JUSTICE FREEMAN
delivered the opinion of the court:
We consider here whether a holder in due course of a check is precluded from payment as against the drawer where the check was given in exchange for contract services for which the provider was required to be, but was not, a licensed plumber. We conclude such a claim is not precluded.
BACKGROUND
Pursuant to a written “work order,” Fred Fentress agreed to install a “flood control system” at the home of Eric and Beulah Hodge of Chicago for $900. In partial payment for the work, Beulah Hodge drafted a personal check payable to “Fred Fentress — A-OK Plumbing” for $500 from the Hodges’ joint account at Citicorp Savings.
The system’s components were not delivered to the Hodges’ home as scheduled. And, when Fentress failed to appear on the date set for installation, Eric Hodge telephoned him to announce the contract “cancelled.” Hodge also told Fentress that he would order Citicorp Savings not to pay the check Fentress had been given.
Records of Citicorp Savings confirm acknowledgment of a stop-payment order entered the same day.
Nevertheless, Fentress presented the check at the Kedzie & 103rd Street Currency Exchange (Currency Exchange), endorsing it as “sole owner” of A-OK Plumbing, and obtained payment. However, when the Currency Exchange later presented the check for payment at Citicorp Savings, payment was refused in accordance with the stop-payment order.
The Currency Exchange, alleging it was a holder in due course (see Ill. Rev. Stat. 1989, ch. 26, par. 3— 302), then sued Beulah Hodge, as drawer of the check, and Fentress for the amount stated. Hodge, in turn, filed a counterclaim against Fentress. Hodge also moved to dismiss the Currency Exchange’s action against her (see Ill. Rev. Stat. 1989, ch. 110, par. 2— 619). The disposition of Hodge’s motion gives rise to this appeal.
Hodge asserted a defense provided by section 3— 305 of the Uniform Commercial Code (UCC) (Ill. Rev. Stat. 1989, ch. 26, par. 3 — 305). Under that section, the claim of a holder in due course of a negotiable instrument may be barred based on “illegality of the transaction.” (Ill. Rev. Stat. 1989, ch. 26, par. 3-305(2)(b).) Hodge contended Fentress was not a licensed plumber as was required under the Illinois Plumbing License Law (see Ill. Rev. Stat. 1989, ch. Ill, pars. 1101 through 1140). The director of licensing and registration of the Chicago department of buildings and the keeper of plumbing licensing records of the Illinois Department of Public Health provided affidavits supporting that contention. Hodge asserted that, because Fen-tress was in violation of the Illinois Plumbing License Law, his promised performance under the contract gave rise to the requisite “illegality” to bar the Currency Exchange’s claim for payment.
The circuit court granted the motion and dismissed the Currency Exchange’s action against Hodge. The appellate court, with one justice dissenting, affirmed. (234 Ill. App. 3d 1017.) Pursuant to Supreme Court Rule 315(a) (134 Ill. 2d R. 315(a)), we allowed the Currency Exchange’s petition for leave to appeal.
DISCUSSION
Section 2 — 619(a)(9)
Hodge moved for involuntary dismissal under section 2 — 619 of the Code of Civil Procedure. (Ill. Rev. Stat. 1989, ch. 110, par. 2 — 619(a)(9).) Generally, section 2 — 619 affords a “means of obtaining *** a summary disposition of issues of law or of easily proved issues of fact, with a reservation of jury trial as to disputed questions of fact.” (Ill. Ann. Stat., ch. 110, par. 2 — 619, Historical & Practice Notes, at 662 (Smith-Hurd 1983); see Barber-Colman Co. v. A & K Midwest Insulation Co. (1992), 236 Ill. App. 3d 1065, 1071.) Subsection (a)(9), upon which Hodge’s motion specifically was based, permits dismissal where “the claim asserted *** is barred by other affirmative matter avoiding the legal effect of or defeating the claim.” Ill. Rev. Stat. 1989, ch. 110, par. 2 — 619(a)(9).
The phrase “affirmative matter” encompasses any defense other than a negation of the essential allegations of the plaintiff’s cause of action. (See 4 R. Michael, Illinois Practice §41.7 (1989).) For that reason, it is recognized that a section 2 — 619(a)(9) motion to dismiss admits the legal sufficiency of the plaintiff’s cause of action much in the same way that a section 2 — 615 motion to dismiss admits a complaint’s well-pleaded facts. Barber-Colman, 236 Ill. App. 3d at 1073.
