I should have known...

[TRfromillino]

Since the trustee and I are 'owners' of my house, I wish I could ask his opinion...

[Pjmax]

I am in Illinois as well and it's a judicial state. If I were you, I wound get a free consult with an attorney who specializes in foreclosure defense. They can answer your questions better than that attorney you have. If you are in the Chicago area, PM me and I'll give you my lawyers info(we r doing foreclosure defense right now). Good luck!

TR, I really think you should take advantage of ID's offer. You've known from day one that your attorney is not on your side. Please consult another attorney.

[TRfromillino]

Pj, I did send ID a message...waiting to hear back.

[tobee43]

Opened up my Pacer account this morning just to check and see if anything had changed....well, it had big time.

Evidently yesterday my bank filed a motion to lift the stay on my mortgage, stating that I had put on my original documents that I had intended to reaffirm, but then changed my mind at the 341 meeting. And they do not believe that I am solvent enough to repay that note. I am current with them. They also filed a NOD! *sob* I have until the 3rd of May to respond. I guess I'll be in touch with my lawyer this morning to see what happens next. I really believed that as long as I was current on my payments, that they would just let me pay like I have been. Not at all something I needed to see this morning and I don't know what going to happen now. Scared...

i have read a few odd things about Ill...first they are in fact a judicial state, which means there must be a court process that must be followed. usually your proper notifications i.e. a NOI...notice of intent to foreclose...first...and that's usually after a few threatening letter from atty rep'ing the bank. secondly, with a judicial state you do have an opportunity to fight of see if you can talk the presiding judge to request a mediation. most states are 35 days to answer the summons an some are 30 days. so you can fight this. judges really don't like throwing people out in the street...(anymore).

here's a bit more about your state and the way it works. i found it odd, because although it is in fact a judicial state some actions are not treated as such: (i hope it may help a bit).

"Quick Facts

- Judicial Foreclosure Available: Yes

- Non-Judicial Foreclosure Available: No

- Primary Security Instrument: Mortgage

- Timeline: Typically 210 days

- Right of Redemption: No

- Deficiency Judgments Allowed: Yes

Lenders in Illinois have a number of options available to them to foreclose on a mortgage in default.

Judicial Foreclosure

A notice of the lenders intent to foreclose must be given to the borrower, and any other person entitled by Illinois statutes to receive notice, at least thirty (30) days prior to the courts judgment of foreclosure.

If the court finds in favor of the lender and issues a notice of sale, the sale will be conducted on the terms and conditions specified in the notice of sale, provided they meet the minimum standards provided in the Illinois Statutes.

The sheriff or any judge within the county where the property is located may conduct the sale. The borrower has no rights of redemption after the foreclosure sale.

Deed in Lieu of Foreclosure

If the borrower has defaulted on the mortgage and the lender agrees, the borrower may simply give the deed to the lender and his interests in the property securing the deed will be terminated. If the lender agrees and accepts the deed, they may not seek to obtain a deficiency judgment against the borrower at any time afterward.

Consent Foreclosure

In this type of foreclosure, the court enters a judgment satisfying the mortgage by giving absolute title to the property secured by the mortgage to the lender. The borrower has no rights of redemption after this type of foreclosure judgment has been rendered and the lender may not file for a deficiency judgment.

Lenders may also foreclose on a mortgage in default by using the common law strict foreclosure method, but Illinois law does not permit non-judicial power of sale foreclosures. "

[TRfromillino]

Well, I contacted a law group specializing in foreclosure in the Chicago area and I'm waiting for them to call me back. Might not be today. A second opinion might not hurt but I still don't have a clue as to whether or not it's the right thing to do. The whole thing with the bank coming at me so strong has thrown me for a loop. After reading the document again, the whole thing reads like it's out of an ipso facto book, which I didn't think was enforcible 99% of the time. My 'default' is not because I didn't pay my mortgage, but because I filed bankruptcy. I suppose another thing I should do, is contact my lawyer and have him check with the banks lawyer and make sure they will even take the reaffirmation should I send it.

