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- Daniel S. Khwaja, Attorney At Law
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ABC News I-Team interview with IL Foreclosure Lawyer Daniel S. Khwaja on Foreclosure Defense - Chicago, IL
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I entered into a loan modification trial a month ago but still getting notices that my home is to be auctioned. The bank tells me that forcloused is on hold but I want to make sure."- Crest Hill, IL
Attorney Daniel S. Khwaja wrote:
If you filed an appearance in the case you have to get notices by law. Thats how you know if its going to sale. Also call the law firm or look on the Judicial Corporation website for pending sales.
I have to foreclose on my house I am currently living in with my three children. I can't afford [it] any longer. There a better opportunities in Texas to have more success financially for my children."- Lockport, IL
Attorney Daniel S. Khwaja wrote:
This is a multi-faceted question. Anything related to the children, should be directed to the family law forum.
With respect to moving out of the property you should hire an attorney to negotiate a consent judgment so there will be a waiver of deficiency and possibly a cash for keys payout for you to move out early.
If both you and your ex husband signed the note and mortgage then they also need to deal with his interest as well since hes an obligor and has a title interest. If he doesnt live there and isnt resisting the foreclosure you may be able to negotiate something with them and let them otherwise foreclose out his interest.
Long story short the bank usually wants people out as fast as possible but get something for it.
Deceased parent home in recent foreclosure after unpaid taxes increased escrow. I was paying it until the mortgage from $587 to $1200.I was served as by sheriff 2 days ago. I qualified for modification loan but I did not sign, pay, or agree because they only offered$ 1100 and was not labelled a permanent modification.- Chicago, IL
On the case documents received it has my name; deceased a/k/a deceased; bank; unknown owners and non record claimants.
The house needs extensive repair and not worth the back dues, fees and it's condition. I need an available lawyer who offers free consultation. I am wanting to delay process by filling answer, Discovery, or other. Feel free to leave your availability for consultation and a quick preview of the steps you as a lawyer would take"
Attorney Daniel S. Khwaja wrote:
You have the right idea you need to file an answer to complaint with any defenses and counterclaims you have, including, discovery and that will buy you some time.
For example, if a case is appealed from the Third Municipal District Court (Rolling Meadows), which Appellate Court in Illinois is the proper one where it should be appealed to?"- Chicago, IL
Attorney Daniel S. Khwaja wrote:
There is a map on the illinois appellate court website. Cook County is the 1st and the directly surrounding collar counties are the 2nd. Will County is Third. Farther down south is 4th and 5th.
My wife and I are currently separated and working on a divorce? I am on bankruptcy Chapter 7 filing. The mortgage company is trying to foreclosure but they made a mistake when they did not add my wife to the mortgage even after we begged them to during closing, my attorney instead asked us to do a quit claim deed instead and add her that way, which we did. What are the laws in Illinois say about this situation? what can they do or not do?"- Aurora, IL
Attorney Daniel S. Khwaja wrote:
It sounds like you are suggesting there may be a tenancy by the entirety defense (TBE). Sometimes it is impossible for them to be able to foreclose a spouse in very rare situations such as she is neither on the mortgage or an obligor on the note but is otherwise listed on the deed and the deed is setup as tenancy by the entirety.
Generally speaking they can foreclose. A mortgage was put up against the property through a security lien which they can enforce for non-payment. Its why they extended the loan and their right to foreclose is superior where the debt has not been extinguished. In addition, quit claiming property interest to someone else while you are currently paying on the mortgage is almost always a violation of the provisions of the mortgage. You need permission from the bank to do that. So you cant quit claim your way out of foreclosure on a debt that is owed and doing that on active mortgage is basis to foreclose in and of itself.
Lots of document review needed potentially for this case. Hire an attorney to properly review everything.
Brought a rehab fixed it, rented out for a few years, want to sale to family member for original purchase price, not market value. "- Chicago, IL
Attorney Daniel S. Khwaja wrote:
In addition to what the prior lawyer stated if you have a mortgage that you are paying on the analysis changes. Most mortgage contracts have provisions that you cannot assign the mortgage title without the banks permission. If you are still paying on the mortgage a breach of this provision gives them the actual right to file a foreclose against the property. I have seen them do it before even in cases where the mortgagor has made all their monthly payments on time.
I did bankruptcy about 6-7 years ago. Then my husband passed away. I fell behind on the loan payment. That I have a lien on my mobile home. I want to move but it is not selling. The bank said they can do nothing to help me."- Bridgeview, IL
Attorney Daniel S. Khwaja wrote:
Are you currently in foreclosure? Have you actually submitted a formal loss mitigation application to attempt to do a deed in lieu? If in foreclosure options will open up including consent judgment depending on the circumstances. If you abandon the property they may file a motion to foreclose on an expedited schedule due to the vacancy of the home. I dont know whether you filed a chapter 7 bankruptcy and reaffirmed the debt for the property or discharged it. If you discharged it and you abandon the property you will owe nothing when it sells. If you didnt discharge the debt, if the property sells for less than what is owed on the mortgage you may have a deficiency which they can sue for. You wont know if they will until the motion to confirm sale.
I went to the first court date 11/5/2018 then didn't go to the second court date 11/17 because i was out town for work. So I don't know what happened. It has been past 30days to file an appeal. So I'm trying to find out if I will be served the default judgment and then given two weeks. Or will the sheriff just show up to put me out?"- Berwyn, IL
Attorney Daniel S. Khwaja wrote:
Is this a foreclosure case? Or just an eviction? First you have to be served with a summons. A service processor or sheriff comes to your door giving you papers notifying you of a complaint filed against you. If you were served it was your obligation to answer the complaint and file an appearance. You clearly did not and a default judgment may have been entered. If you were served the court had jursidiction over you. Even if it didnt you waived that by appearing in court. That means you were required to file an appearance if you wanted to receive notices in your case. If you didnt do that either then they have no reason to send you anything.
Go to the cook county online docket and put in your case number and see if a judgment was entered. If it wasnt or its still within the appropriate amount of time you may be able to vacate it. You have nothing to appeal because you have no issues that have been preserved for review. You didnt file an answer to the case, raise any defenses, or file responsive pleadings. If you were served and didnt file an appearance there is no notice issue either.
We completed the requirements of the HAMP program successfully but Wells Fargo never modified our loan."- Normal, IL
Attorney Daniel S. Khwaja wrote:
It's properly brought as a counterclaim, not as an affirmative defense. However, breach of contract could conceivably be both.
In reviewing my final judgement of Foreclosure I noticed that the property address is incorrect, as well as the order of default, order appointing foreclosure sale officer. But all the previous documents have the correct address."- Chicago, IL
Attorney Daniel S. Khwaja wrote:
What you are really asking is if it is a basis to vacate the foreclosure judgment. The short answer would be no. Of course, this depends on whether you participated in the foreclosure proceedings and had ample time to raise defenses. If you were given time and did not raise the defense it is likely waived.
In a foreclosure case time is of the essence. You can file a motion to vacate under a 1301 up to the filing of the motion to confirm sale. If the sale has been confirmed and the property is sold the only real way to get back in would be a jurisdictional challenge i.e. you were not served.
Given all that above, it may be a simple mistake but unless you challenged it and at least forced them to amend their complaint you will never know what the result would have been.
Have a loan that I can no longer pay due to disrepair of the rental homes."- Yorkville, IL
Attorney Daniel S. Khwaja wrote:
If the loan was extended with other collateral the short answer is yes. Consider hiring an attorney to review your mortgage documents and defend the foreclosure action to at least, procedure a consent judgment or otherwise, so you can walk away debt free.
My home is in foreclosure. The Plaintiff did not attach the original mortgage documentation even though in the Complaint they allege that the mortgage that they attached is the original mortgage. (I have the original mortgage and it was taken out three years before the mortgage which the Plaintiff attached.) The mortgage that they attached was a mortgage to refinance my home.- Evanston, IL
The Plaintiff has also attached allonges which predate the mortgage. I stated that Plaintiff has no legal standing as under the IMFL the original mortgage must be attached and there can be no gaps. There are gaps. I am stating that the Plaintiff's Motion be stricken and my affirmative defenses stand. I have attached a copy of the original mortgage. Is there any additional information which you could give me? "
Attorney Daniel S. Khwaja wrote:
Your association can evict you from the premises the same as your mortgage lender. The fact that you are working out a modification with the lender is irrelevant to their authority to remove you from the premises. You should resolve whatever issues you have with your association, payment or otherwise.
In addition, if you are in foreclosure you need to take action to defend your property and answer the complaint even if you are working on a modification outside of court.
I inherited a property from my father who passed away four years ago. The property is in foreclosure. My name was never on the loan and I never signed a loan agreement with the bank, Wells Fargo. I applied for a mortgage loan in an attempt to save the property, but Wells Fargo denied my application. The deed however, was transferred into my name after my dad died. If I choose to just foreclose, is my credit affected at all? I was told by previous counsel that I could just walk away unaffected. But Wells Fargo says that I am totally responsible. I am trying to complete a short sale through a realtor, but the bank refuses to stop the foreclosure, I want to just walk away."- Chicago, IL
Attorney Daniel S. Khwaja wrote:
If you are not an obligor on the note and it sounds like you are not the foreclosure wont impact your credit.
Ex wife was order by divorce court to make mortgage payments, which my name is on the mortgage,she did not. I was going to get caught up, but the bank would not let me, went into foreclosure, there is a lot of equity in the house that I stand to lose. Wondering if that’s why the bank is doing this?"- Lisle, IL
Attorney Daniel S. Khwaja wrote:
Too many unanswered questions here to know for sure why they are foreclosing but the usual answer is you are in default. Making some payments may not be good enough depending how far back you are. Once you are 30 days late you are generally in default. Banks generally foreclose because people arent paying so they want to enforce their security lien. Whether the property has equity or not isnt really a major consideration.
Our hearing date is Tuesday the 11. I was hoping to go tomorrow"- Chicago Heights, IL
Attorney Daniel S. Khwaja wrote:
You are probably up now for a motion for default the judge almost always allows the defendant time to answer the complaint if the defendant shows up.
It sounds crazy, but there it is. Plaintiff brought a lawsuit to foreclose on her sister-in-law house, naming her the Defendant (1). I have judgment against Defendant (1) and a lien on her house. I was named as another Defendant (2). Plaintiff executed a 'mortgage' on her sister-in-law house essentially to encumber the property so my lien would be worthless. Here's the kicker : Plaintiff is represented by an attorney and Defendant (1) is "Pro Se".- Chicago, IL
They both filed long (50 pages w/exhibits) motions to dismiss my countercomplaint. , Both motions are identical to a dot. It's obvious that Plaintiff's attorney wrote it (full of technical language and law quotations). Is such blatant collusion even legal, not to mention ethical ?"
Attorney Daniel S. Khwaja wrote:
In any foreclosure secondary lien holders are named as defendants in the action. The first lien holder with the priority lien has to list them as defendants to close out their interests. Money can still be sued as to those lien interests but the lien itself on the property is disposed of. That is why you are a defendant as you have noted.
There is nothing unusual about a Defendant being pro-se it happens all the time in foreclosures when people do not want to pay for an attorney. If money was borrowed as to the property and the mortgage was properly recorded then its likely valid. Go look at the cook county recorder of deeds by the property index number to further determine whats been recorded in recent years.
They might be colluding together but I think the first issue is whether the mortgage is valid and recorded. You can't just go filing a foreclosure for any reason in the State of Illinois. There are many rules including what documents are required under the IMFL to file a complaint that is substantially in compliance.
I should also note foreclosures by anyone other than the bank is pretty rare. Ive seen it only once after litigating hundreds of foreclosures. There are numerous requirements that must be done from the outset of the case until the very end in terms of filing certain affidavits, etc. Few individuals are capable of getting it right and there are many requirements. This is why your initial statement that they created this fake mortgage to kill your lien sounds very unlikely given what this person will have to prove in the trial court. You need to get your facts straight and hire a lawyer.
I need help to file civil lawsuit on predator lending robo signing in foreclosure."- South Holland, IL
Attorney Daniel S. Khwaja wrote:
You do not need to file a lawsuit most likely you need to raise affirmative defenses, and any counterclaims that exist in the foreclosure itself. If the the claim is one that is related to federal laws you could file in federal court. However, res judicata will kick in and you will be barred if you failed to raise this in the state court and the merits were adjudicated as to this issue.
A predatory loan could be a defense depending on the specifics. Robo-signing is usually the basis of a standing defense but all they need to prove is the person had authority to make that indorsement.
Had a forclosure on one home ther was a deficiency judgment now selling second home"- Lanark, IL
Attorney Daniel S. Khwaja wrote:
Your question is somewhat difficult to understand. If you owe more on the mortgage than what the house sold for at sale then you will not be able to keep nothing and it all goes to pay the first lien. If there is a remaining surplus, a motion to turnover surplus funds can be filed.
My home was foreclosed in Feburary 2015. There were some things about our foreclosure that I have since learned was illegal. I do have all paperwork in regards to the foreclosure. I was lied to, They posted the ad in another county and did it twice on the same day. Honestly, there was so many things that happened throughout the foreclosure it would be a book. However, I would love to find an attorney willing to help me understand it all and help me to learn my rights. Is there a statue of limitations on sueing a lender? My case was held by a Florida attorney for over 18 months, all the while I was being told there were several things done wrong in our case. All of a sudden I received a call saying my case had been dropped due to President Trump passing a new law regarding foreclosures. I have since found out this was untrue as well. Thank you for any help or advice you can give me."- Granite City, IL
Attorney Daniel S. Khwaja wrote:
The time to defend the foreclosure is when you are served and the case is active. 1509c of the IMFL bars all future claims and defenses once you participated in the foreclosure. Moreover, you would be barred by res judicata. Unless you were not served in the case you cant just start all over again. You need to file defenses and counterclaims or file in federal court at the appropriate time. The time to take action is when you are served the summons.
As everyone knows Wells Fargo made a big push to increase mortgage customers in the past 5 or 6 years, and they purchased my mortgage along with many others from a smaller bank in 2013. Wells Fargo has been very heavy handed in treatment if late payments, I've experience excessive robo-calling, more than 10 times a day and sometimes starting at 6 a.m. and other times as late as 10 p.m. And, the to computerized collection calls continued even after I had made an official request with Wells Fargo for them to stop. Whenever I was late on mortgage, I was charged excessive fees & they repeatedly encouraged me to turn over my home to satisfy my loan, even when I was late by just 10 days. I always thought it was an aggressive suggestion when i was 1 day past my 9 day grace period for payment and considering I have well over $70,000 in equity! They assured me in writing, the forfeiture of my home would fully satisfy my loan! They put me in preforeclosute at 3 months late & I had to pay over $4k in fees and penalties in addition to back payments. After going thru preforeclosure, they say my account can be put into to foreclosure without notice. I've been called on 1st of month for payment due"- Elgin, IL
Attorney Daniel S. Khwaja wrote:
Based on what you have suggested you may have many viable claims such as the fair debt collection practices act for the late fees that could be filed as a counterclaim in state court or a federal claim in federal court. Keep in mind if you have had a foreclosure filed against you that you have a duty to raise these counterclaims or res judicata will bar you in any subsequent action. I come across a lot of homeowners who state numerous possible claims that they may have like yourself but dont raise them timely and think they can start all over after the foreclosure has ended.
If the foreclosure hasnt been filed or you are actively involved in one. Hire an attorney before its too late.
I live in illinois. I am currently in a class action lawsuit out of New York against chase for fraudulent foreclosures. Spoke with attorney and she says assignment of mortgage is fake. I am still in home but it went to sheriff sale in May 2016 and now I am in Eviction court. I looked at order and it is not signed by judge. We had default judgement because my attorney never showed up to court and didn't tell me that she didn't. Court continued with the case while we were working on loan modification. Chase bank stated prior to sale Feb 2016 they were not servicers or the note holder and still did sale in their name as plaintiff. We never had discovery, trial, deposition and any proof on record that they even had real ownership. I just found out all of the fraud now and I am trying to get help. Class action attorney can't because she is in New York. Attorneys I speak with say it's so late in the case so they don't feel comfortable coming in now. Everyone we speak with says after reviewing evidence that Chase committed fraud. Judge from default died and the new judge doesn't know the case. I need real help from people that have the experience. Thanks"- Chicago, IL
Attorney Daniel S. Khwaja wrote:
What you have stated I hear almost weekly. Let me start by saying you are going backwards forward. If you have defenses you are expected to raise them in the state foreclosure case. You cant just have a default judgment entered against you and then decide to go file a fraud case or otherwise in some other court. It doesnt work that way and res judicata will bar you. You are expected to file the defenses and raise any counterclaims you have in the state court action. If you were ever considering filing in federal court you should have done it long before your state court case ended.
With respect to the mortgage assignment - It is the transfer of the note that is most relevant. A bad mortgage assignment may shed light on other defenses but the bank doesnt even need to produce one. They need to show the note was assigned to them by endorsement or otherwise.
Court orders and how they are signed vary in different court rooms. Some counties have the clerk do a stamp as the signature. What should have happened is a motion to vacate the default judgment should have been filed, of course depending when you found out it may have been too late. At this point the foreclosure has now concluded and you cant vacate that default.
Litigating a foreclosure is treacherous terrain with little forgiveness. The procedure is very strict and you have to participate in the case early on and raise your defenses. After the case has ended you dont get to start all over again.
How do I stop this"- Plainfield, IL
Attorney Daniel S. Khwaja wrote:
Your association can evict you from the premises the same as your mortgage lender. The fact that you are working out a modification with the lender is irrelevant to their authority to remove you from the premises. You should resolve whatever issues you have with your association, payment or otherwise.
In addition, if you are in foreclosure you need to take action to defend your property and answer the complaint even if you are working on a modification outside of court.
The letter states 30 days from this date to be out the house. How do I find out if the eviction process started or if it will start after the 30 days? I have NO place to go and NO money. My daughter and new grand baby lives with me."- Chicago, IL
Attorney Daniel S. Khwaja wrote:
More information in this question would be helpful. Was your sister served because if she was not there is no jurisdiction to enter any order in this matter. I will assume that she was served, defended the foreclosure and went through the normal process. That means an order of possession was likely entered against her when the house went to sale and was confirmed. This order does not apply to you or anyone else because you were not defendants in the case.
The owner/purchaser must remove you through 1. a supplemental order of possession approved through the court or 2. normal court proceedings by and through the eviction process. Right now the sheriff has no authority to remove you and can only remove individuals listed on the order of possession in the foreclosure itself.
am trying to move and I am trying to sell my house but it seem as though I am under water and will not get what I owe for both mortgages and I want to leave Illinois and move to Georgia free and clear to start new.- Maywood, IL
Is there a way that I can list my house for what the last mortgage that I took out was or do I have to listen to the realtors?
The realtors are almost close to what I need but by the time I pay the closing cost and the other fees I will not have a thing to move with. Please help and advise so that I can make the move happen. Right now I am at a stand still and not sure what route to take. Thank you!!
I am looking for FREE help if that is possible"
Attorney Daniel S. Khwaja wrote:
You have a few options to consider. The first is you could possibly do a short sale and/or consent judgment. The consent judgment would apply to the first loan (assuming you are in foreclosure) if you are not you are looking at a deed in lieu possibly. The short sale and the deed in lieu probability of success will fall in part on the 2nd lien and whether you can negotiate some type of deal with them to give them a payout of some kind to release the lien so that the short sale and/or deed in lieu is successful.
If you have no money to negotiate with the 2nd lien, it sounds like a Chapter 7 bankruptcy is the best way to deal with these two mortgages.
I have been trying to get a modification for the past year. Finally, they accepted what I sent but referred the case to a lawyer just before they accepted my docs. They approved the modification and my first trial payment (3 months of trial before it is formally put in place) is December 1.- Chicago, IL
I received a notice yesterday about the court date being held but now it states it is for a case management and I do not have to attend but should if I want remediation assistance.
If they approved the modification, can they still foreclose?"
Attorney Daniel S. Khwaja wrote:
It sounds like they approved the "trial" modification that is simply a test of your ability to pay all three payments. The bank will not dismiss the foreclosure until those payments are completed and often a couple more as it takes awhile to process the permanent modification and send it out for execution.
If you stay on track the case will be dismissed. The case is likely placed on a loss mitigation hold as well but remember that your trial payments are not a substitute for answer the complaint. If you have any concern you might not be able to honor the trial period payment plan you should also actively participate in the foreclosure proceedings and file an answer to the complaint to buy yourself some time. If you miss the trial payments, and fail to answer the complaint a default judgment could be entered against you.
Does this mean I will be denied?"- Chicago, IL
Attorney Daniel S. Khwaja wrote:
It is impossible to ascertain what you are referring too.
Will the bank notify you of foreclosure after default of a HELOC?"- Markham, IL
Attorney Daniel S. Khwaja wrote:
If a law suit is filed against you then you will be served by service-of-process i.e. a summons and someone coming to the house to serve you. Illinois is a judicial foreclosure state and you will be given ample opportunity to file an appearance and an answer in the case and raise any defenses you have.
Aside from your formal rights to be served and defend the litigation each mortgage contract has different provisions regarding notice. Some have very specific pre-acceleration notice requirements while others are very basic. Usually every lender will provide some type of notice of intent to accelerate the debt and/or file a foreclosure.