If the “affirmative matter” asserted is not apparent on the face of the complaint, the motion must be supported by affidavit. (Ill. Rev. Stat. 1989, ch. 110, par. 2 — 619(a); see also 4 R. Michael, Illinois Practice §41.8, at 334 (1989) (observing that “materials of the same nature as are used to support motions for summary judgment” may serve as support for the motion), citing Sierens v. Clausen (1975), 60 Ill. 2d 585, 588 (noting, in the absence of supporting affidavits, that answers to interrogatories may be used in evidence to the same extent as discovery depositions and that discovery depositions may be used for any purpose for which affidavits may be used).) By presenting adequate affidavits supporting the asserted defense (see 134 Ill. 2d R. 191), the defendant satisfies the initial burden of going forward on the motion. The burden then shifts to the plaintiff.
The plaintiff must establish that the defense is unfounded or requires the resolution of an essential element of material fact before it is proven. The plaintiff may do so by “affidavit[ ] or other proof.” (Ill. Rev. Stat. 1989, ch. 110, par. 2 — 619(c).) A counteraffidavit is necessary, however, to refute evidentiary facts properly asserted by affidavit supporting the motion else the facts are deemed admitted. If, after considering the pleadings and affidavits, the trial judge finds that the plaintiff has failed to carry the shifted burden of going forward, the motion may be granted and the cause of action dismissed.
An appeal from such a dismissal is the same in nature as one following a grant of summary judgment and is likewise a matter given to de novo review (see Myers v. Health Specialists, S.C. (1992), 225 Ill. App. 3d 68, 72 (stating the standard as it relates to summary judgment)). The appellate court must consider whether the existence of a genuine issue of material fact should have precluded the dismissal or, absent such an issue of fact, whether dismissal is proper as a matter of law. 4 R. Michael, Illinois Practice §41.9 (1989).
Hodge’s Motion
The legal sufficiency of the Currency Exchange’s action, including the allegation that it possesses the check as a holder in due course, is admitted by Hodge’s motion. The reason asserted for dismissal — “illegality” grounded upon noncompliance with a statutory licensure requirement — was raised properly as affirmative matter and supported by affidavit.
The Illinois Plumbing License Law requires that all plumbing, including “installation *** or extension” of “drains,” be performed by plumbers licensed under the Act. (Ill. Rev. Stat. 1989, ch. 111, pars. 1102(5), (8), 1103.) The affidavits establish that Fentress was not licensed either by the City of Chicago or the State of Illinois. That failure is a violation of the Illinois Plumbing License Law and is punishable as a misdemeanor. Ill. Rev. Stat. 1989, ch.
Free access — add to your briefcase to read the full text and ask questions with AI
JUSTICE FREEMAN
delivered the opinion of the court:
We consider here whether a holder in due course of a check is precluded from payment as against the drawer where the check was given in exchange for contract services for which the provider was required to be, but was not, a licensed plumber. We conclude such a claim is not precluded.
BACKGROUND
Pursuant to a written “work order,” Fred Fentress agreed to install a “flood control system” at the home of Eric and Beulah Hodge of Chicago for $900. In partial payment for the work, Beulah Hodge drafted a personal check payable to “Fred Fentress — A-OK Plumbing” for $500 from the Hodges’ joint account at Citicorp Savings.
The system’s components were not delivered to the Hodges’ home as scheduled. And, when Fentress failed to appear on the date set for installation, Eric Hodge telephoned him to announce the contract “cancelled.” Hodge also told Fentress that he would order Citicorp Savings not to pay the check Fentress had been given.
Records of Citicorp Savings confirm acknowledgment of a stop-payment order entered the same day.
Nevertheless, Fentress presented the check at the Kedzie & 103rd Street Currency Exchange (Currency Exchange), endorsing it as “sole owner” of A-OK Plumbing, and obtained payment. However, when the Currency Exchange later presented the check for payment at Citicorp Savings, payment was refused in accordance with the stop-payment order.
