Filing an “Appearance” in a Foreclosure court
How to begin defending your home from foreclosure
The foreclosure process can take years, but if it goes quickly, a family can be evicted in seven months. Too many people believe that simply showing up to court and explaining their situation to the judge will stop the foreclosure process. What the judge and the lawyers to do not tell them is that even if they show up in court, the court can still grant the bank’s lawyer a DEFAULT JUDGEMENT OF FORECLOSURE, meaning that because there was no response from the owner of the home, the judge agrees with the bank’s lawyers that the foreclosure is valid.
This process can be slowed down if the homeowner files an APPEARANCE and a VERIFIED ANSWER TO FORECLOSURE COMPLAINT. The first lets the court know that you are representing yourself PRO SE and the other allows you to respond to the bank’s arguments in favor of foreclosure. Filing these documents is not a fool-proof solution to foreclosure, but it can slow down the process by letting the court know that you want to challenge the bank’s foreclosure efforts. All of this can be done at the Daley Center, 50 W Washington.
Filing these documents is not right for everyone. If you were not properly served with foreclosure cases court papers, filing anything in addition to an appearance will make it difficult to bring this up in court. If you were not properly served, discuss a “Motion to Quash” with an attorney or with the Chancery Advice Desk volunteers in Room 1303. Do NOT file anything that discusses the facts of the case or talk about the facts of the case in Court before filing the Motion to Quash. Even in court, you can politely say, “Your Honor, I was not properly served and am not saying more because I do not want to waive my rights.” The Judge will understand this perfectly. Also, filing an appearance is not a good idea for tenants, as the bank can move even more quickly to evict them if it knows exactly who is living in the home. Instead, tenants should contact the Lawyers Committee for Better Housing 312-327-7600 for legal advice. Another useful resource is illinoislegalaid.org (ayudalegalil.org)
- File a Fee Waiver form: there is a fee to file an appearance, but you can have that fee-waived if you file the correct paper work
- Go to the Chancery Division on the 8th floor of the Daley Center. At the Motion Counter #4, ask for a Fee Waiver form.
- You should get a form titled, “Application and Affidavit to sue or defend as an indigent person.” Fill it out, copying the information at the top of the papers (“the caption”) the bank served upon you. Take it to the 28th floor, court room 2802. Wait to be called on. The judge will verify your form and grant you a fee waiver if you qualify.
- File an Appearance and Owner’s Answer forms:
- Go to Chancery Division on the 8th floor of the Daley Center. At the Motion Counter #4, ask for an Appearance form and an Owner’s Answer.
- Fill both of them out. On the Appearance, be sure to check off box “0904 – Fee Waived.” On the Owner’s Answer, respond directly to the claims in the Foreclosure. NEVER check #3, which says you don’t have information to admit or deny. The Judge will say this is the same as admitting the information, and the foreclosure against you will go much faster. In #2, fill out the numbers of the paragraphs the bank has wrong. Fill in any correct information you know. For example: “I deny paragraph #3 that I owe $50,000.00. In the affirmative, I owe only $48,000” OR “I deny I defaulted in November; in the affirmative, I paid my mortgage through at least December.”
- Take both forms and the fee waiver to the Chancery Division cashier. Be sure to keep a copy of the forms for yourself. Have a copy of the Appearance delivered to the bank’s lawyers by hand, mail or fax.
Filing a Motion in Foreclosure Court
How to continue to defend your home from foreclosure
Filing a Motion is a way for the homeowner to raise issues in court. Sometimes, it is also a last ditch effort to have your story heard in court. In a few instances, this tactic can save your home. In most cases, it is an opportunity to slow down the process. Because of the way the law is written, homeowners who defend themselves in court face a difficult process.
These are ways to start defending your home, but defense is not enough. Consider your efforts in Court and your work organizing your neighbors like two “tracks.” One is offensive and the other is defensive. You want to keep both the defensive track of fighting in court and the offensive track of working with community groups to put pressure on your lender, going at the same time until your home is secure.
- File a Fee Waiver and Appearance: See above about “Filing an ‘Appearance’ in a Foreclosure case.”
- File a Notice of Motion, a Motion and Get a Court Date: Once you have filed a fee waiver and an appearance, you can file a motion on your own behalf, pro se, at no cost
- Go to the Chancery Division on the 8th floor of the Daley Center. At the Motion Counter #4, take a Notice of Motion, a Motion form and Motion slip out of the wire bins.
- Fill out the Notice of Motion form. If it is convenient for you to get to the offices of the bank’s attorney by car or on foot, fill out the form for “Proof of Service by Delivery.” If it is inconvenient for you to travel to the office of the bank’s attorney, plan to mail your forms and check off “Proof of Service by Mail.”
- Fill out the Motion form. Be sure to specify and explain what the Motion is for in your own words. Here are some examples:
- Vacate Judgment of Foreclosure: The judge has agreed with the bank’s claims of foreclosure, but it has not been sold yet. You want the judge to go back on that ruling.
- Stay Sale of Property: Your home is about to be sold at auction. You want the judge to stop the sale because key information has been overlooked in your case.
- Vacate confirmation of sale: the house has been sold and there has been a hearing to confirm the sale. You want the judge to undue that confirmation because there is key information that has not been seen.
- Take the Motion Form and the Motion Slip to the cashier and have them stamped that the fee has been waived.
- If you do not need a hearing within two weeks, fill out the Motion Slip to get a court date. In Calendar, check the name of the judge on your court papers and find his/her number on the calendar sheet taped to the desk next to the wire bins. Use the judge’s schedule to figure out which days he/she will be available and request a date on this form. Take this form to Counter #4.
- If you do need a hearing in two weeks, go to the clerk’s office on the 28th floor of the Daley Center. Speak to the receptionist and ask for an emergency court date. She will check the judge’s schedule and offer you a hearing date. Have her note it on the Notice of Motion form.
- Deliver a copy of the Notice of Motion form and Motion form to the offices of the bank’s attorney by hand or by express mail.