victor’s interest in the 

Barrington property extinguished upon his death such that Darlene’s judgment lien could no longer 

attach to the Barrington property. 

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2022 IL App (2d) 210543 

¶ 24 A. Joint Tenancy 

¶ 25 A joint tenancy is a “present estate in all the joint tenants, each being seized of the whole.” 

(Internal quotation marks omitted.) Harms, 105 Ill. 2d at 224. An inherent feature of a joint tenancy 

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

Id. “In other words, title vests automatically upon the death of the deceased joint tenant.” In re 

Estate of Martinek, 140 Ill. App. 3d 621, 628-29 (1986); see also 765 ILCS 1005/1 (West 2018) 

(provision of Joint Tenancy Act defining joint tenancy). The creation and perpetuation of the joint 

tenancy are dependent upon four unities: interest, title, time, and possession. Harms, 105 Ill. 2d at 

220. The voluntary or involuntary destruction of any of the unities by one of the joint tenants severs 

the joint tenancy. Id. at 220-21. The severance of the joint tenancy, in turn, terminates the right of 

survivorship. Maniez v. Citibank, F.S.B., 404 Ill. App. 3d 941, 953 (2010) (citing Jackson v. 

O’Connell, 23 Ill. 2d 52, 55 (1961)). 

¶ 26 Here, the existence and validity of the joint tenancy were not disputed. There was no 

allegation that Victor fraudulently conveyed the Barrington property to Susan. Indeed, Victor 

conveyed the property by quitclaim deed to himself and Susan as joint tenants, 16 years before the 

entry of the Florida judgment against Victor. The quitclaim deed was recorded with the Lake 

County Recorder. The title insurance commitment for the Barrington property reflected that Victor 

and Susan held title to the property as joint tenants. Neither Victor nor Susan severed the joint 

tenancy through a conveyance of his or her interest. See id. at 954 (“We conclude that Illinois 

requires a conveyance of the joint tenant’s interest in the property to sever a joint tenancy.”). 

¶ 27 The filing of the memorandum of judgment lien against the Barrington property did not 

sever the joint tenancy. Our supreme court has long recognized that a “judgment lien does not 

sever the joint tenancy and that by the taking of the judgment nothing was done to sever this 

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estate.” Van Antwerp v. Horan, 390 Ill. 449, 452 (1945) (citing People’s Trust & Savings Bank v. 

Haas, 328 Ill. 468, 471 (1927)). In Haas, the court held that a judgment lien against the deceased 

joint tenant’s interest in the property was extinguished upon his death and that the surviving joint 

tenant became the sole owner by operation of law. Haas, 328 Ill. at 471. The court rejected the 

creditor’s argument that its filing of the transcript of judgment—the procedure required by law at 

the time to perfect the lien—severed the joint tenancy. Id. Accordingly, the court affirmed the 

entry of a decree that title to the premises vested in the surviving joint tenant, free of the creditor’s 

encumbrance. Id. 

¶ 28 In Van Antwerp, the court extended its holding in Haas to a court-ordered levy on property 

held in joint tenancy. Van Antwerp, 390 Ill. at 454-55. Specifically, the court held that 

“it is clear that if the attaching of a judgment lien upon the interest of a joint tenant does 

not sever the joint tenancy, the making of a levy upon the interest of the joint tenant debtor 

would not be such act as would sever the joint estate, because of the fact that the levy gives 

no greater interest than that which the judgment creditor already possessed.” Id. at 454. 

Rather, the levy is “just another step in the process directed toward a final sale,” not a divestiture 

of title. Id. at 455. Thus, because the judgment debtor had died, the court affirmed the decree 

prohibiting the sale of the premises under the court-ordered levy. Id. at 451, 455. 

