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List of Forms by Chapter - Chapter 1 — Statutory Overview of the Mortgage Foreclosures 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] Notice of Foreclosure and Lis Pendens Notice
- [1.42] Complaint for Foreclosure
- [1.43] Identity of Plaintiffs
- [1.44] Security Instrument
- [1.45] Information Concerning the Mortgage
- [1.46] Request for Foreclosure
- [1.47] Other Counts and Claims
- [1.48] Guaranties
- VIII. Prejudgment Possession
- IX. Reinstatement
- X. Redemption
- XI. Answer, Defenses, and Counterclaims
- XII. [1.74] Proving the Foreclosure
- XIII. Judgment of Foreclosure
- XIV. Judicial Sale
- [1.88] In General
- [1.89] Notice of Sale
- Conducting the Sale
- [1.90] Selling Officer
- [1.91] Public Auction
- [1.92] Terms of Sale
- [1.93] Bidding Process
- [1.94] Receipt and Certificate of Sale to Highest Bidder
- [1.95] Confirmation of Sale
- [1.96] Grounds To Disapprove Sale
- [1.97] Inadequate Notice
- [1.98] Unconscionability, Fraud, and Injustice: General Application
- [1.99] Unconscionability, Fraud, and Injustice: Inadequate Sales Price
- [1.100] Unconscionability, Fraud, and Injustice: Other Grounds
- [1.101] Termination of Pre-Foreclosure Condominium Assessments Lien
- [1.102] Deed
- [1.103] Deficiency Judgment
- [1.104] Surplus
- [1.105] Post-Confirmation Considerations
- [1.106] 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] Disabled Persons’ Estates
- [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] The Servicemembers Civil Relief Act
- [2.34] Notice of Foreclosure — Lis Pendens
- III. Drafting the Complaint
- [2.35] Predrafting Considerations
- The Statutory Short-Form Complaint for Foreclosure
- [2.36] Basic Elements
- [2.37] Deemed Allegations
- [2.38] Attorneys’ Fees
- [2.39] Request for Accounting
- [2.40] Personal Deficiency Judgment
- [2.41] Request for Possession
- [2.42] Request for Special Matters
- [2.43] 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] Supreme Court Rules Specific to Mortgage Foreclosures
- XXIV. [3.35] 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 and Foreign Mortgage Foreclosure
- 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 an attorney at Gutnicki LLP in Skokie, where she focuses on commercial litigation. She is is a member of the Chicago, Illinois State, and Wisconsin Bar Associations. Ms. Allen received her B.A. and her J.D. from Marquette University.
- William W. Austin
William W. Austin
William W. Austin is Of Counsel to McDevitt Osteen Chojnicki & Deters, LLC, in Effingham, where he concentrates his practice in real estate, business, and banking law and related litigation. He is a member of the Illinois State Bar Association’s Senior Lawyer Section Council as well as a former member of its Real Estate Section Council. He is the former Director and Chair of the Attorneys’ Title Guaranty Fund, Inc. Mr. Austin received his J.D. and his B.S. from the University of Illinois.
- August R. Butera
August R. Butera
August R. Butera is Senior Vice President of and General Counsel to Attorneys’ Title Guaranty Fund, Inc., in Chicago, where he concentrates in real estate law and title insurance. He is a Board Member of the Illinois Real Estate Lawyers Association and Past President of the Illinois Land Title Association. Mr. Butera received his B.S. from DePaul University and his J.D. from DePaul University College of Law.
- William J. Dorsey
William J. Dorsey
William J. Dorsey is a Partner with Blank Rome LLP, in Chicago, where he focuses his practice on high-stakes commercial disputes involving commercial finance, real estate, mergers and acquisitions, and intellectual property. He has been listed in Super Lawyers (2012 – present) and is a member of the American Bankruptcy Institute. He also serves as a faculty member of the Practicing Law Institute’s Commercial Real Estate Law Institute. Dorsey earned 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 Claims Counsel for Attorneys’ Title Guaranty Fund, Inc., in Chicago, where she focuses on real estate. She is a title counsel member of the American Title Land Association and the Illinois Land Title Association and a legislative counsel member of the Illinois Land Title Association. Ms. Faber received her B.A. with honors from Dominican University and her J.D. from The UIC John Marshall Law School.
