Situations that require a Chicago consumer attorney are almost always distressful. You are likely facing a foreclosure or bankruptcy, which are both daunting and overwhelming. In order to help satisfy some of the more pressing concerns and questions you have, we’ve assembled a list of those that are asked most often along with our best answers to keep you as informed as possible, whether you choose us for your representation or not. We hope that these prove hopeful and that we way help you settle your legal dilemma.
To be in touch with our attorneys, call our offices today at (312) 313-1613.
Why is it so difficult to get a straight answer about the Foreclosure Process?
Few people know much about the process. Foreclosure law is a very specialized area of the law. Because no two Foreclosures are identical, general answers are often wrong. Many Non-Attorneys claim that they are qualified to assist financially distressed individuals, but in reality if they do not have sufficient knowledge of the law, or experience with the many difficulties and solutions provided by Illinois Mortgage Foreclosure Act and the other State and Federal Laws, these Non-Attorneys will likely do more harm than good.
What do you need most right now?
Gather Information, Information, Information. Then Research, Research, Research to verify the accuracy of that information. Our best Clients have been those who have been proactive and who are informed about the process and want to cure their fear with accurate information. Use our website and the many useful links attached to discover the truth regarding the Foreclosure Process and the potential rights you have against the Bank and their Attorneys based on the loan you currently have. The best tool to arm you and your Family with right now is information. Beware of the many scams that are offered to you that sound too good to be true. Defend yourself against dishonest individuals who will attempt to take advantage of you and your Family at this time. Check out the Illinois Attorney General website or contact us for a consultation regarding Predatory Lending Claims and the defenses that you may have against the Bank for issuing you a defective loan.
What is a Defective Mortgage?
As you may be aware by now, though the Mortgage Broker who assisted you in getting the loan you currently have was supposed to have been working for you and your interests and give you unbiased advice on what loan program was best for you and your Family, the reality is that many Mortgage Brokers are compensated almost entirely by the Lender that issued you the loan. This conflict of interest is likely the reason you are in the situation you are in now. You were issued a Defective Mortgage, and it is more than likely that you qualified for better terms. You have rights against all involved. They likely falsified information to secure the loan program that was issued to you.
For example, if you were to go to a Doctor with an injury to your leg, and the Doctor prescribed you heart medicine, and there was nothing wrong with your heart, you would have a right to sue the Doctor for Malpractice. Furthermore, if you found out that the only reason the Doctor prescribed you the heart medicine was because the Doctor was paid a commission by the drug manufacturer, and that medicine hurt you, would you not file a suit against the Doctor and drug manufacturer? You would have the right.
In reality, that is what the Mortgage Brokers, Account Executives (employees of the Lender), Underwriters, Lenders and Appraisers, to name only a few of the actors, likely did to you. How else can you explain being obligated to pay a loan that is 50 % - 110% of your monthly take home pay? How else can you explain that you bought a house that five years ago was worth $150,000, was allegedly worth $275,000 two years ago when you bought it, and is now worth $150,000 if you could find a Buyer? How else can you explain your Lender being so willing to loan you the money in the first place, and refusing to refinance the same loan later, as promised?
Were you told by the Mortgage Broker that after a few payments, the Mortgage Broker would start a refinance for you?
In our firm, we hear this constantly. The Mortgage Broker typically tells the Client not to worry about the terms or monthly payment because in a few short months a refinance shall take place putting the Borrower in a fixed payment plan at a better interest rate. This rarely occurs and when it does, it is typically a mechanism for the Mortgage Brokers and Lenders to make more money from your MISERY. The fact of the matter is that the Mortgage Broker with assistance from the Account Executives who are employees of the Lender often times engineered the information so that you would qualify for a loan program, that had your true information been made part of the application you would have not qualified for the loan. They prescribed for you a loan program that was based on erroneous information. They were in control and you trusted them to assist you in securing a loan for you and your Family. They may have issued you a Defective Mortgage.
Can you give me another example of how the Lending Industry may have taken advantage of Borrowers?
There is an extremely high likelihood that a Borrower having difficulty paying their mortgage, have a mortgage that was secured through a Mortgage Broker where a Yield Spread Premium was paid to the Mortgage Broker.
