Posted On: January 21, 2012 by Steven R. Merican

Debtors’ Victory Affirmed; Creditor Forfeits Procedural Argument

Mutual Management Services took an assignment of debts Richard and Kimberly Swalve allegedly owed to three medical providers. Mutual sued the Swalves for the money. But the Swalves asked the court to dismiss because, they asserted, facts existed that undercut Mutual’s complaint as a matter of law. The trial court agreed, and dismissed because Mutual did not give proper notice of the assignments.

Mutual appealed. There are two appellate lessons in this case.

(1) The Swalves asked for dismissal because the facts showed Mutual did not give proper notice of the assignment of debt. But when they got to the appellate court, the Swalves argued their factual motion should be characterized as asking for dismissal as a matter of law, irrespective of facts outside the complaint. The Second District Illinois Appellate Court disagreed, and ruled it would consider the Swalves’ request on the same basis as the trial court. Here is the appellate court’s reasoning:

… [A]s an initial note, the Swalves insist that their section 2–619 motion to dismiss [considering facts not in the complaint] “should have been characterized” as being brought under section 2–615 [which looks only at whether the complaint states a legal cause of action] of the Code. While appellate review of decisions regarding motions to dismiss brought under both sections is de novo … the analysis applied to each is different … Section 2–615 attacks the legal sufficiency of the complaint by alleging defects on the face of the complaint; section 2–619 assumes that a cause of action has been stated but asserts that the claim is defeated by other affirmative matter … These motions differ “significantly.” … We will not consider the application of a Code section that was not raised or argued before the court below and that requires a different analysis.

(2) The appellate court also ruled on a forfeiture question. MMS argued that the dismissal should be reversed because the Swalves did not have the required affidavits to support their request. But the appellate court refused to consider the argument because Mutual had not asserted it in the trial court. This is the way the appellate court viewed it:

According to MMS, since “it is clear that the face of the Amended Complaint did not provide the grounds upon which the Defendants' Motion was based,” affidavits were mandatory; in the absence of any affidavits, the Swalves “failed to meet their burden on the motion.” However, MMS did not object to the absence of affidavits in the trial court, and thus it forfeited the issue on appeal.
The dismissal of Mutual’s complaint was affirmed. But the appellate court ruled that Mutual could try again after giving the Swalves proper notice of the assignment. The whole case, Mutual Management Services v. Swalve, 2011 IL App (2d) 10077, is available right here.

Bookmark and Share