Foreclosure Defense

Once mortgage payments stop because you simply don't have enough to pay them, your home will probably be foreclosed upon. A foreclosure occurs when a lender repossesses a debtor's home and the debtor loses their home. However, bankruptcy may not be the best option for you either. We can assist you. Our strategies have helped hundreds of homeowners remain in their homes in order to work out a resolution with their lender(s) or obtain the necessary time to save money and escape from their underwater home with no liability!

Below is a description of our services and how they can be utilized to defeat a foreclosure action against your home.

Commercial Foreclosure Defense

Sweis Law Firm provides a full service foreclosure defense representation for commercial land owners facing default on their loans. These services include loan restructuring agreements, forbearance plans, loan purchase agreements and short sale transactions.

Many lenders foreclosing on an income generating property seek the appointment of a receiver to manage and collect the rents from the property while the foreclosure is pending. Few land owners realize that the appointment of a receiver is not automatic and a valid defense to the loan default may prevent the appointment of a receiver. This means that some land owners may maintain possession of their property and manage their clients without interruption from the lender during the foreclosure process. Moreover, some land owners utilize our defense strategies to negotiate a resolution with their lender and minimize their back end liability.

These services apply to the following types of commercial properties:

• Residential apartment complexes
• Commercial retail plazas or strip malls
• Gas stations
• New construction project

Predatory Lending

Your mortgage may have been procured through a number of illegal sales tactics and improper disclosures that may have directly led you to default on your mortgage. There are multiple state and federal laws that require lenders to originate loans fairly and accurately without deceiving the borrower into signing a note and mortgage they cannot afford.

Some of these laws include: Truth in Lending Act (TILA); Real Estate Settlement Procedure Act (RESPA); Home-Owner Equity Protection Act (HOEPA); Illinois Fairness in Lending Act; and the Illinois Consumer Fraud and Deceptive Business Practices Act. We will screen your loan to determine whether their may have been a violation of these statutes and other laws affecting your mortgage.

Foreclosure Process

The Illinois Mortgage Foreclosure Act governs the procedure and manner in which real estate is foreclosed upon by creditors. The statute provides for various rights for the borrower at all stages in the foreclosure process. Further, the newly amended statute also allows the court to award borrowers their reasonable attorney's fees and costs if they prevail on any motion, defense, claim or in the foreclosure action itself.

Upon being served with a foreclosure complaint, the borrower has ninety (90) days to bring their payments current. This is known as the right of reinstatement. This right not only helps delay the pace at which the lender may proceed but also allows for the borrower to negotiate a possible loan modification, deed-in-lieu of foreclosure, consent foreclosure or develop a series of defenses to potentially defeat the foreclosure action.

A similar right which comes after a judgment is entered is known as the right of redemption. Typically, a borrower will have ninety (90) days to "redeem" the property by paying off the mortgage balance in full. The amount to be paid off will vary depending on the how much success the borrower had in defending the foreclosure before the entry of judgment.

The Mortgage Foreclosure Act even allows the borrower to contest the lenders sale of the property to ensure that the sales process was carried out to the fullest extent of the law. What most homeowners do not know is that you own your own home until the lender has the judicial sale approved. This is the last step of the mortgage foreclosure process. This is because Illinois follows the "lien-theory" of mortgages, which holds that when a borrower conveys a mortgage to a creditor the creditor's interest in the property is subject to the borrower's title to the property. This is why lenders have to sue to acquire their interest in the property and not simply throw you out of your home.

Deed-In-Lieu of Foreclosure

Deed-in-lieu is a process in which the borrower failing to satisfy the loan obligation hands over his property to the lender. The lender may then sell the property in order to retrieve a part or whole of the amount borrowed from the sale proceeds. The principle advantage to the borrower is that it immediately releases him from all of the personal indebtedness associated with the defaulted loan.

So, you the lender effectively waives its right to pursue you for any debt associated with your mortgage. Sometimes this objective is achieved during the foreclosure proceedings through defenses, and other times it can be negotiated to prevent the filing of a foreclosure complaint. It is important for the borrower to obtain an attorney to proceed with a deed in lieu of foreclosure in order to avoid legal and tax consequences.

What is a deficiency judgment? Is there a way to avoid a deficiency judgment?

A deficiency judgment is a judgment lien against a borrower whose foreclosure sale did not produce sufficient funds to pay the mortgage in full. It is possible for a borrower to avoid a deficiency judgment but it is not guaranteed.

It is important for the borrower to obtain an attorney to proceed with a waiver of deficiency judgment in order to avoid legal and tax consequences.