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.,

(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,

(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,

. 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.

¶& 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,

(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."

.

&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.,

(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,

(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.

.

&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."

.

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,

(2004); Turczak v. First

American Bank,

.

&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,

. 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.

. 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."

.

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.

.

&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,

.

&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,

(1941), were "markedly" different. Turczak,

. 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,

.

We find that Skolnik is controlling here and bars plaintiff's underlying claim as a "do-over

of the first action on the deficiency."

&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