Illinois Circuit Court Judges and Appellate Justices sometimes get it wrong. They could overlook a fact or law. Appellate Justices are the public's resource to review what happened at the trial court level, a large and often heavy task. When Chicago area individuals believe a trial court misapplied the laws or facts in their case, they turn to the Appellate Courts. Making the appropriate legal argument to a court of appeals requires significant legal skill and precision. Many trial court lawyers do not handle appellate work unless they do it often, and will refer their cases ripe for appeal to an appellate lawyer. Imagine now, trying to handle it on your own, as a pro-se (without a lawyer) plaintiff or defendant.
There is a large class of pro-se defendants in trial courts overseeing mortgage foreclosure cases. Let's face it, when we cannot pay the mortgage payments and may be behind on other bills like utilities, cars and credit cards, it can take all our energy and resources to keep the lights and phones on. In these situations, some Illinois homeowners decide to file for bankruptcy protection. Other homeowners choose to fight to keep their homes and assets for which they have worked hard over years in a dicey economy.
The Internet is an excellent resource with information about defending foreclosure actions. Many homeowners who chose to stand up to the banks and mortgage companies have a story to tell; their stories often suggest the loan servicers and financial institutions are playing tricks and pulling dirty punches. Whether this is true, is a matter for the court. So it goes, many pro-se litigants proceed in court to fight and expose wrongdoing. When it comes to having your day in court, many pro-se litigants end up losing and do not even understand how or why. Ending pennywise and pound foolish, an experienced foreclosure attorney might have been able to save them from losing their homes.
Illinois courts, following other states, are adopting legal theories and generally ruling that banks seeking to foreclose, must have all their documents lined up before they file a foreclosure suit.
The Second District Court of Appeals, reviewing a DuPage County foreclosure case, Deutsche Bank Nat. Trust Co. v. Gilbert , ruled that a foreclosure case should have been dismissed by the trial court because the Plaintiff who sued to foreclose was not the proper holder (owner) of the mortgage, with a right to foreclose. The issue in Gilbert, argued by the homeowner’s attorney, involved an assignment (that demonstrated a transfer/sale of the mortgage interest) from one party to the Plaintiff. The legal problem was that the assignment document had not been dated or proven to exist prior to the Plaintiff filing the foreclosure matter. The court noted that, Gilbert’s documentary evidence demonstrated that Deutsche Bank did not own the loan (the mortgage and the note, and an assignment executed after the date of filing) constituted prima facie evidence of lack of standing. The court in this opinion made clear, in order to file a foreclosure suit, you must actually own the loan prior to the filing of the complaint.
In another recent case, a homeowner, in the First District Court of Appeals, sought the review of a Cook County foreclosure case, Rosestone Investments LLC v. Garner. The homeowner represented himself, pro-se, and cited the Gilbert case in support of his similar argument, that the Plaintiff financial institution, seeking to foreclose, did not have standing (the legal right to sue) because the assignment was executed (completed) several days after the case was filed. Many non-attorneys might rely on what they read online and assume their case, assuming the facts are true and the scenario the same, would win. This pro-se defendant lost. For several reasons we address in our analysis of the two cases, the foreclosure defendant, Garner, might have won his case if he had articulated his legal arguments appropriately and followed proper procedure. The pro-se defendant in Garner filed many motions and pleadings, failed to attend hearings in the case, and ultimately lost his home.
The time to properly defend any legal action is the first time around.
Foreclosure cases at the trial court and appellate levels have official court records of everything that was filed and all that happened in the case. It can be difficult for lawyers and judges to unravel a significant mess. The boxes of documents showing all the motions and pleadings filed in the Garner case are likely enough to drown anyone who needs to review them. The more opportunities for error, the more it may be possible for an error to occur.
If, however, a homeowner goes at defending their foreclosure case on his or her own, and loses as a pro-se litigant, the home may be sold and gone before the homeowner hires an experienced foreclosure defense lawyer, and then it may be too late. Yes, the homeowner may win their appeal, but at what cost?
Illinois trial and appellate courts do not always agree on the others’ interpretation of the facts and law. One court may follow one line of cases and another court may disagree, with their own theory why they are correct in their holding. Once again, the work required of a non-attorney, in feeding through precedential decisions and having a reasonable prediction of how a court may rule, is likely insurmountable.
We will keep you up to date and help you learn more about Illinois foreclosure law and defense.
As the attorneys and courts work to keep up with the legal decisions involving mortgage foreclosures, this blog will be updated as we publish articles with news and resources we use as mortgage foreclosure defense attorneys to make sure the finance companies and loan servicers follow the law and do not improperly foreclose upon and seize your home.
If you received notices that your home is in risk of foreclosure we may be able to help you with a variety of legal options to save your home loan or defend your foreclosure case in court to minimize your loss and force the banks to get it right and prove case, if they truly have one.
Daniel S. Khwaja, Illinois foreclosure lawyer, is fighting for justice. The website and Foreclosure Questions & Answers located at ILForeclosureLawyer.com contain a library of information so you, the educated homeowner, can better understand Illinois foreclosure law and defense. The better you understand, the better you can help us do our job to represent your best interests, in and out of court. You may also stay in touch with us on social media on Facebook, Google Plus, Twitter and LinkedIn. To speak to Illinois Foreclosure Defense Attorney Daniel S. Khwaja, call 1-312-933-4015.