Appellate Law

Trial Court?s ?Final And Appealable? Order Not Necessarily So

By Steven R. Merican

This mortgage foreclosure action reminds us that just because a trial court says its order is final and appealable, it?s not necessarily so.

GMB Financial Group held a mortgage on property owned by Michele Marzano. GMB sued to foreclose on the mortgage. Michele did not timely enter an appearance in the trial court, so a default judgment of foreclosure was entered against her. She asked the court to vacate the default and to quash service of the lawsuit. In turn, GMB asked the court to strike Michele?s motion. The trial court granted GMB?s motion to strike, and stated that its order was ?final and appealable.? Later, the trial court confirmed GMB?s sale of the property.

Michele appealed both trial court rulings. Her Notice of Appeal was filed within 30 days of the court?s order that approved the sale of the property, but more than 30 days after the trial court made its ?final and appealable? order granting GMB?s request to strike the motion to quash service.

GMB argued that there was no appellate jurisdiction for the court to review the order that struck Michele?s motion. GMB claimed that the order was ?final and appealable,? so Michele should have filed her Notice of Appeal within the 30-day deadline to properly secure appellate jurisdiction.

The Second District Illinois Appellate Court disagreed, and ruled that the trial court?s ?final and appealable? order wasn?t really final and appealable. Here?s what the appellate court said:

As a preliminary matter, plaintiff argues that we have no jurisdiction over the order granting the motion to strike, because the trial court designated the order as final and appealable yet defendant did not appeal within 30 days of the order ? The trial court's characterization of the order as final and appealable did not make it so ? By its nature the order did not have the requisite finality. ?A judgment ordering the foreclosure of a mortgage is not final and appealable until the court enters orders approving the sale and directing the distribution." ? The grant of the motion to strike was an intermediate order in a process that did not culminate for purposes of appeal until the January 9, 2007, order confirming the sale. Defendant appealed well within 30 days of the January 9 order, and therefore we have jurisdiction to review the prior order granting the motion to strike.

In the end, the trial court?s order confirming the sale of the property was affirmed. Read the whole case, GMB Financial Group v. Marzano, No. 2-07-0047 (10/17/08) by clicking here.

Full post as published by Illinois Appellate Lawyer Blog on February 21, 2009 (boomark / email).