Sections 2-1301 and 2-1401 have different time frames, different standards, and different appellate jurisdiction implications

This mortgage foreclosure action was dismissed for want of prosecution when the plaintiff failed to appear at a status hearing. On the same day, the defendant filed for bankruptcy. She received a bankruptcy discharge about 3 months later. After the bankruptcy stay was lifted, the plaintiff filed a motion to vacate the DWP pursuant to 735 ILCS 5/2-1401(a). The trial court entered an order stating that the DWP is vacated “for the reasons set forth in open court, including consideration of the bankruptcy and all other circumstances of the case.” There is no transcript of the hearing in the record, so it is not clear on what statutory authority the court relied. Within 30 days after the order vacating the DWP, the defendant filed a notice of appeal pursuant to Illinois Supreme Court Rule 304(b)(3).

A DWP is usually an interlocutory order for a year after the court enters it because 735 ILCS 5/13-217 grants a plaintiff a year to refile after entry of a DWP even if the statute of limitations has run. The DWP becomes final and appealable when the refiling period pursuant to §13-217 expires.

Under 735 ILCS 5/2-1301(e), a court may, “before final order or judgment, set aside any default, and may on motion filed within 30 days after entry thereof set aside any final order or judgment upon any terms and conditions that shall be reasonable.” Therefore, a DWP is subject to vacatur under §2-1301(e) up to 395 days after it is entered – that is, 365 days during which refiling is permitted plus 30 days after the DWP becomes final. Vacatur under §2-1301 is entirely within the trial court’s discretion. Such a decision is not immediately appealable because it is not a final order and no supreme court rule permits an interlocutory appeal.

In this case, however, the plaintiff filed a motion pursuant to 735 ILCS 5/2-1401. Section 2-1401 sets forth several criteria that the movant must meet to prevail, including a meritorious claim or defense and due diligence. An order grating or denying a motion under §2-1401 is immediately appealable pursuant to Illinois Supreme Court Rule 304(b)(3).

Notwithstanding the label, the appellate court determined that the motion was effectively brought under §2-1301 and not under §2-1401. (Indeed, why would one voluntarily subject one’s self to the more difficult standard of §2-1401 when §2-1301(e) offers a less difficult route to the same result?) Citing the principle that the character of a filing should be determined by its content and not its label, the appellate court determined that the plaintiff’s filing – and thus the trial court’s order – should be treated as being governed by §2-1301(e).

The plaintiff also cited to an order that the trial court entered during the pendency of the appeal in which it stated that the vacatur of the DWP was pursuant to §2-1301(e), not §2-1401. The appellate court noted that “an order entered [by the trial court] while the case is pending on appeal has no bearing on whether we maintain jurisdiction.”

Because an order vacating a DWP under §2-1301(e) is not final and appealable, the court held that it had no jurisdiction to hear the plaintiff’s appeal and dismissed it.

Federal National Mortgage Association v. Tomei, 2014 IL App (2d) 130652.