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First Midwest Bank v. Cobo

Court of Appeals of Illinois, First District, First Division

November 6, 2017

FIRST MIDWEST BANK, as Successor in Interest to Waukegan Savings Bank, f/k/a Waukegan Savings and Loan, SB, Plaintiff-Appellee,
v.
ANDRES COBO and AMY M. RULE, Defendants-Appellants.

         Appeal from the Circuit Court of Cook County. No. 15 L 007759 Honorable Raymond W. Mitchell, Judge Presiding.

          HARRIS JUSTICE delivered the judgment of the court, with opinion. Presiding Justice Pierce and Justice Mikva concurred in the judgment and opinion.

          OPINION

          HARRIS JUSTICE

         ¶ 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 complaint.

         ¶ 2 JURISDICTION

         ¶ 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 below.

         ¶ 4 BACKGROUND

         ¶ 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)).[1] 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 ...


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