2019 IL App (1st) 190855-U

No. 1-19-0855 

December 9, 2019 

FIRST DIVISION

NOTICE: This order was filed under Supreme Court Rule 23 and may not be cited as precedent 

by any party except in the limited circumstances allowed under Rule 23(e)(1). 

IN THE

APPELLATE COURT OF ILLINOIS

FIRST DISTRICT

ANDRZEJ PABIAN, ) 

 ) 

 Plaintiff-Appellant, ) 

 ) 

 v. ) 

 ) 

PNC BANK, N.A., as successor in interest to ) 

MIDAMERICA BANK, FSB, NATIONAL ) 

CITY MORTGAGE CAPITAL, LLC, and ) 

NATIONAL CITY MORTGAGE CAPITAL ) 

2008-1 TRUST, ) 

 ) 

Defendants-Appellees. )

Appeal from the Circuit Court 

Of Cook County. 

No. 17 CH 15704 

 

The Honorable 

Edward N. Robles, 

Judge Presiding.

JUSTICE WALKER delivered the judgment of the court. 

Presiding Justice Griffin and Justice Pierce concurred in the judgment.

 ORDER

¶ 1 Held: Res judicata barred the plaintiff from pursuing causes of action that he could have 

raised as defenses in the defendant's prior lawsuit to foreclose a mortgage. 

¶ 2 Andrzej Pabian sued PNC Bank and others for fraud, breach of fiduciary duties, and other 

causes of action, alleging that PNC had no valid interest in a mortgage that PNC had 

foreclosed. The circuit court held that the res judicata effect of the foreclosure judgment 
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barred Pabian's complaint. In this appeal, Pabian argues that his complaint raised issues the 

foreclosure court did not address. Because the res judicata effect of a judgment extends to 

defenses the parties could have raised in the prior proceeding, and Pabian could have raised 

as affirmative defenses in the foreclosure case all causes of action stated in his complaint, we 

affirm the judgment dismissing the complaint under the doctrine of res judicata. 

¶ 3 I. BACKGROUND

¶ 4 In 2005 MidAmerica Bank loaned Pabian $263,200 in exchange for a mortgage on 

Pabian's home in Downers Grove, Illinois. Pabian missed the mortgage payments due after 

February 2011, and PNC Bank filed a complaint to foreclose the mortgage. PNC Bank v. 

Pabian, 11 CH 23526. On May 12, 2016, the circuit court entered an order for foreclosure 

and sale of Pabian's home. 

¶ 5 In November 2017, Pabian filed the complaint that initiated the lawsuit now on appeal. 

He first sought a temporary restraining order and a preliminary injunction to prevent the 

foreclosure sale. In December 2017, Pabian, pro se, filed a document he labeled 

"PLAINTIFFS’ COMPLAINT FOR: LACK OF STANDING TO FORECLOSE, FRAUD IN 

THE CONCEALMENT, FRAUD IN THE INDUCEMENT, UNCONSClONABLE

CONTRACT, BREACH OF CONTRACT, BREACH OF FIDUCIARY DUTY, QUIET 

TITLE, SLANDER OF TITLE, TEMPORARY RESTRAINING ORDER/INJUNCTIVE 

RELIEF." Again he sought to prevent the foreclosure sale, along with damages for the fraud 

PNC and MidAmerica allegedly committed in pursuing foreclosure and in persuading Pabian 

to accept the loan and mortgage his home. 
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¶ 6 The circuit court in PNC Bank v. Pabian entered a final judgment dated August 8, 2018, 

approving the sale of Pabian's home and directing the sheriff to evict Pabian. In Pabian v. 

PNC Bank, PNC filed a motion to dismiss Pabian's complaint as res judicata. The circuit 

court granted PNC's motion on January 24, 2019, finding: 

"Each claim [of Pabian's complaint] rests on the contention that Pabian’s 

mortgage on the subject property was wrongfully foreclosed. *** 

* * * 

*** [T]he very facts that Pabian articulated (the validity of the mortgage, PNC’s 

interests in the subject property, and PNC’s right to foreclose) have already been 

addressed through the foreclosure. They arise from the same operative facts as the

foreclosure case, and thus if this Court did not dismiss the complaint, the matter 

would be relitigated." 

