FOURTH DIVISION March 17, 2016

1-15-0465

MIDFIRST BANK, ) ) Appeal from the Plaintiff-Appellee, ) Circuit Court ) Cook County. v. ) ) DEVITA McNEAL, Individually, ) ) 12 CH 23891 Appellant ) ) (Devita McNeal, as Independent Executor of ) Honorable the Estate of Inez E. McNeal, a/k/a Inez Elese ) Darryl B. Simko McNeal, Deceased; Unknown Owners; ) Judge Presiding. Nonrecord Claimants; and Unknown Occupants, ) Defendants). )

PRESIDING JUSTICE McBRIDE delivered the judgment of the court, with opinion. Justices Howse and Ellis concurred in the judgment and opinion.

OPINION

¶1 Inez Elese McNeal purchased a home located in Chicago in 2003, and subsequently

passed away in 2008. Her mortgage became delinquent and in 2012, her mortgage lender,

MidFirst Bank, filed a complaint to foreclose that mortgage. After Inez Elese McNeal's will was

admitted to probate, MidFirst Bank filed an amended complaint, naming her daughter, Devita

McNeal (Ms. McNeal), as defendant in her capacity as the executor of her mother's estate. The

court entered a judgment of foreclosure, and Ms. McNeal filed several motions to reconsider and

to vacate or set aside that judgment, in both her representative capacity, and later, in her

individual capacity. Those motions were unsuccessful, and Ms. McNeal appeals, contending that No. 1-15-0465

the foreclosure judgment was void because she was not personally named as a defendant in the

proceedings.

¶2 The record shows that on January 9, 2003, MidFirst Bank provided a loan to Inez Elese

McNeal, who executed a note secured by a mortgage on her property located in Chicago. Inez

Elese McNeal passed away on February 18, 2009, and the note fell into default in December

2011. On June 28, 2012, MidFirst Bank filed a complaint in the circuit court of Cook County for

foreclosure pursuant to the Illinois Mortgage Foreclosure Law (735 ILCS 5/15-1101 et seq.

(West 2012)). The complaint named the unknown heirs and/or legatees of Inez Elese McNeal,

deceased, as well as unknown owners, nonrecord claimants, and unknown occupants. On July

13, 2012, a notice of foreclosure lis pendens was recorded against the property.

¶3 On September 26, 2012, MidFirst Bank filed a motion for leave to file an amended

complaint and motion to appoint a special representative for the deceased mortgagor. The

motions were granted, and on October 25, 2012, MidFirst Bank filed an amended complaint

which named Julia Fox as special representative for the estate of Inez Elese McNeal, Sabrina

McNeal and Devita McNeal as heirs, and Devita McNeal as Executor of Inez Elese McNeal's

will. Ms. McNeal, in her capacity as executor, appeared in open court on October 25, 2012, and

was served with summons and the amended complaint on November 3, 2012.

¶4 On December 28, 2012, a probate case was filed for the deceased Inez Elese McNeal. Her

will was admitted to probate on February 27, 2013, and Ms. McNeal was appointed an

independent executor of the estate.

¶5 On July 15, 2013, MidFirst Bank filed a second amended complaint, naming Ms. McNeal

as the independent executor of the Estate of Inez Elese McNeal, as defendant. Ms. McNeal, in

her capacity as executor, filed an answer to the second amended complaint on August 22, 2013.

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¶6 On November 14, 2013, MidFirst Bank filed a motion for summary judgment and motion

for judgment of foreclosure. Ms. McNeal, in her capacity as executor, failed to respond to these

motions, and the court granted them on December 5, 2013.

¶7 On December 18, 2013, Ms. McNeal, as executor, filed a motion to "set aside default ***

judgment of foreclosure" pursuant to section 2-1301 of the Code of Civil Procedure (Code) (735

ILCS 5/2-1301 (West 2012)). The court denied her motion without prejudice on January 7, 2014.

¶8 On February 14, 2014, Ms. McNeal, as executor, filed a "Motion to Reconsider Entry of

Judgment and to Dismiss Complaint to Foreclose Mortgage." In that motion, Ms. McNeal

argued, among other things, that because the property had been left to her in her mother's will,

she was a necessary party to the foreclosure proceedings and a "mortgagor" pursuant to the

Illinois Mortgage Foreclosure Law. She claimed that MidFirst Bank failed to comply with the

requirements to foreclose the mortgage because it had not named her as a party to the

proceedings, rendering the foreclosure decree void. The court denied Ms. McNeal's motion on

May 23, 2014.

