1 

2021 IL App (5th) 190410-U 

NO. 5-19-0410 

IN THE

APPELLATE COURT OF ILLINOIS

FIFTH DISTRICT

______________________________________________________________________________ 

FIRST FINANCIAL INVESTMENT FUND III, LLC, ) Appeal from the

 ) Circuit Court of

 Plaintiff and Counterdefendant-Appellant, ) St. Clair County.

 ) 

v. ) No. 15-L-445 

 ) 

THERESA JOHNSON, ) 

) 

 Defendant and Counterplaintiff-Appellee ) 

 ) 

(First Financial Investment Fund I, LLC; First ) 

Financial Investment Fund II, LLC; First Financial ) 

Investment Fund IV, LLC; First Financial Investment ) 

Fund V, LLC; First Financial Portfolio Services LLC; ) 

First Financial Investment Fund Holdings, LLC; ) 

First Financial Asset Management, Inc.; Strategic ) 

Alliances, Inc., d/b/a FFAM 360; Mary Maloney; ) 

Robert Shlavoutis; Matthew Maloney; Velocity ) 

Services; Verticon Technologies; and Community ) Honorable 

Bank of Oak Park River Forest, Third-Party ) Christopher T. Kolker, 

Defendants). ) Judge, presiding. 

______________________________________________________________________________ 

JUSTICE BARBERIS delivered the judgment of the court.

 Justices Welch and Moore concurred in the judgment.

 

 ORDER

¶ 1 Held: The circuit court properly denied appellant’s motion to dismiss where 

 appellee’s amended counterclaim and third-party complaint were not barred 

pursuant to the Citizen Participation Act (735 ILCS 110/1 et seq. (West 

 2014)). 

NOTICE

Decision filed 09/22/21. The 

text of this decision may be 

changed or corrected prior to 

the filing of a Petition for 

Rehearing or the disposition of 

the same.

NOTICE

This order was filed under 

Supreme Court Rule 23 and is 

not precedent except in the 

limited circumstances allowed 

under Rule 23(e)(1).
2 

¶ 2 Appellee, Theresa Johnson (a/k/a Theresa A. Johnson) (hereinafter Theresa), filed 

a five-count amended counterclaim and third-party complaint (hereinafter collectively, 

amended counterclaim) in the circuit court of St. Clair County against appellant, First 

Financial Investment Fund III, LLC (First Financial). Theresa alleged various violations 

of the Collection Agency Act (CAA) (225 ILCS 425/1 et seq. (West 2014)), the 

Consumer Fraud and Deceptive Business Practices Act (CFA) (815 ILCS 505/1 et seq. 

(West 2014)), the Fair Debt Collection Practices Act (FDCPA) (15 U.S.C. § 1692 et seq. 

(2012)), and the Racketeer Influenced and Corrupt Organizations Act (RICO) (18 U.S.C. 

§ 1961 et seq. (2012)). In response, First Financial filed a motion to dismiss, pursuant to 

section 2-615 of the Code of Civil Procedure (Code) (735 ILCS 5/2-615 (West 2018)), 

alleging that Theresa’s amended counterclaim was barred by the Citizen Participation Act 

(Participation Act) (735 ILCS 110/1 et seq. (West 2014)). Following a hearing, the court 

denied First Financial’s motion to dismiss.

¶ 3 First Financial appeals the circuit court’s denial of its motion to dismiss, pursuant 

to Illinois Supreme Court Rule 306(a)(9) (eff. Nov. 1, 2017), which allows a party to 

petition for leave to appeal to this court from a circuit court’s order denying a motion to 

dispose under the Participation Act. On appeal, First Financial argues that the court erred 

in denying its motion to dismiss where Theresa’s amended counterclaim was barred by 

the Participation Act, because it constituted a “Strategic Lawsuit Against Public 

Participation” (SLAPP). We affirm.
3 

¶ 4 I. Background 

¶ 5 This case has a six-year procedural history encompassing numerous disputed 

matters that are largely irrelevant to the limited issue presented on appeal. Accordingly, 

we provide only pertinent facts below. 

