In response to the recent foreclosure crisis, certain states such as Illinois have taken steps to better protect homeowners facing foreclosure. Keep reading to learn more about Illinois' new foreclosure rules and how they are designed to protect you if you are an Illinois homeowner.
New Rules to Help Illinois Homeowners
In Illinois, the state Supreme Court has issued three new rules designed to reduce mortgage servicing abuses and clear up uncertainty in the mortgage foreclosure process, as well as assist those who face foreclosure by imposing several additional requirements on mediation programs and lenders seeking to foreclose.
If you are struggling to pay your mortgage, get all of your options in The Foreclosure Survival Guide.
Rule 99.1 - Mortgage Foreclosure Mediation Programs
Foreclosure mediation is a process that is used to help homeowners avoid foreclosure by coming up with an alternate solution that benefits both the borrowers and the lender. (Learn more about foreclosure mediation programs.)
Over the past few years, several judicial circuits asked the Illinois Supreme Court to approve mediation programs, but the initiatives varied widely in scope, capacity, and design. The newly implemented Rule 99.1 addresses the need for uniformity by setting guidelines for what a foreclosure mediation program must offer in Illinois.
Under the new rule, judicial circuits that wish to implement a foreclosure mediation program must submit a plan for approval that addresses:
- the requirements set forth in Rule 99 (such as eligibility, scheduling, appointment of mediators, etc.)
- resources to provide meaningful access to HUD-certified housing counseling services for eligible homeowners
- resources to provide meaningful access to pro bono legal representation for eligible homeowners
- resources to provide meaningful language access for program participants
- any costs charged to any participant in the mortgage foreclosure case
- a sustainability plan that includes a long-term funding plan, and
- training of judges, key court personnel and volunteers on mortgage foreclosure mediation.
Cook, Will, Peoria, Madison, Bond, and McLean counties, which currently have mediation programs, have until June 1, 2013, to adapt their local rules to Supreme Court Rule 99.1. (See our existing article Foreclosure Mediation Programs in Illinois to learn more about the programs, though some changes will likely be made to those programs to bring them in compliance with the new rules.)
Kane, Kankakee, and St. Clair counties are in the process of establishing mediation programs.
Rule 113 – Notice Requirements
Supreme Court Rule 113 establishes new rules regarding the practices and procedures for mortgage foreclosure cases in Illinois. To learn about the specific foreclosure laws in Illinois, see Summary of Illinois' Foreclosure Laws.
A copy of the promissory note must be included with the complaint for foreclosure. To alleviate some of the confusion caused by the frequent transferring of mortgages, every foreclosure lawsuit must include a copy of the note signed by the borrower, including all endorsements evidencing the transfer of ownership of the mortgage.
To learn more about promissory notes, see What's the difference between a mortgage and a promissory note? and What's the difference between a mortgage assignment and an endorsement (transfer) of the note?)
This rule came about because Illinois courts have seen a dramatic increase in assertions by homeowners that the lender lacks standing to bring the foreclosure complaint. To learn more about raising this issue as a defense to foreclosure, as well as challenging other issues in foreclosure, see Fighting Foreclosure in Court.
Prove-up affidavit. The lender must submit an affidavit in support of the amounts due and owing under the note when requesting a judgment (called a prove-up affidavit). Rule 113 identifies the minimum requirements necessary for a prove-up affidavit and provides a form that should be used.
The requirement of a prove-up affidavit is directly aimed at eliminating robo-signing (where foreclosure documents were not properly notarized or were signed by people who had no knowledge about whether the information contained in the documents was correct).
Notice of default judgment. If a homeowner loses a foreclosure case by default due by failing to appear in court (known as a “default judgment”), the clerk of the court must send a clear notice to the homeowner explaining what occurred. The attorney for the lender must prepare the notice and deliver it to the clerk within two days after the default judgment is entered. The clerk must mail the notice within five days after the default judgment is entered. The notice must be sent to the property address or any other address where the defendant is most likely to receive it, such as the address on any document filed by the defendant.
Notice of sale. The attorney for the lender must mail notice of the date, time, and location of the foreclosure sale to the homeowner and any other defendants at least 10 business days before the sale (rather than just simply advertising it in a newspaper).
Rule 113 applies to foreclosure actions filed on or after May 1, 2013.
Rule 114 - Loss Mitigation Affidavit Required
Supreme Court Rule 114 requires lenders to prove to judges that they have exhausted all efforts to help a homeowner before seeking a foreclosure judgment, if that homeowner appeared in court or filed documents in the case.
Pursuant to Rule 114, a lender will have to file an affidavit with the court showing:
- any type of loss mitigation that applies to the subject mortgage
- what steps were taken to offer said type of loss mitigation to the homeowners, and
- the status of any such loss mitigation efforts.
Loss mitigation refers to programs or mortgage workouts that avoid foreclosure, such as a loan modification, forbearance, short sale, deed in lieu, and the like. The effective date of the rule is May 1, 2013, which means the rule applies to judgments on or after May 1, regardless of when the foreclosure was filed.
For More Information
To access the Illinois Supreme Court Rules, go to www.state.il.us, select “Government,” then “Judicial Branch,” then pick “Illinois courts,” and click on “Rules” under the “Supreme Court” heading.