July 22, 2020
Home foreclosures are still occurring at a rapid rate in the Chicago area. Many struggling homeowners who have missed mortgage payments live in fear of getting a Notice of Default from their bank telling them that they are being foreclosed on. If you receive such a notice in Chicago, you should contact a foreclosure attorney as soon as possible. There are foreclosure defenses that can be presented on your behalf that may avoid foreclosure and allow you to keep your home. Just a few of the defenses that can be asserted include:
IMPROPER PROCEDURES IN THE FORECLOSURE PROCESS
The Illinois Mortgage Foreclosure Law (IMFL) governs the judicial foreclosure process in the state. The law lays out specific procedures that must be followed for the foreclosure to be valid. Some procedural problems that could equal a foreclosure defense include:
FAILURE OF THE LENDER TO PROPERLY SERVE A NOTICE OF DEFAULT
Failure of the lender to attach the required documents to the Complaint filed in court or failure to comply with other legal requirements for filing of the Complaint.
Inability of The Foreclosing Entity to Prove Ownership of The Mortgage
MISTAKES BY THE MORTGAGE SERVICER
Some mistakes that may be found are:
Failing to credit you with your payments due to clerical error crediting them to someone else.
Charging unauthorized fees.
Overstating the amount necessary to reinstate the loan.
Accepting payments after filing the foreclosure Complaint.
UNFAIR LENDING PRACTICES ON THE PART OF THE ORIGINAL LENDER
There are two federal laws that lenders must comply with when loaning money for mortgages: The Truth in Lending Act (TLA) and the Home Ownership and Equity Protection Act (HOEPA). These laws control certain lending practices and what information must be provided to the borrower.
If you have received a Notice of Default, or expect to receive one, contact Robert J. Adams & Associates. They are Chicago foreclosure lawyers who have decades of experience helping homeowners find solutions to their financial problems including foreclosure defense. Your first visit is Complimentary. They will listen to your dilemma, discuss with you your options and help you make an informed decision on how to proceed.
Our Chicago foreclosure attorneys understand Illinois Mortgage Foreclosure Law. Call Robert J. Adams & Associates in Chicago, IL for foreclosure defense and discuss your financial issues with our experienced debt relief and bankruptcy attorneys. We have offices located in Waukegan and Lake County, Illinois and we also help clients in surrounding areas. We have experience aiding people with bankruptcy, debt relief, foreclosure defense, repossessions, paycheck garnishments, collections suits, payday loans, parking tickets, license suspensions, income tax problems and much more.
CAN YOU REVERSE A FORECLOSURE SALE?
In very rare circumstances, a foreclosure sale can be reversed. In order to be reversed, a foreclosure sale must be proven to contain:
An irregularity in the foreclosure process; for example, a failure of the loan provider to send notice of foreclosure to the borrower or fails to post notice in a newspaper.
An inadequate sale price; if the price of the foreclosure sale is low enough to “shock the conscience”, the foreclosure may be reversed.
Noncompliance with the mortgage terms; for example, the lender fails to send a breach letter before starting a foreclosure.
If you believe that your foreclosure sale is reversible based on a failure by the lender, it is imperative that you contact a foreclosure attorney in Chicago immediately to begin strategizing your foreclosure defense.
CAN A FORECLOSURE LAWYER STOP A FORECLOSURE IN CHICAGO, IL?
Hiring a foreclosure attorney in Chicago is not a guarantee that your foreclosure will be stopped or reversed. However, an experience Chicago foreclosure lawyer can greatly improve your chances of seeing success in your foreclosure case. Foreclosure defense is a complicated issue and can vary based on factors such as whether your foreclosure is a judicial or non-judicial foreclosure. If you want to fight foreclosure in Chicago, IL, it is absolutely worth it to consult with a foreclosure attorney as soon as you possibly can.
CAN YOU STOP A FORECLOSURE ON THE DAY OF THE SALE?
You can stop a foreclosure up until the foreclosure sale has taken place. Discuss your case with a skilled Chicago foreclosure attorney and give them all of the details about the history of your mortgage and payments. He or she will know the appropriate timeline for finding a way to stop or reverse your foreclosure before it is too late.
HOW CAN I GET MY HOUSE OUT OF FORECLOSURE?
There are several options for getting your home out of foreclosure:
Catch up on your mortgage payments. Obviously, this isn’t a realistic option for most people who find themselves with a home in foreclosure due to the inability to make their mortgage payments.
Ask your lender about a forbearance program. Some lenders offer programs that allow you to temporarily pause your payments and stop foreclosure. Others will allow you to make reduced payments for a period of time or pay extra each month to make up the missed payments.
Get a loan modification. Your lender may be willing to modify the terms of your loan by either increasing the loan term and lowering the payments or reducing the interest rate.
Ask for a deed in lieu of foreclosure. A deed in lieu of foreclosure will transfer your home back to the lender without the foreclosure process.
Get permission for a short sale. A short sale happens when you get permission from your lender to sell the home for less than the amount that you owe on the mortgage. The lender will usually forgive the difference and you will not have to go through an actual foreclosure.
Before attempting any of these methods, contact a Chicago, IL foreclosure attorney to advise you on the best course of action for your individual foreclosure defense.
