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ALFN Amicus Briefs Committee Helps Secure Important Illinois Appellate Court Reversal
- By: ALFN
- On: 07/30/2026 12:16:16
- In: Legal Update
The ALFN filed an amicus brief on behalf of its members and the mortgage servicing industry in Bank of New York Mellon v. Bartelstein, 2026 IL App (1st) 242136.
In that case, the Circuit Court of Cook County, Illinois, held, inter alia, that a mortgage foreclosure action, which had been litigated for over 12 years, became time-barred because the plaintiff-mortgagee did not also bring a separate cause of action under the note. And because the note follows the mortgage, the foreclosure action became time-barred after ten years.In the appeal, the ALFN argued that the part of the circuit court's ruling, and the logic underpinning it, was faulty. If it was upheld, it threatened to upend well-established mortgage foreclosure law as embedded in the statutory scheme governing mortgage foreclosures.
The ALFN argued that an action on the note had been made in the foreclosure proceeding owing to the fact that the plaintiff's complaint followed the statutory form. “[P]ursuant to statute and controlling precedent, a mortgage foreclosure claim seeks relief under the note, as well.” The statutory form complaint invokes the mortgagee's rights under the note without having to plead a separate claim on the note.
On June 30, 2026 the First District Appellate Court reversed the trial court's order in favor of the borrower, Bartelstein. It agreed with the ALFN's argument and concluded that the statutory form complaint includes an allegation that the plaintiff may seek a personal deficiency, which “has the practical effect of asserting a [ ] claim on the note." Hence, a plaintiff is not required to file a separate count on the underlying note to maintain its mortgage foreclosure complaint or to enforce the note.
What does this mean for lenders and servicers?
In sum, a foreclosing plaintiff in Illinois is allowed to use the short form mortgage foreclosure complaint for purposes of bringing an action to enforce both the note and mortgage. There is no requirement that a plaintiff assert a separate cause of action to enforce the note.
The ALFN's amicus brief was drafted by James V. Noonan of Noonan & Lieberman, Ltd., Blake A. Strautins and Daniel J. May of Kluever Law Group, LLC, Michael Rak of Lender Legal PLLC, and Patrick T. Schuette of Ghidotti Berger LLP.