In the

United States Court of Appeals

For the Seventh Circuit

No. 14-1491

UNITED CENTRAL BANK, a Texas

banking association, as successor of

Mutual Bank,

Plaintiff-Appellant,

v.

KMWC 845, LLC, a Wisconsin

limited liability company, et al.,

Defendants-Appellees.

Appeal from the United States District Court for the 

Eastern District of Wisconsin.

No. 2:11-cv-00693-LA — Lynn Adelman, Judge.

ARGUED JANUARY 21, 2015 — DECIDED AUGUST 28, 2015

Before BAUER, FLAUM, and WILLIAMS, Circuit Judges.

BAUER, Circuit Judge. Plaintiff-appellant, United Central

Bank (“UCB”), commenced this diversity action asserting three

counts of mortgage foreclosure, one count for each of the three

mortgages it sought to foreclose on. UCB named a number of

entities as defendants in its complaint, but only the following
2 No. 14-1491

defendants, appellees on appeal, actively defended suit:

KMWC 845, LLC; CS MWC, LLC; BV Evergreen, LLC; BV

Wells, LLC; and 523 West Wall Street, LLC (collectively,

“appellees”). The parties filed competing motions for summary

judgment. The district court granted UCB’s motion for summary judgment and denied appellees’ motion with respect to

Counts II and III. As for Count I, the court granted appellees’

motion for summary judgment and denied UCB’s motion. UCB

then filed a motion for reconsideration on Count I, which the

district court denied.

UCB appeals the district court’s grant of summary judgment for the appellees on Count I. It also appeals the district

court’s denial of its motion for reconsideration on Count I.

Since the appellees have not filed a cross-appeal, only Count I

is at issue in this appeal. For the reasons that follow, we affirm. 

I. BACKGROUND

The facts are not in dispute. In 2005, Mutual Bank of

Harvey, located in Harvey, Illinois, made loans to the appellees. These loans were evidenced by promissory notes. As

security for the loans, the appellees executed and delivered

three different mortgages to Mutual Bank, which we refer to as

Mortgages I, II, and III. Mortgage I applies to four properties,

which are located in Appleton, Menasha, and Milwaukee,

Wisconsin. Mortgage II applies to a property located in Grand

Chute, Wisconsin. And Mortgage III applies to seven properties located in Milwaukee. In 2008, the appellees stopped

making payments on the promissory notes and the notes went

into default, where they remain today.
No. 14-1491 3

On July 31, 2009, regulators closed Mutual Bank, and the

Federal Insurance Deposit Corporation (“FDIC”) was appointed receiver. The FDIC, as receiver for Mutual Bank,

entered into a Purchase and Assumption Agreement with UCB

on that same day. By virtue of this agreement, UCB became the

owner and holder of the notes and mortgages on the Wisconsin

properties.

On July 20, 2011, UCB commenced this action, asserting

three counts of mortgage foreclosure. UCB moved for summary judgment on each of these three counts. The appellees

filed a competing motion for summary judgment, contending

that UCB was barred from foreclosing on the mortgages

because it was barred from enforcing the promissory notes that

the mortgages secured. More specifically, the appellees argued

that pursuant to the Illinois “single refiling” rule, see 735 ILCS

5/13-217, UCB was barred from enforcing the promissory notes

underlying the mortgages since UCB had twice formerly filed

an action against the appellees to recover on the notes and

voluntarily dismissed each of these prior actions. For this

reason—since UCB cannot maintain an action to enforce the

underlying notes—the appellees contended that Illinois law

barred UCB from foreclosing on the mortgages at issue.

The district court granted the appellees’ motion for summary judgment and denied UCB’s motion with respect to

Count I. The court determined that the mortgage underlying

Count I, Mortgage I, was governed by Illinois law and that

UCB was precluded from foreclosing on Mortgage I because

Illinois’ single refiling rule barred UCB from enforcing the

promissory notes that Mortgage I secured. The court granted

UCB’s motion for summary judgment and denied the appel-
4 No. 14-1491

lees’ motion with respect to Counts II and III. The court found

that Wisconsin law applied to Mortgages II and III and

determined that, unlike Illinois law, Wisconsin law permitted

UCB to foreclose on the mortgages.

UCB then filed a motion for reconsideration, arguing that

the district court erred in applying Illinois law to Count I and

Mortgage I. The district court denied UCB’s motion, holding

that UCB waived the argument that Wisconsin law applied to

Mortgage I by failing to raise it prior to the court’s summary

judgment decision and order. This appeal followed.