¶9 On August 18, 2014, the property was sold pursuant to the terms of the judgment of

foreclosure. The "Selling Officer's Report of Sale and Distribution" was filed with the court on

September 5, 2014, and on September 25, the court entered an order confirming the sale and

granting MidFirst Bank possession of the property as of October 25, 2014.

¶ 10 On October 23, 2014, Ms. McNeal, this time in her individual capacity, filed a motion

under section 2-1203 to set aside void judgment of foreclosure. She argued, among other things,

that she had an ownership interest in the property which vested on the death of her mother, and

that MidFirst Bank's failure to name and serve her rendered the foreclosure decree void. MidFirst

Bank responded to Ms. McNeal's motion, and initially challenged her standing to bring the

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motion because she was not a party to the case and had not sought leave to intervene.

Alternatively, MidFirst Bank pointed out that her motion was essentially a second motion to

reconsider the judgment of foreclosure, and that her arguments were "virtually identical" to the

arguments found in her first motion to reconsider that she filed as executor. MidFirst Bank also

alleged that Ms. McNeal was not a necessary party to the foreclosure proceedings, and, because a

lis pendens had been filed prior to the will being admitted to probate, whatever interest Ms.

McNeal acquired in the property was subject to the pending foreclosure.

¶ 11 The trial court held a hearing on Ms. McNeal's motion on January 12, 2015. After oral

argument, the court stated that it was "certainly a problem that Miss McNeal never actually

sought to intervene in the case," but that the "larger problem" was that "the lis pendens was filed

and the case proceeded" before Ms. McNeal gained an interest in the real estate. The court

denied the motion, and Ms. McNeal, individually, now appeals, contending in this court that the

judgment of foreclosure is void because she was a "known heir" but was not named as a

defendant.

¶ 12 As an initial matter, MidFirst Bank maintains that this court lacks jurisdiction over this

appeal because Ms. McNeal was not a party to the foreclosure proceedings and she lacks

standing to bring this appeal. As an appellate court, we have the duty to consider our jurisdiction

to decide an appeal, and to dismiss the appeal if we find that jurisdiction is lacking. Brentine v.

DaimlerChrysler Corp.,

(2005); Pestka v. Town of Fort Sheridan Co.,

(2007).

¶ 13 In arguing that this court lacks jurisdiction, MidFirst Bank points out that Ms. McNeal,

individually, was not a party to the underlying foreclosure case, and she never sought leave to

intervene in the trial court in her individual capacity. In arguing that this court lacks jurisdiction,

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MidFirst Bank cites Success National Bank v. Specialist Eye Care Center, S.C.,

(1999), in which the Second District dismissed an appeal based on the appellant's lack of

standing to bring it. Ms. McNeal does not contest MidFirst Bank's contention that she was a

nonparty in the trial court, and provides no authority to show that she had standing to file

motions in the court below.

¶ 14 Generally, a person who is not made a party need not and cannot appear in an action

unless the appearance is acquiesced in by the plaintiff, or unless the third person makes himself

or herself a party by some recognized form of proceeding. 6 C.J.S. Appearances § 5 (2015); City

of Chicago v. Chatham Bank of Chicago,

(1964). Likewise, as a general

matter, only parties may bring motions in respect to pleadings. See Conley v. Rust,

(1973); Shanklin v. Hutzler,

(1997); Jackson v. Pioletti,

(1952). Ms. McNeal, however, was not a party to the foreclosure

proceedings and she never sought leave to intervene in the proceedings.

¶ 15 There are specific procedures in place for a nonparty who wishes to intervene in a

proceeding, and Illinois does not recognize intervention by implication. In re Special Prosecutor,

(1987). The general rule for intervention is found in section 2-408 of

the Code, which allows, in certain circumstances, nonparties to intervene in proceedings. 735

ILCS 5/2-408 (West 2012). The statute recognizes that intervention may be either permissive or

of right, but in either circumstance, a timely application to intervene must be made. Id.; Feiertag

v. Reichmann,

(1959). Specifically in the foreclosure context, section

15-1501 allows for a nonparty to intervene in foreclosure proceedings, either by right or in the

court's discretion, depending on the circumstances, up until the time that an order confirming the

sale is entered. 735 ILCS 5/15-1501 (West 2012).

