First District Appellate: Mortgagee Who Did Not File Cross-Appeal Cannot Dispute Fee Award

This three-way dispute involved the mortgagee, the mortgagor, and the high bidder on the foreclosed property. The mortgagor defaulted, and the subject property was foreclosed and sold. The trial court denied a motion by the high bidder to confirm a judicial sale, but did order the mortgagor to pay the high bidder’s attorney fees.

The high bidder appealed the denial of its motion to confirm. The mortgagor did not cross-appeal the fee award, but did dispute it in its response brief. The First District Illinois Appellate Court refused to hear the argument over the fee award because a cross-appeal had not been filed. The court explained:

We also find it important to note plaintiff’s [mortgagor] contention that the circuit court erred in awarding interest and attorneys’ fees to intervenor [high bidder] at plaintiff’s expense. Plaintiff raised this contention in its response brief but it did not cross-appeal the judgment of the circuit court ordering it to pay these costs to intervenor. Findings of the trial court adverse to the appellee do not require the appellee’s cross-appeal if the judgment of the trial court was not at least in part against the appellee . . . However, findings adverse to the appellee require a cross-appeal if the judgment was in part against the appellee . . . Here, the circuit court granted plaintiff’s motion to vacate the sale and dismiss the case with prejudice but it also assessed specified costs against plaintiff based on equitable principles. The circuit court’s judgment was in part against plaintiff. Thus, plaintiff was required to file a cross-appeal to argue this issue on appeal . . . We, therefore, decline to address plaintiff’s argument relative to the circuit court’s judgment that was adverse to plaintiff.

Get the whole case, Mortgage Electronic Registration Systems v. Thompson, No. 1-05-2720 (11/3/06), by clicking here.