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List of Forms by Chapter - Chapter 1 — Statutory Overview of the Mortgage Foreclosure Process in Illinois
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I. Background of the Illinois Mortgage Foreclosure Law - II. Security Instruments Subject to Foreclosure Under the Illinois Mortgage Foreclosure Law
- III. [1.10] Real Estate Subject to Foreclosure Under the Illinois Mortgage Foreclosure Law
- IV. [1.19] Parties to the Foreclosure Proceeding
- Necessary Parties
- [1.20] Mortgagee
- [1.21] Mortgagor
- [1.22] Other Persons Who Owe Payment of Indebtedness
- [1.23] Permissible Parties
- [1.24] Deceased Mortgagors and Heirs
- [1.25] Other Permissible Parties
- [1.26] Unknown Owners
- [1.27] Non-Record Claimants
- [1.28] Parties with an Interest in the Real Estate
- [1.29] Servicemembers
- V. [1.30] Methods of Terminating Mortgagor’s Interest in Real Estate Other than Through Judicial Foreclosure
- VI. Jurisdiction, Venue, and Limitations
- VII. Initiating the Foreclosure Action Under the Illinois Mortgage Foreclosure Law
- [1.37] Acceleration and Grace Period Notice
- [1.38] Service
- Notice of Foreclosure
- [1.39] In General
- [1.40] Form of Notice of Foreclosure
- [1.41] Complaint for Foreclosure
- [1.42] Identity of Plaintiffs
- [1.43] Security Instrument
- [1.44] Information Concerning the Mortgage
- [1.45] Request for Foreclosure
- [1.46] Other Counts and Claims
- [1.47] Guaranties
- VIII. Prejudgment Possession
- IX. Reinstatement
- X. Redemption
- XI. Answer, Defenses, and Counterclaims
- XII. [1.73] Proving the Foreclosure
- XIII. Judgment of Foreclosure
- XIV. Judicial Sale
- [1.86] In General
- [1.87] Notice of Sale
- Conducting the Sale
- [1.88] Selling Officer
- [1.89] Public Auction
- [1.90] Terms of Sale
- [1.91] Bidding Process
- [1.92] Receipt and Certificate of Sale to Highest Bidder
- [1.93] Confirmation of Sale
- [1.94] Grounds To Disapprove Sale
- [1.95] Inadequate Notice
- [1.96] Unconscionability, Fraud, and Injustice: General Application
- [1.97] Unconscionability, Fraud, and Injustice: Inadequate Sales Price
- [1.98] Unconscionability, Fraud, and Injustice: Other Grounds
- [1.99] Termination of Pre-Foreclosure Condominium Assessments Lien
- [1.100] Deed
- [1.101] Deficiency Judgment
- [1.102] Surplus
- [1.103] Post-Confirmation Considerations
- [1.104] Strict Foreclosure
- XV. Post-Foreclosure
- Chapter 2 — Drafting, Filing, and Serving the Complaint
- I. Introduction
- II. [2.3] Jurisdiction
- [2.4] Subject-Matter Jurisdiction
- Personal Jurisdiction
- [2.5] In General
- [2.6] Proper Party Plaintiff
- [2.7] Process
- [2.8] Multiple Parties
- [2.9] Necessary Parties
- [2.10] Permissible Parties
- [2.11] Non-Record Claimants
- [2.12] Unknown Owners
- [2.13] Land Trust Beneficiaries
- [2.14] Condominium Associations
- [2.15] Decedents’ Estates
- [2.16] Estates of Persons with Disabilities
- [2.17] Dissolution of Marriage
- [2.18] Bankruptcy of a Necessary Party
- [2.19] Right To Become a Party
- [2.20] Separate Actions
- Service of Process
- [2.21] Service on Individuals
- [2.22] Service on Inmates
- [2.23] Service on Private Corporations
- [2.24] Service on Illinois Limited Liability Companies
- [2.25] Service on Partnerships and Partners
- [2.26] Service on Limited Partnerships
- [2.27] Service on Voluntary Unincorporated Associations
- [2.28] Service on a Trustee of a Corporation or a Receiver
- [2.29] Personal Service Outside the State
- [2.30] Service on the State of Illinois
- [2.31] Service on the United States of America
- [2.32] Service on Public, Municipal, Governmental, and Quasi-Municipal Corporations
- [2.33] Service in Cook County
- [2.34] The Servicemembers Civil Relief Act
- [2.35] Notice of Foreclosure — Lis Pendens
- III. Drafting the Complaint
- [2.36] Predrafting Considerations
- The Statutory Short-Form Complaint for Foreclosure
- [2.37] Basic Elements
- [2.38] Deemed Allegations
- [2.39] Attorneys’ Fees
- [2.40] Request for Accounting
- [2.41] Personal Deficiency Judgment
- [2.42] Request for Possession
- [2.43] Request for Special Matters
- [2.44] Homeowner Notice To Be Attached to Summons
- IV. Appendix
- Chapter 3 — Defenses to Commercial and Residential Mortgage Foreclosure Actions
- I. [3.1] Scope of Chapter
- II. [3.2] Generally Advising the Client
- III. Initial Questions
- [3.3] Is It a Mortgage?
