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Mutual Management Services, Inc v. Richard D. Swalve and Kimberly S. Swalve

August 30, 2011


Appeal from the Circuit Court of Winnebago County. Honorable Gwyn Gulley, Judge, Presiding. No. 09-AR-629

The opinion of the court was delivered by: Justice McLAREN

JUSTICE McLAREN delivered the judgment of the court, with opinion. Justices Hudson and Birkett concurred in the judgment and opinion.


¶ 1 Plaintiff, Mutual Management Services, Inc. (MMS), appeals from the orders of the trial court dismissing with prejudice its amended complaint and denying its motion to reconsider. We affirm.

¶ 2 On July 10, 2009, MMS filed a three-count complaint against defendants, Richard and Kimberly Swalve, seeking to collect debts of just over $10,000 allegedly owed to three medical providers: SwedishAmerican Hospital, Radiology Consultants of Rockford, and Northern Illinois Imaging. MMS attached to the filed complaint assignments of the claims to MMS but failed to attach copies of those assignments to the complaint served on the Swalves. The Swalves filed a motion to dismiss, alleging, among other things, the lack of proper exhibits. The trial court granted the motion without prejudice and granted MMS leave to file an amended complaint, which it did on December 22, 2009. MMS attached as exhibits assignments of the claims from the three medical providers, all dated in December 2009, authorizations for legal action, and patient consent forms.

¶ 3 The Swalves then filed a motion to dismiss and, later, an amended motion to dismiss, which was brought pursuant to section 2-619(a)(9) of the Code of Civil Procedure (Code) (735 ILCS 5/2-619(a)(9) (West 2008)). The Swalves presented two grounds for dismissal: (1) the assignment documents violated section 8b of the Collection Agency Act (Act) (225 ILCS 425/8b (West 2008)); and (2) they received improper notice of the assignments under section 9-406 of the Uniform Commercial Code (UCC) (810 ILCS 5/9-406 (West 2008)). The trial court denied the amended motion to dismiss on the Act grounds but granted the motion on the UCC grounds and dismissed the amended complaint with prejudice. The court subsequently denied MMS's motion to reconsider, and this appeal followed.

¶ 4 Section 2-619(a)(9) of the Code provides for the dismissal of a cause of action where the claim asserted "is barred by other affirmative matter avoiding the legal effect of or defeating the claim." 735 ILCS 5/2-619(a)(9) (West 2008). If the grounds for dismissal do not appear on the face of the pleading being attacked, the motion shall be supported by affidavit. 735 ILCS 5/2-619(a) (West 2008). A section 2-619 motion admits the legal sufficiency of the complaint along with all well-pleaded facts and reasonable inferences drawn from those facts. Giannini v. Kumho Tire U.S.A., Inc., 385 Ill. App. 3d 1013, 1015 (2008). In deciding a motion brought under section 2-619, a court is to interpret all pleadings in the light most favorable to the nonmoving party. See Floyd v. Rockford Park District, 355 Ill. App. 3d 695, 699 (2005). Our review of a trial court's decision regarding a section 2-619 motion is de novo. Giannini, 385 Ill. App. 3d at 1015.

¶ 5 As an initial note, the Swalves insist that their section 2-619 motion to dismiss "should have been characterized" as being brought under section 2-615 of the Code. While appellate review of decisions regarding motions to dismiss brought under both sections is de novo (see Terraces of Sunset Park, LLC v. Chamberlin, 399 Ill. App. 3d 1090, 1092 (2010)), the analysis applied to each is different. In re Estate of Malbrough, 329 Ill. App. 3d 77, 79 (2002). Section 2-615 attacks the legal sufficiency of the complaint by alleging defects on the face of the complaint; section 2-619 assumes that a cause of action has been stated but asserts that the claim is defeated by other affirmative matter. In re Estate of Malbrough, 329 Ill. App. 3d at 79. These motions differ "significantly." Becker v. Zellner, 292 Ill. App. 3d 116, 122 (1997). We will not consider the application of a Code section that was not raised or argued before the court below and that requires a different analysis.

¶ 6 MMS first contends that the Swalves failed to support their amended motion to dismiss with required affidavits. According to MMS, since "it is clear that the face of the Amended Complaint did not provide the grounds upon which the Defendants' Motion was based," affidavits were mandatory; in the absence of any affidavits, the Swalves "failed to meet their burden on the motion." However, MMS did not object to the absence of affidavits in the trial court, and thus it forfeited the issue on appeal. See People ex rel. Abraham v. Allman, 299 Ill. App. 189, 192-93 (1939).

¶ 7 MMS next contends that the trial court erred in determining that the Act "does not control the requirements of assignments and notices in consumer debt collection actions." MMS argues that, when statutes conflict, specific language trumps general language; therefore, the more "specific" Act should be applied instead of the "general" UCC.

¶ 8 The fundamental rule of statutory construction is to give effect to the legislature's intent; in seeking to ascertain that intent, we consider the statutes in their entirety, noting the subject matter that they address and the legislature's apparent objective in enacting them. State of Illinois, Secretary of State v. Mikusch, 138 Ill. 2d 242, 247 (1990). It is presumed that the legislature, in enacting statutes, acts rationally and with full knowledge of all previous enactments. Mikusch, 138

Ill. 2d at 247-48. We also presume that the legislature will not enact a law that completely contradicts another statute without an express repeal of it and that statutes that relate to the same subject are to be governed "by one spirit and a single policy." Mikusch, 138 Ill. 2d at 248.

¶ 9 Subpart 4 of the UCC is entitled "RIGHTS OF THIRD PARTIES." Within this part, section 9-406(a) is addressed to, among other things, discharge of account debtors and notification and identification of, and restrictions on, assignment of accounts, and it provides in relevant part:

"[A]n account debtor on an account *** may discharge its obligation by paying the assignor until, but not after, the account debtor receives a notification, authenticated by the assignor or the assignee, that the amount due or to become due has been assigned and that payment is to be made to the assignee. After receipt of the notification, the account debtor may discharge its obligation by paying the ...

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