It’s easy to robotically parrot the “beneficial interest in a land trust is personal property” rule but First Clover Leaf Bank v. Bank of Edwarsville, 2014 WL 6612947 (5th Dist. 2014) actually examines the rule’s impact against the factual backdrop of a judgment creditor trying to lien a debtor’s residence.
The creditor plaintiff obtained a $400,000-plus judgment against a husband and wife (the “Shareholders”) on various commercial guaranties they signed. A corporation that the Shareholders each held a 50% stake in was the beneficiary of a land trust that held title to the Shareholders’ home (the “Property”).
When plaintiff learned that the Shareholders were trying to sell the Property for over $700,000, it recorded a lis pendensbased on its earlier breach of guaranty judgment. The lis pendens filing dissuaded the Property’s contract purchaser from closing and a lender later sued to foreclose on the Property.
The plaintiff then filed suit against the land trust, the corporate beneficiary (the Shareholders’ company) and the Shareholders to impose a constructive trust over the foreclosure sale proceeds. The trial court granted plaintiff’s summary judgment motion and imposed a constructive trust on the proceeds. The court also held that the corporate beneficiary was the alter ego of the Shareholders and so plaintiff was entitled to a constructive trust on each Shareholder’s equitable interest in the foreclosure sale proceeds. The land trust appealed.
Held: reversed. Land trust beneficial interest is personal property; not real property. As a result, the lis pendens recording didn’t affect the corporate beneficiary’s interest in the Property.
– A beneficiary’s interest in a land trust is personal property and is not considered real estate;
– To create a security interest in personal property, a creditor must look to Article 9 of the UCC;
– Assignment of a beneficial interest in an Illinois land trust transfers an interest in personal property and does not give the assignee a direct interest in the real estate subject to the trust;
– A lien on a beneficial interest is not a lien on the real estate itself;
– A corporation will be deemed an alter ego of a controlling shareholder where the corporation is inadequately capitalized, doesn’t issue stock or observe corporate formalities, fails to pay dividends, is insolvent, has no records and nonfunctioning officers;
– Illinois has a general reluctance to pierce the corporate veil and a party seeking to pierce must make a substantial showing on all these factors;
– A lis pendens notice can only be filed when real estate is involved (735 ILCS 5/2-1901); it is not proper to file in connection with a personal judgment against someone
Here, the Shareholders had no legal interest in the Property. They were shareholders in a corporation that was a beneficiary of the land trust that held title to the Property. The corporate beneficiary’s interest in the land trust was personal property. Because of this, the Shareholders interest in that corporate beneficiary was also personal property.
The net effect: plaintiff could not impress a lien against the Property in efforts to enforce its guaranty judgments against the Shareholders. Instead, Plaintiff should have filed a UCC financing statement (in the Secretary of State’s office) to lien the beneficial interest in the land trust. Since the shareholders had no definable legal interest in the Property (it was owned by the land trust), plaintiff couldn’t assert a constructive trust against the Property foreclosure sale proceeds.
Take-away: A factually convoluted and tortured case that illustrates the challenges creditors face trying to untangle complex webs of corporate protection to reach a controlling individual’s assets. If in the creditor’s position, in addition to filing a UCC statement, I think I would issue third-party citations on the land trust entity and the corporate beneficiary. Then, I would try to impress a lien or seek a turnover order as to any of the Shareholders interests in either the land trust or the corporate beneficiary.