A Yield Spread Premium (Also Known as a YSP) is a device (70% to 80% of the mortgages in the country as of 1/2007 were being completed by Mortgage Brokers that collected Yield Spread Premiums) used by Mortgage Brokers to collect a fee paid directly by the Lender to the Mortgage Broker at closing. A YSP is the result of an unholy arrangement between the Mortgage Broker and the Lender whereby the Borrower's interest rate is artificially increased above what the Borrower actually qualified for. In exchange for arranging that kind of loan, the Mortgage Broker receives extra compensation from the Lender at the closing based upon a predetermined formula which is calculated from the increased interest rate charged to the Borrower. Essentially the higher the interest rate the Borrower pays the Lender, the higher the YSP payment to the Mortgage Broker. That extra payment is known as a YSP. It is not commission, because no extra work was done to earn this extra compensation. The Mortgage Broker, likely never disclosed this to you and that means they breached their duty to you.
How did this happen? What does that mean for me if I was a victim of a Defective Mortgage where there was a YSP involved as the vast majority of loans were in recent years?
The Borrower goes to the Mortgage Broker and the Borrower's application is taken and the Mortgage Broker qualifies the Borrower for a 6% interest rate and at the closing the Borrower is given a 7.75% interest rate that the Borrower agrees to because they believe they qualified not for a 6% interest rate but 7.75% interest rate. Sound familiar? The Mortgage Broker does not tell the Borrower, as they are required to, that the Borrower qualified for a 6% interest rate. Most people believe they qualified for a 7.75% interest rate, but in reality the rate they qualified for was a 6% interest rate. The Lender charges an extra 1.75% of interest against the loan which translates into more money to the Mortgage Broker and the Lender. Most Mortgage Brokers do not know what is wrong with accepting the YSP. The Mortgage Broker owes the Borrower the duties of accountability, care, obedience, loyalty and most importantly disclosure. The Lender may have induced the Mortgage Broker to violate these important and fundamental duties. This is merely an example of one of the many wrongs the typical Borrower has had to suffer through recent years.
I understand that both the Lender and Mortgage Broker took advantage of me, but I am Afraid to sue them?
Lenders will often try to argue that Borrowers were complicit in any fraud in the loan application process, whether by providing a falsified income or an inflated appraisal. Lenders frequently base this argument on the various certifications Borrowers sign at closing, and particularly at the signing of the loan application. The best response is grounded in educating the Judge about how loans are made and the relative sophistication or lack thereof of the parties. The Borrowers are often never given an opportunity to review the documents prepared by the Lender and the Mortgage Broker. When Borrowers do ask questions, they are often told, "This is how it is always done." Sound familiar? Our Complaint is based on the misrepresentations made by the Lenders, Mortgage Brokers and anyone else's involvement to the extent that it assists your case. You justifiably relied on those misrepresentations to your disadvantage and those misrepresentations have led to you being behind in payments to the Lender.
What do I do next?
Consult with an Experienced Attorney. Interview Attorneys who have knowledge in this specialized field of the law. It is not only advisable, but considering what is at stake, it is urgently important that you consult with an Experienced Attorney as soon as possible who can review your circumstances and provide you with a clear strategy that provides an actual solution.
Hire an Experienced Attorney as soon as possible?
Your Attorney can present any defense available to you to the court. It is in your best interest that a default judgment not be entered against you. You should hire an Attorney as soon as you believe you are falling behind, but never later than within the first 30 days after you receive the Summons and Foreclosure Complaint. The best time to at Least consult with an Attorney is before you start missing payments, as that is the best stage to formulate a long term strategy for relief. Do not wait to be sued to consult an Attorney, because that is no different than waiting to open your eyes until after you trip.
How do I know if the Attorney I am choosing is the best Attorney for me?