We contacted the plaintiffs atty and we agreed to a consent foreclosure. The paperwork has been submitted at our last court date. We have court again in 2 weeks and the judge advised us to be out of the Home by that date. Now according to the county website a Motion-default has been filed? What does this mean?"- Algonquin, IL
Attorney Daniel S. Khwaja wrote:
A motion for default is filed when a Defendant fails to Answer the Complaint. It may have been filed accidentally but it suggests the Plaintiff may be moving on with the case. Your facts state that the consent judgment was "submitted" at the last court date. I dont know if that means entered. If it doesnt mean entered the case is ongoing. According to your facts the judge gave you two weeks to be out of the house so it sounds like the consent judgment was entered.
Call the Plaintiff's attorney and ask.
My lawyer to the Appeal left council for disablity. I recieved a letter stating they granted me more time before taking action. Do they always grant request like this? And if so what does it mean?"- Westmont, IL
Attorney Daniel S. Khwaja wrote:
Motions for Extension of Time have to be filed with the Appellate Court. They don't grant them unless something has been filed. If one has been filed, it means you have more time to file your appellate brief. Appeals are technical and have numerous Supreme Court Rules governing them. If your lawyer is gone, find another one because this is something that should not be done by a pro-se if you want the best result possible.
But yes, if you were granted more time to file your brief they will still consider your case.
Recently, two residential properties that I owned were foreclosed on (i.e. each property was auctioned and the county court approved the title transfers), and each registered a nearly $71k deficiency after the auction prices were accepted. How long does the bank have to file a personal deficiency claim against me? I am considering filing bankruptcy, but would like to make sure I don't do so prematurely."- Chicago, IL
Attorney Daniel S. Khwaja wrote:
You sound sure it was a personal deficiency and not an in rem. You find out that result when they file their Motion to Confirm Sale and they make the request for it. Given you are certain, a deficiency judgment was entered. Generally, agreements based on written contracts and promissory notes have a 10 year statute of limitations. (See 735 ILCS 5/13-206.) However, there are many things that can reset that statute of limitations, a payment made or perhaps you contacting the creditor making an admission.
If you continue to receive correspondence based on the deficiency judgment, and subsequently court papers that you are being sued on it a chapter 7 bankruptcy would be a good option.
Because of losing a second job fell behind on mortgage,have a new second job but lender is trying to foreclose on me. Can this help"- Park Forest, I, IL
Attorney Daniel S. Khwaja wrote:
A chapter 13 is one option. It allows a payment plan to be setup to pay the arrears which will go on top of your ongoing monthly mortgage payments. In my experience the chapter 13's dont work out for most and the case ends up being dismissed. It doesnt mean it cant work for you.
Keep in mind that you should defend the foreclosure in the interim, raise any legal defenses you have. This will buy you time. You can also attempt to modify your mortgage by submitting a loan modification application. If you work with someone who is good with playing with the numbers you have a chance to qualify. Unless you have significant debt besides the mortgage itself you should try to submit a loan modification application first. They usually take the money that is owed and move it to the back of the mortgage rather than making you pay the mortgage and the arrears which is the case in a chapter 13.
We did loss mitigation with HELOC lender.they gave us 2 year forbearance.they charge off account.we are doing loss mitigation with 1 lender.helic lender is keep telling us they will take this to foreclosure.can they do that?"- Lincolnwood, IL
Attorney Daniel S. Khwaja wrote:
The factual circumstances from your question is not entirely clear but it sounds like you have two mortgages. If you have two separate and distinct mortgages with rights and obligations the answer is yes. The resolution of one mortgage whether through charge off, forbearance, etc does not speak to any monetary obligation that is in arrears as to the other. This is particularly true where you are dealing with two different lenders but would remain true even if they were the same bank and you did not have a uniform agreement as to both.
Can a Corporation, that was liquidated, no longer exists, was not purchased by anyone, and there is no surviving/successor entity, continue to assign mortgages as a Grantor, for months and years after liquidation? What do I need to do to prove this? A certified letter? From which Agency?- Naperville, IL
I am trying to defend a foreclosure"
Attorney Daniel S. Khwaja wrote:
It sounds like after the Chapter 7 was completed you either reaffirmed the debt, or you voluntarily continued to pay in order to stay in the property. If you discontinue payment the bank will file a foreclosure based on the security lien they have through the mortgage.
There are many variables that will determine how long the case will last including but not limited to (1) the number of cases that are on the docket; (2) how aggressive the bank is in foreclosure; (3) the defenses you raise in your case; and (4) whether you issue discovery.
Aggressively defending a foreclosure case can usually ensure at least a year but this isnt exact science. It could be shorter or significantly longer. One thing I can tell you is that if you discontinue payment, and do not defend the foreclosure, a default judgment will be entered giving the rights to sell the property and it will move a lot faster.
If you want to maximize your time, get involved early.
A home mortgage company refinanced our home, closing with notary public who met us in a public place to sign papers. We understood loan to be (variable) interest, voluntary principal repayment, with a balloon at the end.- Chicago, IL
After 10 years, the bank started invoicing us for principal + interest. I said to bank, 'show us the papers.' They never produced, tho they said they would. Many times I would call the bank and demand papers. The bank servicer threatened, saying if we did not pay principal, we would be foreclosed upon.
After another 18 months of faithful payments, but under protest, by bank invoice, we stopped paying, stating we would pay when provided proof of mandatory principal amortization. Still they did not produce papers. Mortgagors changed. Another 18 months passed, full of threats.
Finally a new mortgagor sued for foreclosure, with no note. Clearly they were bluffing, as they had no note. My copies of the papers only had the mortgage, no note."
Attorney Daniel S. Khwaja wrote:
If your facts are correct and a note has not been attached to the mortgage foreclosure complaint... The appropriate Motion would be a 2-615 Motion to Dismiss because the Complaint is substantially deficient at law. The IMFL states a form complaint will be in substantial compliance if Exhibit A a mortgage, and Exhibit B a note, is attached. The failure to include either makes it defective. The only real jurisdictional issue in mortgage foreclosure is lack of service of process rendering all orders void. The Supreme Court has stated standing is an affirmative defense, and the 2nd district has stated standing is an issue of justiciability.
In any event, this is a defective complaint at law. They should not be able to proceed but if they have a lost note affidavit the judge may allow it. In any event it is a case that should be litigated extensively. You should consider hiring a lawyer.
Summary with OCWEN: denied modification in 07/16, house goes on the market in 07/16-1st contract in Aug or Sept 2016 - buyer backs out at the end of 12/2016 due to several issues and the title search and liens on the house were not cleared- 2nd contract-buyer backed out, didn't like the inspection on their end-3rd contract-cash buyer dated the end of 02/17. Ocwen then says we have to list as a short sale because it was $3000 less then what was needed. Then in 03/17 we are told that one of the modifications got rejected by FHA and it was not recorded correctly, we have to give them time to sort it out. Then comes status updates from 04/17 until 09/17 stating there is no ETA and we should be patient. I get served papers to go to court on 8/28 and everybody involved including the RM at OCWEN reassures me that this is just a status update and it will get continued. Go to court, explained what the issues were, they still asked for a decision-the judge grants it AND I was to continue working with OCWEN. 2 weeks ago, the bank was still working on the Lein issue and we find out the file has been closed; received 3 letters; call my new rm for mortgage assistance, a non-app for SS and a DIL let. "- Joliet, IL
Attorney Daniel S. Khwaja wrote:
You have a lot of jumbled information in this question that is not entirely coherent. Long story short what happens outside of court has no bearing what happens inside of court. If you had a complaint filed against you then you had an obligation to file an answer, or other responsive pleadings including any counter claims against ocwen and be fully engaged in the litigation process. Many homeowners take the advice of the bank during the pendency of a foreclosure but they are not your friend and once a foreclosure is filed they are your adversary. You relied too much on what the bank and what its agents told you while not otherwise taking the foreclosure proceeding in court as seriously as you should have from what I gather.
Trying to file suit if a cause of action existed would be difficult now because you were likely expected to raise those claims during the foreclosure and they may be barred in a subsequent proceeding under res judicata or some other theory. I dont know where youre at procedurally it sounds possibly that the judgment was recently entered. If that is the case, you have 90 days during the redemption period before they can move to sale. It might be time to see if you care hire a lawyer to right the ship.
I filed Bankruptcy Chapter 7, 3 1/2 years ago, and I am still paying Mortgage/Rent. How long could I stay in the house without paying? I'm try 2 save up to purchase a foreclosure home"- Dolton, IL
Attorney Daniel S. Khwaja wrote:
It sounds like after the Chapter 7 was completed you either reaffirmed the debt, or you voluntarily continued to pay in order to stay in the property. If you discontinue payment the bank will file a foreclosure based on the security lien they have through the mortgage.
There are many variables that will determine how long the case will last including but not limited to (1) the number of cases that are on the docket; (2) how aggressive the bank is in foreclosure; (3) the defenses you raise in your case; and (4) whether you issue discovery.
Aggressively defending a foreclosure case can usually ensure at least a year but this isnt exact science. It could be shorter or significantly longer. One thing I can tell you is that if you discontinue payment, and do not defend the foreclosure, a default judgment will be entered giving the rights to sell the property and it will move a lot faster.
If you want to maximize your time, get involved early.
Does chancery apply to equity on a mortgage loan? If so, how could it help someone with mortgage fraud?"- Chicago, IL
Attorney Daniel S. Khwaja wrote:
Mortgage fraud can most certainly be an affirmative defense. However, it is a heightened pleading standard to prove fraud so you need to be involved in this case early and often. Leave nothing short of facts in your affirmative defense filed within your answer. Consider filing a motion to dismiss to set the stage while simultaneously issuing discovery to solidify your proofs for your answer further down the line. Its highly advised you hire an attorney in an action such as this. However, fraud is fair game in an action in chancery.
My parents are in foreclosure and are unable to keep up with the modification. They want to file for bankruptcy. Can they sell their deed as well?"- Berwyn, IL
Attorney Daniel S. Khwaja wrote:
The filing of the bankruptcy (assuming it's a chapter 7) will discharge the monetary obligation in connection with the promissory note they signed. They can sell their property, but they will need a full debt bid in order to release the lien and pay the bank in full. Anything less than a full bid that pays the entire mortgage will be a short sale. Short sales are when the bank is willing to take less than what is owed on the mortgage. Thus, it is in their discretion to do so, and not all short sales are approved.
I just got a bankruptcy discharge in March. I was summoned to court May 26 for foreclosure. What should I expect and how long after I go to court that day will I be out out of my house?"- Chicago, IL
Attorney Daniel S. Khwaja wrote:
There are many variables to the time you will have in your house. You did not state whether you re-affirmed the debt or completely discharged everything. It sounds like you did a complete discharge. Assuming you did... they still have to enforce the security lien through the foreclosure and this is a judicial foreclosure state.
You can raise legal defenses to the foreclosure, issue discovery, etc which will add on time to your case. Some defenses are waived as a result of the bankruptcy filing but there are others that are not. Number of cases on the call, how aggressive the bank is in foreclosing, the answer you file with any defenses, discovery, etc will all dictate how long your case lasts. Its not a guaranteed science but a year is easily feasible if you participate in the case and file the appropriate pleadings. The good thing is if you discharged the debt no matter how long you are in the house you will owe nothing at the end but give yourself the opportunity to save some money and move on to your next location.
Both husband and wife's name is on deed to the house. But only husbands name is on the mortgage. What will the mortgage company do? Do you have to tell the mortgage company?"- Chicago, IL
Attorney Daniel S. Khwaja wrote:
I assume you mean both the mortgage and note is signed by the husband. The wife should keep making the payments. If for some reason she fell into foreclosure some banks have in house programs for surviving spouses but as a "general" rule only the obligor (the party that signed the note) can usually obtain a modification. A probate case needs to be open since as his wife she has a right to the property. If there are children that also have a right things will become a bit more convoluted, particularly where he had a will and bequeathed any interest in the property he had to any children.
This is not your normal foreclosure case. From the law I have been able to find, the court's order is a final and appealable order. The plaintiff never filed a response to my Motion to Vacate Judgment of Foreclosure nor did he argue any facts, or caselaw in opposition of said motion. The court gave the Plaintiff (90) days more for reasons unknown.- Dixon, IL
I believe this is an abuse of discretion as the plaintiff never filed a motion for extension of time for good cause; did not file a motion for rehearing, or notice of appeal.
I stated in my motion cause for relief: Dismiss foreclosure case based on fraud committed by "unclean hands" embezzling over $28,000 from my mortgage account and charging me interest on defrauded mortgage payments. Void the mortgage (contract) based on coercion by plaintiff by raising my mortgage payments to twice the amount on a 30 year, fixed rate loan where the plaintiff informed me they would not accept any more payments from me if I could not make the increased payments."
Attorney Daniel S. Khwaja wrote:
I dont see any actual question in this narrative. The only final order in a mortgage foreclosure action is the confirmation of judicial sale. The only exception to this rule is if you have 304a language given by the trial court judge to appeal from a summary judgment, or a denied motion to vacate default judgment. Absent this language i.e. express finding - you cannot appeal until the sale is confirmed.
A default judgment is entered where an appearance and specifically an answer has not been filed. Plaintiff firms often do not file a response to the motion to vacate default judgment and many are argued on presentment. It is unclear to me whether you are saying Plaintiff asked for time to respond and didnt. 90 days is not standard response time for a briefing schedule. A plaintiff doesnt need to file a motion for rehearing or a notice of appeal. They won. You lost. There is nothing for them to appeal.
If you try to appeal this case you need to be sure you do it when you have the right to do so i.e. confirmation of sale absent the express 304a finding. Furthermore, the standard to appeal a motion to vacate default judgment is abuse of discretion and not de novo. This gives much more deference to the trial court and their decision to not vacate the default judgment.
You may have legitimate defenses, but if there is not a good reason why you did not do what you were suppose too originally i.e. file a timely appearance and answer you have a very steep hill to climb for an appeal. The burden is on you because this case defaulted and is the equivalent of nobody taking a legal interest in the matter. The fact you came in after the fact and raised defenses in the motion itself does not excuse your original duty for timely filings.
I see that the court reinstated it, but it doesn't have any other court dates scheduled. That was 11 weeks ago. The sheriff said it is not in his system for any sort of upcoming auction. The judicial auction corp also has no record of it. Nothing in the cook county recorder of deeds. It seems dead in the water but maybe it seems that way because I don't know what the next step is. Maybe it is happening and I am just not looking in the right place."- Chicago, IL
Attorney Daniel S. Khwaja wrote:
There isn't a lot of information here but you seem to suggest the foreclosure went inactive, or was dismissed for some reason, and is now reinstated. The next step in any foreclosure proceeding if you have a legal right to the property is to file an appearance and get involved. If you've never been served a summons, a motion to quash is a good place to start.
If a default judgment was entered because you didnt file an appearance and answer you need to file a motion to vacate that default judgment before they file the motion to approve sale or you will be procedurally cut off with limited legal defenses remaining. In any event if this is your property and you have a legal interest you need to file an appearance and get involved.
I have been in a 6 year court case trying to save my home from foreclosure. The foreclosure lawyer that I had was simply filing paperwork to keep me in my home, but never brought up the other aspects of this case like my husband taking out a loan against my property when we were already divorced. That attorney left the case on January 30th, contacted me a week later and told me I would be out of my house by May 1st, 2017.- Skokie, IL
Is there any way I can still file a motion to stay so I can present my case properly with all the facts submitted?"
Attorney Daniel S. Khwaja wrote:
You are not really asking for a "motion to stay". Rather because you are post judgment you are looking to do either a Motion to Reconsider the Summary Judgment order, or a Motion to Vacate the Summary Judgment Order, and Motion for Leave to File a new answer with Affirmative Defenses.
A Motion to Reconsider the Summary Judgment order is really to tell the court why there was an error in the application of existing law. If your attorney never even filed the pertinent defenses to begin with then this would be improper to incorporate in a motion to reconsider. You are probably looking to to file a motion to vacate the summary judgment order and you will need an affidavit and other appropriate evidence that the defenses were not properly raised initially to no fault of your own.
Its probably going to be a steep hill to climb because you are put your case in the hands of a trained legal professional and the court is going to strongly consider that against the weight of any unfairness to the bank. The law is pretty clear that objections to confirmation of judicial sale are fairly limited and if you are raising a new defense you have to show that it was concealed from you. You are better off taking a shot at vacating the summary judgment orders under a 735 ILCS 5/2-1301.
The home was sold, there was a $54,000 deficiency on the sale. There was a home equity loan that is also with the same bank with a $72,000 balance. What should I do? Worried about settlements and how it progresses."- Quincy, IL
Attorney Daniel S. Khwaja wrote:
There are two mortgages at issue it sounds - the first and the second. The first mortgage can sue for a deficiency only if in the the motion to confirm the sheriff sale aka "report of sale and distribution" asks for a personal deficiency in the motion. If it does not and states "in rem" that means the deficiency is against the property and you will not be subsequently sued. If they asked for a "personal" deficiency against you in the motion to confirm sale but did not ask for it in their Complaint I would challenge it and ask for time to respond to the motion to approve sale. In any event, you need to review the motion to confirm the sale closely to see what relief they are seeking. If they are asking for an in rem judgment you are off the hook.
With respect to the second mortgage, we already know the proceeds from the sale were not enough to pay the first mortgage, and therefore the second mortgage will not be satisfied even partially. They can sue you for this amount in a subsequent proceeding to garnish wages or otherwise. Even if this 2nd mortgage was listed as a defendant to close out their title interest (even though they are the same bank) it only closes out their lien not the ability to sue for the money owed. Normally, the 2nd lien holder is willing to negotiate for a settlement amount knowing their interest will be closed out in the foreclosure. If you have cash on hand you should attempt to settle if possible otherwise you open yourself up for suit on mortgage.
A Chapter 7 Bankruptcy can also be an effective way to discharge the monetary obligations.
Buying a house, owner received papers regarding a foreclosure with previous owner nit being served papers 7 years ago"- Bensenville, IL
Attorney Daniel S. Khwaja wrote:
It sounds to me you are saying the following - you are considering buying a house. The house that you are considering buying is from a property that was purchased through a sheriff's sale in foreclosure by the current owner - the individual you are considering buying the property from. Now the person that lost the house in foreclosure (who was the defendant-owner) is challenging those court orders because he/she was never lawfully served i.e. there was no jurisdiction over that person.
Jurisdiction can be challenged any time in any proceeding. The only limitations that I am aware of in residential foreclosure actions is where the homeowner has either appeared in court for other reasons than (to exclusively challenge jurisdiction) or has otherwise filed an appearance. If he/she filed an appearance the prevailing statute requires a motion to quash be filed within 60 days of that appearance.
Long story short. If you buy the house you are subjecting yourself to the entire foreclosure being undone. This individual who is challenging service has a very steep hill to climb because whether he/she was served or not served the court is still going to have a presumption he/she knew about it. Now that is not a "legal" consideration but its certainly one he/she will have to deal with.
If he/she wasn't served properly they have a right to challenge the jurisdiction and there is no statute of limitations barring any appearance being filed or in court personal appearance.
Never been behind on my mortgage payments, but my finances have dried up due to a business I started which has taken up all my funds and savings. Will my situation allow for a reduction in my mortgage payment or can I buy extra time to pay my mortgage?- Wheaton, IL
I want to continue to stay in my home. Please advise."
Attorney Daniel S. Khwaja wrote:
There are often many programs available depending on the bank you have. A forbearance would be a nice option for you which would allow you to stop payments for a limited period of time. A loan modification generally occurs during a foreclosure because you have to demonstrate you no longer have the ability to pay at the current mortgage rate. So this does not generally occur pre-foreclosure. If you have an FHA note this opens up options including request your mortgage and note be assigned to HUD. There is no easy answer to this because more facts are needed to properly assess the programs available to you starting with the lender you currently have.
A 3rd party bought my property for $100K less that what it was worth. I had applied for refinance about 14 days prior to the sheriff sale and mortgage company started the process, also sent a letter that they are appraising the property. But nobody informed the mortgage company lawyer so the sale too place. So now they are saying sorry too late.- Chicago, IL
What are my rights in Illinois and owned the property for almost 13 years? My sheriff sale hearing is next week and got a letter from lawyer saying I will owe them $103K. Help!!"
Attorney Daniel S. Khwaja wrote:
A mortgagor is entitled to an evidentiary hearing on claim that price obtained at foreclosure sale was so low as to be unconscionable and that a large deficiency judgment resulted in justice not being otherwise done. See Resolution Trust Corp. v. Holtzman 248 Ill.App.3d, 618 N.E.2d 418.
I would file an objection to confirmation of judicial sale, generally speaking the bank or a third party is not expected to bid fair market value and rarely ever does. Simply stated the highest bidder wins even though it may be unreasonably low given the value of the property. However, courts have held a sale price at 1/6th the value is unconscionable. You can base at least one argument around that if its fairly disproportionate sale price.
You can also make an argument that sale was conducted during the consideration of a pending loan modification. However, you are not considered "under review" by the bank unless you have tendered all necessary documents but a creative attorney can come up with creative arguments to work around this. You should also be advised given the third party bidder is not a party to the case he has to file a petition to intervene. If he doesn't do so that is a third basis to object.
