Bank of N.Y. Mellon v. Dubrovay

• Docket Number: s. 2-19-0540 & 2-19-0545 cons.
• Decision Date: 17 November 2021
• Citation: 2021 IL App (2d) 190540,196 N.E.3d 471,458 Ill.Dec. 167
• Parties: The BANK OF NEW YORK MELLON, f/k/a The Bank of New York as Trustee for the Certificate Holders of CWALT, Inc., Alternative Loan Trust 2007-3T1, Mortgage Pass-Through Certificates, Series 2007-3T1, Plaintiff-Appellant, v. Jaeson DUBROVAY; Jamie Dubrovay; Flagg Creek Water Reclamation District; Mulyk Laho Law, LLC, f/k/a Mulyk, Laho & Mace, LLC; Unknown Heirs and Legatees of Jaeson Dubrovay, If Any; Unknown Heirs and Legatees of Jamie Dubrovay, If Any; Unknown Owners, and Nonrecord Claimants, Defendants (Jamie Dubrovay, Defendant-Appellee).
• Court: United States Appellate Court of Illinois

2021 IL App (2d) 190540

196 N.E.3d 471

458 Ill.Dec. 167

The BANK OF NEW YORK MELLON, f/k/a The Bank of New York as Trustee for the Certificate Holders of CWALT, Inc., Alternative Loan Trust 2007-3T1, Mortgage Pass-Through Certificates, Series 2007-3T1, Plaintiff-Appellant,

v. Jaeson DUBROVAY; Jamie Dubrovay; Flagg Creek Water Reclamation District; Mulyk Laho Law, LLC, f/k/a Mulyk, Laho & Mace, LLC; Unknown Heirs and Legatees of Jaeson Dubrovay, If Any; Unknown Heirs and Legatees of Jamie Dubrovay, If Any; Unknown Owners, and Nonrecord Claimants, Defendants(Jamie Dubrovay, Defendant-Appellee).

Nos. 2-19-0540 & 2-19-0545 cons.

Appellate Court of Illinois, Second District.

Opinion Filed November 17, 2021

James V. Noonan and Brendan McClelland, of Noonan & Lieberman, Ltd., of Chicago, for appellant.

Luke P. Wiley, of Wiley Law Group, LLC, of Chicago, for appellee.

JUSTICE McLAREN delivered the judgment of the court, with opinion.

¶ 1 Plaintiff, Bank of New York Mellon (BONY), appeals from an order of the trial court that granted a motion by defendant Jamie Dubrovay to dismiss BONY's fourth foreclosure complaint for violating section 13-217 of the Code of Civil Procedure (Code) ( 735 ILCS 5/13-217 (West 2018) ), also known as the single refiling rule. BONY also appeals the trial court's denial of its motion to reconsider the dismissal of the foreclosure complaint. For the reasons that follow, we reverse the judgment of the trial court and remand for further proceedings.

¶ 2 I. BACKGROUND

¶ 3 On January 22, 2007, Jamie Dubrovay and defendant Jaeson Dubrovay (the Dubrovays) secured a loan with Countrywide Home Loans for $780,000. The loan was secured with a mortgage and a note to property located at 38 South Madison Street in Hinsdale. The loan was subsequently assigned to BONY. The note required monthly, interest-only payments for the first 120 months, followed by monthly principal and interest payments until the loan matured on February 1, 2037. Payment was due on the first day of each month. The note contained the following provisions:

"(B) Default

If I do not pay the full amount of each monthly payment on the date it is due, I will be in default.

(C) Notice of Default

If I am in default, the Note Holder may send me a written notice telling me that if I do not pay the overdue amount by a certain date, the Note Holder may require me to pay immediately the full amount of Principal which has not been paid and all the interest that I owe on that amount. That date must be at least 30 days after the date on which the notice is mailed to me or delivered by other means.

(D) No Waiver By Note Holder

Even if, at a time when I am in default, the Note Holder does not require me to pay immediately in full as described above, the Note Holder will still have the right to do so if I am in default at a later time."

The note was secured by a mortgage that provided in part:

"19. Borrower's Right to Reinstate After Acceleration. If Borrower meets certain conditions, Borrower shall have the right to have enforcement of this Security Instrument discontinued at any time prior to the earliest of: (a) five days before sale of the property pursuant to Section 22 of this Security Instrument; (b) such other period as Applicable Law might specify for the termination of Borrower's right to reinstate; or (c) entry of a judgment enforcing this Security Instrument. *** Upon reinstatement by Borrower, this Security Instrument and obligations secured hereby shall remain fully effective as if no acceleration had occurred. ***

* * *

22. Acceleration; Remedies. Lender shall give notice to Borrower prior to acceleration following Borrower's breach of any covenant or agreement in this Security Instrument ***. The notice shall specify: (a) the default; (b) the action required to cure the default; (c) a date, not less than 30 days from the date the notice is given to Borrower, by which the default must be cured; and (d) that failure to cure the default on or before the date specified in the notice may result in acceleration of the sums secured by this Security Instrument, foreclosure by judicial proceedings and sale of the property. The notice shall further inform the Borrower of the right to reinstate after acceleration and the right to assert in the foreclosure proceeding the non-existence of a default or any other defense of Borrower to acceleration and foreclosure. If the default is not cured on or before the date specified in the notice, Lender at its option may require immediate payment without further demand and may foreclose this Security Instrument by judicial proceeding. Lender shall be entitled to collect all expenses incurred in pursuing the remedies provided in this Section, including, but not limited to, reasonable attorneys’ fees and costs of title evidence."

