What Is a Judicial Foreclosure?

foreclosure, Wheaton real estate lawyersIf own your home, you probably are familiar with the concept of foreclosure. You more than likely know that if you fall seriously behind on your monthly mortgage payments, your lender has the legal right to initiate proceedings through which the lender can seize your home. What you may not realize, however, is that foreclosure is a rather complicated series of steps and that Illinois law mandates that the court system must handle the foreclosure process. This means that every foreclosure in the state is known as a judicial foreclosure.

How Other States Handle Foreclosure

There are 16 states, including Illinois, which require the courts to oversee foreclosures. Five other states use judicial foreclosures almost exclusively—but as a customary practice rather than a legal requirement. Non-judicial proceedings are used in the 29 remaining states, either as just an option or because the law prohibits judicial foreclosures.

In situations where there is no requirement for judicial foreclosure, the mortgage contract will often include a provision that grants the “power of sale” to the lender. This provision effectively allows the lender to foreclose and seize the property without going through the court system. If the homeowner does not make the payments required by the mortgage agreement, power of sale gives the lender the authority to take the home and sell it in an effort to recover the remainder of the loan balance. In Illinois, a power of sale provision is not enforceable.

State or Federal Court

In most cases, a lender will begin a foreclosure by filing a complaint in the appropriate county court based on the location of the property. Lenders have the option, however, of filing foreclosures in federal court instead. Some believe that federal courts act more efficiently on foreclosures that state-level courts do, but others say that it is harder for lenders to sell properties in federal foreclosures. The U.S. Marshall Service handles federal foreclosure sales, while that responsibility at the state level usually falls on the county sheriff’s department.

How to Handle a Notice of Foreclosure

Assuming that you are least four months behind on your payments, you most likely have received a notice of default in the mail. However, when the lender files for foreclosure, you must be personally served with notice of the lender’s filing. You have 30 days in which to file a response to the complaint and summons or the court could enter a default judgment in favor of the lender.

The best thing you could possibly do in such a situation is to immediately call a qualified lawyer to talk about your options. Your strategy for moving forward will depend on your unique circumstances, and it is important to act quickly.

Call a Wheaton Real Estate Attorney for Help

If you are facing possible foreclosure, contact an experienced Wheaton residential foreclosure attorney at Stock, Carlson, Oldfield & McGrath LLC today. Call 630-665-2500 to schedule a confidential consultation with a member of our team. We will help ensure that your rights and best interests are fully protected.

 

Sources:

http://www.mondaq.com/unitedstates/x/241366/Insolvency+Bankruptcy/Is+Federal+Court+Really+a+Better+Place+to+Foreclose

http://www.ilga.gov/legislation/ilcs/ilcs4.asp?ActID=2017&ChapterID=56&SeqStart=107100000&SeqEnd=115800000

Dual Agency in Real Estate – What Every Home Buyer and Seller Should Know About Their Real Estate Agent’s Interests

Wheaton real estate lawyersPeople often assume that a real estate agent is there to represent them and their interests. Sadly, this is not always the case. Neither state or federal law prohibits a real estate agents from having conflicting interests, and some exploit that loophole to the fullest extent possible. Learn more about “dual agency” among real estate agents, including how it could affect your next real estate transaction, and discover how our seasoned Wheaton real estate attorneys can minimize the risks. 

Dual Agency in Real Estate – What It Is and Why It Matters

In an ideal world, a real estate agent would work with only the buyer or the seller – never both. Sadly, dual agency is extremely common among agents. In this scenario, the agent provides services to both the buyer and the seller, and that allows them to keep the entire commission. In short, the only interests they are representing are their own, and that can create all kinds of issues in a real estate transaction. 

As an example, consider a situation in which the seller informs the agent that they recently learned of some foundation issues with the house. Instead of disclosing the full extent of the details to potential buyers of the house, the agent may then downplay the severity of the issue. As a result, the buyer loses money on a house that is unfairly priced.

