Citicorp Sav. of Illinois v. First Chicago Trust Co. of Illinois

• Decision Date: 07 October 1991
• Citation: 645 N.E.2d 1038,269 Ill.App.3d 293,206 Ill.Dec. 786
• Parties: , 206 Ill.Dec. 786 CITICORP SAVINGS OF ILLINOIS, a Savings and Loan Association, Plaintiff-Appellee, v. FIRST CHICAGO TRUST COMPANY OF ILLINOIS as Trustee under Trust Agreement dated
• Court: United States Appellate Court of Illinois

Page 1038

645 N.E.2d 1038

269 Ill.App.3d 293, 206 Ill.Dec. 786

CITICORP SAVINGS OF ILLINOIS, a Savings and Loan Association, Plaintiff-Appellee, v. FIRST CHICAGO TRUST COMPANY OF ILLINOIS as Trustee under Trust Agreement dated 10/7/91, Trust #R-011448, Leo Frontera, Rebecca Frontera, the Registrar of Titles of Cook County, Illinois, Unknown Owners and Nonrecord Claimants Defendants-Appellees (Peter J. Bilanzic and Sharon D Bilanzic, Petitioners-Appellants).

No. 1-93-1960.

Appellate Court of Illinois First District, Sixth Division.

Jan. 20, 1995.

Donald L. Johnson, Chicago, for appellants.

Egan & Trapp, Chicago (Robert A. Egan and James M. Scavo, of counsel), for appellee.

Justice ZWICK delivered the opinion of the court: ¹

Appellants, Peter and Sharon Bilanzic (the Bilanzics), were high bidders for residential property sold by the sheriff at a mortgage foreclosure sale. The property had been foreclosed by Citicorp Savings of Illinois (Citicorp), after its borrowers, Leo and Rebecca Frontera (the Fronteras), defaulted on their mortgage. The trial court refused to confirm the sale, finding Citicorp to have sold the property prematurely. The trial court subsequently refused to allow the Bilanzics to intervene in the case and reinstated the Fronteras' mortgage with Citicorp. The Bilanzics bring this appeal pursuant to Supreme Court Rule 301 (134 Ill.2d R. 301).

There are no significant disputes as to the facts of this case. The Fronteras defaulted on their mortgage with Citicorp sometime in 1992. Citicorp brought a foreclosure action against them, serving the Fronteras on July 24, 1992. On October 15, 1992, the circuit court entered a default judgment against the Fronteras and made a finding pursuant to Supreme Court Rule 304(a) (134 Ill.2d R. 304(a)). The Fronteras were given notice.

On October 25, 1992, the Fronteras' statutory right to reinstate the mortgage expired. 735 ILCS 5/15-1602 (West 1992).

On January 14, 1993, Citicorp set a sheriff's sale for March 10, 1993. Notice of Judicial Sale was sent to the Fronteras.

On February 11, 1993, the Fronteras' attorney contacted Citicorp and requested information regarding the foreclosed mortgage. On February 17, 1993, Citicorp, through counsel, forwarded to the Fronteras' attorney correspondence which included "payoff" and "reinstatement" figures. Although the statutory reinstatement period had expired, the letter indicated that Citicorp would accept either a payoff or a reinstatement payment through March 15, 1993.

On February 23, 1993, the Fronteras' statutory right to redeem the property expired. 735 ILCS 5/15-1603 (West 1992).

On March 12, 1993, the Fronteras' attorney contacted Citicorp and indicated that he had the necessary checks to reinstate the mortgage. Citicorp informed him at this time that a judicial sale had already taken place and the property had been sold two days earlier. The Bilanzics had made the highest bid at the sale. Despite being informed that the property had been sold, the Fronteras' attorney forwarded the checks to Citicorp. Citicorp refused to accept the checks and returned them to the Fronteras.

Citicorp subsequently filed a motion to approve the sheriff's report of sale, as required by statute. (735 ILCS 5/15-1508 (West 1992).) On March 16, 1993, and at a hearing on the motion, the Fronteras filed an emergency motion to prevent the confirmation. Along with their motion, the Fronteras' attorney included an affidavit which stated that an employee of Citicorp's attorney had represented to him that the judicial sale set for March 10 would be changed to March 16. The hearing was held over until April 22, 1993.

On April 22, 1993, the court held a hearing on motions filed by Citicorp and the Fronteras. In its response to the Fronteras' emergency motion, Citicorp argued that it was only required to accept a reinstatement payment up until October 25, 1992, the statutory reinstatement date, and that it had never agreed to continue the judicial sale of the property which had been properly scheduled for March 10, 1993. The court determined, however, that Citicorp had agreed in the letter to give the Fronteras until at least March 15 to reinstate their loan.

Although the Bilanzics had not filed an appearance with the court or taken part in the confirmation hearing, Peter Bilanzic was in the courtroom on April 22, 1993. He asked the court if the money tendered on his behalf to the sheriff could be ordered returned to him. The court vacated the sale and ordered the Bilanzics' money be returned, noting that the sale had been done "by mistake." The court did not make findings pursuant to Supreme Court Rule 304(a) (134 Ill.2d R. 304(a)).

