Court of Appeals of Illinois, First District, First Division
FIRST MIDWEST BANK, as Successor in Interest to Waukegan Savings Bank, f/k/a Waukegan Savings and Loan, SB, Plaintiff-Appellee,
ANDRES COBO and AMY M. RULE, Defendants-Appellants.
from the Circuit Court of Cook County. No. 15 L 007759
Honorable Raymond W. Mitchell, Judge Presiding.
JUSTICE delivered the judgment of the court, with opinion.
Presiding Justice Pierce and Justice Mikva concurred in the
judgment and opinion.
1 Defendants, Andres Cobo and Amy Rule, appeal the order of
the Cook County circuit court granting summary judgment in
favor of plaintiff, First Midwest Bank, on its complaint for
breach of contract and unjust enrichment. On appeal,
defendants contend the court erred in (1) denying
defendants' motion to dismiss pursuant to section 2-619
of the Code of Civil Procedure (Code) (735 ILCS 5/2-619(a)(9)
(West 2016)), where plaintiff's complaint was an
impermissible second refiling of its previous claims and (2)
granting summary judgment where a genuine issue of material
fact exists as to whether the note attached to
plaintiff's complaint was actually the note signed by the
parties. For the following reasons, we vacate the order
granting summary judgment and dismiss the underlying
3 The trial court granted summary judgment on March 21, 2017.
Defendants filed a notice of appeal on April 4, 2017.
Accordingly, this court has jurisdiction pursuant to Illinois
Supreme Court Rules 303 (eff. July 1, 2017) and 304(a) (eff.
Mar. 8, 2016), governing appeals from final judgments entered
5 On November 20, 2006, defendants executed a promissory note
in favor of Waukegan Savings and Loan, SB (Waukegan), in
exchange for a $227, 500 loan. As security for the loan,
defendants obtained a mortgage on real property located at
625 S. 12th Avenue in Maywood, Illinois. Plaintiff is the
successor in interest to Waukegan.
6 In 2011, defendants stopped making payments and defaulted
on the note and mortgage. On December 8, 2011, Waukegan filed
a complaint for foreclosure (foreclosure complaint) and
attached a copy of the mortgage and "a copy of the Note
secured thereby." The foreclosure complaint alleged the
amount of original indebtedness as $227, 500. The foreclosure
complaint also alleged that plaintiff "is the owner and
legal holder of the Note, Mortgage and indebtedness, "
and alleged a "[d]efault in monthly payments due July 1,
2011 and thereafter" by defendants. The total amount now
due was the remaining principal of $214, 079.06 "[p]lus
interest, late fees and collection costs, " and
defendants were named as "persons claimed to be
personally liable for deficiency." As relief, the
foreclosure complaint requested a "Judgment of
foreclosure and sale." Plaintiff also requested as
relief, "if sought, " a "personal judgment for
deficiency, " a shortened redemption period, an order
granting possession, an order "placing the mortgagee in
possession or appointing a receiver, " and a judgment
for attorney fees and expenses. Plaintiff voluntarily
dismissed the foreclosure complaint on April 2, 2013.
7 On April 16, 2013, plaintiff as receiver for Waukegan filed
a complaint for breach of promissory note (breach of note
complaint) and attached a copy of the note. The breach of
note complaint alleged that defendants executed the
promissory note in exchange for a $227, 500 loan but they had
not made payments on the note since July 1, 2011. The breach
of note complaint alleged that pursuant to the terms of the
note, defendants owed $251, 165.72, which represented the
remaining principal of $214, 079.06, plus interest, accrued
late fees, and other costs. As relief, plaintiff requested
this amount "plus accrued interest and late fees through
the date of judgment plus attorney's fees and costs"
and any relief the court deems just. Plaintiff voluntarily
dismissed this complaint pursuant to section 2-1009 of the
Code (735 ILCS 5/2-1009 (West 2016)) on April 3, 2015.
8 On July 30, 2015, plaintiff filed a two-count complaint
alleging breach of contract and, in the alternative, unjust
enrichment (breach of contract complaint). The breach of
contract complaint alleged that defendants executed a
promissory note payable to Waukegan in the amount of $227,
500 and executed a mortgage on real property located at 625
S. 12th Avenue in Maywood, Illinois, as security for the
loan. Attached to the breach of contract complaint were
copies of the note and mortgage. Plaintiff alleged that it is
the successor in interest to Waukegan. Count I alleged that
defendants defaulted on the note by failing to make payments
since July 1, 2011, and as of July 27, 2015, the principal
amount owed was $214, 079.06, plus interest, late charges,
appraisal fees, escrow deficiency, and attorney fees and
costs. Plaintiff requested these amounts as relief,
"pursuant to the Note, " under count I. Count II
alleged unjust enrichment and requested relief in the amount
of $214, 079.06.
9 Defendants filed a section 2-619 motion to dismiss, arguing
that the breach of contract action was barred by section
13-217 of the Code (735 ILCS 5/13-217 (West
1994)). Defendants argued that section 13-217
permits only one refiling of a claim and the breach of
contract complaint represented the second refiling of the
foreclosure complaint, with the breach of note complaint
being the first refiling. The trial court denied
defendants' motion to dismiss, finding that the
foreclosure complaint and breach of note complaint, although
based on "closely related" transactions, were
"not part of the same transaction or occurrence."
Rather, the claims sought in each complaint were based on
"separate contracts executed for distinct purposes and
[gave] rise to separate remedies." Therefore, the 2015
breach of contract complaint did not constitute a second
refiling of the 2011 foreclosure complaint but rather
"the first refiling of Plaintiff's 2013 breach of
promissory note action under section 13-217." Defendants
filed a motion to reconsider, which the trial court denied.
10 Defendants filed their answer to the breach of contract
complaint and also filed four affirmative defenses. Their
first affirmative defense was that the breach of contract
complaint was an improper second refiling of a voluntarily
dismissed complaint. As their third affirmative defense,
defendants argued that the note attached to the breach of
contract complaint was "no note at all, but rather a
compilation of two unsigned pages of the Note and a third
signature page from a rider to the Mortgage." The other
affirmative defenses are not relevant on appeal. Plaintiff
filed a section 2-619 motion to strike the affirmative
defenses and then filed a motion for summary judgment. In
response, defendants challenged the amounts due and owing,
arguing that plaintiff sought impermissible late fees and the
prior attorney fees and costs were unsupported by the
attached documents. Plaintiff subsequently withdrew its
request for late fees and filed an amended motion for summary
judgment, with the affidavit of Jeanine Cozzi stating the
amounts due and owing attached.
11 The trial court granted plaintiff's motion to strike
the affirmative defenses and granted summary judgment,
finding that "[p]laintiff has established all necessary
elements" for its breach of contract claim. The court
noted that plaintiff withdrew its request for late charges
and attached the supplemental affidavit of Cozzi
"containing detailed invoices from the attorney who
handled the case." After "[t]aking all of the
relevant factors into ...