¶ 6 On June 5, 2015, First Financial filed a small claims complaint (complaint) in the 

circuit court of St. Clair County seeking a monetary judgment in the amount of $7524.41 

for an alleged outstanding credit card debt owed by “Theresa Johnson.” First Financial, 

as the purported assignee of the credit card debt, alleged that “Theresa Johnson” had 

failed to pay the amount owed after a “due demand” had been made. Shortly thereafter, 

the St. Clair County Sheriff’s Department received a summons and complaint for service. 

¶ 7 On June 23, 2015, a deputy sheriff served Theresa with the summons and 

complaint. The summons listed “Theresa Johnson” as the defendant and listed her 

address as 1186 Division Avenue, East St. Louis, Illinois.1 The affidavit of service listed 

the person served as “Theresa A. Johnson,” describing her as a 58-year-old black female. 

Consistent with the summons, the affidavit listed Theresa’s address as 1186 Division, E. 

St. Louis, Illinois. That same day, Theresa telephoned the “Law office of Keith S. 

Shindler, Ltd.,” First Financial’s legal representative, to inquire about the summons and 

complaint. A transcript of a recorded telephone call with Greg, a non-attorney debt 

1

The supporting record is unclear as to whether First Financial prepared the summons. However, 

based on the preprinted language contained in the summons, it appears that it was prepared by First 

Financial. The summons contained the following preprinted language: “NOTICE TO PLAINTIFF OR

PLAINTIFF’S ATTORNEY: When preparing the above SUMMONS, the return date, which will be not 

less than 21 nor more than 40 days after the date of issuance of summons, will be set by the Clerk of the 

court at the time of filing the Complaint.” (Emphasis added.)
4 

collector, revealed that Theresa had in fact been served, but that First Financial’s claim 

was against “Theresa N. Johnson,” not Theresa A. Johnson. After determining that the 

wrong person had been served, based on differences in age and social security numbers, 

Greg informed Theresa to “go ahead and disregard[,] *** we’ll go ahead and update it on 

our end.” 

¶ 8 In July 2015, Theresa, through her attorneys, filed an answer to the complaint, a 

motion for class certification, and a counterclaim-class action (counterclaim). In her 

pleadings, Theresa identified herself as the “Defendant/Counter-Plaintiff.”2 In her 

answer, Theresa admitted that a debt was owed to First Financial as assignee, but she 

denied entering into a credit card agreement with First Financial or failing to pay the 

amount owed following a due demand. The counterclaim alleged, inter alia, violations of 

various statutory provisions under the CAA, CFA, and FDCPA as a result of First 

Financial having attempted to collect an alleged debt claimed to have been incurred by 

Theresa for personal, family, or household purposes and then filing suit against Theresa 

to collect the purported debt. Additionally, Theresa claimed that First Financial had failed 

to support its allegations and to attach necessary supporting documentation to its 

2

First Financial asserts that Theresa is not a defendant in this matter, thus, her pleading is not a 

counterclaim as defined by section 2-608 of the Code. See 735 ILCS 5/2-608(a) (West 2014) (“Any claim 

by one or more defendants against one or more plaintiffs *** shall be called a counterclaim.”). We note, 

however, that on February 2, 2017, the circuit court determined Theresa fit the class definition as defined 

in the counterclaim, which includes “all individuals that have been a defendant in a collection lawsuit that 

was filed by First Financial *** or have been threatened with a lawsuit by First Financial.” (Emphasis 

added.) In addition, Illinois Supreme Court Rule 330(a)(3) (eff. July 1, 2017) mandates that the caption of 

the case on review appear the same as the caption at the circuit court level, except that the status of each 

party shall also be indicated in the reviewing court (e.g., plaintiff-appellant). Additionally, Illinois 

Supreme Court Rule 341(f) (eff. May 25, 2018) mandates that the parties’ briefs “shall be referred to as in 

the trial court, e.g., plaintiff and defendant, omitting the words appellant and appellee and petitioner and 

respondent.” 
5 

complaint. In her motion for class certification, Theresa requested to be made the class 

representative of the national and Illinois subclasses. 

