Associated Bank, National Ass'n v. Smith

2025 IL App (4th) 241513-U

• Court: Appellate Court of Illinois
• Decided: August 20, 2025
• Docket: 4-24-1513
• Status: Unpublished

Opinion

2025 IL App (4th) 241513-U NOTICE This Order was filed under NO. 4-24-1513 FILED Supreme Court Rule 23 and is August 20, 2025 not precedent except in the Carla Bender IN THE APPELLATE COURT limited circumstances allowed 4th District Appellate under Rule 23(e)(1). Court, IL OF ILLINOIS

FOURTH DISTRICT

ASSOCIATED BANK, NATIONAL ASSOCIATION, ) Appeal from the Plaintiff-Appellee, ) Circuit Court of v. ) Macoupin County ROBERT L. SMITH, as Independent Administrator of ) No. 24FC3 the Estate of Thomas F. Topal, a/k/a Thomas Topal, ) Deceased; TINA MARIE BROKAW; PATRICIA ANN ) NEWELL; MICHAEL TIMOTHY TOPAL; JOSEPH ) VARADY; ROBERT L. SMITH, as Independent ) Administrator of the Estate of Catherine M. Petrak; ) CHANNING S. PETRAK; JODY K. PETRAK, ) UNKNOWN HEIRS AND DEVISEES OF THOMAS F. ) TOPAL, Deceased; UNKNOWN CLAIMANTS AND ) LIENHOLDERS AGAINST THE ESTATE OF ) THOMAS F. TOPAL, Deceased; and UNKNOWN ) CLAIMANTS AND LIENHOLDERS AGAINST THE ) UNKNOWN HEIRS AND DEVISEES OF THOMAS F. ) TOPAL, Deceased, ) Defendants ) ) (Robert L. Smith, as Independent Administrator of the ) Honorable Estate of Thomas F. Topal, a/k/a Thomas Topal, ) Allison S. Lorton, Deceased, Defendant-Appellant). ) Judge Presiding.

JUSTICE DOHERTY delivered the judgment of the court. Presiding Justice Harris and Justice DeArmond concurred in the judgment.

ORDER

¶1 Held: An order dismissing an affirmative defense is not a final order and is not made appealable by an Illinois Supreme Court Rule 304(a) (eff. Mar. 8, 2016) finding. Similarly, because the counterclaim at issue here sought relief substantially the same as that being sought in the foreclosure action, the circuit court’s order dismissing it does not resolve a distinct portion of the case. Consequently, the appellate court lacks jurisdiction over the appeal. ¶2 Associated Bank, National Association (Associated Bank), filed a foreclosure

action against defendant Robert L. Smith, as independent administrator of the estate of Thomas F.

Topal, a/k/a Thomas Topal, deceased (Estate), and various other defendants regarding residential

property formerly owned by Thomas F. Topal and now a part of his estate.

¶3 The circuit court granted Associated Bank’s motion to dismiss defendant’s

affirmative defenses to the complaint and his counterclaim and entered a finding pursuant to

Illinois Supreme Court Rule 304(a) (eff. Mar. 8, 2016) as to both orders. Defendant now seeks to

reverse the two dismissal orders.

¶4 We dismiss for lack of jurisdiction.

¶5 I. BACKGROUND

¶6 A. Underlying Facts

¶7 In April 2012, decedent Thomas F. Topal owned residential property subject to a

mortgage held by Associated Bank. Decedent passed away in 2017. Associated Bank did not file

a foreclosure action within two years of decedent’s death, nor did it file a claim in his probate

estate in that time, as none had yet been opened. After an estate was opened for decedent, it moved

to bar all claims held by Associated Bank arising out of the mortgage based on the two-year

limitations period set forth in section 18-12(b) of the Probate Act of 1975 (Probate Act) (755 ILCS

5/18-12(b) (West 2016)). The circuit court, finding that no claims or foreclosure action had been

filed prior to the expiration of the two-year period, granted the Estate’s motion. It then ordered

Associated Bank to provide the Estate with a written release of its mortgage, which the Estate

would then pay to record.

¶8 B. Prior Appeal

¶9 On appeal, this court affirmed the circuit court’s finding that Associated Bank’s

-2- claims against the Estate were time-barred under section 18-12(b) of the Probate Act but reversed

the court’s remaining findings, holding that Associated Bank could file a separate foreclosure

action against the property but that its recovery was limited to the proceeds from the foreclosure

sale. In re Estate of Topal, 2022 IL App (4th) 210613, ¶¶ 20, 28. Should the sale result in a

deficiency, it would not be recoverable from the Estate. Id. ¶ 28.

