Common Questions about Foreclosures

 

Do you have Foreclosure Questions?

Here are some common foreclosure questions and answers. If you have other foreclosure questions call us anytime 800-459-1215

 

What is a mortgage foreclosure?

A mortgage is a written agreement between a mortgage company and home buyers. The mortgage makes the house collateral for their home loan. If the homeowners default on the loan, the mortgage company can try to repossess the house. This is called a mortgage foreclosure.

A mortgage company must sue to foreclose on the house. The mortgage company is the plaintiff, and the homeowners are the defendants. If the company wins, it can sell the house at a public auction. It then uses the money from that sale to pay off the loan. The homeowners can buy the house at that auction. Otherwise, they lose the house and must move out.

What if homeowners have lost their jobs or work hours were reduced?

Sometimes, even if homeowners do nothing wrong, they may still lose their jobs or have their hours reduced. If homeowners are behind in their payments as a result of either event, the lender must give homeowners a notice of their right to financial counseling. The notice must tell the homeowners about the lender’s own counseling services, or it can provide homeowners with a list of HUD-approved counseling services or a toll-free number for them to get information. Homeowners have a right to this notice every time they get behind in payments.

What if homeowners are behind in their payments and want to keep their house?

If homeowners are behind on their mortgage and want to keep their house, they should contact their lender right away. Explain the situation. See if the homeowners can agree on a way to make up the payments they have missed. Do not wait until the lender files a lawsuit. If homeowners wait, they may owe more money because they may have to pay attorneys’ fees and court costs. This could cost homeowners hundreds of dollars.

If the homeowners can’t work out an agreement to make up their payments, they should call a lawyer to talk about their options. Some of the options are discussed in this module. However, this module does not give legal advice. If homeowners want to defend themselves, they should get a lawyer, read the material carefully, and decide which option works best for their situation.

What if homeowners are behind in their payments and don’t want to keep their house?

There are three things homeowners can do if they are behind in their payments and do not want to keep their house:

  • Sell the house: Try to sell the house themselves or by using a realtor. If homeowners sell the house before a foreclosure sale and get a good enough price, they can avoid owing the bank money. Homeowners may even get their ‘equity’ out of a sale.
  • Deed in lieu of foreclosure: Homeowners can ask the lender whether they can give the lender the deed of the house. If the lender agrees and accepts the deed from the homeowners, they lose the house. However, they will not owe any more money. In other words, the lender is giving up its right to sue in a foreclosure case.
  • Consent foreclosure: If the lender has already sued the homeowners, they can ask for a ‘consent foreclosure.’ If the judge orders a consent foreclosure, the homeowners will not owe any money under the mortgage. The homeowners might have to pay the lender’s court costs and attorneys’ fees though.

What if homeowners are being sued?

Defending a foreclosure case is usually very complicated. The homeowners may want to talk to a lawyer about their legal options. Some of the options are explained here, but they are not legal advice. Homeowners need to read very carefully and decide which option works best for them.

  • Reinstatement: If the homeowners can pay the amount they owe, they can avoid foreclosure. This is called reinstatement. After the mortgage company serves the homeowners with a complaint, they have an absolute right to fully reinstate the loan within 90 days. Lenders will often allow reinstatement as long as it occurs before a foreclosure sale.
  • Repayment Plan: A repayment plan helps homeowners reinstate their loan over time. Generally, the lender will request a payment of half of the arrearage as a down payment. It then will charge 1 ½ payments a month until the homeowners are no longer behind in their payments. A lender will normally not accept a repayment plan after a bankruptcy.
  • Redemption: Homeowners can pay off the whole loan. This is called redemption. Homeowners have the right to pay off the loan during the redemption period. For residential property, the redemption period usually expires 7 months from the date when your lender serves the homeowners with a complaint, or it expires 3 months from the date the judgment of foreclosure is entered, if the three-month period occurs later than 7-month expiration. The redemption period must expire before a foreclosure sale. Redemption usually occurs through a sale or when the property is refinanced.
  • Home Sale/Short Payoff: Homeowners can sell their home anytime before the foreclosure is finished. A short payoff occurs when the homeowner owes more on the loan than the house is worth. A lender will usually not accept a short-payoff on a refinance.
  • Refinance: Refinancing the loan is possible if the homeowners have enough equity in the home. However, homeowners might pay a high interest rate in addition to high loan charges.
  • Loan Modification: Homeowners may also talk to their lender to see if they can change the terms of the mortgage. For example, the lender may extend the term of the mortgage, add the amount owed to the mortgage amount, or reduce the interest rate.
  • Bankruptcy: If homeowners file for bankruptcy, the foreclosure case will stop. If homeowners file under Chapter 13, they can have a forced repayment plan. A homeowner can file for bankruptcy anytime before a foreclosure sale. For most people, this should be the last option, not the first!
  • Deed-in-Lieu of Foreclosure: If the homeowners’ lender agrees, the homeowners can give the lender the deed to the house and ask the lender to forgive all debts. By accepting the deed, the lender gives up the right to sue. A lender will not accept a deed in lieu of foreclosure if there are other liens on the property.
  • Sue the lender for mortgage fraud and legal violations: According to a government audit nearly 85% of all loans and mortgages contain legal violations that can be used to stop a foreclosure and could even result in the borrowers being awarded financial compensation, the home clear and free, or even better. 

