Illinois Foreclosures Legal Questions

Your problem is clear, but the resolution is not. It may be that you can stay in the property, cease making payments, have a foreclosure filed, and then sell the home via short sale.  It may be that, based on the medical debts and recent work issues, a bankruptcy may be a viable option.  This would avoid any deficiency (or tax consequences), allow you to reside in the property until the conclusion of any foreclosure.  There may be an option to modify as well as short sale options and a deed back to the bank. While relocation is an option, unless the lender accepts a deed in lieu of foreclosure, the property will need to proceed through foreclosure before title is transferred.  Your vacating would, therefore, not reduce your obligation on the loan and may have consequences with association dues, yard maintenance and the like.  Additionally, you would be paying money to live outside of a home for which no mortgage payment would be made.  With finances being constrained, this may not be the best option for your household. The suggestion is for you to assemble all of your financial information and meet with an attorney that is experienced in both foreclosure and bankruptcy.  You may find that a "fresh start" via bankruptcy would be your best option.  It may be that would be an option at a later date.  Other options, such as deeding the property back to the lender (i.e. a deed in lieu of foreclosure)  or seeking a sale via a realtor could be reviewed. In short, you would gain the legal information you need to make a knowing and informed decision that best serves you and your family.  There are a number of different potential solutions to your situation.  The key is to determine which is the best for you personally.   For any such decision, the input of an attorney would be invaluable.  The search for such an attorney can be done via the internet and a review of websites.  You can also contact your local county bar association at it may have a referral program that will put you in touch with a local attorney well versed in such matters.                  ... Read More

You have a number of problems that cannot be fully assessed through your question. The problem is that there was apparently no delivery to either the Sheriff or the Bank of the proof of your filing bankruptcy.  This is something that needs to be addressed with your attorney.  It may be that the Court sent out notice or counsel did.  Should that have occurred, there is an initial question of when and to whom.  As a result, there may be a claim for violation of the automatic stay. Another problem is the May 9th eviction date.  Due to changes in bankruptcy law in 2005, provisions were added regarding the need for posting of bonds in eviction matters to be stayed by bankruptcy filings.  It may be that your situation feel within these provisions.  As a consequence, the eviction may not have been a violation of the stay.  In short, the right to evict you may have existed when the eviction actually occurred despite the filed bankruptcy.  Again, this is something to address with counsel. In the event of improper eviction, an action could lie with the Bankruptcy Court.  You question did not indicate you had an attorney.  If so, you should address these matters with your attorney.  Should you have filed it without counsel, you can look to speak with an attorney that is experienced in bankruptcy and stay enforcement/violations.  An internet search or a call to your county bar association should provide you with the names of such persons in your area.... Read More

It is good that you went to the Clerk.  These are public records and you can monitor the progression of the case.  If it is true and a modification occurs or something else, such as reinstatement, takes place, the court records would reflect this. Should there be an order of dismissal, that would confirm that the owner can, in fact, keep the house. As to your rights, there is a federal law detailing a 90 day notice upon securing ownership via sheriff's sale.  This would put you in touch with the new owner and, hopefully, allow you to reach an agreement regarding retaining possession or vacating on a date certain.  There may also be a question as to who is to receive the rents.  Generally, a mortgage contains an assignment of rents.  This would mean that, pursuant to notice, the lender can demand payment of rental monies from you. One would think that a copy of such notice would be provided to you, but you can also look to contact the attorneys for the lender to inquire if such an assignment has occurred.  Since all cases travel at different speeds towards resolution and raise their own unique issues, it would be best to consult with an attorney in your county.  An attorney experienced in foreclosure can inform you as to local procedures for not only court, but eviction.  This information can also help you better assess your situation.... Read More