Our home is not a Fannie Mae mortgage; we have been trying to refinance our mortgage for over a year with no luck. Our credit is great but our home is underwater. Can an attorney help in getting the bank to refinance our current loan?"- Chicago, IL
Attorney Daniel S. Khwaja wrote:
There is some information missing here. I assume you have a rather high interest rate and you want a lower one to bring the overall. payment down. If you are asking for principal reduction that is a totally different issue and one that is hard to achieve. I have had clients receive offers to reduce their principal during a pending foreclosure but it is extremely rare.
You don't have to refinance through your bank. You can contact any number of lenders to refinance. The whole point of a refinance is to have your loan paid off and take the new one at the lower interest rate. That can be achieved at other banks. There's no law that says you have to keep your current mortgage relationship. You have the right to refinance with a different lender.
An attorney can help to negotiate a modification which is generally seen through a foreclosure. For a refinance you need a good mortgage broker. If you have good credit a refinance is much easier than a modification in a foreclosure. If they see you can afford your existing loan they will be less likely to work with you.
I was working with an attorney on a motion to oppose the confirmation of sale. In the process, I found out yesterday that my home is scheduled for auction."- Chicago, IL
Attorney Daniel S. Khwaja wrote:
You can file an emergency motion to stay sale if you have a basis such as a pending loan modification or a pending short sale for instance. You cannot however, do it just because you want too. You need a basis and usually an equitable one. However, for the pending loan modification emergency stays are usually granted by most judges.
Section 15-1508(b) of the IMFL provides in pertinent part:"..., after the foreclosure judgment and judicial sale, the circuit Court shall confirm the sale unless the court finds that (i) a required Notice was not given, (ii) the terms of the sale were unconscionable, (iii) the sale was conducted fraudulently, or (iv) that justice was otherwise not done." 735 ILCS 5/15-1508(b) (West 2008).
What this essentially means is objections to confirmation of sale are limited to those 4 provisions. If for instance you are attempting to raise standing for the first time in your objection courts will find that waived. (See Mers v. Barnes). If you did not participate in the case until now and there is a default entered it would be better to quickly file a motion to vacate the default judgment. You can do so under the holding in mcluskey if they have not already filed a motion to confirm sale. The filing of the motion to confirm sale is the cutoff under this supreme court decision. You are otherwise very limited in what you can raise in an objection as this is the last hearing before the court generally speaking.
We are a pro se in a foreclosure case. We have replied to the plaintiff complaint base on the state free legal advice. Right now we are just a few days away from the summary judgement, and we have just discovered forgery of the promissory note and several other loan problems. Is there any chance we can still withdraw an answer that has been already filed and make a new one? The case is in the IL State Court."- Chicago, IL
Attorney Daniel S. Khwaja wrote:
Yes but you cannot do so unilaterally. You need leave of court. You have two possibilities either 1) A motion to Withdraw Answer or 2) a Motion to Amend Answer. If you choose the later you should have a proposed answer attached to your to your Motion. Some judges do not require this but many do. Even in the first instance you should also have a proposed copy if you are withdrawing the old one and asking for leave to file the new one. A proposed answer that is ready to be filed is more likely to be granted because it shows you are ready to do so and there will be no further delay.
Some factors of whether it will be granted are the age of the case, and otherwise why you delayed in raising it in the initial pleading. Its always worth the try and I have successfully done so over the strenuous objection of the Plaintiff. Section 5/2-616(a) of the Illinois Code of Civil Procedure allows for parties to amend their pleadings by "changing the cause of action or defense or adding new causes of action or defenses." Further in Illinois, courts are encouraged to freely and liberally allow the amendment of pleadings. See Bank of Northern Illinois v. Nugent 223 Ill.App.3d 1. "failure to plead an affirmative defense in an initial answer is not necessarily a waiver." Mondschein v. Power Const. Co., 404 Ill. App. 3d 601.
If you are unsuccessful in either amending or withdrawing your answer to file your new one raise your defense in the Response to Summary Judgment. Some judges may find you waived your defense but it is discretionary. The cutoff point in all actuality is usually after summary judgment. For instance, if you raise a standing defense as an objection to confirmation of judicial sale illinois courts have deemed this waived. However, there are cases in Illinois where the Defendant raised his defense for the first time in Response to Summary Judgment and won on appeal. See Bank of America v. Adeyiga or First Mortgage Company v. Dina.
My home was auctioned on Dec. 27th of 2016, even though we had a cash buyer going to pay 340k in short sale, bank sold at auction for 264k, which didn't make any sense. I received a 1099-A in January 2017. Balance of principal was 421k. Our attorney is not returning our phone calls, either. We are at wits end trying to find out if the bank, Fifth Third Bank or Freddie/Fannie Mac are going to hit us while we're down with a deficiency judgment. Any advice would be appreciated."- Oak Lawn, IL
Attorney Daniel S. Khwaja wrote:
You won't know the answer to your question until they file Motion for Order Approving Report of Sale and Distribution, etc . You can review the motion and see if a personal deficiency is sought. If it states the deficiency is in rem or against the property you are off the hook. If they state a personal deficiency this means they can go after you in a subsequent proceeding such as a wage garnishment to sue for the money owed.
It is my opinion that if they sue for the deficiency you should challenge this by way of an objection. The standard under a 735 ILCS 5/15-1508(b) has 4 provisions for objection including justice not otherwise done. Its a tough burden to meet but if you had a short sale offer they denied it and are now suing you for more money than should have been owed by way of you mitigating damages I would file an objection. I would also challenge it if the complaint does not seek a deficiency. If you were never, and did not subject yourself to the jurisdiction of the court you wouldnt owe money either but it sounds like you had an attorney and participated in the case.
My father in law is the owner of the house we all live in but he too old to work. My sister in law is the person I give my rent to so she can put it in the account to pay the mortgage. I just recently found out she hasn't been putting the money in the account for an entire year and now the house it up for foreclosure. I find this very unfair because I have been doing what I was suppose to be doing and now my family and I have to suffer because she didn't do the right thing with the money. What should I do?"- Chicago, IL
Attorney Daniel S. Khwaja wrote:
First and foremost, I would get involved the foreclosure to extend your stay in the property, and potentially engage in any loss mitigation including a loan modification if you are an obligor on the note. It sounds like you are not an obligor on the promissory note, however, and only your father is. He can potentially modify the loan with consideration of your income also being included on any loan modification application.
Are you on the mortgage title at all? If you are not on the mortgage or note but otherwise have a rental agreement with your sister then you could perhaps sue her for misappropriations of your rental proceeds in small claims court, or a regular court of law depending on the dollar amount that was misappropriated. If she took your money and used it for a purpose that was unintended, and you have some type of agreement in place, written or oral you may have a claim against her. Since its civil and you willingly gave it to her it would not be defined as a criminal offense but it certainly may warrant a claim in a civil proceeding. There are many legal theories that you could use to bring a complaint against her for the misappropriation of your money. Hire an attorney.
If you have any legal right to the property and are on the mortgage title I would file an appearance as a defendant in the case, and hire an attorney and defend the property. If you are not on the promissory note or the mortgage title then you are a tenant and they would need to remove you by way of an eviction after the foreclosure proceedings have completed. If they find out you live in the property they may try to remove you in the foreclosure proceedings itself.
Bankruptcy 7 years ago. Attorney filed incorrectly and the house was not reaffirmed. Bank said, as long as the mortgage is paid, there will not be any problem keeping the house. Mortgage was paid for several years after Bankruptcy.- Bloomington, IL
Owner passed away. Attorney suggested the children (executors of estate) let house go into foreclosure. Foreclosure statement specifically named children, and children are told the foreclosure will show on their credit.
Can there be a foreclosure on a mortgage that was discharged in a previous bankruptcy?"
Attorney Daniel S. Khwaja wrote:
The filing of your bankruptcy petition if you surrendered the property rather than affirm it under the statement of intentions discharges the debt under a bankruptcy chapter 7 if that is what you filed. If it was not listed at all and you continued to pay then the debt may have not been discharged. It sounds like that may be the case. Anything not listed on a petition essentially falls through the cracks because the creditors that you have listed for discharge on that particular debt did not receive notice. A foreclosure is regarding the security lien aka the collateral to take the loan. That's their guarantee when you do not pay a house and they have every right to foreclose on that lien if the payments have fallen into arrears. So yes, they have the right to foreclose on the property whether the property was listed in the petition or not. Non-payment gives them right to foreclose.
With respect to the children's credit being affected. I disagree. If they did not borrow the monetary obligation their credit cannot be affected for a loan that was not extended as a promise to pay under their name. What they do have is an equitable interest because they are on the title which is exclusive from being the obligor on the promissory note. If the property goes to sale and there are any remaining proceeds left after the mortgage has been paid they will each receive payment proportionately to their equitable interest in the property.
We have been trying to get help to understand what we need to do but keep getting the run around. We don't want to loose our home but don't know how to stop the process. We just received a AMENDED NOTICE OF MOTION for Jan 5th.- Chicago Heights, IL
My husband and father-in-law are on the mortgage, but my father-in-law no longer wants to be on anything. We can't do anything on the house because his name is on all papers.
I was just informed about a quit claims deed but that will not remove him from the mortgage. He doesn't want to be involved with any of this. And my husband and I want to keep the house.
Please help us and point us in the right direction."
Attorney Daniel S. Khwaja wrote:
It sounds to me like your father in law signed the note. Thats really what this comes down too. Who took the monetary obligation and signed the promissory note? That person(s) are the one who will be able to modify the loan. If you didnt sign the note yourself youre not going to be eligible to modify the loan. The mortgage simply goes to title and who has an equitable interest in the property. It sounds like its a 50-50 with your husband and father in law but the key to modifying the loan and saving the property is who took the monetary obligation.
If your husband is on the mortgage then he should be a defendant in the case. That gives him a right to file a response or answer to any motions. If it is not too late I highly advise that he attends court today to protect his interests.
My home in Illinois was sold during a foreclosure sale in early July of this year. The record of the sale shows that the opening bid was $134,000 and the sale price was $134,000 with the "Plaintiff" as the the buyer. There were several other auctions that day that had opening bids of $0 and the final sale price being was was owed on the home with the "Plaintiff" as a buyer. Is there a difference between the opening bid being $134,000 and ending at $134,000 versus a $0 opening bid with a final price of $134,000?- Homewood, IL
The reason I ask is that I had read that if the bank bids on the home for the full amount that is owed, it can no longer pursue a deficiency judgement. Is this the case or am I reading that incorrectly? It matters a great deal as I am considering declaring bankruptcy in order to avoid the deficiency judgment coming back to haunt me years from now."
Attorney Daniel S. Khwaja wrote:
A deficiency judgment is when the the sale price does not cover the costs owed on the mortgage. If you received a full debt bid on the property by the bank then you should not owe a deficiency. The final bid in this case is what should matter. However, you will not know for sure until you receive the "motion to confirm sheriff sale" The motion will contain language that they are electing to pursue a deficiency if one exists. Based on the facts presented it appears as though one does not. Also bear in mind that this does not apply to any second mortgage which goes unsatisfied. The 2nd mortgage can certainly elect to sue in a subsequent proceeding.
After my divorce I cannot pay for my house anymore, despite a decent gross income ($130,000). In fact, despite my income looks so nice on paper, I'm having trouble to make my ends meet. My house is in foreclosure, and I've just put my home on short sale. I owe $210,000 as my primary mortgage, and $80,000 as an equity line. Wells Fargo is the lender for both mortgages. The market price of the house is now about $250,000, but considering all necessary repairs, I wouldn't expect any offers above $230,000- Plainfield, IL
And now the Question: Assuming short sale or foreclosure, will the second loan be wiped out automatically? I was explained that it will be not in case of Deed in Lieu or Consent Judgement."
Attorney Daniel S. Khwaja wrote:
The second lien held by Wells Fargo Bank, N.A. will only be eliminated for purposes of their security lien in the foreclosure. Naturally the first lien has priority and will be the basis for the subsequent foreclosure, and sale of the property. IF any subsequent sheriff sale were to commence and there were enough proceeds to pay both the liens that would be an optimal result. However, that rarely occurs particularly when the bank is the one usually buying the property back at a discounted price. Once the foreclosure concludes through sheriff sale, deed in lieu, or consent judgment, the monetary obligation on the 2nd lien will remain. Wells Fargo can subsequently sue you for this debt through a wage garnishment or otherwise.
One other thing you need to consider is that through a deed in lieu, or consent judgment the bank may ask for your financial information and you will essentially be exposing yourself in terms of the annual salary you make which is will beyond the average annual income. This could give them further incentive to subsequently sue on the 2nd lien once the foreclosure has commenced because a wage garnishment for them would likely be worth it.
Youre in a position that many homeowners find themselves. They have a decent income but their monetary debts on their respective mortgages exceeds the value of their property and puts them between a rock and a hard place...
Attorney Daniel S. Khwaja added:
A short sale means the bank is taking less than what is owed on the "first mortgage". The only way you will wipe out the 2nd lien holder is by a bid on the property that covers both. A short sale cannot come close to accomplishing this because by its nature the bank is taking less than what is owed on the first mortgage. Everything else remains true regarding the monetary obligation remaining and the bank potentially suing for it after the foreclosure concludes. The answer is no. A short sale cannot wipe out the monetary obligation on the debt for a future lawsuit. Its only wiping out the lien during the pendency of the foreclosure so that the first lien holder can foreclose. You are however in a better position in that you are dealing with a lender that holds both your first and second lien. You can deal with one party on the issue and try to negotiate a discharge of the monetary obligation at some type of discount.
- Homewood, IL
Need advice"
Attorney Daniel S. Khwaja wrote:
I believe your question is whether the bank can come after you for your property that you own i.e. live in that has equity while the other properties you maintain are currently in foreclosure. My answer to that would generally be no. If you havent put that property up as a security lien for the other properties you purchased that are subsequently in foreclosure, then you likely have not waived homestead rights to the current property you live in. If you live in the property as your primary residence it is protected.
I am interested in a tax deed sale property, and after a title search, It was revealed that in 2014 a lis pendens was placed, and also in the transaction details, calls it a foreclosure. Does this mean that the suit was taken care of?"- Streator, IL
Attorney Daniel S. Khwaja wrote:
A lis pendens is a "notice of foreclosure" to advise any and all parties that there is pending litigation regarding the subject property. The bank most likely is executing its interest in the security lien connected to the property as a result of the homeowner not paying their mortgage payments. If there is a pending foreclosure you can look at the online docket of any particular county to check the status of the case, generally.
What is important to realize... if you are buying someones taxes for their own failure to pay they generally have two years to pay you back. Under Illinois law, you typically get two to redeem the home, though the redemption period may be different depending on your particular circumstances (35 Ill. Comp. Stat. Ann. § 200/21-350).
In the the meantime, if the bank is moving to foreclose on that property what generally happens is they take over and pay any taxes as well as the property insurance. They have an interest in the property and plan to foreclose for failure to pay. There are competing interests at stake, and it is unlikely the bank will allow the taxes to go unpaid if they are trying to foreclose on the residence.
I have received an "order confirming report of sale and distribution, and for possession, and in REM deficiency." (IL)- La Salle, IL
Does this mean that I do not have to pay back the amount of the deficiency if I do not redeem the property?
It says that "if redemption occurs there will remain and IN REM deficiency in the amount of $$$ with the same lien priorities as to the underlying mortgage herein foreclosed, without any rights of homestead."
Attorney Daniel S. Khwaja wrote:
An in rem deficiency is against the property itself as opposed to against the person. Often the bank elects to not pursue the deficiency though there are factors to consider. But yes, if the motion to approve sale does not contain such language they cannot subsequently sue you later if there was money owed on the mortgage after the sheriff sale was completed.
You should also be aware that this only applies to the first lien holder and does not apply to any second mortgage whose interest may have been terminated in the pending litigation. They can still sue for the money that is owed in a subsequent proceeding.
We live in Cook County, Illinois. Our home was auctioned Dec.24th, 2015. We were recently notified that there is a $69,000, surplus fund. A representative of the company that purchased our home has said he can assist us with the necessary paperwork so the funds can be accessed quickly. He said this would entail a 20% fee for this service. Obviously, this money is critical for us making this transition."- Orland Park, IL
Attorney Daniel S. Khwaja wrote:
The presiding judge - Judge Jacobius is very particular about exorbant fees being paid to acquire the turnover of surplus funds which is a fairly simple process. He will ask the amount of money that is paid to your lawyer if you decide to hire him. 20% is a figure he very well likely not approve. You can handle this process on your own pretty easily and I suggest you follow the advice given by the other lawyers on the forum.
I received a Mortgage Foreclosure Summons from Cook County court, because I was made heir to my deceased brother's home now in foreclosure. The summons says I need to file an appearance, pay a fee of $203.00, plead in response to attached complaint, all within 30 days.- Hoffman Estates, IL
Maybe it's just me, but I don't understand what I'm suppose to do."
Attorney Daniel S. Khwaja wrote:
The short answer is you need to hire an attorney to assist you with the process. That's what were here for.
The long answer is that legal allegations via a complaint has been filed against your brother for non-payment of mortgage payments or some other security lien that has not been satisfied and has fallen into arrears. An answer sets the stage for the case addressing the legal allegations raised against your brother and allows you to raise any affirmative defenses which may negate the Plaintiff's cause of action. By taking no action a default judgment will be entered and the rights to sell the property with it. The 30 days can be extended to file the answer based on a number of different paths. However, if there is equity in the property, someone lives in the property, etc you need to get involved to protect your families interests.
Is produce the note still a viable stay process or what other motions can I make to delay the proceedings?"- Lockport, IL
Attorney Daniel S. Khwaja wrote:
A complaint has been served against you with legal allegations. You need to file an answer to the complaint and raise any legal defenses ie affirmative defenses that may be available. A motion to dismiss or strike the complaint may also be viable option in the early stages. After you file the answer discovery should be issued on the plaintiff.
If you want to time in the house you need to defend the foreclosure and hiring a qualified attorney will ensure you do that properly. Show me the note isnt a legal defense per se. One has been attached to the complaint which purports to be a copy of the original.
Get involved early and defend the foreclosure and you should be able to get at least a year though not an exact science.
Our house is in Illinois, but we are currently residing in Wisconsin. We just want to be rid of the property.- Crete, IL
Additional information:
We are upside down on our house. There will be no money for the lien. We have tried a deed in lieu, but we cannot with the lien on the house."
Attorney Daniel S. Khwaja wrote:
I am not sure if you are a private owner looking to foreclose but yes you can foreclose. Many foreclosure cases have the bank (primary lien holder) file a foreclosure even where a defendant owes a 2nd or 3rd mortgage. Those interests are terminated during the pendency of the foreclosure to the superior lien holder or first mortgage. The 2nd or 3rd lien holder can naturally sue for the money they are owed in another proceeding whether it be a wage garnishment or otherwise.
Its sounds to me that you are interested in foreclosing but a lien from a third party on the property is your concern whether it be a second mortgage, mechanics lien, or otherwise. Yes, you can foreclose and terminate their interests as long as you are the first lien holder.
I just got paperwork that states the judge has allowed the Entry of Default and am just wondering what the next steps in the process are. I know that It states that I have 60 days to get the redemption amount together but what if I can't? What happens next?"- Petersburg, IL
Attorney Daniel S. Khwaja wrote:
The better question is...are you interested in defending the litigation? If so you may want to consider hiring an attorney to vacate the default judgment and give yourself time to answer the complaint. Generally, motions to vacate default judgment are to be liberally granted but time is not endless and a motion should be filed immediately. If the default is vacated this will give you additional time to defend the litigation, raise any legal defenses that you may have, and work on loss mitigation options such as a loan modification, short sale, or cash for keys, or otherwise.
Raising the entire amount your mortgage is in arrears can be a daunting task and there are better methods available. Once that period has expired they will have the right by law to sell your property and subsequently confirm that sale. At that time you will be given 30 days (generally) to exit the premises. If you are interested in better options hire an attorney now and deal with the default that has been entered.
1. When seeking a deficiency judgment, at what point in the foreclosure process is this done by the bank?- Chicago, IL
2. Is it possible the the bank not seek judgment at time of foreclosure but send the acct to collections, or sue for breach of contract on the promissory note at a later time? If so what is the statute of limitations on this?
3. If i am not personally served (served by publication) and did not file an appearance, & the bank did not seek deficiency judgment, can they still move forward with the action described in #2?"
Attorney Daniel S. Khwaja wrote:
If a Plaintiff is going to seek a deficiency judgment they must first have it in their prayer for relief in the complaint. If they don't ask for it, they shouldn't be entitled to it. You won't know whether they are actually seeking the deficiency until the "Confirmation of Judicial Sale". At that point the property has sold and now the bank is seeking to confirm that sale. In the majority of cases the bank comes in and buys the property for usually half the value so there is almost always a deficiency between what is owed on the mortgage and what the property actually sells for. They don't always elect to sue on the deficiency and in many cases they do not. They still can and its something to prepare yourself for.
The bank almost always sues on the mortgage because that is their security interest and a viable asset they can use to help them recoup loses so foreclosure is their best avenue. Suing on the promissory note for breach of contract is possible but far less likely with the security interest they have in the property. Once there is a deficiency on the property sale they almost always sell that deficiency judgment off to a collection agency to get it through a wage garnishment or otherwise. Again you won't know about that until "Confirmation of Judicial Sale" which is after the judgment of foreclosure entered on a default, or summary judgment motion.