- [3.4] Is the Plaintiff the Proper Mortgagee?
- [3.5] Is There Any Indication of Fraud?
- [3.6] Has the Lender Complied with the Notice of Foreclosure Requirements?
- [3.7] Has the Homeowner Notice Been Attached to the Summons?
- [3.8] Is There a Default?
- [3.9] Is the Foreclosure a Refiled Case?
- IV. [3.10] Statutory Cure and Reinstatement
- V. [3.11] Possession During Foreclosure
- VI. [3.12] Due-on-Sale Clauses
- VII. [3.13] Extension, Laches, and Reformation
- VIII. [3.14] Jurisdiction, Service, and Publication
- IX. Trial Tactics
- X. [3.17] Protection of Guarantors
- XI. [3.18] Redemption
- XII. [3.19] Lender Liability
- XIII. [3.20] Condominium Problems
- XIV. [3.21] Foreclosure Sales, Confirmation, and Deficiency Judgments
- XV. [3.22] Bankruptcy
- XVI. Attorneys’ Fees
- XVII. [3.25] Insurance Questions in Foreclosure
- XVIII. [3.26] Dissolution of Marriage
- XIX. [3.27] Homestead Exemptions
- XX. [3.28] Usury
- XXI. [3.29] Duress
- XXII. [3.30] Rights of Tenants and Occupants
- XXIII. [3.31] “Zombie” Mortgages
- XXIV. [3.32] Supreme Court Rules Specific to Mortgage Foreclosures
- XXV. [3.36] Rescission and the Truth in Lending Act
- Chapter 4 — Possession of the Mortgaged Property During a Foreclosure Action
- I. [4.1] Introduction
- II. Possession of Mortgaged Properties During Foreclosure Cases
- [4.2] Distinction Between Residential and Nonresidential Properties
- Possession of Nonresidential Properties During Foreclosure Actions
- [4.3] Prejudgment Possession
- [4.4] Authorization To Take Possession of Mortgaged Property
- [4.5] Reasonable Probability That Mortgagee Will Prevail on Final Hearing of Cause
- [4.6] Mortgagor’s Burden of Showing Good Cause Why It Should Remain in Possession of Mortgaged Property
- [4.7] Mortgage Lender’s Presumptive Right to Possession of Nonresidential Properties Under the Illinois Mortgage Foreclosure Law
- [4.8] Trial Court’s Discretion in Determining Whether a Lender Should Be Placed in Possession of Mortgaged Property Prior to Judgment
- [4.9] Postjudgment Possession
- Possession of Residential Properties During Foreclosure Actions
- [4.10] Prejudgment Possession
- [4.11] Postjudgment Possession
- [4.12] Applicability of Federal Law in Foreclosure Actions Brought in Federal Court
- III. [4.13] Possession of Mortgaged Property as a Condition on the Mortgage Lender’s Right To Collect Rental Income
- IV. [4.17] Procedures for Bringing a Motion for Possession of Mortgaged Property
- V. [4.22] Powers and Duties of Receivers in Mortgage Foreclosure Actions
- [4.23] Fundamental Principles Governing the Receiver’s Powers and Duties
- [4.24] Receiver Is an Officer of the Court
- [4.25] Receiver Is a Fiduciary
- [4.26] Receiver Holds Possession of the Property
- [4.27] Receiver Is Appointed To Conserve the Property
- Specific Powers and Duties of the Receiver
- [4.28] Reports and Accountings
- [4.29] Retention of Managing Agents, Professionals, and Staff
- [4.30] Leasing and Collection of Rents
- [4.31] Borrowing
- [4.32] Payment of Operating Expenses
- [4.33] Compensation of the Receiver
- VI. [4.34] Rights and Duties of Mortgagees in Possession
- Chapter 5 — Insuring Title in Foreclosure
- I. [5.1] Introduction
- II. [5.2] Mortgagee Policy Coverage
