By Kimberly Glasford
Law Clerk to Hon. Terrence J. Lavin, Illinois Appellate Court,
In cases where procedural facts trigger a confluence of jurisdictional rules, the appellate court’s discussions of jurisdiction often don’t end well for the appellants. Perhaps then it’s refreshing to read a discussion finding jurisdiction is present and accounted for, such as the recent decision in The Bank of New York Mellon v. Wojcik, 2019 IL App (1st) 180845.
Ewa Wojcik mortgaged her condominium. Upon her failure to cure a default, the Bank of New York Mellon commenced a foreclosure action. In response, she and Anthony Avado, with whom she had become a tenant in common, denied receiving requisite notices. The trial court resolved the parties’ cross-motions for summary judgment in favor of the bank and entered a judgment of foreclosure and sale. The court also found there was no reason to delay an appeal under Illinois Supreme Court Rule 304(a) (eff. Mar. 8, 2016). Wojcik and Avado then appealed from the denial of their summary judgment motion. The Bank of New York Mellon, 2019 IL App (1st) 180845, ¶¶ 1, 5-8, 10.
On appeal, the reviewing court reiterated that judgments resolving fewer than all claims are not appealable absent “an express written finding that there is no just reason for delaying either enforcement or appeal or both.” Id. ¶ 14 (quoting Ill. S. Ct. R. 304(a) (Mar. 8, 2016)). Additionally, a foreclosure judgment is ordinarily not final and appealable until the trial court has approved the sale and distribution of the property. The Bank of New York Mellon, 2019 IL App (1st) 180845, ¶ 15. Moreover, an order denying summary judgment is generally interlocutory and not subject to appeal. Id. ¶ 16. An exception exists, however, where the parties have filed cross-motions for summary judgment. Id.
The appellate court determined that it had jurisdiction over the appeal from the denial of summary judgment and the foreclosure judgment because the parties had filed cross-motions and the trial court had entered a Rule 304(a) finding. Id. ¶ 17. Jurisdiction aside, the trial court properly entered summary judgment in favor of the bank. Contrary to Illinois Supreme Court Rule 133(c), Wojcik and Avado had failed to provide specific facts supporting their denial that the bank had tendered certain notices, a condition precedent to filing this foreclosure action. Id. ¶¶ 20-22.
The appellate court’s decision shows that it is possible to appeal from a judgment of foreclosure and the denial of summary judgment, but you can bet your bottom dollar that jurisdiction will be found lacking unless cross-motions are filed and a Rule 304(a) finding is entered.