Bell Federal Sav. and Loan Ass'n v. Bank of Ravenswood

• Decision Date: 17 September 1990
• Docket Number: No. 1-87-0430,1-87-0430
• Citation: 560 N.E.2d 1156,148 Ill.Dec. 559,203 Ill.App.3d 219
• Parties: , 148 Ill.Dec. 559 BELL FEDERAL SAVINGS AND LOAN, ASSOCIATION, Plaintiff-Appellee, v. BANK OF RAVENSWOOD et al., Defendants-Appellees (Korea Exchange Bank, Defendant-Appellant).
• Court: United States Appellate Court of Illinois

Page 1156

560 N.E.2d 1156

203 Ill.App.3d 219, 148 Ill.Dec. 559

BELL FEDERAL SAVINGS AND LOAN, ASSOCIATION, Plaintiff-Appellee, v. BANK OF RAVENSWOOD et al., Defendants-Appellees (Korea Exchange Bank, Defendant-Appellant).

No. 1-87-0430.

Appellate Court of Illinois First District, First Division.

Sept. 17, 1990.

Jeffrey Strange & Associates, Wilmette (Michael Hyman, of counsel), for defendant-appellant.

Hoellen, Lukes & Halper, Chicago (Edward J. Halper and Tarick S. Loutfi, of counsel), for defendants-appellees.

Justice MANNING delivered the opinion of the court:

The appellant, Korea Exchange Bank, appeals from the circuit court's order denying its section 2-1401 (Ill.Rev.Stat.1985, ch. 110, par. 2-1401), petition to vacate the judgment of foreclosure previously entered therein. The appellee, Bank of Ravenswood, has filed a motion to dismiss the appeal, claiming that this court lacks jurisdiction because of the appellant's failure to file a timely notice of appeal. We ordered the motion to dismiss to be taken with the case and directed the parties to brief the jurisdictional issue. The pertinent facts follow.

Kyung Wha Chi and Choon Ja Chi, husband and wife, (hereafter "mortgagors") were the owners of real property commonly known as 3312 Wilmette Avenue, in Wilmette, Cook County, Illinois. This property was encumbered with the following liens: (1) first mortgage held by Bell Federal Savings and Loan Association (hereafter "Bell"); (2) second mortgage held by Bank of Ravenswood, (hereafter "Ravenswood"); (3) third mortgage held by Korea Exchange Bank (hereafter "Korea"); and (4) fourth and fifth mortgages also held by Ravenswood.

On October 29, 1985, Bell filed a complaint to foreclose its mortgage on the aforementioned premises against the mortgagors, Korea and Ravenswood. Korea was served with summons on November 14, 1985, but as further discussed below, did not file any pleadings or appearance. Ravenswood filed an answer.

Prior to Bell's lawsuit, Ravenswood also had filed a complaint for foreclosure of their second, fourth and fifth mortgages. Korea filed an appearance in that action.

On November 20, 1985, the mortgagors filed for relief under chapter 7 of the United States Bankruptcy Code (11 U.S.C.S. secs. 701 et seq. ), and the bankruptcy court stayed both of the circuit court foreclosure actions. Thereafter, on or about January 14, 1986, Ravenswood filed a motion before the bankruptcy court to modify the automatic stay, and by order dated January 21, 1986, the court lifted the automatic stay as to Ravenswood and other creditors.

Pursuant to the bankruptcy court order, Bell and Ravenswood then proceeded with their respective foreclosure actions in the circuit court. In the Bell action, the trial court entered an order of default on July 11, 1986, against the mortgagors, Korea and The Korea Times, Inc., (not a party to this appeal) for failure to appear or plead and the judgment of foreclosure and sale. Pursuant to the court order, Bell was required to serve a notice of sale on the parties, informing them that the sale was scheduled to be held on October 1, 1986. Korea acknowledges receipt of such notice and contends this was when it first learned of the default judgment against it.

On September 29, 1986, Korea filed its notice of motion and "Emergency Motion to Amend Order and to Consolidate," pursuant to section 2-1401 (Ill.Rev.Stat.1985, ch. 110, par. 2-1401), of the Code of Civil Procedure. The trial court refused to amend or vacate the judgment; however, it found that Bell had a valid first mortgage and that Ravenswood had a valid second, fourth and fifth mortgage. The order also stated the amount of Korea's mortgage; however, it reserved the question of priority of the Ravenswood and Korea mortgages and continued the matter for hearing on November 12, 1986.