¶ 7 Pabian now appeals. 

¶ 8 II. ANALYSIS

¶ 9 We review de novo the dismissal of a complaint as res judicata. Lutkauskas v. Ricker, 

2015 IL 117090, ¶ 43. Pabian argues that the complaint he filed in 2017 does not involve the 

same facts and issues as the foreclosure complaint, and therefore the circuit court should not 

have dismissed the complaint as res judicata. He contends, in the alternative, that the circuit 

court should have found that fundamental fairness required relaxation of res judicata here.

¶ 10 Our supreme court stated the applicable principles: 
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 "Res judicata is an equitable doctrine designed to prevent multiple lawsuits 

between the same parties where the facts and issues are the same. [Citation.]

Under the doctrine, a final judgment on the merits rendered by a court of 

competent jurisdiction operates to bar a subsequent suit between the same parties 

and involving the same cause of action. [Citations.] In addition to the matters that 

were actually decided in the first action, the bar also applies to those matters that 

could have been decided in the prior suit. [Citations.] Three requirements must be 

satisfied for res judicata to apply: (1) the rendition of a final judgment on the 

merits by a court of competent jurisdiction; (2) the existence of an identity of 

cause of action; and (3) identity of the parties or their privies." Lutkauskas, 2015 

IL 117090, ¶ 44. 

¶ 11 As the appellate court explained, "Res judicata is premised on the notion that the law 

affords every man his day in court along with the opportunity to present his case on the 

issues involved. It also requires him to bring forth all grounds of recovery or defense that he 

has." Pedigo v. Johnson, 130 Ill. App. 3d 392, 395 (1985). "[R]es judicata bars all matters 

that were offered to sustain or defeat the claim in the first action, as well as all matters that 

could have been offered for that purpose." (Emphasis in original.) Purmal v. Robert N. 

Wadington & Assoc., 354 Ill. App. 3d 715 (2004). 

¶ 12 Pabian admits that the circuit court entered a final judgment in the foreclosure case, and 

the foreclosure case involved the same parties. He contends only that the court in the 

foreclosure case did not decide the same cause of action as the causes he advances in his 
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complaint. For instance, the foreclosure court did not address the claim that PNC had no 

valid interest in the mortgage and note. 

¶ 13 In Eighteen Investments Inc. v. NationsCredit Financial Services Corp., 376 Ill. App. 3d 

527 (2007), NationsCredit foreclosed a mortgage on a property, and Eighteen Investments 

purchased the property at the foreclosure sale. Eighteen Investments filed a motion to vacate 

the judgment confirming the sale on grounds that the mortgage had been released prior to the 

sale, and, prior to the sale, NationsCredit had failed to notify all parties with an interest in the 

property, including a person living on the property who claimed full ownership. The circuit 

court denied the motion to vacate the judgment confirming the sale. Eighteen Investments 

then filed a complaint against NationsCredit, alleging fraud and seeking rescission of the sale 

because the sale documents misidentified the property, using an incorrect lot number and an 

incorrect property index number. 

¶ 14 The circuit court dismissed the complaint as res judicata. The appellate court said: 

 "[P]laintiff claims that the 'operative facts' in the two actions are different, 

because in the prior action it chose to move only on the basis of the mortgage 

release, while in this action it has chosen to move only on the basis of the wrong 

PIN and lot numbers ***. 

