2015 IL App (1st) 140184
SIXTH DIVISION June 5, 2015
No. 1-14-0184 ________________________________________________________________________
IN THE APPELLATE COURT OF ILLINOIS FIRST JUDICIAL DISTRICT ________________________________________________________________________
LSREF2 NOVA INVESTMENTS III, LLC, ) Appeal from the ) Circuit Court of Plaintiff-Appellant, ) Cook County. ) v. ) No. 12 L 5297 ) MICHELLE COLEMAN, ) The Honorable ) Brigid Mary McGrath, Defendant-Appellee. ) Judge Presiding. ________________________________________________________________________
JUSTICE LAMPKIN delivered the judgment of the court, with opinion. Justices Hall and Rochford concurred in the judgment and opinion.
OPINION
&1 Plaintiff, LSREF2 Nova Investments III, LLC, appeals the circuit court's order
granting a motion to reconsider in favor of defendant, Michelle Coleman, and dismissing
plaintiff's complaint seeking relief under a promissory note based on the doctrine of res
judicata. On appeal, plaintiff contends the circuit court erred in dismissing its complaint
where res judicata did not bar it from pursuing a distinct remedy other than the remedy
pursued in the prior mortgage foreclosure action. Based on the following, we affirm. No. 1-14-0184
&2 FACTS
&3 On November 19, 2007, defendant executed a mortgage and a promissory note in
relation to a commercial property located at 6456 S. Honore, in Chicago, Illinois. The
promissory note was for $304,000 and was secured by the mortgage. Plaintiff is the
current holder of the promissory note, as the apparent successor in interest of Citibank,
N.A. Defendant defaulted on her payments in 2010.
&4 On August 18, 2010, plaintiff's predecessor in interest filed a single-count
complaint to foreclose the mortgage seeking in its prayer for relief, inter alia, a judgment
to foreclose the mortgage and a personal judgment for a deficiency. Plaintiff's
predecessor in interest brought the complaint in its capacity as the legal holder of the
mortgage and the promissory note. The mortgage and the promissory note were attached
as exhibits to the complaint. The unpaid balance due at the time of the filing of the
foreclosure complaint was $291,813.89. The complaint alleged that defendant was
"personally liable for any deficiency."
&5 On November 22, 2010, the circuit court entered a judgment of foreclosure and
sale in favor of plaintiff, finding that a default by defendant, the "valid" obligee of the
mortgage and promissory note, had occurred in the payment of the principal and interest
due pursuant to the terms of said mortgage and promissory note and that "plaintiff has the
right and power to declare immediately due and payable all indebtedness secured by the
mortgage." The circuit court further found that by virtue of the mortgage and note,
plaintiff was due $322,668.35. The judgment also provided that "[i]n case there is any
deficiency in the amount [due] the plaintiff, LSREF2 NOVA INVESTMENTS, LLC, the
plaintiff shall be entitled to a deficiency judgment against the defendant, MICHELLE L.
2 No. 1-14-0184
COLEMAN, jointly and severally, for such amount and for an execution thereon as
provided by law." In addition, the judgment provided that "[t]he Court expressly retains
jurisdiction of the property which is the subject of this foreclosure for so long as may be
necessary for the purpose of placing in possession of the premises the holder of the
Certificate of Sale or the grantees in the Intercounty Judicial Deed, or his or their legal
representatives or assigns, and reserves the right to appoint a receiver to take possession
of said premises in order to prevent impairment of the value of the premises, manage and
conserve the premises, or satisfy any deficiency which may be found due to plaintiff."
&6 On January 11, 2011, a judicial sale was held and plaintiff purchased the subject
property for $100,000. On February 28, 2011, the circuit court entered an order
approving the report of the sale and distribution of the subject property, confirming the
sale, and ordering possession. The February 28, 2011, order stated that "[t]here shall be
an IN REM deficiency judgment entered in the sum of $227,416.32 with interest thereon
as by statute provided against the subject property."
