Appellate Ace: An Interview with MDK's Ed Peterka

In the world of law, a successful appeal can overturn a lower court decision and deliver a major win for your client. Here at MDK, we're fortunate to have Ed Peterka on our team, a lawyer with a phenomenal track record in appellate cases. In this interview, Ed spoke with fellow Senior Attorney Jenna Rogers and dove deep into his experience, discussing everything from his most challenging appeals to the strategies that have led him to success.

Whether you're facing a foreclosure or eviction case, or simply curious about the intricacies of appellate law, this interview offers valuable insights. Ed discusses the importance of a strong record in the lower court, the power of legal precedents, and how he tailors his approach to different judges and situations. Read on to learn from Ed's expertise and discover what it takes to be a truly exceptional appellate attorney.

‍

Jenna Rogers: Can you provide an overview of the appellate cases you've won?

Ed Peterka: I have done appellate work since 1996 when I assisted on an appeal of a jury verdict in favor of our clients in a medical malpractice case. Our client won on appeal. Since that time, I have handled over 25 appellate cases, most of them involving the appeals of foreclosure and eviction cases in which I represent mortgagees and lenders. In the last 10 years, I have lost only one appeal.

JR: What were the most challenging cases in this series, and how did you approach them?

EP: The most challenging appeals were the appeals of temporary restraining order (“TRO”) as they have an expedited time for filing a petition for appellate review and related memorandum. Under Illinois Supreme Court Rule 307(d) a petition seeking appellate review of a TRO and supporting memorandum and supporting record must be filed with the appellate court within 2 days of the grant or denial of the TRO by the circuit court and any responding memorandum must be filed within 2 days of the filing of the petition and supporting memorandum. Needless to say, you have to gather any relevant pleadings and create your memorandum very quickly and ensure everything gets filed in a timely manner.

JR: How did you initially assess the strengths and weaknesses of each case in the series?

EP: I will review the orders and motions being appealed to determine the general issues on appeal. However, the appellant’s brief must be thoroughly analyzed to determine the exact scope of the appeal and to assess the strengths and weaknesses of each argument.

JR: Were there any key legal precedents or unique aspects that influenced your strategy in these cases?

EP: There are several key Illinois cases which are helpful when handling an appeal but one case I use quite often is Foutch v. O’Bryant, 99 Ill.2d 389 (1984) which holds that an appellant has the burden to present a sufficient record on appeal to support a claim of error and if the record is incomplete or insufficient the appellate court will presume that the circuit court’s order was in conformity with the law and had a sufficient factual basis. Often, an appellant’s argument is forfeited due to the absence of a complete and sufficient record on appeal.

JR: Can you discuss a specific strategy or legal argument that played a pivotal role in achieving success across multiple cases?

EP: I have asserted Illinois Supreme Court Rule 305(k) to dismiss numerous appeals. Illinois Supreme Court Rule 305(k) specifically provides: “If a stay is not perfected within the time for filing the notice of appeal, or within any extension of time granted under subparagraph (c) of this rule, the reversal or modification of the judgment does not affect the right, title, or interest of any person who is not a party to the action in or to any real or personal property that is acquired after the judgment becomes final and before the judgment is stayed; nor shall the reversal or modification affect any right of any person who is not a party to the action under or by virtue of any certificate of sale issued pursuant to a sale based on the judgment and before the judgment is stayed.”  

Rule 305(k) “protects third-party purchasers of property from appellate reversals or modifications of judgments regarding the property, absent a stay of judgment pending the appeal.” Steinbrecher v. Steinbrecher, 197 Ill. 2d 514, 523 (2001). Accordingly, “it is well established that without a stay, an appeal seeking possession or ownership of specific property that has already been conveyed to a third party is moot.” Northbrook Bank & Trust Co. v. 2120 Division LLC, 2015 IL App (1st) 133426, ¶ 3.  Rule 305(k) requires that: “(1) the property passed pursuant to a final judgment; (2) the right, title and interest of the property passed to a person or entity who is not part of the proceeding; and (3) the litigating party failed to perfect stay of judgment within the time allowed for filing a notice of appeal.” Steinbrecher, 197 Ill. 2d at 523-24; see also Old Second National Bank, N.A. v. Karolewicz, 2022 IL App (1st) 192091, ¶ 30.

JR: What role did client collaboration play in the positive outcomes of these cases?

EP: I discuss the merits of the appeals with the clients and emphasize that the appellate process can be a lengthy one before the appeal is ultimately resolved. I often request the client to authorize MDK to oppose any stay of the judgment pending appeal to lay the foundation for a possible dismissal under Rule 305(k) if there is a third-party purchaser of the property at the judicial sale or the property is transferred to a non-party through REO.

JR: Were there any unexpected challenges that arose during the legal proceedings, and how did you address them?

EP: The first time I handled the appeal of a TRO I did not expect the short deadlines to respond to the petition for appellate review of the TRO. I had to ask my colleagues at MDK to cover my work for a couple days so I could dedicate my time to drafting and filing a response memorandum to the petition for review.

JR: How do you stay updated on the latest legal developments and use them to your advantage in your cases?

EP: I review the opinions issued by the Illinois Appellate Courts and the Illinois Supreme Court on a daily basis.

JR: Can you share an example of a case where you successfully negotiated a favorable settlement for your client?

EP: I had a settlement conference and mediation involving a reverse mortgage default for failure to pay the applicable property taxes. The client and I discussed the different available options and after a lengthy negotiation with the borrowers, the client decided to offer the borrowers a cash for keys option with an extended move-out deadline which the borrowers happily accepted.

JR: How do you manage the balance between being assertive in court and seeking amicable resolutions outside of court?

EP: I try to appreciate the perspective of the defendants and I am willing to listen to the other side of arguments. Also, I’m always professional with opposing counsel as I am a firm believer of what goes around comes around.

JR: In what ways do you tailor your communication style and legal arguments based on the specific judges and opposing counsel involved?

EP: I am always respectful to the judges before whom I appear. I tailor my arguments based on my familiarity with the judges and how well they know foreclosure law and civil procedure.  I will be a bit less explanatory when arguing before an experienced judge.

JR: Can you highlight a case where you effectively utilized technology or innovative legal approaches to gain an advantage?

EP: Casee, the proprietary case management software system of MDK is invaluable for understanding the history of the case and arguments made by the defendants at court hearings. For example, the hearing results saved to the case often indicate what arguments were made by defendants at previous hearings and can be used to inform the court that it previously heard the same argument of the defendant and had rejected it.

JR: What lessons have you learned from your successes in this series of cases that you apply to your current and future cases?

EP: It is important to ensure the facts and arguments which support your position are in the record in the circuit court if there is an appeal.

JR: How do you ensure a high level of client satisfaction throughout the legal process, especially in the context of successful case outcomes?

EP: I work hard to create a successful work product, to keep the client informed of any problematic issues, and to ensure we comply with all applicable client and court deadlines.

‍

JR: Thank you for taking the time to speak with us, Ed.

EP: Certainly, thank you so much!