Your Attorney should be versed and have practical (real world experience) knowledge to review and advise you on your case at a bare minimum based on at Least the following laws:
1. Illinois Mortgage Foreclosure Act
2. Illinois Mortgage Foreclosure Rescuers Act
3. Illinois Consumer Fraud and Deceptive Business Practices Act
4. OBRE (Office of Banks and Real Estate) Regulations
5. Illinois Interest Act (IIA)
6. Illinois Fairness In Lending Act
7. Illinois High Risk Home Loan Act
8. Federal Truth In Lending Act (TILA)
9. Federal Home Ownership Equity Protection Act (HOEPA)
10. Federal Real Estate Settlement Procedures Act (RESPA)
11. Federal Equal Credit Opportunity Act (ECOA)
12. Federal Bankruptcy Laws & How Such Laws Are Evolving
13. Common Law related to consumer related transactions.
a. Common Law Fraud
b. Breach Of Fiduciary Duty
c. Breach Of Contract
Very few Attorneys focus on this specialized field of law. If you find during the course of your interview that your Attorney does not have a grasp or a record of cases they can point to, to show they have worked on using the above defenses, or is only aware of Federal Bankruptcy Laws, you need to look further for an Experienced Foreclosure Defense Attorney. The laws designed to protect property owners and homeowners are powerful if properly addressed, and Attorneys who do not implement a strategy for you that do not include the above are potentially doing you a disservice.
Our Attorneys have real world experience of fighting for our Clients who are in a financially distressed situation. Our Attorneys have gone against the biggest Lenders and their Attorneys and have secured the goals of our Clients. Make sure the Attorney you hire can prove the same.
Who can tell me how long it will be before I have to leave my house once I miss my first payment to the Lender?
No one can tell you exactly how long you have to stay in your house. No two situations are identical. The time may be as little as 6 to 8 months and as long as 24 months to as long as you want (if you Reinstate), depending on variables that are too many to list. To name a few of the many variables, it would depend on whose your Bank, is your Bank still in operation, does the Bank still own your loan, who is the Bank's Attorneys, what are the terms of your mortgage, will you put up a defense to the Foreclosure Proceedings, what strategy you will take with the defense, and on and on. The Attorney for your Bank will work diligently to move the process forward so that the Bank will be made whole through a sale of the property. The law sets forth a number of time constraints that the Bank must observe. There are actions which you may take on your own or with the help of others that will delay, accelerate or resolve the process. Our Attorneys are versed with the Illinois Mortgage Foreclosure Act, and the Foreclosure Process in Illinois. Our Attorneys shall be able to give you an accurate estimate as to what time is left to find a solution. We will be able to file an appearance, answer and counterclaim against the Bank (Defend Your Rights) on your behalf and attend all court proceedings.
If you do not do anything, the Attorneys for your Bank, who are Specialists, will attempt to follow the law set out in the Illinois Mortgage Foreclosure Act and will request an order for a Foreclosure Judgment and Sale that will ultimately result in an Order of Possession in favor of the Bank or other purchaser of your property. The property will be sold at a public judicial sale to the highest bidder. The highest bidder will have you removed from the premises by the Sheriff. You will lose whatever equity you had in the property and you will lose all rights to use the property. If there is a surplus at the sale, which almost never happens in the current market environment, you will benefit from that surplus. The reality is that in the current environment most homes are sold at a loss.
When your Bank hires their Attorneys and a Foreclosure suit is filed you now owe more than the sum of the monthly payments you missed due to late fees, court costs and Bank Attorney's Fees. Depending on how many months behind you are, the Bank accelerates the mortgage so that the entire principal becomes immediately due, together with all the costs of the Foreclosure action including Attorney fees, together with interest that now accrues on a daily basis at a potentially higher rate of interest (also known as the Default Rate of Interest) which was set forth in your mortgage as a rate that would be charged after a default. Once you are in Foreclosure, to find out how much is owed you may have to deal with the Attorney for the Bank since the Bank will not know the most current Foreclosure costs expended.
When is the best time to take action regarding the Foreclosure?