 Plaintiff could have offered the wrong PIN and lot number as a basis to 

defeat the claim in the first action, but it failed to do so. *** Plaintiff's failure to 

offer all the possible facts in the first action that could have vacated the judicial 

sale does not give plaintiff another 'bite at the apple.' " Eighteen Investments, 376 

Ill. App. 3d at 534. 
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¶ 15 In Bernard Bros., Inc. v. Deibler, 344 Ill. App. 222 (1951), a landlord obtained a 

judgment against a tenant for unpaid rent, and the tenant filed a complaint for an accounting 

and an injunction restraining the landlord from enforcing the lease. The tenant claimed the 

landlord "was [his] partner, and *** the lease was signed for his accommodation." Bernard 

Bros., 344 Ill. App. at 226. The trial court entered a judgment for the tenant for part of the 

rents paid. The appellate court held: 

 "In the prior proceeding, therefore, Bernard Bros., Inc., lessee, was obliged to 

present or otherwise forfeit any existing defense relieving it from liability for the 

payment of the rentals under the lease. The lessee, however, apparently preferred 

to rely solely upon the defense of impossibility of performance of an otherwise 

valid contract ***. *** [T]he lessee is now endeavoring in this proceeding to 

relitigate the lease, and present another defense, equally available in the original 

action ***. Such a proceeding must fail, since it is not only contrary to the 

aforementioned doctrine of res judicata, but to judicial policy against considering 

defenses piecemeal, and, therefore, plaintiff's complaint should properly have 

been dismissed." Bernard Bros., 344 Ill. App. at 230. 

¶ 16 Pabian had an opportunity to present as defenses to the foreclosure all of the claims 

raised in his complaint. Pabian recognized that the causes of action in his complaint served 

as defenses to the foreclosure, as he asked the court, in the complaint's prayer for relief, to 

declare any sale of the property void, to declare that PNC has no interest in the property, and 

to remove any cloud on Pabian's title to the property. Because Pabian could have raised 
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these claims as defenses in the foreclosure action, the circuit court correctly held that res 

judicata barred the complaint.

¶ 17 Pabian argues that even if defendants showed all three requirements for res judicata, the 

circuit court should have allowed the case to proceed in accord with the principle that "[a]

court should not apply res judicata where it would be fundamentally unfair to do so." 

Dookeran v. County of Cook, 2013 IL App (1st) 111095, ¶43. Pabian does not explain what 

makes applying res judicata here fundamentally unfair. The fundamental fairness exception 

applies most frequently in criminal cases, especially where application of the rule would 

deny the defendant his constitutional rights. See, e.g., People v. Somerville, 42 Ill. 2d 1, 4-5 

(1969). In civil cases, courts have applied the exception where "the application of the 

doctrine of res judicata *** would create an injustice by impermissibly infringing upon 

plaintiff's fundamental rights to a full remedy and to a trial by jury." Weisman v. Schiller, 

Ducanto & Fleck, 314 Ill. App. 3d 577, 581 (2000). "For example, res judicata does not 

apply to bar an independent claim of part of the same cause of action if the court in the first 

action expressly reserves the plaintiff's right to maintain the second action or the plaintiff is 

unable to obtain relief on his claim because of a restriction of the subject-matter jurisdiction 

of the court in the first action." Nowak v. St. Rita High School, 197 Ill. 2d 381, 392-93

(2001). 

¶ 18 Here, as in Dookeran, the plaintiff had a full and fair opportunity to litigate all of his 

claims in the original proceedings. See Dookeran, 2013 IL App (1st) 111095, ¶45. The 

threat of foreclosure should have motivated Pabian to present all the evidence he could 

assemble to show that PNC lacked title or that MidAmerica committed fraud. We find no 
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fundamental unfairness in requiring Pabian to present in the mortgage foreclosure action all 

grounds for denying PNC's request for foreclosure. The fundamental fairness exception to 

res judicata does not apply to the circumstances of this case. 

¶ 19 III. CONCLUSION

¶ 20 Because Pabian had an opportunity to present his claims against PNC and MidAmerica as 

defenses in the foreclosure case, we find that the res judicata effect of the final judgment in 

the foreclosure case bars Pabian's complaint. Accordingly, we affirm the circuit court's 

judgment. 

¶ 21 Affirmed.