United States District Court, N.D. Illinois, Eastern Division
MEMORANDUM OPINION AND ORDER
D. Leinenweber, Judge United States District Court.
case involves an improperly-filed foreclosure in Illinois
state court and the homeowners' claim that this improper
foreclosure constitutes a violation of the Fair Debt
Collection Practice Act, see, 15 U.S.C. § 1692
et seq. (the “FDCPA”), and the Illinois
Consumer Fraud and Deceptive Business Practices Act, 810 ILCS
505/1 et seq. (the “ICPA”). Before the
Court are Cross-Motions for Summary Judgment [ECF Nos. 126,
131, 142]. For the reasons stated herein, the Court grants
U.S. Bank and Nevel's Motions for Summary Judgment [ECF
Nos. 126, 131] and denies the Skibbes' Motion for Partial
Summary Judgment [ECF No. 142].
the facts are undisputed between the parties. The parties
before the Court are the foreclosed-upon homeowners (the
“Skibbes”), the bank (“U.S. Bank”),
and the bank's law firm that filed the foreclosure
actions (“Nevel”). There have been four
foreclosures in this case. Each will be described here,
although only the latter three are relevant.
The Mortgage Loan
October 2004, Dwayne and Deborah Skibbe (the
“Skibbes”) refinanced their home mortgage loan
with Household Finance Corporation (“HFC”) in the
amount of $271, 132.11 and secured the loan with their home.
(U.S. Bank and Nevel's Resps. to Skibbes' Facts
¶ 18 (U.S. Bank and Nevel filed separate responses to
the Skibbes' Statement of Facts, but where no difference
is apparent, the responses will be cited together).)
Eventually, the Skibbes stopped making regular payments on
their mortgage. (Skibbes' Resp. to U.S. Bank ¶ 9.) A
foreclosure action was filed in 2007 and later voluntarily
dismissed. (Id. ¶ 10; HFC v. Deborah Skibbe
et al., No. 07 CH 1562 (Ill. Cir. Ct.).) This initial
foreclosure is not relevant to the issues here.
Skibbes defaulted on their monthly mortgage payments again in
2010. (U.S. Bank and Nevel's Resps. to Skibbes' Facts
¶ 20.) In December 2010, HFC filed a foreclosure suit
against the Skibbes in Kane County seeking a judgment of
foreclosure and sale of the Skibbes' home
(“Foreclosure I”). (Id. ¶ 21;
HFC v. Skibbe, 10 CH 5758 (Ill. Cir. Ct.)). The
Skibbes filed for bankruptcy on December 23, 2011.
(Skibbes' Resp. to U.S. Bank ¶ 19.) During the
bankruptcy proceedings, the Skibbes filed a statement of
intention to surrender the property. (Id. ¶
20.) Plaintiffs' Chapter 13 Plan was confirmed on May 21,
2012, and HFC afterwards voluntarily dismissed Foreclosure I.
(Id. ¶¶ 21-22.)
little over a year later, in June 2013, Nevel, on behalf of
HFC, filed a second foreclosure against the Skibbes in Kane
County seeking foreclosure and sale of Skibbes' home
(“Foreclosure II”). (See, U.S. Bank and
Nevel's Resps. to Skibbes' Facts ¶ 23; HFC
v. Skibbe, 13 CH 1418 (Ill. Cir. Ct.)). Unfortunately
for the Defendants, HFC voluntarily dismissed Foreclosure II
five months later. (Id. ¶ 24.) It seems a
mystery even to the parties why Foreclosure II was
voluntarily dismissed. (Skibbes' Resp. to U.S. Bank
¶ 26.) The Skibbes converted their bankruptcy to Chapter
7 and subsequently received a bankruptcy discharge on January
6, 2014. (Id. ¶¶ 27-28.) The mortgage loan
was later assigned from HFC to U.S. Bank Trust N.A.
