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Supreme Court Date: 2019.06.17
08:02:47 -05'00'
First Midwest Bank v. Cobo, 2018 IL 123038
Caption in Supreme FIRST MIDWEST BANK, Appellant, v. ANDRES COBO et al.,
Court: Appellees.
Docket No. 123038
Filed November 29, 2018
Decision Under Appeal from the Appellate Court for the First District; heard in that
Review court on appeal from the Circuit Court of Cook County, the Hon.
Raymond W. Mitchell, Judge, presiding.
Judgment Appellate court judgment affirmed.
Circuit court judgment vacated.
Counsel on Stephen Daday, Diana Rdzanek, and Julie Repple, of Klein, Daday,
Appeal Aretos, & O’Donoghue, LLC, of Rolling Meadows, for appellant.
James DiChristofano, of DiChristofano & Associates, and Arthur C.
Czaja, both of Niles, for appellees.
Lloyd Brooks, of Consumer Legal Group, P.C., of Matteson, for
amicus curiae Association of Foreclosure Defense Attorneys.
James V. Noonan and Solomon Maman, of Noonan & Lieberman,
Ltd., of Chicago, for amicus curiae American Legal and Financial
Network.
Justices JUSTICE GARMAN delivered the judgment of the court, with
opinion.
Chief Justice Karmeier and Justices Thomas, Kilbride, Burke, Theis,
and Neville concurred in the judgment and opinion.
OPINION
¶1 In Illinois, a plaintiff who voluntarily dismisses a claim has only one opportunity to refile
that same claim. Whether two lawsuits assert the same claim does not depend solely on how
the plaintiff titles the complaint, however. This issue sometimes requires a judicial
determination.
¶2 In this case, plaintiff First Midwest Bank (First Midwest) sued defendants Andres Cobo
and Amy M. Rule for breach of a promissory note. Cobo and Rule responded that First
Midwest or its predecessor had already sued them twice for the same breach of the same
promissory note: once in a foreclosure suit in 2011 and once in a breach of promissory note suit
in 2013. First Midwest claimed that the first lawsuit involved a claim for foreclosure on a
mortgage, which is different from a breach of a promissory note.
¶3 The circuit court of Cook County agreed with First Midwest Bank, but the appellate court
reversed. 2017 IL App (1st) 170872. We granted First Midwest’s petition for leave to appeal
(Ill. S. Ct. R. 315 (eff. Nov. 1, 2017)), and we affirm the appellate court’s decision. We hold
that a lawsuit for breach of a promissory note asserts the same cause of action as a prior
foreclosure complaint when that foreclosure complaint specifically requested a deficiency
judgment based on the same default of the same note.
¶4 BACKGROUND
¶5 On November 20, 2006, Andres Cobo and Amy M. Rule, the defendants, took out a
mortgage on their property located at 625 S. 12th Avenue, Maywood, Illinois, with Waukegan
Savings and Loan, SB (Waukegan). This mortgage secured a loan from Waukegan for
$227,500.
¶6 Five years later, Cobo and Rule defaulted on their loan. Waukegan commenced foreclosure
proceedings on December 8, 2011, alleging that defendants had ceased making payments on
July 1, 2011. In compensation for the remaining $214,079.06, plus interest, collection costs,
and late fees, Waukegan sought a foreclosure and sale of 625 S. 12th Avenue and a deficiency
judgment for the remaining debt against defendants. The complaint named Cobo and Rule as
“persons claimed to be personally liable for deficiency.” The complaint’s requested relief
included a “Judgment of foreclosure and sale” and “personal judgment for deficiency, if
sought.”
¶7 First Midwest acquired Waukegan’s interest in the note and mortgage, and on April 2,
2013, First Midwest voluntarily dismissed the foreclosure suit. It filed a new lawsuit against
Cobo and Rule on April 16, 2013, for breach of a promissory note. First Midwest alleged that
Cobo and Rule had defaulted on their loan on July 1, 2011, and sought $251,165.72, which
included the $214,079.06 remaining on the principal plus interest, late fees, and other costs.