¶ 29 In accordance with the rationale advanced in Van Antwerp, the supreme court later held 

that even the sale of the joint tenant’s interest in the property did not sever the joint tenancy, 

because there was no actual conveyance until the redemption period had passed. Jackson v. Lacey, 

408 Ill. 530, 532-33 (1951). A “sale is but another step forward toward a divestiture of title which 

can only come about at a future time, if not barred by a redemption.” Id. at 533 (affirming decree 

dismissing partition complaint). 

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2022 IL App (2d) 210543 

¶ 30 Subsequently, in Harms, the supreme court likewise held that a mortgage one joint tenant 

executed on the property neither severed the joint tenancy nor survived as a lien on the property 

upon the death of the mortgaging joint tenant. Harms, 105 Ill. 2d at 224-25. Rather, the surviving 

joint tenant became the sole owner of the estate in its entirety. Id. The court explained that a 

surviving joint tenant succeeds to the share of the deceased joint tenant by virtue of the conveyance 

that created the joint tenancy, not as successor of the deceased. Id. at 224. While the mortgaging 

joint tenant was alive, the mortgage existed as a lien on his interest in the joint tenancy. Id. 

However, at the moment of his death, the mortgaging joint tenant’s interest in the property “ceased 

to exist and along with it the lien of the mortgage.” Id. (citing Merchants National Bank of Aurora 

v. Olson, 27 Ill. App. 3d 432, 434 (1975)). 

¶ 31 In Olson, the appellate court discussed the import of joint tenancy law in relation to section 

219b(a) of the Probate Act (Ill. Rev. Stat. 1971, ch. 3, ¶ 219b(a)) (now section 20-19(a) of the 

Probate Act of 1975 (755 ILCS 5/20-19(a) (West 2018))). Olson, 27 Ill. App. 3d at 433-34. There, 

the bank obtained a judgment against the husband and filed a memorandum of judgment creating 

a lien against real estate the husband had owned in joint tenancy for several years with his wife. 

Id. at 433. After the husband died, the bank filed a citation to discover the wife’s assets. Id. The 

wife successfully moved to dismiss the action on the basis that, as the surviving joint tenant, she 

became the sole owner of the property, “free and clear” of the bank’s lien. Id. 

¶ 32 In affirming, the appellate court noted the bank’s concession that “the rendition of a 

judgment against one joint tenant of real estate does not constitute a severance of the joint tenancy” 

and that the law provided that “if the debtor dies before a sale is had the debtor’s share vests in the 

surviving joint tenant free of the judgment lien.” Id. (citing Jackson, 408 Ill. 530; Van Antwerp, 

390 Ill. 449; Haas, 328 Ill. 468). However, the bank argued that section 219b(a) changed the law. 

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Olson, 27 Ill. App. 3d at 433. Section 219b(a) provided that, “ ‘[e]xcept as otherwise expressly 

provided by the decedent’s will,’ ” when “ ‘any real estate *** subject to an encumbrance, *** 

passes by joint tenancy *** the surviving tenant *** takes it subject to the encumbrance and is not 

entitled to have the indebtedness paid from other real or personal estate of the decedent.’ ” Id. at 

433-34 (quoting Ill. Rev. Stat. 1971, ch. 3, ¶ 219b(a)). 

¶ 33 In rejecting the bank’s argument, the appellate court reasoned that the requisite for 

application of the statute was that the real estate in fact be subject to an encumbrance. Id. at 434. 

However, “[t]he real estate involved in the instant case was not subject to an encumbrance from 

the instant of the death of [the husband] because the property right on which the judgment was a 

lien was gone at that precise moment.” Id. In other words, the lien expired because there was no 

interest to which it could attach. Id. The court concluded: 

“When a creditor has a judgment lien against the interest of one joint tenant he can 

immediately execute and sell the interest of his judgment debtor and thus sever the joint 

tenancy, or he can keep his lien alive and wait until the joint tenancy is terminated by the 

death of one of the joint tenants. If the judgment debtor survives, the judgment lien 

immediately attaches to the entire property. If the judgment debtor is the first to die, the 

lien is lost.” Id. 