The Currency Exchange, alleging it was a holder in due course (see Ill. Rev. Stat. 1989, ch. 26, par. 3— 302), then sued Beulah Hodge, as drawer of the check, and Fentress for the amount stated. Hodge, in turn, filed a counterclaim against Fentress. Hodge also moved to dismiss the Currency Exchange’s action against her (see Ill. Rev. Stat. 1989, ch. 110, par. 2— 619). The disposition of Hodge’s motion gives rise to this appeal.
Hodge asserted a defense provided by section 3— 305 of the Uniform Commercial Code (UCC) (Ill. Rev. Stat. 1989, ch. 26, par. 3 — 305). Under that section, the claim of a holder in due course of a negotiable instrument may be barred based on “illegality of the transaction.” (Ill. Rev. Stat. 1989, ch. 26, par. 3-305(2)(b).) Hodge contended Fentress was not a licensed plumber as was required under the Illinois Plumbing License Law (see Ill. Rev. Stat. 1989, ch. Ill, pars. 1101 through 1140). The director of licensing and registration of the Chicago department of buildings and the keeper of plumbing licensing records of the Illinois Department of Public Health provided affidavits supporting that contention. Hodge asserted that, because Fen-tress was in violation of the Illinois Plumbing License Law, his promised performance under the contract gave rise to the requisite “illegality” to bar the Currency Exchange’s claim for payment.
The circuit court granted the motion and dismissed the Currency Exchange’s action against Hodge. The appellate court, with one justice dissenting, affirmed. (234 Ill. App. 3d 1017.) Pursuant to Supreme Court Rule 315(a) (134 Ill. 2d R. 315(a)), we allowed the Currency Exchange’s petition for leave to appeal.
DISCUSSION
Section 2 — 619(a)(9)
Hodge moved for involuntary dismissal under section 2 — 619 of the Code of Civil Procedure. (Ill. Rev. Stat. 1989, ch. 110, par. 2 — 619(a)(9).) Generally, section 2 — 619 affords a “means of obtaining *** a summary disposition of issues of law or of easily proved issues of fact, with a reservation of jury trial as to disputed questions of fact.” (Ill. Ann. Stat., ch. 110, par. 2 — 619, Historical & Practice Notes, at 662 (Smith-Hurd 1983); see Barber-Colman Co. v. A & K Midwest Insulation Co. (1992), 236 Ill. App. 3d 1065, 1071.) Subsection (a)(9), upon which Hodge’s motion specifically was based, permits dismissal where “the claim asserted *** is barred by other affirmative matter avoiding the legal effect of or defeating the claim.” Ill. Rev. Stat. 1989, ch. 110, par. 2 — 619(a)(9).
The phrase “affirmative matter” encompasses any defense other than a negation of the essential allegations of the plaintiff’s cause of action. (See 4 R. Michael, Illinois Practice §41.7 (1989).) For that reason, it is recognized that a section 2 — 619(a)(9) motion to dismiss admits the legal sufficiency of the plaintiff’s cause of action much in the same way that a section 2 — 615 motion to dismiss admits a complaint’s well-pleaded facts. Barber-Colman, 236 Ill. App. 3d at 1073.
If the “affirmative matter” asserted is not apparent on the face of the complaint, the motion must be supported by affidavit. (Ill. Rev. Stat. 1989, ch. 110, par. 2 — 619(a); see also 4 R. Michael, Illinois Practice §41.8, at 334 (1989) (observing that “materials of the same nature as are used to support motions for summary judgment” may serve as support for the motion), citing Sierens v. Clausen (1975), 60 Ill. 2d 585, 588 (noting, in the absence of supporting affidavits, that answers to interrogatories may be used in evidence to the same extent as discovery depositions and that discovery depositions may be used for any purpose for which affidavits may be used).) By presenting adequate affidavits supporting the asserted defense (see 134 Ill. 2d R. 191), the defendant satisfies the initial burden of going forward on the motion. The burden then shifts to the plaintiff.
The plaintiff must establish that the defense is unfounded or requires the resolution of an essential element of material fact before it is proven. The plaintiff may do so by “affidavit[ ] or other proof.” (Ill. Rev. Stat. 1989, ch. 110, par. 2 — 619(c).) A counteraffidavit is necessary, however, to refute evidentiary facts properly asserted by affidavit supporting the motion else the facts are deemed admitted. If, after considering the pleadings and affidavits, the trial judge finds that the plaintiff has failed to carry the shifted burden of going forward, the motion may be granted and the cause of action dismissed.
