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Foreclosure: What to expect in Illinois - Defending a foreclosure

Posted by attorney Erica Minchella

I have three strategies for helping clients who are in foreclosure: (1) Defend; (2) Buy time; or (3) Give up.

Here is what to expect if you are going to defend:

Lenders made many mistakes in their loan packages in the mid 2000 aughts. It is therefore worthwhile to check every document connected to the transaction.

Generally, a lender will not file a foreclosure unless you are more than 90 days delinquent. There is a statutory requirement that you be given notice of your delinquency and alternatives which might prevent a foreclosure from completing. Those include sale of your property, a forebearance agreement, short sale and loan modification. (Those strategies will not be discussed here)

After the filing of the case, the lender has 30 days within which to get you served with the Court documents. In the event that they don't get you served, they can continue to try again. If it becomes clear that you are dodging service, they can ask the Court for authority to serve you by publishing notice in a local newspaper that your property is in foreclosure.

Once you are served, you have 30 days within which to respond. If you do not, the Court, generally, will allow you to file your response late.

It is critical that in the foreclosure process you look at all of the documents related to closing - or to have your lawyer do so. This is where errors in the loan documents might be caught. There are currently numerous defenses to foreclosure, but whether your case allows for a defense can only be determined on the basis of your documents. (Defenses will be discussed in a separate Legal Guide)

Generally within 30 to 60 days of your filing a response the lender will move for Summary Judgment, if a valid defense has not been raised.

Once Judgment is entered, it will be approximately 90 days before the property will be put up for Sheriff's Sale.

Once the Sheriff's Sale occurs, the Lender needs to have the sale approved by the Court. That usually happens 14 to 30 days after the Sale. At that time they will also ask for possession of the property. The Court will generally give 30 to 60 days to the Defendants to vacate. (Eviction proceedings will be discussed separately).

From the time you stop paying your mortgage until the time possession is granted is about a year.

Additional resources provided by the author

See: Illinois 735 ILCS 5/ Code of Civil Procedure. Article XV - Mortgage Foreclosure
Also (765 ILCS 940/) Illinois Mortgage Rescue Fraud Act.

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