JUSTICE GARMAN delivered the judgment of the court, with opinion.
Chief Justice Karmeier and Justices Thomas, Kilbride, Burke, Theis, and Neville concurred in the judgment and opinion.
OPINION
¶ 1 In Illinois, a plaintiff who voluntarily dismisses a claim has only one opportunity to refile that same claim. Whether two lawsuits assert the same claim does not depend solely on how the plaintiff titles the complaint, however. This issue sometimes requires a judicial determination. ¶ 2 In this case, plaintiff First Midwest Bank (First Midwest) sued defendants Andres Cobo and Amy M. Rule for breach of a promissory note. Cobo and Rule responded that First Midwest or its predecessor had already sued them twice for the same breach of the same promissory note: once in a foreclosure suit in 2011 and once in a breach of promissory note suit in 2013. First Midwest claimed that the first lawsuit involved a claim for foreclosure on a mortgage, which is different from a breach of a promissory note. ¶ 3 The circuit court of Cook County agreed with First Midwest Bank, but the appellate court reversed. 2017 IL App (1st) 170872. We granted First Midwest's petition for leave to appeal (Ill. S. Ct. R. 315 (eff. Nov. 1, 2017)), and we affirm the appellate court's decision. We hold that a lawsuit for breach of a promissory note asserts the same cause of action as a prior foreclosure complaint when that foreclosure complaint specifically requested a deficiency judgment based on the same default of the same note.
¶ 4 BACKGROUND
¶ 5 On November 20, 2006, Andres Cobo and Amy M. Rule, the defendants, took out a mortgage on their property located at 625 S. 12th Avenue, Maywood, Illinois, with Waukegan Savings and Loan, SB (Waukegan). This mortgage secured a loan from Waukegan for $227,500. ¶ 6 Five years later, Cobo and Rule defaulted on their loan. Waukegan commenced foreclosure proceedings on December 8, 2011, alleging that defendants had ceased making payments on July 1, 2011. In compensation for the remaining $214,079.06, plus interest, collection costs, and late fees, Waukegan sought a foreclosure and sale of 625 S. 12th Avenue and a deficiency judgment for the remaining debt against defendants. The complaint named Cobo and Rule as "persons claimed to be personally liable for deficiency." The complaint's requested relief included a "Judgment of foreclosure and sale" and "personal judgment for deficiency, if sought." ¶ 7 First Midwest acquired Waukegan's interest in the note and mortgage, and on April 2, 2013, First Midwest voluntarily dismissed the foreclosure suit. It filed a new lawsuit against Cobo and Rule on April 16, 2013, for breach of a promissory note. First Midwest alleged that Cobo and Rule had defaulted on their loan on July ¶ 13 The appellate court vacated the circuit court's order and dismissed the complaint. 2017 IL App (1st) 170872. It acknowledged that a mortgage and note are distinct contracts, but it found that First Midwest's suit for breach of promissory note and its foreclosure suit arose from the same set of operative facts and thus constitute the same cause of action for the purposes of the single refiling rule. Id. ¶ 19. Agreeing with Coleman, 2015 IL App (1st) 140184, the court concluded that a foreclosure complaint that seeks a deficiency judgment arises out of both the mortgage and the note. 2017 IL App (1st) 170872, ¶ 22. In response to the circuit court's observation that Coleman involved a prior suit that reached a final adjudication on the merits, the appellate court found that final adjudication was a component of res judicata, not the single refiling rule. Because First Midwest or its predecessor sued based on the same default of the same note in 2011, 2013, and 2015, the court held that this suit for breach of promissory note was an impermissible second refiling. ¶ 14 First Midwest petitioned this court for leave to appeal, and we allowed that petition. Ill. S. Ct. R. 315 (eff. Mar. 15, 2016).
¶ 15 ANALYSIS
¶ 16 The circuit court's order under review is a grant of summary judgment in favor of First Midwest. We review a summary judgment order de novo. Schultz v. Illinois Farmers Insurance Co., 237 Ill. 2d 391, 399-400 (2010). A court should award summary judgment only if there is no question of material fact and the moving party is entitled to judgment as a matter of law. 735 ILCS 5/2-1005(c) (West 2012). Rule and Cobo raised the same argument in both a section 2-619 motion and as an affirmative defense on summary judgment. We review a motion to dismiss under section 2-619 de novo. Moon v. Rhode, 2016 IL 119572, ¶ 15. ¶ 17 Defendants Cobo and Rule argue that the court should dismiss First Midwest's complaint based on the single refiling rule. This rule derives from section 13-217 of Code, which states that, in applicable actions, if
"the action is voluntarily dismissed by the plaintiff, or the action is dismissed for want of prosecution, *** the plaintiff, his or her heirs, executors or administrators may commence a new action within one year or within the
remaining period of limitation, whichever is greater, after *** the action is voluntarily dismissed by the plaintiff." 735 ILCS 5/13-217 (West 1994).
In
Flesner v.
Youngs Development Co.,
145 Ill. 2d 252, 254 (1991), this court interpreted this provision to allow "one, and only one, refiling of a claim." ¶ 18 Whether two complaints state the same claim does not depend on how the plaintiff labels the complaint. Although this court has not yet spoken on this issue, multiple districts of the Illinois Appellate Court have agreed to use the same analysis to determine whether two suits assert the same cause of action for the purposes of the single refiling rule as they use for
res judicata. See,
e.
g.,
Wells Fargo Bank,
N.
