On January 18, 2017, Senator Pamela J. Althoff introduced a bill in an effort to essentially eliminate the due process rights of individuals in Illinois foreclosure courts. This bill, Senate Bill 0192, which is available here: http://www.ilga.gov/legislation/BillStatus.asp?DocTypeID=SB&DocNum=192&GAID=14&SessionID=91&LegID=100107 mandates that when a foreclosure lawsuit is filed, the bank essentially is presumed to have the right to take your property away upon offering evidence of (1) the mortgage and (2) the note (i.e. any proof of a mortgage debt). The bill attempts to place a huge hurdle upon individual’s in distressed homes including a requirement that an individual that owes money on a mortgage prove that he made payments on a debt. The only way to challenge the bank is in a court house through the complicated court systems. If a person who owes a debt on a mortgage is not successful in navigating the complicated legal system, then they will “waive” the right to challenge the banks claims. I want that to really sink in with the reader. If you don’t know how to use the legal system (and most don’t without a lawyer), then the bank can win the lawsuit, even if what they say is not true.
For example, let’s say that you have been making payments on your mortgage loan for years. However, one day you come home to find that the bank is telling you that you haven’t paid the mortgage, even though you have. A bank eventually files a lawsuit based on its false representations and attaches a copy of the mortgage and note that you signed with the original bank. This bank isn’t even a bank that you’ve ever heard of. Without a lawyer, you show up and try explaining to the judge what is going on. The judge tells you to file an “Answer.” Without the assistance of counsel, you do the best you can, but you do it wrong by failing to raise a defense of standing and failing to raise applicable defenses based on your payment of the loan. Based on my experience working with clients 99% of the time, they do it wrong. You hire a lawyer because the bank just won’t stop suing you. An experienced lawyer comes in and tries to unwind your answer to argue that, in fact, you paid your mortgage and the bank should not be suing you. At this point though, if this law is passed, it doesn’t matter because you “waived” this issue.
Also, because all a bank has to do is attach a mortgage and note to the lawsuit, this new bank has now put the burden on you to raise a defense that it is not even the bank that should be suing you. Your experienced lawyer issues discovery and demands this new bank provide documents and proof that it actually obtained rights to your mortgage. This new bank refuses and argues that it has “proven” that it can take your home by attaching the mortgage and note to the lawsuit it filed. Your lawyer goes to the judge to ask that the judge force the bank to give you information and documents. The new bank tells the judge that you did not file a defense of “standing” and that, because of the new law, they don’t have to give you any documents and the judge agrees. Your lawyer is now stuck. Your lawyer needs the documents to challenge the bank’s ability to file the lawsuit. There is also no other good way for your lawyer to find out this information or get the documents because the bank is the only place that has the information and documents. Trust me, the bank is also not going to help you out by just giving you these documents.
So, in the end, even though you paid the bank the mortgage and even though this new bank that you’ve probably never even heard of is suing you, you lose your home and end up owing the bank a ton more money in late fees, fees, court costs, and in their lawyer’s legal fees.
Also, to be clear, this is not an outlandish hypothetical situation. There are people in this state that are presented with these situations, including clients I have represented.
It is also not a situation that wasn’t contemplated when the bill was introduced. According to a source that spoke with Senator Pamela Althoff herself, the senator introduced the bill when a bank’s attorney in her district called her and complained and asked that she propose language to help large corporate banks foreclose on people easier.
I wonder if this Senator would agree that the bank’s lawyers primary concern about making it easier for the large corporate banks to take people’s homes away should not be a priority deserving of her time and effort?
Our justice system may not be perfect, but one thing that both the bank’s attorneys and a foreclosure defense attorney did is swore to the U.S. Constitution and the Illinois Constitution. It is a fundamental principle and right of the people of this great state, and of our nation, to not be deprived of life, liberty, or property, without due process of law. This bill is nothing less than an attempt by the big corporate banks to deprive all people in the state of Illinois of that most fundamental and sacred right.
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