Opinion
No. 1-20-0222
05-07-2021
BEAL BANK, NA, Plaintiff-Appellee, v. DOROTHY SANDERS, unknown owners, and non-record claimants, Defendants-Appellants.
NOTICE: This order was filed under Supreme Court Rule 23 and is not precedent except in the limited circumstances allowed under Rule 23(e)(1).
Appeal from the Circuit Court of Cook County.
No. 2018 CH 13408
Honorable Patricia S. Spratt, Judge Presiding.
JUSTICE HARRIS delivered the judgment of the court.
Justice Connors and Justice Oden Johnson concurred in the judgment.
ORDER
¶ 1 Held: We find that this court lacks jurisdiction to consider defendant's appeal where the notice of appeal was filed more than 30 days after entry of the trial court's order denying plaintiff's postjudgment motion.
¶ 2 Defendant, Dorothy Sanders, appeals the orders of the trial court confirming sale and denying her posttrial motion to set aside the confirmation order pursuant to section 15-1508(b) of the Illinois Mortgage Foreclosure Law (Foreclosure Law) (735 ILCS 5/15-1508(b) (West 2018)). For the following reasons, we dismiss the appeal for lack of jurisdiction.
¶ 3 I. JURISDICTION
¶ 4 The trial court entered its order confirming sale on August 22, 2019. Plaintiff filed a motion to set aside the order pursuant to section 15-1508(b) on September 20, 2019. The trial court denied that motion on November 6, 2019. Plaintiff filed a motion to reconsider on December 2, 2019, which the trial court denied on December 31, 2019. Plaintiff filed a notice of appeal on January 31, 2019.
¶ 5 II. BACKGROUND
¶ 6 On February 6, 1997, plaintiff's predecessor in interest, MCA Mortgage Corp., issued a loan to defendant and her husband, Clint Sanders, for $37,000. The loan was secured by a mortgage on property located at 6629 South Bishop in Chicago, Illinois. The loan was subsequently assigned to plaintiff.
¶ 7 In March 2013, defendant defaulted on the loan and plaintiff filed a complaint to foreclose on the mortgage. For reasons not in the record, the complaint was voluntarily dismissed on December 13, 2013. On August 9, 2018, plaintiff sent defendant a notice of default and filed a foreclosure action on October 26, 2018, under case number 2018 CH 13408. In the complaint, plaintiff alleged that the mortgage was in default due to the failure to make monthly installments since March 2013. There remained an outstanding balance on the loan of $31,974.22. Plaintiff was served with the summons and complaint on November 2, 2018.
¶ 8 The trial court set a case management conference for December 26, 2018, and a notice was sent to defendant. The court subsequently struck the conference, finding that no further case management conference was necessary. Defendant did not file an answer to the foreclosure complaint.
¶ 9 On February 13, 2019, plaintiff moved for entry of judgment and foreclosure. A copy of the motion was sent to defendant by mail. Defendant failed to appear or answer the complaint. On March 6, 2019, the trial court entered a judgment of foreclosure and copies of the court's orders were mailed to defendant on March 22, 2019.
¶ 10 On April 12, 2019, defendant filed a motion to vacate the default and foreclosure judgment in which she alleged that she was unaware of the action. When defendant's counsel failed to appear, the motion was stricken. On May 14, 2019, defendant filed a motion to vacate the order striking the motion to vacate. Again, for reasons not found in the record, the motion was stricken on June 5, 2019.
¶ 11 The foreclosure sale took place on June 7, 2019, and plaintiff was the successful bidder at $44,265.01. On June 20, 2019, plaintiff filed a motion to confirm the sale. On June 27, 2019, defendant filed a motion to vacate the judgments of default and foreclosure, as well as the June 5, 2019, order. At a hearing, defendant was given leave to respond to plaintiff's motion to confirm the sale and she withdrew her motion to vacate the default and foreclosure judgments.
¶ 12 Defendant, however, did not file a response to plaintiff's motion to confirm the sale. On August 16, 2019, she filed a motion asserting that the sale should not be confirmed under section 15-1508(b) of the Foreclosure law. In the motion, she alleged that 1) plaintiff had not responded to her Qualified Written Requests made pursuant to the federal Real Estate Settlement Procedures Act; 2) plaintiff failed to give her notice of the motions for default and judgment of foreclosure and sale; 3) she first became aware of the default and foreclosure judgments on March 6, 2018, when the orders were entered; and 4) the foreclosure complaint is void because it was filed more
than five years after plaintiff voluntarily dismissed its 2013 foreclosure action. For reasons not found in the record, the court struck defendant's motion.
