Are you facing foreclosure? The timeline for foreclosure largely depends on if you hire an attorney and how well that attorney knows the foreclosure process. A good foreclosure attorney will know how to challenge the banks every step along the way and keep you in your house. Here’s the foreclosure timeline you can expect, with an experienced foreclosure attorney, like the attorneys of EV Has, LLC.
Month 1 – 4: Pre-Foreclosure: Attorney Challenges the Lender Directly
This is where the attorney contacts the lender directly through certified letters with specific questions to gain crucial information on the banks practices at the time of signing the mortgage as well as the bank’s conduct throughout collection of the borrowers payments and the life to date of the loan. Banks consistently fail to comply with federal and state regulations. In fact, it’s cheaper for lenders to continue bad practices then to spend money to change their infrastructure. Through this inquiry and proceeding analysis of information provided by the bank, if provided, the attorney can discover specific bank errors that may be actionable. The secondary benefit to this inquiry is that the lender must cease further collection efforts until the lender resolves the issues and disputes raised by the attorney. This is most effective prior to any foreclosure action being filed.
In addition to attorney inquiries into the bank’s practices, it is imperative for the borrower if they want to keep the home to begin the process to save their home. This includes collecting borrowers’ financial information (check stubs, bank statements tax returns, etc) and contacting the lender directly, through the attorney or through competent HUD counselors. Each lender had their own series of obstacles to helping you save your home, despite the rhetoric that the banks are here to help. Getting the bank to approve a desired end goal requires diligence and perseverance and understanding what the bank is looking for and what their internal challenges and incentives are.
For example most residential and a segment of commercial loans are insured from default. So when a borrower defaults the lender after a certain time is reimbursed full for any losses from the default. Essentially instead of waiting 30 years to get their money back, once you default the lender collects its money and its profits back from the sale of your house and the difference from their insurance company. (see mortgage back securities)
Month 4 – 5: Foreclosure Complaint is Filed
The Bank is barred from filing any foreclosure complaint so long as the attorneys written requests are pending. However, it is not unusual for the lender to ignore the requests or after partially responding to attorney’s direct written requests that the Bank continues to move forward. This triggers another claim against the lender. Once the foreclosure complaint is filed, it does not terminate your rights. There are still many options and with a qualified Foreclosure Defense attorney you have a lot more time.
Month 8 – 12: Notice of Motion for Default
Here the attorney will most likely had filed an appearance on your behalf if you retained them early enough, or the attorney will show up and advise the court that you the borrower are now represented by counsel. The court will grant the attorney time to file pleadings in response to the complaint.
Month 12 – 36: Rigorous Foreclosure Defense
This is what separates experienced and qualified foreclosure defense attorneys from everyone else. Stop dual tracking, strike back and negotiate.
This period of intense and rigorous defense of your matter is critical to defending your home, your credit and your family. EV’s range of pleadings that attack and defend include motions to quash for improper or failure of service, motions to dismiss for procedural malfeasance or errors in bank filings, and motions to dismiss for substantive malfeasance by the bank, affirmative defenses, counter claims, discovery, motions to compel and bills of particular.
Paying as little as possible to defend your family can only result in disaster. A good foreclosure defense attorney is about persistence and perseverance. They will relentlessly pursue every defense and claim available to save your home and protect your family.
However a good fight is only part of the solution, negotiation and diplomacy makes it a complete solution. Negotiating with your lender is more than stacking papers and faxing them to your lender. Whether it’s a deed in lieu, short sale or loan modification, you and your financials need to be presented in the most appropriate light to get what you want, and protect you from bad deals, bad loan mods, or onerous terms that will only prolong your problems.
During this period we will completely assess your financial capabilities and address your financial weaknesses and highlight the strengths of your situation to be best presented to your lender. Sometimes our relationships with opposing counsel helps navigate around walls that lenders put up that make loan mods, short sales, and deed in lieu near impossible.
Month 24 – 48: Facing Judges, Banks, and Bank Attorneys
Unfortunately, this process includes judges, banks and bank attorneys whose job it is to get the process moving along. No legitimate attorney will make guarantees beyond defending your house to the best of their abilities. Because there is a system in place, and depending on perspectives, the system is designed to help the banks.
The art of being a good foreclosure lawyer involves expertly navigating this system to your benefit and the benefit of your family. As described above a combined strategy of litigation and negotiation is required to get you to safety. Judges and the courts are now entering deficiency judgment, which can exceed hundreds of thousands of dollars against you that will last for almost 20 years.
A qualified foreclosure defense attorney will challenge the bank at every step of this process and ensure that the bank followed every rule and guideline to the letter. If attempts to challenge the underlying judgment with cause fail for whatever reason, the lender must still prove all of the following:
- Notice of the sale was proper
- The terms of sale were reasonable
- The sale was not conducted fraudulently
- The lender complied fully with HAMP requirements
Saving your home is priority number one, preventing this financial setback from haunting you for the rest of your life is priority number 2.
Bankruptcy is not a viable option for a lot of people. For borrowers over a certain income bracket, who have assets that need to be protected, or in certain types of careers, bankruptcy is not an option. Plus the frustration and invasion that takes place when a trustee is digging through every transaction and shred of paper looking to squeeze blood from a turnip, is something we strongly encourage you to avoid.
Month 24 – 48: Special Right to Redeem
If the successful bidder at the sheriff sale is the lender (no third party lender); and the lender bids an amount less than what is owed, borrower gets an additional 30 days beyond confirmation of sale to redeem the property at the amount sold in the sheriff sale. Beware of how the bank and the court structure the deficiencies. If there is a deficiency, the lender could insist that the deficiency be applied to the property hence defeat the entire benefit of this special right to redeem - another method of dirty pool by the banks.
