1. I received a complaint from the sheriff when do I have to move out?

When a foreclosure complaint is filed by the attorneys representing a borrower’s bank the first step in the legal process is to make sure that the foreclosure complaint is “served” on the borrower. This means that the borrower must receive a copy of the complaint which presents all the accusations against that person – usually for non-payment of the mortgage. Under Illinois law there are very strict guidelines for the manner that such delivery may be accomplished. When the document is delivered to a borrower the court case is just BEGINNING. Before everything is finished a period of anywhere from six to twelve months will go by. During this time period you are entitled to full control of the property. You may continue to live there and the bank nor its representatives can interfere with that. Any steps to end your right to own and live in the property will be provided to you in writing.

  1. I filed a loan modification or short sale application WILL the foreclosure has been put on hold?

Unless you are provided notice, in writing, from your lender that they have placed the court case on hold do not fall into this trap. We often hear this statement from our clients – either when we represent them in a loan modification, short sale or are defending them in court against the foreclosure. Unless you have it in writing there is no basis to believe this statement. Even then make sure to check with the court where your case was filed as to the status of the case. Unfortunately, in too many cases we have seen that the attorneys for the bank have continued to pursue the foreclosure in court despite the banks statement that the court case has been stopped. Please remember to also follow the rule of checking the court case frequently if you are in the middle of a trial period for a loan modification. Just because such a loan modification has been accepted by your lender it does not mean that the foreclosure has been cancelled or stopped. There have been cases where properties have been sold at sheriff’s auction of borrowers who were in the middle of a trial period for their loan modification,

  1. My home is scheduled for sheriff’s sale and I filed a loan modification with the bank but they have not answered yet is there anything I can do to keep from losing my home while waiting for the bank to answer?

As I stated above a loan modification or short sale application does not stop a foreclosure from either being filed against your or for the bank’s attorneys to continue foreclosure proceedings already in court. However, in a case where a short sale or a loan modification has been filed there is a legal basis to file a motion with the court in order to have the sheriff’s sale cancelled or postponed until the loan modification or short sale process is completed. However, please remember that this court procedure provides for a limited window to COMPLETE the loan modification or short sale. It is not available in most cases if you have not filed at all. Since the time period most judges will stop or cancel the sale is usually very limited this is a useful tool for people who started the process much earlier before the motion was filed.

  1. If I just let the bank take my home in court and then move out will the bank have any right to go after me after that?

Under the Illinois Mortgage Foreclosure Act, the law that controls the legal rights of banks seeking to foreclosure against borrowers who have failed to pay their mortgage or mortgages, there exists a provision for a “deficiency judgment”. This allows the bank to request the court to enter a money judgment against the borrower for any difference between the total amount of the debt (this includes interest, penalties, court costs and attorneys fees) and the amount of the bid made for the property at the sheriff’s auction. Such a judgment is fully enforceable in any county in Illinois, in a state of the United States and may be fully enforced in the European Union and in Poland. It will be reported to all credit bureaus. Therefore, simply ignoring a foreclosure in the hope that it will go away and you will not be responsible to your bank for any money is a false hope. However, there are ways, during the court process, to escape from the this trap. However, you must consult an attorney to discuss what these measures may be and whether you are eligible to take advantage of them.

  1. If I file a loan modification with the bank before they start the foreclosure in court will that stop the court action?

Unfortunately, the answer in most cases is no. The mortgage that each of us signed at the time of the closing for the purchase or refinance of the home states that if we are late thirty (30) days with our payment on the thirty first (31) day we are considered “in default.”  This means that on that 31st day the bank can start foreclosure proceedings. In the real world most banks do not work that quickly. But just because they are slow does not mean that they do not have the right to foreclose.  The filing of a loan modification application with the bank does NOT in any way stop the bank’s right to file a foreclosure. It is completely in the discretion of the bank when and if they file.  If they decide to do it then the attorney’s of the bank will do everything in their power to make sure that the foreclosure is complete as quickly as possible. We can safely say that once the foreclosure is filed in court the bank’s attorneys are in a race with your loan modification. The first to get to the finish line (either a foreclosure or a permanent modification) will prevail.


The experienced lawyers and staff of the Law Firm of Wator and Zac, LLC face these and other tough questions related to foreclosures every day. If you are facing any of the above issues or others related to a foreclosure, loan modification, sheriff’s auction, short sale or any other question, please contact our offices at the number below. We will be glad to answer questions over the phone or make an appointment for a consultation at one of our convenience offices. For further information about the lawyers on our staff or what areas of the law our firm specializes also please visit our website at www.4legalbasics.com.