EMC Mortg. Corp. v. Kemp (IL)


Summary: In a mortgage foreclosure action, no appellate jurisdiction exists to review a challenge to non-final orders in the absence of applicable Supreme Court rules.


EMC Mortg. Corp. v. Kemp, 2012 IL 113419 (2012).


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Facts: The Plaintiff, EMC Mortgage, commenced a mortgage foreclosure case in the circuit court of DuPage County. The circuit court entered a judgment of foreclosure. The Defendant, Barbara Kemp, made two motions thereafter. The first motion was a motion to vacate the judgment of foreclosure, which the Illinois Supreme Court found was erroneously brought under Section 2-1401. The circuit court denied the motion by invoking Illinois Supreme Court Rule 304(a). The Defendant subsequently filed a motion to reconsider the denial, which the circuit court again denied by invoking Rule 304(a). On appeal, the Appellate Court dismissed the appeal for lack of jurisdiction. The Defendant asked the Illinois Supreme Court to review the decision of the Appellate Court as to whether appellate jurisdiction existed in this case.


Holding: Affirmed. Appeal Dismissed. Absent an applicable Supreme Court rule, the Illinois Constitution provides that appellate jurisdiction does not exist for judgments, orders, or decrees which are not final. Il. Const. art. VI, § 6 (1970); Flores v. Dugan, 435 N.E.2d 480, 481 (Ill. 1982). The Illinois Supreme Court stated three reasons for why appellate jurisdiction did not exist in this case.


First, Section 2-1401 was not a proper procedural mechanism under which to bring a motion to vacate the judgment of foreclosure. Section 2-1401 can be invoked only when a litigant seeks relief from final orders and judgments. 735 Ill. Comp. Stat. 5/2-1401(a) (West 2010). Here, it is an order confirming the sale, not a judgment of foreclosure, that is final and appealable, because the judgment of foreclosure itself does not resolve all of the claims involved in a mortgage foreclosure case. JP Morgan Chase Bank v. Fankhauser, 890 N.E.2d 592, 599 (Ill. App. Ct. 2008). Because the circuit court here only issued a judgment of foreclosure, the judgment is not final for the purpose of bringing a Section 2-1401 petition.


Second, although Illinois Supreme Court Rule 304(a) allows a party to appeal a final judgment resolving fewer than all claims, the appeal under Rule 304(a) is available only if a trial court makes an express written finding to that effect. The circuit court here did not include the Rule 304(a) language to the judgment of foreclosure. Accordingly, Rule 304(a) cannot be invoked to make the judgment of foreclosure appealable.


Third, although a party alternatively can invoke Rule 304(b)(3) to appeal an order denying a Section 2-1401 petition when a trial court does not make the Rule 304(a) finding, the Defendant’s motion to vacate was not properly brought under Section 2-1401 in the first place. Therefore, Rule 304(b)(3) cannot be invoked to confer appellate jurisdiction to review the circuit court’s denial of the two motions.

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By: ATG Underwriting Department | Posted on: Wed, 07/17/2013 - 1:34pm