Month 36 – 48: Eviction by Sheriff
The mortgage company will then pass along the order of possession to the Sheriff who will then show up to the door and post an eviction notice on the front of the door, notifying the occupants to leave and vacate the property. Within a few days after this posting the sheriff will return to forcibly remove you from the house, and leave your belongings in side the house.
… WAIT Not ALL Occupants are named!!!
In order for the sheriff to enforce the order of possession to evict all the occupants everyone in the house, over the age of 18 must be named in the sheriffs order of possession. Otherwise the sheriff cannot evict the unnamed persons, and more importantly the sheriff will not evict anyone until they have an order naming everyone. It is important that if you receive or see a posted sheriffs notice of eviction on your door and you does not name you in the notice, you speak to an attorney or you call the sheriff and advise them that you live in the property. You will need to show the sheriff proof of residence, driver’s license, state ID, utility bill, bank statement, phone bill, and/or a lease as evidence of residence in that property.
The appropriate response by the sherriff would be to cancel the eviction until the bank has cleared and corrected any deficiencies, which would require them to file a forcible action to remove any occupants, not protected by a lease.
OR… WAIT there is a TENANT!!!!
The Sheriff CANNOT evict if there is a legal tenant in the property who is not a sibling, parent, or child of the borrower. The lease must be for a reasonable market value and dated BEFORE the lis pendens is filed by the bank with the recorders office. The bank MUST honor this lease for the life of the lease, no matter how long that lease term is: five years or even ten years. In Chicago under the KCRO (Keeping Chicago Renting Ordinance}, if the bank fails to honor your lease the penalty is $10,000.
Month 48 and Beyond: Zombie Titles
The banks’ tactics for limited liability and damage to the borrower doesn’t stop after the foreclosure process is completely over. Banks are notorious for failing to record the foreclosure deeds. The result is an abandoned property that now becomes a problem for the city and is then subject to excessive water bills, utility liens, and especially city violations. The city goes after the last known property owner, which is you if the bank decides not to record its ownership in the property. See our article on Zombie Titles for more information.
Month 48 and beyond (or to the end of the lease): Defending the Tenant
The Federal Protecting Tenants in Foreclosure Act, the Keeping Chicago Renting Ordinance, The Illinois Tenants in Foreclosure Act and the Chicago Residential Landlord Tenant Ordinance each have provisions independently and overlapping that protect the tenants rights who reside in properties that have fallen into foreclosure through no fault of their own. There are rules and regulations that a landlord or in this case a Bank needs to follow to reclaim a property from a tenant.
If the Tenant’s lease is in effect before the lis pendens is filed on a property then the full term of the lease must be honored, so long as the lease is valid. A valid lease can be a 10 to 20 year residential lease, at market value, the relationship between the borrower and tenant is arms length (neither, sibling, parent nor child) and the tenant is paying, then the Bank or successful bidder in foreclosure must honor the lease and cannot evict. If they attempt to evict wrongfully, they have at minimum $10,000 in damages plus attorneys fees, under the KCRO, and potentially additional statutory fines and fees under the other laws.
However, if the lease was entered into after November 01, 2013, and after the lis pendens was filed against the property, then the maximum time allowed under the Illinois statute is 1 year or the remaining time under the lease.
For some of us in this field, an at EV, it is our legal opinion that Illinois statute cannot trump or restrict the protections provided under the Federal Tenants in Foreclosure Act, and hence any lease that qualifies under the federal act is valid. Unfortunately only higher court decisions from applicable Illinois appellate and/or the Illinois Supreme Court will be able to overturn this new law. In the mean time if you have a valid lease, the foreclosing bank cannot ask you to leave, and they must honor your lease.
During the pending foreclosure the landlord has every right to collect the rent, and the tenant is obligated to pay rent. In fact, up until the property is confirmed at the confirmation of sale and order of possession hearing the landlord can continue to collect the rent.
Now in some cases a court will appoint a receiver to collect the rent instead of the landlord/property owner. A receiver is usually a property manager, real estate agent or some other real estate professional appointed by the court via court order, that gives him the authority to collect the rent and maintain the property instead of the property owner/landlord. This is legal and allowed, however the received must protect and maintain the property. Although the receiver is duty bound to protect the interests of the borrower/landlord/property owner, in most cases the receiver is chosen by the bank, and gets a majority of their business from the bank. So in reality the receiver is best served by serving the banks’ interests.
There are many receivers out there who do not protect or maintain the property and merely collect the rent and charge fees. We have seen many courts turn a blind eye to receivers’ transgressions. If this is happening it is very important to raise these issues by recording and tracking evidence of the receivers transgressions, so a competent attorney can bring them before a judge on your behalf or on behalf of the landlord/property owner.
DISCLAIMER: The above time periods regarding the foreclosure process for represented borrowers are purely estimates based on being represented by a skilled and experienced foreclosure defense attorney, experience and statutory rules of the Illinois Mortgage Foreclosure Act. In some cases the definition of a commercial property is not clear cut and may create sufficient question of fact that will prevent furtherance of the mortgage foreclosure. If you fail to hire a qualified foreclosure defense attorney the ramifications to your ability to save your home, the long term negative impact to your credit history, and potential financial losses including seizure of bank accounts cars, and wage garnishments could be catastrophic. Find the right attorney, and remember you get what you pay for.