Saturday, May 16, 2015

Illinois Appellate Court Offers Reminder that Successive Postjudgment Motions do not Toll Appeal Clock

By Charlie Ingrassia
Associate, Adler Murphy & McQuillen LLP

In JPMorgan Chase Bank, N.A. v. Ontiveros, 2015 IL App (2d) 140145, the Illinois Appellate Court addressed whether a trial court lacked subject-matter jurisdiction to enter a judgment on a foreclosure and ensuing sale because the plaintiff was an unlicensed debt collector. While the opinion primarily focused on whether the trial court's order was void pursuant to section 2-1401 of the Code of Civil Procedure (735 ILCS 5/2-1401(a) (West 2012)), the reviewing court provided a helpful reminder that successive postjudgment motions do not toll the clock to file a notice of appeal.

Procedural Background

In Ontiveros, the plaintiff brought a foreclosure complaint. The defendants appeared pro se, but did not answer. Thereafter, on November 7, 2012, the trial court entered a judgment of foreclosure, which judgment did not contain a finding of immediate appealability pursuant to Illinois Supreme Court Rule 304(a) (eff. Feb. 26, 2010). 

One month later, the defendants appeared through counsel, moved to vacate the judgment of foreclosure, and claimed several defenses. The trial court denied the motion to vacate. 

On February 4, 2013, the trial court approved the confirmation of the sale. The defendants filed a timely postjugment motion seeking to vacate the confirmation. On July 5, 2013, with the motion to vacate still pending, the defendants filed a petition pursuant to section 2-1401, attacking the judgment as void. On July 16, 2013, the trial court "struck" the petition. One week later, on July 24, 2013, the trial court denied the defendants' motion to vacate but gave them leave to renotice their petition pursuant to section 2-1401, which defendants did. 

On January 29, 2014, the trial court denied the defendants' petition. Within 30 days, the defendants filed a notice of appeal, seeking review of the January 29 order, the July 16 order, and the November 7 order. 

The Court' s Jurisdictional Analysis

The reviewing court began its analysis by addressing the defendants' argument that their 2-1401 petition constituted a second postjudgment motion, and therefore, tolled the appeal clock for all orders. The court disagreed. 

The court noted that "it has long been the case" that a successive postjudgment motion is improper and does not toll the time to file a notice of appeal. In this case, the defendants' motion to vacate, which they timely filed after the trial court approved the confirmation of the sale, was the only motion that tolled the appeal clock. The trial court denied that motion on July 16, 2013, but the defendants did not file their notice of appeal until February 2014. Therefore, the reviewing court did not have jurisdiction to review the trial court's February 4 order confirming the sale. 

Regarding the November 7 order, the reviewing further noted that a judgment of foreclosure is not final until the trial court enters an order approving the sale and ordering distribution. As a result, absent a Rule 304(a) finding, that order did not become appealable until the trial court approved the confirmation of sale. 

The reviewing court further noted that, because the defendants filed their 2-1401 petition more than 30 days after the trial court's order confirming the sale and timely appealed after the trial court denied their petition, jurisdiction was proper for that issue. 

Recommended Citation: Charlie Ingrassia, Illinois Appellate Court Offers Reminder that Successive Postjudgment Motions do not Toll Appeal ClockThe Brief, (May 16, 2015),

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