¶ 9 On July 14, 2015, the circuit court entered an order quashing service on Theresa 

and permitting an alias summons to issue upon First Financial’s request. In response, 

Theresa’s legal counsel filed a motion to reconsider, requesting the circuit court to vacate 

its order, which the court did on July 23, 2015, following a hearing. The court also 

directed counsel for First Financial to file a responsive pleading to address “the issue of 

the correctly named defendant.” 

¶ 10 On July 31, 2015, First Financial filed a motion to quash the June 23, 2015, 

service of summons, asserting that the recorded telephone call between Theresa and Greg 

demonstrated that Theresa was not the “proper defendant” in the matter. In response, 

Theresa filed a motion in opposition, alleging that First Financial “provided no evidence 

that they did not intend to sue [Theresa].” 

¶ 11 On March 15, 2016, First Financial filed a motion to voluntarily dismiss the case

without prejudice because First Financial no longer wished to proceed with the cause of 

action against Theresa. Additionally, First Financial filed a motion to realign the parties, 

pursuant to section 2-407 of the Code (735 ILCS 5/2-407 (West 2014)), with the caption 

on the counterclaim to include First Financial as defendant and Theresa as plaintiff.3

3

The counterclaim was the only outstanding claim on March 15, 2016. 
6 

Shortly thereafter, the circuit court granted First Financial’s motion to voluntarily dismiss 

without prejudice but denied the motion to realign the parties.4

 

¶ 12 On June 22, 2016, First Financial filed a motion to dismiss and strike Theresa’s 

counterclaim, pursuant to section 2-615 of the Code, arguing that Theresa was not a 

consumer, thus, her allegations of violations of consumer protection statutes were 

inapplicable. In support, First Financial claimed “[t]his case arises from a classic example 

of mistaken identity,” and the facts applicable to Theresa’s case are not representative of 

the national and Illinois subclasses. The motion to dismiss further stated: 

“[First Financial] sought to file and serve a collection action against a woman 

named Theresa Johnson, of which there are several in St. Clair County alone. As a 

result of an inadvertent mistake, the wrong Theresa Johnson was served.” 

¶ 13 On February 2, 2017, the circuit court entered an order, inter alia, denying First 

Financial’s motion to dismiss and strike Theresa’s counterclaim. In denying the motion, 

the court determined the following: (1) Theresa fit the class definition as defined in the 

counterclaim; (2) the CAA was applicable because it “applies to anyone who is alleged to 

owe a debt” (emphasis in original), and Theresa was sued by First Financial as an 

individual that allegedly owed First Financial a credit card debt; (3) the CFA was 

applicable because Theresa was not required to be a consumer to rely on its provision; 

and (4) Theresa fit the definition of a consumer under the FDCPA, which includes any 

natural person “obligated or allegedly obligated” to pay any debt. 

4

A transcript of the proceedings is not contained in the supporting record. Additionally, the circuit 

court’s written order neither provides reasoning for its rulings nor addresses First Financial’s July 31, 

2015, motion to quash service. 
7 

¶ 14 On April 30, 2019, after several hearings concerning disputed discovery matters 

spanning more than two years, Theresa filed a motion for leave to file an amended 

counterclaim to add 14 third-party defendants.5 The circuit court subsequently granted 

Theresa’s motion on May 13, 2019. 

¶ 15 On June 14, 2019, Theresa filed her amended counterclaim, titled: 

“COUNTERCLAIM AND THIRD-PARTY COMPLAINT-CLASS ACTION,” listing 14 

third-party defendants.6 The amended counterclaim alleged the same facts specific to 

Theresa as alleged in the July 2015 counterclaim and included the same summary of 

allegations contained in First Financial’s June 5, 2015, complaint. In addition, Theresa 

asserted the following allegations against First Financial and all named third-party 

defendants: (1) civil conspiracy to effectuate a common scheme to accomplish an 

unlawful practice; (2) violations of the CAA by filing suit without an assignment in the 

specified form and attempting or threatening to enforce a right or remedy with knowledge 

or reason to know that the right or remedy did not exist; (3) violations of the CFA 

through unfair and deceptive practices; (4) violations of the FDCPA where defendants 

