In Wells Fargo Bank, N.A., v. Dixie R. Norris et al., 2017 IL App (3d) 150764 (July 3, 2017) an Illinois appellate court clarified the limits of 735 ILCS 5/13-217, commonly known as the “single re-filing rule”, holding that res judicata principles govern whether a re-filed action is the same cause of action for purposes of Section 13-217.
The single re-filing rule grants a plaintiff the absolute right to re-file his or her complaint within one year after a voluntary dismissal or within the remaining period of limitations, whichever is greater. However, Section 13-217 permits only one, and only one, re-filing of a claim, even if the applicable statute of limitations has not expired.
The mortgagee filed and voluntarily dismissed mortgage foreclosure complaints against defendant in 2008 and 2010 and then re-filed again in 2012. The mortgagor moved to dismiss the 2012 case arguing it was barred by the single re-filing rule since it was the third re-filing of the same foreclosure. The mortgagee argued that the 2012 foreclosure was the first and only re-filing of the 2008 mortgage foreclosure case. The 2010 foreclosure alleged different facts and was thus a different case than the 2008 case. The court sided with the mortgagee and was affirmed on appeal.
The appellate court observed that a complaint is considered to be a re-filing of a previously filed complaint if it constitutes the same cause of action under the principles of res judicata. Courts apply a transactional test to determine whether a complaint constitutes the “same cause of action” for res judicata purposes. Separate claims will be considered to be the same cause of action if both claims arise from a single group of operative facts.
The appellate court found that the 2008 and 2010 cases did not constitute the same cause of action because they were based on different facts. The 2010 case alleged a violation of a loan modification agreement, a breach date of June 2009, and a principal balance of $189,604.15, while the 2008 case alleged a violation of the original mortgage only, a breach date of January 2008, and a principal balance of $159,061.43. The 2012 complaint alleged facts identical to those alleged in the 2008 case and so constituted a re1filing of the 2008 case. Because the 2012 case was the only re1filing of the 2008 case, the single re1filing rule was not implicated.
Author
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Jim is a founding partner of Noonan & Lieberman. Jim has more than 25 years of experience in civil litigation on behalf of creditors, servicers, business and real estate owners.
