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Andrew John Hawes

Andrew Hawes’s Answers

91 total

  • Judgment of foerclosure

    How can I appeal judgement of foreclosure when I was not served attorney for the plaintiff stated that the documents were sent via postal service we received notification in the mail after we returned from the court and confirmation of the deliver...

    Andrew’s Answer

    From what you've provided, I don't understand your objection to service.

    The bank has to serve you either through a special process server, the sheriff, or through publication after attempting to otherwise serve you. This is the original service of process.

    From what you've described, it sounds like they already served you and then mailed you a copy of the motion for default judgment and your objection is to service of this document, not service upon you. If you wish to object to the original service, I strongly suggest you hire an attorney. If your objection is to the notice of a summary judgment hearing/default, you probably don't have much of an objection because they simply have to deposit the motion in a United States Post Office or Post Office Box on or before the fifth (5th) court day preceding the hearing of the motion (and of course their proof of service will say that they did this). Further, you cannot appeal until confirmation of sale is entered because this is the final judgment in foreclosure proceedings.

    You may be able to vacate, but if you are serious about trying to retain the property or delay litigation, you better hire an attorney.

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  • My condo is up for auction in 2 months.When should I vacate it? When to stop paying HOA? Deficiency Judgement?

    My condo is in the final stages of foreclosure.I got dozen of ads from law firms saying that public record shows auction date is set for March 8.I have not received anything from Court or the Plaintiff's law firm.Cook county web site says JUDGMENT...

    Andrew’s Answer

    • Selected as best answer

    General timeframe is as follows:

    90 days after judgment date your redemption rights expire, bank cannot sell during this period
    91st days: bank usually sells the property
    1-2 months after date of sale: bank must file a motion to confirm the sale with foreclosure court and obtain court order confirming the sale
    Confirmation of sale court date: court enters order for possession and order confirming sale, unless you object and obtain opportunity to respond
    30 days after date of confirmation of sale: You are legally required to leave the property
    30+ after that: bank will place order with sheriff to evict you, which may take some time, but you will not know the exact date

    If you did not file an answer or appearance in the case, you were defaulted. This means that you are not entitled to notice of all the upcoming sale dates and court dates but the bank usually supplies them anyway.

    Your liability for HOA continues until title transfers, which is the confirmation of sale court date.

    You will know if the bank is granted the deficiency judgment once you obtain the confirmation of sale order. Of course, if you do nothing, the bank will obtain it so long as the bank asks for it.

    The property WILL sell. If no one shows up, the bank will purchase the property.

    They can come after you later for the deficiency judgment just like any other money judgment.

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  • I bought a foreclosure home in Romeoville for my daughter,no one can live there until it is brought up to code.

    My daughter moved in, The city gave me 3 notices to get her out. She will not move, says it is her home and she is not moving. My name is on the deed. The city of Romeoville is going to take me to court. Is there anything I can do before that happ...

    Andrew’s Answer

    Bring it up to code? If the city is citing you for building violations, they will bring you to court regardless of who is in the property.

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  • 2013 Illinois Foreclosure Law applied to a Tenant. As a IL tenant w/residence in Foreclosure, how much time do I have left ?

    Off the Clerk of Cook County's web site: Judgment for Foreclosure entered Dec 2012. My understanding: 3 month redemption period will then expire March 2013 My understanding: the property will be sold at auction on the same day of the redemp...

    Andrew’s Answer

    • Selected as best answer

    Do you have a lease with the owner?

    If so, there is a federal law, the Protecting Tenants in Foreclosure Act, which provides tenants with protections: 1) First, it provides that the successor in interest must provide at least a 90-day notice to the tenant to vacate the property (and this is only after they actually acquire title to the property); and 2) If the tenant has a lease or tenancy that is greater than 90-days, it must be honored unless the successor in interest will use the property as a primary residence. Since the bank would likely be the successor in interest, the bank would have to honor the lease terms and let you remain in the property for the duration of the lease. This protection applies to any lease entered into “before the notice of foreclosure,” which under this law has been defined to be the date on which “complete title” is transferred to the successor person or entity as a result of the foreclosure process. This means that the relevant date is at the end of the foreclosure process (e.g., the recording of a foreclosure deed to the successor in interest) rather than the beginning of the foreclosure process.