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¶8 After another two years the case had not yet proceeded to trial. First Midwest moved to
continue the trial date, but on April 3, 2015, the circuit court denied that motion. That same
day, First Midwest voluntarily dismissed its suit.
¶9 Finally on July 30, 2015, First Midwest initiated the lawsuit that provides the basis for this
appeal. First Midwest sued Cobo and Rule for breach of a promissory note and unjust
enrichment, seeking $278,838.13, which included the $214,079.06 principal plus interest, late
fees, and other costs.
¶ 10 Cobo and Rule moved to dismiss under section 2-619 of the Code of Civil Procedure
(Code). 735 ILCS 5/2-619 (West 2016). Citing LSREF2 Nova Investments III, LLC v.
Coleman, 2015 IL App (1st) 140184, they argued that Illinois’s “single refiling rule,” which
prohibits a plaintiff from refiling the same cause of action more than once, barred First
Midwest’s claim. Because First Midwest or its predecessor in interest had already filed two
lawsuits based on the same mortgage, note, and default, Cobo and Rule asked the court to
dismiss the suit.
¶ 11 The circuit court denied the motion to dismiss. Relying on LP XXVI, LLC v. Goldstein, 349
Ill. App. 3d 237 (2004), the court found that a lawsuit based on a mortgage and a lawsuit based
on a promissory note are not the same cause of action. It concluded that the pending lawsuit
was the first refiling of the breach of a promissory note action and both of those suits were
distinct from the foreclosure suit. The court distinguished Coleman because in that case the
first lawsuit had reached a final adjudication on the merits but the foreclosure complaint in this
case was voluntarily dismissed.
¶ 12 Later First Midwest moved for summary judgment. Cobo and Rule reasserted their single
refiling rule argument as an affirmative defense. First Midwest moved to strike defendants’
affirmative defenses. The circuit court granted First Midwest’s motion to strike the affirmative
defenses and granted summary judgment, awarding First Midwest $308,192.56.
¶ 13 The appellate court vacated the circuit court’s order and dismissed the complaint. 2017 IL
App (1st) 170872. It acknowledged that a mortgage and note are distinct contracts, but it found
that First Midwest’s suit for breach of promissory note and its foreclosure suit arose from the
same set of operative facts and thus constitute the same cause of action for the purposes of the
single refiling rule. Id. ¶ 19. Agreeing with Coleman, 2015 IL App (1st) 140184, the court
concluded that a foreclosure complaint that seeks a deficiency judgment arises out of both the
mortgage and the note. 2017 IL App (1st) 170872, ¶ 22. In response to the circuit court’s
observation that Coleman involved a prior suit that reached a final adjudication on the merits,
the appellate court found that final adjudication was a component of res judicata, not the single
refiling rule. Because First Midwest or its predecessor sued based on the same default of the
same note in 2011, 2013, and 2015, the court held that this suit for breach of promissory note
was an impermissible second refiling.
¶ 14 First Midwest petitioned this court for leave to appeal, and we allowed that petition. Ill. S.
Ct. R. 315 (eff. Mar. 15, 2016).
¶ 15 ANALYSIS
¶ 16 The circuit court’s order under review is a grant of summary judgment in favor of First
Midwest. We review a summary judgment order de novo. Schultz v. Illinois Farmers
Insurance Co., 237 Ill. 2d 391, 399-400 (2010). A court should award summary judgment only
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if there is no question of material fact and the moving party is entitled to judgment as a matter
of law. 735 ILCS 5/2-1005(c) (West 2012). Rule and Cobo raised the same argument in both a
section 2-619 motion and as an affirmative defense on summary judgment. We review a
motion to dismiss under section 2-619 de novo. Moon v. Rhode, 2016 IL 119572, ¶ 15.