¶ 34 Application of the foregoing principles compels a holding that, upon Victor’s death, there 

was no longer a property interest upon which the judgment lien could attach. At the time of his 

death, Victor and Susan owned the Barrington property in joint tenancy. Susan was not a judgment 

debtor; the Florida judgment was solely against Victor. The memorandum of judgment lien against 

Victor’s interest in the property had been filed, and this cause of action for foreclosure of the 

judgment lien had been initiated. But there had not even been a court-ordered levy on the property 

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(see Van Antwerp, 390 Ill. at 454-55), or a final sale of the property (see Jackson, 408 Ill. at 532-

33). Accordingly, Victor’s property rights in the joint tenancy extinguished upon his death and, 

thus, so did the lien. See Harms, 105 Ill. 2d at 224-25. Susan, as the last surviving joint tenant, 

automatically became the 100% owner of the Barrington property by operation of law. Victor no 

longer had an interest in the Barrington property upon which Darlene’s judgment lien could attach. 

¶ 35 Darlene maintains that, as a judgment creditor, she is nonetheless still entitled to foreclose 

on Victor’s interest in the Barrington property. In support, she cites section 12-157 of the Code 

and section 15-1501(h)(1) of the Foreclosure Law. We turn to these statutes. 

¶ 36 B. Section 12-157 

¶ 37 Section 12-157 of the Code (735 ILCS 5/12-157 (West 2018))—titled “Death of judgment 

debtor”—provides in its entirety: 

“If a person dies, after a court enters on judgment for the payment of money against him 

or her, the judgment may be enforced against the real estate of such deceased person, or a 

sale may be made under such judgment, without reviving the judgment against his or her 

heirs, legatees or legal representatives. No sale shall be made until after the expiration of 

12 months from the death of such deceased person, nor shall any sale be had on such 

judgment until the person in whose favor the judgment is sought to be enforced shall give 

to the executor or administrator, or if there is neither, the heirs of the deceased, at least 3 

months’ notice of the existence of such judgment, before proceeding to sell, which notice 

shall be in writing if the parties required to be notified reside or may be found within the 

State, and their place of residence known, otherwise publication notice shall be given in 

the same manner as is provided for other civil cases.” 

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¶ 38 According to Darlene, the plain language of the statute allows a judgment creditor to 

foreclose on the judgment debtor’s interest in real property after the judgment debtor’s death. 

However, the statutory language assumes the continued existence of the judgment debtor’s interest 

in the real property. The fundamental flaw in Darlene’s argument is that Victor—the judgment 

debtor—no longer had an interest in the Barrington property at the moment of his death. Precisely, 

section 12-157 allows for the enforcement of a judgment against “the real estate of such deceased 

person.” Id. As discussed, the Barrington property is no longer Victor’s property. Susan, as the last 

surviving joint tenant, automatically became the 100% owner of the Barrington property when 

Victor died. See Harms, 105 Ill. 2d at 224-25. Therefore, section 12-157 provides no basis for the 

enforcement of Darlene’s judgment lien against the Barrington property. 

¶ 39 Darlene contends that this holding reads a joint-tenancy-interest exception into section 12-

157. We disagree. There is no need for a joint-tenancy-interest exception to section 12-157 because 

the statute is not applicable here in the first instance. The plain language of section 12-157 reflects 

its application to property devised through the deceased debtor’s estate, not to property conveyed 

by joint tenancy. Namely, section 12-157 provides that a judgment may be enforced against the 

real estate of a deceased person “without reviving the judgment against his or her heirs, legatees 

or legal representatives,” but it prohibits a sale of the real estate within the first 12 months after 

the deceased debtor’s death and requires the specified notice of the judgment to the executor, 

administrator, or heirs before sale. (Emphasis added.) 735 ILCS 5/12-157 (West 2018). The 

statute was intended “to protect the heirs and administrators from being sacrificed by sale on 

execution before opportunity was had to marshal the assets of the estate and meet the existing 

liens.” (Internal quotation marks omitted.) Woods v. Primm, 13 F.2d 572, 574 (7th Cir. 1926) 

(discussing the predecessor deceased debtor statute). 

