Consumer Wins Credit Card Battle, But Appealable Orders Elude Her

Resurgent Financial took an assignment of credit card receivables from MBNA. Joan Kelly’s account was included among those assigned to Resurgent, or so Resurgent claimed. Kelly said she didn’t owe anything, and refused to pay Resurgent, so Resurgent sued her.

Kelly served requests for admission on Resurgent, which Resurgent did not answer. After the requests were deemed admitted, Kelly moved for summary judgment. That motion was denied. Resurgent then moved for voluntary dismissal without prejudice. That motion was granted. Kelly in turn moved for attorney fees under the Illinois Credit Card Liability Act. The fee motion was denied.

Kelly appealed the denial of her motions for summary judgment and for attorney fees. The Second District Illinois Appellate Court dismissed Kelly’s appeal, stating that neither order was final and appealable.

The appellate court acknowledged that an order allowing a voluntary dismissal is a final order. But that does not make all previous interlocutory orders appealable. “It is true that an appeal from a final judgment draws into issue all previous interlocutory orders that produced the final judgment … But such orders must constitute procedural steps in the progression leading to the entry of the final judgment … The denial of summary judgment is not a procedural step to an order of voluntary dismissal … Thus, the denial here was neither a final judgment nor a procedural step to a final judgment, and it is not appealable.”

Nor was the order denying Kelly’s attorney fee request final. The court stated: “The trial court did not finally determine that Kelly was not entitled to fees. Instead, it ruled that, because there had been no final determination of the merits of the complaint, Kelly’s motion was premature … In effect, having dismissed Resurgence’s complaint without prejudice, the court denied Kelly’s motion for fees without prejudice. Thus, that order also is not appealable.”

You can get the whole opinion, Resurgence Financial v. Kelly, No. 2-06-1120 (9/20/07), by clicking here.