United Central Bank v. Wells Street Apartments, LLC

957 F. Supp. 2d 978, 2013 WL 2458274, 2013 U.S. Dist. LEXIS 80349
CourtDistrict Court, E.D. Wisconsin
DecidedJune 7, 2013
DocketCase No. 11-C-0693
StatusPublished
Cited by11 cases

This text of 957 F. Supp. 2d 978 (United Central Bank v. Wells Street Apartments, LLC) is published on Counsel Stack Legal Research, covering District Court, E.D. Wisconsin primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United Central Bank v. Wells Street Apartments, LLC, 957 F. Supp. 2d 978, 2013 WL 2458274, 2013 U.S. Dist. LEXIS 80349 (E.D. Wis. 2013).

Opinion

DECISION AND ORDER

LYNN ADELMAN, District Judge.

In this diversity case, plaintiff United Central Bank (“UCB”) seeks to foreclose mortgages on several apartment buildings in Wisconsin. Some of these properties are located in Milwaukee; the rest are located in the Fox Cities. UC named dozens of entities as defendants in its complaint, but only five defendants are actively defending the suit. Those five defendants are KMWC 845, LLC; CS MWC, LLC; BV Evergreen, LLC; BV Wells, LLC; and 523 West Wall Street, LLC.1 In a previous order, I granted UCB’s motion to appoint a receiver for the properties. Before me now are: (1) the defendants’ motion to reconsider my order appointing the receiver; (2) UCB’s motion for summary judgment on its claims for mortgage foreclosure; (3) the defendants’ motion for summary judgment on UCB’s claims for mortgage foreclosure; and (4) UCB’s motion for default judgment against certain defendants.

The undisputed facts relating to these motions are as follows. In 2005, Mutual Bank in Harvey, Illinois made loans to the defendants. These loans were evidenced by promissory notes. As security for the loans, the defendants executed three different mortgages, which I will refer to as Mortgages I, II, and III. Mortgage I applies to four properties, which are located in Appleton, Menasha, and Milwaukee. See ECF No. 13-1. Mortgage II applies to a property located in Grand Chute, Wisconsin. See ECF No. 13-3. Mortgage III applies to seven properties located in Milwaukee. See ECF No. 13-5. Between May and September of 2008, the defendants stopped making payments on the promissory notes, and today the notes remain in default.

On July 31, 2009, regulators closed Mutual Bank, and the Federal Deposit Insurance Corporation (“FDIC”) was named receiver. On the same day, the FDIC entered into an agreement with UCB, under which UCB took over the deposits and loans of Mutual Bank. By virtue of this agreement, UCB became the holder of the notes and the mortgages on the Wisconsin properties.

[982]*982• On July 20, 2011, UCB commenced the present action and alleged three counts of mortgage foreclosure — one count for each of the three mortgages. It has moved for summary judgment on each of these counts.

The defendants’ main argument in opposition to UCB’s motion for summary judgment, and in support of their own motion for summary judgment, is that UCB is barred from foreclosing the mortgages because UCB is barred from enforcing the underlying notes. The argument that UCB is barred from enforcing the underlying notes is based on Illinois’s “one refiling” or “single refiling” rule. This rule arises from the Illinois courts’ interpretation of an Illinois statute which states that a plaintiff who voluntarily dismisses a suit “may commence a new action within one year or within the remaining period of limitation, whichever is greater.” See 735 ILCS 5/13-217.2 The Illinois courts interpret this language to mean that a plaintiff who voluntarily dismisses a suit may commence only one new action within the prescribed time. See Carr v. Tillery, 591 F.3d 909, 914 (7th Cir.2010) (stating rule and collecting Illinois cases). Once the plaintiff commences this one new action, any further action is barred, even if the original statute of limitations has not expired. See Timberlake v. Illini Hosp., 175 Ill.2d 159, 221 Ill.Dec. 831, 676 N.E.2d 634, 635-36 (1997); Flesner v. Youngs Dev. Co., 145 Ill.2d 252, 164 Ill.Dec. 157, 582 N.E.2d 720, 722 (1991).

In the present case, the Illinois single-refiling rule is relevant because UCB has filed and voluntarily dismissed at least two actions in Illinois against the defendants for breach of the promissory notes that the Wisconsin mortgages secure. First, in September 2009, UCB filed six separate actions in Illinois state court along with a seventh action in the United States District Court for the Northern District of Illinois under the diversity jurisdiction. Each action was against a different group of entities, but each of the borrowers on each of the promissory notes, plus all guarantors, were included as defendants in those suits. In each suit, UCB alleged that the borrowers had defaulted on the relevant note and that the guarantors had failed to honor their guarantees. For purposes of the single-refiling rule, those seven actions collectively served as UCB’s original or first action on the notes. Between June 2010 and June 2011, UCB voluntarily dismissed all seven of those actions. Then, on July 17, 2011, UCB filed a new action in the Northern District of Illinois under the diversity jurisdiction against all of the borrowers on all of the notes, all of the guarantors, and other parties. In this action, UCB asserted the same claims for breach of the notes and the guarantees that it had asserted in the seven lawsuits that it had previously filed and voluntarily dismissed. In addition, UCB asserted other claims against other parties, including a claim for foreclosure on a property located in Chicago. The defendants argue that this new action in the Northern District of Illinois was the one and only “refiling” that UCB was permitted under the single-refiling rule in connection with the notes. However, UCB voluntarily dismissed that action in January 2012. The defendants argue that once UCB voluntarily dismissed that action — its only permitted “refiling” under Illinois law — it extinguished its ability to enforce the promissory notes that the Wisconsin mortgages secure. The defendants fur[983]*983ther argue that if UCB cannot enforce the notes, then it cannot foreclose the mortgages securing the notes. Thus, argue the defendants, UCB’s claims for mortgage foreclosure must be dismissed.

The first thing to note about the defendants’ argument is that, even if the single-refiling rule would prevent UCB from enforcing all of the notes, it would not follow that UCB is barred from foreclosing all three of the mortgages. Mortgages II and III are governed by Wisconsin law,3 and under Wisconsin law a creditor is allowed to foreclose a mortgage even if a legal action to enforce the underlying note is barred. See, e.g., First Nat’l Bank of Madison v. Kolbeck, 247 Wis. 462, 464-68, 19 N.W.2d 908 (1945). Accordingly, the Illinois single-refiling rule does not prevent UCB from foreclosing Mortgages II and III.4

However, Mortgage I contains an Illinois choice-of-law provision, and UCB does not dispute that mortgage is governed by Illinois law. Unlike Wisconsin, Illinois prohibits a creditor from foreclosing a mortgage when an action on the underlying note is barred by the statute of limitations or another procedural rule. See, e.g., Emory v. Keighan, 88 Ill. 482, 1878 WL 9915, at *2 (1878); see also Dale Joseph Gilsinger, Annotation, Survival of Creditor’s Rights Created by Mortgage or Deed of Trust as Affected by Running of Limitation Period for Action on Underlying Note,

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957 F. Supp. 2d 978, 2013 WL 2458274, 2013 U.S. Dist. LEXIS 80349, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-central-bank-v-wells-street-apartments-llc-wied-2013.