Avoiding Dual Agency in Your Next Real Estate Transaction 

The one key thing that buyers and sellers can do to protect themselves from the consequences of dual agency is to ensure they know whose interest their agent is serving. Ask them, point blank, if they are representing you exclusively, and if they have a fiduciary duty to do so. These are known as single agents. Other types of real estate agents – most of which you will want to avoid – include subagents, who work with the buyer but have a duty to the seller; transactional agents, who facilitate the transaction but have no responsibility to either party; and dual agents, who are somehow supposed to represent the interests of both parties in a real estate transaction. 

Our Wheaton Real Estate Lawyers Can Protect Your Interests in a Sale or Purchase 

Finding a single agent can be difficult, so not all buyers and sellers can rely solely on the ability to do so. Instead, know that there are other ways to protect your interests during the purchase or sale of a home. The seasoned DuPage County real estate lawyers at Stock, Carlson, Oldfield & McGrath, LLC can help. Call 630-655-2500 to schedule your consultation today.

Source:

https://www.chicagotribune.com/classified/realestate/ct-re-1223-kenneth-harney-20181223-story.html

 

An Overview of Illinois’ Landlord-Tenant Laws

Illinois landlord lawyersWhile, in most cases, a landlord and tenant can complete the term of a lease without issue, there are scenarios in which legal assistance may be needed, either by the landlord or the tenant. Some even require the assistance of an attorney. To help you determine if you might be facing such an issue, consider the following overview on Illinois’ landlord-tenant laws.

Required Leasing Disclosures for Landlords

Under Illinois state law, landlords are required to disclose specific information to tenants. Usually, done through the lease agreement, this information includes: 

  • Utilities that are included in the price of rent (paid by the landlord but billed to the tenant);
  • Rent concessions must be detailed in a very specific manner. If a landlord fails to comply with this law, they could face both civil and criminal penalties;
  • Presence of radon (if applicable). Landlords are not required to test for radon, but if they test and find it is present, they must disclose this to any prospective tenant; and
  • Any local city or county disclosures that may be required by law.

Security Deposit Limits and Returns 

While Illinois state law does not limit the amount that a landlord can charge for a security deposit, it does require that any returns be made in a timely manner (usually 30-45 days after the tenant moves out). If a deposit will not be returned, due to damages or unpaid rent, landlords are encouraged to submit to the tenant an itemized list that explains any charges for which they are responsible. Tenants have the right to dispute any charges that they incur, and they have the right to take the matter to small claims court for up to $10,000 in unreturned deposits, but the assistance of an attorney is recommended for this process. If the landlord does not return a deposit but holds it for six or more months, they may be responsible for paying the tenant interest on any unreturned security deposits. 

Notice Requirements on Price Changes, Evictions, and Lease Termination

Certain rent and leasing notices are regulated by state law, including increases to rent prices, evictions, and termination of tenancy. Specifically, landlords must notify tenants:

  • 30 days prior to a change in rent prices;
  • 5-10 days to pay rent before filing for eviction for a non-payment of rent; and
  • 10 days for a notice to end tenancy when a term of the lease has been violated.

Tenant Protections and a Landlord’s Right to Access Property

State law also protects both landlords and tenants in certain situations. For example, a landlord has the right to inspect the property, but they must provide the tenant with advance notice before entering the property. There are also laws regarding how a landlord must handle property that has been abandoned by a previous tenant. Protections for tenants who are victims of domestic violence or have certain disabilities are also covered under Illinois’ landlord-tenant laws. 

Our DuPage County Real Estate Attorneys Can Help with Your Landlord-Tenant Issue

Backed by more than 40 years of legal experience, Stock, Carlson, Oldfield & McGrath, LLC can assist with your landlord-tenant issues. In every situation, we strive for the most favorable outcome possible. Contact our Wheaton real estate lawyers at 630-665-2500 to schedule your consultation today. 

Sources:

http://www.ilga.gov/legislation/ilcs/ilcs3.asp?ActID=2913&ChapterID=37

http://www.ilga.gov/legislation/ilcs/ilcs3.asp?ActID=2206&ChapterID=62

http://www.ilga.gov/legislation/ilcs/ilcs3.asp?ActID=2208&ChapterID=62

http://www.ilga.gov/legislation/ilcs/ilcs3.asp?ActID=2202&ChapterID=62