5

The named third-party defendants are First Financial Investment Fund I, LLC; First Financial 

Investment Fund II, LLC; First Financial Investment Fund IV, LLC; First Financial Investment Fund V, 

LLC; First Financial Portfolio Services LLC; First Financial Investment Fund Holdings, LLC; First 

Financial Asset Management, Inc.; Strategic Alliances, Inc., d/b/a as FFAM 360; Mary Maloney; Robert 

Shlavoutis; Matthew Maloney; Velocity Services; Verticon Technologies; and Community Bank of Oak 

Park River Forest. 

6

Theresa later filed a “VERIFIED AMENDED COUNTERCLAIM AND THIRD-PARTY 

COMPLAINT-CLASS ACTION” as well as a motion for a temporary restraining order on September 11, 

2019. According to First Financial’s brief, the court entered a temporary restraining order on October 31, 

2019, enjoining First Financial Portfolio Services, LLC (a third-party defendant) from engaging in debt 

collection activity for 10 days. We note that the October 31, 2019, order is not contained in the supporting 

record and is not on appeal. While Theresa’s motion for preliminary injunction was pending, this court 

granted First Financial leave to appeal, thereby staying the proceedings on the motion for preliminary 

injunction pursuant to Illinois Supreme Court Rule 306(c)(6) (eff. Oct. 1, 2019). 
8 

filed and engaged in deceptive collection practices with the hope that the consumer 

would not realize a complete defense to the collection of the debt existed; (5) unlawful 

actions constituted a public nuisance; and (6) unlawful actions constituted racketeering 

activity under RICO. On the same day, Theresa also filed a motion for preliminary 

injunction requesting the circuit court enjoin First Financial and all third-party defendants 

from engaging in further debt collection activities.

¶ 16 On August 5, 2019, First Financial filed a motion to dismiss, pursuant to section 2-

615 of the Code, asserting that Theresa’s amended counterclaim was barred by section 15 

of the Participation Act (735 ILCS 110/15 (West 2018)). 

¶ 17 On August 6, 2019, Theresa filed a Rule 237 notice to appear (see Ill. S. Ct. R. 

237 (eff. July 1, 2005) (designating the person required to appear at trial or other 

evidentiary hearing and the documents to produce)), directing First Financial to produce 

officers, directors, or employees capable of answering business-related questions 

concerning business practices and relationships at a hearing on August 28, 2019. Shortly 

thereafter, on August 21, 2019, First Financial filed a motion to strike Theresa’s Rule 237 

notice to appear, arguing the circuit court had previously set pending matters for 

argument, not an evidentiary hearing, on that date. 

¶ 18 On August 28, 2019, the circuit court held a hearing on First Financial’s August 5, 

2019, motion to dismiss, August 21, 2019, motion to strike, and other ancillary issues. 
9 

Following arguments of counsel, the court denied First Financial’s motion to dismiss.7

The court further ruled that the matter would proceed on the issue of Theresa’s request 

for a preliminary injunction filed on June 14, 2019.

¶ 19 On September 26, 2019, First Financial motioned this court for an extension of 

time to file a petition for leave to file an interlocutory appeal pursuant to Illinois Supreme 

Court Rule 306(a)(9) (eff. Nov. 1, 2017), which this court granted. On October 11, 2019, 

First Financial timely filed its petition for leave, which was granted by this court on 

November 13, 2019. This interlocutory appeal, with First Financial electing to file briefs 

rather than to stand on the petition for leave, followed. 

¶ 20 II. Analysis 

¶ 21 First Financial argues that it is immune from liability under section 15 of the 

Participation Act because the acts alleged in Theresa’s amended counterclaim were in 

furtherance of its rights to petition, speak, or otherwise participate in government in order 

to obtain favorable governmental action. Therefore, First Financial requests this court to 

reverse the circuit court’s order denying its August 5, 2019, motion to dismiss. Before 

addressing the merits, we set forth the applicable standard of review and legal framework 

guiding our analysis. 

