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Illinois Supreme Court Rules Foreclosure Is Not Appealable Until Court Approves Sale - EMC Mortgage Corp. v. Kemp

January 8, 2013

Vincent Howard and our San Bernardino County foreclosure defense lawyers have read many cases involving appeals of foreclosure orders. (These are ordered in states other than California, because California foreclosures are usually non-judicial.) These cases rarely make an issue of whether the foreclosure order is appealable, but that was the controlling issue in EMC Mortgage Corp. v. Kemp, a decision of the Illinois Supreme Court. Barbara Kemp appealed the denial of her motion to vacate a foreclosure judgment. Although the trial court ruled that the order was final, the appellate court disagreed. The Illinois high court upheld that ruling, saying while a foreclosure judgment is final, it's not appealable until the court enters an order approving the sale and directing distribution.

Kemp took out a mortgage on a home in suburban Chicago in 2005; it was sold to EMC in 2006. EMC filed a foreclosure complaint in July of that year. The case stayed in court for two years, in part because of a series of counterclaims Kemp filed. Summary judgment was granted for EMC in 2009 and the court entered a foreclosure order in June of that year, with a sale scheduled for October. On the day of the sale, Kemp filed an emergency order to vacate the summary judgment order. At a hearing, the court granted a 45-day stay of the sale, but denied her motions to dismiss or vacate, adding language saying there was no justifiable reason to delay enforcement or appeal. Kemp then moved to reconsider, which was also denied with the same language calling for timely appeal or enforcement. Kemp appealed, but the appellate court dismissed for lack of jurisdiction.

The Illinois Supreme Court ultimately agreed, finding that even though the ruling included the appeal-or-enforce language, it was not an appealable order. According to the high court, it is well settled in Illinois that a foreclosure judgment is not final and appealable until the trial court orders a sale and distribution. That's because the foreclosure order doesn't settle all the issues between the parties or terminate the litigation, the high court said; a sale and distribution is still necessary to end the case. Kemp relied on the inclusion of the appeal-or-enforce language in the orders, but the Illinois Supreme court noted that this language cannot confer appellate jurisdiction if the judgment is not actually final. Nor does Kemp's contention that the order is void confer appellate jurisdiction, the court added. Justice Karmeier dissented, arguing that the appeal-or-enforce language does confer appellate jurisdiction, particularly in light of Kemp's intent rather than her pleadings.

Vincent Howard and our Riverside foreclosure defense attorneys appreciate the call to scrutinize the intent, rather than the form, of a mortgage borrower's pleadings. The dissent reveals that Kemp was representing herself for at least some of the long pendency of the case. Representing yourself in court is cheaper than hiring an attorney, of course, but it frequently creates problems like Kemp's, where a failure to understand a technicality is fatal to the case. As a result, it's often more effective in the long run to pay for an attorney. At Howard Law, P.C., we work with many homeowners struggling to hold on to their homes and we understand that people in this situation rarely have extra cash, but we believe our Costa Mesa foreclosure defense lawyers can get better results, simply because we specialize in this kind of law.

If you believe your lender or loan servicer is railroading you--or already railroaded you--into a foreclosure you can avoid, don't wait to call Vincent Howard and the experienced attorneys at Howard Law. To learn more about our services, call us today at 1-800-872-5925 or send us a message online.

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