As soon as possible is not soon enough. Every day that passes you owe the Bank more and your equity, if any, shrinks. Since the interest rate after default is usually higher, your loan, once in Foreclosure could cost you considerably more than before. If you have equity, this equity can be used to help solve the problem. If you wait and your equity diminishes, you will have fewer options. If Chapter 13 is decided to be your best solution, your Chapter 13 payments will be based on the amount owed your Bank. If you file at the beginning of the process, your payments will be lower. At the beginning of the Foreclosure the right to reinstate will be available. The further you go in the Foreclosure process without taking any proactive steps to protect yourself, the fewer options remain available, and solutions become more expensive. If you do not file an appearance and answer within 30 days of receipt of a Summons from the Court, the mortgagee's Attorney may take a default judgment against you, and if the default judgment is not vacated within the time prescribed by the law, which is 30 days from issuance of the default judgment, your options diminish further. Filing for Bankruptcy without at least researching what the new Bankruptcy Laws may do for you, once enacted, may further damage your financial position. Recently, a Client came in after she had filed a Chapter 13 Bankruptcy. She was having difficulty making the payment before filing for Chapter 13 Bankruptcy. Her mortgage payment, which now included a portion towards the back payments, was 30% more than her payment before Bankruptcy. She still has options, and we will assist her and her Family, but her best option was to consult a Foreclosure Defense Attorney prior to filing any Bankruptcy. Timing is everything.
I have heard about Mortgage Foreclosure Scams, what should I be aware of?
In the current financial environment, so many Distressed Homeowners have been victimized by individuals and corporations claiming to be "experts" in Foreclosure. Foreclosure is not a field it is a term. Anyone who tells you they are experts in FORECLOSURE is probably not. If they are not proficient with the laws listed above, they are not experts. The best defense to such individuals is to contact the Illinois Attorney General's Office and the Illinois Secretary of State to find out if the "expert" who is trying to help you is in fact who they represent they are. Please contact a Licensed Illinois Attorney or the Illinois Attorney General before you sign your property over to anyone. Do not sign any deed without first securing legal advice by contacting an Illinois Licensed Attorney or meeting with members of the Illinois Attorney General's Office, because from our experience, nine times out of ten, it is a scam. You have been warned. If you have deeded your property to someone, immediately contact our office or the Illinois Attorney General to see if you have been a victim of Mortgage Rescue Fraud. At least type there name into GOOGLE, YAHOO, MSN or any other search engine and look for news about them. Go to the Better Business Bureau website and search their history if they even have one.
What is a Chapter 13 Bankruptcy?
Chapter 13 Bankruptcy is a debt consolidation that is supervised by the Federal Bankruptcy Courts. You would have to qualify for a Chapter 13 Bankruptcy. Chapter 13 Bankruptcy is designed to stop foreclosures and repossessions and put you in a repayment plan. It allows for the consolidation of all of your other debts as well, as well as the compromise (partial repayment) of most unsecured debts such as credit cards, medical bills and payday loans to name only a few. Once you file a Chapter 13 Bankruptcy;
- You make your regular monthly mortgage payment as if you never fell behind typically within one month after you file;
- You make one fixed monthly payment to a Bankruptcy Trustee that catches up your past due mortgage payments, pays off you vehicles and pays as much as possible on you other debts, i.e. your payments are likely going to be higher than they were before you fell behind ;
- You make this payment for between three to five years;
- At the end of the Chapter 13 Bankruptcy Plan, your mortgage is current, your vehicles are paid in full and most remaining balances due are discharged;
- A full review of your file will determine if this is good option for you. If you were having difficulty keeping up before, beware that the potentially increased payments may put you in a difficult situation again.
What is a Chapter 7 Bankruptcy?
Chapter 7 Bankruptcy is liquidation, also known as "straight bankruptcy." The law allows you to keep your property such as a home, cars, household goods, clothing etc. within certain limits, called exemptions, and the Bankruptcy Trustee may sell any assets above those limits to pay your debt. Most people file Chapter 7 Bankruptcy because they don't have any assets above those limits, so there is no actual liquidation in such "no-asset" cases. The Bankruptcy court typically will issue an order, called a discharge, a couple of months after you filed your petition, legally forgiving you of any debt that can be forgiven. Chapter 7 is ideal for people who owe a large amount of unsecured debt such as credit cards, medical bills, utility bills and unsecured loans without a lot of assets. If you have a car loan or mortgage that you feel you cannot afford to pay, you can also give up the car or house without owing anything, but you may lose ownership of the house or car. As said earlier, filing Chapter 7 doesn't necessarily mean that people will lose their homes or cars. Any individual is eligible for Chapter 7 as long as he or she is not barred by law from doing so. Under certain circumstances, however, some debts may not be discharged, and some people may not be able to receive a general discharge. A full review of your file will determine if this is good option for you.