¶ 22 A. Standard of Review

¶ 23 We initially note that First Financial filed the motion to dismiss under section 2-

615 of the Code but then relies on the immunity conferred by the Participation Act (735 

7

The portions of the circuit court’s order involving First Financial’s August 21, 2019, motion to 

strike and the other ancillary issues are not part of this appeal and, therefore, are omitted from our 

recitation of the facts. 
10 

ILCS 110/15 (West 2018)). A section 2-615 motion challenges the legal sufficiency of 

the complaint and asserts that the complaint fails to state a cause of action upon which 

relief can be granted. Johannesen v. Eddins, 2011 IL App (2d) 110108, ¶ 27. However, 

section 2-615 does not apply to a motion to dismiss based on the Participation Act, as “it 

is impossible to determine whether a lawsuit is a SLAPP based solely on the face of the 

complaint because, when considering a motion to dismiss under section 2-615, [the court] 

must presume that all well-pled facts in the complaint are true.” Garrido v. Arena, 2013 

IL App (1st) 120466, ¶ 20. 

¶ 24 Conversely, our supreme court has determined that “[a] motion to dismiss based 

on the immunity conferred by the [Participation] Act, however, is more appropriately 

raised in a section 2-619(a)(9) motion [(735 ILCS 5/2-619(a)(9) (West 2018))].” 

Sandholm v. Kuecker, 2012 IL 111443, ¶ 54. A section 2-619 motion “admits the legal 

sufficiency of the plaintiff’s claim but asserts certain defects or defenses outside the 

pleadings which defeat the claim.” Id. ¶ 55. Where the nonmoving party has not been 

prejudiced by the motion to dismiss having been filed under section 2-615, a reviewing 

court may treat the assertions of immunity as appropriately filed under section 2-

619(a)(9) of the Code. Id. ¶ 54. 

¶ 25 “In ruling on a motion to dismiss under section 2-619, the [circuit] court may 

consider pleadings, depositions, and affidavits.” Zedella v. Gibson, 165 Ill. 2d 181, 185 

(1995). “[T]he court should construe the pleadings and supporting documents in the light 

most favorable to the nonmoving party.” Sandholm, 2012 IL 111443, ¶ 55. “When 

supporting affidavits have not been challenged or contradicted by counter-affidavits or 
11 

other appropriate means, the facts stated therein are deemed admitted.” Zedella, 165 Ill. 

2d at 185. Where, as here, the circuit court based its denial of First Financial’s motion to 

dismiss on a question of law by construing the Participation Act, the applicable standard 

of review is de novo. See Samoylovich v. Montesdeoca, 2014 IL App (1st) 121545, ¶ 18 

(“Because the circuit court based its denial of [the] motion [to dismiss] on its 

interpretation and application of the [Participation] Act, a question of law exists and a de 

novo standard of review applies.”). However, we review the court’s factual findings 

under the manifest weight of the evidence standard. Midwest REM Enterprises, Inc. v. 

Noonan, 2015 IL App (1st) 132488, ¶ 63. 

¶ 26 B. Limited Scope of the Participation Act

¶ 27 The Participation Act, also known as the anti-SLAPP statute, provides that “[a]cts 

in furtherance of the constitutional rights to petition, speech, association, and 

participation in government are immune from liability, regardless of intent or purpose, 

except when not genuinely aimed at procuring favorable government action, result, or 

outcome.” 735 ILCS 110/15 (West 2014). According to the Participation Act, 

“government” includes any “branch, department, agency, instrumentality, official, 

employee, agent, or other person acting under color of law of the United States, a state, a 

subdivision of a state, or another public authority including the electorate.” Id. § 10. The 

Participation Act was enacted to protect citizens and organizations from “lawsuits aimed 

at preventing citizens from exercising their political rights or punishing those who have 

done so.” (Internal quotation marks omitted.) Sandholm, 2012 IL 111443, ¶ 33. A SLAPP 

is intended to chill speech or protest activity and discourage opposition, through delay, 
12 

expense, and distraction. Ryan v. Fox Television Stations, Inc., 2012 IL App (1st) 

120005, ¶ 12. A SLAPP plaintiff’s goal is achieved not by success on the merits but by 

forcing defendants to expend funds on attorney fees and litigation costs, thus 

discouraging them from pursuing their protests. Sandholm, 2012 IL 111443, ¶¶ 34-

35; Chicago Regional Council of Carpenters v. Jursich, 2013 IL App (1st) 113279, ¶ 15. 

