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Amendments to Illinois Mortgage Foreclosure Law

by Diana Athanasopoulos
Pierce & Associates, P.C. - USFN Member (IL)

One of the amendments to the Illinois Mortgage Foreclosure Law that went into effect on January 1, 2009, includes a provision (735 ILCS 5/15-1510 (a) Attorney’s Fees and Costs), which authorizes the court to award reasonable attorneys’ fees to a defendant who prevails on a motion, affirmative defense or counterclaim, or in the foreclosure action. This section does not apply if a borrower reinstates or pays off in the normal course. The section does not prevent the collection of fees and costs pursuant to the terms of the mortgage.

The foreclosure statute states that a copy of the mortgage and mortgage note must be attached to the complaint to foreclose mortgage (the first legal document). It is not yet known how the judges will interpret the new fees and costs section, but we do know that a copy of the mortgage and note or executed lost note affidavit must be attached to the complaint to foreclose mortgage. Therefore, if a copy of the mortgage note or a properly executed lost note affidavit is not provided at referral, the law firm will not be able to file its first legal action.

There is also debate as to whether the note endorsements have to be included in the documentation. Several law firms believe that this is necessary. This author’s firm urges that the lender’s or servicer’s referral department include not only a copy of the mortgage note at referral, but also the endorsements to the note, to ensure that files are not delayed. Original documents are still not needed, only copies.

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January e-Update