When should I file Bankruptcy?
Every situation is different. The fact of the matter is that this is not the only option. In fact if used improperly, or at the wrong time, it will likely do more harm than good. For those who want a loan modification because they want to keep their home, bankruptcy, in its current form will not help if they are not making more money since the time they fell behind. A new law is progressing through the United States Congress that will allow for judicial loan modifications. If passed it may be more helpful to assist homeowners who want to stay in their homes.
What Can I do if I do not want to file Bankruptcy?
A Bankruptcy can be filed any time before a Foreclosure Sale. For most people, this should be the last option, not the first! It is the policy of our Firm and the professional practice of all of our Attorneys to examine all options in addressing a Foreclosure Complaint, and present and explain all the options available to our Clients. Bankruptcy is an option, it is not the only option, and in fact, in our professional opinion, more often than not, used alone, not the best option for our Clients under the current law; especially for those Clients who were victims of Predatory Lending practices. The first line and only line of defense presented by many Attorneys is immediately advising their Clients to file for Bankruptcy never affirmatively addressing any potential claims or solutions the Client may have. If you have valid claims against the Lender, we may be able to pursue the claims for you as a part of a strategy that may include a Bankruptcy. This could result in a vast improvement in your financial situation as opposed to implementing a strategy based solely on Bankruptcy. If you are not a good candidate for Bankruptcy, you run the risk of falling behind again and being left with fewer options than before the Bankruptcy filing.
Can A Poorly Timed Bankruptcy Really Hurt Me?
If your payment was $2,500, and you are 5 months behind, you would have back payments of at least $12,500. Before the Bankruptcy you were having trouble making the payment. After the Bankruptcy you would have to within a short amount of time (30 - 60 Days After Filing) have to continue to make the monthly payment of $2,500 in this example and a portion of the $12,500 in back payments, and other cost associated with a Bankruptcy such as Trustees Fees and other amounts for other debts. Please examine all options available before condemning yourself and your Family to the constraints of Bankruptcy.
What changes are coming in the Law of Bankruptcy that I can benefit from? What is Judicial Loan Modification?
Currently, there is a lot of talk by Congress and the New President that a change is coming to the Laws of Bankruptcy. Currently, it is just that, talk. However, it is anticipated the changes that are coming will be greatly in favor of people experiencing financial difficulty. Judicial Loan Modification would allow the Bankruptcy Judge to adjust the terms of your mortgage. The current Bankruptcy Laws do not give this much power to Judges. A Judicial Modification would essentially force the Lender to accept a plan that would keep the Borrower in the property. Judicial Modification would allow the Bankruptcy Judge to change the terms of the mortgage in favor of the Borrower. Currently, this is not the law, and the Lenders and their army of Lobbyists are fighting it, but if you file for Bankruptcy now, before at least further researching this issue, you are doing yourself and your Family a major disservice. Most Attorneys are not even aware that you have rights against the Lender, let alone the rights that you would be foregoing if you file for Bankruptcy too early. Please do your research.
What is Loss Mitigation?
Loss Mitigation is a general term used to describe the various options available to a property owner experiencing difficulty with a mortgage or any other consumer transaction. Loss Mitigation is commonly associated with the term Loan Modification. A type of Loss Mitigation is known as Loan Modification. Examples of Loss Mitigation possibilities include, but are not limited to the following:
1. Loan Modification: The term Loan Modification would mean to adjust the terms of the mortgage from their original form. For example, reaching an agreement with the Lender that the Borrower's interest rate would be adjusted from an 8.75% interest rate down to a 4.75% interest rate and changing the amortization from 30 to 40 years, are both examples of Loan Modifications.
2. Foreclosure Defense/Offense: Also known as Affirmative Defenses and Counterclaims. The goal of a proper Foreclosure Defense/Offense would result from an in-depth study of all the documents and the specific narrative of the Client/Borrower to defend the rights of the Borrower and attack the foreclosure suit offensively if the Borrower has been a victim of any Federal, State or common law violations.
