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Federal National Mortgage Association v. Tomei

Court of Appeals of Illinois, Second District

April 25, 2014

FEDERAL NATIONAL MORTGAGE ASSOCIATION, Plaintiff-Appellee,
v.
MYRIAM P. TOMEI, Defendant-Appellant (Mortgage Electronic Registration Systems, Inc., as Nominee for Pinnacle Financial Corporation, d/b/a Great Lakes Home Mortgage, and Unknown Owners and Nonrecord Claimants, Defendants)

Appeal from the Circuit Court of Lake County. No. 11-CH-4698. Honorable Margaret A. Marcouiller, Judge, Presiding.

Appeal dismissed.

SYLLABUS

Defendant's appeal from the trial court's grant of plaintiff's motion to vacate the dismissal of its mortgage foreclosure action for want of prosecution was dismissed for lack of jurisdiction, since plaintiff alleged that the motion was filed under section 2-1401 of the Code of Civil Procedure, but the motion was effectively brought under section 2-1301(e) of the Code, and the appellate court lacked jurisdiction pursuant to Supreme Court Rule 304(b)(3); furthermore, jurisdiction was lacking pursuant to Rule 301 due to the fact that the dismissal order was not final and appealable

Robert J. Tomei, Jr., of Tomei Law, of Gurnee, for appellant.

Rebecca M. Reyes, of Johnson, Blumberg & Associates, LLC, of Chicago, for appellee.

PRESIDING JUSTICE BURKE delivered the judgment of the court, with opinion. Justices McLaren and Hudson concurred in the judgment and opinion.

OPINION

BURKE, PRESIDING JUSTICE

Page 1202

[¶1] This residential mortgage foreclosure action was brought by plaintiff, Federal National Mortgage Association, against defendants, Myriam P. Tomei, Mortgage Electronic Registration Systems, Inc., as nominee for Pinnacle Financial Corp., d/b/a Great Lakes Home Mortgage, and unknown owners and nonrecord claimants. Tomei (defendant) appeals the trial court's judgment granting plaintiff's " motion," which plaintiff alleged was pursuant to section 2-1401 of the Code of Civil Procedure (Code) (735 ILCS 5/2-1401 (West 2012)), to vacate the dismissal of the case for want of prosecution (DWP). Defendant argues on appeal that the section 2-1401 motion was insufficient as a matter of law because plaintiff did not support it by affidavit or overcome the due diligence requirement. Plaintiff responds that we lack jurisdiction to address the appeal, because the section 2-1401 motion was effectively a motion pursuant to section 2-1301(e) of the Code (735 ILCS 5/2-1301(e) (West 2012)) and the order granting the section 2-1301(e) motion was not a final and appealable order. We dismiss the appeal for the following reasons.

[¶2] I. BACKGROUND

[¶3] Plaintiff filed the foreclosure action on October 19, 2011, alleging that defendant had not paid the monthly installments of principal, interest, taxes, and/or insurance since March 2011. On November 9, 2012, the matter was set for a status hearing and, when plaintiff failed to appear, the trial court entered an order of DWP. Also, on the same date, defendant filed for debt relief under chapter 7 of the United States Bankruptcy Code. She received a chapter 7 discharge order on February 20, 2013.

[¶4] On April 19, 2013, after the bankruptcy stay was lifted, plaintiff filed a " Motion to Vacate Dismissal for Want of Prosecution." In the motion, plaintiff cited a " docketing error" as a basis for its absence at the November 9, 2012, status call. Plaintiff requested that the court, pursuant to section 2-1401(a) of the Code, enter an order vacating the DWP. Plaintiff did not attach to the motion an accompanying affidavit attesting to the veracity of matters not of record.

[¶5] Defendant filed a motion to dismiss plaintiff's motion, pursuant to section 2-619 of the Code (735 ILCS 5/2-619 (West 2012)). Defendant did not contest the timing of the filing of the section 2-1401 motion. Rather, defendant argued that the section 2-1401 motion was defective.[1] Defendant noted facial defects of the pleadings and the failure to attach an accompanying affidavit attesting to matters not of record, and defendant cited Illinois case law ...


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