No Appellate Jurisdiction For Homeowner’s Appeal Of Summary Judgment Foreclosure

Barbara Kemp’s mortgage was held by EMC Mortgage Corporation. EMC filed a foreclosure action against Barbara because she defaulted on her payments. Eventually, EMC asked for and got a summary judgment foreclosure. Kemp then asked for reconsideration of the summary judgment and for a stay of the judicial sale of the property. Both were denied.

On the day the judicial sale was scheduled, Kemp made an emergency request to vacate the judgment of foreclosure and then to dismiss EMC’s complaint. Kemp’s request to vacate the judgment was made under Illinois Civil Procedure Act Rule 2-1401 [allowing final judgments to be vacated if there is new evidence and a meritorious defense]. The trial court also stayed the judicial sale of the property for 45 days. The court added Illinois Supreme Court Rule 304(a) language to its order [allowing immediate appeal of final judgments that do not dispose of the entire case].

Kemp appealed two of the trial court’s orders: the order denying her motion for reconsideration, and the order denying her motion to vacate. The Second District Illinois Appellate Court dismissed Kemp’s appeal for lack of appellate jurisdiction. The Illinois Supreme Court did the same for two reasons.

Reason I. The orders denying the reconsideration request, and denying the Rule 2-1401 request to vacate the foreclosure judgment were not final and appealable because the trial court had not approved the sale of the property nor directed distribution of it. Here’s what the Illinois Supreme Court said:

It is well settled that a judgment ordering the foreclosure of mortgage is not final and appealable until the trial court enters an order approving the sale and directing the distribution … The reason such a judgment is not final and appealable is because it does not dispose of all issues between the parties and it does not terminate the litigation … Specifically, although a judgment of foreclosure is final as to the matters it adjudicates, a judgment foreclosing a mortgage, or a lien, determines fewer than all the rights and liabilities in issue because the trial court has still to enter a subsequent order approving the foreclosure sale and directing distribution … Accordingly, it is the order confirming the sale, rather than the judgment of foreclosure, that operates as the final and appealable order in a foreclosure case.

Reason 2. “A second problem with Kemp’s appeal lies with the fact that, while a judgment of foreclosure is a final order, without Rule 304(a) language added to it, the judgment is not appealable … Kemp did not seek to make the judgment of foreclosure appealable under Rule 304(a).”

Kemp argued that the orders denying her request for reconsideration of the summary judgment and her emergency request to vacate the judgment of foreclosure were appealable because the trial court included Rule 304(a) language in those orders. But the Illinois Supreme Court rejected that argument because “the inclusion of a special finding [Rule 304(a) language] in the trial court’s order cannot confer appellate jurisdiction if the order is in fact not final.”

Finally, Kemp argued in favor of appellate jurisdiction because the orders she attacked were, she said, void. The Illinois Supreme Court called that argument “meritless.” “This legal proposition [void order rule] … does not act to confer appellate jurisdiction on a reviewing court if such jurisdiction is otherwise absent … Rather, the rule allows a party the ability to always raise the issue of whether an order is void in an appeal where appellate jurisdiction exists and the case is properly before the court of review … As we have pointed out, there is no supreme court rule that permits the appeal of the nonfinal orders that Kemp has appealed in this case.”

Read the whole opinion, EMC Mortgage Corp. v. Kemp, 2012 IL 11341 (12/28/12), by clicking here.