¶ 4 A. The First Case

¶ 5 On March 8, 2011, BONY filed a foreclosure complaint (11-CH-1218) (2011 foreclosure complaint) against the Dubrovays, alleging:

"Statement as to default and amounts now due:

The mortgagor has failed to make payments when due and the subject loan has been accelerated. The current unpaid principal balance is $774,228.25, plus accrued interest, court costs, title costs and plaintiff's attorney fees. The per diem rate of interest on this loan is $139.79. the subject loan is paid through October 1, 2010."

BONY sought, inter alia , "any additional taxes paid, or advances paid for insurance." On June 7, 2012, the trial court issued a dismissal order after BONY sought to voluntarily dismiss the foreclosure proceedings. The order stated that the cause was "dismissed with leave to reinstate."

¶ 6 B. The Second Case

¶ 7 On August 10, 2012, BONY filed another foreclosure complaint (12-CH-4068) (2012 foreclosure complaint) against the Dubrovays, alleging the same "statement as to default and amounts now due." BONY sought, inter alia , "any additional taxes paid, or advances paid for insurance." On August 12, 2013, the trial court issued another dismissal order following BONY's motion to voluntarily dismiss, stating that the cause was "dismissed without prejudice and with leave to reinstate."

¶ 8 C. The Third Case

¶ 9 On March 9, 2016, BONY filed another foreclosure complaint (16-CH-366) (2016 foreclosure complaint) against the Dubrovays, alleging:

"Statements as to defaults: Default was made in the payment of installments of principal and interest falling due under the terms of the Note; said default occurring on November 1, 2010, and there remains due and owing on the Note as of February 27, 2016:

Principal: $774,228.25

Per Diem Interest: $137.88"

BONY did not seek additional taxes paid or advances paid for insurance. On December 6, 2016, BONY's motion to voluntarily dismiss the foreclosure complaint was granted by the trial court "without prejudice."

¶ 10 D. The Fourth Case

¶ 11 On October 10, 2017, BONY filed yet another foreclosure complaint (17-CH-1394) (2017 foreclosure complaint) against the Dubrovays, alleging:

"Statement as to defaults and amount now due:

The Mortgagor has failed to make payments when due and the subject loan has been accelerated. The current unpaid principal balance is $774,228.25, plus accrued interest, court costs, title costs and plaintiff's attorney fees. The per diem rate of interest on this loan is $137.88. The subject loan is paid through April 1, 2013."

BONY sought, inter alia , "any additional taxes paid, or advances paid for insurance."

¶ 12 On September 13, 2018, Jamie filed a motion to dismiss BONY's foreclosure complaint, pursuant to section 2-619 of the Code. See 735 ILCS 5/2-619 (West 2018). Her motion argued that the 2017 foreclosure complaint was barred by section 13-217 of the Code (the single refiling rule) and principles of res judicata. At the conclusion of Jamie's motion, she argued that plaintiff's complaint must be dismissed with prejudice. The motion to dismiss attached Jaime's affidavit, which she stated that she and Jaeson filed for divorce in 2015 and that he permanently stopped residing at the property in June 2016. Jamie also stated that neither she nor her "ex-husband Jaeson" made payments to plaintiff after they defaulted in October 2010.

Additionally, Jamie stated that she did not execute a loan modification or enter into a forbearance agreement with plaintiff following the default. Jamie stated that neither she nor Jaeson made any payments to plaintiff or a loan servicer between October 2010 and April 2013.

¶ 13 BONY responded to Jamie's motion on January 7, 2019, arguing that the April 1, 2013, default date alleged in the 2017 foreclosure complaint was not the same as claimed in the prior three foreclosure complaints and, therefore, was not in violation of the single refiling rule. BONY attached the January 4, 2019, affidavit of the litigation manager of its serving representative, Bayview Loan Servicing LLC (Bayview), attesting that the loan was in default when Bayview began servicing the loan on May 16, 2013, and that the loan was still in default on January 4, 2019, as Bayview had not received any payment since it began servicing the loan and had advanced real estate taxes and insurance premiums on the property.

¶ 14 The trial court held a hearing on Jamie's motion to dismiss on February 8, 2019. In granting Jamie's motion, the trial court cited Wells Fargo Bank, N.A. v. Norris , 2017 IL App (3d) 150764, 416 Ill.Dec. 208, 83 N.E.3d 1045, as controlling.

¶ 15 On March 7, 2019, BONY filed a motion to reconsider the order dismissing the 2017 foreclosure complaint. Also, on March 7, 2019, BONY filed a motion to set aside the dismissal of the 2017 foreclosure complaint and reinstate the 2012 foreclosure complaint. On May 31, 2019, after a hearing on the motions, the trial court denied BONY's motion to reconsider the dismissal of the 2017 foreclosure complaint and BONY's motion to reinstate the 2012 foreclosure complaint.

¶ 16 On June 25, 2019, BONY filed a timely notice of appeal from the trial court's denial of its motion to set aside the...