Do homeowners have to move out of their homes right away after they are served with a notice of foreclosure?

No, homeowners don’t. Homeowners can still live in their home until the period of redemption expires. During this period, homeowners don’t have to pay rent. The redemption period usually expires 7 months from the time the lender serves the homeowners with a complaint. The redemption period might expire 3 months from the date of judgment, if that date is later than 7 months from when the complaint was served. Even if the redemption period is up, homeowners may stay in the house until 30 days after the judicial sale is confirmed. However, the homeowners have to pay a fair amount for rent. If the new owner agrees to lease the home to the former homeowners, they can stay longer for the lease term.

The lender can ask the court to make homeowners move out sooner than this. If the lender does this and the homeowners want to stay, find a lawyer.

If homeowners want to fight foreclosure in court, what do they do next?

If homeowners are served with a Mortgage Foreclosure Summons (See a blank Summons form), this means their mortgage company has filed a lawsuit to repossess their house. If homeowners want to protect their rights, they must file an Answer within 30 days of getting the summons. If they do not file an Answer, the judge will order a foreclosure against them by default.

To file an answer and summons, go to the Forms and Letters section within this presentation. Download the forms and fill them out as instructed.

Forms and Letters

Listed below are forms that defendants may need to resolve their problems.

NOTE: These documents may open in a new window. If a PDF file will not open, you may need to turn off the computer’s pop-up blocker.

When a homeowner fails to pay a mortgage on time, the mortgage company will usually file a foreclosure suit. In Illinois, a homeowner facing a foreclosure suit has certain rights under state law as well as federal law. For a list of relevant state and federal statutes, go to the Related Information section of this module. A discussion of the relevance of these statutes can be found in Some Steps in Analyzing Foreclosure Cases.

The state statute that governs mortgage foreclosure is Illinois Mortgage Foreclosure Law (IMFL). IMFL provides the exclusive method for foreclosing on all mortgages.

Under IMFL, a mortgage company can only foreclose on the homeowners’ house by taking the homeowners to court. Before the foreclosure lawsuit is over, the homeowners may still stay at their house. The entire process in Illinois usually takes about 8 months. Foreclosure defense in court is seldom successful in defeating the foreclosure action. However, by defending the foreclosure, homeowners may prolong the foreclosure by as much as 24 months.

In a nutshell, the foreclosure process in Illinois is as follows:

  • First, homeowners default on their mortgage payment.
  • The mortgage company then files a foreclosure lawsuit.
  • The mortgage company gives the homeowners personal service of summons.
  • The foreclosure lawsuit then proceeds at the Chancery Division of a county court.
  • Within 90 days after personal service, the homeowners have a right to reinstate the mortgage.
  • Illinois law also guarantees the homeowners a right of redemption within the 7 months after personal service or 3 months after judgment, whichever occurs later.
  • Note: After the sale, the person who conducted the sale reports the results of the sale to the court. If there are deficiencies, personal liabilities against the homeowners are established at this time. Occasionally, the property is sold for more than the amount of pay-off. The homeowners may be entitled to this surplus. They should call the mortgage company’s attorney to find out the sale value and file a motion to request turnover of the excess proceeds of sale.
  • If the mortgage company obtained a judgment against the homeowners and the homeowners did not exercise their right of reinstatement or redemption, then the mortgage company proceeds to conduct a foreclosure sale of the house.
  • The homeowners still have a statutory right to possession during the 30 days after a foreclosure sale is confirmed.
  • After the right to possession expires, the homeowners must move out.