Foreclosure goes to the property itself.  Your question is confusing as to whether the foreclosure is on a house or trailer or land upon which trailer sits.  The best answer is this:  If your brother is not on the Mortgage, he should not be on the Note, which is the personal promise to pay.  As a result, there would be a taking of the property under the foreclosure and he would lose his interest in the property.  There would, however, appear to be no basis to hold him liable for the debt (deficiency) as he held no obligation to pay. As to your assets, it is possible that some form of collection could occur.  There would need to be a deficiency judgment entered personally against you.  The court would have to approve the amount sought by the lender.  You can contest such a finding.  We would urge you to not ignore the proceeding.  Even if you cannot hire an attorney, you should consult with one.  We would further suggest that you file an Appearance and pleadings in the case to insure that you have notice and can appear in court to object to any attempt to seek deficiency.  Should an order be entered, there may be no collection actions.  The Plaintiff is a mortgage lender, not a debt collector that seeks payment via garnished wages or turn over of property.  While a judgment may issue, it is possible that no collection actions occur.  If you are concerned about such actions, you may also elect to explore bankruptcy options. That would discharge any such obligation upon completion of the Bankruptcy. Finally, many attorneys provide free, initial consultations.  This may be best to explore as the advise of an experienced foreclosure attorney, even if a consultation fee is required, may be most beneficial to you.  If you do not know where to look, you can contact the county bar association for a referral or search the internet and review the attorney's website.    ... Read More

Foreclosure is one of the ways that lenders obtain control and title to real property.  In the absence of a deed in lieu of foreclosure or a short sale, title would need to be obtained via foreclosure. Foreclosure is subject to certain statutory time constraints.  First, there is a mandatory redemption period.  This period is either 7 months from the date of service or 3 months from the date of judgment, which ever is the longest.  This is, however, only part of the timeframe involved.  The transfer is initiated via a sheriff's sale, which cannot occur until after the statutory notice is published in the newspaper.  The sale must then be confirmed by the court and this, too, requires notice of presentation to the court.  While there is no set time for this period from redemption to presentation, a rough approximation would be 2 to 3 months.  Illinois law provides that, upon confirmation of sale, there is a 30 day period in which to vacate the property.  It is also possible that the Judge would extend this period beyond 30 days. Since you have yet to be served, the process has not yet begun.  While each case can travel at its own pace, a "rule of thumb" would be about 10 months from start to finish (as in vacating the property).  This can be extended due to back logs with the Sheriff, court scheduling, and actions taken by Defendants.  For example, an attorney experienced in foreclosure may be able to further extend the period of time before you need to move.  Additionally, there may be other options, such as short sale or a renewed attempt at modification, that may be available to you. The suggestion is that, upon service with a Complaint in foreclosure, you contact an attorney to discuss matters. Each county handles these matters in a unique fashion and there is no substitute for accurate information as you look to determine the most beneficial course of action for yourself.  Should you be unable to find an attorney, a web search along with a call to your county bar association should provide you with a number of options.  ... Read More

The answer varies from county to county.  The rules of procedure also provide a couple of different provisions that could provide the relief that you are seeking.  As a result, the answer is complicated and requires specific legal advise which can only be given by an attorney after a thorough review of your situation, fact pattern, and court orders. The first question is which judgment are you referring?  There is a "judgment" entered based upon pleadings that start the redemption period after which a sale can occur.  There is also a "judgment" that is entered after the sale, which approves the Sheriff's Sale and, per statute, provides 30 days in which to vacate the property.  After those 30 days, the Sheriff can evict anyone on the property. The burden and basis for vacating those orders would tend to differ. There is also the question of language in the order entered.  It may or may not be stated to be an appealable order.  As a result, a different section of the Illinois Code of Civil Procedure would control any motion filed.  The date of the order can be important as the passage of 30 days may impact which section of the Civil Procedure controls.  Any motion would need to allege the basis for your belief the order should be vacated.  This should be based in law and fact.  While the different counties vary on the issue of "due diligence" and its application to any motion to vacate, you may wish to show what actions were taken prior to the entry of the order in question.  You would need to get the matter placed on the court's call (before the Judge that entered the order).  This would be done through the Clerk of the Court.  Once again, each county has their own process for noticing matters for court.  Notice of the presentation of the motion prior to your appearing in court as well as a copy of the Motion would need to be provided to all interested parties. This would include the attorneys for the Plaintiff.  There are specific timing and proof of services rules for the transmittal of notices. Since you would be seeking a rather extraordinary remedy - the undoing of a court order, such actions should not be undertaken lightly.  There may be grounds for your action, but the pleadings should clearly and concisely detail any such facts and/or law.  There are substantial procedural rules and issues that also apply. Any motion would need to address those matters, too.   As such, it is recommended that you immediately contact a local attorney experienced in foreclosure to seek, at the very least, legal advise, if not representation.  Should you not know of any such attorney, most counties have Bar Associations that have a Lawyer Referral Program. You can then obtain a name(s) and research the attorney(s) on the internet prior to setting an appointment.... Read More