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¶ 40 Section 12-157 has no function in this case. There are no interests of either an heir or a 

legatee (or legal representative) at issue in this case. There is no executor, administrator, or heir to 

whom notice of the judgment must be provided. Susan became the sole owner of the Barrington 

property by operation of joint tenancy law, not by being Victor’s heir. 

¶ 41 The dichotomy between an heir’s inheritance and a joint tenant’s right of survivorship was 

discussed in Martinek, 140 Ill. App. 3d 621. The real estate purchase contract in Martinek stated 

that the seller, upon satisfaction of the purchasers’ obligations under the installment contract, 

would deliver a deed conveying the property to the purchasers as joint tenants. Id. at 624. However, 

the purchasers, with the sellers’ consent, subsequently assigned their rights to George and Shirley 

Martinek. Id. After George died, his devisees filed a probate petition in which they successfully 

requested a declaration that the Martineks owned the property as tenants in common and that 

George’s interest in the property therefore passed to his estate. Id. at 624-25. 

¶ 42 In reversing the trial court’s order, the appellate court held that the Martineks, as assignees 

of the real estate purchase contract, “were placed in the shoes of the assignors” and, as a result, 

held equitable title to the property as joint tenants. Id. at 630. Consequently, Shirley, as the 

surviving joint tenant, was entitled to full interest in the property, free from any claims of George’s 

devisees. Id. at 630-31. The court explained that “[a] surviving joint tenant succeeds to the 

deceased joint tenant’s share by dint of the conveyance that created the joint tenancy, not as the 

successor of the decedent.” Id. at 629 (citing Harms, 105 Ill. 2d at 224). Accordingly, 

“[a] joint tenancy is not an estate of inheritance and, thus, does not become part of the 

probate estate; therefore, it follows naturally that a joint tenant who dies first has no interest 

in the property that he or she can convey or devise. Title to property that is held in joint 

tenancy takes precedence over the claim of the devisee, legatee, or heir.” Id. (citing Ill. 

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Rev. Stat. 1983, ch. 76, ¶ 1a (now codified at 765 ILCS 1005/1a (West 2018), pertaining 

to contracts for purchase of real estate). 

¶ 43 Here, at the moment of Victor’s death, Susan became the sole owner of the Barrington 

property by operation of joint tenancy law. The property never became part of Victor’s estate. As 

Victor no longer has any interest in the Barrington property, there is no interest upon which the 

judgment lien may attach. 

¶ 44 Darlene maintains that this court’s decision in In re Marriage of Ross, 2015 IL App (2d) 

130961, ¶ 25, “confirmed that the purpose of the Deceased Debtor Statute was to provide that a 

judgment survives the death of a judgment debtor and allows a judgment debtor to foreclose on 

the judgment debtor’s real property after the judgment debtor dies, without exception.” Initially, 

we note that we never stated that the deceased debtor statute applies “without exception,” as 

Darlene represents. In any event, Darlene’s reliance upon Ross is misplaced because the case did 

not involve a joint tenancy interest. Rather, at issue was the timeliness of the former wife’s claim 

for overdue child support against the deceased husband’s estate. Id. ¶ 14. In holding that the claim 

was untimely pursuant to section 510(e) of the Illinois Marriage and Dissolution of Marriage Act 

(750 ILCS 5/510(e) (West 2012)), we rejected the applicability of, inter alia, section 12-157, given 

the statute’s lack of any specific reference to judgments for child support. Ross, 2015 IL App (2d) 

130961, ¶¶ 25, 31. Ross provides no support for Darlene’s position that section 12-157 allows for 

the enforcement of the judgment lien against the Barrington property. 

