Archive for the 'Real Estate Definitions' Category

Using Quit Claim Deeds in Illinois

A quitclaim deed allows property owners to transfer whatever interest they may have in a specific piece of real estate. As opposed to a warranty deed, it does not offer any guarantees that the owner has good title or even ownership at all; it simply conveys whatever interest exists at the time of the deed’s signing. Once buyers accept it, they are left with little to no recourse against the former owner. This lack of protection generally makes a quitclaim deed unsuitable for purchasing real estate from an unknown party.

 

Yet, a quitclaim deed is fully sufficient to convey property in other circumstances, such as transfers between family members or spouses. For example, in case of divorce, a spouse can quit claim to his or her interest in the property; alternately, the deed can be used to add a spouse to the title. Other scenarios that lend themselves to using a quitclaim deed are transfers to a corporation or into a trust as well as uncertainties regarding title.

 

When there is a cloud on the title, a question whether parties unnamed in the deed have interest in the property, the title insurance company may require a quitclaim deed in order to remove the potential interest holder and to restore marketability of the owner’s title. Lenders might require the same from a spouse who will not be on the title.

 

 

A basic form for the quitclaim deed is provided in the Illinois statutes (765 ILCS 5/10). Record it with the recorder of deeds office in the county where the property is located. This provides official notice of the land transfer and makes the instrument part of the public record; if unrecorded, it may be void to subsequent purchasers for valuable consideration (765 ILCS 5/31).

 

Further information about quitclaim deeds and other real estate documents is available at Deeds.com. When in doubt about what type of deed to use or to accept, seek legal help from an attorney.

Written by Jack Lewitz | Discussion: No Comments »

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Written by Jack Lewitz | Discussion: No Comments »

Illinois Foreclosure Law Needs Improvement..

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The February 2009 Report “Foreclosing a Dream” by National Consumer Law Center examines the current foreclosure laws in all 50 states and evaluates how well the laws in each state protect homeowners facing foreclosure.

This study recommended the following actions in order to restore fairness to homeowners in the foreclosure process before a foreclosure sale and after the sale:

1. A Judicial Foreclosure Process should be the norm where homeowners are given due process in the courts.

2 Homeowners must be served a Notice of Default

3. States should require a lender to make attempts to modify the loan before foreclosure can be initiated through a formal court proceeding.

4. Homeowners should be given the right to cure the default , catch up on missing payment , without penalty , before any formal foreclosure proceedings.

5. Guarantee the right to reinstate the  mortgage by paying the all payments in arrears and any costs up to the time of a foreclosure sale.

6. Each State should create an Emergency Financial Assistance Fund for homeowners facing foreclosure.

7. All homeowners with the Right to Redeem the property after a foreclosure sale.

8. Prohibit Lenders from giving homeowners Deficiency Judgements after foreclosure

9. Accounting of all sales to be supervised by the courts

10. Require court supervision to surplus of any sale proceeds to homeowner

Illinois Foreclosure Law

Pre-Foreclosure Protection
Homeowner must be served Notice of Default Yes
Homeowners right to Judicial Review Yes
Homeowners Right to Loss Mitigation before Foreclosure No
Homeowners Right to Cure before Sale No
Homeowners Right to Reinstate before Sale No
Housing Emergency Assistance Fund No
Post Foreclosure Sale Protection
Homeowner Right to Redeem Home After Foreclosure No
Protection from Deficiency Judgement No
Court Supervision of Sale Proceeds Yes
Court Supervision of Surplus Yes

Written by Jack Lewitz | Discussion: 3 Comments »

Illinois Foreclosures are conducted in the Courts

istock_000000764931xsmallAll foreclosures in Illinois are conducted in the courts. The lender must file  a lawsuit to obtain a judgment for foreclosure.

The first notice a home owner will receive is a formal legal document called a “Notice of Default” (NOD). The general time frame to receive a NOD is 90- days after the first missed payment.

The second  notice is called “Notice of Motion”. This notice usually requests the homeowner to appear in court and plead its case, give reasons to the court for the missed payments, or come up with a plan to satisfy the default.

If the borrower does not appear in court a lender can file a “Complaint to Foreclose Mortgage” with the court. This Complaint to Foreclose would be the third notice sent to the homeowner or published in the paper. Another 30-days is granted to the homeowner to file an answer to the court.

If the homeowner again fails to answer , the court will usually issue a “Default Judgment”  in favor of the lender. From the date that the Judgment is entered the borrower has a statutory 90-day redemption period before a sale can take place. If the home is abandoned this 90- days can be shortened to 30-days.

A Sale date must be after the Redemption period.

A ” Notice of Sheriff Sale” is published in a local paper, in the county where the property is located once a week for three weeks. Not less than seven days after the final notice is the Sale Date published.  The lender provides the opening bid. The person with the highest bid at the sale receives a Certificate of Purchase.

Following the sale, the Sheriff or selling officer will report the sale and “Motion to Confirm Sale” must be filed  before a Sheriff Deed is issued.

Written by Jack Lewitz | Discussion: No Comments »

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