Foreclosure is the act of securing a deed for non-payment on a Mortgage. As a result, if there is a Mortgage that is in default, the lender has the right to file a foreclosure action to secure the judicial sale of the property.  This is a costly and time consuming process that is not undertaken lightly by the lenders.  There are ways of avoiding foreclosure, such as selling the property and refinancing the loan.  If you are concerned about losing the property, you may wish to speak with a real estate/foreclosure attorney sooner rather than later.  This will insure that you have all of the relevant facts in a timely fashion to assist you in your decision making.... Read More

Time lines and procedures vary from county to county.  However, only a Sheriff can evict you and this can occur only after the Judge approves the Sheriff's Sale.  Per statute, you then have 30 days from that court date in which to vacate. Per statute, no sale can be noticed until Judgment enters and the redemption period runs.  Redemption can be either seven (7) months from service or three (3) months from date of Judgment, (which ever provides you with the longer time period).  Since you only recently were served, it is clear that you have an extended period before you can be forced to leave. While no action is required of you, the wiser course is to not stay away from court.  If you are present, you will be insured of receipt of all notices.  Additionally, there may be defenses to the foreclosure or issues of proof with the Complaint as filed.  Through the filing of an Answer, the issuance of discovery, or the simple act of retaining counsel may result in extended time in the residence.  Since you may also elect to vacate the residence prior to being ordered to leave, an attorney could help with that transition to avoid any problems with the lender. An attorney that practices in foreclosure should be able to provide you with a more accurate timeframe for the process (as some counties process matters faster than others).  The attorney could also review your Complaint and provide you with an overview of what issues and potential problems of proofs could exist in your case.  You may find that representation is best for you, despite the discharge in bankruptcy.  Finally, it is possible that your Bankruptcy was not duly noted by the attorneys filing the foreclosure.  As such, some actions may be required to insure that no personal deficiency is sought.  With such conduct being potentially sanctionable, this is another reason to consult with an experienced attorney.... Read More

There are a number of questions about the transaction.  It would, however, appear that you are asserting that the Bank and your son took actions that were not authorized by you and have jeopardized your ability to continue to live in the house.  A foreclosure may also be filed or will be filed in the near future. The best suggestion is that you secure an attorney. There are both criminal and civil laws that could apply.  There may also be practical considerations involved.  You need competent personal advise to assist you.  If you do not know where to start, you can contact your local bar association for a referral.  Additionally, you can then search the internet for information about the attorneys to which you were referred. You are asserting a complicated matter of fact.  There could be other issues, such as the existence of powers of attorney, that could be relevant.  You should gather all of your documents - loan, correspondence, and anything else involving either the Bank or your son.  Take all of this to an attorney.  If you are over 55, you may elect to speak with an attorney with expertise in Elder Law.  This person could address all transfer issues as well as discuss likely outcomes and scenarios for both you and your son.  You would then be provided with the information to make a decision as to whether you would file personally, make a complaint to the attorney general or accept the bank's proposal.... Read More

The answer is maybe.  You do not provide all of the needed information. A consultation with an attorney is suggested.  A general response can only state: If you are on title to both parcels and the lender obtains a deficiency judgment against you for the first house, the equity could, ultimately, be at risk.  First, there must be a foreclosure action.  A Sheriff's Sale will be held to transfer title.  Should the purchaser not bid enough money to pay the Mortgage in full, a deficiency is likely.  However, not all lenders seek deficiencies as some counties may require an Appraisal before considering any personal deficiency order.  If such a deficiency is allowed (in such amount as the Court allows), there will be a personal judgment issued. The next step is one of collection.  It may be that your loan was guaranteed and the lender paid in full after the foreclosure.  No one may then look to collect on the deficiency against you.  However, any Judgment is subject to collection.  Collection can take the form of garnishment on your wages, seizure of your bank accounts, or placement of a lien (called a "Memorandum of Judgment") against any real estate titled in your name.  There are ways to avoid such actions.  They can range from Short Sales to Bankruptcy filing.  Considering what is at stake and the potential risk that a subsequent purchase could be placed upon your parents, you should seek out legal counsel.  An attorney familiar with local (as in your county's) foreclosure practices should be able to clearly detail your options and the risks attendant to whatever course of action you elect to take. Any such consultation should occur prior to any purchase of other real estate.... Read More