¶ 17 Defendants Cobo and Rule argue that the court should dismiss First Midwest’s complaint
based on the single refiling rule. This rule derives from section 13-217 of the Code, which
states that, in applicable actions, if
“the action is voluntarily dismissed by the plaintiff, or the action is dismissed for want
of prosecution, *** the plaintiff, his or her heirs, executors or administrators may
commence a new action within one year or within the remaining period of limitation,
whichever is greater, after *** the action is voluntarily dismissed by the plaintiff.” 735
ILCS 5/13-217 (West 1994).
In Flesner v. Youngs Development Co., 145 Ill. 2d 252, 254 (1991), this court interpreted this
provision to allow “one, and only one, refiling of a claim.”
¶ 18 Whether two complaints state the same claim does not depend on how the plaintiff labels
the complaint. Although this court has not yet spoken on this issue, multiple districts of the
Illinois Appellate Court have agreed to use the same analysis to determine whether two suits
assert the same cause of action for the purposes of the single refiling rule as they use for
res judicata. See, e.g., Wells Fargo Bank, N.A. v. Norris, 2017 IL App (3d) 150764, ¶ 21;
Mabry v. Boler, 2012 IL App (1st) 111464, ¶ 22; Schrager v. Grossman, 321 Ill. App. 3d 750,
755 (2000); D’Last Corp. v. Ugent, 288 Ill. App. 3d 216, 220 (1997). The appellate court has
consistently followed this approach, and we adopt it as well. Therefore, to determine whether
two lawsuits assert the same cause of action for purposes of the single refiling rule, we will
apply the test for “identity of cause of action” for res judicata—the “transactional test.”
¶ 19 This test, which we adopted in River Park, Inc. v. City of Highland Park, 184 Ill. 2d 290,
311 (1998), treats separate claims as the same cause of action “if they arise from a single group
of operative facts.” Courts should approach this inquiry “ ‘pragmatically, giving weight to
such considerations as whether the facts are related in time, space, origin, or motivation,
whether they form a convenient trial unit, and whether their treatment as a unit conforms to the
parties’ expectations or business understanding or usage.’ ” Id. at 312 (quoting Restatement
(Second) of Judgments § 24, at 196 (1982)).
¶ 20 We agree with Cobo and Rule that First Midwest’s two later suits for breach of a
promissory note asserted the same cause of action as First Midwest’s predecessor’s first suit
under the mortgage and the note. Both breach of promissory note complaints alleged the same
default date, July 1, 2011, as the foreclosure complaint. All three complaints alleged that Cobo
and Rule were personally liable for the same $214,079.06 principal. Most importantly, in the
foreclosure complaint from 2011, First Midwest’s predecessor expressly sought a deficiency
judgment under the note. Although that complaint had only one count, for “FORECLOSURE,”
it requested as a remedy “a personal judgment for deficiency, if sought.” For practical
purposes, the request for a deficiency judgment asserted a second claim, this one under the
note. First Midwest later sought a remedy under that same note, alleging the exact same default
date, in 2013 and again in 2015. The 2015 suit was an impermissible third filing.
¶ 21 First Midwest responds that a foreclosure proceeding is quasi in rem but a breach of note
proceeding is in personam. ABN AMRO Mortgage Group, Inc. v. McGahan, 237 Ill. 2d 526,
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535 (2010); Turczak v. First American Bank, 2013 IL App (1st) 121964, ¶ 33. It argues that
these two distinct proceedings cannot assert the same cause of action. However, the
in personam nature of the breach of promissory note proceeding is not determinative. The
transactional test treats two claims as identical “if they arise from a single group of operative
facts, regardless of whether they assert different theories of relief.” (Emphasis added.) River
Park, Inc., 184 Ill. 2d at 311.