An appeal from such a dismissal is the same in nature as one following a grant of summary judgment and is likewise a matter given to de novo review (see Myers v. Health Specialists, S.C. (1992), 225 Ill. App. 3d 68, 72 (stating the standard as it relates to summary judgment)). The appellate court must consider whether the existence of a genuine issue of material fact should have precluded the dismissal or, absent such an issue of fact, whether dismissal is proper as a matter of law. 4 R. Michael, Illinois Practice §41.9 (1989).
Hodge’s Motion
The legal sufficiency of the Currency Exchange’s action, including the allegation that it possesses the check as a holder in due course, is admitted by Hodge’s motion. The reason asserted for dismissal — “illegality” grounded upon noncompliance with a statutory licensure requirement — was raised properly as affirmative matter and supported by affidavit.
The Illinois Plumbing License Law requires that all plumbing, including “installation *** or extension” of “drains,” be performed by plumbers licensed under the Act. (Ill. Rev. Stat. 1989, ch. 111, pars. 1102(5), (8), 1103.) The affidavits establish that Fentress was not licensed either by the City of Chicago or the State of Illinois. That failure is a violation of the Illinois Plumbing License Law and is punishable as a misdemeanor. Ill. Rev. Stat. 1989, ch. Ill, pars. 1103, 1128.
Hodge therefore carried the burden of going forward.
No counteraffidavit was supplied. For purposes of the motion, the fact that Fentress was not a licensed plumber is deemed admitted. No other matter was presented to refute the defense.
No material fact remains to be resolved. The question is simply whether Hodge is entitled, as a matter of law, to a judgment of dismissal in view of the defense asserted under UCC section 3 — 305.
“Illegality” under Section 3 — 305
Section 3 — 305 provides, in relevant part:
“[A] holder in due course *** takes the instrument free from * * *
(2) all defenses of any party to the instrument with whom the holder has not dealt except * * *
(b) *** illegality of the transaction, as renders the obligation of the party a nullity.” (Ill. Rev. Stat. 1989, ch. 26, par. 3 — 305.)
The concern is whether noncompliance by Fentress with the Illinois Plumbing License Law gives rise to “illegality of the transaction” with respect to the contract for plumbing services so as to bar the claim of the Currency Exchange, a holder in due course of the check initially given Fentress.
The issue of “illegality” arises “under a variety of statutes.” (Ill. Ann. Stat., ch. 26, par. 3 — 305, Uniform Commercial Code Comment, at 66 (Smith-Hurd Supp. 1992).) In view of the diverse constructions to which statutory enactments are given, “illegality” is, accordingly, a matter “left to the local law.” (Ill. Ann. Stat., ch. 26, par. 3 — 305, Uniform Commercial Code Comment, at 66 (Smith-Hurd Supp. 1992).) Even so, it is only when an obligation is made “entirely null and void” under “local law” that “illegality” exists as one of the “real defenses” under section 3 — 305 to defeat a claim of a holder in due course. (Ill. Ann. Stat., ch. 26, par. 3 — 305, Uniform Commercial Code Comment, at 66 (Smith-Hurd Supp. 1992).) In effect, the obligation must be no obligation at all. If it is “merely voidable” at the election of the obligor, the defense is unavailable. Ill. Ann. Stat., ch. 26, par. 3 — 305, Uniform Commercial Code Comment, at 66 (Smith-Hurd, Supp. 1992).
Historically, this court has recognized “illegality” to arise only in view of legislative declaration affecting both the underlying contract or transaction and the instrument exchanged upon it. (Pope v. Hanke (1894), 155 Ill. 617, 628-30; Town of Eagle v. Kohn (1876), 84 Ill. 292, 295-96.) A contract or transaction which is void must certainly negate the obligation to pay arising from it as between the contracting parties. (Pope, 155 Ill. at 626; Kohn, 84 Ill. at 296.) But, unless an instrument memorializing the obligation is also made void, an innocent third party who has no knowledge of the circumstances of the initial contract or transaction may yet claim payment of it against the drawer or maker. Pope, 155 Ill. at 626; Kohn, 84 Ill. at 296.