The right of reinstatement and the right of redemption are particularly important to homeowners. Under Illinois law, the mortgagors/homeowners have a right of reinstatement. They can pay the past-due amount, including all accumulated costs and fees, and as result, may bring the account current. This right is only available once every 5 years. The homeowners have the right to reinstate the mortgage within 90 days from the date when they are served with a summons, served by publication, or are otherwise submitted to the jurisdiction of the court.

Redemption means the payment of the full principal balance, all accumulated interest, fees and costs. When the homeowners’ house is foreclosed, the redemption ends 7 months from the date they are served with summons, served by publication, or 3 months from the date of entry of the judgment of foreclosure, whichever is later.

 Here is a visual timeline of the IL foreclosure process.

click on image to enlarge:

IL foreclosure timeline

There are also non-legal solutions to foreclosure.

For example, the homeowners may avoid a foreclosure by working out a plan with the mortgage company. There are a variety of workout agreements that help the homeowners avoid a foreclosure suit.

  • Temporary Indulgence: a month or two grace-period to bring payment current.
  • Deferral of Principal: buyers pay only interest for a period of time and then resume normal principal and interest payment.
  • Forbearance: payments are suspended or reduced for up to 18 months with the agreement that they will be brought current at the end of that month.
  • Mortgage Modification: a change in one or more terms of the original loan to eliminate the arrearage. The interest rate can be lowered, if current market rates are lower than the mortgage, the term may be extended, the arrearage may be added to the principal balance or recast to the end of the term, and the principal reduced to the assessed value.
  • Streamline refinance: a new loan is issued, at current market rates, by the same lender. This is only an option if the loan is or can be brought to 2 months or less delinquent.
  • Refinance: a new loan from another lender. Homeowners should be very cautious about refinancing. They are likely to receive many offers to refinance and save the home. The terms of these offers may be predatory and the homeowners often end up losing the house after even more expenses are incurred.
  • Partial Claim: if the mortgage is HUD insured the lender may be able to request that HUD pay the arrearage. HUD then takes a junior mortgage on the property, which must be paid off after the existing mortgage or at the time of the transfer of the property.
  • Repayment Agreements: the buyers pay the arrearage with an additional payment each month; the term is usually limited to 12 months, not to exceed 18 months.

Usually, the homeowners should identify a workout agreement, draft and send a hardship letter, which outlines their circumstances, to the mortgage company. An attorney may help the homeowners choose from the various workout agreements by carefully reviewing the homeowners’ income and expenses, as well as the homeowners’ wishes to keep the house. (See the Common Questions section of this module for the non-legal solutions.)

A credit counseling agency may also help negotiate a workout agreement to prevent foreclosure. (A practice tip: Typically, the homeowners or their representatives need to work with the loss-mitigation department rather than the foreclosure department. An attorney should seek permission from the foreclosure attorney before contacting the loss mitigation department directly.)

After a foreclosure lawsuit is filed, the homeowners still have some options, other than defending the suit in court. The homeowners must decide whether they want to keep the house. They (or their attorney) must make a realistic and careful assessment of the homeowners’ income and expenses to decide if keeping the house is feasible. If the homeowners want to keep the house, they can invoke their legal right to reinstate, redeem, or file a Chapter 13 bankruptcy (note that they may still attempt a workout with the mortgage company at this stage). If the homeowners do not want to keep the house, they can sell the house, offer a deed-in-lieu of foreclosure, or file bankruptcy. (For a more detailed description of these options, check out the Common Questions in this module.)

Related Information

Listed below are links to information on topics related to foreclosure including additional resources, how to help defendants find a lawyer and other help, a brochure for homeowners, and statutory authority pertinent to foreclosure.

NOTE: You will leave this presentation by clicking on any of the links below.