[LadyInTheRed]

Well, I contacted a law group specializing in foreclosure in the Chicago area and I'm waiting for them to call me back. Might not be today. A second opinion might not hurt but I still don't have a clue as to whether or not it's the right thing to do.

Getting the opinion of an attorney with foreclosure experience could not possibly be the wrong thing to do.

[ld2366eh]

I sent you a PM with my attorney's information. Good luck!!!

[TRfromillino]

I got your message ld, and I'll try him tomorrow. I just want one decent person lawyer in Illinois to tell me what is right and wrong! That's all! I can't believe they want to take my house because I filed bankruptcy! I felt I was only default if I didn't pay...

LITR, according to my lawyer, the only right thing to do is reaffirm....

[LadyInTheRed]

LITR, according to my lawyer, the only right thing to do is reaffirm....

Which is why you need to consult with a foreclosure attorney. You said in a post a while ago that you didn't want to reaffirm, regardless of the consequences. So, if they get relief from automatic stay and start foreclosure, it is a foreclosure attorney who can tell you whether the Ipso Facto clause is enforceable.

Don't forget that it is possible that the bank is trying to scare you into reaffirming and won't go though with the foreclosure even if they do get relief from the automatic stay.

[Drazil65]

LITR, according to my lawyer, the only right thing to do is reaffirm....

The right thing? For who? It is your decision and yours alone. I think they are strong arming you and forcing you into a situation. Personally I would not do it. If they proceed with foreclosure then stop paying and start saving to move. Seems strange that they would rather go without the monthly payments and foreclose but I guess its their decision, stupid but theirs.

[TRfromillino]

Well, I have to say that I've never been 'yelled' at in an email before, but I do believe my lawyer did just that this morning! I emailed them a simple question asking if they thought it would be a good idea to check with the banks attorney to see if they would even still accept a reaffirmation should I sign and send? A simple yes, no, or we don't need to do that would have been sufficient. lol I recieved an email back stating that he does not deal in hypotheticals or 'what-if's'. If I want to reaffirm, then sign and send and then he'll contact the banks lawyer then. Well what if the bank says no? lol

I've contacted ld's attorneys office and left him a message to call me after I get off work, so I can hopefully get a second opinion.

[bookworm]

Well, I have to say that I've never been 'yelled' at in an email before, but I do believe my lawyer did just that this morning! I emailed them a simple question asking if they thought it would be a good idea to check with the banks attorney to see if they would even still accept a reaffirmation should I sign and send? A simple yes, no, or we don't need to do that would have been sufficient. lol I recieved an email back stating that he does not deal in hypotheticals or 'what-if's'. If I want to reaffirm, then sign and send and then he'll contact the banks lawyer then. Well what if the bank says no? lol

Geez! What an ass.

Sorry, I have nothing helpful to add. I'm just sorry this is happening to you.

[LadyInTheRed]

I've contacted ld's attorneys office and left him a message to call me after I get off work, so I can hopefully get a second opinion.

Excellent. Remember, that the point in contacting this attorney really shouldn't be to try to stop the relief from stay. Focus on the quesiton "If they foreclose when I have continued to make timely payments, can they enforce the ipso facto clause because I filed BK and did not reaffirm the mortgage."

[TRfromillino]

Unfortunately neither of the attorneys want to discuss another attorneys work without $150 consultation fee. I don't have that. Guess I'm done... They do a free consultation with the expectation of being hired, which I understand, but I tried to tell the girl that it was a possibility that it could happen that way, but no go.

[doni49]

Unfortunately neither of the attorneys want to discuss another attorneys work without $150 consultation fee. I don't have that. Guess I'm done... They do a free consultation with the expectation of being hired, which I understand, but I tried to tell the girl that it was a possibility that it could happen that way, but no go.

Call them back and tell them that if the bank DOES pursue foreclosure, you have no intention of using the same attorney (I'm sure this guy will charge you additional fees and given the way he's treated you, I doubt you'd want to) which means that you'd be looking for a new attorney and you called their office based on an acquaintance recommendation.