Facing a foreclosure in Illinois can be overwhelming, but it’s important to understand that there are options available. This guide is designed to provide clear information on the Illinois foreclosure process and help you navigate your next steps. Whether you’ve missed payments, received a notice of default, or are already involved in legal proceedings, this resource will offer the necessary insights to explore your options.
Statute of Limitations for Residential Foreclosures in Illinois
Under 735 ILCS 5/13-115, Illinois law mandates that lenders must file a foreclosure action within 10 years from the date of the borrower’s default. Your first step is to determine the date of default and compare it with the foreclosure filing date. If more than 10 years have passed, the case is legally barred, and you can file a motion to dismiss on those grounds.
Key Dates to Know in an Illinois Foreclosure
The Illinois foreclosure process unfolds in distinct stages, each offering avenues for intervention and potential solutions. Familiarize yourself with these key steps:
Missed Payments and Early Intervention: Fix it Early if You Can
- 30-60 days late: Your lender initiates contact, urging you to catch up on missed payments. Explore options like payment plans, forbearance agreements or financial assistance programs.
- 90-120 days late: You receive a Notice of Default, a formal notification of the lender’s intent to foreclose. This is your crucial moment to seek legal counsel or consider loan modification options.
In my experience, lenders typically wait until about five missed payments before beginning foreclosure proceedings. However, this is a serious matter and not something to take lightly—missing a few mortgage payments usually makes it very difficult to catch up again.
The Actual Foreclosure Court Case Begins:
- 120-175 days late: You are served with a mortgage foreclosure summons by the Sheriff or a Private Process Server, notifying you of the lawsuit against you. The Foreclosure Summons will include an initial case management date. This will be your first official Court date. Do not ignore this! Respond promptly, either on your own or with the guidance of an attorney.
- If you think someone may be attempting to serve you, or that your lender has filed a Foreclosure Case, you can search your local Court website for your name, the case should be listed in the Chancery Division. All foreclosure case filings will be searchable in that department.
- 230 days late: If you fail to respond to a foreclosure lawsuit, the bank can obtain a default judgment against you. While this makes it more difficult to contest the foreclosure, it is important to note that a default judgment does not necessarily mean your case is lost. Default judgments can often be vacated (overturned), typically within 30 days, and in certain cases, up until the foreclosure auction.
- Alternatively, if you do file an answer, the bank may seek a summary judgment. This occurs when the bank believes there are no significant issues that require a trial. Courts usually grant summary judgments to the bank unless there is a substantial contested issue in the case.
Approaching the Foreclosure Auction: Your Rights and Options
- 260 days late: Your right to reinstate the loan expires 90 days after you have been served, whether it was by personal service or publication. Reinstatement involves bringing your payments current and covering additional fees. Negotiation with your lender could extend this deadline.
- 7 months after being served or 3 months after the Judgement of Foreclosure and Sale (whichever is later): Your right to redemption expires. This is your final chance to reclaim your home by paying off the full debt, often through refinancing or selling the property.
- The Foreclosure Auction Date usually coincides with the expiration of the redemption deadline. It is typically your last day to file legal motions in Foreclosure Court or to file a Chapter 7 or Chapter 13 Bankruptcy to stay the sale.
- Before the sale: You’ll get written notice at least 10 days in advance.
- Your selling officer: Will be listed on the Notice of Sale.
- On the day of the sale: You can still redeem your home by paying off the full debt.
- Finding foreclosure sale information: Most Illinois selling officers list auctions online, including sale date and time, your foreclosure case number, the Bank’s law firm, the property address, city, county and zip code, the opening bid, the minimum down payment for auction winners, the final sale amount and whether the sale was continued or cancelled.
- Common Buyers: Banks often buy back their own properties at these “as-is” foreclosure auctions, where inspections are rarely allowed. Many buyers hesitate to bid without seeing the property, leading to bank buybacks with “credit bids” based on the judgment amount. The banks then take possession and maintain the property, pay the real estate taxes, and wait to sell the property for fair value.
- Where to find auction listings: For Cook and Collar Counties, check Judicial Sales Corporation or InterCounty Judicial Sales. Peoria County has its own listing site. If your case isn’t listed, try contacting your local sheriff.
How to Calculate the Foreclosure Publication Period
An important aspect of the foreclosure process is adhering to the notice requirements as laid out in 735 ILCS 5/15-1507(c). This statute specifies the method for publishing a notice of foreclosure sale in a newspaper. There are three main requirements for this publication period:
- Three Consecutive Calendar Weeks: The notice must be published at least once each week for three consecutive calendar weeks (Sunday through Saturday).
- First Publication Timing: The first publication must occur not more than 45 days before the sale date.
