Know Your Rights in Illinois

There are many misconceptions in Illinois about foreclosure and what rights borrowers have under our laws.

Let me start with a simple time-line of the foreclosure process in this state ...

The first step is "default" that is typically after the borrower has missed about three payments consecutively with their lender. At this time, the lender may choose to file a foreclosure lawsuit against the homeowner called a "Lis Pendins". "Lis Pendins" is Latin for "Litigation Pending" and states the lender's intention to sue the borrower for the total amount owed on the mortgage as well as late fees, legal fees, fees on fees ... you get the picture I am sure.

The Lis Pendins should be served by either a sherrif for the county in which it is filed or by a "Special Processor" ... it needs to be personally served and in this state IT IS REQUIRED BY LAW for a copy of the actual PROMISSORY NOTE - not the MORTGAGE ... to be attached. If that NOTE is not there ... it is not a valid service and can be argued that it is also not a valid filing. LOOK FOR THAT NOTE!!!

After the Lis Pendins has been filed and properly served ... panic starts to set in and the waiting game and back-and-forth nonsense for many borrowers begins with the lenders. This period of time can take anywhere from 6-12 months depending on how aggressive the banks' attorneys are with motions in the legal proceedings. If no agreement has been reached by the end of this time with the lender ... the lawyers will file a motion for a judgment and setting of the actual foreclosure sale date.

The sale date is usually a few months from the judgment.

Now ... if there is still nothing done ... the property is sold at the foreclosure auction sale at a specific location in the county in which it was filed and litigated. But that does not mean the sherrif's are going to come knocking at your door the next day and start tossing your belongings into the street in front of all of your neighbors. There is still more to the process - we really are lucky to have these laws in place.

After the foreclosure sale ... at which 99 out of 100 times the lender just purchases the property back ... the judge needs to "Confirm the Sale". This takes typically another 30 days from the sale date.

But ... there is more ... (this sounds like an infomertial)

There is an additional 30 day period typically that occurs before the judge grants whomever purchased the property an "Order of Possession" and signs an Eviction Order.

NOW ... you can get worried that everything will be tossed into the streets ... unless you have professionals on your side helping you get through this.

Here are a few more legal tidbits concerning foreclosure in Illinois ...

1. You have a right ... under our state's laws ... to file a motion with the judge hearing your case to have any possible deficiency judgment waived BEFORE the lenders have a say. What does this mean??? This means that you can save yourself a possible tens of thousands and even in some cases - hundreds of thousands of dollars that the lenders may ask you to pay in the future to cover their losses at the foreclosure sale.

2. You have a right ... under the Fair Credit Reporting Act ... to demand that the plaintif in your case PROVE that they are indeed the rightful creditor by demanding they "Produce the Note" within 30 days of a written request. I do this all the time for clients to buy time in the process to work out a solution with the lenders. And it has worked spendidly for the most part. Unfortunately - one of the largest firms in this area - which shall remain nameless - has set up a special department exclusively for handling these requests. When I came to this realization ... I knew my "gig" was up with these guys ... too bad.

3. You can request and many times get an additional 90 days AFTER an eviction order has been issued and served to find other living arrangements. It is accomplished simply by calling the lawyers for the lender and asking for the eviction attorney. Explain the situation and every time we have asked ... we have received up to 90 more days.

Remember that foreclosure in this state is regulated and handled by the courts - take advantage of that fact to work out a good agreement with your lender as to how the problem will be solved because it will NOT just go away the longer you wait.


Maureen