- III. [5.7] Title Concerns for Parties Taking Title Through a Foreclosure
- [5.8] Vesting of Title Through Foreclosure
- [5.9] Title Exceptions
- [5.10] Subsequent Attacks Based on Lack of Personal Jurisdiction
- [5.11] The Limitation of Remedies of 735 ILCS 5/15-1509(c) Does Not Apply
- [5.12] The Time Limitation of 735 ILCS 5/2-1401(c) Does Not Apply
- [5.13] Certain Third-Party Purchasers May Be Protected Under 735 ILCS 5/2 1401(e)
- [5.14] Caselaw
- [5.15] Death of the Mortgagor
- [5.16] Treatment of Liens and Interests After Foreclosure
- [5.17] Basic Rules for Treatment of Liens and Interests
- [5.18] Municipal Liens
- [5.19] Subsequent Voluntary Dismissal of Unknown Owners, Non-Record Claimants, and/or Other Parties
- IV. [5.20] Title Concerns When the Owner/Mortgagor Is Selling the Property To Avoid Foreclosure
- V. Title Concerns of the Foreclosing Lender
- VI. [5.26] Appendix — Sample Minutes of Foreclosure Language
- Chapter 6 — Judgments of Foreclosure, Reinstatement, and Redemption
- Chapter 7 — Levy, Judicial Sales, and Possession
- Chapter 8 — Commercial Mortgage Foreclosure Actions
- I. [8.1] Introduction
- II. [8.2] Existence of a Default
- III. [8.6] Standing and Capacity To Sue
- IV. [8.10] Choice of Forum in Commercial Mortgage Foreclosure Actions
- V. [8.14] The Complaint in a Commercial Foreclosure Action — Interest and Claims at Issue
- [8.15] Necessary Parties
- [8.16] Permissible Parties
- [8.17] Senior and Junior Lienholders
- [8.18] Mechanics Lien Claimants
- [8.19] Tenants
- [8.20] Guarantors
- Other Considerations
- [8.21] Foreclosing the Lender’s Interest in Personal Property
- [8.22] Consent Foreclosure
- [8.23] Substituting Buyer of Note as Plaintiff
- VI. [8.24] Possession of the Mortgaged Property During a Commercial Foreclosure Proceeding
- [8.25] Illinois Mortgage Foreclosure Law Standard Concerning Possession of Commercial Properties During Foreclosure
- [8.26] Presumptive Right to Possession of Commercial Properties During Foreclosure Under the Illinois Mortgage Foreclosure Law
- [8.27] Possession Disputes Between Competing Creditors
- [8.28] Lender’s Burden of Satisfying the Illinois Mortgage Foreclosure Law Provisions for Prejudgment Possession in Commercial Foreclosure Cases
- [8.29] Mortgagor’s Burden of Showing “Good Cause” Why It Should Remain in Possession of a Mortgaged Property
- [8.30] Possession as a Requirement of a Lender’s Right To Collect Rents Under Illinois Law
- VII. [8.31] Defenses in Illinois Commercial Foreclosure Actions
- [8.32] Defenses Based on Failure To Provide Required Notice
- [8.33] Defenses to the Lender’s Prima Facie Case, Including the Amount Owed
- [8.34] Defenses Based on Recoverability of Default Interest or Prepayment Changes
- [8.35] Breach of the Covenant of Good Faith and Fair Dealing
- [8.36] Nature of the Covenant Under Illinois Law
- [8.37] Applicability of the Covenant to Mortgage Foreclosure Claims
- [8.38] Waiver and Estoppel
- [8.39] Other Lender Liability Claims and Defenses to Commercial Foreclosure Actions
- [8.40] Fraud
- [8.41] Negligence
- [8.42] Duress
- [8.43] Joint Venture by the Lender and Borrower
- [8.44] Racketeer Influenced and Corrupt Organizations
- [8.45] Credit Agreements Act
- VIII. [8.46] Guaranty Litigation in Connection with Commercial Mortgage Foreclosure Cases