If a bank does not have personal service (in personam) and only has service against the property (in rem) they cannot seek a deficiency in the foreclosure judgment. However they can sue on the difference. A recent 1st district came came out LSREF2 NOVA INVESTMENTS III, LLC v. Coleman, that stands for the proposition they can sue on the balance of of the note though the facts in that case are not applicable in every situation and may lead to a different conclusion which may raise res judicata issues.
I was inherited a home from my mother that still had a mortgage left due. I got behind a month and received my 30 day letter to come current and which I did but the bank decided to accelerate the loan and demand it in full. I continued to pay and they sent my payments back and forced me into default when I didn't default on my own. I am the beneficial trust owner on the home and doesn't the trust put me on the note?- Kankakee, IL
There is no foreclosure defense attorneys in Kankakee County and all lawyers I have call insisting I file bankrupcty on a loan that was only 27 grand and now with interest and their lawyers fees its up to 40 grand. I can not stomach that I should have to do that when I never did anything wrong to begin with."
Attorney Daniel S. Khwaja wrote:
I think you have a viable defense to the foreclosure. Your case would need a careful review including the mortgage contract and its provisions but you generally have a reinstatement period, as well as time to cure. It sounds like you may have produced the payment before the default and payment may be an affirmative defense, as well as other avenues. The devil is in the details as they say.
I think in your case the acceleration was unwarranted. I would contact an attorney outside of your area who does coverage in your area.
He filed before this was showing through the chancery court. He isn't asking for back rent just possession."- Chicago, IL
Attorney Daniel S. Khwaja wrote:
Yes. Although a judgment being entered against your landlord and his property largely determines most of his rights in the litigation, it is not a final order. Confirmation of judicial sale is a final order and until that day occurs he has full rights to his property and may use it as he chooses.
Sheriff sale took place 10/2/2014"- Romeoville, IL
Attorney Daniel S. Khwaja wrote:
The general rule is 30 days to vacate the premises. However, if you have a hardship or other extenuating circumstances which you address to court some judges are inclined to extend the order of possession an additional 30 days.
In addition, if there are other occupants residing in the property that were not defendants in the foreclosure the sheriff will not enforce the order of possession. A second lawsuit known as an "eviction" will need to be filed with the eviction court to remove all occupants concurrently.
I co-own a property (Condo), I do not live in this property. The other co-owner has Ch 7 BK [ Chapter 7 Bankruptcy ] and it is his primary residence. Property will soon enter foreclosure. This other co-owner is refusing to cooperate (do short sale, deed in lieu, move out) and is planning to drag the foreclosure as long as possible by contesting in court. My questions are:- Chicago, IL
1. How can I expedite the foreclosure?
2. Since house is underwater, I will be possibly facing a deficiency. Will I also be responsible for all the missed mortgage payments while the other co-owner occupies the property during foreclosure process?
Basically, from date of Past Due to Completion of Foreclosure, how can I understand ALL the potential costs, (ie. attorney fee, late fee, additional interest, etc) if process takes 3-5 years?"
Attorney Daniel S. Khwaja wrote:
Since you are a co-signer on the monetary obligation you are on the hook for the deficiency. Your other co-signer is likely extending his time in the property as long as possible because he is living rent free, and will not face any judgment costs when the case is finalized. A win-win for him but it could have a detrimental impact for you.
The banks normally come in and bid around half the value of the property. If the house is worth $150,000 they may enter a bid around half but it can vary and is usually never what the property is worth. The amount that is bid on the property is subtracted from the amount owed on the mortgage and you have whats known as the "deficiency". Now you have other costs such as attorney costs by the Plaintiff, court fees, etc which will be factored in. Missed mortgage payments will also continue to accrue.
Unfortunately you cannot expedite the foreclosure. If the co-signer on the monetary obligation is raising legal defenses to the foreclosure - he has every right to do so and have those adjudicated on the merits.
With respect to the deficiency in my personal experience in a very small percentage of cases are the banks actually seeking a deficiency. However, they certainly can and you will be responsible for the accumulation of the expenses that will continue to occur. Unfortunately, since they can no longer sue the other co-signer you are the only obligor remaining on the note they can elect to pursue.
You won't know if they intend to do so until the end of the case when they move to confirm the sheriff sale of the property. If the foreclosure has yet to begin, that could be months if not a couple years from now.
I live in Madison County, Illinois and have a hearing for judgement for foreclosure and sale very soon. I was served the original summons and ability to answer the complaint in December 2013. At the time, I requested mediation through the court but no agreement was reached and mediation was terminated without agreement. I am currently working with an Illinois Housing Development Authority agency to bring my account out of arrears. It appears as though my time to file an answer passed last December, however.- Collinsville, IL
Should I appear in court and request more time or just let the foreclosure judgement go forward while IDHA reviews my case? If it would be worthwhile to appear in court and request this of a judge, I will do so."
Attorney Daniel S. Khwaja wrote:
It sounds like they are moving for a default judgment, and a judgment of foreclosure in sale. Most judges in chicago and the surrounding suburbs generally allow a defendant in a case time to answer the complaint at a default hearing. Things may be different in Madison County.
You could file a motion for leave to file answer instanter as some of the attorneys have suggested. One thing is for certain, coming to court at the default hearing with an answer prepared to file that day will be much more persuasive to any judge than asking for more time to answer the complaint, when eleven months have already passed.
I would contest the judgment and have an answer ready to file that day. This allows you to raise any legal defenses you may have in your case. Standing, Grace Period Notice, FHA defense, etc. Waiving those defenses and resting your case entirely on loss mitigation is a bad idea. It may end up unsuccessful and you may need to try again in the future and may not have the time to do so.
Filing an answer to the case is essentially a "reset" of the clock and is strategically your best move at this time.
I recently received this court order but did not show up for the court date. Is this just to start the foreclosure proceedings?"- Park Forest, IL
Attorney Daniel S. Khwaja wrote:
It is usually means to amend a detail that may have some type of misnomer or minor error. If you think it is a change that is substantial in nature, effecting their cause of action, or their ability to foreclose then you should appear at the hearing and object to the Motion. If the court allows, file a written response or ask to brief the motion.
I am in the middle of a foreclosure on my home. I was told to file an appearance and an answer which I have done, but now I am being asked to file a response. I have no idea what I am responding to or what kind of paperwork I'm supposed to file."- Elgin, IL
Attorney Daniel S. Khwaja wrote:
If you filed an appearance and an answer it sounds like they are moving for Summary Judgment. This is where if a genuine issue of material fact exists as to your lawsuit it is time to raise that to their motion for summary judgment. Their motion should address whatever legal defenses you raised in your answer (if any); their legal basis why those legal defenses do not raise a "genuine issue of material fact"; and why they believe a judgment should be entered against you. Judgment is entered 90 days.
It is also possible you are being asked to respond to their motion to strike affirmative defenses, where they essentially move to strike and dispose of your legal defenses earlier in the litigation so they will not have to address them when moving for judgment. You haven't provided enough information in your question to know what motion has been presented, and what you need to respond too.
While some pro'se are capable of doing an adequate job in defending their foreclosure with some help, the reality is you are not an attorney and are not giving yourself the best opportunity to defend your case. You may want to consider hiring an attorney.
Wells Fargo has tricked me into 4 forbearance programs and 0 happen."- Chicago, IL
Attorney Daniel S. Khwaja wrote:
I will first assume you are in foreclosure if there is a pending sale date. The most important question is, do you want to keep the house? If you do then submitting a loan modification is a feasible option, particularly if you have a high interest rate and there is room for it to decrease and your payments with it. The submitting of a loan modification can have the effect of the bank unilaterally stopping the sale on their own accord. If they do not unilaterally stop the sale you or a hired attorney can file a motion to stay the sale based on your pending application for modification.
Depending on the county you are in, many courts will routinely grant the motion to stay sale to give the homeowner the opportunity to stay in the house. That tends to work in everyone's best interest and is favored by courts. That point assumes you want to keep the house.
Now if you are in a pending foreclosure and do not want to modify the loan but want some additional time in the property you need to get involved in the case. Have you filed an appearance? Have you filed an answer? My guess is you haven't. If you haven't then you likely had a default judgment entered against you.
I suggest you move quickly to have that default judgment vacated and hire a trained professional. The case law is clear that once the property is sold, and the plaintiff bank has filed a motion to confirm sale you will no longer be able to vacate the default judgment. If the court allows you to vacate the default judgment this will allow you to file an answer to the complaint and raise any legal defenses you have available in the case.
Whatever decision you make, it needs to be made quickly. Time is not on your side.
My cousin is on disability with severe Asthma and COPD. He can no longer work. The bank is ready to foreclose on his house because he cannot afford the mortgage payments anymore. If the bank would do a loan modification to lower the interest rate from 6.7% to the lower current rates, he would be able to make the monthly payments on the income his wife brings in and his disability payments. The bank has refused all of his requests to modify his loan.- Chicago, IL
Is there anything he can do before the bank forecloses? They did send him foreclose papers."
Attorney Daniel S. Khwaja wrote:
He should consult an attorney and evaluate the legal defenses he has available in the case. Unfortunately, there is nothing that technically requires a lending institution to offer a loan modification. Assuming the paperwork was submitted correctly he may have been denied for other reasons you are unaware of. Many loan modifications are denied simply because the homeowner didn’t get them the necessary documents. It could be minor, or something more significant.
Your fact pattern does not indicate the reasons for denial. With any loan modification you cannot make too much (that demonstrates the ability to pay) but you also cannot make too little because that shows the inability to pay.
Supreme Court Rule 114 requires that a lending bank comply with any programs available prior to moving for judgment. However, the ability to actually challenge this affidavit is much in question, as it is likely more procedural. Your cousin should hire an attorney to defend the foreclosure and consider submitting another loan modification package in the future – with some legal guidance to assist him. The good thing is the average foreclosure can take a fair amount of time and the homeowner will have ample opportunity to engage in future loss mitigation. This all assumes he hires an attorney and gets involved with the case sooner, rather than later.
I had a 2nd home under my name for family. They abandoned the house and I was stuck because of the housing market crash. I paid it for almost 5 years and due to medical problems I stopped. I tried doing a short sale unsuccessfully. Now the home is in foreclosure.- Naperville, IL
How do I protect my primary home and myself? My income cannot support both loans, I can barely cover mine."
Attorney Daniel S. Khwaja wrote:
Difficult question. The first and probably best option is a Loan Modification. If your interest rate is at the middle to high range you can apply for a modification. Under the Making Home Affordable program your interest rate can go as low as 2% which may bring down your monthly mortgage payment, perhaps significantly. Not every lender is a HAMP participating lender, but banks also have various in-house programs that might allow a restructuring of your loan to your advantage. You also need to consider the fact you may not be able to keep both properties, then you need to strategically cut your losses and determine which property is best suited for you. If a short sale has not come to fruition also consider finding an able renter. This will allow part if not all of your mortgage payment to be paid, so you can pay the less difference, which in combination with your other property should bring your total monthly costs down.
Another option to consider is a Deed In Lieu. This agreement essentially means you surrender the property to the bank in exchange for a waiver of any deficiency (make sure that is part of the agreement). This of course assumes you are willing to let go of the property but again it is time to strategically cut your losses if you cannot either modify the loan, or find an able renter to reduce your expenses.
Finally, if you think none of these options are available you need to aggressively defend the foreclosure and raise any legal defenses available to buy you additional time in the property. This will ultimately effect your bottom line which is saving money in the interim to relocate down the road.
I would strongly advise hiring an attorney to begin to address these issues and put a strategy in place.
The original lender sold foreclosure to new party. Now there is a motion to substitute party plaintiff, which I am attempting to oppose.- Bloomington, IL
I am searching for Illinois case law that will support the argument that substitution in this case is not allowed, etc."
Attorney Daniel S. Khwaja wrote:
Gilberts, Bayview, Mers v. Barnes, etc are some of the cases related to standing. If your objection is based on some type of standing defense due to the issues with the assignment, cases like this may be instructive.
You should file an objection to substitution of party plaintiff and drop off a courtesy copy, or in the alternative, ask to brief it. Many judges will not allow you to do more than orally argue your opposition to Plaintiff's Motion, so if you want to cover the basis file an objection to substitution of party plaintiff, and drop off a copy for the judge to read. That way he understands your argument, and you have protected the record with a filed objection.
I am unaware of any relevant mortgage foreclosure cases where the court wrongfully allowed a substitution of party plaintiff and the trial court was subsequently reversed. Your argument will likely stem from using general assignment/standing concepts, if that is where you are going with this argument.
Our mortgage is under water and we also have a second mortgage. Homes are rentals on either side of us, and abandoned homes across the street and 2 doors down from us. [The] neighborhood has deteriorated over the last few years."- Rockford, IL
Attorney Daniel S. Khwaja wrote:
The first question is whether there will be a deficiency in the foreclosure. A deficiency occurs when the the sale price of the house is less than what is owed on the mortgage, or in this case the first and second lien holders. Your fact pattern alludes to having two mortgages against the property.
In most cases the sale of the house does not cover the deficiency and if your fact pattern is correct that home values are deteriorating in your neighborhood that certainly will not help. Depending on what you owe on the mortgage if a deficiency occurs with the first lien holder, then you will certainly owe on the 2nd mortgage as there would be insufficient funds to cover the debt in connection with the 2nd mortgage. If that is the case what this will come down to is whether the the first and second lien holder elects to sue you for the arrears on the mortgage. The first lien holder would be less likely since they secure the property but it can certainly happen. The 2nd mortgage is likely guaranteed to end up with nothing which makes possibility of a suit more likely.
If you file a bankruptcy to dispose of the debt, your pension under a Bankruptcy Chapter 7 would be a protected asset. However, if you elect to not file bankruptcy and a suit is filed against you then the court will assess your ability to pay and what the appropriate payment might be per month.
You should consult an attorney preferably one who practices in both foreclosure and bankruptcy to cover the bases and explore your options. It is always best to get involved with the foreclosure early. Potential options to dispose of at least the first lien holder would be a deed in lieu. You may need to come to terms with the 2nd mortgage holder since they are likely to come up with nothing out of the foreclosure. Given that, they are often willing to negotiate.
I was not informed of the court date on March 18 that granted the foreclosure. The papers said I was, but [I was] not. I need more time to relocate and sell everything I can. I am unemployed, diagnosed with depression/anxiety, on medication, have no benefits of any kind for food or insurance, housing. I have to apply for disability. I was stuck with the house after a bitter divorce...(truncated)."- Chicago, IL
Attorney Daniel S. Khwaja wrote:
If you have never appeared in court, and you were never served you can file a motion to quash service. I would review the online docket of your particular county to determine the procedural history of the case. In cook county, you can view future court dates, the date you were served, etc, and the system is fairly accurate.
With respect to your property being sold, Plaintiff's counsel is suppose to send you a "motion to confirm judicial sale". At this time you can file an objection if you think you have a legal basis that warrants such an endeavor. With respect to appeal, if you haven't been actively defending this case an appeal would likely not produce the outcome you want. An appeal is to challenge preserved legal issues at trial, not an opportunity to raise new ones. If you were never served in this case a better path would be to file a motion to quash service, and for the foreclosure to start over again.
The bank took me to court twice, 6 months apart to foreclose on my house, but both times they were dismissed without prejudice. I was just wondering what will happen next? Can they file again?"- Chicago, IL
Attorney Daniel S. Khwaja wrote:
They will be back. It could be weeks or months, but at some point they will re-file the foreclosure for the third time. Unfortunately, the banks are not in the business of giving away free houses which is why the law suit was dismissed "without" prejudice as opposed to "with". That means they can re-file the foreclosure and they will.
The loan may have been transferred, their may have been an untimely breach letter, issues with proper endorsements on the note, or numerous other issues, which caused them to dismiss the foreclosure. You should investigate the case to determine if this is something that you can be used as a legal defense to the complaint when they file the case for the third time. I would even ask opposing counsel the reason for dismissal. They may or may not share the reason with you.
The good thing is you will have additional time in your home, and additional opportunities to consider loss mitigation such as a cash for keys, consent judgment, loan modification, or otherwise. If your top priority is simply additional time in the home you are looking at an extended period of time, particularly if you defend the case aggressively when the case is re-filed for the third time.
I trusted [a] lawyer to stop a foreclosure and modify my loan. Its been more than 2 years and I had been making payments to this lawyer. By the advice of this lawyer I have been avoiding all calls and correspondence from the banks over this time period. Now, I find out through a telemarketing call that my home is scheduled to be sold. I'm a single parent with not much money. However, I trusted this lawyer and followed all advice given.- Chicago, IL
Additional Information -
As a parent of 2, I live on the North side of Chicago and my property value hasn't really suffered so my loan amount will probably stay the same , would it be harder for me to get an affordable payment under bankruptcy protection giving my property value."
Attorney Daniel S. Khwaja wrote:
Your question is somewhat inverted. First, in order to sell your property they must have a "judgment of foreclosure and sale". Without this judgment they have no right to sell your property. If you have a pending sale date that means the judgment of foreclosure and sale has already been entered. Therefore, the filing of bankruptcy will not stop the judgment of foreclosure and sale. That has been adjudicated by the court, or in other words, the judgment has been entered.
The good news, the filing of the bankruptcy will stop the foreclosure case. The moment you file a petition for bankruptcy (I am assuming you are filing a chapter 7), this will halt all collection efforts on behalf of all creditors. Your foreclosure case will be removed from state court and taken to federal court.
At some point, the bank will request the trustee to release the pending foreclosure case out of federal court and send it back down to state court. I have seen this take a few months up to an additional year. So this will give you added time in the house, and the foreclosure will resume in state court once it has been released from federal, and the bank elects to resume the foreclosure. If you are surrendering the property in the BK [ Chapter 7 Bankruptcy ], this means when the foreclosure has finalized you will not owe any debt on the mortgage.
What is the consensus on offering a second lien holder a settlement?"- Chicago, IL
Attorney Daniel S. Khwaja wrote:
It depends. Are you current on your first mortgage? If you are this gives you more reason to preserve your house. Remember either a 1st lien holder, or 2nd lien holder can foreclose on your property. Even if the 1st lien holder is current this will not matter if the 2nd is not. In this particular circumstance you may want to consider coming to terms with your 2nd lien holder to avoid a foreclosure.
Now if you are in arrears with both the 1st lien holder and 2nd lien holder, and you see little value in your property or reason to save it, then pursuing a settlement may not be as beneficial to you. You have provided limited facts in your question and what type of settlement you are seeking. The general answer is it depends what your status is with the 1st lien holder. If they are in the process of foreclosing on the house then the 2nd lien holder's interest in the property will terminate upon commencement of the foreclosure. Unless the property has significant value above and beyond what you owe on the 1st mortgage this means the 2nd lien holder will likely not get paid. Their interest will extinguish in the foreclosure and you will find out at a later time whether they have an interest in pursuing a separate suit against you for the amount owed on the 2nd mortgage. At this time you may want to consider a bankruptcy to discharge this debt.
The positive on all of this is that the 2nd lien holder knows they are in a position that is unlikely to get them either the house, or significant proceeds from the sale of the residence. For this reason, they are often willing to negotiate.
I recently went through a HAMP modification and am current on the first mortgage. When looking at the rules of HAMP, it appears that there is foreclosure protection included, meaning, if you enroll in the program, and fall behind on payments, they do not want the lender to foreclose and want other options, such as deed in lieu and or a short sale.
I only mention this since, if the first lien is governed by such rules, I would think the second is also."
Attorney Daniel S. Khwaja follow-up response:
The general rule is if the first loan is modified pursuant to HAMP, the 2nd lien holder is also suppose to modify the loan. Has that happened? If not, that is something you should explore.
With respect to the foreclosure protection you have described. There is no rules in place that actually forces the bank to do any of this. Most of these rules have no teeth and are also not recognized affirmative defenses in mortgage foreclosure either. Supreme Court Rule 114 requires a Plaintiff prior to moving for judgment k to comply with all the programs that are part of the subject loan. This is the most direct rule right now that at least puts "some" pressure on the lender to conform to its respective lender programs. Otherwise, there are no guarantees the bank will necessarily honor any of the potential options you have outlined. If you want to keep the property I would inform your lender your first mortgage was modified pursuant to HAMP, and you are seeking similar restructuring for your 2nd mortgage.
Our landlord has told us that we "had better pay her for July rent" or she is going to proceed with eviction proceedings. The thing is, the Sheriff sale is this week at the courthouse! Are we still supposed to pay her?- Chicago, IL
Also, if she can take us to court for not paying, can't we ask the judge to dismiss because there was a judicial sale? Lastly, she keeps saying that her bankruptcy is going to put a stop to all of this. Is she right?
Is there something she can do after the sale to get the property back or is it basically a done deal at this point? It should also be mentioned that she says the lights and gas will be cut off if she can't get our July rent money. Any insight is greatly appreciated!!"
Attorney Daniel S. Khwaja wrote:
In mortgage foreclosure the case has not concluded until confirmation of judicial sale. The sale has occurred, and the bank, or third party bidder moves the court to confirm the sale. At that instance, there is now a final order and the owner of the property generally has 30 days to vacate the premises. Conceivably you are responsible to pay your landlord up to confirmation of judicial sale because until that has occurred, she is still the owner of the property.
If the owner of your property files bankruptcy that will send the case up to federal court before it is subsequently dismissed and sent back to state court. That tends to add a few months (or longer) to the foreclosure which will ultimately mean your landlord's ownership interest will be extended. She will continue to have a legal right to collect during this extended period of time.