A.
v.
Norris, 2017 IL App (3d) 150764, ¶ 21;
Mabry v.
Boler, 2012 IL App (1st) 111464, ¶ 22;
Schrager v.
Grossman, 321 Ill. App. 3d 750, 755 (2000);
D'Last Corp.
v.
Ugent, 288 Ill. App. 3d 216, 220 (1997). The appellate court has consistently followed this approach, and we adopt it as well. Therefore, to determine whether two lawsuits assert the same cause of action for purposes of the single refiling rule, we will apply the test for "identity of cause of action" for
res judicata—the "transactional test." ¶ 19 This test, which we adopted in
River Park,
Inc.
v.
City of Highland Park, 184 Ill. 2d 290, 311 (1998), treats separate claims as the same cause of action "if they arise from a single group of operative facts." Courts should approach this inquiry " 'pragmatically, giving weight to such considerations as whether the facts are related in time, space, origin, or motivation, whether they form a convenient trial unit, and whether their treatment as a unit conforms to the parties' expectations or business understanding or usage.' "
Id. at 312 (quoting Restatement (Second) of Judgments § 24, at 196 (1982)). ¶ 20 We agree with Cobo and Rule that First Midwest's two later suits for breach of a promissory note asserted the same cause of action as First Midwest's predecessor's first suit under the mortgage and the note. Both breach of promissory note complaints alleged the same default date, July 1, 2011, as the foreclosure complaint. All three complaints alleged that Cobo and Rule were personally liable for the same $214,079.06 principal. Most importantly, in the foreclosure complaint from 2011, First Midwest's predecessor expressly sought a deficiency judgment under the note. Although that complaint had only one count, for "FORECLOSURE," it requested as a remedy "a personal judgment for deficiency,
indicated as being personally liable therefor and the enforcement thereof be had as provided by law." (Emphasis added.)
Id. § 15-1504(f). This language indicates that, although a plaintiff has the option to seek a deficiency judgment in foreclosure proceedings, it need not. ¶ 24 That the exact language in First Midwest's predecessor's foreclosure complaint was "a personal judgment for deficiency,
if sought" does not change our analysis. The phrase "if sought" likely results from the complainant closely replicating section 15-1504(a) of the Foreclosure Law. That section provides a sample foreclosure complaint form and instructions on how plaintiffs should complete the form. Section 15-1504(a) begins:
"A foreclosure complaint may be in substantially the following form:
(1) Plaintiff files this complaint to foreclose the mortgage (or other conveyance in the nature of a mortgage) (hereinafter called 'mortgage') hereinafter described and joins the following person as defendants: (here insert names of all defendants)." Id. § 15-1504(a)(1).
Section 1504(a) ends by providing a sample request for relief.
"REQUEST FOR RELIEF
Plaintiff requests:
(i) A judgment of foreclosure and sale.
(ii) An order granting a shortened redemption period, if sought.
(iii) A personal judgment for a deficiency, if sought.
(iv) An order granting possession, if sought.
(v) An order placing the mortgagee in possession or appointing a receiver, if sought.
(vi) A judgment for attorneys' fees, costs and expenses, if sought." Id. § 15-1504(a).
predecessor did here. Similarly, if a plaintiff dismisses its foreclosure complaint because it has entered into a loan modification agreement with the defendant, the single refiling rule does not prevent that plaintiff from filing a new complaint based on that loan modification agreement. The second lawsuit is not simply a refiling of the first, because it relies on a distinct transaction and new operative facts. See
Norris, 2017 IL App (3d) 150764, ¶ 22.
For a helpful discussion of the historical difference between the deficiency judgment as a form of legal relief and the foreclosure as a form of equitable relief, see Elizabeth Martin, Note, Getting a Second Bite at the Apple: The Res Judicata Exception for Seeking Foreclosure Deficiencies in Illinois, 2016 U. Ill. L. Rev. 2271, 2275-80 (2016).
In United Central Bank v. KMWC 845, LLC, 800 F.3d 307 (7th Cir. 2015), the Seventh Circuit referenced an old Illinois rule prohibiting a lender from suing under the mortgage when a statute of limitations or other procedural rule barred a suit under the note. Without approving of the Seventh Circuit's analysis in that case, we note that any such rule would be in addition to the single refiling rule and would not affect the analysis here.
In further response to First Midwest's prediction, we observe that it is not clear whether requiring lenders to bring all their potential claims against a borrower in one suit would be inadvisable. For example, California's "one action rule" states that "[t]here can be but one form of action for the recovery of any debt or the enforcement of any right secured by mortgage upon real property or an estate for years therein." Cal. Civ. Proc. Code § 726 (West 2016); Security Pacific National Bank v. Wozab, 800 P.2d 557 (Cal. 1990). This is exactly the policy that First Midwest opposes. We neither adopt this policy nor take any position on it, as Illinois law continues to allow lenders to sue under the mortgage, note, or other instrument separately. --------
¶ 41 CONCLUSION
¶ 42 First Midwest's suit for breach of a promissory note constituted the third attempt to collect from the same defendants based on the same July 1, 2011, default of the same promissory note. The single refiling rule barred this claim. The appellate court's opinion is affirmed, the circuit court's summary judgment order is vacated, and the case is dismissed. ¶ 43 Appellate court judgment affirmed. ¶ 44 Circuit court judgment vacated.