USFN | IL: New Procedures re Payoff Letters, Cook County Orders Approving Sales, and Cook County Evictions

IL: New Procedures re Payoff Letters, Cook County Orders Approving Sales, and Cook County Evictions

by Jill Rein
Pierce & Associates, P.C. - USFN Member (IL)

Illinois — Payoff Letters
One of the new amendments to the Illinois mortgage foreclosure law concerns payoff letters. Under the new law, when a borrower, or the borrower’s agent, makes a written request for payoff figures, a payoff statement containing the following must be delivered to the borrower, or the borrower’s agent, within 10 business days of receipt of the request and it must contain the following information:

▪     The total outstanding balance of the borrower’s obligation as of the date the letter is prepared;
▪     Information necessary to calculate the payoff amount on a per diem basis for 30 days after the date of preparation, or the date of sale, whichever is shorter;
▪     Estimated charges (that are stated as estimated charges) that the mortgagee reasonably believes may be incurred within 30 days of the date of preparation;
▪     The loan number;
▪     The address of the mortgagee;
▪     The telephone number of the mortgagee;
▪     If a banking organization or corporation –
      o    the name of the department preparing the figures;
      o    the phone number of the department preparing the
            figures; and
      o    The facsimile number of the department preparing
            the figures.

Failure to comply with the provisions of this section can subject the mortgagee to actual damages, or a $500 fine if no actual damages are sustained, for each violation.

Cook County Courtroom Procedures
On November 11, 2008, the Cook County Illinois Foreclosure Courts came out with revised courtroom procedures. Following are new requirements under these procedures:

Additional Information Needed for Scheduling of Orders Approving Sale— In order to schedule an order approving sale, the motion and the corresponding order must contain information setting forth the type of property (single family/multi-unit/individual unit in multi-unit/commercial) and the date of the last inspection (occupancy/tenant check).

The type of inspection the court is requiring is detailed written proof of a diligent attempt to ascertain the names of the current occupants of the property. A drive-by or an inspection that simply advises that the property is occupied is insufficient; the inspection must include proof of attempts made to ascertain the names of the current occupants of the property.

The inspection must take place and the results provided to your lawyer prior to scheduling the order approving sale. Accordingly, this inspection needs to take place right around the sale date. The author’s firm can set-up, manage, and monitor this required inspection/occupancy check with outside vendors, ensuring that the inspections are done correctly, timely, and in compliance with the court’s rules. If a lender or servicer chooses to handle these inspections itself, it must provide its attorneys with the required information, at the required time, to enable scheduling a timely order approving sale.

Evictions — Under these new courtroom procedures, a law firm that has been referred an eviction, but that did not handle the foreclosure, must file an additional appearance or present the court with a substitution of counsel order before that law firm can place the order for possession with the sheriff to evict. To accomplish either of these options, the law firm hired to handle the eviction must file and schedule a motion for leave to file the additional appearance or substitution of counsel, and appear before the court to have the motion heard. Depending on the availability of court dates before the different judges, this new procedure may delay the placing of some eviction orders with the sheriff. An additional appearance or substitution of counsel order is not needed if this author’s firm is proceeding with a separate forcible detainer action as opposed to placing the order of possession from the foreclosure case with the sheriff.

Additionally, this author’s firm has learned from the sheriff’s office that it has put some new internal procedures in place. When an eviction is placed with the sheriff’s office, the first action it takes is to send two deputies to “post” the property. The date for this is not given, and it is a preliminary step. The purpose of this initial visit is to post notices on the property advising of the pending eviction, not to attempt an actual eviction. The second step is a second visit to the property (this is on the date given as the initial lock-out date). If the individuals named on the order are in the property, they will be evicted; however, if no one is home, the property will be posted again. Also, if individuals are in the property who are not named in the order for possession, the eviction will be canceled (at that time a forcible detainer action must be pursued with the names of the new occupants).

If no one was home the second time, the sheriff will visit a third time and the same thing will happen as on the second visit: If the individuals named on the order are in the property, they will be evicted; however, if no one is home, the property will be posted again. Also, if individuals are in the property who are not named in the order, the eviction will be canceled (at that time a forcible detainer action must be pursued with the names of the new occupants).

If no one was home the third time, the sheriff will visit a fourth time. This time, if the individuals named on the order are in the property or no one is home, an eviction will be completed; however, if individuals are in the property who are not named in the order, the eviction will be canceled (at that time a forcible detainer action must be pursued with the names of the new occupants).

The time between each visit is at least seven days. This is a new process for the sheriff’s office, which it plans to evaluate after a few months.