If the property is sold and your landlord has not modified the loan, or engaged in other loss mitigation efforts prior to the sale she likely will not be in a position to keep the property permanently, and it is a matter of time before she relinquishes her interest in the property.
I refinanced a Bank of America (BOA) mortgage in 2011, but before I could refinance I had to remove my father from title. He signed a quit claim deed at the closing and I just noticed that he was asked to sign the Mortgage as 'tenants by the entirety' as well. I solely signed the Note. BOA never filed the quit claim deed and left him on title, stating 'they need additional paperwork and he was not available to sign.'- Chicago, IL
I became disabled, lost my job and filed Bankruptcy Chapter 7 in 2012. My father quit claimed in 2013 and I received a foreclosure summons with my dad named as defendant as well. BOA screwed this up and I don't want my dad's impeccable credit affected. I have the emails from 2011 with his quit claim to property prior to refinance. Please help."
Attorney Daniel S. Khwaja wrote:
The reason your father is listed as a defendant because he is on the mortgage title. He has an equitable interest in the property and the bank has to close out everyone's interest, whether they owe money on the promissory note, or not. Based on the facts you have provided your father's credit will not be effected by the foreclosure if he did not sign the note.
You will notice other defendants might be listed on the case from the homeowners association, to 2nd lien holders where a 2nd mortgage may have been given. This is a matter of housekeeping for the bank to ensure all potential parties with an interest in the property is effectively closed out. Your father's credit should will be unaffected by the mortgage if your facts are correct as presented.
I thought my lawyer who handled by BK7 [Chapter 7 Bankruptcy] was aware of my foreclosure and was responding to the complaints. I just found out he was not and I have to file an answer to a foreclosure complaint in 48 hours.- Joliet, IL
I searched online and found my best bet would be to file a motion to extend my time so that I can find a new lawyer who can properly answer the complaint. I found a sample outline of a motion, but how do I correctly tell the judge that the lawyer I thought was responding to this stuff, was not [in fact responding]?"
Attorney Daniel S. Khwaja wrote:
You would simply title your motion as a "Motion for Extension of Time" and your motion is going to be pursuant to supreme court rule 183 which sets forth an extension on pleadings where more time is needed based on a good-faith basis. You simply in your motion attest to the facts and circumstances which have come to light recently that are your basis for needing an extension.
Good luck!
Reading other posts it seems that this is the final leg of the foreclosure process?- Chicago, IL
I have lived in this condo for eight years and have no desire to move. Two other units in my building have foreclosed over the years and they went to auction selling for very low. I am interested in buying my condo. How long at this point will it be until an auction date is set and should I contact the law firm of the bank to negotiate before the auction?
My fear is I don't want to lose to someone else at the auction. These condos are very nice and in demand especially at low auction prices. I also am wondering if the bank would negotiate low enough with me to be comparable to what it would go for at auction? I of course want the chance to get a good deal on this place"
Attorney Daniel S. Khwaja wrote:
First, you should be aware that if you have a valid lease the bank can be forced to honor the remainder of that lease. You are tenant, not the defendant in the foreclosure case so that gives you additional rights. Look into Keep Chicago Renting ordinance which now requires relocation expenses of 10,500 if the bank decides to sell the property. In any event, if you have a valid lease in place with months remaining on it, you can certainly force the bank to allow you to stay for the duration of the lease if they are not otherwise selling the property, which brings you back to the relocation expenses under the new ordinance.
It certainly would not hurt to contact the law firm as an interested buyer ahead of time, but the house still has to go to sale. Once the judgment is entered there will likely be a 90 day redemption period for the current buyer to buy it back at the full price. After that, probably in the 1-3 month range, the property will go to sale, and come back and be confirmed. You can show up to the sheriff's sale and attempt to be the winning bidder.
In most cases the bank usually comes in and bids for the property at around half the price, third party bids though they happen on occasion, are a little more rare. You can certainly go in there and place a bid which will likely be higher than the bank's offering. If you do become the winning bidder you should hire a lawyer to intervene into the foreclosure case so that you can move to have the sale confirmed, instead of the bank.
My husband is exhibiting signs of mental incompetence at the moment. Need to know if I can contest?"- Glen Ellyn, IL
Attorney Daniel S. Khwaja wrote:
Is there a pending foreclosure in this case? Has the matter concluded? These are the more pertinent questions. Some realtors often tell people to leave their homes prematurely when they certainly do not have too. A realtor has no power to command you to leave your house, only the court does.
So the primary question is whether there is a court order in place i.e. order of possession from a foreclosure case that has concluded. If there is, the realtor may be passing on information to you. If there isn't, he my have ulterior motives to get you to leave the house prematurely. You need to further investigate this matter. All counties have online dockets and you certainly look up your case information depending on your area to determine if a case was filed against you or your husband as defendants in a foreclosure matter.
I got a summons dated 4/29 saying I have 30 days to file an answer to the summons or "if you fail to do so, a judgement by default may be taken against you for the relief asked in the complaint."- Joliet, IL
But then it says I may be able to save my home through mediation, and the date for that is 06/18. And it says "...you must appear on the mediation date given or your right to mediation will terminate."
So my question is, if I don't respond to this summons, does my mediation date get cancelled and the foreclosure continues? Or do I still get to try mediation even if I don't respond? Pretty much, what am I supposed to respond with? It says I can "file an answer in this case, or otherwise file your appearance in the Office Of the Clerk of this court". Has my redemption period started yet?"
Attorney Daniel S. Khwaja wrote:
When a complaint is filed you are suppose to file an answer within 30 days to the complaint. If you do not, your case management date will not be cancelled. The case management date is a hard date that always occurs in an effort to work out mediation with the bank. However, filing an answer to the complaint is mandatory if you want to prevent a default judgment. A default judgment will give the bank the rights to your property and subsequently the right to sell it. Often people do not file an answer in the allocated time, and appear on the default hearing and ask for time to respond. The judge usually grants the defendant an opportunity. However, its always best to get involved in the case early, rather than taking unnecessary risks.
You can also appear on the case management date on June 18th, and ask for 28 days to answer or otherwise plead to the complaint. If you think mediation will be unsuccessful you can still use this date to get involved in your case and ask for time to respond to the complaint. The judges generally grant this with no issue.
I'm one of the victims of Countrywide mortgage fraud. In my foreclosure the bank made so many mistakes and at the end, my house was sold while it was being reviewed for modification. Since I cannot prove I was waiting for modification, the judge approve the sale."- Chicago, IL
Attorney Daniel S. Khwaja wrote:
The confirmation of judicial sale is when you are allowed to appeal as of right. You have reached that time so if you have issues that have been preserved at trial and lost then you should, and can consider appeal. If you did not protect those legal issues at trial in your answer, or at some point prior to, or leading up too summary judgment, appeal may be futile.
You noted that at the confirmation of judicial sale your property was sold during a pending loan modification. That is certainly one appealable issue as confirmation of judicial sale where there is a pending loan modification is a clear violation of 1508. Did you file an objection to the confirmation of judicial sale, or otherwise preserve the record to that issue? What did you file in your answer with respect to the mortgage fraud you claim to have occurred?
Talk to a good appellate attorney and see if appeal is worthwhile pursuit for you. Just remember, appeal is not the time to raise new issues, but argue why the ones previously raised were wrongly decided. If the record has been adequately protected appeal might be a good recourse for you.
I'm currently in a foreclosure suit (Cook County). I received a letter from Green Tree Lending stating that they have purchased the loan and to remit payments to them instead.- Chicago, IL
How does this affect my pending foreclosure suit? I checked the County Deed's office and no assignment was recorded between now and the date the suit was filled. What is the role Green Tree Lending will play from here on out?"
Attorney Daniel S. Khwaja wrote:
TIt sounds like the "servicing" rights may have been purchased. However, if is entity that actually acquired the loan they must have a motion to substitute party plaintiff heard and granted. If this does occur you can file an objection to the substitution if you think there is a legal basis i.e no endorsement, or assignment to the new plaintiff.
The cook county recorder of deeds usually has most assignments of record online. Not always the case. In your case if there was a transfer it should be recorded but you should further investigate. If you received notice regarding this transfer it almost always distinguishes in the letter between "servicing" rights and purchasing the loan. Look for language that says your servicer rights were purchased. If that is the language within the notice this is likely not a defense to the case unless Green Tree lending is also trying to foreclose on the property. If that is the case, they again will need a endorsement, or otherwise valid assignment.
The judge state plaintiff didn't give proof of non mortgage payment. As the defendant should I be filing any motion to be compensated."- Joliet, IL
Attorney Daniel S. Khwaja wrote:
Are you in Will County? In some counties such as lake there will be a foreclosure trial if you win on the summary judgment. Judge Thanus in Will County is relatively new in the chancery division and I am not sure if he will have a trial or not. I never saw his predecessor holding trials either. It is possible you may have one as noted by the other attorneys on this forum. You should put together all relevant documents you believe would be admissible at trial. If payment is your defense you naturally want proof of those payments. Foreclosure trials are extremely rare but nevertheless happen so be prepared.
In your case both of you moved for judgment and both were denied. That means a genuine issue of material fact remains as to both of your allegations. You suggest they didn't provide proof of non-payment? Are you suggesting there was not a 191 Affidavit of "Amounts Due and Owing" connected to their motion for summary judgment? The failure to include this affidavit would preclude summary judgment.
In your case if it was a failure to provide documents on behalf of the Plaintiff they may get their ducks in a row and move for judgment again with all the corresponding documents, or they may file a response to your affirmative defenses, or as noted it may go to trial. I have seen all three scenario's at one time or another.
Since you have not won the summary judgment either you are not yet entitled to reasonable fees as a result of this litigation against you. I assume this is the basis for your motion to compensate. It sounds to me the case is still ongoing and the plaintiff may need additional documentation to prove their case of non-payment, or conversely, you need to put forth more evidence that you did pay. More information is needed regarding what you are alleging as the basis of your defense, and what the Plaintiff subsequently failed to produce at hearing for summary judgment.
Can a debtor, whose name is not on a mortgage, but whose name is on the note to the property, still be protected by the automatic stay?"- Melrose Park, IL
Attorney Daniel S. Khwaja wrote:
The question you are really asking I believe is whether the bank will proceed on the foreclosure if one of the defendants who signed the note files bankruptcy and the case is brought up to federal court. They can elect to pursue each defendant according to their own preference. At summary judgment it is not uncommon to see the bank pursuing for a default against one defendant (they didn't answer or appear) and moving for summary judgment against the other. I have seen these situations where the defendants are husband and wife.
The answer is yes, they can pursue any defendant that signed the note who did not file bankruptcy. The question is for purposes of efficiency will they? It is not very efficient to pursue a judgment against one defendant, wait for the automatic stay to be released, and then proceed for judgment against the other defendant. I think they will likely wait for the automatic stay to conclude before resuming the foreclosure. This is because while the bankruptcy deals with the money owed on the debt. They still need to have a judgment entered and subsequent confirmation of judicial sale against all defendants in order to get the property i.e. "order of possession".
So in short, the answer to your question is no, the defendant who did not file the bankruptcy is not protected by the automatic stay. However, they may very well reap the benefits of it anyway which will be more time because it is inefficient to elect to not pursue foreclosure on all defendants at the same time.
They had me on a trial period since last November. The terms were to lower my interest rate, and attach my arrears to the end of my loan without changing my maturity date. My trial payment was made on time and now they are trying to keep my payment low with the same interest rate I had with Chase and trying to tack on a balloon payment of $30,000 payable when my loan matures. please help!"- Country Club Hills, IL
Attorney Daniel S. Khwaja wrote:
This is one of those situations where simply giving general advice on the matter will likely not help. You need an attorney to review the documents and the terms of your loan modification, and whether they kept in accord with the the agreement. You should obviously contact the lender directly in attempt to have them reconcile the situation. If they refuse to keep the modification in line with the original terms you agreed too, then you will likely need to raise these defenses in the foreclosure, when, and if, this happens.
There may be an affirmative defense for breach of contract, or other counter claims that might apply. You have in good-faith made payments to lender pursuant to the trial modification and they appear to have subsequently altered its terms. The recent 7th circuit case of Wells v. Wigod sheds some light on what viable state law claims and defenses may be available.
I looked up the case online and it say "CERTIFICATE OF MAILING NOTICE BY PUBLICATION FILED" - what does this mean on the cook county case information docket? Is the association being served by publication? How do we get a copy of the summons? Do we have to wait for it to be published?"- Chicago, IL
Attorney Daniel S. Khwaja wrote:
Service by publication is used when the Defendants cannot be found upon "due inquiry" within the state. In your case the homeowner association should be listed as Defendants in the case. If they are not properly served and have an interest this is a basis to file a motion to quash service by publication. In many cases the service processor has not made a worthwhile attempt in actually trying to serve the Defendants. You need to review the service by publication affidavit to determine whether they have stated a proper basis to publish the service.
If you are a defendant in the case after you file your appearance you can contact the law firm directly and they will provide you a copy of the summons. As noted by the fellow attorney on this board you can also go directly to the Daley Center on the 8th floor and request the file to make a copy. I should also note if this is near the conclusion of the case and the property has gone to sale that publication notice may be regarding the sale of the property itself.
If I was given the date of May 7 (90 days) to become current. Which I will not be able too. When exactly will I have to move out. I do not much material things. Maybe a truckload. But I have horses I have to move. That calls for "reservations" and the farm I'm renting won't be ready until July 1st."- Woodstock, IL
Attorney Daniel S. Khwaja wrote:
The 90 days you were provided is known as the "redemption period" where you can pay the amount in full to become current. This option is usually not feasible for the majority of homeowners. During this period of time the bank will not take any action with respect to selling the property and will not subsequently do so until the stated period has ended.
You might see a sale date after the stated redemption period in May, June, or even July. Once the property has gone to sale they still have to come back and confirm the sale what is known as "confirmation of judicial sale". This is your last opportunity to raise any objections to the foreclosure as listed under 1508 of the ILCS. If you believe you have a legal basis you should file the appropriate objection to this Motion for Confirmation of Sale.
Once the sale has been confirmed you generally have 30 days to move out of the house but this can be extended based on some type of hardship circumstances if one exists. Many judges have been opening to extending it to 60 if their is a good faith basis. At any rate you will likely not have to move out in May and will be looking at sometime around the summer, give or take.
I have lived in my home for 30 yrs, but it is in my brothers name. He went through bankruptcy . and the home has been sold at sheriff's sale (2/6/14). The bank has been given and order of possession (3/10/14) and stated that he has 30 days before the Sheriff is directed to evict him. He no longer resides here. I am not listed on the order of possession.- Aurora, IL
Can I be evicted on that order? We have not been given a notice of options by the bank. We realize that we will have to move, but would like additional time to relocate."
Attorney Daniel S. Khwaja wrote:
Generally speaking, the order of possession that is entered at the confirmation of judicial gives the defendants listed in the case 30 days to leave the premises (unless that order has been extended by the court). The order only applies to defendants and does not apply to other tenants listed in the home. When the sheriff arrives at the residence he will not remove individuals who are not listed on the order of possession. A second lawsuit known as an "eviction" will need to be filed to deal with the occupants that were not otherwise listed on the order of possession.
Foreclosure judgement (summary judgement) went in favor of Chase bank around the end of January. I'm in redemption period and awaiting possible sale date. I sent in an inquiry for modification. They sent me back a standard mortgage assistance package, which includes forms to fill out and possible options. I have been through this before. I do not currently have a hardship. Also I don't trust them.- Oak Forest, IL
Do I fill out the forms with a remote chance they might give me a modification or just try and do a DIL? I don't understand why they want all this information for any option other than a mod. As I said, I don't really trust them anymore. I don't really want to give them all this info unless they are really going to do something for me.
I would like to know what you think."
Attorney Daniel S. Khwaja wrote:
I frequently have my clients submit loan modifications at, or around, the time of judgment. I actually prefer to wait until judgment if the case has merit. That way I can defend my clients interests first and ensure the case is adjudicated on the merits.
Some clients may prefer to modify their loan and have few legal defenses in the case. In those cases I might submit the loan modification significantly earlier. In your case, I think it is certainly worth pursuing the loan modification if your primary interest is keeping the house. Lenders will still approve you despite a judgment being entered. It is when the property has been sold in my opinion that modifying the loan is usually a difficult task. In that case the bank or a third party bidder has already purchased the property at sheriff sale. Modifying the loan becomes contrary to the new ownership of the purchaser.
If your in redemption period and want to keep the house take a chance at the modification and see what comes back. Submitting the application increases not only your chances of keeping your home but delaying the sale of the property. Many banks will not proceed to sell the property and will extend the sale date based on a pending loan modification application. A homeowner can also file a motion to say the sale if a modification application is pending. So even if you do not get the modification you want you may very well get more time in the home.
Submitting an application will likely give you more options than doing nothing.
Our home is in the final stage of foreclosure. The house was auctioned off to an investment agency, and in a few days the judge will have to sign off on the sale to finalize it. As we are experiencing tough financial times, we are not looking to keep the house or contest the sale. However, the house was sold for about 25% of what what we owed on it (once all the fees were factored in), leaving a huge deficit to the bank.- Lansing, IL
Since they are taking the house how common is it that they will be awarded the deficit money for the house, also? What will this mean for us at tax time next year? What options do we have available to us if they go this route? What should we be saying/asking for when we show up for this final court date? "
Attorney Daniel S. Khwaja wrote:
You can file an objection to confirmation of judicial sale, if applicable. Take a look at 735 ILCS 5/15-1508. There are 4 prongs that may provide a basis for a court to deny the confirmation. There is currently case law that a purchase of a home at sheriff sale that is 1/6th the value is "unconscionable". That means the court can deny the confirmation based on sale price. There are other reasons to deny a confirmation of judicial sale but you have presented some information that might be a basis for denial under the statute. I do not know how you have arrived at your current numbers but if the property value is significantly higher than the sale price you may have a basis for objection. File it and drop it off and least 5 days prior to the court hearing to your respective judge. Send a copy to opposing counsel as well.
Read the motion to confirm sale. Does it request a deficiency? If it doesn't then one will not be sought against you. When a foreclosure is filed with the "Complaint" it is not till this stage in the proceedings where you actually find out if the bank will pursue a deficiency.
The motion to confirm sale will instruct you accordingly if a deficiency is sought. If not, only the judgment will be entered against you, they will still need to file a second law suit to actually acquire the funds in arrears.
Review the motion and file the appropriate objection, or hire an attorney to do so for you.
We are tenants in a property that has had the foreclosure sale confirmed and the bank is taking possession in less than 20 days. We are looking to relocate however our landlords (homeowners) are still trying to regain control of the property. What are the odds they are going to be able too? +/- 10%?- Addison, IL
The reason I ask is because we are looking to purchase a house and need to move quickly to do this and not be on the street."
Attorney Daniel S. Khwaja wrote:
A tenant in a property cannot be removed via an order of possession in a foreclosure. They have to file a separate proceeding known as an "eviction" in order to remove you. Tenants at the bare minimum have a right of a 90 day notice. If you are a bona-fide tenant with a valid, fair market lease, they may have to honor the remainder of your lease and allow you to stay in the premises.
If you are a bona-fide tenant and live in cook county and you are forced to move as a result of the bank selling the property you may be entitled to "relocation assistance" under the Keep Chicago Renting ordinance. There are rights available to you. You may want to consider hiring an attorney to review your lease and determine your rights.
How much does it cost to to hire an attorney, I have met with one so far and he wants $1,200.00 down and $300.00 per month and can keep me in the home for 2-3 years? Really that long?"- Winfield, IL
Attorney Daniel S. Khwaja wrote:
There are multiple variables that determine the length of a foreclosure proceeding. The county you are in is one of the main driving factors. Are you in DuPage County? Since I litigate in this area fairly often I would describe their court call as about mid range in terms of total number of cases at present. Other factors include legal defenses you have in your case, and the speed in which the bank aggressively forecloses.
In DuPage most cases do not last three years generally speaking and usually come to conclusion before that time period. 1 to 2 years is the appropriate range in this particular county but this is not an exact science and your case could be a year, or under. If you have members that are in your household that are not defendants to the case, or are otherwise not involved in the litigation, because they did not borrow any money on the loan, and are not on the mortgage title the case could be extended longer to deal with those occupants that reside in the premises via an "eviction".
Your first court date is probably a status as opposed to Cook County which would be an initial case management date. I base this on the assumption you are in DuPage. DuPage also has an online docket to verify when your next court date is. With respect to fees you should always check around to see what is the going rate for the work performed and make your decision appropriately.
Most importantly, do not rely on your July date as the timeframe for which you should become involved in the litigation. That court date is nearly 4 months from now. Unlike Cook County where the initial case management date is guaranteed, there is no such guarantee in DuPage. If you don't file an appearance and answer the Plaintiff will likely move for default before that time. A default judgment allows the bank the rights to your property and the ability to sell it at sheriff's sale. Decide on an attorney and get involved in your case now.
My court date was Dec 2013 and I did not fight the bank's foreclosure efforts. I no longer reside at the property. I want to terminate my redemption right to avoid potential liability for the uninsured property."- Chicago, IL
Attorney Daniel S. Khwaja wrote:
You cannot terminate your right of redemption. It is a statutory period, provided by law, to allow the homeowner to purchase the property at full price if they can raise the funds to do so in the appropriate period of time.
