First Midwest Bank v. Cobo
90 N.E.3d 567
| Ill. App. Ct. | 2017Background
- In 2006 Cobo and Rule executed a $227,500 promissory note and mortgage in favor of Waukegan Savings & Loan; they defaulted in 2011.
- Waukegan filed a foreclosure complaint in 2011 (attached note and mortgage); it was voluntarily dismissed in 2013.
- In April 2013 the bank (as receiver) filed a breach-of-note complaint for the same debt; that breach-of-note suit was voluntarily dismissed in April 2015.
- In July 2015 the bank filed the operative two-count complaint (breach of contract on the note; alternatively unjust enrichment), attaching the note and mortgage.
- Defendants moved to dismiss under section 2-619 arguing the 2015 complaint was an impermissible second refiling in violation of section 13-217; the trial court denied the motion, later struck some affirmative defenses, and granted summary judgment for the bank.
- The appellate court vacated the summary judgment and dismissed the breach of contract complaint, holding the 2015 suit was an improper second refiling; unjust enrichment could not salvage the claim because an express contract governed the dispute.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the 2015 breach complaint was an impermissible second refiling under §13-217 | The 2015 complaint was a permissible refiling of the 2013 breach-of-note action (not a refiling of the 2011 foreclosure) | The 2013 breach-of-note complaint was itself a refiling of the 2011 foreclosure; §13-217 permits only one refiling, so the 2015 suit is barred | Court held the 2015 breach complaint was an improper second refiling and dismissed it |
| Whether summary judgment could be affirmed on unjust enrichment as an alternative theory | Unjust enrichment provides an alternate remedy if breach claim fails | Unjust enrichment is unavailable because an express written contract (note/mortgage) governs the parties' obligations | Court held unjust enrichment inapplicable where an express contract governs and could not sustain judgment |
Key Cases Cited
- DeLuna v. Burciaga, 223 Ill. 2d 49 (Illinois 2006) (describing purpose and nature of a section 2-619 motion)
- Simmons v. Homatas, 236 Ill. 2d 459 (Illinois 2010) (motion to dismiss rulings reviewed de novo)
- Timberlake v. Illini Hospital, 175 Ill. 2d 159 (Illinois 1997) (explaining one-refiling limitation of §13-217)
- River Park, Inc. v. City of Highland Park, 184 Ill. 2d 290 (Illinois 1998) (adopting transactional test for identity of causes of action)
- ABN AMRO Mortgage Group, Inc. v. McGahan, 237 Ill. 2d 526 (Illinois 2010) (foreclosure is based on note and can support deficiency judgments)
- Best v. Taylor Machine Works, 179 Ill. 2d 367 (Illinois 1997) (addressing constitutionality of §13-217 amendments)