ILLINOIS CIRCUIT COURT REJECTS BORROWER’S STATUTE OF LIMITATIONS DEFENSE BASED ON LENDER’S REQUEST FOR DEFICIENCY

Judge James T. Derico, Jr., of the Chancery Division in Cook County recently reconsidered his prior order striking borrower Anthony Andrews’ cross-motion for summary judgment against lender, The Bank of New York Mellon (BNY Mellon). The Bank of New York Mellon, etc., v. Anthony D. Andrews, Cook County Illinois Circuit Court Case No. 2012 CH 41128 (May 19, 2025). Although agreeing to reconsider its prior ruling, the court refused to modify its ruling.

Judge Derico did not include many facts in his opinion, but one can deduce that sometime before February 2012 Andrews took out a mortgage loan and then defaulted on it. Based on Andrews’ February 1, 2012, default, BNY Mellon initiated proceedings the same year by filing a one-count complaint for foreclosure. Notably, BNY Mellon also requested a personal deficiency against Andrews in its prayer for relief.

The foreclosure proceedings lingered on for over a decade at which point Andrews moved for summary judgment arguing that BNY Mellon’s mortgage was no longer an enforceable lien since the note could not be enforced. Andrews reasoned that the one-count complaint for foreclosure did not include an action on the note so the 10-year statute of limitations prohibited BNY Mellon from amending its complaint now to plead an action on the note. To support this argument, Andrews relied primarily on Judge William B. Sullivan’s memorandum opinion in The Bank of New York, as Trustee, etc., v. Bartelstein, Case No. 2007 CH 38051 (Ill. Cir. Ct. Sept. 27, 2023).

In Bartelstein, Judge Sullivan concluded that a request for personal liability against a defendant “does not carry the same legal consequence as commencing a separate action on the Note.” Based on that conclusion, Judge Sullivan dismissed the bank’s foreclosure action finding it was barred by the statute of limitations despite the fact the bank amended its complaint within the 10-year window to include a request for a personal deficiency against the borrower. You can review our prior eBlast on the Bartelstein opinion for additional details about Judge Sullivan’s reasoning and findings.

Judge Derico rejected the holding in Bartelstein explaining that Judge Sullivan failed to address the Illinois Supreme Court’s holding in First Midwest v. Cobo, 124 N.E. 3d 926 (2018). According to Judge Derico, in Cobo, Illinois’s Supreme Court concluded that “a lender’s request for a deficiency judgment in its prayer for relief asserts a second claim under the note.” Based on this finding, Judge Derico concluded that BNY Mellon’s foreclosure was not barred by the 10-year statute of limitations and both the note and mortgage were valid and enforceable. Judge Derico denied Andrews’ motion for reconsideration on that basis.

1 See 735 ILCS 5/13-206. An action on a note must be commenced within ten years from when the cause of action accrued.

2 Notably, Bartelstein was also a circuit court case so it has no precedential value meaning its holding is not binding on other courts.

3 The circuit court quoted Bartelstein at p. 41.

4 In support of this finding Judge Derico cited Cobo, at ¶23.

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