- Amy Tolan Grace
Amy Tolan Grace
Amy Tolan Grace is a Partner at L&G Law Group LLP in Chicago, where she concentrates in commercial litigation, banking, and financial services. She is a member of the Management Committee of L&G Law Group LLP, the Turnaround Management Association, and the Women in Business Committee of the West Suburban Chamber of Commerce. Ms. Grace received her B.A. from Regis University and her J.D. from The UIC John Marshall Law School.
- Samuel H. Levine
Samuel H. Levine
Samuel H. Levine is an attorney practicing in Chicago with a focus on construction and real estate litigation. He is a member of the Society of Illinois Construction Attorneys, the American College of Real Estate Lawyers, and the Illinois State Bar Association (Construction; Commercial, Banking, Collections and Bankruptcy; and Real Estate Section Councils); a Fellow of the American College of Real Estate Lawyers; an Illinois Super Lawyer (Construction Litigation); an Illinois Leading Lawyer (Creditors’ Rights/Commercial Collections Law and Real Estate); and a frequent lecturer in the areas of mechanics liens, construction law, real estate litigation, and loan and collateral enforcement. Mr. Levine received his B.A. from Washington University in St. Louis and his J.D. from Chicago-Kent College of Law.
- Solomon Maman
Solomon Maman
Solomon Maman is a Partner at Noonan & Lieberman, Ltd., in Chicago, where he focuses on financial institutions, business laws, and real estate. He is a member of the Board of Directors of the Illinois Mortgage Bankers Association, the Mortgage Bankers Association, and the Illinois State Bar Association. Mr. Maman received his LL.B. from the University of Sheffield and his LL.M. and J.D from Loyola University Chicago School 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 litigation. He is an adjunct professor of trial advocacy at Northwestern University Pritzker Law School and a Fellow in the American College of Trial Lawyers. Mr. McKenna received his B.A. from Middlebury College and his J.D. from the University of Chicago Law School.
- James V. Noonan
James V. Noonan
James V. Noonan is a Partner with Noonan & Lieberman, Ltd., in Chicago, where he concentrates his practice in creditor’s 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 the author of REAL ESTATE LITIGATION(IICLE®, 2021). Mr. Noonan received his B.A. from Marquette University and his J.D. from DePaul University College of Law.
- Timothy J. Patenode
Timothy J. Patenode
Timothy J. Patenode is a Partner at Katten Muchin Rosenman LLP in Chicago, where he focuses his practice on real estate litigation. He is a member of the American Bar Association’s Litigation Section and Construction Forum. Mr. Patenode received his B.A. from Northwestern University and his J.D. cum laude from Northwestern University Pritzker Law School.
- Daniel I. Schlade
Daniel I. Schlade
Daniel I. Schlade is the Founder of the Law Office of Daniel I. Schlade, in Chicago, where he focuses on real estate and commercial litigation, which includes contested mortgage foreclosures, mortgage and loan workouts, mechanics liens foreclosures and construction disputes, title disputes, latent defect and warranty disputes, broker and appraiser liability, condominium disputes, and eviction actions. Mr. Schlade received his B.S. from the University of Illinois and his J.D. from Chicago-Kent College of Law, where he was a member of the Order of the Coif.
- Matthew J. Stockl
Matthew J. Stockl
Matthew J. Stockl is an associate at Foley & Lardner LLP in Chicago, where he concentrates his practice in bankruptcy and litigation. He has been recognized by Illinois Super Lawyers Rising Stars edition (2019 – 2021) and The Best Lawyers in America: Ones to Watch 2021 for Bankruptcy and Creditor Debtor Rights/Insolvency and Reorganization Law. In 2017, he was selected to participate in the National Conference of Bankruptcy’ Judges’ Next Generation Program. Mr. Stockl received his B.A. from McGill University and his J.D. cum laude from Albany Law School.
Mortgage Foreclosure: Practice and Procedure 2021 Edition
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