Thus, “illegality” has been held to defeat the claims of holders in due course in cases involving contracts of a gaming nature or for retirement of gambling debts (see Ill. Rev. Stat. 1989, ch. 38, par. 28 — 1). (See Riordon v. McCabe (1930), 341 Ill. 506; Pope, 155 Ill. 617; Kohn, 84 Ill. 292; Chapin v. Dake (1870), 57 Ill. 295.) Owing to a deep-seated hostility toward nongovernmental-sanctioned gambling, our legislature has declared that any instrument associated with such activity is void, independent of the status of who may possess it. (Ill. Rev. Stat. 1989, ch. 38, par. 28 — 7; Riordon, 341 Ill. at 509; Pope, 155 Ill. at 628-30; Kohn, 84 Ill. at 295; Chapin, 57 Ill. at 298.) The absence of similar legislative declaration as for an instrument given upon a usurious contract must account, in part, for the conclusion that usury has not been held to give rise to “illegality” as a defense against a holder in due course. See Ill. Rev. Stat. 1989, ch. 17, par. 6413; see also Marks v. Pope (1939), 370 Ill. 597; Richter v. Burdock (1913), 257 Ill. 410; Ill. Ann. Stat., ch. 26, par. 3 — 305, Illinois Code Comment, at 180 (SmithHurd 1963).
That the existence or absence of legislative declaration controls the issue was recognized by our appellate court in McGregor v. Lamont (1922), 225 Ill. App. 451, a case involving circumstances similar to those here. John T. Lamont was the maker of a note used to pay for shares of stock issued by the Corn Belt Farmers’ Cooperative Association (Association). Lamont’s note subsequently came into the possession of Robert Roy McGregor, a holder in due course. When Lamont failed to pay on the note, McGregor filed suit and obtained a judgment against him.
Lamont moved to vacate the judgment. Lamont asserted that, the purchase of the shares of stock was void under the Illinois Securities Law because the Association had not complied with its requirements. Because the transaction was void, Lamont concluded, the note given in payment must also be void despite Mc-Gregor’s status as a holder in due course.
The appellate court noted that the Illinois Securities Law did, indeed, make transactions for the sale of shares of stock void based on noncompliance with the Law’s requirements. (McGregor, 225 Ill. App. at 453-54, 455.) But the court noted that only the “sale and contract of sale" of shares of stock were expressly made void, not instruments exchanged upon such contracts. (McGregor, 225 Ill. App. at 455.) Absent legislative declaration making such instruments void, the court declined to recognize a defense to McGregor’s action for payment on the note. McGregor, 225 Ill. App. at 455.
The same rule obtains in New Jersey. In New Jersey Mortgage & Investment Corp. v. Berenyi (App. Div. 1976), 140 N.J. Super. 406, 356 A.2d 421, a holder in due course of a note was permitted to maintain a claim for its payment even though the note had been initially obtained by a corporation in a transaction which violated an injunctive order. No statute rendered the note void, and the holder in due course had no knowledge or notice of the injunction. (Berenyi, 140 N.J. Super. at 408, 356 A.2d at 423.) But in Westervelt v. Gateway Financial Service (Ch. Div. 1983), 190 N.J. Super. 615, 464 A.2d 1203, the “illegality” defense was held to bar the claim of a holder in due course of a secondary mortgage and note because New Jersey’s Secondary Mortgage and Loan Act specifically made void “[a]ny obligation on the part of the borrower arising out of a secondary mortgage loan.” (Westervelt, 190 N.J. Super. at 620, 464 A.2d at 1205.) Westervelt involved what Berenyi did not: applicability of a direct statutory expression that an instrument, itself, arising from a particular contract or transaction was void. Westervelt, 190 N.J. Super. at 623, 464 A.2d at 1207.
Several other jurisdictions also find reason to draw a distinction between the voidness of a negotiable instrument and the underlying contract or transaction upon which it is exchanged. (See Annot., 80 A.L.R.2d 465, 472-76 (1961) (summarizing several State decisions in which holders in due course were permitted to claim payment of instruments executed in favor of foreign corporations doing business in States without complying with local licensing requirements).) Although recognition of that distinction is not universal (see Columbus Checkcashiers v. Stiles (1990), 56 Ohio App. 3d 159, 565 N.E.2d 883; Wilson v. Steele (1989), 211 Cal. App. 3d 1053, 259 Cal. Rptr. 851 (holding that “illegality” need only be present in the underlying contract between an unlicensed contractor and the drafter of a negotiable instrument to bar the claim of a holder in due course)), we are convinced it remains the better rule.