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¶ 16 In this case, Ms. McNeal did not make any attempt to engage in the standard intervention

methods. Ms. McNeal had actual notice of the foreclosure, was a party to the lawsuit as the

independent executor of the estate of Inez Elese McNeal, and first appeared in court on October

25, 2012. As the executor of her mother's estate, Ms. McNeal had been fully able to represent her

own interest as an heir to the property. Indeed, Ms. McNeal did so, by filing an answer and

motions to reconsider the foreclosure judgment and dismiss the complaint in her representative

capacity. The judgment of foreclosure was entered on December 5, 2013, the property was sold

on August 18, 2014, and the order confirming the sale was entered on September 25, 2014. It

was only after the order confirming the sale was entered when Ms. McNeal, individually, moved

to set aside the foreclosure judgment on October 23, 2014. In that motion, Ms. McNeal

attempted to get a second bite of the proverbial apple by raising substantially the same arguments

as she had previously raised as the executor. Ms. McNeal, individually, however, was not a party

to the foreclosure proceedings, and she made no attempt to intervene in the proceedings.

Moreover, at the time she brought the motion in her individual capacity, she was beyond the time

frame during which a timely intervention could have been made. See

¶ 17 As MidFirst Bank points out, Ms. McNeal likely attempted to circumvent the standard

procedures for intervention because, had she actually intervened, the prior judgment would have

applied to her though the application of section 15-1501(e) (735 ILCS 5/15-1501(e) (West 2012).

Specifically, seeking leave to intervene would have subjected Ms. McNeal to the following two

rules: an intervening party "shall be deemed a party from the commencement of the foreclosure,

and the interest of such party in the real estate shall be subject to all orders and judgments

entered in the foreclosure" (735 ILCS 5/15-1501(e)(3) (West 2012)), and "the interest of any

person who is allowed to appear and become a party shall be terminated, and the interest of such

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party in the real estate shall attach to the proceeds of the sale" (735 ILCS 5/15-1501(e)(4) (West

2012)). Instead, Ms. McNeal simply filed a motion in her individual capacity, when she was not

a party to the proceedings. Such practice is not proper, and cannot be condoned.

¶ 18 Although the trial court noted that Ms. McNeal's status as a nonparty may have been "a

problem," it disposed of her motion without considering its authority to do so. See In re Special

Prosecutor,

(1987). The court erred in doing so, as it in fact had no

authority to consider Ms. McNeal's motion.

¶ 19 Ms. McNeal comes before this court as a nonparty as well. See id (when State's Attorney

was not named as a party and made no formal effort to intervene, he came before the appellate

court as a nonparty); see also Scott v. Great Western Coal & Coke Co.,

(1906) (appellant was not party to suit where appellant filed a petition to intervene but failed to

obtain an order granting the petition). In general, a nonparty does not have standing to appeal

from a judgment in the trial court. Stone v. Baldwin,

(1953) ("an appeal by a

person not a party to the record is unauthorized and void"); see also Marino v. Ortiz,

(1988) ("The rule that only parties to a lawsuit, or those that properly become parties,

may appeal an adverse judgment, is well settled." (Citations omitted)). However, our courts have

recognized certain limited situations in which a nonparty may appeal from a judgment.

Specifically, to have standing to bring an appeal, a nonparty must have a "direct, immediate, and

substantial interest in the subject matter, which would be prejudiced by the judgment or

benefitted by its reversal." (internal quotation marks omitted.) Success National Bank,

; In re Special Prosecutor,

. Ms. McNeal agrees that she is a

nonparty in this appeal, but contends that as a nonparty, she has standing to bring this appeal

because she "has an interest in the subject property" as it was "bequeathed to her by her mother"

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and she "has been residing in the property." MidFirst Bank, however, points out that the estate of

Inez Elese McNeal was never administered and completed, arguing that her interest "as a

potential heir is indirect, contingent, and tenuous."

¶ 20 Regardless of whether Ms. McNeal has standing to appeal in her individual capacity, her

standing, or lack thereof, is not the dispositive issue on appeal. See Lebron v. Gottlieb Memorial

Hospital,

(2010); Greer v. Illinois Housing Development Authority,

(1988) (holding that standing in Illinois is not a bar to jurisdiction). As stated

previously, as an appellate court, we have the duty to consider our jurisdiction to decide an

appeal, and to dismiss the appeal if we find that jurisdiction is lacking. Brentine,

; Pestka,

. Ultimately, we agree with MidFirst Bank that this court

lacks jurisdiction to hear this case, but for a different reason. We lack jurisdiction over this

appeal because the order from which Ms. McNeal appeals was not a final judgment, and Ms.

