dissenting:
I respectfully dissent from the majority opinion on rehearing. I agree with the court’s analysis regarding the preemption issue. However, I am unpersuaded by the defendant’s petition-for-rehearing argument regarding res judicata. I reiterate the court’s earlier analysis.
EquiCredit argues in its brief that even if we conclude that the circuit court erred in its finding that Gary Treadway’s claims are preempted by the National Bank Act, the claims are also barred by the doctrine of res judicata because the fees challenged in each action appeared on the same settlement statement and both fees were paid by one deduction from the loan proceeds. In response, Gary Treadway argues that EquiCredit waived the issue of res judicata by acquiescing in Gary Treadway’s splitting of the causes of action into two separate lawsuits, and he cites Thorleif Larsen & Son, Inc. v. PPG Industries, Inc., 177 Ill. App. 3d 656, 662 (1988), in support of his argument. In Thorleif Larsen & Son, Inc., the court quoted and applied Comment a to section 26 of the Restatement (Second) of Judgments:
“ ‘Where the plaintiff is simultaneously maintaining separate actions based upon parts of the same claim, and in neither action does the defendant make the objection that another action is pending based on the same claim, judgment in one of the actions does not preclude the plaintiff from proceeding and obtaining judgment in the other action. The failure of the defendant to object to the splitting of the plaintiff’s claim is effective as an acquiescence in the splitting of the claim.’ ” Thorleif Larsen & Son, Inc., 177 Ill. App. 3d at 662, quoting Restatement (Second) of Judgments §26, Comment a, at 235 (1982).
I find that EquiCredit’s conduct in this case rises to the level of acquiescence. Although EquiCredit’s answer to Gary Treadway’s complaint in the instant action does not appear in the record, Gary Treadway filed a reply to EquiCredit’s affirmative defenses in the circuit court of Madison County on August 18, 2005, after the instant case had been remanded from the federal court. According to the reply, EquiCredit’s eighth affirmative defense stated that in the event the case was remanded to state court, Gary Treadway’s claim would be barred by section 2 — 619(a)(3) of the Code (735 ILCS 5/2 — 619(a)(3) (West 2004)) because there was another action pending between the same parties for the same cause. However, EquiCredit later voluntarily withdrew that answer, including the affirmative defense that another action was pending, and filed a motion to dismiss based solely on federal preemption. In addition, EquiCredit did not move to amend its motion or file an alternative motion on the basis of res judicata after the summary judgment had been entered in the 2003 action. Based on EquiCredit’s choice to proceed solely on federal preemption at this stage in the proceedings, I find that EquiCredit acquiesced to the splitting of the causes and thereby waived the issue of res judicata for purposes of this appeal by its failure to raise the issue in the circuit court.