    Worst case, sale is often scheduled soon after the redemption (normal redemption is 90 days, but the court does have discretion to alter the redemption period), but I have cases where for whatever reason the bank does not try to sell the property for weeks or even months. Additionally, to confirm the sale they will have to get onto the court calendar. Right now the clerk is giving out late April-May dates, meaning you can expect 2-3 months, not weeks. Further, the owner will likely be granted at least an additional 30 days of possession in the order for possession. Then, you would legally have to be evicted before you were ordered to leave the property since you were not a party to the foreclosure. So, you have a considerable amount of time. These are obviously not guarantees, but simply rough timeframes based upon my experience.

    Again, if you have a lease, the bank must honor it, and you can stay the duration of your lease, subject to the exceptions listed above (purchaser intends to reside in property for primary residence). Otherwise, you have 90 days notice from the date they serve YOU with the notice, not 90 days from the date the owner receives notice of the confirmed sale.

    Another thing to be aware of: more and more banks are entering into leases with current tenants. Simply too many properties to sell, and they are starting to want to keep tenants in the property for longer.

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  • Can a person appeal a Strict Foreclosure

    I refuse to sign forclosure consent as my partner did because I would not consent to it they entered Strict Foreclosure against. What recourse do I have

    Andrew’s Answer

    There is no such thing as a "strict foreclosure" under the law and I am not sure what you are referring to. I will assume that you are referring to a foreclosure judgment obtained through summary judgment.

    It is also not clear what stage of litigation you are in. Has the property already been sold? Has the sale already been confirmed?

    You can file an appeal after final judgment, which in the foreclosure context is after the confirmation of sale. The problem is that if you didn't file anything during the litigation, there is not anything to appeal. You didn't preserve a record for the appellate court to review and determine any issues with your case.

    If you are serious about trying to file an appeal, you must consult with an attorney to see if it's even worth your time and energy.

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  • Predatory lending--Does it apply to my case? I took out a fixed home equity line of credit in mid 2006 to complete renovation

    of my newly-acquired condo in 2004 because I had bad luck with contractors and ran out of money for gut-rehab. When I was shopping for a loan, I stated to the bank's loan officer that I would live in the condo and the officer explained that they w...

    Andrew’s Answer

    No. Predatory lending is different from any potential claim you have arising under the facts you've provided. You may have a possible claim under TILA, but as attorney Goodwin noted in her answer this has a three year statute of limitations (at least to have the recission remedy). You may be able to plead this issue as a defense in foreclosure, but only in the nature of a recoupment or set off to the judgment amount (and even this remains difficult to prove to certain judges). Think of how you would possibly prove your claim - it would be your word against theirs unless you have any of this in writing. Additionally, it would not be any bar to their foreclosure or right to proceed, but again, purely a setoff/recoupment to their judgment (and how any judge would value any such setoff, or what sort of harm you could even prove as damages, is tough to conceptualize). The general damage provisions under TILA provide for actual damages, statutory damages up to $4,000 and attorney's fees and costs. You will also likely have an issue of extending liability to the current lender/assignee, as liability only extends to assignees where the violation is apparent on the face of the loan documents. 15 U.S.C. § 1641(a).

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  • My tax debts qualify for discharge in Chapter 7 bankruptcy. WIll the IRS automatically remove them from my account?

    I'm uncertain how I go about having the debt removed. Thank you.

    Andrew’s Answer

    • Selected as best answer

    I agree that you should have an attorney review the dischargeability of the tax debt and assist you with your case. You may very well need to file an adversary proceeding or take additional action in court if there is a dispute as to the dischargeability. Provided that they are in fact dischargeable, your PERSONAL LIABILITY will be discharged but any prior recorded tax liens will remain because bankruptcy will not eliminate prior recorded tax liens. Thus the IRS could not come after your bank account or wages, but if there's a lien on any real estate, the lien will remain on the property. This means you may have to pay off the tax lien in order to sell the property.