Additional Resources

The Attorney Desk Reference Manual: Mortgage Foreclosure

Some Steps in Analyzing Foreclosure Cases

Predatory Lending Claims Available to Borrowers in Foreclosure

Pertinent Foreclosure Laws

Federal laws:

Equal Credit Opportunity Act (ECOA), 15 U.S.C. §1691 et seq.: this Act is created to prohibit discriminatory treatment by lenders. It’s credit notification provision protects consumers from bait-and-switch tactics.

Fair Housing Act, 42 U.S.C. §3604: it prohibits discriminatory leasing and selling practices.

Fair Debt Collection Practices Act, 15 U.S.C. §§ 1692: this Act seeks to eliminate abusive debt collection practices by debt collectors, to insure that those debt collectors who refrain from using abusive debt collection practices are not competitively disadvantaged, and to promote consistent State action to protect consumers against debt collection abuses. You can also use the FDCPA to make money while you clean up your credit report and improve your credit score. For more information on how you can do this visit: https://www.fraudstoppers.org/freemoney

Real Estate Settlement Procedures Act (RESPA), 12 U.S.C. §2601 et seq., 24 C.F.R. Part 3500 et seq., 1974.: this Act aims to effect more effective disclosure to home buyers and sellers of settlement costs. It also seeks to eliminate kickbacks or referral fees and reduce the required amount to be put in escrow by homeowners to insure the payment of real estate taxes and insurance.

Truth in Lending Act (TILA), 15 U.S.C. § 1600 et seq.: this Act attempts to assure a meaningful disclosure of credit terms so that the consumer will be able to compare more readily the various credit terms and avoid uninformed use of credit. It also aims to protect the consumer against inaccurate and unfair credit billing and credit card practice.

Homeownership and Equity Protection Act of 1994 (HOEPA)(15 U.S.C. § 1602) implemented by 12 CFR § 226.31 and § 226.32: this Act is an amendment to TILA. It is enacted to deal with substantive abuses of creditors offering alternative, typically high interest rate, home loans to residents in certain geographic areas. It purports to afford consumers most vulnerable to abuse a safety net without impeding the flow of credit altogether.

State and Local Laws:

Chicago Municipal Code regarding predatory lending: it stipulates certain sanctions for banks or savings and loan associations that are found to be predatory lenders, such as no award of contract with the city, no designation as a city depository.

Illinois Consumer Fraud and Deceptive Business Practices Act, 815 ILCS 505/1, et seq.: this is an Illinois state law that prohibits commercial deceptive and unfair business practice. Where a conduct is within the definition of Uniform Deceptive Trade Practice Act, it is unlawful whether any person has in fact been misled, deceived or damaged thereby.

Illinois Department of Financial Institutions and Office of Banks and Real Estate relevant administrative rule: this page covers a wide range of issues that are relevant to lending practice in Illinois, such as disclosure of material information, regulation of brokers and predatory lending.

Illinois Interest Act, 815 ILCS 205/0.01 et seq.: this act puts a cap on the maximum percentage per annum a lender can charge. The application of this Act to loans secured by first liens has been preempted by federal law, but is still applicable to loan secured by junior liens.

Common law fraud: unlike ICFA, common law fraud requires proof of reliance. In Illinois, you must show: (1) a false statement of material fact; (2) the party making the statement knew or believed it to be true; (3) the party to whom the statement was made had a right to rely on the statement; (4) the party to whom the statement was made did rely on the statement; (5) the statement was made for the purpose of inducing the other party to act; and (6) the reliance by the person to whom the statement was made led to that person’s injury. In foreclosure cases, borrowers usually bring a third-party claim against the one who they deal with directly (the contractor, broker, or loan officer). Siegel v. Levy Organization Development Co., 153 Ill. 2d 534, 542 43, 180 Ill. Dec. 300, 607 N.E.2d 194 (1992).

Common law breach of fiduciary duty: the specific elements are: (1) a fiduciary duty was created; (2) the fiduciary duty was breached; and (3) the breach proximately caused the injury of which the plaintiff complains. Martin v. Heinold Commodities, Inc., 163 Ill. 2d 33, 53, 205 Ill. Dec. 443, 643 N.E.2d 734 (1994).