McNeal has provided no alternative basis which would allow this court to exercise jurisdiction

over her appeal.

¶ 21 In her jurisdictional statement, Ms. McNeal claims that this court's jurisdiction is based

on article VI, section 6 of the Illinois Constitution (Ill. Const. 1970, art. I, § 6), and Illinois

Supreme Court Rules 304(a) and 304(b) (eff. Feb. 26, 2010). We find nothing in either the

Illinois Constitution or Rule 304 which would allow this court to exercise jurisdiction over this

appeal.

¶ 22 Pursuant to article VI, section 6 of the Illinois Constitution, this court's jurisdiction

encompasses final judgments, orders, or decrees. Ill. Const. 1970, art. VI, § 6. This court,

however, is without jurisdiction to review judgments, orders or decrees which are not final,

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except as provided by supreme court rule. Id.; Almgren v. Rush-Presbyterian-St. Luke's Medical

Center,

(1994).

¶ 23 A judgment or order is final and appealable if it terminates the litigation between the

parties on the merits, and sets, fixes, or disposes of the rights of the parties, whether upon the

entire controversy or upon some definite and separate part thereof, so that if the judgment or

order is affirmed, the trial court need only execute it. In re A.H.,

(2003);

Kellerman v. Crowe,

(1987). " 'The ultimate question to be decided in each

case is whether the judgment fully and finally disposes of the rights of the parties to the cause so

that no material controverted issue remains to be determined.' " Wilkey v. Illinois Racing Board,

(1983) (quoting Cory Corp. v. Fitzgerald,

(1949)).

¶ 24 In this case, Ms. McNeal individually was not a party to the foreclosure proceedings.

There was no controversy, lawsuit or litigation between her and MidFirst Bank, and the court's

denial of Ms. McNeal's section 2-1203 motion did not terminate any litigation between the

parties on the merits or dispose of the rights of the parties. The ruling could do nothing to fix or

dispose of the rights of the parties. Instead, Ms. McNeal's motion amounted to a nullity: this is

simply a case of a nonparty coming before the court and improperly filing a motion without

intervening in the proceedings. The fact that the trial court ruled on that motion cannot turn that

order into a final appealable judgment. Because the order denying Ms. McNeal's motion lacks all

the necessary prerequisites of a final judgment, it is not appealable and this court lacks

jurisdiction over it. Ill. Const. 1970, art. VI, § 6; Ill. S. Ct. R. 301 (eff. Feb. 1, 1994).

¶ 25 Ms. McNeal's alternative theories of jurisdiction under Supreme Court Rules 304(a) and

304(b) fare no better. Supreme Court Rule 304(a) provides that, in an action involving multiple

claims for relief, “an appeal may be taken from a final judgment as to one or more but fewer than

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all of the *** claims only if the trial court has made an express written finding that there is no

just reason for delaying either enforcement or appeal or both.” Ill. S. Ct. R. 304(a) (eff. Feb. 26,

2010). In other words, Supreme Court Rule 304(a) allows interlocutory appeals in cases when

the trial court expressly certifies an issue for appellate review. Ms. McNeal has made no claim

that a Rule 304(a) certification exists, and our review of the record discloses no such

certification. Moreover, even if such certification did exist, the order from which Ms. McNeal

attempts to appeal was not final, and the trial court in fact could not have entered a Rule 304(a)

finding in this case. While Rule 304(a) permits appeals from orders which do not dispose of an

entire proceeding, the mere inclusion of Rule 304(a) language cannot make a nonfinal order final

and appealable. Blott v. Hanson,

(1996) (a Rule 304(a) finding does

not make a nonfinal order appealable, rather it makes a final order appealable despite pending

other claims or parties); Viirre v. Zayre Stores, Inc.,

(1991) (entering

Rule 304(a) language does not make an order final and appealable if the order was not in fact

final).

¶ 26 Ms. McNeal also cites Supreme Court Rule 304(b) as providing this court with

jurisdiction over her appeal. That rule provides:

"The following judgments and orders are appealable without the

finding required for appeals under paragraph (a) of this rule:

(1) A judgment or order entered in the administration of an

estate, guardianship, or similar proceeding which finally

determines a right or status of a party.

