ILLINOIS’ FIRST DISTRICT DISMISSES APPEAL UPON MOTION FOR FAILURE TO TIMELY PERFECT STAY OF JUDGMENT UNDER SUPREME COURT RULE 305

Earlier this year Wilmington Savings Fund Society, FSB (“Wilmington”) obtained a foreclosure judgment against mortgagor, Pamela M. Moss (“Moss”), and the property was sold to a third party at the foreclosure sale. The lower court confirmed the sale via an order which Moss appealed. Notably, Moss failed to appeal the foreclosure judgment itself. Wilmington moved to dismiss the appeal based on Moss’ failure to appeal the underlying foreclosure judgment and based on her failure to obtain a stay of the judgment, a requirement of Rule 305 since the property sold to a third party. Rule 305 states that failure to obtain a stay of the judgment renders any “reversal or modification of the judgment” ineffective as to the rights of a non-party that obtained an interest in the property after the judgment became final (and before a stay was imposed). Based on this rule, Wilmington, quoting the Illinois Supreme Court, moved to dismiss the appeal explaining there was “no longer any justiciable issue for which an appellate court could grant relief.”[i] The judgment could not be reversed because it was not appealed and reversal of the order confirming the sale would have no effect on the third-party’s newly acquired title to the property under Rule 305. The First District agreed and dismissed the appeal.

[i] Steinbrecher v. Steinbrecher, 197 Ill. 2d 514, 532 (2001).