3. Repayment Plan: Also commonly referred to as a Loan Modification which would mean to come to an arrangement with the Lender to continue to pay the mortgage and pay a monthly fee to cover back payments.
4. Short Sale: If the Borrower is unable to maintain the payments upon the Subject Property or if they believe they need to sell the Subject Property to avoid a deficiency judgment, it is possible that the Lender may be able to accommodate the Borrower by agreeing to a short payoff by accepting an amount less than the full payoff of the original loan. A qualified buyer is required. A qualified Attorney is absolutely needed for this process to negotiate and avoid any deficiencies by severing all future liability.
5. Deed In Lieu Of Foreclosure: If the Borrower is unsuccessful in selling their home and their home has been on the market (at fair market value) for usually at least 90 days, they may be eligible for a Deed In Lieu Of Foreclosure. In exchange for the Deed In Lieu Of Foreclosure, the Lender will waive all deficiency judgment rights. A qualified Attorney is absolutely needed for this process to negotiate and avoid any deficiencies by severing all future liability.
6. Reinstatement: Reinstatement of the loan is a right given by the Illinois Mortgage Foreclosure Act which allows the Mortgagor (the Borrower) to cure the default by making the lump sum payment of everything owed in back payments also known as the mortgage arrearage, past payments, penalties, cost of collection and Foreclosure and legal fees to date if said fees are approved by the court. You do not need to come up with the entire principal. The right to reinstate belongs to the parties on the mortgage and the right is valid for 90 days after the parties have been served by legal process, which is measured from the date the Summons and Foreclosure Complaint is delivered to the Borrower (served).
7. Special Forbearance: (FHA loans only) (Type I & II) If the Borrower's loan is 90 days to 365 days past due, their Lender may consider a Special Forbearance. A Special Forbearance is designed to provide the Borrower with more relief than is possible with a regular repayment plan.
8. Partial Claim: (FHA Mortgages Only) (Some Freddie Mac Investor Loans) A Partial Claim is a Subordinate Mortgage (2nd Mortgage) between the Borrower and the Secretary of Housing and Urban Development. The Partial Claim Note will commence payment at the maturity date of the First Mortgage and carry no interest and will include the past due payments due on the loan. Only loans that are 120 to 365 days past due may qualify for this option.
9. VA Loan Modification/Refunding: A Refunding occurs when the Veterans Administration buys the loan from the Lender. Refunding may give the VA the flexibility to consider options to help the Borrower to save their home that their current Lender either could not or would not consider.
A Short Sale, Deed In Lieu of Foreclosure, Repayment Plan, Reinstatement Plan, Foreclosure Defense, to name only a few would all be options in a Loss Mitigation conducted by Atlas Consumer Law. Please note these are only a summary of the solutions and options available in a Loss Mitigation Consultation. Guidelines and qualification requirements vary by lender.
What is a Repayment Plan/Loan Modification?
Also known as a Loan Modification Plan, a Repayment Plan is designed to reinstate the loan and refers to changing the terms of the original mortgage. It is an agreement between the property (home) owner and the Lender to bring the mortgage current over time. It is extremely difficult to describe a standard Loan Modification Plan - Repayment Plan as no two circumstances are exactly the same. Recently, Countrywide Home Loans, pursuant to a settlement agreement with the Illinois Attorney General has allowed for some standardized Loan Modifications. Most Loan Modifications are tailored made to what the Borrower can afford and what the Lender will accept. Our Attorneys negotiate Loan Modifications - Repayment Plans. What differentiates our Firm from everyone else is that we will only present a Loan Modification - Repayment Plans as a settlement and not as a Reinstatement, an important distinction for those who are aware of the intricacies of the Illinois Mortgage Foreclosure Act. Our Loan Modification - Repayment Plans are reviewed by our Attorneys to ensure the best outcome for our Clients.
Prior to the current financial crises the terms of a Loan Modification - Repayment Plan commonly provided for a payment of the arrearage (back payments) as a down payment and 1 payment a month until the account is brought current.