On April 28, 1993, the Bilanzics filed a Motion for Leave to Intervene in the case. On April 30, 1993, the Fronteras filed an objection to the motion. At a hearing on the motion the court denied the Bilanzics' motion and again ordered that their money be returned.

On May 5, 1993, the Fronteras scheduled a Motion to Dismiss Citicorp's suit. On this day the court reinstated the Fronteras' mortgage and dismissed the suit with prejudice.

On May 28, 1993, the Bilanzics filed a Notice of Appeal.

Initially, both parties raise jurisdictional claims. The Fronteras argue that the Bilanzics' appeal is untimely and, because the Bilanzics were denied the right to intervene, they only have standing to challenge the court's ruling denying intervention. The Bilanzics argue that the Fronteras' right to challenge the judicial sale of the property in the circuit court expired 30 days after the court entered a final order of foreclosure on October 15, 1992. We reject both arguments.

The Fronteras argue that the Bilanzics cannot bring an appeal from the trial court's order of April 22, 1993, which vacated the judicial sale, because the Bilanzics' appeal was filed more than 30 days after the order vacating the sale was issued. An appeal brought more than 30 days after the entry of a final order is untimely under Supreme Court Rule 303(a) (134 Ill.2d R. 303(a)). The timely filing of a notice of appeal is mandatory and jurisdictional. Barter v. Slayback (1992), 235 Ill.App.3d 18, 21, 175 Ill.Dec. 607, 600 N.E.2d 538.

Appeals in civil cases may generally be had only from final judgements. (Illinois Bell Telephone Co. v. Purex Corp. (1980), 90 Ill.App.3d 690, 45 Ill.Dec. 773, 413 N.E.2d 106.) A trial court's order is a final judgment when it terminates the litigation on its merits or disposes of the rights of the parties' entire controversy, or some definite part thereof. In re Marriage of Rossi (1981), 100 Ill.App.3d 669, 56 Ill.Dec. 214, 427 N.E.2d 294.

In general, orders or judgments which resolve fewer than all of the claims or dispose of the rights, liabilities and obligations of fewer than all of the parties may not be appealed until the proceedings are concluded. The trial court is granted the power under Supreme Court Rule 304(a), however, to allow an appeal following an express finding that there is no just reason for delaying either enforcement or appeal or both. (Peter Fischer Import Motors, Inc. v. Buckley (1984), 121 Ill.App.3d 906, 909, 77 Ill.Dec. 290, 460 N.E.2d 346.) "If the trial court's order does not include this express finding, the order is subject to revision at any time before the entry of an order which adjudicates all the claims, rights and liabilities of the parties." Peter Fischer Import Motors, Inc., 121 Ill.App.3d at 909, 77 Ill.Dec. 290, 460 N.E.2d 346.

The trial court's order of April 22, 1993, was not an appealable order as to the Fronteras' claim. The court at this point in time had not determined the ultimate disposition of the property at issue. Thus, claims were still pending in the circuit court. Even if we were to characterize the order of April 22 as a "final" judgment, as the Fronteras urge, the trial court did not make the express findings necessary to invoke the possibility of appellate jurisdiction under Supreme Court Rule 304(a). This means that any appeal from the court's order was properly made only after the entire proceedings were dismissed. The Bilanzics' appeal is therefore timely.

The Bilanzics also raise a jurisdictional claim. They argue the circuit court was without jurisdiction to dispose of the disputed property after the Fronteras mortgage had been foreclosed. Like the Fronteras, the Bilanzics rely upon the fact that the circuit court loses jurisdiction over a matter after passage of 30 days from the entry of a final order, unless a notice of appeal causes the circuit court to lose jurisdiction sooner. They argue that the circuit court's order reinstating the Fronteras' mortgage was beyond the court's jurisdictional power because the mortgage had been foreclosed on October 15, 1992.

The Bilanzics' argument, although interesting, suffers from the same infirmity as the Fronteras' jurisdictional claims discussed above. This is so because the court's order of October 15, 1992, was not appealable with regard to the judicial sale of the foreclosed property, which is the subject of this appeal, but merely with regard to the foreclosure proceedings. At the time this case was before the circuit court, Supreme Court Rule 304(a) provided in relevant part:

"If multiple * * * claims for relief are involved in an action, an appeal may be taken from a final judgment as to one or more but fewer than all of the * * * claims only if the trial court has made an express written finding that there is no just reason for delaying enforcement or appeal." (134 Ill.2d R. 304(a).)

We find Citicorp's attempt to confirm the judicial sale and the Fronteras' attempt to have their mortgage reinstated to represent separate "claims" under the rule, conceptually distinct from the earlier foreclosure proceedings. The circuit court therefore retained proper jurisdiction over the parties and the remaining claims after it entered the foreclosure order on October 15, 1992.

The...