ADDITIONAL COMMON DEFENSES TO A FORECLOSURE
If you wish to defend your home from foreclosure in Chicago, IL, all of your loan documents and the foreclosure complaint you have received must be carefully taken to and reviewed by a foreclosure defense attorney to determine if there are any valid defenses. A foreclosure defense attorney will be familiar with the applicability and proper use of the following defenses:
Standing: Standing is a foreclosure defense that will be automatically waived if it is not properly raised. It may be rather difficult to decipher whether the lender actually has the standing to pursue a foreclosure. The endorsements on the loan document must be reviewed by a trained professional, along with any assignments of the mortgage.
Illinois Consumer Fraud and Deceptive Business Practices Act (ICFA): The ICFA allows for recovery for any deceptive conduct and also for any conduct that could be deemed unfair in any way.
Real Estate Settlement Procedures Act (RESPA) Violations: The Real Estate Settlement Procedures Act governs a lot of the process for notices of happenings, such as transferring servicing, establishing insurance maintaining escrow accounts, the application of mortgage payments, requests for information, loss mitigation procedures, and notices of errors.
Truth-in-Lending Act (TILA)/HOEPA violations: TILA and HOEPA violations can be raised as a foreclosure defense at any time. The most powerful remedy to a foreclosure that is available to any homeowner is rescission or voiding the mortgage. A foreclosure defense attorney must review all of the original disclosure documents to determine whether or not there was a violation. Any failure to disclose all material terms in writing or the presence of high-interest rates on a non-purchase mortgage require careful investigation of the technicalities by an experienced foreclosure defense attorney in Chicago.
Fair Credit Reporting Act (FCRA): The FCRA is the act that regulates the collection and use of consumer information. Both the particular credit reporting agency involved and the furnisher of the consumer information can face liability for any inaccurate reporting or for a failure to correct inaccurate reporting. For example, failure to accurately report or to update a borrower’s credit report may give rise to a claim under the FCRA.
FHA-Insured Loans: FHA loans have their own specific servicing requirements. These include a counseling notice that must be mailed to the borrower within 45 days of a default, an in-person meeting with the borrower before the point of three missed payments, plus a notice of available counseling. Failure to comply with all of these rules is an affirmative foreclosure defense. This reasoning can also be applied to other government-insured loans that have similar servicing requirements.
Illinois Fairness in Lending and Illinois High-Risk Home Loan Act (IFLA): Your foreclosure defense attorney should be aware of the applicability and all the requirements of all Illinois statutes that govern mortgage loans. The IFLA prohibits practices like equity stripping, loan flipping, and many other predatory lending practices. A good foreclosure defense attorney will also be aware of whether or not a federal law preempts applying an Illinois statute to your foreclosure defense.
Failure to attach the note and mortgage to a foreclosure complaint: If a copy of your note and mortgage are not attached to your foreclosure complaint, then that complaint will be subject to a motion to strike by your foreclosure defense attorney. Most courts will, however, allow a lender to repair this deficiency without granting the striking of the complaint. A lender is not required to attach to the complaint any endorsements or assignments of the note or mortgage, and only is required to allege that it is the actual holder.
Breach of contract: The most commonly used breach of contract foreclosure defense is the failure of a lender to enforce trial period modifications and convert them into a permanent loan modification. There can also be a breach of contract claims, including violations of other loss mitigation agreements, or the failure of the mortgage lender to abide by any of the terms of the mortgage. This could be an act as simple as failing to apply for mortgage payments in the order prescribed in the mortgage.
Breach of covenant of good faith and fair dealing: Each and every contract formed in the state of Illinois must contain a covenant of good faith and fair dealing. Often, this covenant of good faith and fair dealing can be utilized by your Chicago foreclosure defense attorney as a tool of interpretation in order to scrutinize a party’s exercise of its contractual discretion.
Incorrect notice or service: In a foreclosure proceeding, service by publication is only valid after an attempt at personal service has failed. All of the information in the notice absolutely must be accurate. Quite commonly, mistakes are made in the published notice of the motion for foreclosure, which invalidates the subsequent order.
Failure to accelerate the note: A loan cannot be foreclosed upon until the loan has been accelerated. If the loan documents require a notice because of acceleration, then the failure to send that notice can possibly defeat a foreclosure.
Tax sale: If real estate taxes are unpaid when a property is sold, the buyer should not have to pay any additional costs, if that buyer made on-time mortgage payments and escrow payments, and responded properly and promptly to all lender inquiries.
Suit after assumption: If the original lender sells the property and does not first get a release, that party can face personal liability in the foreclosure action.
Fraud, abuse, or collusion: In rare cases where a mortgage agreement is clearly abusive or coercive or where the actual loan transaction is abusive or coercive, it can sometimes be possible for your foreclosure defense attorney to plead fraud or to raise an equitable defense to your foreclosure.
Accepting payments after foreclosure: If the mortgage lender accepted any mortgage payments after already filing a foreclosure, and no bankruptcy has been filed, there may be a technical defense that can be raised by your foreclosure defense attorney in Chicago.
If you have received a foreclosure complaint, don’t wait to save your home; call Robert J. Adams & Associates today!