In the current market environment, provided the Loan Modification - Repayment Plan is properly presented to the Lender, a far better outcome is secured for our Clients which in the recent past have included:
1. Reduced Monthly Payment
2. Reduced Interest Rate
3. Fixed Interest Rate: 30 Years to 40 Years Amortization
4. Reduced Principal
5. Adding back payments to the principal
6. Extending the term of the mortgage
Lenders are not under any obligation to enter into a Loan Modification agreement. What our Clients often find is that it is very similar to having a second job trying to conduct and conclude a Loan Modification on satisfactory terms. Our Firm handles this matter from beginning to end. Because the Lender is under zero obligation to enter into a Loan Modification agreement, the negotiations are usually intricate and complex. In the future, and in the event the Federal Bankruptcy Laws are changed, which seems more and more likely, the Federal Bankruptcy Court Judges shall be able to Judicially Modify the loans for our Clients. Please inquire as to the benefit this may have to your situation and what you need to do right now to prepare for the change in the Bankruptcy Laws by setting up your consultation today.
What is Reinstatement of the loan?
Reinstatement of the loan is a right given by the Illinois Mortgage Foreclosure Act which allows the Mortgagor (the Borrower) to cure the default by making the lump sum payment of everything owed in back payments also known as the mortgage arrearage, past payments, penalties, cost of collection and Foreclosure and legal fees to date if said fees are approved by the court. You do not need to come up with the entire principal. The amount to reinstate will be provided by the Attorney for the Lender. The amount for the Reinstatement provided by the Bank or their Attorneys is often incorrect. Please beware when reviewing the Reinstatement amount. The right to reinstate belongs to the parties on the mortgage and the right is valid for 90 days after the parties have been served by legal process, which is measured from the date the Summons and Foreclosure Complaint is delivered to the Borrower (served). After 90 days the Lender does not have to allow the Borrower to reinstate under the Illinois Mortgage Foreclosure Act. The right is only available once every five years. If you reinstated this loan less than five years ago and are now again in Foreclosure, your Lender does not have to accept your payment and reinstate the loan. When you reinstate the loan you start making payments as before and the Foreclosure case that was pending against you is fully dismissed.
What is Redemption of the property?
Redemption is the act of paying off the delinquent loan in full. Redemption is paying everything that is owed: principal, interest, cost of collection and Foreclosure and Attorney fees. You have the right to pay off the loan during the redemption period which, for residential property, expires 7 months from the date of service of the foreclosure complaint or 3 months from the date the judgment of foreclosure is entered, whichever is later. For example, in Cook County customarily the sale is set for a date after which the right of the redemption has expired. If the property goes back to the Lender after the sale there is a short period in which the property can be redeemed within certain other exceptions. The time periods change from time to time. Our Attorneys are versed in this right and the important time constraints. Commonly, Redemption occurs either through a sale or a refinance of the property. It is urgent that a default judgment or judgment is not entered against you, as the timeline for the loss of your property or home is accelerated after those events occur.
What is a Deed-In-Lieu Of Foreclosure?
A Deed In Lieu of Foreclosure is a voluntary transfer of the property to the Lender in full satisfaction of the amount owed. By accepting the Deed In Lieu of Foreclosure, the Lender releases you from personal liability on the loan also known as a deficiency judgment, deficiency amount or just deficiency. Commonly, Lenders will not accept a Deed In Lieu of Foreclosure if there are other liens on the property. In our practice, we have been able to secure Deeds In Lieu of Foreclosure by settling with the secondary Lender and other lien holders, effectively clearing title for the Lender to facilitate the transfer. It is an intricate process and requires a full review of your file to come to a conclusion if this is even a good option for you. A qualified Attorney is absolutely needed for this process to negotiate and avoid any deficiencies by severing all future liability.
What is a Short Sale? Can I refinance or sell my house?