¶ 10 C. Subsequent Foreclosure Action

¶ 11 In January 2024, Associated Bank filed a foreclosure action against the Estate and

others, including Tina Marie Brokaw, Patricia Ann Newell, Michael Timothy Topal, Joseph

Varady, Robert L. Smith, as independent administrator of the estate of Catherine M. Petrak,

Channing S. Petrak, Jody K. Petrak, unknown heirs and devisees of Thomas F. Topal, Deceased,

unknown claimants and lienholders against the Estate, and unknown claimants and lienholders

against the unknown heirs and devisees of Thomas F. Topal, deceased, seeking sale of the property

and satisfaction of its outstanding mortgage, which was subsequently amended. The amended

complaint requested that a judgment of foreclosure be entered, that the property be sold, and that

the lien be satisfied. It also asked for attorney fees and costs. Defendant moved to dismiss the

amended complaint, raising multiple defenses, including lack of jurisdiction, timeliness, laches,

condition precedent, standing, and estoppel. The motion to dismiss was denied.

¶ 12 Thereafter, defendant filed an answer, raising five affirmative defenses (several of

the same claims that served as grounds for his previous motion to dismiss) and a counterclaim

under section 20-6(b) of the Probate Act (755 ILCS 5/20-6(b) (West 2024)), seeking the sale of

property and asking that proceeds of the sale be used to satisfy the mortgage lien. Section 20-6(b)

provides that a court may, “in any proceeding to sell or mortgage real estate,”

“direct the sale or mortgage of the property free of all mortgage, judgment or other

-3- liens that are due, provide for the satisfaction of all those liens out of the proceeds

of the sale or mortgage and settle and adjust all equities and all questions of priority

among all interested persons.” Id.

¶ 13 Associated Bank moved to dismiss the counterclaim and the affirmative defenses.

¶ 14 On October 30, 2024, the circuit court dismissed the counterclaim and affirmative

defenses. Concerning the affirmative defenses, the court found the first affirmative defense (lack

of jurisdiction) was “legally and factually insufficient, as this court has determined that jurisdiction

is proper, and [defendant’s] claims to the contrary are without merit and controlling authority.”

The second affirmative defense (statute of limitations) was found “legally and factually

insufficient, as it [is] simply an attempt to relitigate the Plaintiff’s claim in 20 P 105.” The court

found the third affirmative defense (laches) and the fifth affirmative defense (estoppel) were

legally and factually insufficient and concluded that the fourth affirmative defense (condition

precedent) was “not a proper affirmative defense.”

¶ 15 Concerning the counterclaim, the circuit court concluded that defendant “faile[d]

to state a legally sufficient cause of action that would afford [defendant] such relief. The court then

stated that its order was “final and appealable *** with respect to dismissal with prejudice” of the

affirmative defenses and counterclaim and that there was “no just reason to delay enforcement or

appeal thereof.”

¶ 16 This appeal followed.

¶ 17 II. ANALYSIS

¶ 18 On appeal, defendant challenges the circuit court’s orders dismissing his

affirmative defenses and also his counterclaim. While neither of the parties has questioned this

court’s appellate jurisdiction, we have a duty to sua sponte determine whether we have jurisdiction

-4- to decide the issues presented. In re Estate of Devey, 239 Ill. App. 3d 630, 632 (1993); Cangemi

v. Advocate South Suburban Hospital, 364 Ill. App. 3d 446, 453 (2006). Here, defendant asserts

this court has jurisdiction over the underlying orders under Illinois Supreme Court Rules 304(a)

and 304(b)(1). Ill. S. Ct. R. 304(a), 304(b)(1) (eff. Mar. 8, 2016). We now examine those

contentions.

¶ 19 A. Jurisdiction

¶ 20 Generally, an appellate court has jurisdiction to review only final judgments,

orders, or decrees. Ill. S. Ct. R. 301 (eff. Feb. 1, 1994); Almgren v. Rush-Presbyterian-St. Luke’s

Medical Center, 162 Ill. 2d 205, 210 (1994).

“A judgment or order is final for purposes of appeal if it disposes of the rights of

the parties, either on the entire case or on some definite and separate part of the

controversy, and, if affirmed, the only task remaining for the trial court is to proceed

with execution of the judgment.” Brentine v. DaimlerChrysler Corp., 356 Ill. App.

