Old Second National Bank, N.A. v. Karolewicz, 2022 IL App (1st) 192091

Background

Old Second sued Kenneth and Jane Karolewicz in 2015 to foreclose a mortgage on their home for unpaid note balances; plaintiff moved for summary judgment and the circuit court entered summary judgment and a judgment of foreclosure and sale on July 27, 2018.
The property was sold at judicial auction and the sale was confirmed on June 18, 2019; First American Bank Trustee (FAB) purchased the property and was later permitted to intervene.
The Karols filed a post-judgment motion (July 17, 2019) to vacate the sale/confirmation based on an alleged IHDA reinstatement; the circuit court denied that motion on September 13, 2019 and temporarily stayed possession through October 13, 2019.
The Karols filed a notice of appeal (Oct. 10–11, 2019) from the confirmation/denial but did not file a motion to stay enforcement of the judgment within the appeal period; they later moved (Oct. 30 and Dec. 20, 2019) for a stay and for an extension.
On January 8, 2020 the circuit court granted a nunc pro tunc extension and entered a stay of enforcement (conditioned on payments), later denying plaintiff’s motion to reconsider (Oct. 27, 2020).
The appellate court consolidated three appeals and held (1) it lacked jurisdiction over plaintiff’s appeals from the postjudgment stay/reconsideration orders, and (2) the Karols’ appeal was moot under Rule 305(k) because the property passed to a nonparty and the Karols failed to perfect a timely stay of enforcement.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether appellate court had jurisdiction over plaintiff’s appeals from the circuit court’s postjudgment orders (stay nunc pro tunc; denial of reconsideration).	Plaintiff argued the stay was void because the circuit court lost jurisdiction after denying the postjudgment motion; thus appellate review necessary to vacate the stay.	Defendants asserted the orders were collateral and not appealable final judgments.	Dismissed for lack of jurisdiction: orders granting a postjudgment stay and denial of reconsideration are not appealable final judgments under Rules 301–307.
Whether the Karols’ appeal from the confirmation of sale is moot under Ill. S. Ct. Rule 305(k).	Plaintiff argued the appeal was moot because the Karols failed to perfect a stay and the property passed to a nonparty purchaser.	Karols argued temporary possession stays or intervenor status of FAB preserved the appeal / perfected a stay.	Karols’ appeal is moot: sale passed title to a nonparty (FAB) and Karols did not perfect a stay of enforcement within the time for filing a notice of appeal as required by Rule 305(k).
Whether the circuit court could use a nunc pro tunc order to retroactively make the Karols’ untimely extension/motion timely and thereby perfect a stay.	Plaintiff contended the nunc pro tunc entry was improper because it retroactively granted new relief and the court lacked authority to correct a non-clerical omission.	Karols contended the court intended earlier orders to effectuate a stay and nunc pro tunc merely recognized that.	The nunc pro tunc order was improper: it was used to grant new, untimely relief rather than to correct an inadvertent clerical omission; it did not cure failure to perfect the stay.
Whether a notice of appeal divests the circuit court of jurisdiction to consider collateral motions to stay enforcement.	Plaintiff argued the notice of appeal divested the court of jurisdiction to grant the stay.	Karols relied on precedent that stays of enforcement are collateral and the trial court retains jurisdiction to rule on them after a notice of appeal.	The notice of appeal does not divest the trial court of jurisdiction over collateral stay requests; however, jurisdiction over collateral stays does not excuse failure to perfect a stay within Rule 305(k)’s time limits.

Key Cases Cited

General Motors Corp. v. Pappas, 242 Ill. 2d 163 (court loses jurisdiction after notice of appeal; appellate court’s jurisdiction attaches)
Steinbrecher v. Steinbrecher, 197 Ill. 2d 514 (third-party judicial purchaser is nonparty for Rule 305 purposes; protects sale finality)
EMC Mortgage Corp. v. Kemp, 2012 IL 113419 (order approving judicial sale is final and appealable)
Big Sky Excavating, Inc. v. Illinois Bell Telephone Co., 217 Ill. 2d 221 (definition of final judgment)
Gardner v. Mullins, 234 Ill. 2d 503 (Rule 307 does not apply to postjudgment injunctive relief)