WELLS FARGO BANK, N.A., as Trustee for Carrington Mortgage Loan Trust, Series 2006-RFC1, Asset-backed Pass-Through Certificates, Plaintiff-Appellee,
DIXIE R. NORRIS, a/k/a DIXIE RUTH NORRIS, a/k/a DIXIE NORRIS, a/k/a DIXIE R. HICKS; ARTHUR NORRIS, a/k/a ARTHUR W. NORRIS; MARK W. SCHWIEBERT, for SCHWIEBERT & SCHWIEBERT; UNKNOWN OWNERS and NON-RECORD CLAIMANTS; UNKNOWN OCCUPANTS, Defendants ARTHUR NORRIS, a/k/a ARTHUR W. NORRIS, Defendant-Appellant.
from the Circuit Court of the 14th Judicial Circuit, Rock
Island County, Illinois Circuit No. 12-CH-141 The Honorable
Mark A. Vandeweile, Judge presiding.
JUSTICE CARTER delivered the judgment of the court, with
opinion. Justices McDade and Schmidt concurred in the
judgment and opinion.
1 Plaintiff, Wells Fargo Bank, N.A., as trustee for a certain
specified trust, brought an action against defendant, Arthur
Norris, and others seeking to foreclose upon a mortgage held
on certain real property in Rock Island County, Illinois.
During pretrial proceedings, Wells Fargo moved for summary
judgment on the foreclosure complaint. Defendant opposed the
motion, claiming, among other things, that Wells Fargo's
foreclosure complaint was barred by the single refiling rule
(735 ILCS 5/13-217 (West 1994)). Following a hearing, the
trial court granted summary judgment for Wells Fargo on the
mortgage foreclosure complaint. After defendant's motion
to reconsider was denied, the property was sold at a
foreclosure sale, and the sale was confirmed by the trial
court. Defendant appeals, challenging the trial court's
grant of summary judgment for Wells Fargo. We affirm the
trial court's judgment.
3 This case (the 2012 foreclosure case or the 2012 case) has
a long history in the trial court, spanning several years.
Most of that history, however, is not relevant to the issue
raised in this appeal. The facts of this case that are
pertinent to that issue are as follows. Defendant and his
former wife, Dixie Norris, owned the subject property in East
Moline, Rock Island County, Illinois. The property was
residential property. In February 2006, Dixie borrowed $161,
500 from Hamilton Mortgage Company and signed a promissory
note to that effect. The debt was to be paid back in monthly
installments over a 30-year period and was subject to an
adjustable rate of interest. The note was signed only by
Dixie, as the borrower, and not by defendant. The note was
secured by a mortgage (the mortgage or the original mortgage)
on the subject property, which was duly recorded. The
mortgage was signed by defendant and Dixie as the mortgagors.
In January 2008, defendant and Dixie stopped making payments
and defaulted on the mortgage. No payments on the mortgage
were made after that time.
4 In July 2008, Wells Fargo, as the alleged legal holder of
the note and mortgage, filed its first foreclosure action in
Rock Island County as to the subject property (the 2008
foreclosure case or the 2008 case) against Dixie, defendant,
and certain others. The complaint alleged a default on the
original mortgage; a default date of January 2008 through the
present; and an outstanding principal balance due and owing
of $159, 061.43 plus interest, costs, and attorney fees. In
February 2009, a judgment of foreclosure and sale (the
foreclosure judgment) was entered in the 2008 case. However,
allegedly believing that defendant and Dixie had entered into
a loan modification agreement, Wells Fargo moved to vacate
the foreclosure judgment and to dismiss the 2008 case without
prejudice. That motion was granted in July 2009.
5 In March 2010, Wells Fargo filed its second foreclosure
action in Rock Island County as to the subject property (the
2010 foreclosure case or the 2010 case) against Dixie,
defendant, and certain others. The complaint in the 2010 case
alleged a default of the original mortgage and of a loan
modification agreement, a default date of June 2009 through
the present, and an outstanding principal balance due and
owing of $189, 604.15 plus interest, costs, and attorney
fees. The alleged loan modification agreement, which was
dated April 24, 2009, was purportedly attached to the
complaint in the 2010 case but has not been made part of the
record on appeal.
6 In August 2010, Dixie and defendant got divorced. Pursuant
to the settlement agreement in the divorce, Dixie conveyed
her interest in the subject property to defendant by quit
claim deed. In 2011, Dixie filed for bankruptcy protection in
the federal court. As part of the bankruptcy proceeding,
Dixie was discharged from her obligation under the promissory
7 Meanwhile, in the 2010 foreclosure case, defendant and
Dixie disputed that they had agreed to a loan modification.
In December 2011, based upon that dispute, Wells Fargo moved
to dismiss the 2010 case without prejudice, stating that it
would refile the original action. Defendant objected to the
motion to dismiss. In his written objection, defendant
pointed out that a foreclosure action as to the same property
had already been filed and dismissed by Wells Fargo once
before in the 2008 case. Defendant noted further that Wells
Fargo could not "repeatedly file and dismiss cases until
it [won]." In January 2012, Wells Fargo's motion was
granted by the trial court over defendant's objection and
the 2010 foreclosure case was dismissed without prejudice.
8 In March 2012, Wells Fargo filed its third foreclosure
action in Rock Island County as to the subject property
(again, the 2012 foreclosure case or the 2012 case) against
Dixie, defendant, and certain others. The complaint in the
2012 case alleged a default of the original mortgage, a
default date of January 2008 through the present, and an
outstanding principal balance due and owing of $159, 061.43
plus interest, costs, and attorney fees. A copy of the note
and mortgage were attached to the complaint.
9 In July 2012, defendant, who was representing himself
pro se in the trial court proceedings, filed his
answer to the complaint and certain affirmative defenses. Of
relevance to this appeal, defendant alleged in his
affirmative defenses that plaintiff's cause of action was
barred in whole or in part by res judicata and/or
collateral estoppel because a foreclosure case had already
been brought by Wells Fargo two times previously as to the
subject property and had been dismissed both times. The
specific case numbers of the two prior foreclosure cases were
listed in defendant's affirmative defense.
10 In August 2012, Wells Fargo filed a reply to
defendant's affirmative defense. In its reply, Wells
Fargo admitted that its two previous foreclosure actions had
been dismissed but denied that the current cause of action
was barred by res judicata and/or collateral
estoppel. Wells Fargo alleged further in later filings (in
support of Wells Fargo's requests for summary judgment)
that res judicata and collateral estoppel did not
apply in this case because the two prior cases were not fully
litigated by the parties.
11 Over the next three years, at various times, Wells Fargo
filed motions for summary judgment (and supporting documents)
as to the foreclosure complaint in the 2012 case. On two
prior occasions, in February 2013 and January 2015, summary
judgment was granted for Wells Fargo only to be vacated later
after defendant filed motions to reconsider. In those
motions, defendant alleged, among other things, that he had
not been properly notified or served of the hearing date or
that the hearing took place in his absence at a time that was
contrary to the parties' agreement. In addition,
defendant maintained throughout the proceedings that the 2012
case was barred because a foreclosure action as to the
subject property had been filed and dismissed twice before.
Defendant continued to refer to his argument in that regard
as being based upon res ...