Since you did not provide much information, it is hard to provide much insight or information back to you. One suggestion is to search the county clerk's records for the foreclosure.  This will insure that the loan is not merely "in foreclosure" with the lender, but is actually before a judge and proceeding towards Sheriff's Sale.  A review of the court record will also show the name and number for any attorneys - for not only the mortgage company, but the owner (if such counsel has been retained).  Inquiries could then be sent to counsel.  Additionally, your sister could take this information along with her rental agreement to an attorney and seek independent legal advise based on the information she obtained.  An attorney could then assist her in taking such additional steps as may be indicated to protect her interests in the leasehold and, possibly, expanding her rights to ownership through Sheriff's Sale or short sale purchase. With time being of the essence, she should act quickly and get all of the information she can gather to an attorney.  An attorney experienced in foreclosure and/or real estate should be able to be of assistance.  A web search can reveal such attorneys as can a call to the local county bar association, which should offer a lawyer's referral programs,... Read More

No legal advise can be given and your situation raises a number of different issues.  The initial question to be addressed is the nature of the "deal" made and under what terms the prior rental was being paid. The remaining questions and issues can then be addressed.  To insure the best answers are given to these questions, consultation with an experienced attorney should be sought. As a practical matter, the old landlord may not be looking for any money.  That person may figure that, since the house was lost in foreclosure, no collection can be sought.  This may, therefore, end matters since no action is being contemplated. However, it may not be the end.  The key point in any obligation with the old landlord is the terms of the deal:  What was the nature of the tenancy? Was there a lease?  If so, a review of the lease may provide an answer to the question.  Additionally, if payment is based upon the landlord being the owner, it is hard to imagine that in any collection suit that the court would award any allegedly unpaid rental money to someone that has no title to the property.  It would seem that ownership should be a prerequisite to any recovery.  Accordingly, any claim for monies owed would appear to end once the old landlord's interest in the realty was terminated. This date should be verifiable from a review of the Court file for the foreclosure.  The clerk's office is open to the public and such documents are public records.  It would be advisable to seek out an attorney to review this order and whatever additional documents you may have relating to any monies that could be owed to your prior landlord (or that the landlord is claiming as being due and owing).  This can also include any set-offs or credits owed to you.  One example would be a security deposit still held by the old landlord.  As such, you may have a suit or counter-claim against the old landlord. The next question revolves around the deal made with the new owner:  Is it in writing? Is it a lease for a stated period?  You need to know what rights you have with the new owner.  This would also be an area of inquiry to address with an attorney that practices in landlord tenant law.  ... Read More

You can secure attorneys to assist you in any negotiations. However, real estate is based upon state law for the state in which it is located.  Although most Mortgages and Notes contain language that allows for the documents to comply with federal law and be traded in all states, there can be state specific provisions in any legal document involving real estate.  The same is true with foreclosure laws as they are state specific. Additionally, chain of title may be an issue.  For example, the original lender may not wish to engage in any transfers that would require recording where there is a now a subsequent and, thereby, junior lender on title.  Priority may be lost and the date of recording of your desired transfer may control to the detriment of the lender.  Since this is a state specific issue, any such questions would need to be discussed with an attorney licensed to practice law in that state.  It may be possible to find an attorney that practices real estate in both Florida and Illinois.  That person may also be willing to negotiate on your behalf with your lender and even to represent you in the foreclosure.  Your local bar association may have a listing of such attorneys. Although no legal advise can be given, a practical suggestion would be to verify with your lender that it would be open to such negotiations.  Before you incur any significant fees or costs, you would want to know if this is an option with the lender.  You could also use that call to inquire over what types of documentation would be required.  Also, you could ask which of the many documents providing value, such as tax bills, purchase price, market analysis by real estate agents or certified appraisals, would be needed to establish the required baseline values for such a swap. Finally, with the property being in foreclosure, the lender may require cash monies as opposed to different collateral.  This is a question that needs to be addressed to the lender.  An attorney may be of assistance here as you may also wish to retain counsel to represent you in the foreclosure.  Such representation could provide both a review of potential defenses and implement a strategy to provide you the needed time to conclude any such negotiations.  Additionally, the attorney may be able to communicate with the lender through the foreclosure attorneys and facilitate the desired negotiations.... Read More