A plaintiff is precluded from recovering on a suit involving an illegal contract because the plaintiff is a wrongdoer. (See Bankers Trust Co. v. Litton Systems, Inc. (2d Cir. 1979), 599 F.2d 488, 492 (citing the Restatement of Contracts and Restatement (Second) of Contracts).) Enforcement of the illegal contract makes the court an indirect participant in the wrongful conduct. See Litton, 599 F.2d at 493.
But a holder in due course is an innocent third party. (Litton, 599 F.2d at 492-93.) Such a holder is without knowledge of the circumstances of the contract upon which the instrument was initially exchanged. (Ill. Rev. Stat. 1989, ch. 26, par. 3 — 302(l)(c) (defining a holder in due course, in part, as a holder who is “without notice *** of any defense against or claim to [the instrument] on the part of any person”).) The same rationale that precludes recovery by a wrongdoing plaintiff is inapplicable in determining such a holder’s right to claim payment. (Litton, 599 F.2d at 492-93.) Enforcement of that claim does not sully the court. Litton, 599 F.2d at 492-93.
The holder in due course concept is intended to facilitate commercial transactions by eliminating the need for “elaborate investigation” of the nature of the circumstances for which an instrument is initially exchanged or of its drafting. (Litton, 599 F.2d at 494.) If “illegality” means simply negation of the initial obligation to pay, a holder in due course enjoys no more protection than a party to the original contract or transaction. The “real” defense of “illegality” is reduced to a “personal” one. See Vedder v. Spellman (1971), 78 Wash. 2d 834, 839-40, 480 P.2d 207, 210 (Neill, J., concurring).
It is, therefore, not enough simply to conclude that the initial obligation to pay arising from a void contract or transaction is void. Negation of that obligation as between the contracting parties has little bearing on whether a holder in due course of an instrument arising from the contract or transaction should nevertheless be permitted to make a claim for payment.
The “local law” (Ill. Ann. Stat., ch. 26, par. 3 — 305, Uniform Commercial Code Comment, at 66 (SmithHurd Supp. 1992)) of this State has been formulated upon this court’s recognition, in cases predating the UCC, of legislative prerogative regarding negotiable instruments. In adopting the UCC and, in particular, section 3 — 305, our legislature chose to confer upon a holder in due course of a negotiable instrument considerable protection against claims by persons to it. Our legislature also continues to declare certain obligations void because of the circumstances of the agreements from which they arise and without regard to the status of who may claim ownership. (Ill. Rev. Stat. 1989, ch. 38, par. 28 — 7(b) (subjecting “[a]ny obligation” made void by reason of gambling to be “set aside and vacated” by any court).) The selective negation of obligations reflects a legislative aim to declare what will and will not give rise to “illegality” in cases now governed by the UCC. As legislative direction indicates which obligations are always void, legislative silence indicates when the protection afforded a holder in due course must be honored.
We therefore reaffirm, today, the view this court has consistently recognized in cases predating the UCC. Unless the instrument arising from a contract or transaction is, itself, made void by statute, the “illegality” defense under section 3 — 305 is not available to bar the claim of a holder in due course.
Conclusion
To determine whether Hodge is entitled to a judgment of dismissal, we need not engage in an analysis aimed at characterizing the contract between Fentress and the Hodges. Whether the underlying contract should be considered void because Fentress was not licensed as required by the Illinois Plumbing License Law is not dis-positive of the Currency Exchange’s right, as a holder in due course, to claim payment of the check. It is relevant only to determine whether the Illinois Plumbing License Law provides that any obligation arising from a contract for plumbing services made in violation of its requirements is void. It does not.
For the reasons stated, the judgments of the appellate and circuit courts are reversed, and the cause is remanded to the circuit court for further proceeding.
Judgments reversed; cause remanded.
JUSTICE McMORROW took no part in the consideration or decision of this case.