APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, FIRST DIVISION
537 N.E.2d 974, 182 Ill. App. 3d 121, 130 Ill. Dec. 645 1989.IL.495
Appeal from the Circuit Court of Cook County; the Hon. Harold A. Siegan, Judge, presiding.
PRESIDING JUSTICE MANNING delivered the opinion of the court. CAMPBELL and QUINLAN,* JJ., concur.
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE MANNING
Plaintiff, the Charles Ringer Company (Ringer), filed a complaint for foreclosure on a single-family dwelling located on the southside of Chicago against Maurice McDonald (Maurice), Verdell McDonald (Verdell) and Jacqueline McDonald (Jacqueline). Jacqueline responded with an answer and a counterclaim that she adopted as an affirmative defense. She alleged that Ringer's claim against the property was subordinate to the claim she had acquired when she filed a petition to register a foreign judgment. Ringer filed a motion to dismiss Jacqueline's counterclaim on the ground that Jacqueline had failed to file her petition within the five-year statute of limitations (Ill. Rev. Stat. 1987, ch. 110, par. 13-205). After hearing argument the trial court granted Ringer's motion to dismiss. Thereafter, the court entered a judgment for foreclosure and sale in favor of Ringer against all defendants. In this appeal, Jacqueline asserts that the trial court erroneously (1) granted Ringer's motion to dismiss; (2) found that Ringer's mortgage lien had priority over her foreign judgment lien; and (3) entered judgment based on Ringer's affidavit even though substantial facts were controverted in her answer.
Our review of the record establishes that on July 3, 1985, Ringer filed its complaint for foreclosure and attached thereto was a copy of the mortgage agreement and note. The mortgage was dated August 27, 1984. The note, which was signed by Maurice and Verdell, was in the principal amount of $12,000. The complaint alleged that the mortgage was in default and that Maurice was liable for the deficiency and joined Verdell and Jacqueline as defendants. The relief sought included an accounting, payment of the balance, a finding that the accounting balance was a first lien on the premises and attorney fees.
On July 18, 1985, Jacqueline filed an answer and counterclaim which she adopted as an affirmative defense. Therein, she alleged, inter alia, that on January 31, 1984, she filed in the circuit court of Cook County a verified petition to register a foreign judgment entitled In re the Marriage of Maurice McDonald (No. 84-D-1699), that on February 3, 1984, she recorded a certified copy of the petition with the recorder of deeds and that on December 20, 1984, a final judgment in the amount of $16,806 was entered against Maurice in favor of Jacqueline. She requested that the court dismiss the complaint for foreclosure and find that her lien was superior to that of any other party. Attached to her counterclaim was a copy of her petition to register the foreign judgment, an interlocutory and final judgment for dissolution of marriage and the registered foreign judgment of $16,806.
On September 6, 1985, Ringer filed a motion to dismiss, alleging that Ringer had obtained a lien on the property by recording the mortgage on August 29, 1984, that Jacqueline's petition to register the foreign judgment against Maurice was barred by section 13-205 of the Code of Civil Procedure (Ill. Rev. Stat. 1987, ch. 110, par. 13-205), which requires such actions to be commenced within five years of final judgment, and that the child support judgment entered on December 20, 1984, was subsequent to the mortgage lien and inferior to it.
In her memorandum in opposition to Ringer's motion to dismiss, Jacqueline argued that the statute of limitations is a personal and affirmative defense which Maurice waived by failing to plead and prove, that the statute could not be raised by Ringer because Ringer was not a defendant in that case, that according to section 13-208 of the Code of Civil Procedure (Ill. Rev. Stat. 1987, ch. 110, par. 13-208), the statute of limitations was tolled by the absence of Maurice from the jurisdiction of the court, and that a new cause of action arose as each installment became due because the judgment provided for periodic installments. Thus, she argued, any payments due on or subsequent to January 31, 1979, were not time barred.
In a reply to Jacqueline's memorandum, Ringer admitted that it was not a party to the foreign judgment case and added that this instant matter presented the first opportunity for Ringer to raise the limitations defense, that when Maurice acquired an interest in the property on May 26, 1977, he submitted himself to the jurisdiction of the court, that the petition to register the foreign judgment did not create a judgment for Jacqueline, that the petition merely requested that judgment be entered for her, that the judgment was not entered until December 20, 1984, and that it was subordinate to the mortgage lien recorded on August 2, 1984.
After hearing argument and considering the pleadings, the court entered a memorandum opinion and order granting Ringer's motion to dismiss Jacqueline's counterclaim. Subsequent thereto the court entered a decree of foreclosure and attorney fees.
We must now determine whether the trial court erroneously dismissed Jacqueline's counterclaim when it found that her petition to register the foreign judgment had been barred by the statute of limitations and that the mortgage lien was superior to the foreign judgment lien. A motion to dismiss may be granted when "the claim asserted against defendant is barred by other affirmative matter avoiding the legal effect of or defeating the claim." (Ill. Rev. Stat. 1987, ch. 110, par. 2-619(a)(9).) The affirmative matter must negate the cause of action completely or refute crucial Conclusions of law or Conclusions of material fact unsupported by allegations of specific facts contained in the complaint. Russo v. Boland (1982), 103 Ill. App. 3d 905, 908, 431 N.E.2d 1294.
The purpose of the foreign judgments act (Act) (Ill. Rev. Stat. 1987, ch. 110, pars. 12-601 through 12-617), is to facilitate the interstate enforcement of judgments in any jurisdiction where the judgment debtor may be located. (Brownlee v. Western Chain Co. (1977), 49 Ill. App. 3d 247, 250, 364 N.E.2d 926; Thompson v. Safeway Enterprises, Inc. (1978), 67 Ill. App. 3d 914, 916, 385 N.E.2d 702; Paine, Webber, Jackson & Curtis, Inc. v. ...