by Jack Lydon
The Illinois Supreme Court rarely decides a mortgage foreclosure case. But at the end of last year, it took up the question of a litigant’s right to appeal an order during a pending foreclosure. Mortgage foreclosures are somewhat different than the average lawsuit. The judgment of foreclosure is not the end of process. After the court deciding who wins and who loses in its judgment, the plaintiff still has to conduct a sale of the foreclosed property so the lawsuit continues.
But when does the disappointed defendant get to appeal the court’s ruling? After the judgment or after the sale?
In EMC Mortgage Corp., v. Kemp, Barbara Kemp fought the foreclosure that EMC filed against her home for several years. Eventually the court entered a judgment of foreclosure against her and ordered that her house be sold. On the day the house was scheduled to be sold, Ms. Kemp filed an emergency motion to stay the sale and vacate the judgment of foreclosure. The court granted the stay but refused to vacate the judgment. The court also added “304(a) language” that ostensibly allowed an appeal of that order. Ms. Kemp appealed the refusal to vacate the judgment.
The Appellate Court dismissed the appeal for want of jurisdiction. However, the Illinois Supreme Court agreed review the case.
The Supreme Court found a variety of problems with the appeal. Principally, Ms. Kemp could not appeal because the sale had yet occurred. Also, Ms. Kemp appealed under the wrong legal basis—2-1401 as opposed to Rule 304(a). Ms. Kemp argued that nevertheless there was 304(a) language so the appellate court could decide her case.
Under Illinois Supreme Court Rule 304(a), a trial court can find that “no just reason to delay enforcement or appeal of an order.” This 304(a) finding has the effect of allowing an appeal or collection of a judgment while other matters in a case continue.
The Supreme Court wasn’t buying it. The Court reaffirmed the principle that saying it is so, doesn’t make it so. “The inclusion of a special finding in the trial court’s order cannot confer appellate jurisdiction if the order is in fact not final.” The appellate courts, not the trial courts, will remain the arbiters of what it will hear and when.
Justice Karmeier disagreed and filed a lengthy dissenting opinion. Justice Karmeier disagreed with the majority opinion which focused on the “procedural mechanisms . . . invoked to change the judgment rather than the substance of the relief . . . request[ed].”
The tension between Rule 304(a) and ordinary appellate jurisdiction remains. But, at the moment, the appellate courts will decide if they will accept 304(a) appeals.