(“U.S. Bank”) after having already been in
default. (Skibbes' Resp. to U.S. Bank's Add'l
Facts ¶ 2; U.S. Bank's Resp. to Skibbes' Facts
¶ 25.) U.S. Bank retained Defendant Law Offices of Ira
T. Nevel (“Nevel”) to collect the debt through
foreclosure on the property. (Nevel's Resp. to
Skibbes' Facts ¶¶ 14-15.)
ill-fated third attempt, Nevel, on behalf of U.S. Bank, filed
a third foreclosure against the Skibbes in Kane County on
January 8, 2015, seeking foreclosure and sale of the
Skibbes' home to satisfy their mortgage obligation
(“Foreclosure III”). (See, U.S. Bank and
Nevel's Resps. to Skibbes' Facts ¶ 30; U.S.
Bank v. Skibbe, 15 CH 22 (Ill. Cir. Ct.)). Foreclosure
III is at the heart of the Skibbes' FDCPA claim.
propriety of Foreclosure III was (and still is) heavily
disputed between the parties. The crux of the dispute was
whether Foreclosure III was procedurally barred under
Illinois law. The Skibbes argued (successfully) that
Foreclosure III was barred by Illinois' single refiling
rule, which allows a litigant to dismiss voluntarily a
lawsuit and then refile that same lawsuit only once. The
Skibbes argue that Foreclosure III was a second
refiling and thus barred by the Illinois Code of Civil
Procedure. See, 735 ILCS 5/13-217; Timberlake v.
Illini Hosp., 676 N.E.2d 634, 635 (Ill. 1997).
The Defendants argued that Foreclosure I and Foreclosures II
and III were different cases because Foreclosure I was based
on an April 2010 default date whereas Foreclosures II and III
were based on an August 2010 default date. (Skibbes'
Resp. to Nevel ¶¶ 8, 16, 22.) Thus, according to
the Defendants, Foreclosure III was proper under the single
refiling rule because it was just the first refiling
of Foreclosure II, not the second refiling of Foreclosure I.
Now in federal court, the Defendants buttress their position
by pointing to the fact that the foreclosure complaints
allege different default dates because the Skibbes made
additional payments in 2011, after Foreclosure I was filed.
(U.S. Bank's Facts ¶ 16; Nevel's Facts ¶
11.) The Defendants rely on the Skibbes' bank statements
to support its assertion. Id. The Skibbes do not
dispute that these payments were made to HFC from their bank
account, but they dispute characterizing them as mortgage
payments, notably without any indication about what else
those payments could possibly be. (Skibbes' Resp. to U.S.
Bank's Facts ¶ 16.)
parties continued to argue about whether Foreclosure III was
proper, both in letter correspondence prior to Foreclosure
III's filing and then throughout the state court
litigation, including on appeal. (Skibbes' Resp. to U.S.
Bank ¶¶ 29-32.)
Prior State Court Litigation
Skibbes won that argument in state court. On June 24, 2015,
the circuit court dismissed Foreclosure III with prejudice,
holding it was barred by the single-refiling rule. (U.S. Bank
and Nevel's Resps. to Skibbes' Facts ¶ 34.)
Nevel moved to reconsider. The court denied the motion, at
least partially based on the court's understanding that
no payments had been made after April 2010. (Id.
¶ 38; Skibbes' Resp. to U.S. Bank ¶¶
42-43.) The court found that “both sides agreed and
reaffirmed this morning that no payments were made after
April 2010” and denied reconsideration, stating in its
ruling that “[b]ased on the representations that were
made on the date of our first hearing and today that no
additional payments were made . . . what's been presented
is that nothing has changed in terms of the payments since
[Foreclosure I]” and “[t]he fact of the matter is
. . . the Plaintiff alleged the same breach in [Foreclosure
I], [Foreclosure II], and [Foreclosure III].”
(Transcript of Mot. to Recon. Hearing 8:4-6, 17:17-19:14, Ex.
F to U.S. Bank ¶ 45; Skibbes' Resp. to U.S. Bank
¶ 45.) The Defendants now state that additional payments
were, in fact, made by the Skibbes in 2011, and that counsel
for both parties incorrectly stated otherwise at the hearing.
(Skibbes' Resp. to U.S. Bank ¶ 46.) Neither party
disputes that the state court denied the motion to
reconsider, but the parties do dispute why. The Skibbes