In most situations the best way to avoid liability would be: A. negotiate a consent judgment or cash for keys with a waiver of deficiency included. B. File a chapter 7 bankruptcy to discharge the debt, or C. wait and see if they will be moving for a deficiency at all. Once they sell the property and move to confirm the sale you will know whether are electing to proceed on a deficiency. Many banks elect not to pursue a deficiency but they certainly can.
Your fact pattern suggests you no longer reside at the property. Who does? It also tells us judgment has already been entered so you may have lost significant negotiating power by not engaging in a consent judgment with waiver of deficiency earlier in the proceedings. They still may be willing to work something out if you exit (from a constructive possession stand point) the premises now, rather than later. You won't know unless you reach out, or higher an attorney to assist you in this matter.
And we are at a point where next week I have a Judgement of Foreclosure and Sale Court Case. Is there any way I can postpone this process as I work with the bank on a Loan Remod [ loan modification ] or Short Sale?"- Gilberts, IL
Attorney Daniel S. Khwaja wrote:
Generally speaking, it is totally on the banks elective whether they want to postpone the foreclosure based on a loan modification or short sale. Nothing that occurs outside of court with respect to loss mitigation has any bearing on what happens in court. It is your obligation to respond to the legal allegations against you the best you can.
If the motion is for initial presentation of judgment you should request time to write a written response to the motion. This can give you weeks if not months depending on the county that you are in. Hearings on motions for summary judgment in cook county are delayed as far as 4 to 6 months. Requesting time to write a written response and hearing date may be your best most move for additional time. I am not sure what county you are in but you should file a written response if that option is presented to you. If you have already waived that opportunity you need to appear at the hearing and make any formal oral arguments that you can (if court will allow without written response).
If they are moving for a "default" judgment, then you need to appear and ask for 28 days to file a answer to plaintiff's complaint. Most judges will allow this. This will generally give you significant time to work on loss mitigation. If judgment is entered next week and all else has failed, you should have a 90 day redemption period which allows you to buy the house back for the full amount. They won't move to sell the property until after the 90 days is up. This process can take another 3-5 months from judgment on the hearing date. Once the property is sold they still have to come back and confirm the sale which will take additional time. Your best bet is to work hard on the loss mitigation before any sale has occurred. Once the property has been sold the bank is far less inclined to work with you.
Just remember loss mitigation outside of court is not a legal defense.
I have three years of forfeited taxes on my property . I want to know if I can work with an attorney to get them reduced since the county was not able to sell my taxes at any of the tax sales. Also I'm thinking of filing chapter 13. I was told they can be rolled into bankruptcy. Is this my best option?"- Chicago, IL
Attorney Daniel S. Khwaja wrote:
I think setting up a payment plan with the local tax assessor is your best move.
Mortgage Company purchased mortgage; I owed 231K when payments stopped. They purchased for 231K. In person deficiency judgment is asking for 59K; basically all the late fees, legal fees & such; my ex claimed Chapter 7 Bankruptcy immediately after moving out, so I assume if the judgment is ordered it will fall on me. I've seen a lot of legal blogs stating it's rare for a big bank to be awarded a deficiency judgment. I'm with Bank of America.- Algonquin, IL
My question is should I go to court and plead for no deficiency judgment? Should I be freaking out like I am? I know I can always file Chapter 7 Bankruptcy, but I've spent the last year trying to do the right thing and pay off my debt. If I have to file bankruptcy all that will have been for nothing, not to mention the $2,000 I'll have to spend to file.
Any advice on how to proceed in this Kane County big bank foreclosure?"
Attorney Daniel S. Khwaja wrote:
I would first ask what happened in the foreclosure. Your facts are not completely clear if that has already been completed, or whether the case has just been initiated and they are asking for a deficiency in the Complaint that has been filed. The question of being "awarded" the deficiency is an inaccurate term of art. The bank files a foreclosure via their "Complaint", earns the right to the property via a judgment and subsequently sells it. The sale price is subtracted from the amount owed on the mortgage which establishes the basis for the deficiency.
The bank elects whether or not they want to pursue a deficiency. Many do not pursue a deficiency but some do through a wage garnishment, or otherwise. The court does not award the deficiency, the mortgage company is already rightfully entitled to it if the sale price of the property doesn't satisfy the amount owed on the mortgage.
It is not clear from your facts if "Mtg Co" who purchased the mortgage is now foreclosing on the property that was the basis of the loan, OR the foreclosure has completed and now a second law suit has been filed against you to garnish your wages for the deficiency that you are liable for (minus the amount your ex owed which is now in bankruptcy). If your asking how to defend a second lawsuit which is essentially a collection from the previous case you are going to be hard pressed to find any legal defenses in the case. They already earned the right to collect that money from the prior case.
If the mortgage deficiency was assigned to a party different than the foreclosure you can review for general deficiencies in that assignment which can delay the case. They may not have a legal right to collect from you if there was not a proper assignment. A bankruptcy would probably be the only guaranteed way to discharge the debt.
If you are in the beginning stages of a foreclosure there are a multitude of options available to you.
foreclosure is final and was purchased at auction by my lender, which in itself is confusing to me how a bank buys its own loan but no matter; confirmation of sale hearing is next week and the motion I received Thursday states "That there shall be an In Personam deficiency judgment entered in the sum of $59,077..."
Does that mean they will definitely be coming after me for the deficiency? And one last bit of confusion, if the amount owed per the Judgment of Foreclosure and Sale Order was $277K, it sold for $231K per the county; how did they come to a deficiency amount of $59k? Thank you for your insight."
Attorney Daniel S. Khwaja follow-up response:
It would appear based on what you are telling me they are proceeding on a "motion to confirm judicial sale". The motion for confirmation of judicial sale is generally when you find out if they are moving for a deficiency. Most people do not know throughout most of the case until the very end whether the bank will pursue the deficiency. You have reached the end and it appears they are in fact moving for a deficiency against you. Without a review of your documents I would not know how they came to this specific amount but your ex husband's liability may have been taken into account when determining the smaller amount they have apportioned to you.
With respect to confirmation of judicial sale, In this scenario you can file an objection to confirmation of judicial sale based on 735 ILCS 5/15-1508. That statute outlines 4 potential avenues for objection. For example, if the sale price of the home was unreasonably low this could constitute the basis for an objection. I would review the statute and determine if you see any applicable provisions towards your circumstances (or hire a lawyer to handle this stage of the proceeding for you).
With respect to confirmation of judicial sale, In this scenario you can file an objection to confirmation of judicial sale based on 735 ILCS 5/15-1508. That statute outlines 4 potential avenues for objection. For example, if the sale price of the home was unreasonably low this could constitute the basis for an objection. I would review the statute and determine if you see any applicable provisions towards your circumstances (or hire a lawyer to handle this stage of the proceeding for you).
If no objections are available you need to either 1. enter into settlement negotiations on the personal deficiency or 2. consider a bankruptcy to discharge the debt. If you have some money available a settlement could be a good option for you if you can negotiate down the total amount owed.
They do appear to be moving for a deficiency which can subsequently be collected through a wage garnishment, or otherwise. It may very well be time to consult an attorney.
We have been renting a house for 2 years now from a family friend, so we have no lease agreement. When entering the house we were told the house was in foreclosure, but was being saved by the owner with a lawyer and after 2 or 3 years we could buy it. Now, we received a notice at our door stating the house has been sold in auction on January 24,2014.- Elgin, IL
I contacted the realtor cited on that document, and was told the house now belonged to the bank. Our landlord keeps harassing us to leave the house and pay rent. I told him we wouldn't pay them any more. Now they are harassing us asking for a document to prove the house was already sold so they can show that document and not pay the house taxes.
What can we do in this situation? Does the landlord still have any rights over us and harass us?"
Attorney Daniel S. Khwaja wrote:
If you had entered into a valid written lease prior to the foreclosure notice i.e. "lis pendens" you would have been a bona-fide tenant and could have finished the remainder of your lease. In this case you don't have a valid lease, however you are still a tenant in the property.
The bank, or new owner will have to evict you through a legal process known as a "forcible entry". The bank probably purchased the property in the sheriff's sale as they are usually the only bidder in most cases. It is possible a third party came in. Nevertheless, you should receive a 90 day written notice that they intend to file a forcible entry. Technically you cannot be removed until the court enters that order. You can appear at that court date if you like but you will likely have no legal defenses to the forcible and it will be entered.
With respect to your landlord, if the property is sold already to another bidder the bank, or otherwise, you have no duty to provide him any further payment.
Both mortgages were not reaffirmed and were discharged in May 2013. I was just served with foreclosure papers in March 2014. There is a tenant living on the property"- Rockford, IL
Attorney Daniel S. Khwaja wrote:
The answer is no "if" you did not re-affirm the debt in your petition. It sounds to me as though you did not and you included the debt and surrendered the property. The debt will be discharged and there will be no personal deficiency against you, only the property itself. If there are other individuals on the note the bank can certainly pursue them through a wage garnishment, or otherwise.
BUT he has NEVER been in the military before. Does that mean he falsified information to a Wells Fargo?"- Morris, IL
Attorney Daniel S. Khwaja wrote:
No. Additional protections are in place for service members, namely if they were an active service member in the last 12 months the court must stay the proceedings for 90 days.
I have been challenging PNC foreclosure successfully past 18 months pro se. Case dismissed once based on HUD procedural violations - PNC refilled. Prior to court date PNC sold loan to Kondaur. Pretty sure that indicates PNC could not foreclose. However, case is still on court docket. Judge's secretary informs me case will proceed as planned because Kondaur can be substituted as Plaintiff.- Bloomington, IL
Kondaur is only the servicer. Matawin Ventures Trust owns loan per Kondaur's documented evidence. Ever heard of this procedure? Is there a defense?"
Attorney Daniel S. Khwaja wrote:
I have seen this scenario in the past. I would be be very surprised if they do not file a motion to substitute party plaintiff. If they do not and somehow PNC is granted a judgment that would be what is known as a "void order". In other words an uninterested party in the litigation received judgment. Void orders can be challenged at anytime on appeal. 735 ILCS 5/2-1401(f).
What I would recommend is filing an "Objection to Substitution of Party plaintiff". This is not a motion that needs to be scheduled. You should provide a courtesy copy to the judge 5 to 7 days before the hearing on the motion for substitution of party plaintiff. (read that judges specific standing order for courtesy copy requirements) In your objection you will lay out the basis for your objection including the servicer is not entitled to foreclose on the property, has not otherwise received a valid assignment, is not listed as a servicer to the plaintiff in the complaint, etc.
If your facts are accurate you have quite a bit of information to work with. Long story short a servicer can only foreclose if they have pled their capacity as the servicer or has otherwise received a valid endorsement or assignment from the previous note holder.
Without the motion for substitution of party plaintiff you do not know what legal basis the new plaintiff will be foreclosing under. You are going to have to wait it out until you do. If your facts hold up and the servicer does in fact move to foreclose without the proper authority drop off a timely objection to the judge beforehand.
Do i need to go?"- Harvey, IL
Attorney Daniel S. Khwaja wrote:
The better question is do you have an objection to the confirmation of judicial sale? If you plan to go unrepresented in this proceeding I suggest you review 735 ILCS 5/15-1508. This statute sets forth the basis in which you can object to the confirmation of sale.
If you no longer have an interest in your property appearing at the court date is optional. Just be aware if you are not there the sale will confirm, and an "order of possession" will be entered against you, and generally speaking you will have 30 days to exit the property. If you need more time and have a basis to extend the order of possession this is another good reason for you to attend the hearing.
735 ILCS 5/15-1508 (b) Hearing. Upon motion and notice in accordance with court rules applicable to motions generally, which motion shall not be made prior to sale, the court shall conduct a hearing to confirm the sale. Unless the court finds that (i) a notice required in accordance with subsection (c) of Section 15-1507 was not given, (ii) the terms of sale were unconscionable, (iii) the sale was conducted fraudulently, or (iv) justice was otherwise not done, the court shall then enter an order confirming the sale.
Is there anyway I can get more time because they say I have 30 days after the notice of motion?"- Midlothian, IL
Attorney Daniel S. Khwaja wrote:
It sounds to me like the notice is the "Motion for Confirmation of Judicial Sale". I would review the motion first and determine if you have any objections to the confirmation. If the sale price was unreasonably low, there was fraud, the note had been sold to someone prior to confirmation you may have a basis for objection. This can preclude confirmation.
If there is no basis to object, you can request the order of possession be extended beyond the 30 days. In my experience you need to put forward to the court something that is reasonable like a medical necessity, sick family member in the household, etc. If you do not have such a basis the 30 days will be the general rule. Either way it never hurts "to ask". The worst the court can say is no, and if it is granted your in better position than you were before.
It is also important to note that the order of possession applies to people who were generally defendants in the case i.e someone who borrowed the money or was otherwise on the mortgage title. If there are individuals that do not fall under that description in your household a second lawsuit for a forcible entry i.e. "eviction" may be necessary to remove all occupants.
I was renting a condo the owner lost it to foreclosure. The bank that bought it contracted a realty company to contact me with a Cash For Keys offer. The realty company told me to discuss the offer with my wife, [but] a day later my parents died in a car accident so I had to leave town for 3 weeks. I come back and call the realtor to accept the Cash For Keys offer and he said the offer was off the table, and to take advantage of the offer I needed to say yes to the offer within 7 days of him offering it to me."- Mount Prospect, IL
Attorney Daniel S. Khwaja wrote:
Did you enter into the lease prior to the foreclosure i.e. "lis pendens". If you did that means you may be what is known as a bona-fide tenant. If you are a bona-fide tenant they have to honor the remainder of your lease. Do you have a written lease in place from the former owner? What are its terms? When does it expire?
If you live in Cook County the protections go even farther with the Keep Chicago Renting ordinance. The measure, dubbed Keep Chicago Renting, will require the foreclosing bank to provide the tenants a rent-controlled lease until selling the property or pay them a “relocation assistance” fee of $10,600 per unit.
I am not sure if the new ordinance applies to you based on the area you are writing from. That being said, if you are not an otherwise bona-fide tenant, as noted by the other attorney on this forum you would be entitled to the 90 day notice.
Just over 4 years ago, my family Moved to the area from a larger, metropolitan area. Bought a beautiful home, in what we thought was a good neighborhood. Circumstances have changed, and we need to move (so I can care for a family member). We have attempted to sell FSBO, and recently reached out to realtors to potentially list the property, so we can get on with this next chapter.- Peoria, IL
Every realtor that we have spoken to has come back with list prices well below what we paid (our neighborhood is transitional, and schools are declining). We are current on all payments, and don't carry a large credit debt to justify filing bankruptcy (maybe I'm wrong). What options do we have to walk away from a house that we believe is only going to drop in value? Is deed in lieu an option?"
Attorney Daniel S. Khwaja wrote:
There are various solutions. Yes, deed in lieu or a consent judgment is one possible alternative subject to bank approval. This allows you to reduce the negative impact to your credit report without further damage. The fact you go into foreclosure is going to impact you so be prepared to take a hit. Most banks are willing to do consent judgment for the simple reason that you are getting out of the property early and save them months, if not years, litigating the case. In my experience it is almost always a viable option but will require you going into foreclosure to have this option extended to you. If you intend to pursue such an option make sure you negotiate a waiver of the deficiency (what property sells for minus what you owe) otherwise they can legally go after you for this deficiency if they elect to.
A short sale is also an option but as you have alluded too the property value is depressed. One option that will not require an attorney is simply renting the property out. Many homeowners like yourself are finding it difficult to sell the property but can no longer reside in the property. Finding a suitable renter can help you reduce costs without negatively impacting your credit report. It also gives you time in the hopes your property value increases over time. If you think you can find a renter that might be the best bet if maintaining good credit is a top priority.
There are also many available programs available with respect to your home loan which are government sponsored, or in-house such as HAMP. Prior to foreclosure you could consider refinancing your property, during your foreclosure you could consider modifying your home loan.
In some cases though significantly more rare lenders are reducing the principal balance. If presented such a an option it might make keeping the property worthwhile. In many cases the homeowner has an interest rate that is relatively high and a loan modification can at least bring this down to a more reasonable rate, assuming you qualify. This means a lower monthly payment.
I think these options are probably the best but many require going into foreclosure. If you absolutely do not want to be negatively impacted on your credit consider finding a reliable renter to take over the property
I am scheduled for case management on March 4th. A securitization audit determined fraud with regard to my note and mortgage. When I notified Bank of America, they transferred servicing of my mortgage. I then stopped paying the mortgage and asked them to address the issue and they brought a foreclosure action against me. I am ultimately looking to sue for quiet title and need assistance."- Chicago, IL
Attorney Daniel S. Khwaja wrote:
I don't know if based on the information you provided a suit to quiet title would be the appropriate remedy. That being said, assuming your audit is correct you certainly have an affirmative defense that "may" be a bar to foreclosure.
Litigating a standing issue in Cook County can be a difficult proposition and it requires being intensely invested in the case from discovery, to having a court reporter at many of the proceedings. Many of the judges are hesitant to seriously consider a standing defense where the bank has produced a note. Mere possession of the note often wins the day in the chancery division in Cook County. Whether they are in fact entitled to enforce it is another proposition.
If you are serious about this case, attempt to hire an attorney and send him/her in by March 4th to court to request time to answer the Complaint. If you are unable to secure an attorney you are comfortable with by that date you should go in yourself and request 28 days to answer or otherwise plead, and file an appearance. If you don't take those initial steps you can expect the bank to move for a default judgment shortly thereafter.
We have been trying to save our home through HAMP but Wells Fargo refuses to work with us at all. They will only let us pay everything we owe plus lawyer/court fees if we want to keep our home.- Aurora, IL
Isn't Wells Fargo suppose to work with home owners? Is there legal action I can take against Wells Fargo for not complying with HAMP?"
Attorney Daniel S. Khwaja wrote:
HAMP does not not create a private cause of action. However, at least one court has held (Wigod v. Wells Fargo Bank) that while it does not create a private cause of action, it does not pre-empt valid state based claims either. I am not sure I see a state based claim as of yet but it's possible one could exist. Unfortunately, many banks will not consider HAMP until you are actually in foreclosure. In fact, many will tell you to stop paying and go into foreclosure even though the homeowner is clearly trying to remedy the problem prior to that outcome. It doesn't make much sense but this is the current foreclosure landscape.
I would advise you save all records of dates/times they refused to engage in loss mitigation ie HAMP with you during the foreclosure proceedings. Supreme Court Rule 114 now requires lenders to comply with all available loan programs in connection with the subject loan. You won't be able to raise this defense until summary judgment but the rule clearly states the court can deny summary judgment if the lenders refuses to comply.
The rule requires a loss mitigation affidavit be attached to their motion for summary judgment demonstrating how they complied with the rule. This means they need to outline whether they sent you letters, phone calls, etc in attempt at loss mitigation. The rule also requires that they list all the applicable programs that apply to your subject loan.
My suggestion is to stay on top of any correspondence where they refused to comply with HAMP and include it all in your response to their motion for summary judgment. Prior to foreclosure they technically do not have to comply with HAMP.
My parents have been fighting a foreclosure through loan modification. Their lawyer is impossible to get a hold of; lawyer does not return emails or phones calls. I believe that this lawyer has done little to no work on this case and now my parents are losing their home. I believe this is a direct result of the lawyers negligence. Supposedly an eviction is on the books although no sheriff has come by yet.- Aurora, IL
What can I do? Is it too late for my parents home? Can I take action against the lawyer?"
Attorney Daniel S. Khwaja wrote:
A loan modification is not a defense to a foreclosure. This is a separate negotiation that takes place outside of the litigation and is not related to the litigation itself. Many firms offer loan modification services, others offer foreclosure defense, and many offer both. If your parents only hired the attorney for the loan modification that would not have stopped the foreclosure unless the bank chose to do so voluntarily. Any foreclosure lawsuit requires an appearance and then an answer to the allegations filed, what is known as the "Complaint". Your parents may not have hired the attorney to defend the foreclosure itself.
All of the Illinois counties Cook, Kane, Lake, DuPage, etc have online court dockets. The online dockets give at least some indication of what has taken place in the case and would be worth looking at to determine what work, if any, was done on the case. If the property has already been sold, and there has been a confirmation of judicial sale the case has been completed. It sounds like that is the current situation if you are aware of the fact the sheriff will be enforcing the order of possession.
Your parents (not yourself) may have a claim against their attorney. I think what first needs to be determined is for what purpose he was hired. Many homeowners hire attorneys for loan modification purposes only which is not a defense to the foreclosure. That being said, it is unprofessional to not return phone calls and your parents should investigate further.
I lived with a woman in her home as a renter with a lease. The home was foreclosed on and I don't know what bank owns it. I went to Kane county recorder and it has several banks listed. The foreclosure notice has US Bank Association as trustee for BNC mortgage.- Aurora, IL
Who owns the property?"
Attorney Daniel S. Khwaja wrote:
It sounds like the Plaintiff is US Bank Association, so for all intents and purposes they are the ones that are seeking to foreclose on the property based on the 1st mortgage lien. You should be aware there are laws in place to protect a bona-fide tenant. If you had a valid lease prior to the filing of the foreclosure aka "lis pendens" you can force the bank to honor the remainder of your lease, however many months that may be remaining. If you know the case number for the foreclosure (which should be on the notice) you can go to this online docket below and enter the case number in and do a search.