II. DISCUSSION

On appeal, UCB challenges the district court’s grant of

summary judgment in favor of appellees on Count I. It also

challenges the district court’s decision denying its motion for

reconsideration on Count I. We begin by discussing the latter. 

A. UCB’s Motion for Reconsideration

After the district court issued its summary judgment order,

UCB filed a motion for reconsideration challenging the court’s

grant of summary judgment to appellees on Count I. UCB

claimed that Mortgage I (the mortgage underlying Count I)

was governed by Wisconsin law, not Illinois law, and thus

summary judgment should have been entered in its favor on

Count I, as it was on Counts II and III. In support of its

argument, UCB pointed out to the district court that, although

an “amendment” to Mortgage I contains a choice-of-law

provision selecting Illinois law, the original mortgage contains

a choice-of-law provision selecting Wisconsin law. UCB

contended that the court should have applied the original
No. 14-1491 5

mortgage’s choice-of-law provision, not the mortgage amendment’s choice-of-law provision. The district court denied

UCB’s motion, holding that UCB waived the choice-of-law

argument. In so holding, the court noted that the appellees, in

moving for summary judgment, argued that Illinois law

applied to Mortgage I and that “UCB did not dispute that

Illinois law applied to Mortgage I” at any stage in the summary

judgment proceedings.

We review a district court’s ruling on a motion for reconsideration only for abuse of discretion. Caisse Nationale de Credit

Agricole v. CBI Indus., Inc., 90 F.3d 1264, 1269 (7th Cir. 1996). We

will not upset the district court’s ruling absent a showing that

“no reasonable person could agree with the decision of the

district court.” Cincinnati Life Ins. Co. v. Beyrer, 722 F.3d 939, 953

(7th Cir. 2013) (internal quotations and citation omitted). As

explained below, we find no abuse of discretion in the district

court’s disposition of UCB’s motion for reconsideration.

On appeal, UCB contends that no waiver occurred because

it cited to Wisconsin law in both its second amended complaint

and motion for summary judgment. In its second amended

complaint, UCB cites to two Wisconsin statutes: Wis. Stat. Ann.

§§ 846.103 and 846.162 (West 2015). These statutes pertain to

procedural aspects concomitant to foreclosure proceedings on

Wisconsin properties; they do not speak to what state law

governs Mortgage I. In its summary judgment motion, UCB

cited to a single Wisconsin case for a general proposition of

law. At no point, however, did UCB argue or assert that

Mortgage I was governed by Wisconsin law. In fact, UCB’s

summary judgment motion is devoid of any choice-of-law

discussion; UCB never claimed that it was the original mort-
6 No. 14-1491

gage’s choice-of-law provision, not the mortgage amendment’s

choice-of-law provision, which determined the law applicable

to its foreclosure claim on Mortgage I. The sole statement that

UCB appears to have made regarding choice-of-law came in its

response to the appellees’ motion for summary judgment. In its

response, UCB explicitly acknowledged that “[t]wo of the three

mortgages”—Mortgages II and III—“contain provisions that

provide Wisconsin law shall govern,” thus implying that the

third mortgage—Mortgage I—selected Illinois law. Furthermore, UCB did not cite a single Wisconsin case in its response

to the appellees’s motion for summary judgment; instead, it

argued Illinois law throughout. In response to the appellees’

contention that Illinois law applied to Mortgage I, UCB did not

direct the district court’s attention to the original mortgage

choice-of-law provision, nor did it argue that the original

choice-of-law provision should be applied instead of the

mortgage amendment’s choice of law provision. Plainly stated,

UCB did not raise the arguments presented in its motion for

reconsideration prior to the district court’s summary judgment

decision. 

Accordingly, the district court did not abuse its discretion

in determining that UCB “acquiesced in the application of

Illinois law to its claim to foreclose Mortgage I” and, by doing

so, waived the argument that Wisconsin law applies. See Bloch

v. Frischholz, 587 F.3d 771, 784 n.9 (7th Cir. 2009) (“[D]eveloping an argument for the first time in a motion to reconsider is

too late.”); Brooks v. City of Chicago, 564 F.3d 830, 833 (7th Cir.

2009) (“[A]ny arguments ... raised for the first time in [a]

motion to reconsider are waived.” (citation omitted)); Lott v.