- Last Publication Timing: The final publication must occur not less than 7 days before the sale date.
For example, if a lender publishes a notice of sale on July 11, July 18, and July 25, with the foreclosure auction scheduled for August 6, they have met the notice requirements within the “publication period.”
Let’s break down the dates:
- First Publication (July 11): This date is within the 45-day maximum period before the sale date. It is 26 days before the sale, satisfying the requirement for the first publication to be not more than 45 days before the sale.
- Second Publication (July 18): This publication continues the requirement for three consecutive calendar weeks.
- Third Publication (July 25): This date is outside the 7-day minimum period before the sale. It is 12 days before the sale, ensuring that the last publication occurs not less than 7 days before the sale.
However, if the sale date had been July 31, this third publication would not meet the statute’s requirements, potentially invalidating the foreclosure auction. Additionally, the lender has the legal right to hold a foreclosure auction up until August 25, 2024, in order to comply with the 45-day publication requirement.
Motions to Stay Sales (Adjournments) and Republishing Requirements
In foreclosure cases, it is not uncommon for the sale date to be postponed due to a court-ordered stay or other reasons, such as the pursuit of a loan modification or other loss mitigation efforts. When this happens, determining whether a lender must republish and issue another notice of sale depends on the length of the adjournment and the statutory requirements under 735 ILCS 5/15-1507(c).
Adjourned Sale Within 60 Days:
If the new sale date is within 60 days of the original date, the lender does not need to republish the notice of sale.
The person conducting the sale (typically the sheriff or designated party) must simply announce the new date, time, and place at the time of adjournment or post this information online if the sale is conducted electronically. It is critically important to check the website of the selling officer, as you may not receive another notice of sale per 735 ILCS 5/15-1507(c)(4).
Adjourned Sale Beyond 60 Days:
If the new sale date is scheduled more than 60 days after the originally scheduled sale, the lender is required to republish the notice of sale and provide notice to all parties who have appeared, in full compliance with the original statutory publication requirements as outlined above. Courts can require borrowers to cover the cost of republication by making a direct payment to the plaintiff’s attorneys. This payment is usually in the form of a certified check, and the costs typically amount to approximately $750.
After the Auction: The Confirmation of Sale
- Confirmation of Sale Hearing: Between 15 and 30 days after the foreclosure auction, the bank holds a court hearing called a “confirmation of sale.” This ensures everything went smoothly and fairly during the auction, protecting both you and the buyer. If the judge is satisfied, they’ll sign an “order of possession,” setting the date for your eviction by the sheriff.
- Foreclosure Deficiency Judgment: If the auction sale price doesn’t cover your full mortgage debt, you may be responsible for the remaining amount. This is called a “deficiency judgment” and is finalized in the confirmation order.
- Two Types of Deficiency Judgments:
- In Rem Deficiency: This only applies to the specific property itself, not you personally.
- In Personam Deficiency Judgment: This one’s the bigger concern. It can follow you for years, potentially leading to collections Court and Citations to Discover Assets.
- Limited Appeal Window: The confirmation order marks the final stage for appeals and filing related motions within the foreclosure case. Understanding this deadline is essential for pursuing any legal options.
- Eviction: Unless you vacate the property voluntarily, the new owner will obtain an eviction order and legally remove you 30 to 60 days after the confirmation hearing. If you were not listed as a party in the foreclosure complaint, the new owner may initiate a supplemental eviction proceeding to remove you. It is important to use this time to explore alternative housing options and prepare for the transition.
- Contacting the Local Sheriff: Typically, the sheriff will post an eviction notice approximately 7 days prior to the eviction date. This notice acts as a warning for all occupants about the impending eviction. Alternatively, you can contact the sheriff’s office directly for additional information.
- Leaseback After Foreclosure: It’s highly improbable. Homeowners renting directly from the bank after foreclosure is exceedingly rare. Throughout my years of practicing foreclosure law, I have never witnessed such a scenario.
- For Existing Tenants: If you legally rent a property that faces foreclosure, you may have important rights as a tenant. Familiarize yourself with these rights to ensure your protection.
Remember: This timeline is approximate. Legal challenges, mediation efforts, and lender actions can influence the pace of the process.
How Long Can I Stay in My Home if I Do Nothing?
The timeframe for how long you can remain in your home without taking any action is not as straightforward as it may seem. This is because part of the calculation involves the period before the foreclosure case is filed with the Court. In the past, I’ve seen lenders wait up to six months after the initial missed payment before officially filing for foreclosure. Because this variable is so difficult to predict, let’s narrow our focus to the duration of the actual foreclosure court case.