¶ 22 First Midwest further objects that all of the facts that the foreclosure complaint shared with
the breach of promissory note complaints are included in the form foreclosure complaint that
the Illinois Mortgage Foreclosure Law (Foreclosure Law) (735 5/15-1101 et seq. (West 2016))
provides. Section 15-1504(a) of the Foreclosure Law provides plaintiffs with a sample
foreclosure complaint and instructs plaintiffs how to complete the form. This sample
complaint instructs the plaintiffs to attach copies of both the mortgage and the note to the
foreclosure complaint, to disclose the names of the defendants alleged to be personally liable
for any deficiency, and to specify the total amount due. Id. § 15-1504(a). According to First
Midwest, using these facts against a plaintiff in the transactional test would be unfair when the
Foreclosure Law requires a plaintiff to plead these facts.
¶ 23 This objection is not compelling because no section of the Foreclosure Law requires a
plaintiff to seek a deficiency judgment during the foreclosure proceedings. Section 15-1504(b)
clearly states that the “foreclosure complaint need contain only such statements and requests
called for by the form set forth in subsection (a) of Section 15-1504 as may be appropriate for
the relief sought.” Id. § 15-1504(b). Section 15-1504(a) allows a plaintiff in a foreclosure
proceeding to request a “personal judgment for a deficiency, if sought.” (Emphasis added.) Id.
§ 15-1504(a). Regarding deficiency judgments, section 15-1504(f) states that “the plaintiff
may have a personal judgment against any party in the foreclosure indicated as being
personally liable therefor and the enforcement thereof be had as provided by law.” (Emphasis
added.) Id. § 15-1504(f). This language indicates that, although a plaintiff has the option to
seek a deficiency judgment in foreclosure proceedings, it need not.
¶ 24 That the exact language in First Midwest’s predecessor’s foreclosure complaint was “a
personal judgment for deficiency, if sought” does not change our analysis. The phrase “if
sought” likely results from the complainant closely replicating section 15-1504(a) of the
Foreclosure Law. That section provides a sample foreclosure complaint form and instructions
on how plaintiffs should complete the form. Section 15-1504(a) begins:
“A foreclosure complaint may be in substantially the following form:
(1) Plaintiff files this complaint to foreclose the mortgage (or other conveyance in
the nature of a mortgage) (hereinafter called ‘mortgage’) hereinafter described and
joins the following person as defendants: (here insert names of all defendants).” Id.
§ 15-1504(a)(1).
Section 1504(a) ends by providing a sample request for relief.
“REQUEST FOR RELIEF
Plaintiff requests:
(i) A judgment of foreclosure and sale.
(ii) An order granting a shortened redemption period, if sought.
(iii) A personal judgment for a deficiency, if sought.
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(iv) An order granting possession, if sought.
(v) An order placing the mortgagee in possession or appointing a receiver, if
sought.
(vi) A judgment for attorneys’ fees, costs and expenses, if sought.” Id.
§ 15-1504(a).
First Midwest’s predecessor’s foreclosure complaint from 2011 was nearly an exact
reproduction of this request for relief. Rather than tailor the specific relief requested to the
individual case by eliminating the instruction “if sought,” First Midwest’s predecessor likely
transferred this language directly into its complaint. In such circumstances, we decline to find
that the complaint did not seek a deficiency judgment.
¶ 25 Alternatively, First Midwest suggests that the phrase “if sought” allows a complainant to
reserve that remedy. Purportedly this phrase allows a plaintiff to delay deciding whether to
pursue a deficiency judgment until after the foreclosure sale. Without approving of this
interpretation, we find that this interpretation would not change our conclusion. If First
Midwest’s predecessor sought to reserve the possibility that it would recover a personal
judgment under the note, then it still invoked that note in the foreclosure complaint and
threatened to seek a remedy based on the note. Cobo and Rule became alerted to the possibility
that they would need to defend against a claim under the note. First Midwest cannot avoid the
single refiling rule by claiming that the first complaint only raised the possibility that it might
seek recovery under the note.