&7 On May 15, 2012, plaintiff filed a complaint, seeking to enforce the promissory
note against defendant. On January 2, 2013, defendant filed an answer, but, on May 15,
2013, the circuit court granted defendant’s motion to withdraw that answer and to file a
motion to dismiss. In her motion to dismiss pursuant to section 2-619 of the Code of
Civil Procedure (Code) (735 ILCS 5/2-619 (West 2010)), defendant alleged plaintiff's
breach of contract action was barred by the doctrine of res judicata where the circuit
court already had ruled on defendant's liability pursuant to the promissory note. On
October 30, 2013, the circuit court denied defendant's motion to dismiss without
providing its reasoning. Then, on November 27, 2013, defendant filed a motion to
3 No. 1-14-0184
reconsider the circuit court's denial of her motion to dismiss, arguing that the circuit court
erred in its application of the law to the facts established by the pleadings. Following a
hearing, 1 the motion to reconsider was granted by the circuit court on December 19,
2013, and plaintiff's complaint was "dismissed with prejudice based upon res judicata."
This appeal followed.
&8 ANALYSIS
&9 Plaintiff contends the circuit court erred in granting defendant's motion to
reconsider and in dismissing its complaint based on res judicata where plaintiff was
entitled to pursue an action separate from the prior foreclosure proceeding in order to
adjudicate defendant's liability under the promissory note. In response, defendant
contends plaintiff is barred from pursuing an in personam claim under the note against
her where its previously adjudged complaint requested "[a] personal judgment for any
deficiency," where the foreclosure judgment explicitly provided that plaintiff was
"entitled to a deficiency judgment" against defendant in the event there was a remaining
deficiency, and where the order approving the sale and distribution of the subject
property stated that "[t]here shall be an IN REM deficiency judgment entered in the sum
of $227,416.32 with interest thereon as by statute provided against the subject property."
&10 The parties dispute the proper standard of review. While we recognize that the
circuit court did grant defendant's motion to reconsider, the ultimate ruling was the
dismissal of plaintiff's complaint on the basis of res judicata. A section 2-619 motion to
dismiss admits the legal sufficiency of a plaintiff's allegations but asserts the existence of
an affirmative matter that avoids or defeats the plaintiff's claim, in this case res judicata.
1 A transcript from the hearing, or an acceptable substitute, does not appear in the record on appeal.
4 No. 1-14-0184
See Barber v. American Airlines, Inc., 241 Ill. 2d 450, 455 (2011). This court reviews de
novo a dismissal pursuant to section 2-619 based upon the doctrine of res judicata.
Morris B. Chapman & Associates, Ltd. v. Kitzman, 193 Ill. 2d 560, 565 (2000).
&11 The doctrine of res judicata prevents the multiplicity of lawsuits between the
same parties involving the same facts and issues. Turczak v. First American Bank, 2013
IL App (1st) 121964, ¶ 22. In order for res judicata to bar the same parties or their
privies from litigating causes of action that were or could have been raised in an earlier
lawsuit, the moving party must demonstrate: (1) a final judgment on the merits rendered
by a court of competent jurisdiction; (2) an identity of causes of action; and (3) an
identity of the parties or their privies. Id. ¶& 22-23.
&12 In this case, there is no dispute regarding the presence of the first and third
elements of the doctrine of res judicata where the circuit court rendered a final judgment
by granting relief in the foreclosure action and there is an identity of the parties or
privies. The parties dispute the second element, namely, the existence of an identity of
causes of action. Plaintiff contends there was no identity to the causes of action where it
sought separate, consecutive proceedings for the adjudication of the mortgage and
promissory note. In contrast, defendant argues there was an identity of the causes of
action where the pleadings demonstrate plaintiff chose to adjudicate its rights under the
note in the mortgage foreclosure action.
&13 With regard to the second element of res judicata, Illinois courts apply the
"transactional test" to determine the identity of causes of action. River Park, Inc. v. City
of Highland Park, 184 Ill. 2d 290, 310 (1998). Pursuant to the transactional test, separate
claims are considered as part of the same cause of action, even without substantial
5 No. 1-14-0184
overlap in the evidence, as long as the claims "arise from a single group of operative
facts, regardless of whether they assert different theories of relief." Id. at 311.
&14 Based on the record before us, we conclude that the circuit court properly
dismissed plaintiff's complaint based on res judicata. In the foreclosure action, plaintiff
sought to foreclose on defendant's property, but also explicitly sought a personal
deficiency judgment against defendant. Plaintiff sought the personal deficiency judgment
based on defendant's obligations under both the promissory note and the mortgage.