- IX. [8.47] Mechanics Lien Litigation in Connection with Commercial Mortgage Foreclosure Cases
- X. [8.48] Appendix — Sample Notice to Tenants
- Chapter 9 — Mortgage Foreclosure in Federal Court
- I. [9.1] Introduction
- II. Prefiling Considerations
- [9.2] Subject-Matter Jurisdiction
- [9.3] Diversity Jurisdiction
- [9.4] Diversity of Citizenship
- [9.5] Corporation
- [9.6] Partnerships and limited liability companies
- [9.7] Trustees and other representatives
- [9.8] National banking associations
- [9.9] Unknown owners and non-record claimants
- [9.10] State government
- [9.11] United States
- [9.12] Amount in Controversy
- [9.13] Federal Question Jurisdiction
- [9.14] United States and Its Agencies
- [9.15] Standing
- [9.16] Servicers
- [9.17] MERSCORP Holdings, Inc.
- [9.18] Venue Consideration
- III. [9.19] Removal of State Court Foreclosure to Federal Court
- IV. Applicable Law
- [9.20] Illinois Mortgage Foreclosure Law
- [9.21] Pleading Considerations
- Service of Summons
- [9.22] Use of Process Server
- [9.23] Abode or Substitute Service
- [9.24] Time Limit for Service
- [9.25] Service by Publication
- [9.26] Time for Answer or Motion, Reply
- [9.27] Mediation/Workout Alternatives
- [9.28] Appointment of Receiver
- Judgment of Foreclosure
- [9.29] Prove-Up Affidavit
- [9.30] Selling Officer
- [9.31] Interest on Judgment
- [9.32] Publication of Sale
- [9.33] Deficiency Judgment
- [9.34] Appeal
- [9.35] Stay During Appeal
- V. [9.36] Foreclosure by Foreign Entities
- Kara Allen
Kara Allen
Kara Allen is a Partner at Gutnicki LLP in Skokie, where she focuses on real estate litigation. She is a volunteer at Misericordia. Ms. Allen received her B.A. and her J.D. from Marquette University.
- William J. Dorsey
William J. Dorsey
William J. Dorsey is a Partner at Blank Rome LLP in Chicago, where he focuses his practice on high-stakes commercial finance, real estate, mergers and acquisitions, and executive compensation and non-compete disputes. He has been recognized by Super Lawyers (2012 – 2022) and as a Notable Gen X Leader in Accounting, Consulting, and Law by Crain’s Chicago Business (2022). Mr. Dorsey received his B.A. from Claremont McKenna College and his J.D. from the University of Michigan Law School.
- Elizabeth L. Faber
Elizabeth L. Faber
Elizabeth L. Faber is National Claims and Litigation Counsel for Advocus National Title Insurance Company in Chicago, where she focuses on title insurance. She is a title counsel member of the American Title Land Association, the Illinois Land Title Association, and the Illinois Real Estate Lawyers Association. Ms. Faber received her B.A. with honors from Dominican University and her J.D. from the UIC School of Law.
- Sophie T. Kabbes
Sophie T. Kabbes
Sophie T. Kabbes is Managing Underwriting Counsel for Advocus National Title Insurance Company in Champaign, where she concentrates her practice in real estate and title insurance. She is a member of the CEO Mentorship program and the Illinois State Bar Association. Ms. Kabbes received her undergraduate degree from the University of Illinois Urbana-Champaign, where she received Bronze Tablet recognition, and her J.D. from the Maurer School of Law at Indiana University Bloomington.