“The Act further identifies a SLAPP as an abuse of the judicial process which can and 

has been used as a means of intimidating, harassing, or punishing citizens and 

organizations for involving themselves in public affairs.” (Internal quotation marks 

omitted.) Sandholm, 2012 IL 111443, ¶ 43. 

¶ 28 The analysis for determining whether a lawsuit constitutes a SLAPP and should be 

dismissed under the Participation Act had three prongs: 

“(1) the movant’s acts were in furtherance of his right to petition, speak, associate, 

or otherwise participate in government to obtain favorable government action; 

(2) the nonmovant’s claims are solely based on, related to, or in response to the 

movant’s acts in furtherance of his constitutional rights; and (3) the nonmovant 

fails to produce clear and convincing evidence that the movant’s acts were not 

genuinely aimed at solely procuring favorable government action.” Jursich, 2013 

IL App (1st) 113279, ¶ 17. 

“The movant bears the burden of proof under the first two prongs of the test, after which 

the burden shifts to the nonmovant.” Garrido, 2013 IL App (1st) 120466, 

¶ 16 (citing Ryan, 2012 IL App (1st) 120005, ¶¶ 21, 30). Based on these well-established 

principles and analytic framework, we turn our attention to the merits of First Financial’s 

motion to dismiss.
13 

¶ 29 In the instant case, First Financial must first establish that its acts were in 

furtherance of its rights to petition, speech, associate, or otherwise participate in 

government to obtain favorable government action. First Financial argues that its act of 

filing a lawsuit was in furtherance of its right to otherwise participate in government to 

obtain a favorable government action where the judicial branch is “encapsulated in the 

term ‘government,’ ” as defined in section 10 of the Participation Act (735 ILCS 110/10 

(West 2014)). First Financial supports its argument by citing to one case, Dobbey v. 

Illinois Department of Corrections, 574 F.3d 443 (7th Cir. 2009), as authority that all 

lawsuits are protected by the first amendment. We find First Financial’s reliance on 

Dobbey misplaced because (1) the facts in Dobbey are vastly different than those in the 

case at hand, and (2) the Seventh Circuit made no such broad pronouncement concerning 

the first amendment. To the contrary, while noting that “[t]here is considerable authority

*** that the filing of any lawsuit is protected by the First Amendment as a form of 

petitioning [the] government for the redress of grievances,” the Seventh Circuit reiterated 

that it holds a narrow view of this right and further noted that “the right is little discussed 

either in cases or in commentaries [citation], and its scope is unsettled.” (Emphasis in 

original.) Id. at 446. Furthermore, the Seventh Circuit emphasized its earlier statement 

that “a private office dispute cannot be constitutionalized merely by filing a legal action.” 

(Internal quotation marks omitted.) Id. at 446-47. 

¶ 30 In Dobbey, a black prisoner alleged that a white prison guard hung and swatted at 

a noose from the ceiling while other guards were playing cards in the main control room. 

Id. at 444. Although the noose was removed within 20 minutes, the prisoner filed a 
14 

grievance claiming he feared the guard would “ ‘snap’ ” and cause him physical injury. 

Id. at 445. The next day, the prisoner sent letters to news outlets and various state 

officials describing the incident. Id. A month later, a prison disciplinary charge was filed 

against the prisoner for allegedly disobeying a guard’s order to scrape wax off a prison 

floor. Id. A disciplinary committee upheld the charge and imposed various sanctions on 

the prisoner, including the loss of his prison job as a janitor. Id. The prisoner was later 

informed that the prisoner’s grievance had been denied because “ ‘there was no evidence 

of the noose.’ ” Id. The prisoner filed a civil rights lawsuit. Id. The district court 

dismissed the claim, concluding that the prisoner had failed to state a claim against the

prison personnel. Id. at 444. 