¶ 26 Our approach best reconciles the cases on which the parties rely. In Coleman, the lender
initiated foreclosure proceedings, seeking both to foreclose on the mortgage and to secure a
personal judgment against the borrowers for the deficiency. 2015 IL App (1st) 140184. The
court foreclosed on the subject property and entered an in rem deficiency judgment. Later the
plaintiff sued under the promissory note, but res judicata barred this suit. The plaintiff had
argued that the two claims relied on two separate transactions; the first relied on the mortgage,
and the second relied on the note. Id. ¶ 9. The appellate court found that the lender in the earlier
case relied on both the mortgage and the promissory note because it sought a deficiency
judgment in addition to foreclosure. The court concluded that both cases arose from the note,
so they arose from the same set of operative facts and res judicata barred the second suit. Id.
¶ 14. Our analysis closely tracks the Coleman court’s reasoning and that of the appellate court
here (2017 IL App (1st) 170872, ¶ 22).
¶ 27 The circuit court here distinguished this case from Coleman because the first lawsuit in
Coleman reached a final adjudication on the merits. The lender had foreclosed on the
borrower’s property and actually secured a deficiency judgment before the plaintiff filed
another lawsuit to collect under the promissory note. Coleman, 2015 IL App (1st) 140184, ¶ 5.
In this case, however, neither the foreclosure suit commenced in 2011 nor the suit for breach of
promissory note commenced in 2013 reached a final adjudication on the merits. Instead the
plaintiff voluntarily dismissed both cases. The circuit court here found that a final adjudication
on the merits is a necessary component of res judicata, so it rejected defendant’s reliance on
Coleman.
¶ 28 The single refiling rule does not require that the prior lawsuit have reached a final
adjudication on the merits. The single refiling rule applies to a variety of circumstances,
including when “the action is voluntarily dismissed by the plaintiff, or the action is dismissed
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for want of prosecution, or the action is dismissed by a United States District Court for lack of
jurisdiction, or the action is dismissed by a United States District Court for improper venue.”
735 ILCS 5/13-217 (West 1994). In all of these circumstances the earlier litigation necessarily
would not have reached a final adjudication on the merits. The single refiling rule is not simply
another name for res judicata. Instead this rule results from our interpretation of section
13-217. Flesner, 145 Ill. 2d at 254. These are two separate doctrines, but the appellate court
has applied the res judicata test for “identity of the cause of action” in the context of the single
refiling rule because it is a convenient test with an established body of case law for determining
when two causes of action are the same.
¶ 29 Coleman distinguished its facts from those in Turczak, 2013 IL App (1st) 121964, and
Goldstein, 349 Ill. App. 3d 237—both cases on which First Midwest relies. We agree with
Coleman that both cases are distinguishable. Coleman, 2015 IL App (1st) 140184, ¶¶ 22, 26.
¶ 30 In Goldstein, the defendant and the plaintiff’s predecessor executed a mortgage, a
promissory note, and a commercial guaranty. 349 Ill. App. 3d at 238. After the defendant
defaulted, the plaintiff’s predecessor foreclosed on the mortgage and secured a deficiency
judgment. After acquiring the predecessor’s interest, the plaintiff sued under the guaranty. Id.
at 239. The appellate court found that res judicata did not bar the plaintiff’s suit because the
mortgage, note, and guaranty were all separate transactions. Id. at 241.
¶ 31 The appeal in Goldstein resulted from a guaranty specifically waiving any “one action” or
“anti-deficiency” defense and any “ ‘other law which may prevent [plaintiff] from bringing
any action, including a claim for deficiency, against [defendant], before or after [plaintiff’s]
commencement or completion of any foreclosure action.’ ” Id. at 238. Thus, Goldstein is
distinguishable because it arose from the defendant’s guaranty that specifically waived the sort
of argument that Cobo and Rule raise here.
¶ 32 Moreover, Goldstein did not address a situation in which the lender sought a remedy under
the same instrument in three separate suits. The first complaint in Goldstein did not seek a
remedy under the guaranty. The court explicitly found that “defendant’s rights under the
guaranty were not placed in issue or adjudicated” in the prior litigation. Id. at 241. Unlike in
Goldstein, in this case the litigants’ rights under the note were at issue in all three proceedings.
