- Last month the Appellate Court of Illinois, Second District, reversed an order of dismissal from a Du Page County Circuit Court in a mortgage foreclosure action involving a $780,000 loan. Bank of New York Mellon as Tr. for Certificate Holders of CWALT, Inc., Alternative Loan Tr. 2007-3T1, Mortgage Pass-Through Certificates, Series 2007-3T1 v. Dubrovay, 2021 IL App (2d) 190540. Over the course of about six years the bank filed four separate foreclosure actions against the Dubrovays based on a payment default of the Dubrovays’ note and mortgage. The first three foreclosures were dismissed without prejudice.
- The Dubrovays moved to dismiss the fourth foreclosure based on the bank’s violation of the single refiling rule (section 13-217 of the Code of Civil Procedure) which permits a party to refile the same claim if it is filed within one year of the previously dismissed claim. The Illinois Supreme Court interpreted section 13-217 to allow only one refiling of a claim if both claims arose “from a single group of operative facts.” The lower court agreed with the Dubrovays and dismissed the fourth foreclosure action based on the bank’s perceived violation of the single refiling rule. The bank appealed the order of dismissal arguing its fourth foreclosure involved a different default date than any of its previous three foreclosures so it was not barred by the single refiling rule.
- The Second District agreed with the bank and reversed the judgment of dismissal. The Court pointed out the Dubrovays’ loan allowed for payments in installments and “a separate cause of action arises on each installment.” The Court relied on two analogous cases (Moy and Barrera) to assist with its transactional test analysis. In both Moy and Barrera the court concluded that differing default dates (Moy) and a request for newly accruing taxes and insurance (Barrera) constituted new facts so prior actions based on different defaults (this is known as the “new default rule”) did not prevent the subsequent foreclosure filing in either action. For these reasons, the Court in Dubrovay reversed the order of dismissal and remanded the matter for further proceedings.
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