EMC Mortg. Corp. v. Kemp

Decision Date28 December 2012
Docket NumberDocket No. 113419.
Citation367 Ill.Dec. 474,982 N.E.2d 152,2012 IL 113419
PartiesEMC MORTGAGE CORPORATION, Appellee, v. Barbara J. KEMP, Appellant.
CourtIllinois Supreme Court


David G. Wentz, of Brooks, Tarulis & Tibble, LLC, of Naperville, for appellant.

Edward J. Lesniak and Susan M. Horner, of Burke, Warren, MacKay & Serritella, P.C., of Chicago, for appellee.


Justice FREEMAN delivered the judgment of the court, with opinion.

[367 Ill.Dec. 475]¶ 1 The issue in this case is whether appellate jurisdiction exists to consider a challenge to an order issued during the pendency of a mortgage foreclosure action. Because appellate jurisdiction does not exist, we dismiss the appeal.

¶ 2 Background

¶ 3 In 2005, defendant Barbara Kemp mortgaged property at 1240 Hamilton Lane in Naperville to Maribella Mortgage, LLC, to secure payment of a note from Maribella. Maribella sold the loan to plaintiff, EMC Mortgage Corporation, in early 2006. The loan eventually fell into default, and EMC Mortgage filed, in the circuit court of Du Page County, a complaint to foreclose in July of that year. Over the course of the next two years, Kemp filed a series of counterclaims, all of which were dismissed. EMC Mortgage filed a motion for summary judgment, which was granted in April 2009. The circuit court entered a judgment of foreclosure on June 2, 2009, and EMC Mortgage scheduled a judicial sale in October.

¶ 4 Several weeks later, Kemp unsuccessfully moved for reconsideration of the April summary judgment order and to stay the judicial sale. The sale was later stayed by Kemp's bankruptcy filing. The bankruptcy stay was subsequently lifted, and the sale was rescheduled to October 5, 2010. On the date the property was set for sale, Kemp filed an emergency motion to vacate judgment, erroneously invoking section 2–1401 of the Code of Civil Procedure. In this motion, Kemp argued that vacatur of the June 2009 judgment of foreclosure was proper and that once the judgment was vacated, EMC's complaint should be dismissed pursuant to section 2–619 of the Code. Kemp also requested a stay of the sale.

¶ 5 A hearing was held on the emergency motion on October 5, at the conclusion of which the circuit court entered one of the orders that is the subject of this appeal. In the court's order, the court, noting that EMC Mortgage did not object to a stay, granted a 45–day stay of sale. However, the court denied Kemp's motion to vacate the June 2009 judgment of foreclosure, along with Kemp's motion to dismiss, adding Rule 304(a) language to the order.

¶ 6 Kemp next filed a second motion to reconsider on November 4, 2012. The court denied this motion, again adding Rule 304(a) language to its order, on November 16, 2010.

¶ 7 Kemp appealed. In her notice of appeal, Kemp sought review of the circuit court's October 5 order, which denied her motion to vacate, as well as the court's November 16 order, denying her reconsideration. The appellate court dismissed the appeal for lack of appellate jurisdiction. 2011 IL App (2d) 101175–U.

¶ 8 Analysis

¶ 9 The Illinois Constitution confers on the appellate court jurisdiction to hear appeals from all final judgments entered in the circuit court. See Ill. Const. 1970, art. VI, § 6 (providing that appeals “from final judgments of a Circuit Court are a matter of right to the Appellate Court). The Constitution also grants to this court the right to “provide by rule for appeals to the Appellate Court from other than final judgments.” Id. Accordingly, absent a supreme court rule, the appellate court is without jurisdiction to review judgments, orders or decrees which are not final. Flores v. Dugan, 91 Ill.2d 108, 112, 61 Ill.Dec. 783, 435 N.E.2d 480 (1982); Village of Niles v. Szczesny, 13 Ill.2d 45, 147 N.E.2d 371 (1958).

[367 Ill.Dec. 476]¶ 10 In this case, Kemp appeals from the circuit court's denial of her motion to vacate and her subsequent motion to reconsider that denial. The first problem with Kemp's appeal is that the relief she sought under section 2–1401 is not even available to her, there being no final and appealable order entered in this case yet. See 735 ILCS 5/2–1401(a) (West 2010) (providing that [r]elief from final orders and judgments, after 30 days from the entry thereof, may be had upon petition” (emphasis added)).

