First Midwest Bank v Cobo (IL)

2018 IL 12308.

Summary: Based on the single refiling rule 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. When a later lawsuit asserts the same cause of action as a previous lawsuit that was dismissed by the plaintiff and arose from the same set of operative facts, the latter will be barred by res judicata.

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Facts: Defendants Andres Cobo and Amy M. Rule took out a mortgage on their property located at 625 S. 12th Avenue, Maywood, IL with Waukegan Savings and Loan, SB (Waukegan). The mortgage secured a loan from Waukegan for $227, 500. Five years later defendants defaulted on their loan and Waukegan commenced foreclosure proceedings on December 8, 2011. Waukegan sought foreclosure, sale of the property and a deficiency judgment for the remaining debt against defendants.

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 suit against the defendants on April 16, 2013, for breach of a promissory note. After two years, the case had not yet proceeded to trial and First Midwest voluntarily dismissed its suit.

On July 30, 2015, First Midwest sued the defendants for breach of promissory note and unjust enrichment, seeking $278,838.13. Defendants moved to dismiss under section 2-619 of the Code of Civil Procedure and 735 ILCS 5/2-619 arguing that Illinois "single refiling rule" prohibits a plaintiff from refiling the same cause of action more than once. The circuit court denied the motion to dismiss. First Midwest later moved for summary judgment and the court awarded it along with $308,192.56.

On appeal, the appellate court vacated the circuit court's order and dismissed the complaint. 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 constituted the same cause of action for purposes of the single refiling rule.

Holding: Affirmed. The court reviewed the motion to dismiss under section 2-619 de novo. The defendants argued that the court should dismiss First Midwest's complaint based on the single refiling rule. When different complaints state the same cause of action and arise from the same set of operative facts, and the first complaint was voluntarily dismissed by the plaintiff, the plaintiff is barred from refiling another suit based on res judicata. Although a dismissal is not a final adjudication on the merits, Illinois' single refiling rule applies when the plaintiff has voluntarily dismissed the lawsuit.

The court applied the transactional test to determine whether the three lawsuits arose from the same set of operative facts. The court found that First Midwest's two later suits for breach of promissory note asserted the same cause of actions as First Midwest's predecessor's first suit under the mortgage and the note. First Midwest attempted three times to collect from the same defendants based on the same July 1, 2011, default of the same promissory note. Therefore, the appellate court's judgment was affirmed, the circuit court's summary judgment order was vacated, and the case was dismissed.

Opinion Year: 
2018
Jurisdiction: 
Illinois
By: ATG Underwriting Department | Posted on: Thu, 04/23/2020 - 2:48pm