¶ 31 On appeal, the Seventh Circuit noted that it had to assume the prisoner’s 

punishment for allegedly disobeying a guard’s order “was indeed retaliation for filing a 

grievance about, and for publicizing, the noose incident.” Id. at 446. Thus, the Seventh 

Circuit determined that the issue to be resolved was whether the filing or the publicizing 

was protected by the first amendment. Id. The Seventh Circuit, in reversing and 

remanding the dismissal of the prisoner’s claim that his right to free speech had been

infringed, “d[id] not agree with the district judge that the plaintiff’s grievance was merely 

a ‘personal gripe,’ as if he had been complaining that the prison commissary had 

shortchanged him for some item that he had bought.” Id. at 447. 

¶ 32 Unlike Dobbey, where a prisoner filed a civil rights lawsuit against prison 

personnel seeking to “ ‘petition the Government for the redress of grievances,’ ” claiming 

he was retaliated against for exercising his speech under the first amendment (id. at 446), 
15 

here, First Financial’s lawsuit involves a completely private dispute over an alleged credit 

card debt. Furthermore, in Dobbey, the Seventh Circuit determined that retaliation for 

“uttering” his grievance would be a prima facie infringement of the prisoner’s freedom of 

speech. (Emphasis in original.) Id. at 447. Here, conversely, First Financial fails to make 

a persuasive argument that filing a lawsuit against a private citizen for an alleged credit 

card debt—to the extent it can be construed as protected speech—somehow involves the 

kind of acts of public participation in government protected and encouraged under the 

Participation Act. Rather, it is apparent from the record that First Financial did not act in 

furtherance of the constitutional rights to petition, speech, association, and participation 

in government, as provided under section 15 of the Participation Act, but acted in 

furtherance of a solely private matter. Accordingly, First Financial has failed to

demonstrate that its acts were in furtherance of its constitutional rights as contemplated 

by the Participation Act. 

¶ 33 Furthermore, even assuming for the sake of argument that First Financial’s act of 

filing a collection lawsuit against a private individual is protected activity under the 

Participation Act (satisfying the first prong of the analysis), First Financial fails to meet 

its burden under the next step in the analysis. To satisfy the second prong of the analysis, 

First Financial must demonstrate that Theresa’s amended counterclaim was filed for the 

sole purpose of interfering with its constitutional right to participate in government to 

obtain favorable government action (see Jursich, 2013 IL App (1st) 113279, ¶ 17), 

otherwise, Theresa’s amended counterclaim does not trigger immunity under the 

Participation Act. First Financial contends that Theresa was not sued and, therefore, does 
16 

not have standing in the underlying case. For that lone reason, First Financial argues that 

Theresa’s amended counterclaim is meritless. We find this argument unavailing.

¶ 34 The Illinois Supreme Court has reasoned that “where a plaintiff files suit 

genuinely seeking relief for damages for the alleged defamation or intentionally tortious 

acts of defendants, the lawsuit is not solely based on defendant’s rights of petition, 

speech, association, or participation in government.” Sandholm, 2012 IL 111443, ¶ 45.

To determine whether a party filed a claim solely in response to activities protected by 

the Participation Act, we consider whether the claim is meritless and was filed in 

retaliation in order to deter the other party from further engaging in such 

activities. Garrido, 2013 IL App (1st) 120466, ¶ 18. In considering the propriety of the 

circuit court’s ruling on a motion to dismiss, we must presume the legal sufficiency of the 

nonmovement’s claim. Ryan, 2012 IL App (1st) 120005, ¶ 22. A claim is meritless if the 

moving party disproves some essential element of the nonmovant’s claim. Garrido, 2013 

IL App (1st) 120466, ¶ 19. Accordingly, First Financial must demonstrate that Theresa 

failed to allege sufficient facts to show that her amended counterclaim was genuine and 

not factually baseless. Id. ¶ 23; Sandholm, 2012 IL 111443, ¶ 45. 