¶ 11 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. In re Marriage of Verdung, 126 Ill.2d 542, 555–56, 129 Ill.Dec. 53, 535 N.E.2d 818 (1989); Deutsche Bank National Trust Co. v. Snick, 2011 IL App (3d) 100436, 354 Ill.Dec. 480, 957 N.E.2d 1273;GMB Financial Group, Inc. v. Marzano, 385 Ill.App.3d 978, 982, 326 Ill.Dec. 81, 899 N.E.2d 298 (2008). 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. JP Morgan Chase Bank v. Fankhauser, 383 Ill.App.3d 254, 260, 321 Ill.Dec. 870, 890 N.E.2d 592 (2008); Marion Metal & Roofing Co. v. Mark Twain Marine Industries, Inc., 114 Ill.App.3d 33, 35, 69 Ill.Dec. 759, 448 N.E.2d 219 (1983). 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. Fankhauser, 383 Ill.App.3d at 260, 321 Ill.Dec. 870, 890 N.E.2d 592;King City Federal Savings & Loan Ass'n v. Ison, 80 Ill.App.3d 900, 901–02, 36 Ill.Dec. 142, 400 N.E.2d 562 (1980). 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. Id.

¶ 12 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. Verdung, 126 Ill.2d at 555–56, 129 Ill.Dec. 53, 535 N.E.2d 818. Kemp did not seek to make the judgment of foreclosure appealable under Rule 304(a).

¶ 13 Yet another problem with Kemp's appeal is that the orders Kemp seeks review of—the denial of a motion to vacate based upon an inapplicable section of the Code of Civil Procedure and the denial of its reconsideration—are neither final nor appealable. Had the motion to vacate been properly brought under section 2–1401, Rule 304(b) would have conferred appellate jurisdiction. See Ill. S.Ct. R. 304(b) (eff. Feb. 26, 2010) (allowing appeals from orders granting or denying section 2–1401 relief). Rule 304(b) is, of course, inapplicable here, because Kemp's motion to vacate was premature under section 2–1401.

¶ 14 Kemp concedes all of the above, but contends that the trial judge's inclusion of Rule 304(a) language to its orders of October 5 and November 16 bestows appellate jurisdiction on those orders. This contention is meritless. It is well settled that “the inclusion of the special finding in the trial court's order cannot confer appellate jurisdiction if the order is in fact not final.” Crane Paper Stock Co. v. Chicago & Northwestern Ry. Co., 63 Ill.2d 61, 66, 344 N.E.2d 461 (1976); see also Martino v. Barra, 37 Ill.2d 588, 594, 229 N.E.2d 545 (1967). The circuit court's October 5 denial of Kemp's emergency motion to vacate is not a final order, nor is the November 16 order denying reconsideration of the October 5 ruling.

¶ 15 Kemp's final argument is that she is attempting to attack a void order and that a petition to vacate a void order may be made at any time, in any court, regardless of finality. This contention is also meritless. Generally, a void order can be attacked at any time by a person affected by it. People v. Flowers, 208 Ill.2d 291, 308, 280 Ill.Dec. 653, 802 N.E.2d 1174 (2003). This legal proposition, however, by itself, does not act to confer appellate jurisdiction on a reviewing court if such jurisdiction is otherwise absent. Id. 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. Id. 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.

¶ 16 Conclusion

¶ 17 The appellate court correctly concluded that appellate jurisdiction is lacking in this case. The judgment of the appellate court is therefore affirmed, and the appeal is dismissed.

¶ 18 Appellate court judgment affirmed.

¶ 19 Appeal dismissed.

Chief Justice KILBRIDE and Justices THOMAS, GARMAN, BURKE, and THEIS concurred in the judgment and opinion.

Justice KARMEIER dissented, with opinion.¶ 20JUSTICE KARMEIER, dissenting:

¶ 21 The issue in this case is whether the appellate court had jurisdiction to consider a Rule 304(a) appeal challenging a judgment of foreclosure and sale in residential mortgage foreclosure action. After the case was fully briefed, the appellate court concluded that jurisdiction was lacking and dismissed the homeowner's appeal in an unpublished order pursuant to Supreme Court Rule 23 (Ill. S.Ct. R. 23 (eff. July 1, 2011)). For the following reasons, I would reverse the appellate court's judgment and remand the cause to the appellate court for consideration of the appeal on the merits. I therefore respectfully dissent.


¶ 23 Barbara Kemp purchased a home in Naperville in 2005. To finance the purchase, Kemp took out a mortgage on the property in the amount of $863,200. A company known as Maribella Mortgage, LLC, was named as the lender. Mortgage Electronic Registration Systems, Inc. (MERS), as nominee for Maribella, was designated as the mortgagee. The mortgage documents indicated that mortgage was given to secure repayment of an adjustable rate promissory note given by Kemp to...

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