Pursuant to section 15-1508(e) of the Illinois Mortgage Foreclosure Law (Foreclosure
Law) (735 ILCS 5/15-1508(e) (West 2010)), with "any order confirming a sale pursuant
to the judgment of foreclosure, the court shall also enter a personal judgment for
deficiency against any party (i) if otherwise authorized and (ii) to the extent requested in
the complaint and proven upon presentation of the report of sale in accordance with
Section 15-1508." Therefore, section 15-1508(e) of the Foreclosure Law allowed such a
personal money judgment to be entered against defendant in the foreclosure action and
allowed plaintiff to enforce and collect it to the same extent and manner applicable to any
money judgment. 2
&15 Furthermore, the foreclosure judgment order entered against defendant stated that
plaintiff would be entitled to a deficiency judgment after the sale of the property and be
allowed to execute upon such judgment in the event there was a "deficiency amount
[due]." Following the judicial sale, there was such a "deficiency amount" due plaintiff
2 In the foreclosure action, the circuit court specifically found defendant was personally served
with the foreclosure complaint and, thus, the provisions of section 15-1508(e) of the Foreclosure Law were
fully applicable and authorized the circuit court to enter a personal deficiency judgment.
6 No. 1-14-0184
for $227,416.32 plus interest. We recognize that the circuit court's February 28, 2011,
order confirming the sale did not provide for an in personam deficiency judgment but for
an in rem one; however, the fact that plaintiff did not obtain an in personam deficiency
judgment, as requested in its foreclosure complaint, does not preclude the application of
res judicata principles to the suit here. See In re Liquidation of Legion Indemnity Corp.,
373 Ill. App. 3d 969, 974 (2007) (Res judicata bars not only what was actually decided in
the first action but, also, whatever could have been decided.).
&16 In this action, plaintiff seeks to recover the amount of the deficiency as
adjudicated in the foreclosure action from defendant. Although plaintiff contends the
current action is brought strictly on the promissory note, the underlying complaint sought
to recover from defendant the deficiency which resulted from the foreclosure of the
mortgage in the amount determined in the order confirming the sale. The question before
this court for res judicata purposes is whether the claim raised in the underlying lawsuit
could have been resolved in the prior lawsuit. The answer is yes. In the foreclosure
action, plaintiff sought to recover any amount not covered by the foreclosure sale against
defendant as provided by section 15-1508(e) based on plaintiff's default on the mortgage
and the promissory note. In the claim underlying this appeal, plaintiff again sought
recovery based on the same default by defendant on the note and recovery of the amount
of the deficiency as determined by the order confirming the sale in the foreclosure action.
We, therefore, conclude that plaintiff's claim as alleged in the complaint before us and its
claim for a personal deficiency judgment in the foreclosure suit arise from a single group
of operative facts—the deficiency which resulted from after the foreclosure sale based on
7 No. 1-14-0184
plaintiff's default—albeit on different causes of action against defendant. As a result,
plaintiff's claim is barred by the doctrine of res judicata.
&17 Our conclusion does not conflict with the holding in Farmer City State Bank v.
Champaign National Bank, 138 Ill. App. 3d 847 (1985). In that case, Farmer City State
Bank made a loan of $60,000 to John and Evelyn Henry in return for a promissory note.
Champaign National Bank executed a mortgage to secure the loan made by Farmer City
State Bank and a second mortgage secured by another promissory note for a loan of
$345,000. When a default occurred, Farmer City State Bank sought and obtained a
default by confession against the Henrys on the $60,000 promissory note. Farmer City
State Bank then filed an action seeking to foreclose on both mortgages which resulted in
deficiency judgments against the Henrys. Id. at 848-49.
&18 The relevant issue on appeal was the Henrys' contention that the foreclosure court
impermissibly increased the amount of the judgment entered in the initial suit on the
promissory note because the deficiency decree allocated the attorneys fees and costs
associated with collecting the debts to the $60,000 note. The court in Farmer City State
Bank found the foreclosure court did not impermissibly increase the prior judgment and
said:
"Upon default, a mortgagee may sue upon the note itself or bring an action
to foreclose the mortgage. [Citation.] These remedies may be pursued
consecutively or concurrently. [Citation.] Where the mortgagee takes a
judgment upon the note, the mortgage stands as security for the judgment.
[Citation.] If the mortgagee then forecloses the mortgage and obtains a
8 No. 1-14-0184
deficiency judgment against the mortgagor, the judgment on the note is
merged into the second judgment." Id. at 852.
Thus, according to Farmer City State Bank, a mortgagee may pursue a foreclosure action
and bring a lawsuit on the note consecutively or concurrently.
&19 The instant case is distinguishable from Farmer City State Bank. First and
foremost, the Farmer City State Bank court did not conduct a res judicata analysis.