¶ 13 On August 22, 2019, the trial court entered an order confirming the sale. On September 20, 2019, defendant's attorney filed an appearance and a motion to vacate the orders of default and foreclosure, and the orders of June 5 and August 22, 2019. The motion contained the same arguments as the August 16, 2019, motion to vacate filed by defendant. The trial court denied this motion on November 6, 2019.
¶ 14 On December 2, 2019, defendant filed a motion to reconsider or in the alternative, a motion for a rehearing. The motion contained the same arguments as the September 20, 2019, motion. At the December 31, 2019, hearing, the trial court denied the motion "for the reasons stated on the record." The record does not contain transcripts of those proceedings. Defendant filed a notice of appeal that same day.
¶ 15 III. ANALYSIS
¶ 16 Plaintiff contends that this court lacks jurisdiction to consider defendant's appeal where defendant filed her notice of appeal more than 30 days after the trial court denied her first posttrial motion. "It is axiomatic that the appellate court must first consider its jurisdiction to hear an appeal before reaching the merits." In re Estate of Gagliardo, 391 Ill. App. 3d 343, 349 (2009).
¶ 17 Rule 303(a)(1) provides that the notice of appeal must be filed "within 30 days after the entry of the final judgment appealed from, or, if a timely posttrial motion directed against the judgment is filed, *** within 30 days after the entry of the order disposing of the last pending postjudgment motion directed against that judgment or order." Illinois Supreme Court Rule 303(a)(1) (eff. July 1, 2017). The filing of multiple postjudgment motions, however, does not
necessarily extend the time for filing an appeal. Jones v. Unknown Heirs or Legatees of Fox, 313 Ill. App. 3d 249, 251 (2000).
¶ 18 In Sears v. Sears, 85 Ill. 2d 253, 258 (1981), the supreme court found that "a second post-judgment motion, filed more than 30 days after judgment but within 30 days of the denial of the first motion, that only repeats what was in the first motion or raises points that could have been raised the first time" was untimely. The court reasoned that
"[t]here is no provision in the Civil Practice Act or the supreme court rules which permits a losing litigant to return to the trial court indefinitely, hoping for a change of heart or a more sympathetic judge. Permitting successive post-judgment motions would tend to prolong the life of a lawsuit at a time when the efficient administration of justice demands a reduction in the number of cases pending in trial courts and would lend itself to harassment. There must be finality, a time when the case in the trial court is really over and the loser must appeal or give up." Id. at 260.
See also Bell Fed. Sav. & Loan Ass'n v. Bank of Ravenswood, 203 Ill. App. 3d 219, 224 (1990) (finding that "a second post-judgment motion which is filed beyond thirty days after entry of the final order, but which attacks the same judgment, neither extends the time for filing of the appeal nor continues the jurisdiction of the trial court").
¶ 19 Here, the trial court entered an order confirming the sale on August 22, 2019. "[T]he order confirming the sale * * * operates as the final and appealable order in a foreclosure case." EMC Mortgage Corp. v. Kemp, 2012 IL 113419, ¶ 11. Within 30 days of this order, on September 20, 2019, defendant's attorney filed a postjudgment motion to vacate the orders of default and foreclosure, and the orders of June 5 and August 22, 2019. The trial court denied this motion on
November 6, 2019. Per Rule 303(a)(1), defendant had 30 days from that date, or until December 6, 2019, to file a notice of appeal.
¶ 20 Instead, defendant filed a motion to reconsider on December 2, 2019. As Rule 303(a)(2) explicitly states, "[n]o request for reconsideration of a ruling on a postjudgment motion will toll the running of the time within which a notice of appeal must be filed under this rule." Illinois Supreme Court Rule 303(a)(2) (eff. July 1, 2017). Furthermore, defendant's motion to reconsider raised the same arguments as her initial postjudgment motion to vacate the orders of default and foreclosure, and the orders of June 5 and August 22, 2019. A second postjudgment motion that merely repeats arguments made in the first motion is untimely if filed more than 30 days after the final judgment. Sears, 85 Ill. 2d at 258. Therefore, defendant had until December 6, 2019, to file a notice of appeal. She filed her notice of appeal on December 31, 2019.
¶ 21 Jurisdiction is conferred on this court when a notice of appeal is filed within 30 days of the entry of the final judgment from which the appeal is taken. D'Agostino v. Lynch, 382 Ill. App. 3d 639, 642-43 (2008). Since defendant's notice of appeal was untimely filed, this court lacks jurisdiction to consider her appeal and we must dismiss it. Lebron v. Gottlieb Memorial Hospital, 237 Ill. 2d 217, 251-52 (2010).
¶ 22 IV. CONCLUSION
¶ 23 For the foregoing reasons, we dismiss the appeal for lack of jurisdiction.
¶ 24 Appeal dismissed.