(2) A judgment or order entered in the administration of a

receivership, rehabilitation, liquidation, or other similar proceeding

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which finally determines a right or status of a party and which is

not appealable under Rule 307(a).

(3) A judgment or order granting or denying any of the

relief prayed in a petition under section 2-1401 of the Code of

Civil Procedure.

(4) A final judgment or order entered in a proceeding under

section 2-1402 of the Code of Civil Procedure.

(5) An order finding a person or entity in contempt of court

which imposes a monetary or other penalty.

(6) A custody judgment entered pursuant to the Illinois

Marriage and Dissolution of Marriage Act (750 ILCS 5/101 et

seq.) or section 14 of the Illinois Parentage Act of 1984 (750 ILCS

45/14); or a modification of custody entered pursuant to section

610 of the Illinois Marriage and Dissolution of Marriage Act (750

ILCS 5/610) or section 16 of the Illinois Parentage Act of 1984

(750 ILCS 45/16)." Ill. S. Ct. R. 304(b) (eff. Feb. 26, 2010).

¶ 27 Ms. McNeal does not indicate which Rule 304(b) subsection applies to her case, or

indicate how it is applicable. We can glean no relevance or applicability of any subsection to the

case at bar. We thus have no jurisdiction over this appeal and must dismiss it.

¶ 28 Finally, to the extent that Ms. McNeal claims to be appealing from a final order entered

between MidFirst Bank and her mother's estate, i.e., the order confirming sale (see EMC

Mortgage Corp. v. Kemp,

), this appeal must also be dismissed because her

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notice of appeal from that order was untimely. An untimely notice of appeal does not vest

jurisdiction in this court. E.g., McCorry v. Gooneratne,

(2002).

¶ 29 Supreme Court Rule 303 mandates that a notice of appeal must be filed within 30 days of

a final order, unless a “timely posttrial motion directed against the judgment is filed.” Ill. S. Ct.

R. 303(a)(1) (eff. May 30, 2008). In that event, the notice of appeal is due “within 30 days after

the entry of the order disposing of the last pending postjudgment motion directed against that

judgment or order.”

¶ 30 The only final order or judgment in this case was the order confirming sale, which was

entered on September 25, 2014. See EMC Mortgage Corp. v. Kemp,

("[I]t

is the order confirming the sale, rather than the judgment of foreclosure, that operates as the final

and appealable order in a foreclosure case."). We flatly reject any suggestion that Ms. McNeal's

section 2-1203 motion, filed on October 23, 2014, and eventually denied on January 12, 2015,

was a timely posttrial motion which would toll the time period so that a notice of appeal was not

due until 30 days from the denial of her motion.

¶ 31 Ms. McNeal claimed to file her motion under section 2-1203 of the Code (735 ILCS 5/2-

1203 (West 2012)), which provides that "[i]n all cases tried without a jury, any party may, within

30 days after the entry of the judgment *** file a motion for a rehearing, or a retrial, or

modification of the judgment or to vacate the judgment or for other relief." (Emphasis added.)

Although a motion filed pursuant to section 2-1203 would generally qualify as a postjudgment

motion under Rule 303 (Marsh v. Evangelical Covenant Church of Hinsdale,

(1990) (holding that for a motion in a nonjury case to qualify as a posttrial motion within the

meaning of Rule 303(a)(1), “one or more of the types of relief specified in section 2-1203 [of the

Code (Ill. Rev. Stat. 1987, ch. 110, ¶ 2-1203)] must be specifically requested”), by its express

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terms, section 2-1203 applies only to parties, and does not allow nonparties to move for

postjudgment relief.

As stated previously, the motion Ms. McNeal filed individually was a

nullity. It was not a proper postjudgment motion which would extend the time period for filing a

notice of appeal to 30 days after the order disposing of it. Although we recognize that Ms.

McNeal filed a notice of appeal within 30 days of the denial of her motion, her erroneous filing

of the motion did not extend the time frame for appealing. Instead, a notice of appeal from the

order confirming the sale was due on October 25, 2014—30 days after it was entered. Ms.

McNeal, however, did not file a notice of appeal until February 10, 2015. That notice of appeal

was untimely and does not vest this court with jurisdiction over this appeal.

¶ 32 For the reasons stated, we dismiss appellant's appeal for lack of jurisdiction.

¶ 33 Appeal dismissed.

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