Furthermore, plaintiff here did not initially file suit on the promissory note like the
mortgagee did in Farmer City State Bank. Rather, here, plaintiff's claim for a personal
deficiency judgment was raised concurrently with its request for foreclosure on the
property in the foreclosure action, and a final judgment was entered against defendant
allowing for entry of a deficiency judgment after the sale of the property. Plaintiff,
having pursued its remedy for a personal deficiency judgment in the mortgage
foreclosure case, is precluded from now seeking a personal deficiency judgment solely on
the promissory note in this consecutive action.
&20 Although the court in Farmer City State Bank did not address res judicata
principles, courts have relied on that decision in finding that res judicata did not bar a
subsequent claim when there was a foreclosure action and a purely in personam action at
issue. See, e.g., LP XXVI, LLC v. Goldstein, 349 Ill. App. 3d 237 (2004); Turczak v. First
American Bank, 2013 IL App (1st) 121964.
&21 In Goldstein, the defendant and others had executed a promissory note and a
mortgage, but defendant had also executed a personal commercial guaranty. Upon
default, a mortgage foreclosure suit was filed which the Goldstein court described as
strictly an "in rem" proceeding. Goldstein, 349 Ill. App. 3d at 241. After obtaining relief
9 No. 1-14-0184
in the foreclosure action, including an in rem deficiency judgment, the plaintiff, who had
been assigned all interests in the note, brought suit against the defendant on the personal
guaranty. The guaranty provided that the defendant had waived any defenses to suit on
the guaranty which may be brought before or after completion of any foreclosure action.
Id. at 238-39. The court found that the in rem deficiency judgment in the foreclosure
action did not bar the subsequent suit on the personal guaranty, stating:
"The [foreclosure] action did not encompass the guaranty. Further,
defendant's rights under the guaranty were not placed in issue or
adjudicated. This action, by contrast, is an in personam action against
defendant to adjudicate his liability under the 'Commercial Guaranty';
nothing in this action touches upon the subject matter of the [foreclosure]
action, namely, the property that was the subject of the mortgage
foreclosure. As such, this action is separate and distinct from the
[foreclosure] action, and the principle of res judicata is inapplicable to the
facts of this case." Id. at 241.
The Goldstein court found that its conclusion was supported by Farmer City State Bank,
which established precedent that a mortgagee may proceed on the note or guaranty or
foreclose on the mortgage consecutively or concurrently. Id. at 241-42.
&22 The facts here are different. The instant suit is not based on a personal guaranty,
but on the promissory note that secured the mortgage. The note does not include a
waiver of any defenses to a suit thereupon. Moreover, there is no indication in Goldstein
that the plaintiff had sought a personal deficiency judgment in the foreclosure action, nor
that the foreclosure court had personal jurisdiction over the guarantor. In fact, the
10 No. 1-14-0184
appellate court described the mortgage foreclosure suit as strictly "in rem," or on the
property, and as not encompassing the guaranty. Thus, the Goldstein court did not
discuss or consider the significance of section 15-1508(e) of the Foreclosure Law.
Unlike Goldstein, our defendant's obligations under the promissory note were contained
in the foreclosure complaint and considered in the foreclosure judgment. Plaintiff
specifically sought a personal deficiency judgment and was entitled to obtain such a
judgment under section 15-1508(e) and the terms of the foreclosure judgment. We,
therefore, find Goldstein does not support a conclusion that res judicata is inapplicable in
this case.
&23 In Turczak, Wells Fargo Bank and First American Bank financed the plaintiffs'
purchase of their home. Each loan was secured by a promissory note and a mortgage,
with Wells Fargo having the first mortgage. The plaintiffs defaulted on both loans. In
June 2010, Wells Fargo filed a foreclosure action against the plaintiffs and First
American Bank. Judgment for a foreclosure and sale was entered in the amount of
$408,597.92. In June 2010, during the pendency of Wells Fargo's foreclosure suit, First
American obtained a default judgment against the plaintiffs on its note for $80,986.93,
and recorded a memorandum of judgment on December 28, 2010. Turczak, 2013 IL App
(1st) 121964, ¶¶ 4-6.
&24 Before the foreclosure action was finally resolved, the plaintiffs attempted to sell
the property as a short sale, but First American Bank, through the law firm representing
it, would not agree to the release of its mortgage until it received $6,000. The law firm
informed plaintiffs that First American Bank continued to have an enforceable mortgage.
