2025 IL App (1st) 241333
Ill. App. Ct.2025Background
- BMO Bank N.A. filed a foreclosure complaint against James Zbroszczyk in October 2023, alleging nonpayment on a home equity line of credit (HELOC) secured by a mortgage on Zbroszczyk's home.
- The agreement, executed in 2008, had a $100,000 credit limit, matured in 2018, and allowed for periodic borrowing and repayment; Zbroszczyk stopped making payments in 2013.
- In communications prior to the complaint, BMO identified a “past due date” of August 26, 2013, and acknowledged the debt may be too old to sue on in a 2022 letter.
- The trial court dismissed the foreclosure as time-barred under the statute of limitations and awarded attorney fees to Zbroszczyk.
- BMO appealed, contesting both the statute of limitations determination and the fee award.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Applicable statute of limitations for the HELOC | Ten-year statute for written contracts/notes applies; complaint timely since clock started at 2018 maturity | Five-year statute applies since essential terms (amount owed) require parol evidence; clock started with default in 2013 | Five-year statute applies; action is time-barred even using BMO's accrual date |
| Accrual date for cause of action (statute starts to run) | Statute starts at 2018 contract maturity (final balloon payment due) | Statute started as of default/past due in 2013, as shown by BMO’s notice | Not dispositive; barred even under BMO's preferred date |
| Characterization of the agreement (relevance to limitations) | It's a promissory note or written contract, not a credit card | It's a revolving credit loan akin to a credit card, requires parol evidence to establish debt amount | It’s a revolving credit loan; not a promissory note or complete written contract for SOL purposes |
| Attorney fees award to defendant | Records insufficient and new fees unjustified | Correct fee petition; reduced rates to match earlier years; extra fees explained | No abuse of discretion; award upheld |
Key Cases Cited
- DeLuna v. Burciaga, 223 Ill. 2d 49 (standards for section 2-619 motion to dismiss)
- Morr-Fitz, Inc. v. Blagojevich, 231 Ill. 2d 474 (review standard for motion to dismiss)
- ABN AMRO Mortgage Group, Inc. v. McGahan, 237 Ill. 2d 526 (mortgage foreclosure actions are based on the underlying note)
- Brown v. Goodman, 147 Ill. App. 3d 935 (statute of limitations for written contract requires all essential terms to be in writing)
- Garber v. Harris Trust & Savings Bank, 104 Ill. App. 3d 675 (each use of a credit card creates a new contract; instructive by analogy for revolving credit)
- Kranzler v. Saltzman, 407 Ill. App. 3d 24 (parol evidence requirement defeats claim that instrument is a written contract)