¶ 45 Darlene’s reliance upon Kinkade v. Gibson, 209 Ill. 246 (1904), and Woods, 13 F.2d 572, 

is likewise misplaced, as neither case involved a joint tenancy interest. Both cases addressed the 

enforcement of a judgment, pursuant to the predecessor deceased debtor statute, against a deceased 

debtor’s real property inherited by his heirs or devisees—precisely the scenario contemplated by 

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the language of section 12-157. See Kinkade, 209 Ill. at 248, 250-51; Woods, 13 F.2d at 573-75. 

Here, in contrast, there was no inheritance. At the time of his death, Victor’s interest in the 

Barrington property was extinguished. By operation of joint tenancy law, and not as Victor’s heir, 

Susan became the owner of the property in its entirety, free and clear of the judgment lien. Thus, 

section 12-157 provides Darlene no basis for relief. 

¶ 46 C. Section 15-1501 

¶ 47 This case involves a judgment lien, not a mortgage lien. The record demonstrates that there 

was no mortgage on the Barrington property (beyond an isolated allegation in the amended 

complaint regarding Susan’s “friend” who placed a mortgage on the Barrington property after this 

action was filed). Nonetheless, section 12-101 of the Code provides that a judgment lien on certain 

real estate of the person against whom it is entered “may be foreclosed by an action brought in the 

name of the judgment creditor *** in the same manner as a mortgage of real property,” with certain 

exceptions not at issue here. 735 ILCS 5/12-101 (West 2018); Schindler v. Watson, 2017 IL App 

(2d) 160126, ¶ 13. 

¶ 48 Section 15-1501 of the Foreclosure Law, titled “Parties,” delineates, inter alia, the 

necessary and permissible parties to a mortgage foreclosure action. 735 ILCS 5/15-1501 (West 

2018). Section 15-1501(h), titled “Special Representatives,” provides that, 

“[w]ith respect to the property that is the subject of the action, the court is not required to 

appoint a special representative for a deceased mortgagor for the purpose of defending the 

action, if there is a: 

(1) living person, persons, or entity that holds a 100% interest in the 

property, by virtue of being the deceased mortgagor’s surviving joint tenant or 

surviving tenant by the entirety[.]” Id. § 15-1501(h)(1). 

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Section 15-1501(h) also provides that a deficiency judgment against the deceased mortgagor is 

prohibited. Id. § 15-1501(h). 

¶ 49 According to Darlene, section 15-1501(h)(1) allows a secured party to foreclose on the 

deceased’s former ownership percentage and directs that the foreclosure action should be pursued 

against the surviving joint tenant who obtained a 100% ownership interest. We disagree, as this 

interpretation ignores the plain language and purpose of the statute. 

¶ 50 Section 15-1501(h) merely addresses the circumstances under which a court need not 

appoint a special representative for a deceased mortgagor for the purpose of defending the action. 

It has no bearing on the substantive law of joint tenancy discussed supra. Indeed, the purpose of 

section 15-1501(h) is to “regulate[ ] the procedural question of when a special representative must 

be appointed”; the statute “does not create, define, or regulate any rights of the parties to the 

action.” Schoenberg, 2018 IL App (1st) 160871, ¶ 21 (holding that the legislative amendment to 

section 15-1501(h)(5), which provides that appointment of a special representative for a deceased 

mortgagor is not required where the deceased mortgagor conveyed title of the property to a trust 

prior to his death, applied retroactively). In other words, the statute “regulates the foreclosure 

proceedings by providing that the circuit court need not appoint a special representative when the 

property rights that would be protected by such appointment already belong to a person or entity 

capable of being sued.” Id. Accordingly, section 15-1501(h)(1) does not provide a mechanism to 

resurrect Victor’s extinguished interest in the Barrington property, as Darlene suggests. 