The attorney that filed the foreclosure will be listed on the docket as well as a contact number. I suggest you contact him to notify him of your bona-fide tenant status (assuming you have a valid lease) and make an arrangement with him. All the information you need should be listed below.
We currently have two home mortgages one house in my wife's name and one (our primary residence) in my name. We intended to rent the old house. It is upside down if we were to attempt to sell at this point. If we cannot continue to make the mortgage payments on the old house and it goes into foreclosure, how will that effect our primary residence?"- Chicago, IL
Attorney Daniel S. Khwaja wrote:
Your primary residence should be protected. If you took the loan out on the property under your name, and used your wife's property as collateral then you might have a problem. However, I see nothing in the facts here that suggests that.
If you need time in the property under your wife's name you may want to consider a foreclosure attorney to defend the litigation. That will ensure the case is adjudicated on the merits. If you take no action in defending the suit the process will be expedited. That will ultimately mean the Plaintiff will receive a judgment, have the rights to sell the property, and subsequently sell it at sheriff sale. Whatever the property sells for will be subtracted from the amount owed on your mortgage. This is what is called a "deficiency". The banks can pursue a deficiency through a wage garnishment, or other means if they choose too. If you don't want that property and consider it a burden you can engage in other loss mitigation options such as a consent judgment where you can negotiate a waiver of the deficiency and perhaps a cash for keys to move out of that property early. Many options are available if you get involved in the case early.
Closing on our 2 unit home today, and 1st floor tenant has not moved. Received notice from sellers realtor (who had power of attorney for seller) twice in the past year. Wanted the house no matter what, not going to offer cash for keys. We want no money from them, just want them OUT.- Chicago, IL
With the deed being transferred today, can the previous owner's tenant delay an eviction in court due to unemployment and lack of funds to move? Have all evidence to prove they previously received termination notices for month-to-month rental, and will issue new 30 day notice to them when we close today?"
Attorney Daniel S. Khwaja wrote:
Those are not legal defenses to the case. The previous eviction (aka forcible entry) should be enforceable. If you really want to cover your bases you can file your own forcible entry since you were not a party to the previous eviction. The sheriff is behind several months particularly due to foreclosures.
ILCS5/15 1507(c)(2) states the Lender to publish 3 consecutive weeks in the newspaper no more than 45 days for first published within 7 days last published. The head of legal notices at the newspaper has confirmed that my lender has not even once let alone 3 times published my foreclosure sale. The date is Monday February 24,2014. Can I file an emergency motion to dismiss sale date for noncompliance with ILCS5/15-1507 (c)(2).- Quincy, IL
What Other Remedies are there? If I can file for a dismissal should I include my sworn affidavit? Should I get something from the newspaper to file with the motion?"
Attorney Daniel S. Khwaja wrote:
I would file an objection to confirmation of judicial sale based on 735 ILCS 5/15-1508. That statute lays out the 4 provisions that can be the basis for precluding confirmation of the sale.
Hearing. Upon motion and notice in accordance with court rules applicable to motions generally, which motion shall not be made prior to sale, the court shall conduct a hearing to confirm the sale. Unless the court finds that (i) a notice required in accordance with subsection (c) of Section 15-1507 was not given, (ii) the terms of sale were unconscionable, (iii) the sale was conducted fraudulently, or (iv) justice was otherwise not done, the court shall then enter an order confirming the sale.
I think you have a potential basis for objection under (c) of Section 15-1507 that notice was not given. For purposes of the sale notice for the paper, it is really to alert third party buyers the opportunity to bid on the property. In most cases the bank comes in and bids for the property and purchases it. The homeowner cannot purchase the property so the sale notice in the paper is really for those third party buyers and not to the benefit of the mortgagor.
That being said, the IMFL is pretty clear that notice must be given under 1508. When you read that provision it pretty clearly states that one of the basis for no notice is non-compliance with 1507(c) which is the provision you are referring too. An objection provided to the court via courtesy copy at least 5 days prior to the hearing would be the the best employed strategy.
As noted by other attorneys on this forum, this isn't going to help you save the property, or win the case. It will at best force a re-set for the bank to do what they didn't do originally, provide adequate notice in the newspaper regarding the pending sale date.
I'm 64 years old and retired with health problems. I have surrendered the house and now told I would still go thru foreclosure. The bank has the house and changed the locks. This is fine with me. Is my IRA protected from the foreclosure and will my beneficiary receive my IRA should I die or will the bank come after it."- Chicago, IL
Attorney Daniel S. Khwaja wrote:
An IRA is exempt under the Bankruptcy laws. You are protected. I assume when you say "surrendered" the house you mean on your bankruptcy petition. This does not dispose of the state court litigation which will go to trial on the merits.
If you didn't get anything out of giving up the property i.e. a consent judgment, cash for keys, deed in lieu, or other loss mitigation you may want to re-consider letting the bank go into your house and change the keys. They don't have the legal right to do so until they have received a judgment in the state court, the property has gone to sale, and the sale has been confirmed.
I own the secondary property with my ex and I am the only one on the mortgage, but he is also on the title. During the divorce I bought my ex out of the primary residence but my parents loaned me the money instead of trying to take equity out. I have $20,000 in credit card debt. My ex has fallen behind on a boat loan that also has both of our names on it. My 780 credit score is down to about 660.- Chicago, IL
How do I protect the equity I have in my primary resident?"
Attorney Daniel S. Khwaja wrote:
As the other attorneys alluded to a bankruptcy could discharge the debt you have. However, your factual scenario requires more detail. If I understand your fact pattern, it does not suggest that you are behind on payments on either the first, or second property. It sounds like the majority of your debt is on a credit card, and your loan interest in the boat which your husband appears to be financially responsible for.
Credit cards can usually be settled, and for amounts lower than owed at times. There is plenty of negotiability of the credit card if, and when, it goes to collections. A bankruptcy could dispose of this debt but you could also simply come to some type of arrangement with your creditor. Given your credit score is a 660 and still quite salvageable you will want to think long and hard about filing a bankruptcy and negatively impacting your credit report.
At any rate, you will have options with with respect to the credit card and I do not predict that an unpaid credit card would subsequently become a lien on either property. I do not know the value of the boat, but most can be rather expensive to purchase. I would assume the boats would be repossessed first and any remaining deficiency would be the amount owed. This would ask how much the boat is currently worth and what your remaining debt on the boat is. If it is a nominal to moderate amount I think something could also likely be worked out with the remaining amount where you might be able to make payments. I think you should explore working with your credits, and only when that fails should consider a 7 or 13 bankruptcy.
How can you stall sale if you already filed bankruptcy?"- Aurora, IL
Attorney Daniel S. Khwaja wrote:
The general rule is 30 days. If you have some exceptional circumstances like a medical condition you may be able to extend the order of possession to around 60 days upon court approval. If individuals reside in the property that are not listed on the order of possession, and were otherwise not defendants in the case, the Plaintiff will need to file a forcible entry aka "eviction" to remove all of the occupants. This second law suit will take an additional 90 days give or take.
I would get a lawyer but can't afford one.- Belvidere, IL
Tried to get prairie state but could not qualify.
I don't know what I'm doing.
So I need to see completed winning examples to learn from.
I need to see foreclosure summary judgement responses."
Attorney Daniel S. Khwaja wrote:
There are various ways to challenge a motion for summary judgment. The question is what viable defenses do you have remaining? The answer you filed to the Complaint sets the stage for the case. If you didn't file any affirmative defenses that were not subsequently stricken you may have few viable defenses remaining.
Challenging the affidavits (191, loss mitigation affidavit 114, non-compliance with supreme court rule 113 if applicable) are various methods that can be used to overcome or delay a motion for summary judgment. If you didn't file an affirmative defense in your answer you may not be able to raise those defenses that late in the proceedings.
The attorneys on this forum are also correct that this site is not designed for legal templates and general internet research, law library, or the foreclosure help desk may guide you. In the end, defending the case as a "pro-se" is risky proposition, and one should have an attorney if you are interested in adequately protecting your property interest.
Wondered if there is a way a homeowner can find out exact details of a foreclosure property sale after the sale has occurred? Example, who bought it, for how much, etc. The sale is going to be handled at Judicial Sales Corp on Wacker Dr in Chicago. On their site they say "Sends sale results via facsimile to plaintiff immediately after sale (if applicable)." But I wonder if there is a way for the defendant to find out the same information? Thanks."- Chicago, IL
Attorney Daniel S. Khwaja wrote:
I would directly contact the Plaintiff's attorney that is handling the case. They will provide you the amount the property sold for and to whom. If you are a defendant in the case you should also be receiving a motion to confirm sale via mail alerting you to the confirmation hearing and the date it will be held. In the majority of cases the banks are buying the property for around the half the value. In a small percentage of cases a third party buyer comes in to purchase the property. If that is the case, they will need to file an appearance, petition to intervene, and motion to confirm sale since they are currently not a party to the case.
I was never personally served with foreclosure papers, but they claim to have tried numerous times and then did it by "publication". I do not live in the condo & have been trying to short sale it unsuccessfully for quite some time now. I found out there's a court date tomorrow where they are asking for a default judgement against me.- Woodridge, IL
Does that mean I will have to pay all the money back? Also I have heard that if I want to file Chapter 13 going to the court date could hurt me, because I "appeared" Is this true? I don't want to keep the property any more, but I also don't want to be liable for both mortgages on it either."
Attorney Daniel S. Khwaja wrote:
The failure to properly serve you is the basis for a Motion to Quash Service by Publication. They have to show upon due inquiry you could not be found within the state. If they didn't show due diligence in attempting to serve you at your home residence, or another location within the state, you have a strong basis to quash the service. In other words the court does not have jurisdiction over you.
The motion for default judgment is because you have both failed to file an appearance, and answer, in the litigation. The "answer" is your response to the legal allegations found within the Plaintiff's Complaint. I will assume you did not file the appropriate documents because you were unaware of the pending litigation.
I would suggest either A. appearing on the default judgment and asking for 28 days to answer the complaint (this will buy you some time as you make further efforts at selling the property or other loss mitigation alternatives like a deed in lieu, consent judgment etc) or B. appearing tomorrow and telling the court you are appearing for the limited purpose of contesting the court’s jurisdiction. You can inform the court you recently became aware of the litigation via mail (I am assuming this is how you figured out about the case) and telling the judge you are going to file a motion to quash the service. Ask the court to enter and continue the default motion pending the outcome of the service issue.
If a default judgment is entered against you tomorrow they will subsequently have the rights to sell the property. The property will eventually go to sale and the purchase price minus the amount owed on the mortgage will be the amount you owe i.e. the "deficiency". It cannot be known whether you will owe any money to the bank until the end of the case. The bank does not always seek a deficiency even when one exists. The property almost never sells for what is owed on the mortgage. A deficiency will likely exist but the bank may not attempt to collect it. You will need to wait to find out whether this will apply to you.
I would suggest getting involved in the case. If you no longer want the property and are uninterested in modifying your loan, or generally defending the case, you can enter into a deed in lieu, or a consent judgment where you can negotiate a waiver of the deficiency and even secure potential cash for keys to move out. Options are available, but you need to get involved in the case. Appearing tomorrow will not effect your eligibility for a Chapter 7 or 13 bankruptcy. If you do not appear tomorrow to contest jurisdiction, or otherwise ask for time to respond, the default judgment will be entered tomorrow.
I haven't lived in the house for about 8 months but just wanted to know if they could come after any future property I might buy."- Chicago, IL
Attorney Daniel S. Khwaja wrote:
Yes. They can pursue a deficiency against you. A deficiency is the amount owed on the mortgage less the price the home went for sale at auction. Rarely does the sale price ever pay for the amount owed on the mortgage. In my experience banks are pursuing a deficiency in a very small percentage of cases and usually enter the judgment against the property "in rem". That being said, if the deficiency is something they wish to pursue they can attempt to collect this amount.
In your case you should already know the answer to your question. If the property has been foreclosed on, and the law suit is completed, you would have been provided the information at or around the confirmation of judicial sale whether a deficiency would be sought. If you have no language suggesting that you do not need to worry about future collections.
If you do have a deficiency one method they may use is a wage garnishment where a court ordered amount is taken out of your check each month until the deficiency is paid. With respect to future property it should be safe. One property that was used as collateral can be taken if it was connected to the defaulted mortgage loan which was the subject of foreclosure. Here, that is not the case.
In the end, the banks don't often pursue a deficiency where they actually have little chance of collecting. It is possible though, and something the homeowner should be aware of.
What does this mean? Who do I answer to? What do I need to answer?"- Chicago, IL
Attorney Daniel S. Khwaja wrote:
Are you referring to the summons, or an order that is actually entered in court and signed by the judge? If you are referring to the summons that you would have been served at your residence you need to file an appearance and answer, or motion to dismiss to the case. It is time to get involved.
If you went to court and the judge granted you to time to answer the Complaint you need to have an attorney review the legal allegations against you and draft an appropriate response. If you do not file an appearance and an answer to the case a "default" judgment will be entered. This is the equivalent of saying no one has taken an interest in defending the law suit. This allows the bank to foreclose quickly and put the property up for sale. In order to avoid this you need to get involved immediately.
Depending on whether you just need more time in the home, or you want to keep the home, defending the law suit is the best way to achieve both. A loan modification can take time and is unrelated to what is taking place inside of court. You need to defend the law suit so your property rights are not taken from you. Defending the suit allows you to work out other alternatives with the bank outside of the court as you have given yourself time to do so.
As noted above, a failure to act will speed up the process and put yourself in a position that could have been avoided.
The main owners lost to foreclosure-- I didn't participate in the suit. But I have had possession of the property for the last year and I want a clear title. Strangely, the Bank didn't use the Sheriff to evict me. They sent employees who were in turn sent away by police."- Villa Park, IL
Attorney Daniel S. Khwaja wrote:
I would first ask why do you think you have a "legal" interest in the property? Mere occupation in the residence does not make you an owner of the property. It makes you a tenant at best. It doesn't sound like you are a paying tenant either. The "unknown owner" provision listed in a Complaint is to cover all people the Plaintiff may be unaware of that also have an interest in the property. Based on the facts provided, I do not know why you believe you have an interest in the residence outside of the fact that you live there.
Mere occupation would not be sufficient to establish a title interest. If you do have a legal interest in the property and you think the bank knew of your ownership there is a very slight chance of moving to quash service and vacate the judgment. This assumes they knew about your interest and didn't serve you. Chances are since you knew of the pending litigation and didn't file a petition to intervene, or otherwise file your appearance based on your unknown owner status you are probably far too late.
The reason you haven't been evicted as of yet is because an order of possession in a foreclosure suit generally applies to all defendants listed in the case. Those defendants are usually people who have an interest in the property. Since the bank was unaware of your tenancy status they have to file a second law suit called an eviction to remove you aka a "forcible entry". You can expect to be served regarding the pending eviction suit in the near future. If you are not a bona-fide tenant with an otherwise valid lease that was entered into prior to lis pendens ie notice of foreclosure you probably have no defenses available and will need to vacate the premises in the very near future. It sounds like you have neither a title interest in the property or a bona-fide tenancy status.
The lender kept telling my attorney to get in line for a loan modification, but still foreclosed on the home to the attorney's surprise."- Villa Park, IL
Attorney Daniel S. Khwaja wrote:
Generally there are two moving parts in a foreclosure case, what happens inside of court, and what happens outside. The reality is, once the loan has gone into default they don't have to work with the lender in modifying the loan and can file a complaint for foreclosure. Many banks won't even consider a modification without first filing the law suit. There is nothing that stops them from doing that. Now at the time of summary judgment hearing Supreme Court Rule 114 will bar the entry of judgment if the bank has failed to comply with the available programs connected to the subject mortgage.
The Illinois Supreme Court has demonstrated with the recent passage of this rule they want to see more individuals remain in their homes and to work out a financial arrangement with the bank. That being said, the bank can file the foreclosure at any time they want regardless of conversations outside of court. What they cannot do is have judgment entered against the property without complying with the terms of the available programs in connection with the subject loan. (HAMP, etc) If the bank hasn't complied with evaluating the defendant for the modification program available with the subject loan when they file their supreme court rule 114 loss mitigation affidavit, these issues should be raised before the court. It can preclude judgment until they have complied.
I owned a home in Illinois.- Wauconda, IL
I filed BK7 [ Chapter 7 Bankruptcy ] and surrendered the home in the bankruptcy which was discharged Oct 2011.
To date home has not been foreclosed on and the process is now on 3 law firms. [The] Bank wants me to sign a consent judgment to convey house to them. Will I be liable for anything financially if I do this?"
Attorney Daniel S. Khwaja wrote:
The purpose of doing the consent judgment usually is to cut down the banks costs as part of the litigation. Usually they waive the deficiencies which would be the the amount you owe on the mortgage minus whatever the property sells for. Without the waiver of the deficiencies, there isn't as much incentive to do a consent judgment as you are giving up additional time in the home. You need to read the consent judgment and make sure you are getting the deficiency waived. If they are only giving say a cash for keys deal in lieu of the consent judgment you may want to reconsider whether the money you are being paid to move out early, is worth the money you would have saved being in the home during the remaining period of time.
With respect to the BK [ Chapter 7 Bankruptcy ], if you listed the creditor that is suing you in the foreclosure, the deficiency should be covered. If that is the case, you will need to give some serious thought to whether a consent judgment is in your best interest.
I sent qwr., certified mail to the banks and others involved asking who had my mortgage? no response from them. sent notice of default,right to cancel,notice of non response all certified mail, no response. what do I do?"- Taylorville, IL
Attorney Daniel S. Khwaja wrote:
The very first thing you need to do is file an appearance in the case. This shows you are an interested party i.e. ready to do defend your legal rights in the case and that you take issue with the allegations alleged. Not filing an appearance in the case is the equivalent of having no interest in it. You need to file an appearance. If you fail to file an appearance you cannot subsequently file an answer. The appearance can be filed by you as a "pro-se" or by the attorney that is representing you in the litigation. Once the appearance is filed either drafting an answer (or motion to dismiss/strike) Plaintiff's Complaint will be the next step.
The Complaint will need to be reviewed by an attorney with the necessary experience to assist you in the matter. Issues that occur outside of court will likely not effect what happens in court. You need to get actively involved in the case and begin defending the litigation. It sounds like you have sent correspondence to the bank. This will not have any effect in foreclosure and don't expect it to. Get involved in the case and file your appearance and answer. If you have other matters to work out with the bank you can work on those outside of court, while you defend the case in court.
Hello,- Elgin, IL
I am trying to figure out when I have to be out of my foreclosed home. The last entry(12/19) on my online docket said there was motion hearing scheduled for 1/13 to approve the sale. I am assuming I would have 30 days from that date but I can't not verify that the hearing actually happened.
Two weeks has gone by and the docket has no updates as to the result of that hearing. I called the judges clerk and he couldn't find anything in the system. They recommended I call the banks attorney but I have left 3 voicemails for them so far and they aren't returning my call. Because of the weather and such I could really use some more time to leave the house.
My two sons, fiance and her mom live with me. I don't believe either of them are listed in the motion.
Additional information:
This is in Cook county"
Attorney Daniel S. Khwaja wrote:
The general rule is you have 30 days after confirmation of judicial sale. You should be receiving correspondence from the bank via mail if you are unrepresented by an attorney. If you never received notice of the sale you could file a motion to have the order for confirmation vacated, and forced them to re-set the matter. If you knew you had court that day (1/13/14) you should have attended if you wanted more time. You missed your opportunity subject to no notice being received. The Cook County docket is "usually" correct but obviously something could have been missed.
Call the firm back on Monday. You should be able to speak to someone other than an attorney, even the secretary or a paralegal and ask them if they show an order of possession being entered on your property for 1/13/14. Again, if no notice received on the motion to confirm sale you could move to vacate order confirming sale. Find out what individuals are on the order of possession and if they cover all the occupants in your home. If they do not, they may need to file a second action for an eviction case. If it does not, you need to begin to make arrangements to leave the premises as time is short.
The foreclosure was reversed, vacated, and, remanded, everybody keeps saying with directions, what are the directions if they are not what the order state, the order doesn't give specific orders or directions the mandate says, reversed, vacated, and remanded what does all of this mean thank you"- Chicago, IL
Attorney Daniel S. Khwaja wrote:
It sounds like you had some success at the appellate court in the 1st district? Most of the decisions of late in mortgage foreclosure have been unfriendly to the homeowner in my opinion. So congratulations on your success. Reversed means that the trial courts ruling has been overturned, the judgment is vacated (ie the rights the bank had against your property have now been vacated and that issue will once again be decided). Remanded means the case is going back to the trial court, or in other words sent back to the place the case originated from.
The answer to your question depends on a number of things. Was a default judgment entered? If a default was entered and it was subsequently vacated by the appellate court you may very well now have the opportunity to answer the complaint. If at trial you already answered the complaint went to all hearings, most importantly the motion for summary judgment, responded to their brief, and appeared at the hearing then the case will likely not start over. What will be determined will be the issue the trial court got wrong. I don't know enough facts about your case to know what issue was wrongfully decided. If the case was remanded with instructions, that means the appellate court has given direction to the trial court what issue was wrongly decided, what needs to be addressed, and potentially exactly how it should be addressed.
