EMC Mortgage Corp. v. Kemp
2012 IL 113419
| Ill. | 2013Background
- Kemp mortgaged property in 2005 to secure a note; EMC later foreclosed after default.
- EMC acquired the loan from Maribella in 2006 and filed a foreclosure suit in Du Page County.
- Circuit court granted EMC summary judgment in 2009 and foreclosure; sale was scheduled for 2010.
- Kemp moved to vacate/dismiss and sought stay; court issued a 45-day stay and denied vacatur, adding Rule 304(a) language.
- Kemp filed a second motion to reconsider; court denied again with Rule 304(a) language. Appellate court dismissed for lack of jurisdiction; issue is whether appellate jurisdiction exists over nonfinal orders during foreclosure pendency.
- The supreme court held there is no appellate jurisdiction to review nonfinal orders during pendency of foreclosure; appeal dismissed.
- Justice Karmeier dissented, arguing Rule 304(a) findings can render underlying interlocutory foreclosure judgments appealable and proposing remand for merits review.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether appellate jurisdiction exists to review nonfinal orders. | Kemp contends Rule 304(a) findings allow review. | EMC argues orders were nonfinal and not reviewable. | No appellate jurisdiction; appeal dismissed. |
| Impact of Rule 304(a) findings on finality for review. | Rule 304(a) findings render underlying judgment appealable. | Findings cannot create jurisdiction if orders are not final. | Rule 304(a) findings do not cure nonfinal status here. |
| Proper scope of review for motions to vacate/dismiss under 2-1401 and 2-619. | Challenges were premature or improper under statutes. | Requests fall within applicable revision/remand rules. | Not reviewable on appeal; jurisdiction lacking. |
Key Cases Cited
- In re Marriage of Verdung, 126 Ill. 2d 542 (1989) (sale approval renders judgment final for appeal purposes)
- Deutsche Bank Nat’l Tr. Co. v. Hall-Pilate, 2011 IL App (1st) 102632 (2011) (finality tied to sale and distribution orders)
- JP Morgan Chase Bank v. Fankhauser, 383 Ill. App. 3d 254 (2008) (Rule 304(a) findings can render underlying judgment appealable)
- Flores v. Dugan, 91 Ill. 2d 108 (1982) (appellate review limited to final judgments unless specified by rule)
- King City Fed. Sav. & Loan Ass’n v. Ison, 80 Ill. App. 3d 900 (1980) (foreclosure judgment finality discussed)