¶ 35 The Illinois Supreme Court has ruled that lack of standing is an affirmative 

defense. Greer v. Illinois Housing Development Authority, 122 Ill. 2d 462, 494 (1988).

Rather than proving that a claim is meritless, an affirmative defense merely allows a 

defendant to avoid the legal consequences of a real injury to the plaintiff. Garrido, 2013 

IL App (1st) 120466, ¶ 27; see also Glisson v. City of Marion, 188 Ill. 2d 211, 222 (1999) 

(the supreme court refused to adopt additional requirements for standing to avoid 
17 

confusing the standing doctrine with the merits of the underlying suit). “[W]hen 

determining whether a particular claim is a SLAPP, [the] analysis must remain focused 

only on the validity of the plaintiff’s claim [citation], not whether a defendant can escape 

liability for an otherwise meritorious claim by proving an affirmative defense.” Garrido, 

2013 IL App (1st) 120466, ¶ 27. “A successful affirmative defense cannot be presumed to 

render claims meritless within the meaning of the Act.” Id. 

¶ 36 Here, even assuming arguendo that Theresa lacked standing, her lack of standing 

does not reflect on the merits of the amended counterclaim. In addition, First Financial 

does not argue in its brief the actual merits of any of the specific claims raised in 

Theresa’s amended counterclaim. As such, First Financial has failed to demonstrate that 

Theresa alleged insufficient facts to show that her amended counterclaim was genuine 

and not factually baseless. Therefore, First Financial has forfeited second-prong review

under the Participation Act to demonstrate that Theresa’s amended counterclaim is 

meritless. See Ill. S. Ct. R. 341(h)(7) (eff. May 25, 2018) (“Points not argued 

are forfeited and shall not be raised in the reply brief, in oral argument, or on petition for 

rehearing.”). Based on this finding, we need not consider whether First Financial has also 

shown that Theresa’s amended counterclaim was retaliatory, nor whether Theresa has 

met her own burden to show that First Financial’s actions were not genuinely aimed at 

solely procuring favorable government action under the third prong. See Garrido, 2013 

IL App (1st) 120466, ¶ 30; see also Jursich, 2013 IL App (1st) 113279, ¶ 30. 

¶ 37 Based on the foregoing, we cannot conclude that the Theresa’s counterclaim was 

solely based on, related to, or in response to First Financial’s acts in furtherance of its 
18 

rights to petition and speech. Thus, First Financial has failed to shift the burden to 

Theresa to show by clear and convincing evidence that First Financial’s acts were not 

genuinely aimed at solely procuring favorable government action. We, therefore, hold 

that the circuit court did not err in finding that First Financial was not immune from 

liability under the Participation Act.

¶ 38 In sum, First Financial initially fails to demonstrate that its act of filing a 

collection lawsuit is the type of involvement in governmental activity contemplated by 

the Participation Act. Additionally, even if we assume that First Financial acted in 

furtherance of such activity, First Financial also fails to demonstrate that Theresa’s 

amended counterclaim is solely based on that activity. Under these circumstances, we 

cannot find that Theresa’s amended counterclaim is a SLAPP, for which First Financial is

afforded immunity under the Participation Act. 

¶ 39 Lastly, we emphasize that this interlocutory appeal is limited to the question of 

whether the Participation Act bars Theresa’s counterclaim against First Financial. 

Nothing in this order should be perceived as an indication of this court’s view about the 

actual merits of any of the claims contained in Theresa’s amended counterclaim. We 

simply hold that Theresa’s amended counterclaim does not constitute a SLAPP within the 

meaning of the Participation Act, thus, the circuit court was correct in not dismissing 

Theresa’s counterclaim on that basis. 
19 

¶ 40 III. Conclusion 

¶ 41 Based on the foregoing, we find that First Financial is not immune from liability 

under section 15 of the Participation Act. Accordingly, we affirm the circuits court’s 

judgment denying First Financial’s motion to dismiss.

¶ 42 Affirmed.