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Norwest Mortgage, Inc. v. Ozuna

December 28, 1998

NORWEST MORTGAGE, INC., A CALIFORNIA CORPORATION, PLAINTIFF-APPELLEE,
v.
MARIA OZUNA AND UNKNOWN OCCUPANTS, DEFENDANTS (MICHAEL F. SHEAHAN, SHERIFF OF COOK COUNTY, CONTEMNOR-APPELLANT). MIDLAND MORTGAGE COMPANY, PLAINTIFF-APPELLEE,
v.
EMMER WILLIS, ZETTIE WILLIS, SHEILA WILLIS AND UNKNOWN OCCUPANTS, DEFENDANTS (MICHAEL F. SHEAHAN, SHERIFF OF COOK COUNTY, CONTEMNOR-APPELLANT). MELLON MORTGAGE COMPANY, PLAINTIFF-APPELLEE,
v.
DEREK VAUGHN, ROBIN VAUGHN, JOSEPH VAUGHN AND UNKNOWN OCCUPANTS, DEFENDANTS (MICHAEL F. SHEAHAN, SHERIFF OF COOK COUNTY, CONTEMNOR-APPELLANT).



Appeals from the Circuit Court of Cook County. No. 98 M1 705646 No. 98 M1 707919 No. 98 M1 708374 Honorable Willie M. Whiting, Judge Presiding.

The opinion of the court was delivered by: Presiding Justice Hourihane

Contemnor Michael F. Sheahan, sheriff of Cook County, appeals from orders of the circuit court adjudging him in contempt for refusing to execute certain orders for possession entered in favor of plaintiffs Norwest Mortgage, Inc., Midland Mortgage Company and Mellon Mortgage Company. On appeal, contemnor contends that (1) the aforementioned orders for possession were void ab initio, (2) those same orders were otherwise unenforceable and (3) his refusal to execute was not contemptuous in light of a federal court injunction enjoining enforcement of orders for possession directed against generically-named defendants in mortgage foreclosure actions. *fn1

For the reasons that follow, we affirm in part and reverse in part.

BACKGROUND

In 1996 and 1997, plaintiffs initiated mortgage foreclosure actions, in federal court, against defendants Maria Ozuna, Emmer Willis, Elaine Holland and unknown occupants. Judgments of foreclosure were subsequently entered, and the underlying properties were sold to plaintiffs at auction. Following approval of the aforementioned sales, plaintiffs commenced forcible entry and detainer actions in the circuit court of Cook County. Those actions were directed against "Maria Ozuna and Unknown Occupants," "Emmer Willis, Zettie Willis, Sheila Willis and Unknown Occupants," and "Derek Vaughn, Robin Vaughn, Joseph Vaughn and Unknown Occupants," respectively. As to all specifically-named defendants, service of process was duly had.

On April 3, 9 and 13, 1998, orders for possession were entered against defendants and unknown occupants.

However, shortly thereafter, plaintiffs were notified by contemnor that he would not execute the aforementioned orders. According to contemnor, he was precluded from doing so pursuant to an injunction entered in the federal case of Rembert v. Sheahan, 92 C 67, a section 1983 action brought against him in the United States District Court for the Northern District of Illinois which forbid his enforcement of orders for possession against generically-described defendants in mortgage foreclosure actions.

Plaintiffs responded with motions to find contemnor in contempt and to compel his execution of the orders for possession. A hearing followed. Therein, the circuit court found that the Rembert injunction did not apply to forcible entry and detainer actions, and therefore, contemnor was in contempt for refusing to execute the aforementioned orders.

Contemnor appealed shortly thereafter.

DISCUSSION

I.

Amici curiae contend that these consolidated appeals are moot and, in support thereof, have included affidavits from Maria Ozuna, Emmer Willis and Derek Vaughn, each of which avers that no occupants unknown to plaintiff currently reside in the premises at issue.

Contemnor and plaintiffs do not disagree with the substance of those affidavits, but argue that a substantial public interest justifies review of these consolidated appeals.

An appeal is moot where no actual controversy exists or where it is impossible for a court to grant effectual relief. Dixon v. Chicago & North Western Transportation Co., 151 Ill. 2d 108, 116, 601 N.E.2d 704 (1992). In such instances, review is normally precluded. Dixon, 151 Ill. 2d at 116. However, several exceptions to the mootness doctrine exists, one of which concerns appeals of issues of substantial public interest. In re E.G., 133 Ill. 2d 98, 105, 549 N.E.2d 322 (1989); In re Estate of Brooks, 32 Ill. 2d 361, 364-65, 205 N.E.2d 435 (1965); People ex rel. Wallace v. Labrenz, 411 Ill. 618, 622-23, 104 N.E.2d 769 (1952). Whether an appeal merits inclusion within that exception requires a court to determine the public or private nature of the contention, ...


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