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PHILPOTT v. RESOLUTION TRUST CORP.

January 2, 1990

ROBERT PHILPOTT and DREAMA PHILPOTT, his wife, Plaintiffs,
v.
RESOLUTION TRUST CORPORATION, solely as successor to the Federal Savings and Loan Insurance Corporation as conservator of Skokie Federal Savings and Loan Association, F.A., conservatorship, Defendant



The opinion of the court was delivered by: HART

 WILLIAM T. HART, UNITED STATES DISTRICT JUDGE

 On June 2, 1989, plaintiffs Robert and Dreama Philpott brought suit against Sko-Fed Credit a/k/a Skokie Federal Savings. The suit was filed in the Circuit Court of the Nineteenth Judicial District, Lake County, Illinois. Plaintiffs alleged that the interest charged on their mortgage violated Ill. Rev. Stat. ch. 17, para. 6410, and that the prepayment penalty provisions of their mortgage violated para. 6404. On March 15, 1989, Skokie Federal had been placed into conservatorship with the FSLIC as conservator. On July 19, 1989, the FSLIC was also appointed as receiver and transferred Skokie Federal's assets into a newly formed successor institution with the same name. On August 9, 1989, Congress enacted the Financial Institutions Reform, Recovery, and Enforcement Act of 1989 ("Act"), Pub. Law 101-73, 103 Stat. 183, which created the Resolution Trust Corporation. Resolution Trust automatically succeeded the FSLIC as conservator and receiver. Act § 501(b)(6), 12 U.S.C. § 1441a(b)(6). See also Act § 401(f)(2).

 Before passage of the Act, Skokie Federal moved to dismiss and stay the action against it. The four-paragraph motion to dismiss simply stated that dismissal was sought pursuant to para. 2-615 of the Illinois Code of Civil Procedure for failure to allege facts supporting the claimed violation of para. 6410 and pursuant to para. 2-619 because Skokie Federal was insolvent. The motion to stay was based on a pending petition for leave to appeal in a case concerning para. 6404. The motion was initially heard on July 11, 1989 and continued to August 29, 1989. On August 29, the state court entered the following order: "It is hereby ordered that the Motion to Dismiss of Defendant Sko-Fed Credit, pursuant to Section 2-615 of the Illinois Code of Civil Procedure, is granted." Before this court, defendant has represented that this order dismissed the case. The order itself does not expressly state the case is dismissed and no record of docket entries was provided to show this was treated as a closing order. See Illinois Supreme Court Rule 272. Also, no record of the August 29 hearing is provided, but the written motion only requested that the para. 6410 claim be dismissed pursuant to Rule 2-615, not the para. 6404 claim as well. Plaintiffs subsequently moved to vacate the August 29 order. The motion was noticed to be heard on October 10, but the record filed with this court does not indicate when the motion was filed. It was apparently filed prior to October 6, which was the date defendant filed its removal petition. In its entirety, the motion reads as follows:

 
Now come the Plaintiffs, ROBERT PHILPOTT and DREAMA K. PHILPOTT, his wife, by and through their attorneys, GANTOR, DeMARTINI & WALDECK, LTD., and moves to vacate the Order of August 29, 1989, or in the alternative, allow Plaintiffs to replead their Complaint, and in support thereof, states as follows:
 
1. That the Defendant filed a Notice to Dismiss in the above captioned matter based on a 2-615 Motion, the Complaint did not state a cause of action.
 
2. The Court granted said Motion and entered an Order of August 29, 1989, not allowing Plaintiffs time to replead.
 
3. That Defendant moved under Section 2-619 to dismiss on the fact that Skokie was an insolvent institution.
 
4. That Plaintiffs state that the Order entered on August 29, 1989 fails to state whether the Motion to Dismiss was granted based on Section 2-619 Motion and Plaintiffs request that a rehearing be held on the merits of that Motion.
 
WHEREFORE, Plaintiffs pray that this Court vacate the Order entered on August 29, 1989, or in the alternative, allow Plaintiffs time to replead their Complaint; and Grant Plaintiffs a rehearing on the merits on the Section 2-619 Motion.

 If the August 29 order was a final judgment and plaintiffs' motion was filed subsequent to September 28, 1989, then the motion to vacate was one pursuant to Rule 2-1401. Otherwise, it was pursuant to Rule 2-1301(e). See Lurie Co. v. Teichner, 63 Ill. App. 3d 950, 380 N.E.2d 959, 960, 20 Ill. Dec. 750 (1978); International Industrial Leasing, Ltd. v. H.J. Coleman & Co., 66 Ill. App. 3d 884, 384 N.E.2d 1, 5, 23 Ill. Dec. 365 (1977).

 On October 6, 1989, defendant filed its notice of removal, purportedly pursuant to § 501(l) of the Act, 12 U.S.C. § 1441a(l). A status hearing was held on December 7 at which defendant represented that the case had been closed in state court, but that defendant removed the case because of possible reconsideration. The court questioned whether a closed case could be removed, but set a date for defendant's answer to the motion to vacate and a date for plaintiffs' reply. Defendant was also to address the question of removal of a closed case. Defendant did not address that question and its brief also gives no explanation of the state court's ground for granting the Rule 2-615 motion. Plaintiffs did not file a reply.

 Before turning to the merits of the motion to vacate, it must be determined whether this court has jurisdiction over this case. Section ...


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