3d 760, 765 (2005).

¶ 21 1. Rule 304(a)

¶ 22 However, even a final judgment or order is not necessarily immediately appealable.

Rule 304(a) provides:

“If multiple parties or multiple claims for relief are involved in an action, an appeal

may be taken from a final judgment as to one or more but fewer than all of the

parties or 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. *** In the

absence of such a finding, any judgment that adjudicates fewer than all the claims

or the rights and liabilities of fewer than all the parties is not enforceable or

-5- appealable and is subject to revision at any time before the entry of a judgment

adjudicating all the claims, rights, and liabilities of all the parties.” Ill. S. Ct. R.

304(a) (eff. Mar. 8, 2016).

¶ 23 A court “cannot make a nonfinal order appealable simply by including language

that complies with Rule 304(a).” In re Estate of Rosinski, 2012 IL App (3d) 110942, ¶ 22; see In re

Estate of Stark, 374 Ill. App. 3d 516, 522 (2007).

¶ 24 2. Rule 304(b)(1)

¶ 25 Defendant’s brief suggests that jurisdiction exists pursuant to Rule 304(b)(1),

which permits an interlocutory appeal in cases involving “[a] judgment or order entered in the

administration of an estate *** or other similar proceeding which finally determines a right or

status of a party.” Ill. S. Ct. R. 304(b)(1) (eff. Mar. 8, 2016). The instant action is for a mortgage

foreclosure, and it does not involve the “administration” of an estate.

¶ 26 With these principles in mind, we now turn to the two orders in question.

¶ 27 B. Dismissal of the Affirmative Defenses

¶ 28 It is well settled that an order striking or dismissing an affirmative defense is not a

final order, even if that order is accompanied by language complying with Rule 304(a). In Smith

v. Interstate Fire & Casualty Co., 47 Ill. App. 3d 555, 558 (1977), the court concluded that it

lacked jurisdiction to review an order striking an affirmative defense, despite the fact that the order

included a finding of appealability pursuant to Rule 304(a). The court reasoned that the circuit

court still had before it “a determination of the possible liability of [defendant] to plaintiff. The

striking of the affirmative defense did not end the controversy between those parties, thus this

court has no jurisdiction to review the order to strike.” Id. Similarly, in Shelton v. Andres, 122 Ill.

App. 3d 1089, 1093 (1984), the court concluded that an order striking a defendant’s affirmative

-6- defenses “was not final because it did not determine the litigation on its merits so that, if affirmed,

the only thing remaining would be to proceed with execution on the order.”

¶ 29 In this case, the circuit court’s dismissal of the affirmative defenses leaves the

underlying foreclosure claim unresolved but further leaves unaffected defendant’s ability to defend

the claim. Thus, while the court’s dismissal of the affirmative defenses removed potential bars to

Associated Bank’s recovery, it did not make a finding of liability on the underlying claim and did

not impair defendant’s ability to defend that claim on its merits. Rule 304(a) deals specifically

with “claims for relief,” and affirmative defenses are simply not claims.

¶ 30 We also note that, as in Smith, the presence of Rule 304(a) language does not alter

our conclusion. A court cannot convert an otherwise nonfinal order into a final and appealable

order simply by the inclusion of Rule 304(a)’s language. Stark, 374 Ill. App. 3d at 522. An order

striking or dismissing an affirmative defense is not a final order and is not appealable even if that

order is accompanied by language complying with Rule 304(a). See e.g., Blackhawk Building,

LLC v. Stanton, 2022 IL App (2d) 210452-U, ¶ 71 (“[A]n order striking or dismissing an

affirmative defense is not a final order and is not appealable even if the order is accompanied by a

Rule 304(a) finding.”); see also Shelton, 122 Ill. App. 3d at 1093.

¶ 31 We also find that defendant cannot rely on the language of Rule 304(b)(1), which

allows for an appeal from a final order without the necessity of subparagraph (a)’s special language

where the order is entered in the administration of an estate “or other similar proceeding which

fully determines the right or status of a party.” Ill. S. Ct. R. 304(b)(1) (eff. Mar. 8, 2016). Here,

the affirmative defenses were raised in response to plaintiff’s foreclosure action and, therefore, the

dismissal order is not “[a] judgment or order entered in the administration of an estate *** or other

similar proceeding.” Id.; see Smith v. Goldstick, 110 Ill. App. 3d 431, 437 (1982) (Rule 304(b) “is

-7- applicable only to judgments or orders entered in the administration of an estate *** or other

similar proceeding. Since the present action is not within the proceedings specified, Rule 304(b)

is inapplicable.”).