The short answer is MAYBE.  Such a request is not unreasonable as you are basically attempting to avoid a deficiency by prepaying monies to the lender and avoiding the need for collection on their part. There are, however, assumptions with any short payoff.  For example, the lender will, most likely, still need to proceed through foreclosure to obtain a clean title.  The lender will also still need to insurance, maintain, and, ultimately, sell the property.  It is in such a context that your offer would need to be considered by the Bank and its attorneys. However, a more detailed review of your situation is needed.  This requires a consultation with an attorney versed in both foreclosure and bankruptcy. This is based on what appears to be a lack of personal assets.  Since retirement funds are exempt from creditors and protected in Bankruptcy, such a withdrawal to merely avoid foreclosure should not be undertaken lightly.  A complete review of your financial situation may result in the conclusion that a Bankruptcy that will protect your retirement, avoid any potential deficiency on the house and allow you to continue to reside in the property through to the conclusion of the foreclosure may be your best personal option. Additionally, if the property goes through foreclosure and a deficiency results, the amount of the resulting deficiency judgment to you may not be the actual difference between the monies owed and the sale price of the property.  A Judge has discretion in such matters and may not allow the entire deficiency to be entered against you.  Finally, the Bank, when faced with a potential Bankruptcy, may also review its position on sale proceeds.  The result may be an acceptance of the sale in satisfaction of the debt or a much lower contribution that you would make to avoid having to file for Bankruptcy. With these various options being potentially available to you, the best suggestion is for you to take a long hard look at your personal finances - income, expenses, and debts - and to gather that information for a consultation with an attorney before you decide to place your long-term future at risk via any withdrawal of retirement funds. This will provide context for a true and personal risk assessment involving both foreclosure and bankruptcy.  This will, in turn, provide you with a clearer picture regarding any short sale or buy-out option.... Read More

No legal advise can be given without a full review of your situation.  As will become evident from this answer, there are many aspects to your situation that can impact the final result.  An immediate in-person consultation with an attorney is, therefore, suggested. That being said, there are a couple of practical matters to consider. If you receive a call from the Sheriff stating an intention to evict and you do nothing, what is the likely result?  The Sheriff will, presumably, follow through with the action and an eviction will follow. As such, that may provide the simplest and most practical answer to your question. Additionally, being concerned over "conceding" matters is not a constructive way of viewing the situation.  A phone call in response to a notification can simply be a response and inquiry seeking clarification.  It would allow you to inquire if there were other available options, such as a short term rental option or a negotiated stay of eviction (with monies paid to the lender) or some other option other than the apparent pending eviction by the Sheriff.  The point here is that, under Illinois law, only the Sheriff has authority to remove people from residences.  Therefore, if there was such a call made, the standard foreclosure procedures would require both a prior judicial sale with a purchaser and that sale being approved by the court. If this process has been followed, there would be nothing to "concede" as the court has already decided the matter and entered an order allowing for the eviction. Since no legal advise can be given either in this response or by an attorney without a detailed background, a trip to the courthouse to the clerk's office may be in order.  You can review the court file, copy the docket sheet, and look to verify that all of the required actions occurred leading up to eviction.  You could also look to have the matter brought back to the Judge via motion and ask for additional time to vacate the property. With an impending eviction by the Sheriff, you should speak with an attorney regarding your situation.  It may be that some defenses exist or some form of extension can either be negotiated or sought from the Judge.  During any such interview with an attorney, one question that will likely be asked is what did the attorneys for the lender say when you asked for additional time to vacate?  And the next likely question is what court orders were entered and when?... Read More