Common law breach of contract: the parties to a contract have a duty to honor their obligations there under, and they also have an implied duty of good faith and fair dealing. Saunders v. Michigan Avenue National Bank, 278 Ill. App. 3d 307, 315, 662 N.E.2d 602 (1st Dist. 1996). The above information provided by www.illinoisprobono.org

Here are some more frequently asked questions:

Q-Is there a guarantee that Fraud Stoppers Foreclosure Defense System will stop my foreclosure or save my house?

A- NO. There are no guarantees; other than we will do our very best to help you and we will deliver what we promise. However we cannot guarantee you that you will be successful in saving your property. In fact if anyone tells you that they can “guarantee”  the outcome of your foreclosure, don’t walk away from them, run away!

Q- How do I find the Federal Court closest to me? A – Enter your address in the “court locator box”.

Q. What kinds of legal violations and fraud have lenders committed? A-Some of the legal issues that exist in most mortgages closed in the past decade are: violations of federal laws like the Truth in Lending Act (TILA), the Fair Debt Collection Practices Act (FDCPA), and the Real Estate Settlement Practices Act (RESPA), tortuous conduct, contract breaches, illegal junk fees, violations of fiduciary duties, insurance fraud, robosigning,  false or faulty affidavits, back dated mortgage assignments, and altered or wholly counterfeited notes, mortgages, and assignments. These are just a few of the common crimes that lenders have engaged in.

 

Q-What is a Foreclosure? A-Generally, when you buy a property there are actually two parties on the buying side: you (the mortgagor) and the lender (the mortgagee). You own the house, but the mortgagee holds a lien on the property for as long as the mortgage has an outstanding balance. The lien gives the mortgagee, the right to assume ownership of the property if you fall behind on your payments. The legal process by which the mortgagee assumes ownership of the property is called a foreclosure.

 

Q- How long is the foreclosure process in Illinois? A- In Illinois, lenders may foreclose on a mortgage in default by using the judicial foreclosure process which usually takes around 11 months from the time you start missing payments, until the sales date.

Q-What is a Judicial Foreclosure? A- Generally, in judicial foreclosure, a court decrees the amount of the borrower’s debt and gives you a short time to pay. If you fail to pay within this time, the clerk of the court will advertise the sale of the property.  The sale may not take place until the notice of sale has been published once a week for three (3) consecutive weeks in a newspaper of general circulation in the county in which the property is located.  The sheriff will conduct the sale at the courthouse and the property will be sold to the highest bidder. The borrower may redeem the property, at any time, before the court confirms the foreclosure sale by paying the amount of the judgment, plus costs and interest. The lender(s) can obtain a “deficiency judgment” for any outstanding balances owed, if the sale price at the auction doesn’t cover the amount owed on the mortgage(s).

Q-What Is A Short Sale? A- A short sale is when the lender will accept less than the amount owed as payment in full on. This could be a good strategy to avoid foreclosure if your intent is to sell your home. However, having a good Realtor is not enough. When a lender allows you to sell your house for less than the full mortgage payoff amount, they may come after you for any outstanding balance that remains. For example: If your mortgage is $100,000 and your house is only worth $50, you’re your lender may agree to allow you to sell the house to a buyer for $50,000. However the lender could come after you for the $50,000 outstanding balance; this is called a “deficiency judgment”. If you attempt a short sale, make sure that the bank agrees (in writing) NOT to come after you for a deficiency judgment.

Q: Are loan modifications the best way to stop foreclosure? A- NO. Here’s a direct quote from the news to answer this one: “48% of all loan modifications end up costing the borrower a HIGHER monthly payment. That’s with late fees, penalties and adding unpaid amounts to back of mortgages. The amount owed grows and pushes up the monthly payment for people who were in trouble with the payment in the first place. And this explains why half of last year’s modifications ended up with re-defaults”- Paul Leonard, California Director, Center for Responsible Lending. A better way to stop foreclosure is to locate legal errors that may exist in your loan and then present them in a good lawsuit using a “competent attorney” not a pretender defender. If  you cannot afford a competent attorney then you may want to learn how to fight the foreclosure yourself.

Q: Does filing bankruptcy stop a foreclosure? A- YES – but only temporary; unless you include your loan as unsecured in your bankruptcy. Many bankruptcy attorneys may tell you that you cannot do this, but they are incorrect. Research the Arizona bankruptcy case GMAC v. Weisband for more information on how this can be  accomplished.

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