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Do I Need A Foreclosure Attorney In Illinois?

Updated on
December 7, 2020
Article written by
Attorney Kevin O'Flaherty

In this article, we will discuss whether or not you should hire an attorney when going through a foreclose in Illinois. We will answer the following questions:


  • At what point should you consider hiring an attorney?
  • Can an attorney help you avoid foreclosure?
  • What defenses can an attorney use to help you avoid foreclosure?
  • When is an attorney unnecessary during a foreclosure?


When facing foreclosure, there are few questions you should ask yourself before taking any action. Do I want to keep my home? Do I have any legitimate defenses against foreclosure? Even if I want to keep my house, can I afford the payments in the future? Can I be present or easily accessible during the foreclosure process? You may not have the answer to all these questions, but you should still consult with an attorney for peace of mind in most cases. The foreclosure process is complicated, but an attorney can help you understand the problematic parts and ease some of your fears.


At What Point Should You Consider Hiring An Attorney?


Lenders are required to communicate with delinquent borrowers. Homeowners that are behind one or more payments should expect to receive notification of their delinquency, loss mitigation strategies, and a notice of intent to begin foreclosure (usually called a "breach letter"). To read more about this process, check out "What Are My Rights In An Illinois Foreclosure?"


Suppose you already know that foreclosure is inevitable. However, you still want to keep your home or explore your legal and financial options. In that case, you should contact an attorney as quickly as possible. As the foreclosure process gets farther along, it becomes increasingly difficult to negotiate with the lender or initiate legal action to reverse the process. And once your house is foreclosed, it is nearly impossible to get it back. 


If you want to challenge the foreclosure, you must understand how to correctly fill out and file the correct documents with the courts before the deadlines pass. Furthermore, without an attorney, identifying any violations committed by the lender will be extremely difficult. Your attorney will help you navigate the process, choose the best option for your situation, and possibly help you avoid foreclosure altogether.


Can an Attorney Help You Avoid Foreclosure?


An attorney provides many benefits during the foreclosure process, including:


  • Getting Your Loan Modified. Your attorney will work with the lender on your behalf to get your loan modified. Modifications might include lowering your interest rate, extending your amortization term, or other loss mitigation options. The attorney will also review any proposed modification from the lender to ensure the modification is in your best interest and there are no illegal charges or hidden fees.
  • Hold The Lender Accountable. Believe it or not, lenders are not always helpful when communicating your options for loss mitigation. Furthermore, lenders may try to skirt specific deadlines or fail to inform you that a deadline exists. For example, federal law states that if you provide the lender with a completed loss mitigation application, the lender must consider the application, respond, and allow your response before moving forward with the foreclosure.
  • Represent You In Mediation. Foreclosure mediation involves you and the bank sitting down to work out a plan to avoid foreclosure. Your plan might include modifying your loan or some other loss mitigation strategy. Your attorney will negotiate with the lender to make sure you're not getting a raw deal.
  • Help You File Chapter 13 Bankruptcy. Filing Chapter 13 bankruptcy is a common loss mitigation strategy that homeowners can use to avoid foreclosure. However, it is time-consuming and complicated. An experienced attorney can ensure you get the most out of your bankruptcy filing.


What Defenses Can An Attorney Use To Help You Avoid Foreclosure?


Unless you're well-versed in a mortgage lender's inner workers, identifying defenses available to you or violations committed by the lender is unlikely. Some potential arguments include:


  • The foreclosing party is unable to prove it owns the mortgage debt. The lender doesn't have the "standing" to foreclose on your property; this is very unlikely unless the bank lost all the paperwork associated with your loan.
  • The loan servicer employed by the lender, or the lender itself, breached the mortgage contract. An example of this includes the bank failing to acknowledge payment.
  • You are an active military member that has protection from foreclosure under federal law.
  • Your lender failed to follow the proper state procedures for foreclosure, such as not giving you adequate notice or failing to inform you about your loss mitigation options.


Identifying these and any other defenses and successfully preparing the paperwork and evidence to support your argument takes significant time and knowledge, something that a homeowner may not have.


When Is An Attorney Unnecessary During A Foreclosure?


There are a few instances where an attorney probably isn't necessary for a foreclosure:


  • You want to stay in the home a little while longer and don't care if it goes to foreclosure. Even if you've failed to make whatever number of payments, you still own the home until it is sold in foreclosure and the new owner receives the title. However, the lender may try to take certain actions to remove you from your home earlier. In this case, an attorney is highly recommended.
  • No defenses exist in your situation. Maybe you already know that your attorney will have no protection against your foreclosure. Unless you want to explore your loss mitigation options, you probably don't need an attorney.
  • You can't afford your home now, and there is no way you'll be able to in the future. In this situation, there's little you can do. You can still apply for loss mitigation to stay in your home a little longer. Still, it only serves to delay the inevitable. 


Bottom line, if you're facing foreclosure and find yourself wondering what to do next, reach out to learn about your potential legal options. You may be surprised by what you learn.


Do I Need A Foreclosure Attorney In Illinois?
Author

Attorney Kevin O'Flaherty

Kevin O’Flaherty is a graduate of the University of Iowa and Chicago-Kent College of Law. He has experience in litigation, estate planning, bankruptcy, real estate, and comprehensive business representation.

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