Appeal of Home Foreclosure Late When Filed At Conclusion Of Divorce Case

Elena and Michael Sanfratello were in a disputed divorce case. Michael appealed rulings concerning child support and classification, apportionment, and dissipation of marital assets.
Elena cross-appealed (1) whether certain of Michael’s businesses were marital assets and (2) confirmation of a sale to Michael’s parents of the marital home, which was in foreclosure. The foreclosure action, filed by the bank that held the mortgage, was handled in another court by another judge. Elena made Michael’s parents parties to that action, claiming they and Michael were guilty of fraud in the foreclosure and sale. But Elena did not appeal the order within 30 days. The foreclosure matter then was consolidated into the divorce case.

About a year later, after the divorce case was concluded and Michael appealed, Elena filed her cross-appeal, including an appeal of the foreclosure confirmation. Michael’s parents argued that Elena’s cross-appeal should be dismissed for lack of appellate jurisdiction. They claimed that the confirmation order was final and appealable when it was issued, and that Elena’s appeal should have been filed within 30 days of that time.

Elena argued that an appeal of the foreclosure confirmation was not proper until after a final order in the divorce case was entered. She asserted: “… because the December 5, 2005 order [ending the divorce case] addressed both the foreclosure and the dissolution cases, the [earlier foreclosure confirmation] order did not dispose of all the rights and liabilities of all of the parties involved.” Elena concluded the foreclosure confirmation was not appealable until after the divorce case was final.

But the First District Illinois Appellate Court agreed with Michael’s parents, and dismissed Elena’s appeal. The court ruled that the foreclosure action was an independent case, and as an unsuccessful party Elena should have appealed the confirmation order within 30 days. Here’s how the court explained its ruling.

Where, as here, consolidation of two actions is for purposes of convenience and economy only, the causes do not merge into a single suit; rather, they retain their distinct identities. Elena’s position fails to take into account that her challenge to the foreclosure sale was independent of any appeal Joseph and Sharon [Michael’s parents] might pursue in the dissolution action. Elena’s challenge in the foreclosure sale was not in the nature of a cross-appeal, a notice dependent on the appeal of another party. Elena was not a successful party in the foreclosure action. If she sought to challenge the foreclosure ruling, she was required to file a notice of appeal in the first instance. Accordingly … Elena’s appeal in the foreclosure action was untimely where it was filed more than 30 days after the foreclosure order was entered.

Read the whole opinion, IRMO Sanfratello, Nos. 1-07-1438, 1-07-1473 (7/27/09), by clicking here.