¶ 51 Darlene nonetheless maintains that the appellate court’s decision in Bell, 2020 IL App (3d) 

190128, supports a holding that she may proceed against Susan to foreclose the judgment lien 

against the Barrington property. Bell is inapposite. There, the husband and wife jointly executed a 

mortgage agreement for the purchase of a home as mortgagors and tenants by the entirety; 

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however, only the wife signed the note. Id. ¶¶ 4-5. The wife died three years later. Id. ¶ 11. 

Subsequently, the mortgagee’s assignee filed a complaint against both the husband and the wife to 

foreclose upon the mortgage agreement. Id. ¶ 12. The assignee (at this point, a substituted party) 

moved to dismiss the wife as a defendant, based upon her death. Id. ¶ 17. The motion was granted, 

and the wife was dismissed from the case. Id. After protracted litigation involving a purported 

release from the mortgage and the validity of various assignments, the trial court entered a 

judgment of foreclosure and sale. Id. ¶¶ 19-27. The trial court later confirmed the sale and entered 

an eviction order and deficiency judgment. Id. ¶ 29. 

¶ 52 On appeal, the husband argued, inter alia, that the wife was a necessary party such that the 

trial court lost subject matter jurisdiction after the wife was dismissed from the action. Id. ¶¶ 34, 

36 (citing ABN AMRO Mortgage Group, Inc. v. McGahan, 237 Ill. 2d 526, 528, 535 (2010) 

(foreclosure proceedings are quasi in rem actions; thus, for the trial court to obtain subject matter 

jurisdiction, a mortgagee must name a personal representative for a deceased mortgagor in a 

mortgage foreclosure proceeding)). Consequently, the husband argued that the foreclosure 

judgment and subsequent orders were void. Id. ¶ 34. 

¶ 53 The appellate court rejected the husband’s argument, citing the application of section 15-

1501. Id. ¶¶ 36-37. Namely, in accordance with section 15-1501(h), there was no need to appoint 

a special representative for the wife to defend the action, because the husband—the surviving 

tenant by the entirety holding a 100% interest in the property—was also named as a defendant. Id. 

¶¶ 37-38. 

¶ 54 As discussed, the case sub judice does not involve the question of whether the trial court 

was required to appoint a special representative for a deceased mortgagor to defend the action. 

Bell speaks to “the procedural question of when a special representative must be appointed” (see 

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Schoenberg, 2018 IL App (1st) 160871, ¶ 21), not the substantive law of joint tenancy. Moreover, 

as the trial court pointed out, the defendant husband in Bell was not just the owner of the property 

as a surviving joint tenant by the entirety; he had also jointly executed the mortgage agreement. 

Bell, 2020 IL App (3d) 190128, ¶¶ 4-5. Thus, a special representative for the deceased mortgagor 

was not necessary where “the property rights that would be protected by such appointment already 

belong to a person or entity capable of being sued.” See Schoenberg, 2018 IL App (1st) 160871, 

¶ 21. 

¶ 55 In sum, Susan is not a judgment debtor; the Florida judgment was solely against Victor. 

Susan, as the last surviving joint tenant, automatically became the 100% owner of the Barrington 

property when Victor died. See Harms, 105 Ill. 2d at 224-25. Accordingly, Victor no longer had 

an interest in the Barrington property upon which Darlene’s judgment lien may attach. The trial 

court, therefore, properly entered summary judgment in Susan’s favor. 

¶ 56 III. CONCLUSION 

¶ 57 For the reasons stated, we affirm the judgment of the circuit court of Lake County. 

¶ 58 Affirmed. 

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Westberg v. Barcroft, 2022 IL App (2d) 210543 

Decision Under Review: Appeal from the Circuit Court of Lake County, No. 19-CH-535; 

the Hon. Stacey L. Seneczko, Judge, presiding. 

Attorneys Ariel Weissberg and Rakesh Khanna, of Wiessberg and 

for Associates, Ltd., of Chicago, for appellant. 

Appellant: 

Attorneys James A. Karamanis and Kenneth A. Nazarian, of Barney & 

for Karamanis, LLP, of Chicago, for appellee. 

Appellee: 

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