Levitt, 556 F.3d 564, 568 (7th Cir. 2009) (explaining that a
No. 14-1491 7

litigant “is not entitled to get a free peek at how his dispute

will shake out under Illinois law and, when things don’t go his

way, ask for a mulligan under the laws of a different jurisdiction”); see also Int’l Administrators, Inc. v. Life Ins. Co. of N. Am.,

753 F.2d 1373, 1376 (7th Cir. 1985). Thus, finding no error in the

district court’s denial of UCB’s motion for reconsideration, we

turn our attention to the district court’s summary judgment

decision.

B. The District Court’s Summary Judgment Decision

The district court determined that UCB could not foreclose

on Mortgage I because the Illinois single refiling rule barred it

from enforcing the promissory note underlying the mortgage.

The court accordingly entered summary judgment in favor

of the appellees on Count I. UCB appeals this decision. We

review a district court’s grant of summary judgment de novo.

Summary judgment is appropriate when there is “no genuine

issue as to any material fact and the movant is entitled to

judgment as a matter of law.” Fed. R. Civ. P. 56(a). Where,

as here, the district court was faced with cross-motions for

summary judgment, we must construe all facts and inferences

in favor of the party against whom the motion under consideration is made—in this case, UCB. See Orr v. Assurant Emp.

Benefits, 786 F.3d 596, 600 (7th Cir. 2015).

The Illinois single refiling rule provides that a plaintiff who

dismisses a lawsuit “may commence a new action within one

year or within the remaining period of limitation, whichever is
8 No. 14-1491

greater.” See 735 ILCS 5/13-217.1 Illinois courts interpret this

language to mean that a plaintiff who voluntarily dismisses a

lawsuit may commence only one new action within the

statutorily imposed time limit. See Carr v. Tillery, 591 F.3d 909,

914 (7th Cir. 2010). Once the plaintiff commences this one new

action, any further action is barred. See, e.g., Timberlake v. Illini

Hosp., 676 N.E.2d 636, 635–36 (Ill. 1997). In the present case, the

district court found that UCB had formerly filed and voluntarily dismissed two actions in Illinois against the appellees for

breach of the promissory note that Mortgage I secured. The

court thus determined that, pursuant to the Illinois single

refiling rule, UCB was statutorily barred from enforcing the

note underlying Mortgage I.

UCB does not dispute that the Illinois single refiling rule

precludes it from enforcing the note underlying Mortgage I.

Rather, UCB argues that the Illinois single refiling rule does not

bar it from foreclosing on Mortgage I because a mortgage

foreclosure action is not the same cause of action as an action

on the underlying note. This argument, although correct

inasmuch as Illinois law considers a mortgage foreclosure

action to be a separate cause of action from an action on the

underlying note, misses the point. It does not matter that

UCB’s foreclosure action itself does not constitute an impermissible second refiling; what matters is, as the district court

noted, that long-standing Illinois law precludes a plaintiff from

1

 Section 13-217 appears in the statute books as amended. However,

because the Illinois Supreme Court held that the act that amended § 13-217

was unconstitutional, the unamended, pre-1995 version of § 13-217 remains

in effect. See Eskridge v. Cook County, 577 F.3d 806, 808 (7th Cir. 2009). 
No. 14-1491 9

foreclosing on a mortgage when an action on the underlying

note is barred by the statute of limitations or another procedural rule. See, e.g., Hibernian Banking Ass’n v. Commercial Nat.

Bank, 41 N.E. 919, 922 (Ill. 1895) (“[I]t has been repeatedly

decided by this court that the mortgage is a mere incident of

the debt, and is barred when the debt it barred[.]”); see also

Dale Joseph Gilsinger, Annotation, Survival of Creditor’s Rights

Created by Mortgage or Deed of Trust as Affected by Running of

Limitation Period for Action on Underlying Note, 36 A.L.R. 6th 387

(2008) (collecting cases showing that the states are split on the

question of whether a creditor can foreclose a mortgage when

an action on the underlying note is barred). On the basis of this

long-standing Illinois precedent, the district court determined

that UCB could not foreclose on Mortgage I because it was

barred by Illinois statute (the single refiling rule) from filing an

action to enforce the note underlying Mortgage I. We find no

error in this decision.

III. CONCLUSION

For the aforementioned reasons, the district court’s grant of

summary judgment to the appellees on Count I and its denial

of UCB’s motion for reconsideration are AFFIRMED.