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Wells Fargo Bank, N.A. v. Norris

Court of Appeals of Illinois, Third District

July 3, 2017

WELLS FARGO BANK, N.A., as Trustee for Carrington Mortgage Loan Trust, Series 2006-RFC1, Asset-backed Pass-Through Certificates, Plaintiff-Appellee,
v.
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.

         Appeal 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.

          OPINION

          CARTER, JUSTICE

         ¶ 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.

         ¶ 2 FACTS

         ¶ 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 note.

         ¶ 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 ...


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