You can sell your home any time before the Foreclosure matter is complete. The Foreclosure matter is complete at such time as the Redemption period discussed above has expired. However, once the Foreclosure has been filed the number of buyers willing to buy at retail and Lenders willing to refinance a Borrower already behind in payments all but disappear. People do not want to pay retail when they find a house in Foreclosure. Everyone wants to get the best deal possible. A Short Sale occurs when the Borrower owes more on the loan than the house is worth, and a Buyer agrees to pay an amount that is not sufficient to pay off that Borrower's loan balance. For a Short Sale to be a Short Sale, your Bank would have to accept an amount less than the full loan payoff. A Short Sale is a settlement agreement. Because it is a settlement agreement, no two Short Sales are the same. You may be liable for taxes related to the amount of debt from your original mortgage that is forgiven, but current laws may protect you from such taxes if it is your primary residence. Your Lender may also request as part of the settlement to pay the Lender back the amount the Lender did not collect at the time of the sale of the property. If you have a great deal of equity in your property, there are a number of solutions available but they must be acted upon immediately since your equity shrinks with each passing day. Again, do not deed your home to anyone without at Least first consulting with an Illinois Licensed Attorney. We can assist you in every step of the Short Sale process. A qualified Attorney is absolutely needed for this process to negotiate and avoid any deficiencies by severing all future liability.
Can I refinance or sell my house?
You can refinance your home any time before the Foreclosure matter is complete. The Foreclosure matter is complete at such time as the Redemption period discussed above has expired. However, once the Foreclosure has been filed the number of buyers willing to buy at retail and Lenders willing to lend to someone already behind in payments dwindle. Your Bank will usually not accept a short-payoff on a refinance. New Lenders do not want to take a chance on someone who has not been making their payments in regards to a refinance.
What is Foreclosure Defense?
Also known as Affirmative Defenses. The goal of a proper Foreclosure Defense would result from an in-depth study of all the documents and the specific narrative of the Client/Borrower. As the needs of every Client differ, each Foreclosure Defense must be tailored to the Client's specific situation and goals. Sometimes the Client requires time. Time to bring back payments current; Time to refinance; Time to sell; Time to find alternate housing; Time to discover what claims to bring against the Lender or others involved in the transaction that has resulted in a foreclosure filing; Time for more favorable laws to be passed to help the Client. The Client needs an experienced Attorney to navigate the treacherous and unfamiliar territory of the Judicial System. Sometimes the Client needs to just walk away from the property and needs to know how to do it legally with as little liability as possible.
What is Foreclosure Offense?
Also known as Counterclaims. A Foreclosure Offense occurs when our experienced Attorneys discover in the study of the Client's file and review of the Client's narrative, that there may have been potential State, Federal or Common Law violations of the rights of the Client/Borrower. We then go on the Offense against the Lender and the other actors who conspired against our Client/Borrower. The fact of the matter is that the current financial environment we are in is a result of all the actors in the financial markets not following the law. Job One for Atlas Consumer Law is to bring those to account who caused your financial hardship. Fight back!
How can I get straight forward answers to all of my questions right now?
Call and make an appointment with our office as soon as possible. The initial consultation consists of a;
- A preliminary review of your file;
- A discussion of your rights and obligations as they relate to your mortgage;
- Composition of a preliminary timeline of your case if you are in Foreclosure;
- A review to discover if you qualify for a;
- Loan Modification - Repayment Plan
- Short Sale
- Deed In Lieu of Foreclosure
- Foreclosure Defense: Affirmative Defenses
- Foreclosure Offense: Counterclaims
- Dismissal of the entire case
- Vacate Default Judgment
- Object to Confirmation of Sale
Most importantly, preliminarily review of your file for potential Counterclaims and Affirmative Defenses available to you. This is the most important service that we undertake for our Clients. It is this review that differentiates our Firm from every other firm in this specialized field of law.
We look for:
- Does the Plaintiff/Bank really own your note and mortgage, i.e. can they even sue you?
- Do you really owe the Plaintiff/Bank Lender as much as they claim?
- Has the Lender followed every procedural requirement of the Illinois Mortgage Foreclosure Act?
- Do you have defenses under the Truth in Lending Act (TILA), the Real Estate Settlement Procedures Act (RESPA) or the various other Federal and State Acts related to Consumer Transactions?
- Was your mortgage induced by fraud?
- Do you have a Defective Mortgage?
- Did your Mortgage Broker collude with your Bank to defraud you in issuing you a loan you could not afford? Did the Mortgage Broker breach their fiduciary duty to you?
- Did you Bank pay your Mortgage Broker a fee that was not disclosed to you and the purpose of that fee was to induce your Mortgage Broker to charge you a higher interest rate, also known as a Yield Spread Premium?