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Hello,
I was awarded a judgment against a homeowner in Kane County, Illinois
for a breach of contract. This contract was for the sale of the
defendant's home. The judgment amount was for 2500.00. It was
recorded in the correct Illinois County on Jan 15, 2003 with the
defendants name and property address on the judgment.
On Jan 14, 2004 a Warranty Deed was signed by the defendant and
recorded to a new corporate owner. This corporate owner then sold the
house to a new buyer who is fixing the property.
Both of these buyers received title insurance.
The policy did not show this judgment.
I went down to the recorders office and found that they had switched
the Plaintiff and the Defendant's names in the computer system,
incorrectly recording this judgment. They changed this immediately
when I showed them a copy of the original rendered judgment.
I sent a 10 day demand letter to the 1st buyer, and was sent back a
fax stating the he would not pay, and that, I should contact his Title
company, and attorney. I contacted the Title Company, and they told
me to contact the 1st buyer who purchased the title insurance. After
contacting the buyer's attorney, the 1st buyers attorney sent a copy
of the judgment to the Title insurance company. This was after they
gave me a whole bunch of garbage about the lien being recorded AFTER
the Title transferred.
Now after a week the Title Company tells me that they are unclear of
Title Company's position on this judgment.
I cannot get a hold of the second buyer or his attorney.
Is the Recorders office on the hook for this?
How should I litigate this? Just like a standard foreclosure or is
this what is called a judicial foreclosure.
I am not an attorney, but I have represented my self in over 50 small
claims cases so far, so I have some experience.
Thanks for any advice.
Ed
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I went down to the recorders office and found that they had switched
the Plaintiff and the Defendant's names in the computer system,
incorrectly recording this judgment. They changed this immediately
when I showed them a copy of the original rendered judgment.
It sounds as if the title company didn't actually pull paper, and simply
went with what the computer said.
My dad paid $150 for a short title search- plus $100 to the attorney that
owned the title company for the privilege of ordering it- and while the
search said there were judgments, it failed to tell us how much, and *that*
was what we wanted to know. All of the data in the report was available
online- except for the amount of the judgments.
I do the same thing now, *plus* I pull paper (if the customer lets me do so
on my usual research day) for $40. Better service, a fraction of the money,
and soon I'll even be giving unofficial copies of the paper record for only
a little more.
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Is the Recorders office on the hook for this?
How should I litigate this? Just like a standard foreclosure or is
this what is called a judicial foreclosure.
I am not an attorney, but I have represented my self in over 50 small
claims cases so far, so I have some experience.
You are facing a rather technical legal question which depends in a large
degree on the notice statute in your state. Title insurance isn't the same
as other kinds of insurance, and I personally don't know if this would be
covered. My memory of the last time I studied this subject leads me to
believe that the title insurance company would not be liable since it was
the clerk's error. Were it my case, I would start reviewing the case law in
your jurisdiction to figure out who the defendant should be and what cause
of action to allege. The general rule, though, is that a bona fide purchaser
for value acquires the property without a lien if they have no notice (ie it
wasn't recorded, or was recorded improperly), though it varies what notice
is. I also do not think the clerk is responsible, but that also depends on
your jurisdictional case law.
As for how to foreclose, I don't think that is the right way to go about
this. Where I live a judgment doesn't necessarily give you the right to
foreclose on real estate, particularly if it is homestead property. Your
considerable experience aside, you might just have to get some professional
help on this one, either that or just file an abstract/lien against the
defendant's current property.
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Original poster:
Is the Recorders office on the hook for this?
How should I litigate this? Just like a standard foreclosure or is
this what is called a judicial foreclosure.
I am not an attorney, but I have represented my self in over 50 small
claims cases so far, so I have some experience.
J. Arlen Pruitt <z@d.com> wrote:
You are facing a rather technical legal question which depends in a large
degree on the notice statute in your state. Title insurance isn't the same
as other kinds of insurance, and I personally don't know if this would be
covered. My memory of the last time I studied this subject leads me to
believe that the title insurance company would not be liable since it was
the clerk's error. Were it my case, I would start reviewing the case law in
your jurisdiction to figure out who the defendant should be and what cause
of action to allege. The general rule, though, is that a bona fide purchaser
for value acquires the property without a lien if they have no notice (ie it
wasn't recorded, or was recorded improperly), though it varies what notice
is.
A really tough question. The whole recording thing is designed to
ensure that someone who comes along afterward and pays money for the
property (or lends money against it as security) can know whether
there are outstanding liens against it.
OTOH, the OP has clearly complied with the requirements of the
recording statutes. It isn't his fault that the clerk made an error.
And it's an open question as to just what "recording" is. Assume for
the sake of argument that the OP properly recorded the lien, and the
clerk put it in the proper place in the (paper) files, but mis-coded
it in the computer records. Was the buyer (or his title company)
entitled to rely on the computer record, or should they have actually
gone down to the courthouse and looked at the paper file. IOW, which
version is "official" and "authoritative"?
I also do not think the clerk is responsible, but that also depends on
your jurisdictional case law.
I can't see why the clerk isn't responsible. This is a "ministerial"
act, not a "discretionary" one. And as a general rule public
officials can be held accountable for getting it wrong when performing
ministerial acts.
--
I pledge allegiance to the Constitution of the United States of America, and
to the republic which it established, one nation from many peoples, promising
liberty and justice for all.
Feel free to use the above variant pledge in your own postings.
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Original poster:
Is the Recorders office on the hook for this?
A really tough question. The whole recording thing is designed to
ensure that someone who comes along afterward and pays money for the
property (or lends money against it as security) can know whether
there are outstanding liens against it.
OTOH, the OP has clearly complied with the requirements of the
recording statutes. It isn't his fault that the clerk made an error.
And it's an open question as to just what "recording" is. Assume for
the sake of argument that the OP properly recorded the lien, and the
clerk put it in the proper place in the (paper) files, but mis-coded
it in the computer records. Was the buyer (or his title company)
entitled to rely on the computer record, or should they have actually
gone down to the courthouse and looked at the paper file. IOW, which
version is "official" and "authoritative"?
It seems, according to my brief glance through some CLE materials I have
lying around (god forbid I look something up once in a while), that I was
wrong. The general rule appears to be that errors by the clerk do not
eliminate notice implied by statute if the persone seeking to record
fulfilled all aspects of his/her obligation. If that is the case in the OP
jurisdiction, the lien would probably still be attached to the property. In
that case, the liable party would be the current owner of the property, who
would conversly have a cause against the original owner and possibly the
clerk. I don't have any authority on that though, so do your research before
you start arguing that to a judge.
I can't see why the clerk isn't responsible. This is a "ministerial"
act, not a "discretionary" one. And as a general rule public
officials can be held accountable for getting it wrong when performing
ministerial acts.
True enough, and it appears you are right as I mentioned above. My original
thought, however, was that assuring the correctness of a recording would be
the burden of the person seeking to record it.
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