¶ 33 In Turczak the defendant bank had already secured a default judgment against the plaintiffs
for breaching a promissory note that accompanied a mortgage. When the plaintiffs later sought
to sell their property to satisfy their debts to both the defendant and a second lender, the
defendant bank claimed that its consent was required because it still had an enforceable
mortgage on that property. Turczak, 2013 IL App (1st) 121964, ¶¶ 7-8. The defendant bank
demanded that the plaintiffs pay $6000 before it would consent to the sale. Id. ¶ 8. Later, the
plaintiffs alleged that the defendant bank’s mortgage was not enforceable because the default
judgment based on the promissory note created a res judicata bar to any attempt to enforce the
mortgage. The plaintiffs sued the defendant bank, claiming that it violated the Consumer Fraud
and Deceptive Business Practices Act (815 ILCS 505/1 et seq. (West 2008)) by pretending to
have an enforceable mortgage when it did not. Turczak, 2013 IL App (1st) 121964, ¶ 10.
¶ 34 The appellate court rejected the plaintiffs’ argument. It found that the defendant bank’s
mortgage had remained enforceable despite the prior default judgment. Id. ¶¶ 27-29. The court
explained that a lender may sue under the mortgage and the note consecutively or concurrently.
Id. ¶ 31. Because the defendant had sought only a default judgment in its earlier lawsuit, no
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prior action adjudicated the parties’ rights under the mortgage, and that mortgage remained
enforceable. Id. ¶ 36.
¶ 35 First Midwest’s reliance on Turczak is misplaced. The key component that was missing in
Turczak—a prior lawsuit seeking to adjudicate the parties’ rights under the disputed
instrument—is present in this case. In Turczak the defendant bank had sought only a default
judgment in the earlier litigation. Id. ¶¶ 27-29. It did not seek to foreclose on the mortgage, so
the mortgage remained enforceable. Here First Midwest’s predecessor sought remedies under
both the mortgage and the note.
¶ 36 Notably, both Goldstein and Turczak relied on Farmer City State Bank v. Champaign
National Bank, 138 Ill. App. 3d 847, 852 (1985), to demonstrate that a plaintiff may pursue
remedies under a mortgage and a note either consecutively or concurrently. Goldstein, 349 Ill.
App. 3d at 242; Turczak, 2013 IL App (1st) 121964, ¶ 29. First Midwest argues that this court
must overturn Farmer City to find in favor of Cobo and Rule here.
¶ 37 We need not overturn Farmer City to rule in Cobo and Rule’s favor. Consistent with
Farmer City, we find that lenders may pursue a claim under the mortgage and note either
consecutively or concurrently.1 First Midwest’s predecessor sought relief under the mortgage
and note concurrently, and we do not hold that any part of the complaint was inappropriate at
the time it was filed. Conversely, if First Midwest’s predecessor had sought a remedy only
under the note, it could seek a remedy under the mortgage later. Turczak, 2013 IL App (1st)
121964, ¶¶ 27-29. However, a lender may not assert a claim under the mortgage and the note
concurrently by seeking a foreclosure and a deficiency judgment and then assert a claim under
the note consecutively twice more.
¶ 38 First Midwest warns that this approach will have harmful consequences. Many notes or
mortgages incorporate or reference a variety of other legal instruments. Sometimes a note is
secured through multiple mortgages. Often a third party acts as a guarantor. The lender and the
borrower frequently enter into loan modification agreements. First Midwest warns that if we
rule against it, the court will limit the available remedies and require lenders to file one suit
under all possible instruments.
¶ 39 By focusing on the remedy sought we avoid the consequences that First Midwest raises.