¶ 32 We conclude, therefore, that we lack jurisdiction to hear the appeal from the order

dismissing the affirmative defenses.

¶ 33 C. Dismissal of the Counterclaim

¶ 34 Under certain circumstances, an order dismissing a counterclaim may be

considered a final order subject to interlocutory appeal under Rule 304(a). See, e.g., Chicago

Miniature Lamp Works, Inc. v. D’Amico, 78 Ill. App. 3d 269, 273 (1979). However, central to that

conclusion is a finding that the order in question disposes of a distinct claim and is not merely a

rehashing of the underlying claim under a different name. Defendant’s counterclaim, premised on

section 20-6(b) of the Probate Act (755 ILCS 5/20-6(b) (West 2024)), asks for the sale of the

property and satisfaction of all outstanding liens against it, which is the essence of the underlying

foreclosure action. Relief cannot be granted on one without deciding the other.

¶ 35 We find support in Blumenthal v. Brewer, 2016 IL 118781, ¶¶ 25-26, where the

supreme court held that an order dismissing a counterclaim was not final because the counterclaims

sought the same relief as the underlying complaint and the court’s dismissal of counterclaims did

not dispose of the rights of the parties as to the issues raised. As the Blumenthal court explained,

“Although the circuit court in this case made the written finding required by Rule 304(a), that

finding is not dispositive,” because “[b]y its terms, Rule 304(a) applies only to final judgments or

orders.” Id. ¶ 24. According to the supreme court:

“Counts I, II, IV, and V arose from the same set of operative facts and sought

precisely the same thing as the underlying cause of action asserted by Blumenthal:

-8- division of the value of the parties’ Chicago home. Rather than being distinct and

separate from Blumenthal’s action, these counts merely advanced different

analytical approaches for determining how the home or its proceeds should be

allocated between the parties. They were, in effect, different iterations of the very

same claim. When they were dismissed, the ultimate question—how the value of

the residence should be split—remained unresolved. The dismissal served only to

narrow the criteria applicable to that decision.” Id. ¶ 26.

¶ 36 Moreover, the court stated, “[W]here an order disposes only of certain issues

relating to the same basic claim, such a ruling is not subject to review under Rule 304(a).” Id. ¶ 27.

Indeed, “permitting separate appeals of such orders promotes precisely the type of piecemeal

appeals Rule 304(a) was designed to discourage.” Id.; see In re Marriage of Leopando, 96 Ill. 2d

114, 119-20 (1983)). The court found that, “[b]ased on this reasoning, the portion of the circuit

court’s order dismissing counts I, II, IV, and V of Brewer’s counterclaim was not appealable under

Rule 304(a).” Blumenthal, 2016 IL 118781, ¶ 27.

¶ 37 Similarly, in this case, defendant’s counterclaim, based on section 20-6(b) of the

Probate Act (755 ILCS 5/20-6(b) (West 2024)), sought to have the property sold and all liens

satisfied. For all intents and purposes, this is the same relief sought by the underlying foreclosure

claim. As in Blumenthal, “[t]hey were, in effect, different iterations of the very same claim.”

Blumenthal, 2016 IL 118781, ¶ 26. An order is considered final and appealable for purposes of

Rule 304(a) if it terminates the litigation between the parties on the merits or disposes of the rights

of the parties, either on the entire controversy or a separate and definite part thereof. Id. ¶ 25. The

order dismissing the counterclaim does not meet this threshold because the circuit court could still

grant the desired relief as part of Associated Bank’s underlying foreclosure claim. Thus, the order

-9- dismissing defendant’s counterclaim is not final and Rule 304(a) cannot apply.

¶ 38 For the same reasons as stated above, we conclude that Rule 304(b)(1) is not

applicable in this mortgage foreclosure action. Although the counterclaim may assert rights

granted under the Probate Act, it does not transform a civil action for mortgage foreclosure into an

action involving the “administration of an estate.” Ill. S. Ct. R. 304(b)(1) (eff. Mar. 8, 2016).

¶ 39 Therefore, we conclude that we also lack jurisdiction over the appeal of the

dismissal of defendant’s counterclaim.

¶ 40 III. CONCLUSION

¶ 41 For the reasons stated, we dismiss the instant appeal for lack of jurisdiction.

¶ 42 Appeal dismissed.

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