I believe the current law on the IMFL has been on the books for awhile, so I am not sure if you are suggesting your case is so old it pre-dates when the IMFL was enacted. I doubt your case was filed before the creation of this statute. Without knowing more about your case, it sounds like you litigated the case on the merits and were actively involved. The appellate decided the trial court wrongfully ruled against you, and now you will once again be given a second opportunity to litigate the issue that was wrongfully decided.
Changed association management, big dispute on who to pay, have not paid dues for 1 year."- Wheeling, IL
Attorney Daniel S. Khwaja wrote:
Yes they can. I have seen multiple cases with this type of litigation. I would suggest making arrangements with your the condo association to square away any dues that are in arrears. They have the legal authority to foreclose on you subject to any restricting language in your bylaws.
The condominium act also has some useful information:
http://www.ilga.gov/legislation/ilcs/ilcs3.asp?ActID=2200&ChapterID=62
My question is how much time does one have to stay in a home after a foreclosure sale has occurred and what the full process is. My understanding is first there is a confirmation of the sale - how much time is this now taking and will one get notified by the court as to the date of that event?- Chicago, IL
Then I believe after that one is given 30 days after to vacate? Is one notified in that instance as well?
Last, if one doesn't vacate in the 30 days, the new owner is forced to do an eviction, and how much time is that taking these days? Thanks for any answer you can provide!"
Attorney Daniel S. Khwaja wrote:
This looks the same as your other question with a bit of a twist.
Once the property has gone to sale it can be in a range of 2-3 months when they come back to confirm the sale. If this is Cook County most of the motions that are being filed have a three month back log or more, this of course depends which court room you are in and when they filed the motion. Yes, they have to give you notice, 1508 of the Illinois Mortgage Foreclosure law has a 4 prong analysis in order to confirm sale, and one of the considerations is whether notice was given. If notice was not given, the sale should not be confirmed.
You are correct that the order of possession generally gives a defendant 30 days to move out. This potentially can be extended with some hardship circumstances presented to the judge such as a medical issue. The order of possession is the notice to leave which you will receive at the confirmation of judicial sale. Once that order of possession has been entered the clock is ticking.
With respect to an eviction, this depends if more individuals reside in the property than were listed as defendants in the case, and subsequently on the order of possession. The sheriff in my experience is doing an all or nothing proposition. If there is even one more individual living in the house that is not on the order of possession he won't enforce the order of possession. As a result, the Plaintiff will be forced to do a second court proceeding known as an eviction. This process generally adds around 90 days to complete give or take. If the order of possession covers all the individuals residing in the house that will be more than enough for the Sheriff to remove the occupants.
My question is how much time does one have to stay in a home after a foreclosure sale has occurred and what the full process is. My understanding is first there is a confirmation of the sale - how much time is this now taking and will one get notified by the court as to the date of that event?- Chicago, IL
Then I believe after that one is given 30 days after to vacate? Is one notified in that instance as well?
Last, if one doesn't vacate in the 30 days, the new owner is forced to do an eviction, and how much time is that taking these days? Thanks for any answer you can provide!"
Attorney Daniel S. Khwaja wrote:
Once the property has gone to sale it can be in a range of 2-3 months when they come back to confirm the sale. If this is Cook County most of the motions that are being filed have a three month back log or more, this of course depends which court room you are in. You are correct that the order of possession generally gives a defendant 30 days to move out. This potentially can be extended with some hardship circumstances presented to the judge such as a medical issue.
With respect to an eviction, this depends if more individuals reside in the property that were listed as defendants in the case, and subsequently on the order of possession. The sheriff in my experience is doing an all or nothing proposition. If there is even more more individual living in the house that is not on the order of possession he won't enforce the order of possession. As a result, the Plaintiff will be forced to do a second court proceeding known as an eviction. This process generally adds around 90 days to complete give or take. If the order of possession covers all the individuals residing in the house that will be more than enough for the Sheriff to remove the occupants.
My house was foreclosed. The outstanding mortgage was turned over to a collection agency"- Schaumburg, IL
Attorney Daniel S. Khwaja wrote:
The answer is yes. When the property goes to sale usually the bank comes in and buys the property for about half its value. Sometimes a third party will come in and bid for the property as well. Whatever the property sells for minus the total amount you owe on the mortgage is what is called a deficiency. This is the amount you owe. In my experience, most banks have not been aggressively pursuing the deficiency though they certainly can. In the Complaint to Foreclose Mortgage they usually leave themselves room to collect a deficiency but you won't know whether they actually will till the end.
If they elect to pursue this amount it can go to a collection agency, and that particular agency may even try to pursue some type of wage garnishment. This is rare, but can happen. As noted by the other attorneys you could do a bankruptcy to deal with the deficiency and protect yourself from future collections. A bankruptcy may be unnecessary but you really won't know until the end if they have any intention of collecting the deficiency.
Someone in my family is facing a foreclosure sale date in a few weeks. She is resigned to leaving but wants a little more time to save money. She filed a Chapter 7 [bankruptcy] and was discharged which stayed the sale process already once. Now there is a new sale date set. We were reading about the Lender notifying the owner in a written form about the sale date, but they never did either last time or this time.- Chicago, IL
Is that grounds to file a motion and which one would it be? Or what other motions might be good for staying the sale one more time for say another 60 days?
A friend told me then what you do is then just not show up to the court date and it's dismissed and then another sale date has to be set. To save money we'd like to file it pro se. We were also reading about MERS? Thanks"
Attorney Daniel S. Khwaja wrote:
First, you can't stay the sale just to buy more time because you don't feel like leaving. You need a basis. Most motions to stay the sale are due to a pending loan modification, or other loss mitigation that you are conducting with the bank i.e. loan modification, short sale, etc. A motion to stay sale allows additional time to work out those types of options.
The sale of the property does not determine when you leave the property. The property goes to sale, then the Plaintiff must come back and confirm the sale in accordance with the statute ie no fraud, due notice, etc. Once the sale has been confirmed which is usually a couple months after the sale of the property, an order of possession will be entered against the defendants. The order of possession generally gives a defendant 30 days to move out of the property. Some judges will grant additional time for medically related issues, or other reasons that warrant a delay. You will not be required to leave the property when it is sold, only when the sale is confirmed and an order of possession has been granted.
Mortgage Electronic Registration Systems (MERS) is an issue unrelated to the stay of the sale. Their purpose is to record the transfer of the mortgage title from one entity to the next.
The bank offered me 4,000 to move a family of 5 by January 27th in the dead of winter. I've been looking for rentals and they want 3 months security and 1 months rent. The 4 k is not enough to find a place and move out in two weeks. I was thinking of waiting until the weather broke and that would give me some time to save enough to get out on my own. Plus my kids are still in school here.- Streamwood, IL
How long will the eviction process take in cook county?
My second question is : I filed a chapter 13 which I later converted into a chapter 7 when I decided I could no longer keep the home. Since I included the home in my Bankruptcy, will a eviction show up on my credit?"
Attorney Daniel S. Khwaja wrote:
The answer to your question depends on a number of factors, number of cases on the call, legal defenses available, number of occupants in the home, where your case is at procedurally at this time etc. Generally speaking, Cook County has thousands of cases on the chancery call and in my opinion most cases take a year, sometimes longer if your at the beginning of the case. You need to file an appearance, and answer to the case. If you don't file an answer, the case will default and they will obtain the rights to your property sooner than they normally would. If you have good legal defenses available they need to be raised in the answer.
The Plaintiff will then take some time to decide how they want to respond to those defenses, and the better defenses you have the more time will likely be added to the case. Effective discovery can also add time to the case if done properly. Now with a foreclosure case once the case has concluded an order of possession will be entered against those individuals who were defendants in the case as result of taking the loan, being on the mortgage title etc. If the order of possession does not contain all individuals in the house the sheriff will not enforce the order. It is generally an all or nothing proposition when it comes to removing people from the residence.
Since you mentioned you have 5 people in the house it is unlikely they will be able to enforce the order of possession through the foreclosure, and the plaintiff bank will initiate a second proceeding in eviction court to remove everyone. This can add a few more months onto the case depending. All in all if you prefer time, if you get involved with the case now and actively defend the case you will have a good possibility of remaining in the residence through 2014, depending on where your case is at procedurally.
With respect to the bankruptcy there is going to be some record on your report whether it shows missed payments, or actual foreclosure. You will have to incur some damage on your report as a result of the law suit. If you do the consent judgement where you give them keys to move out for cash this will limit the negative impact on your credit report but you will still incur a negative mark regardless. If you included the house in the foreclosure and did not re-affirm the debt, the good news is you won't be responsible for any deficiency on the property when it goes to sale at the end of the case.
I sent a loan modification package to my mortgage lender yesterday. Today,. I received a letter from a foreclosure firm stating that they are attempting to collect my entire mortgage amount, and that I have 30 days to respond to them to dispute its validity.- Chicago, IL
I am yet to receive a NOD. Although, in the past I've received notices from my lender of their intent to accelerate my loan.
At this point, if my lender receives my loan mod package and reviews it, would they be required by law to hold off on filing a foreclosure suit with the court?
Is notice of intent to accelerate sufficient, or would they also be required to send an NOD before they can file their foreclosure suit?
Should I respond to the attorney's letter and dispute its validity or would this not do any good?"
Attorney Daniel S. Khwaja wrote:
No, they are not required to stop the foreclosure. The Illinois Mortgage Foreclosure Law only prevents confirmation of a judicial sale while a loan modification is pending ie they cannot confirm the sale while the loan modification is under review. Here, you are nowhere close to that stage in the proceedings.
I assume you mean notice of default when you say NOD. If they sent you a notice of intent to accelerate they are now demanding full payment of your loan. The foreclosure suit will generally come shortly thereafter, and you may find someone knocking on your door any day now to provide you with the complaint.
You can dispute the validity of the debt if you choose by responding to that attorney. However, do you have a basis for this? I have not read that you are disputing you owe the debt, only that you are trying to modify your prior agreement. Responding to the letter may or may not add to some delay in the case but I would say probably not.
In the end, it is totally on the banks elective whether they want to proceed on the foreclosure or not. The pending loan modification will warrant consideration. Even if they do file suit, you can continue to try to work with them throughout the litigation on the modification. You should consider hiring an attorney to defend the foreclosure suit while you continue to work out a loan modification with the bank otherwise, the case will move faster than it normally would.
I'm going to forget the condo it needed some major work, I can't afford it. I will look for a small apartment maybe one in a senior building. Will my IRA be safe, I will be 65 this year. I surrendered the house according to the instructions I was given by the mortgage company."- Chicago, IL
Attorney Daniel S. Khwaja wrote:
First I would ask, if you did a consent foreclosure was a waiver of the deficiency incorporated into the agreement? It usually is one of the negotiating factors to enter into such an agreement. Sometimes they will also offer you a "cash for keys" to exit the property early as well. If the bank takes the property through the consent foreclosure, and subsequently sells the property and the property sells for less than what you owe on the mortgage, then you have what is a called a deficiency. In other words, the proceeds from the property sale did not dispose of everything you owe on the mortgage.
In my experience, it is usually the bank that comes in and buys the property for half the price which usually doesn't match what you owe on the mortgage so the deficiency remains. In rare cases a third party buyer comes in and buys the property. The bank may or may not elect to pursue the deficiency depending on what the amount is. In my experience, the banks have been pursuing these deficiencies in a very small portion of cases, though it is certainly possible. I would look to the terms of your consent foreclosure, there should be a waiver of the deficiency incorporated into the agreement. If there is not, and a deficiency remains, you may consider bankruptcy to protect your IRA as noted by the other two attorneys on this forum.
Hopefully, the consent judgment has disposed of the deficiency, or the bank will elect not to pursue you for the remaining amount.
I was improperly served and the attorney I hired quashed the service. The judge ordered plaintiff to serve me by publication, which they did. My attorney at that point advised me that it would be better for him to resign and let the house go into foreclosure. He advised that in Illinois no judgment can be entered against me if I wasn't served in person. However, additional research indicates that that may not be correct.- Highland Park, IL
Can you please clarify if in Illinois, when the defendant wasn't served in person, can I still end up with a money judgment? Thank you"
Attorney Daniel S. Khwaja wrote:
The reason the judge likely ordered the Plaintiff to serve you by publication was because you could not be found upon "due inquiry" within the State of Illinois. An affidavit would have been filed attesting to this. The general rule is that service must be given upon someone at the residence 13 years or older. Now if they cannot find you at that residence, they still have an obligation to find you within the state and essentially make a best efforts.
The standard is that upon due inquiry the defendant cannot be found. If they made that effort and couldn't locate you, or multiple service attempts were made at your residence then the plaintiff would likely qualify to do service by publication. Your facts are not completely clear as it sounds as though your attorney was successful in quashing the first service. Is it your contention that second service attempt was also deficient? You may be able to challenge this service depending on when it occurred. Once you have an appearance on file the clock is ticking in Illinois to file the appropriate motion to quash.
The statute that governs service by publication is 735 ILCS 5/2-206.
With respect to the money judgment the answer is yes. If a judgment is entered and the property is sold for less than what you owe on the mortgage there will be a deficiency. Not every lender pursues the deficiency and in my experience most of the time they do not. However, It doesn't mean they won't in your case. If you are concerned with a deficiency consult an attorney.
...ip, (2) JP Morgan refused legal tender (another words, Chase willy nilly set up an escrow account and placed my mortgage payments in the escrow account and then without notice, filed the foreclosure action); and (3) the 7th Circuit Court of Appeals is currently reviewing the briefs which I brought the jurisdictional issues (and HERA) to their attention. I was in a Chapter 11 and Chase claimed they owned the note. I appealed to the US District Court and Chase got it dismissed claiming I was moot because my chapter 11 was dismissed without prejudice one month after I filed the Notice of Appeal. Chase filed the default motion on the 6th June and I still have not received any documents from them."- Chicago, IL
Attorney Daniel S. Khwaja wrote:
It sounds like you are in state court now based on your dismissal in federal court? The short answer is yes. A servicer can foreclose on a mortgage IF they have pleaded their capacity as the servicer in the complaint. The Illinois Mortage Foreclosure Law (IMFL) allows a servicer, trustee, agent, etc to foreclose on behalf of the lending institution that actually owns the note.
Here, you need to look at how they pleaded their capacity in the Complaint. If they have listed themselves as the legal holder of the mortgage and note then they have improperly pleaded their capacity. That is a basis for a motion to strike the complaint if you are presented the opportunity. A servicer does not own the indebtedness which is essentially the keys to foreclose on the property. A servicer collects payments for instance, provides invoices, or performs other functions on behalf of the lending principal. Their ability to foreclose will be based strictly on their pleaded capacity. Otherwise, a servicer would not have the right to foreclose absent a showing that the note was endorsed to that entity, or they have received an otherwise valid assignment.
Bayview v. Nelson provides some analysis on a similar issue.
I am under foreclosure. I have limited financial funds to hire a lawyer. I want to keep my home for the multiple children (50% custody). The Foreclosure Mediation program failed. I recently received a letter from the Plaintiff lawyer stating that I was to appear in court this week for "Motion To Amend" the correct property legal description.- Belleville, IL
I am working (employed) that day, and do not want to take off of work unless I have to. If it is just a data filing motion, then I'd rather take off for the more important defense against foreclosure day in court.
Are these foreclosure motions to amend important to show up for?"
Attorney Daniel S. Khwaja wrote:
The question is, do you have any objection to this amendment? This would be the primary reason you would appear, to have the court order reflect your objection to the amendment. If you do not contest the amendment there is no reason for you to appear at this proceeding. In my experience these amendments are common. I have often seen many complaints filed with legal descriptions listed in the complaint that are not reflective of what is listed in the mortgage.
The most common error Plaintiff's make is that the pin (parcel index number) listed on the complaint has a number that differs from the mortgage. The courts freely grant this amendment and your primary reason to appear would be to have your objection reflected in the court order. If you have no objection, your appearance is unnecessary.
I been working with the bank and they want to modified my load to a 40 year, a payment of 1246.53 a month."- Melrose Park, IL
Attorney Daniel S. Khwaja wrote:
There is really a two-part strategy for this. The first, is defending the case in court if you have an active foreclosure case. If you don't get involved a default judgment could be entered, and the rights to your property with it. What you do in court, is as important as what you do out of it. Don't rely on the lender to stop the foreclosure even if you are talking with them about a modification. Second, you need to submit a loan modification. You may qualify for a HAMP modification, or in-house modification by the lending bank. There are various modification programs available. Your income will be the number one factor in consideration.
Lease is not up till May 2014- Court approved sale back to the bank and they take possession as of Jan 29, 2014- I have not heard from landlord in months- what are our options as tenants and is there a law that prevents them from putting us out."- Hazel Crest, IL
Attorney Daniel S. Khwaja wrote:
Since you are not a defendant in the action, a separate suit will need to be filed to remove you from the premises in an eviction action. If you are a bona-fide tenant you will be able to complete your lease. One factor for a bona-fide tenant was whether your lease was entered into PRIOR to the foreclosure being initiated ie lis pendens. If you entered into this lease after the foreclosure was filed you may not be a bona-fide tenant.
Depending on where you live the "Keep Chicago Renting" ordinance will require the foreclosing bank to provide the tenants a rent-controlled lease until selling the property or pay them a "relocation assistance" fee of $10,600 per unit. This ordinance location is specific to Chicago and you will not find this in other parts of the state, and the Protecting Tenants In Foreclosure Act will generally apply. Again, you will need to establish you are a "bona-fide" tenant, and when the lease was entered into becomes very important.
I received a summons and complaint for my father on a foreclosure law suit. It ask that an appearance be made within a month. Unfortunately, my father is outside of the country and won't be back until April.- Chicago, IL
Can I file an appearance on his behalf and ask the judge to allow my father to answer the lawsuit until he gets back in April? What other choices does he have? I sure don't want this to go into default."
Attorney Daniel S. Khwaja wrote:
There is nothing wrong with filing an appearance on someone's behalf IF they signed it. Generally, if you are not a defendant in the case you have no right to file an appearance. But going down to the courthouse and filing a document that somebody already signed is completely different than signing it for them. You should consider mailing appearance forms to your father's location and have him mail them back for filing.
If that is not an option, then you need to have your father hire an attorney. The attorney can file an appearance on his behalf, and appear in court on his behalf. Your father will not need to attend any court appearances once the attorney has been hired for representation. Depending on when the complaint was filed a default can take a little bit of time in the cook county chancery division, and won't occur prior to the initial case management date. Your father should hire an attorney to start handling the case on his behalf, or you need to start mailing him documents and have the originals signed and mailed back. You won't personally be able to appear in court on his behalf.
I'm currently living in the home that is foreclosing. The last entry on my case was for an "Order For Possession" filed last month. Is that considered the start date for the 30day until eviction? Is there a separate filing for eviction? How can I find out if or when and eviction has been scheduled?"- Chicago, IL
Attorney Daniel S. Khwaja wrote:
Once an order of possession has been entered you have 30 days to move out of the house generally speaking, unless you have been granted an extension of time by the court to stay longer, that's the general rule. Now, if this is cook county and there are other individuals living in the house that are not listed on the order of possession the sheriff generally does an all or nothing proposition.
In other words, if all individuals listed on that order of possession do not account for everyone living in the house, the Plaintiff will be forced to do an eviction. The sheriff will not just remove some individuals, while leaving others on the premises. So if the order of possession does not account for all individuals in the residence a new case will be created. The plaintiff will institute a separate eviction case through eviction court to have everyone in the premises removed. This can take up to an additional 90 days for this process to complete, if not longer. So the number of individuals in the property as opposed to who is listed on the order of possession is very relevant and will determine if an eviction notice will be necessary in the future.
The best option a homeowner has is to secure the services of a knowledgeable and aggressive home foreclosure lawyer that will protect the homeowners rights and help fight foreclosure.
Illinois Foreclosure Lawyer Daniel S. Khwaja is dedicated to ensuring that you, your home and your family are all protected. We want to make sure your rights are never violated and that your bank or lender never crosses the line. Should you choose to work with us, you can rest more easily knowing that your case is in the hands of a lawyer who is well-versed in foreclosure litigation.
Illinois Lawyer Daniel S. Khwaja handles cases pertaining to Chapter 7 bankruptcy, foreclosure defense, foreclosure rescue, lender fraud, and renter eviction defense. Schedule Your FREE Initial Consultation.
What can Illinois Foreclosure Lawyer Daniel S. Khwaja do to help families who are about to lose their homes? There are two ways to help, depending on the situation.
1. We can help families get loan modifications and ultimately stay in their homes.
2. We can actively fight the foreclosure, forcing the bank to "prove" the merits of their case.
*Fees listed are in US Dollars ($) and exclude applicable and separate court filings fees, etc. | Flexible payment options available.
Illinois foreclosure attorney Daniel Khwaja wants people facing foreclosure to know they have options. The biggest misconception is that they cannot afford a lawyer; however, Mr. Khwaja offers very affordable rates.
During the FREE initial consultation, he outlines several options including the "Cash for Keys" program, loan modification, and the required "hard proof" lenders MUST have to attempt foreclosing.
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The information contained in this website is provided for informational purposes only, and should not be construed as legal advice on any subject matter and you should consult with an attorney before using any information from or any Legal Forms provided on this website. All Fees listed are in US Dollars ($) and exclude court filings fees, etc.
Daniel S. Khwaja, Esq. is licensed in Illinois with a main office in Chicago.
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