- Samuel H. Levine
Samuel H. Levine
Samuel H. Levine is Of Counsel to Bryce Downey & Lenkov LLC in Chicago, where he concentrates in mortgage foreclosure, real estate litigation, construction, and mechanics lien. He is a member of the Illinois State Bar Association and Past Chair of its Collections and Bankruptcy, Real Estate, and Construction Law Section Councils; a member and Past President of the Society of Illinois Construction Attorneys; and a Past Chair of the Bankruptcy and Real Estate Litigation Committee of the American College of Real Estate Lawyers. Mr. Levine received his B.A. from Washington University in St. Louis and his J.D. from the Chicago-Kent College of Law.
- Solomon Maman
Solomon Maman
Solomon Maman is Member and Manager of MAMAN LLC in Chicago, where he focuses on financial services, corporate law, and commercial and real estate law. He is Director and Legal Issues/Legislative Committee Chair of the Illinois Mortgage Bankers Association and member of the Illinois State and Chicago Bar Associations. Mr. Maman received his LL.B. from the University of Sheffield School of Law and his LL.M. and J.D. and LL.M. from the Loyola University Chicago School of Law.
- Andrew T. McClain
Andrew T. McClain
Andrew T. McClain is a Partner at Dentons US LLP in Chicago, where he concentrates his practice in real estate litigation and creditors’ rights. He has been recognized by Best Lawyers: Ones to Watch for Bankruptcy and Creditor Rights/Insolvency and Reorganization Law (2021 – 2024) and is a member of the Commercial Real Estate Finance Council and the National Association of Federal Equity Receivers. Mr. McClain received his B.S. from Fordham University and his J.D. from the Michigan State University College of Law.
- William J. McKenna
William J. McKenna
William J. McKenna is a Partner at Foley & Lardner LLP in Chicago and focuses his practice on real estate litigation. He is an adjunct professor at Northwestern University Pritzker School of Law and a Fellow in the American College of Trial Lawyers. He has been recognized by Best Lawyers in America for Litigation — Real Estate (2011 – 2024). Mr. McKenna received his B.A. cum laude from Middlebury College and his J.D. from the University of Chicago Law School.
- Erica Crohn Minchella
Erica Crohn Minchella
Erica Crohn Minchella is a Principal at Minchella & Associates, Ltd., in Skokie, where she focuses her practice on real estate transactions and litigation. She has been recognized by Super Lawyers, Leading Lawyers, and Martindale-Hubbell. Ms. Minchella received her B.A. from the University of Illinois and her J.D. from the Loyola University of Chicago School of Law.
- James V. Noonan
James V. Noonan
James V. Noonan is a Partner with Noonan & Lieberman, Ltd., in Chicago, where he concentrates his practice in creditors’ rights, real estate, and commercial litigation. He was a board member of the American Legal and Financial Network (2009 – 2015), a panel member of the Law Ed series on federal court foreclosure practice, and a coauthor of Remote Hearings: Let’s Not Forget the Cost of What’s Lost, 54 Loy.U.Chi.L.J. No. 1 (2023). Mr. Noonan received his B.A. from Marquette University and his J.D. from the DePaul University College of Law.
- Amanda M. Noonan
Amanda M. Noonan
Amanda M. Noonan is an associate at Blank Rome LLP in Chicago, where she focuses her practice on a wide range of corporate litigation matters. She is a former judicial law clerk for the Honorable Thomas L. Kirsch II of the U.S. Court of Appeals for the Seventh Circuit and the Honorable Raymond W. Mitchell of the Circuit Court of Cook County, Chancery Division. She also served as a judicial extern for the Honorable Carl A. Walker of the Circuit Court of Cook County, Tax and Miscellaneous Remedies Division. She received her B.A. magna cum laude from Creighton University and her J.D. magna cum laude from the University of Illinois College of Law.
Mortgage Foreclosure: Practice and Procedure 2024 Edition
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