    To be dischargeable in a Chapter 7, all of the following must be true: 1) the taxes owed are income taxes; 2) you did not commit fraud or willful evasion - the IRS may disagree with your assesment of this factor; 3) the debt is at least three years old (the tax return must have been due at least three years before you file bankruptcy); 4) you filed a tax return for the years you are seeking discharge; and 5) you pass the "240-day rule," meaing that the debt must have been assesed by the IRS at least 240 days before you file your bankruptcy (and this time limit may be extended if you previously filed bankruptcy or entered into an offer in compromise with the IRS which resulted in the IRS suspending collection activity).

    As you can tell, this is not particularly straightforward. Seek professional assistance.

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  • My house been on foreclosure since sept. 2010. January 2013 my court date, i was given a dismissed without prejudice.

    I have tried everything to get my loan modified and its been 7th times that i filled out all the necessary form and documents but for them to tell me that they have not received it. I am so frustrated i dont know what i should do. Did they dis...

    Andrew’s Answer

    • Selected as best answer

    I strongly recommend you continue with the attempt at loan modification provided that you want to keep the house long term. You can meet with a HUD agency for free, and they will both help you fill out the application and follow up with the bank on your behalf. The more people that follow up with the bank regarding documents the better.

    Part of the problem you will face is your long period of default. If your house has been in foreclosure since 2010, you probably have not paid on the mortgage in 2.5 years. This may make it extremely difficult and unlikely for you to obtain a modification.

    They did NOT dismiss the case to give you a chance for the modification. In Illinois, there is a dual track system in which the bank can foreclose while offering a modification. With some exception, these are two separate processes. It's very common for the bank to seek a judgment even while analyzing for a loan modification.

    Without seeing the documents, it is not really possible to explain why your case was dismissed. If you do want to know the answer to this question and assistance with your options, I strongly suggest you meet with an attorney and bring all of your documents to the meeting.

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  • If a lender does not prove that they own a property, puts the house for sale, could that be theft by deception?

    Would it actually be a violation on behalf of the lender if they have absolutely no proof of ownership, but foreclose on the property anyway? Could that be considered Theft by Unauthorized control?

    Andrew’s Answer

    The lender (or other plaintiff, as the definition of mortgagee is incredibly broad under the Illinois Mortgage Foreclosure Law - "IMFL") must show their right to foreclosure prior to judgment and sale. From your question, it sounds like you are now seeking to undo a sale that has already occured. This can only be done under limited circumstances, such as (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). The time to challenge their proof of "ownership" is before judgment, not after. It sounds like you need an attorney to review your case and see if you have any options at this point.

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  • I've been in foreclosure, is a deed in liu of foreclosure an option?

    In January, 2012 I filed for bankruptcy. My intent was to keep my condo which the loan amount stands at $170, and it's now worth about $80. I then became engaged so my intent then changed and stopped making the payments and was going to make it ...

    Andrew’s Answer

    What type of bankruptcy did you file? If you filed a Chapter 7 and received a discharge, you do not owe anything on the condo anyway.

    You can certainly still do a deed in lieu. Most banks require that you first list the property for sale for at least 60-90 days before they'll offer you a deed in lieu. I don't understand what you mean about the lender "buying the note," presumably if they are foreclosing upon the note they already own the note.

    Additionally, there may not be much to gain from a deed in lieu, outside of possibly a more favorable credit score impact and possibly some sort of cash incentive. I have seen some banks offer upwards of $20,000 for an early move out of the property and a deed in lieu. I would contact the bank and see if cash for keys or some sort of compensation was available for an early surrendering of the property.

    If you did not receive a discharge in the bankruptcy, you are still personally liable for the balance of the mortgage. Any waiver of this deficiency would have to be negotiated for as part of the deed in lieu as the bank may not voluntarily agree to that.

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