On October 23, 1986, the trial court had before it Korea's "Motion to Determine Priorities," Bell's order confirming the sheriff's report of sale and distribution and motion to compel deposit of successful bid, and Ravenswood's motion for turnover of the sales proceeds. The trial court granted all parties time to respond to Bell's motion and set the motions for hearing on November 7, 1986. The court also ordered the parties to brief the priority of mortgage issue raised by Korea and granted Hwang, the successful bidder at the October 1, 1986 sheriff's sale, leave to file his petition to set aside the sale.

The record reflects that the parties filed the respective briefs and pleadings. In addition, sometimes thereafter Korea presented another "Verified Motion to Vacate" that also attacked the judgment of foreclosure and sale ¹ which the trial court continued along with all other pending matters to November 12, 1986.

On November 12, 1986, the trial court entered its order which: (1) denied Korea's motion to vacate the judgment on the grounds that Korea failed to state a meritorious defense, establish a reason as to why judgment should be vacated, or demonstrate due diligence in presenting the motion; (2) denied Korea's motion to establish priorities; (3) granted Bell's motion to compel deposit of the bid and thereby, granted Hwang 30 days to deposit his bid with the sheriff; (4) entered and continued Ravenswood's motion for turnover of the sales proceeds; and (5) continued the matter for status until December 15, 1986, to determine Hwang's compliance.

On December 15, 1986, the trial court, having found Hwang to be in compliance, ordered that Bell was entitled to receive $77,719.57 of the proceeds of the sale, and Ravenswood was entitled to receive $45,280.43. The court then ordered the sheriff to turn over said sums to each bank.

Thereafter, Bell presented its motion for an order confirming the sheriff's report of sale and distribution. Because Korea objected to the motion, the trial court granted it until January 7, 1987, to file a response thereto. Korea failed to file a response to Bell's motion, but instead filed a "Motion to Amend Pursuant to I.R.S. Chapter 110, Section 2-1401 Foreclosure Judgment to Properly Reflect Lien Position of Korea Exchange Bank." This motion was denied by the trial court on January 8, 1987, for lack of due diligence and the absence of a meritorious defense. Korea then filed its notice of appeal on February 9, 1987.

Prior to considering the merits of an appeal, the appellate court is duty bound to determine whether the appeal has been properly taken so as to invoke the jurisdiction of the court. Matter of Custody of Jedynak (1984), 123 Ill.App.3d 185, 78 Ill.Dec. 789, 462 N.E.2d 908; Lewis v. Canty (1983), 115 Ill.App.3d 306, 71 Ill.Dec. 176, 450 N.E.2d 864.

Also a party seeking to appeal is required to file his or her notice of appeal "within thirty days after the entry of the final judgment appealed from or, if a timely post-trial motion directed against the judgment is filed, * * * within 30 days after the entry of the order disposing of the last-pending post-trial motion." (Ill.Rev.Stat.1985, ch. 110A, par. 303(a)(1).) Notice of appeal is necessary to confer jurisdiction on the reviewing court. Herman v. Hamblet (1980), 81 Ill.App.3d 1050, 36 Ill.Dec. 835, 401 N.E.2d 973.

In the present case, the final judgment was entered on July 11, 1986. While Korea questions whether a judgment of foreclosure can be considered a final judgment and claims that Marion Metal & Roofing Co. v. Mark Twain Marine Indus. (1983), 114 Ill.App.3d 33, 69 Ill.Dec. 759, 448 N.E.2d 219, applies here, we find that the Judgment of foreclosure was final in the instant cause and that such a result is not inconsistent with Marion Metal.

In Marion Metal, this court, in applying Rule 304(a) (107 Ill.2d R. 304(a)), to an action involving the foreclosure of a mechanic's lien, held that ordinarily "a judgment of foreclosure does not dispose of all of the issues between the parties * * * because the trial court still has to enter a subsequent order approving the foreclosure sale directing distribution." (Marion Metal, 114 Ill.App.3d at 35, 69 Ill.Dec. 759, 448 N.E.2d 219.) However, the court there also determined that the judgment of foreclosure and sale is a final and appealable order if it adjudicates all of the claims of all of the parties, or contains an express finding pursuant to Suprem...