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In November 2013, the Illinois Supreme Court issued an opinion in Wells Fargo Bank, N.A. v. McCluskey, a case dealing with the standards for vacating a judgment of default in a foreclosure case. The court's decision makes it easier for mortgage lenders to proceed with foreclosures in Illinois. Illinois residents should be aware of the impact that the court's decision could have on foreclosures in the state.

Motion to vacate a judgment of default

The homeowner in the case fell behind in her mortgage payments, so the lender issued a foreclosure complaint. The homeowner did not respond to the complaint, and the court issued a judgment of default and foreclosure. After seven months elapsed, the homeowner attempted to file a motion to vacate the default under Illinois Code of Civil Procedure Section 2-1301(e). The homeowner withdrew the motion while attempting to negotiate a loan modification with the lender, but then re-filed the motion after those talks failed, two weeks after the judicial sale of the home but before the lender had filed a motion to confirm the judicial sale.

The trial court denied the homeowner's motion, and the homeowner appealed. The appellate court remanded the case to the trial court, ordering the court to consider the motion under the terms of Section 2-1301(e). The mortgage lender appealed to the Illinois Supreme Court.

Illinois Foreclosure Law applies after judicial sale

The Illinois Supreme Court reversed the appellate court, holding that the Illinois Foreclosure Laws governs the procedure for vacating a default, not the Code of Civil Procedure. The Code of Civil Procedure states that it applies to the Foreclosure Law "except as otherwise provided," so the question that the court needed to resolve was whether it would be inappropriate to use the Code on judicial sale procedures. The Foreclosure Law has a test for vacating a default that is more demanding than the test in the Code, and the court reasoned that test was more appropriate to use after the sale has been confirmed in order to protect the interests of the lender.

In this case, the lender had not yet moved to confirm the sale so the test from the Code applied. However, the court held that the homeowner did not meet the Code's test for vacating a default and denied the motion.

Speak with a lawyer

The court's opinion makes foreclosures easier to complete for lenders. However, homeowners are not without rights. Those who are facing foreclosure should consult a skilled foreclosure defense attorney with a history of successfully saving homes from foreclosure. If you have questions about foreclosure, consult an Illinois foreclosure defense attorney who can advise you about your specific situation.

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