First Midwest is correct that foreclosure complaints often share many facts with other lawsuits
that a lender might bring. These shared facts, however, are not necessarily “operative facts”
under the transactional test. River Park, Inc., 184 Ill. 2d at 311. A plaintiff seeking to foreclose
on a mortgage puts the note at issue and makes those facts “operative” only if the plaintiff also
seeks to adjudicate the parties’ rights under the note. Moreover, the Foreclosure Law explicitly
states that “foreclosure of a mortgage does not affect a mortgagee’s rights, if any, to obtain a
personal judgment against any person for a deficiency.” 735 ILCS 5/15-1511 (West 2016).
Nothing in this opinion contradicts that statutory provision.2 Because we do not hold that the
1
For a helpful discussion of the historical difference between the deficiency judgment as a form of
legal relief and the foreclosure as a form of equitable relief, see Elizabeth Martin, Note, Getting a
Second Bite at the Apple: The Res Judicata Exception for Seeking Foreclosure Deficiencies in Illinois,
2016 U. Ill. L. Rev. 2271, 2275-80 (2016).
2
In United Central Bank v. KMWC 845, LLC, 800 F.3d 307 (7th Cir. 2015), the Seventh Circuit
referenced an old Illinois rule prohibiting a lender from suing under the mortgage when a statute of
limitations or other procedural rule barred a suit under the note. Without approving of the Seventh
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mortgage and note constitute the same transaction, we do not hold that claims under those
instruments must be litigated at the same time for the purposes of the single refiling rule.3 See
Turczak, 2013 IL App (1st) 121964, ¶¶ 27-29.
¶ 40 This reasoning also applies to other instruments besides the note and the mortgage, such as
a guaranty or a loan modification agreement. Illinois courts have consistently found that a
plaintiff may not recover from a guarantor without pleading separately. Hickey v. Union
National Bank & Trust Co. of Joliet, 190 Ill. App. 3d 186, 190 (1989); United Central Bank v.
Patel, 2015 IL App (3d) 140863-U, ¶ 18; First Midwest Bank v. IRED Elmhurst, LLC, 2014 IL
App (2d) 140456-U, ¶ 16. Unless the plaintiff alleges a violation of the guaranty in its initial
complaint, a foreclosure suit based on a mortgage does not necessarily adjudicate any third
party’s rights. It does not even adjudicate the rights of the parties to the note unless the plaintiff
specifically asks for that remedy, as First Midwest’s predecessor did here. Similarly, if a
plaintiff dismisses its foreclosure complaint because it has entered into a loan modification
agreement with the defendant, the single refiling rule does not prevent that plaintiff from filing
a new complaint based on that loan modification agreement. The second lawsuit is not simply
a refiling of the first, because it relies on a distinct transaction and new operative facts. See
Norris, 2017 IL App (3d) 150764, ¶ 22.
¶ 41 CONCLUSION
¶ 42 First Midwest’s suit for breach of a promissory note constituted the third attempt to collect
from the same defendants based on the same July 1, 2011, default of the same promissory note.
The single refiling rule barred this claim. The appellate court’s opinion is affirmed, the circuit
court’s summary judgment order is vacated, and the case is dismissed.
¶ 43 Appellate court judgment affirmed.
¶ 44 Circuit court judgment vacated.
Circuit’s analysis in that case, we note that any such rule would be in addition to the single refiling rule
and would not affect the analysis here.
3
In further response to First Midwest’s prediction, we observe that it is not clear whether requiring
lenders to bring all their potential claims against a borrower in one suit would be inadvisable. For
example, California’s “one action rule” states that “[t]here can be but one form of action for the
recovery of any debt or the enforcement of any right secured by mortgage upon real property or an
estate for years therein.” Cal. Civ. Proc. Code § 726 (West 2016); Security Pacific National Bank v.
Wozab, 800 P.2d 557 (Cal. 1990). This is exactly the policy that First Midwest opposes. We neither
adopt this policy nor take any position on it, as Illinois law continues to allow lenders to sue under the
mortgage, note, or other instrument separately.
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