Understanding Judicial Foreclosures in Illinois

 Posted on June 13, 2019 in Foreclosure

Most people are familiar with at least the basic idea of foreclosure. They know that if a homeowner falls behind far enough on his or her mortgage payments, the proverbial “bank” will eventually take the home. Far fewer people, however, understand the reality that foreclosure is a fairly involved process and that, according to Illinois law, the process must be handled through the court system. As such, all foreclosures in the state of Illinois are considered judicial foreclosures.

Non-Judicial Foreclosures in Other States

Illinois is one of 16 states in which the law requires court participation in the foreclosure process. Five others generally use judicial foreclosures as a matter of custom or convenience. In the remaining 29 states, non-judicial foreclosure is the method of choice, either as an available option or because judicial foreclosure is prohibited by law.

When judicial foreclosure is not required, the mortgage agreement may include a clause that gives the lender the “power of sale.” A power of sale clause grants the lender the ability to foreclose on the property on its own. If the borrower fails to keep up with the payments prescribed in the mortgage contract, the lender has the right to sell the property to recover the balance of the loan. Power of sale clauses are not enforceable in Illinois.

Illinois vs. Federal Court

A lender who wishes to initiate foreclosure proceedings against a borrower in default will usually file the foreclosure paperwork in the circuit court of the Illinois county where the property is situated. In some cases, however, the lender could choose to file the foreclosure in federal court instead of state court. Some lenders believe that the foreclosure process moves faster and more efficiently in federal court, but skeptics suggest that if the lender is serious about selling the property, state court is a better option. Federal foreclosure sales require the participation of the U.S. Marshall Service, while county sheriffs’ departments typically handle state-level sales.

My Lender Has Initiated Foreclosure Proceedings, Now What?

If you are more than 120 behind on your mortgage payments, you have probably already received a notice indicating that you are in default on your loan. This notice could come in the mail. Once the lender files the foreclosure with the court system, you must be served personally with a copy of the lender’s complaint and a summons. You must file a response within 30 days or a default judgment could be entered against you.

The most important thing you can do upon receipt of a foreclosure complaint is to contact a qualified attorney to discuss your available options. There is no “one-size-fits-all” approach to judicial foreclosures, and your best way forward will depend on a number of circumstantial factors. Doing nothing, however, is never a good choice.

Call a Lake County Foreclosure Lawyer Today

If you have received notice that your home is being foreclosed on, contact an experienced Libertyville foreclosure defense attorney immediately. Call 847-549-0000 for a free phone consultation and case review at Newland & Newland, L.L.P. today.

Sources:

http://www.ilga.gov/legislation/ilcs/ilcs4.asp?ActID=2017&ChapterID=56&SeqStart=107100000&SeqEnd=115800000

http://www.mondaq.com/unitedstates/x/241366/Insolvency+Bankruptcy/Is+Federal+Court+Really+a+Better+Place+to+Foreclose

https://investinganswers.com/dictionary/n/non-judicial-foreclosure