The plaintiffs later filed a separate suit against the law firm for damages alleging it had
11 No. 1-14-0184
engaged in false and misleading conduct. Id. ¶¶ 7-9. The law firm moved to dismiss the
suit arguing that it properly asserted that First American Bank had an enforceable
mortgage after the judgment on the note because "Illinois law allows a creditor to
consecutively as well as concurrently pursue remedies on a mortgage and the note
securing the mortgage." Id. ¶ 11. The circuit court dismissed the suit.
&25 On appeal, this court, citing Goldstein and Farmer City State Bank, upheld the
dismissal. We found that the settled law allows a mortgagee to enforce the note in
consecutive suits and stated that "[f]oreclosure suits on property, quasi in rem
proceedings, apply a legally distinct remedy from an in personam proceeding on a
promissory note." Id. ¶ 33.
&26 We find that Turczak is factually distinguishable from the instant case. In this
case, as previously discussed, plaintiff did not file its initial lawsuit on the promissory
note. Plaintiff, instead, filed a foreclosure action after defendant defaulted on the
mortgage and the promissory note, and that foreclosure action concurrently sought a
personal deficiency judgment against defendant. Moreover, in Turczak, this court found
the facts in Skolnik v. Petella, 376 Ill. 500 (1941), were "markedly" different. Turczak,
2013 IL App (1st) 121964, ¶¶ 25-28. Skolnik, however, has significant, relevant factual
similarities to the case at hand.
&27 In Skolnik, a foreclosure action was brought against the original debtors and their
assignees. The foreclosure court had personal jurisdiction over all parties, but the
foreclosure complaint sought a personal deficiency decree against only the original
debtors. The court's foreclosure judgment included a personal deficiency decree against
the original debtors, but not the assignees. Thereafter, an action was brought against the
12 No. 1-14-0184
assignees for the amount of the remaining deficiency. On review, our supreme court
found the second action was barred by res judicata, where the foreclosure court had
personal jurisdiction over the assignees and had express statutory authority to enter a
personal deficiency judgment against them in the foreclosure action. Ill. Rev. Stat. 1939,
ch. 95, ¶ 17 (preceded section 15-1508). The supreme court found res judicata applied
even where the pleadings had not raised a claim for a personal deficiency decree against
the assignees because the claim could have been brought in that action. Skolnik, 375 Ill.
at 507 ("Piecemeal litigation is not to be permitted and neither the parties nor the courts
may be twice vexed with the same cause of action.").
&28 In Turczak, this court stated that "the holding in Skolnik is consistent with res
judicata principles because the second action on the deficiency was nothing more than a
do-over of the first action on the deficiency." Turczak, 2013 IL App (1st) 121964, ¶ 28.
We find that Skolnik is controlling here and bars plaintiff's underlying claim as a "do-over
of the first action on the deficiency." Id.
&29 In sum, where the circuit court had personal jurisdiction over defendant to enter a
personal deficiency judgment against her pursuant to section 15-1508(e) of the
Foreclosure Law based on plaintiff's request for a personal deficiency judgment in its
foreclosure complaint, plaintiff's subsequent claim for the amount of the deficiency as
determined in the foreclosure suit as a result of the sale of the property is barred by the
doctrine of res judicata in accordance with the relevant transactional test of River Park
and the holding in Skolnik.
13 No. 1-14-0184
&30 CONCLUSION
&31 We affirm the circuit court's December 19, 2013, order dismissing the complaint
with prejudice.
&32 Affirmed.
14 REPORTER OF DECISIONS - ILLINOIS APPELLATE COURT
LSREF2 NOVA INVESTMENTS III, LLC,
Plaintiff-Appellant,
v.
MICHELLE COLEMAN,
Defendant-Appellee.
No. 1-14-0184
Appellate Court of Illinois First District, SIXTH DIVISION
June 5, 2015
JUSTICE LAMPKIN delivered the judgment of the court, with opinion.
Justice Hall and Justice Rochford concurred in the judgment and opinion.
Appeal from the Circuit Court of Cook County. The Hon. Brigid Mary McGrath, Judge Presiding.
COUNSEL FOR PLAINTIFF-APPELLANT Johnson, Blumberg & Associates, LLC, Chicago, IL 60606 OF COUNSEL: Rebecca M.R. Weininger
COUNSEL FOR DEFENDANT-APPELLEE Arends & Callahan, Chicago, IL 60643 OF COUNSEL: Wade B. Arends