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When Mortgagees Claim They Never Received Foreclosure Notice

Posted on in Mortgage Foreclosure

When Mortgagees Claim They Never Received Foreclosure NoticeA mortgagor can complete a foreclosure and sale of a property, all without hearing a word from the mortgagee who is living at the property. However, the mortgagee may object to the foreclosure sale at the last minute, claiming that he or she never received notice of the foreclosure. This may be a delaying tactic or a desperate attempt to hold onto a property. The mortgagee has the burden of proving that the mortgagor failed to properly serve notice of the foreclosure.

Service Methods

A mortgagor tries to directly serve the foreclosure notice to the mortgagee, who confirms receipt with his or her signature. The mortgagor has alternative methods of service when the mortgagee cannot be found, including:

  • Leaving it with someone who lives with the mortgagee at the property;
  • Mailing it to the last-known address of the mortgagee; or
  • Publishing it in a newspaper that the mortgagee is likely to read.

Leaving a foreclosure notice with another party is called substitute service. The server must record the name of the person being served, a physical description, and his or her relationship to the mortgagee. The mortgagor usually follows up a substitute service by mailing the notice to the mortgagee.

Mortgagee Objections

A mortgagor cannot wait indefinitely for a mortgagee to respond. A court will allow a foreclosure to move forward if there is a reasonable assumption that the mortgagee is aware of it. However, a mortgagee may dispute a substitute service by claiming that the recipient did not match the description of anyone living at the property. There are ways for mortgagors to counter this claim:

  • The mortgagee has 60-days after his or her first appearance in the case to file a motion to quash a foreclosure. In the recent case of Wells Fargo Bank v. Donna Roundtree, the court denied the mortgagee's motion because she waited six months to file;
  • The court allows some margin for error when the server estimates the age, height, weight and hair color of the person receiving the notice; and
  • The person who denies having received the substitute service should be able to explain where he or she was at the time of the service.

Contact an Illinois Creditor’s Rights Lawyer

Your foreclosure should be able to survive a last-minute mortgagee objection, as long as you were thorough in the process and did your due diligence in notifying the mortgagee. A Chicago creditor’s rights attorney at Walinski & Associates, P.C., can help you complete your foreclosure sale. Schedule a consultation by calling 312-704-0771.

Source:

http://illinoiscourts.gov/Opinions/AppellateCourt/2018/1stDistrict/1172912.pdf

Illinois Creditors Bar Association Chicago Bar Association Illinois State Bar Association
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