If you choose to do nothing, it means precisely that – you refrain from engaging with the legal process or your lender regarding potential alternatives such as loan modification or short sale. Essentially, you don’t participate in court proceedings or communicate with your lender about potential exit strategies. This is because interacting with the lender can impact the duration of the foreclosure process. Additionally, in all of my analysis, I am assuming that you are living in the home. Because, if the home is vacant, this can significantly accelerate the process.
So, if you don’t contest the foreclosure and simply sit back and wait, how much time do you have? Well, the first step is to figure out the date you were served with the complaint for foreclosure. If a sheriff or process server delivered the paperwork, this date is straightforward—it’s the day they physically handed you the documents.
In situations where you were impossible to serve, determining the service date can be challenging. If the mortgage company can’t serve you directly, they might request court permission to serve you by publication. This entails publishing a notice of your foreclosure case in a local newspaper for three consecutive weeks. To confirm if you’ve been served by publication, I suggest reaching out to the Court directly or searching for your case online using your name. If the court docket shows “service by publication” or a similar notation, the date recorded there becomes your official service date.
Now that we’ve established the official service date, determining the minimum time you have before the foreclosure concludes is straightforward. As mentioned above, the redemption date represents the earliest point at which the bank can sell your home if all goes smoothly. This assumes the bank has the resources to expedite your case through default judgment and prove up, and they’re ready to schedule the auction promptly. It’s important to remember that since you haven’t contested the foreclosure, the mortgage company holds the reins, and they can proceed as they see fit. However, with no obstacles in their path, the earliest the bank can legally schedule your property for auction is 7 months from the date of service.
There’s a slight exception to this timeline. No matter what, the bank needs to get a default judgement of foreclosure to set an auction. So, suppose the bank delays and doesn’t secure the judgment until 6 months after the initial service date. According to the foreclosure statute, the auction cannot occur until either 7 months from the service date or 3 months from the date the foreclosure judgment was entered, whichever is later. Therefore, if the judgment of foreclosure is entered 6 months after being served, you would need to add three months to that date before the auction can be scheduled. In this scenario, the homeowner would have 2 additional months to stay in the home. I must note that this situation is rare, and it’s not advisable to expect this outcome. Typically, when you don’t contest your foreclosure, the bank will move to take possession of the house as swiftly as possible.
However, it’s important to note that the auction date isn’t when the sheriff will come to evict you. There’s one more step the bank must take: confirming the sale. You can find more information about the confirmation of sale process above, but at most, this step may buy you an additional 30 to 90 days in the home. Based on my experience with Illinois foreclosure cases, you can expect a minimum of around 9 months from the date you were served until the sheriff arrives to carry out the eviction.
Finding Your Anchor: What’s Your Gameplan?
A foreclosure filing doesn’t mean your life is over, it doesn’t mean you will be homeless on short notice. By simply monitoring your case online, and by taking notice of the date a foreclosure judgment is entered, you can calculate the amount of time you have left in the home. I will tell you this right now, if you do nothing at all in your foreclosure, your case will take a minimum of 9 months to complete start to finish.
And if you hire an attorney, you have many other options, some with the potential to save your home, others to slow the speed of the case (in some instances by years) and secure a fresh start.
Explore these possibilities:
Negotiation and Loan Modification:
- Work with your lender to negotiate a repayment plan, forbearance agreement or seek loan modification that alters the terms of your mortgage, making it more manageable.
- Consider government-backed programs offering mortgage assistance in specific hardship situations.
Legal Defense and Challenges:
- Consult a foreclosure defense attorney who can identify legal errors or flaws in the proceedings, such as a lender’s lack of standing, potentially delaying or even halting the foreclosure.
- Explore defenses like predatory lending practices, improper notice protocols, or extenuating circumstances like medical emergencies.
Financial Strategies and Resource Utilization:
- Contact non-profit credit counseling agencies for guidance on debt management and budgeting strategies.
- Consider selling your home, potentially before the foreclosure auction, to recoup some equity and minimize damage to your credit score.
- Research rent-to-own options or explore potential relocation avenues if necessary.
Emotional Support and Resources:
Foreclosure can be emotionally draining. Don’t hesitate to seek mental health support. Utilize resources like community support groups or government assistance programs for emotional and practical guidance.
Remember, Foreclosure is Not the End:
Losing your home is a harsh reality, but it doesn’t spell the end. Embrace the support of loved ones, utilize available resources, and actively explore your options. Remember, even after foreclosure, rebuilding your financial future and finding secure housing is completely possible.
Steven Grace Law: Your Foreclosure Support System:
Facing foreclosure alone can be daunting. Steven Grace is your dedicated ally in navigating this complex process. My experience and commitment stands ready to advocate for your best interests, explore every possible solution, and fight for your right to retain your home. Don’t hesitate to contact me for a free consultation and let me help you weather this storm.
