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When Can a Sheriff's Sale Be Conducted?

The Sheriff's Sale & the Motion to Confirm Sale

After the right of redemption has expired, the lender is free to proceed with a sheriff's sale. A sheriff's sale is an auction typically held at the courthouse in the county where the property is located. Before the sale can be conducted, the lender must comply with the notice and advertisement provisions of the Illinois Mortgage Foreclosure Law. The sale must be advertised in a newspaper in the county where the property is located. The advertisements must run for three consecutive weeks, not more than 45 days before the sale is scheduled, and not less than seven days before the scheduled sale. If the lender fails to meet this requirement, then any sale that is held may be set aside by the court. However, unless the homeowner objects to the confirmation of sale, the judge may not notice the error and approve the sale.

If the sale was conducted properly, and there is no objection to the confirmation of the sale, the judge will confirm the sale of the property. After the sale is confirmed, there is a 30 day stay on the buyer's right to possess the property. Some judges will extend this period to 60 or 90 days if special circumstances warrant an extension. Judges will not extend this period without being asked, so it is important that you, at the very least, attend the confirmation hearing, even if you have had no involvement in the case up to that point. In the event that you need more time before being forced to vacate the property, you could ask the judge for more time. The judge does not have to grant your request. The judge can deny or approve your request in that judge's own discretion, but usually over the lender's objection.

There are four main grounds for objecting to the confirmation of a sheriff's sale. The first one is that the lender failed to properly provide notice of the sale. This could be based on a failure to advertise the sale for the proper period of time prior to the sale; it could also be based on a typographical error in the advertisement. Objections to the notice of sale can be highly technical, so it is advisable to consult with your defense attorney to determine whether you have grounds to object.

Another basis for denying the confirmation of sale is that the terms of the sale were unconscionable. For instance, if the fair market value of the property is $450,000, and the property is sold for $50,000, it is likely that the sale was unconscionable. This is even more likely when the only party bidding on the property is the lender. Unconscionability is a complex legal concept, and is another basis for objection that is best discussed with an attorney.

A third reason for denying the confirmation of sale is because the sale was conducted fraudulently. If the lender advertises the sale as taking place at the DuPage County Courthouse, knowing that it is going to conduct the sale in another location, this raises both an improper notice issue and a fraudulently conducted or defective sale issue. Another example is where the lender accepts a payoff amount from the homeowner but still proceeds to sale.

The fourth basis for denying confirmation of sale is that justice was not otherwise done. This catch-all provision can involve many different situations. Before the sale is conducted, it may be possible to find someone who is willing to purchase the property. If the buyer is willing to pay the full judgment amount, it may be possible to deny confirmation of sale, especially if the winning bid at auction would result in a potential deficiency against the homeowner. Some affirmative defenses may also be grounds for denying confirmation of sale. For instance, if you are paying on a permanent loan modification, and the lender proceeds to sale, there is a very solid basis for denying confirmation of the sale. Although it is set to expire at the end of 2012, the IMFL also contains a provision that requires denying the confirmation of a sheriff's sale if the homeowner is being considered for a loan modification under the federal HAMP program when the sale is conducted.

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