First Midwest Bank v. Cobo
90 N.E.3d 567
Ill. App. Ct.2018Background
- In 2011 Waukegan Savings & Loan filed a single-count foreclosure complaint against Cobo and Rule alleging default on a $227,500 promissory note secured by a mortgage; that action was voluntarily dismissed in 2013.
- Two weeks later plaintiff (as receiver for Waukegan) filed a breach-of-note complaint asserting the same default and attached a copy of the note; that complaint was voluntarily dismissed in 2015.
- Four months after the 2015 dismissal plaintiff filed a two-count complaint (breach of contract and, alternatively, unjust enrichment) attaching the note and mortgage and seeking unpaid principal, interest, costs and attorney fees.
- Defendants moved to dismiss under section 2-619, arguing the 2015 breach-of-contract complaint was an improper second refiling in violation of section 13-217 (single-refiling rule). They also asserted the attached note was not the signed original.
- The trial court denied the 2-619 motion, struck several affirmative defenses, granted summary judgment for plaintiff, entered judgment for $308,192.56, and defendants appealed.
- The appellate court vacated the summary judgment and dismissed the breach-of-contract complaint, holding the 2015 complaint was an improper second refiling; it also rejected plaintiff’s alternative unjust-enrichment basis for affirmance because an express contract governed the dispute.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the 2015 breach-of-contract complaint was an impermissible second refiling under §13-217 | 2015 filing was the first refiling (of the 2013 breach-of-note action), not a second refiling of the 2011 foreclosure; foreclosure and note suits are different because mortgage and note are distinct contracts | The 2013 breach-of-note complaint was itself a refiling of the 2011 foreclosure; thus the 2015 suit is a prohibited second refiling | The court held the 2015 complaint was an improper second refiling under the transactional test and dismissed the complaint |
| Whether the trial court erred in granting summary judgment because the attached note may not be the signed original | The attached copy of the note and affidavit established plaintiff’s entitlement and amounts due | Defendants contended the exhibit was a compilation and not the parties’ signed note, creating a material factual dispute | The appellate court vacated summary judgment on refiling grounds and did not affirm on the note-authenticity point; trial court’s summary judgment was vacated |
| Whether unjust enrichment could support judgment in the alternative | Plaintiff argued unjust enrichment count could sustain recovery if breach claim failed | Defendants argued unjust enrichment is unavailable where an express contract governs the same subject matter | Court held unjust enrichment inapplicable because the parties’ obligations are governed by an express promissory note and mortgage; cannot affirm on that theory |
Key Cases Cited
- DeLuna v. Burciaga, 223 Ill. 2d 49 (discusses nature of §2-619 motion)
- Simmons v. Homatas, 236 Ill. 2d 459 (standard of review for dismissal motions)
- River Park, Inc. v. City of Highland Park, 184 Ill. 2d 290 (adopts transactional test for identity of causes of action)
- Timberlake v. Illini Hospital, 175 Ill. 2d 159 (explains single-refiling limitation of §13-217)
- ABN AMRO Mortgage Group, Inc. v. McGahan, 237 Ill. 2d 526 (foreclosure actions arise from the note and can support personal deficiency claims)
- Goldstein v. LP XXVI, LLC, 349 Ill. App. 3d 237 (distinguishable — guaranty separate from foreclosure claims)
- Guinn v. Hoskins Chevrolet, 361 Ill. App. 3d 575 (unjust enrichment unavailable when express contract governs relationship)