No appellate jurisdiction over an appeal of an interlocutory order in a mortgage foreclosure

This appeal to the Illinois Supreme Court involved a mortgage foreclosure. The trial court granted summary judgment to the mortgage company, entered a judgment of foreclosure and sale, and scheduled a judicial sale. The borrower filed an emergency motion to vacate the judgment of foreclosure. The trial court denied the motion to vacate, but granted a 45-day stay of the sale and added Rule 304(a) language to the order. The borrower filed a motion to reconsider. The court denied the motion, again adding Rule 304(a) language to its order.

The borrower appealed to the appellate court, seeking review of the order denying the motion to vacate and the order denying the subsequent motion to reconsider. The appellate court dismissed the appeal for lack of appellate jurisdiction. The borrower sought Illinois Supreme Court review.

The supreme court began its analysis with the principle that the appellate court may review non-final orders only when a supreme court rule grants jurisdiction. A judgment ordering foreclosure of a mortgage is not final and appealable until the trial court enters an order approving the sale and directing the distribution (notwithstanding the “judgment” terminology). However, because a judgment of foreclosure is considered final as to the matters that it adjudicates, it may be appealed if the trial court grants Rule 304(a) language. The trial court added no such language to the foreclosure judgment in this case.

Instead, the only orders to which Rule 304(a) language was added were those denying the motion to vacate and denying the motion for reconsideration. Neither of those orders was final. Rule 304(a) language makes a final but non-appealable order immediately appealable. But the finding has no effect on a non-final order. Accordingly, the two Rule 304(a) findings were of no effect and did not grant appellate jurisdiction. The supreme court affirmed the appellate court’s dismissal of the appeal.

Justice Karmeier dissented and would have found that appellate jurisdiction was present. He invoked the principle that when an order disposing of a motion to reconsider contains a Rule 304(a) finding, the finding should be treated as having been intended to cover the underlying judgment, making that judgment appealable. Applying that principle to this case, Justice Karmeier would hold that the appellate court had jurisdiction to review the final, but not otherwise appealable, judgment of foreclosure based upon the Rule 304(a) finding appended to the order denying the borrower’s motion for reconsideration.

EMC Mortgage Corp. v. Kemp, 2012 IL 113419.