Steps in the Case
Implications of Foreclosure
Specifics of the Foreclosure Process Under the IMFLThe Complaint
Note: If it’s not the original lender, Plaintiff must establish standing here.
See e.g. 735 ILCS 5/2-606 writings on which Complaint is based (assignments, allonges, etc.) must be attached
Note: On its face Short Form seems deficient under fact pleading standards but is deemed sufficient
Service of Summons
Junior Lienholders (judicial, mechanics, etc.), tenants, unknown owners, unknown occupants, and non-record claimants are also included. If not named, their interests are not foreclosed and title has not been cleared. IMFL 1504, BCGS v. Jaster, 299 Ill.App.3d 700.
Note: Junior Lienholders that preserve their position when a senior lienholder forecloses jump the position of non-responsive junior lienholders. Mid America Federal Savings Bank v. Liberty Bank, 562 N.E.2d 1188.
Note: Junior Lienholders that timely file a counter-claim can keep the foreclosure suit active and take over as lead plaintiff if the 1st mortgagee settles with the borrower, but the borrower does not come current with them.
Unknown Owners are people or entities that may have an unrecorded interest in the property. IMFL 1501(c).
Note: According to 735 ILCS 5/2-413 and 5/2-206 service by publication is sufficient to give unknowns notice as long as Plaintiff produces an affidavit of diligence in attempting to determine their identities. Callner v. Greenburg, 33 NE 2d 437.
Non-Record Claimants are defined in IMFL 1210. The Complaint must contain a sufficient legal description to identify the property so non-record parties can identify it.
Note: No inquiry is required to establish the sufficiency of notice by publication against non-record claimants. Applegate Apt. v. Commercial Coin, 657 NE 2d 1172.
Service on unknowns generally requires publication (once a week for 3 weeks) and must run at least 30 days prior to a default judgment is entered. Must be in a newspaper of general circulation. (IMFL 1502(c).
See IMFL 15-1504 and Rule 113 – must attach Note with Endorsements and Allonges
File Lis Pendens
Anybody can appear and become a party
Note: See notice requirements and other changes in (New) Supreme Court Rule 113(d):
Notice Required. In all mortgage foreclosure cases where the borrower is defaulted by court order, a notice of default and entry of judgment of foreclosure shall be prepared by the attorney for plaintiff and shall be mailed by the Clerk of the Circuit Court for each judicial circuit. The attorney for plaintiff shall prepare the notice in its entirety and deliver to the Clerk of the Circuit Court one copy for filing and one copy for mailing within two business days after the entry of default. The Clerk of the Circuit Court shall mail within five business days after the entry of default, by United States Postal Service, a copy of the notice of default and entry of judgment of foreclosure to the address(es) provided by the attorney for the plaintiff in an envelope bearing the return address of the Clerk of the Circuit Court and file proof thereof. The notice shall be mailed to the property address or the address on any appearance or other document filed by any defendant. Any notices returned by the United States Postal Service as undeliverable shall be filed in the case file maintained by the Clerk of the Circuit Court. A Sample Notice is provided in the Rule.
Summary Judgment. Even if borrowers respond, where there is no genuine issue of material fact summary judgment is appropriate as long as the Plaintiff can produce the original note, mortgage (along with assignments), and evidence of default via affidavit. If it can, then the borrower has the burden of proving their affirmative defenses or counter-claim (if any).
Issues of Material Fact. Where the Complaint is verified, stock “lacks sufficient information” responses are insufficient to defeat a Motion for Summary Judgment. Likewise, an unverified Answer is insufficient when the Complaint is verified. When the Answer is verified, the borrowers may only “deny” allegations when they have a good-faith basis for doing so – no more blanket denials. However, borrowers may attempt to attack the affidavit(s) attached to the Motion for Summary Judgment.
Note: See changes to requirements for Loss Mitigation Affidavits in (New) Illinois Supreme Court Rule 114:
Rule 114: Loss Mitigation Affidavit
Note: See changes to the requirements for Prove-Up Affidavits in Rule 113
Sample Affidavits are provided in the Rule.
Defenses to Foreclosure
Note: Not a defense, but can help to give rise to a claim of damages or statutory claim
Foreclosure Judgment and Order of Sale
The Court will confirm the sale unless per IMFL 15-1508(b)
Obviously #4 gives the court the most latitude
The (Closing or) Judicial Sale With 3rd Party Bidders
Foreclosure and Tenants
New Legislation and Amendments
This notice period is 30 days from the mailing of the notice, or if an approved counseling agency provides written notice
The Exceptions Are: