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Rethinking Illinois domestic violence laws

April 10, 2015 By John P. Dickson

In the late 1970s and early 1980s, there was a big push among domestic-violence-prevention advocates to encourage states to adopt laws requiring the mandatory arrest of domestic violence perpetrators, regardless of whether the violence was likely to cause death or serious injury (for example, shoving, slapping, and other bad but nevertheless not life threatening acts). The push was also for mandatory arrest for any violation of an Order of Protection (or whatever the other 49 states refer to their stay away because of domestic violence orders). The thinking behind these policies was that arresting the aggressor and forcing that person to stay out of the house for at least the night would work well to de-escalate the situation and would ultimately save lives. Over half the states ultimately adopted laws implementing mandatory arrest for domestic violence.

Illinois so far has refused to implement a mandatory arrest law for violation of an Order of Protection or for domestic violence. See 750 ILCS 60/301(a) (“Any law enforcement officer may [but not “must” or “shall”] make an arrest without warrant if the officer has probable cause to believe that the person has committed or is committing any crime [including domestic violence]”). And, there has been significant backlash and outcry against Illinois for taking what seemed like a reasonable step to save the lives of domestic violence victims.

A brief explanation about how the Milwaukee Domestic Violence Experiment caused so many states to adopt mandatory arrest policies for domestic violence.

The driving force behind the push for mandatory arrest policies was the results of the Milwaukee Domestic Violence Experiment (MilDVE). Wikipedia provides a good summary of the MilDVE, but I will attempt to summarize the important parts here. In 1981 and 1982, the MilDVE compared the rates of re-offending for domestic violence perpetrators when the perpetrator was randomly treated in one of three ways:

The police instructed the aggressor to stay away for eight hours,
The police sent the aggressor and victim to a counselor or mediator to discuss the cause of the dispute, or
The police arrested the aggressor.

The MilDVE found that the third option, mandatory arrest, significantly reduced the rates of further domestic violence and re-offending by the aggressor. Thus, the large push to implement mandatory arrest policies occurred shortly after the MilDVE results were released.

Turns out that mandatory arrest policies had deadly consequences.

Lawrence W. Sherman and Heather M. Harris published an interesting second look at the MilDVE results in May 2014 in the Journal of Experimental Criminology, called “Increased death rates of domestic violence victims from arresting vs. warning suspects in the Milwaukee Domestic Violence Experiment (MilDVE).” A free PDF copy of the article is available at the link in the previous sentence by clicking on the “Download PDF” button.

It’s hard to bury the lede with a study title like that, but that’s exactly what they found. Domestic violence victims whose spouse was subject to mandatory arrest policies had significantly higher rates of mortality over the 23 years between when the MilDVE was completed and when they looked at the data. By “significantly” they mean “really, really, really significantly.” They found that “Victims were 64% more likely to have died of all causes if their partners were arrested and jailed than if warned and allowed to remain at home.” 64% more likely to die because of the mandatory arrest policy! That is an incredible number.

How to protect against domestic violence in Illinois.

Domestic violence is a serious matter with often deadly consequences. Gaining protection from an abusive spouse, family member, or stalker is a life-and-death proposition for many victims. Getting out of an abusive situation is easier said than done, but at least the law gives you the framework to get the help you need. The Illinois Domestic Violence Act contains a comprehensive framework to enable abused spouses to get out of abusive relationships, to get a police-enforced Order of Protection, and to obtain spousal maintenance, child support, and financial support until you can get on your feet.

I primarily work out of McHenry County, Illinois but accept Order of Protection cases throughout the northern Illinois area. If you are a victim of domestic violence, do not hesitate to give me a call–day or night at (815) 317-5193. I give my domestic violence clients the highest priority and fight hard to help them get back on their feet.

New content over on the website

January 22, 2015 By John P. Dickson

Changes to the blog are hopefully coming soon.

Big changes coming soon (hopefully)

I have been working to convert this website into a resource for prospective clients and people who generally need help. Along those lines, I am working to overhaul the content on the main webpage to serve as a FAQ for the different practice areas I handle.

First up in the Family Law section of this website. Although the top-level page has not been updated (and if you have suggestions about how I should structure it, I would love the input), I have added content explaining several frequently asked questions for people who end up on a lawyer’s webpage about divorce.

Should you get divorced? A divorce can help you solve some serious problems with your spouse, but counseling or other types of legal proceedings may be a better choice.
Residency requirements for divorce. You can file for divorce in Illinois the instant you establish your residency here. A lot of people misunderstand this. This page helps explain what the law actually says.
Grounds for divorce. We have a no-fault divorce option in Illinois, but you still have to prove that you are entitled to avail yourself of it.
Where (physically) do you file for divorce? There are a lot of different courts available in this state. Although I recommend that you get a lawyer to help you out, if you have to go to the courthouse to file your divorce petition yourself this page will explain what type of court to file your divorce petition in and where that court is located.

I hope to supplement that content incrementally to explain major questions at each step of the case e.g. what to do once you file, how to get your spouse to contribute to your attorney fees, how to get interim child and spousal support, how to finalize the case, how to get permanent support, etc.

Let me know what you think and what questions you would like answered.

Nightmare CPS child custody situation going on in Maryland

January 16, 2015 By John P. Dickson

The Washington Post is reporting that two Maryland parents are under investigation by their local Child Protective Services (what we call DCFS in Illinois) for “neglect after letting kids walk home alone” from a park one mile from their home. Whether or not you agree that a 10-year-old child can safely escort his 6-year-old sister home safely from the neighborhood park, the heavy-handed response to threaten the parents’ custody of their children from CPS is frightening:

The Meitivs say that on Dec. 20, a CPS worker required Alexander to sign a safety plan pledging he would not leave his children unsupervised until the following Monday, when CPS would follow up. At first he refused, saying he needed to talk to a lawyer, his wife said, but changed his mind when he was told his children would be removed if he did not comply.

Don’t get me wrong. DCFS and other child protective advocates do their jobs correctly 99.999% of the time, but it’s the 0.001% of the cases where child custody is botched that send chills down your spine.

What to do if DCFS is seeking a finding that your children are abused or neglected or is seeking termination of your parenting rights?

Image credit: Wikipedia. A photo of a parent and child. You could lose custody of your children if you do nothing when DCFS and CPS investigate.

Speak to a lawyer in person immediately. For low risk matters, I have no problem providing self-help information on this website for the benefit of people who cannot afford a lawyer. Involuntary termination of your parental rights and child custody is not one of those low risk types of cases. These cases are heard on an expedited basis, and you will get steamrolled by DCFS’s attorneys if you do not seek the counsel of an attorney from the beginning. I handle DCFS investigation cases and temporary custody hearings in child abuse and neglect cases in McHenry County, Illinois and surrounding areas.

Missing note defense to foreclosure alive again in Illinois?

December 15, 2014 By John P. Dickson

Before the recent economic downturn, very few attorneys had experience defending foreclosures (or effectively prosecuting them, for that matter). As thousands and thousands of residential foreclosures flooded into our courts, the attorneys that picked up the foreclosure defense cases churned out hundreds of innovative arguments, and most went down in flames spectacularly. The “no note, no foreclosure” defense was among the most popular defenses, and our appellate courts quickly put an end to it. The Seventh Circuit, however, may have resurrected the “no note, no foreclosure” defense in limited circumstances.

How the “no note, no foreclosure” defense used to work.

During the real estate boom of the 90s and early 2000s, when everyone and their dog could qualify for a no-down-payment mortgage loan, many mortgage originators were very sloppy. They were too busy originating new mortgages to be as careful as they should have been, and important documents were occasionally lost. The most important documents for a mortgage loan are the promissory note (which contains the promise to repay in exchange for the money) and the mortgage (which grants the bank the right to foreclose if you fail to repay). The mortgage document itself is never lost because immediately after the loan closes the mortgage document is mailed to the county recorder of deeds and recorded.

The promissory notes, on the other hand, were lost quite frequently. The originators would mail them to the bank, and the bank would stuff the notes into a dusty file cabinet in a basement somewhere, and with the huge volume of loans being made these things were lost all of the time. This problem was compounded by the fact that as the bottom of the economy dropped out, several major mortgage lenders went belly up and their assets (99% of which were these promissory notes) were scattered to the wind to any bank with room on its balance sheet for more loans. In the process of divvying up failed lenders’ assets, some promissory notes were outright lost, others were miss-filed at the new bank, and the end result was that in a fair number of cases, the foreclosing bank’s attorneys were unable to produce the original promissory note to the court.

Attorneys who defended foreclosures salivated at the possibility of the lending having lost the promissory note because promissory notes are (supposed to be) special. They are like checks where the original document has significance in itself and you should not be able to cash (in the case of a check) or negotiate (in the case of a promissory note) a photocopy because what would keep you with making a hundred photocopies and trying to cash them all?

Well, seeing the havoc this would create in our domestic real estate market, our Illinois Appellate Courts have fairly consistently ruled that a promissory note is not like a check in that respect, and the original promissory note is only evidence of the debt obligation. If other evidence of the debt obligation can be produced, the absence of the original promissory note is not fatal to the foreclosing lender’s case.

The Seventh Circuit Court of Appeals resurrects the “no note, no foreclosure” defense somewhat.

Last month the Seventh Circuit handed down its opinion in State Bank of Toulon v. Covey (In re Duckworth), Nos. 14-1561 and 14-1650 (7th Cir. Nov. 21, 2014), which considered a very similar question–what happens if the promissory note is still in existence but the important parts were left blank? In State Bank of Toulon, the debtor, David Duckworth took out a $1.1 million loan from the State Bank of Toulon that was supposed to be secured by an Agricultural Security Agreement on certain farmland and crops. The security agreement, however, did not reference the note specifically by date, and the dollar amount of the security agreement was left blank. The bank tried to prove that it was the $1.1 million promissory note that was secured by the mortgage with parol evidence (a lawyer term for evidence about what a document means that is not contained within the document itself). The Seventh Circuit shot that argument down but carefully limited to apply only to the efforts of bankruptcy trustees to avoid liens.

Fighting your foreclosure in the bankruptcy court is now something you should consider.

Recent developments in bankruptcy court assist foreclosure defense.

The Duckworth case may have resurrected the “no note, no foreclosure” defense for Illinois foreclosure defense

If your lender was as sloppy as the State Bank of Toulon lender was, and if there are major terms left blank in the promissory note for your foreclosure case, taking your foreclosure to the bankruptcy court by filing bankruptcy is not so bad of an option. Federal courts will follow this law, and for once it works to the homeowner’s advantage.

John P. Dickson is now Lead Counsel Rated

December 9, 2014 By John P. Dickson

Dickson Law Group, LLC is proud to announce that its principal attorney, John P. Dickson, has been ranked as Lead Counsel Rated by Lead Counsel, a service of Thompson Reuters.

From Lead Counsel’s materials,

The Lead Counsel Rating was established in 1997 as a quality assurance tool consumers and businesses can use to quickly and easily evaluate a prospective attorney’s ability and credibility. When you see the Rating, you can be assured the attorney has met strict qualification standards that include:

Professional Experience

Peer Recommendations

Spotless Disciplinary Record

Furthermore, an annual review is conducted in order to confirm an attorney’s eligibility for the Rating. Should the attorney no longer meet eligibility standards, the Rating is immediately revoked.

Finally, attorneys may earn the right to use the Lead Counsel Rating free of charge. This confirms both Rating objectivity and credibility.

Read more at Lead Counsel’s website. Feel free to review Mr. Dickson’s Lead Counsel profile, and when you have chance take the opportunity to congratulate him for the industry recognition.

Can I discharge taxes in bankruptcy?

November 19, 2014 By John P. Dickson

Although we are technically coming out of the recession and bankruptcy filings are on the decline, a significant number of Crystal Lake and McHenry County residents are considering bankruptcy. A major contributing factor to bankruptcy is tax debt and penalties due to the IRS or State of Illinois. This blog post will attempt to explain for the most common types of tax debt whether you can discharge taxes in bankruptcy.

The most common forms of tax debt.

Personal bankruptcy filers and small business filers generally face three types of tax debt or quasi-tax debt when considering bankruptcy:

Individual or family income tax liability. This is relatively straightforward and is what most people think of when wondering whether you can discharge your taxes in a bankruptcy. This is debt owed to the Internal Revenue Service or the Illinois Department of Revenue.
Unpaid payroll tax, unpaid sales taxes, or related trust fund liability. This can be a problem for small business employers that had employees at one point.

Individual income tax liability can be discharged in bankruptcy, usually after 3 years after the return was due.

Regular unpaid income tax debt, owing to either the IRS or the Illinois Department of Revenue, can be discharged if all of the following are true:

It has been at least 3 years since the tax return that caused the income tax liability was due (and this includes any extensions).
The return actually must have been filed more than 2 years ago. This usually only applies if you filed your returns late.
There have been at least 240 days since an IRS adjustment or audit adjustment took place or there was an amended return. If you make an Offer in Compromise, this time frame is extended during the time that the OIC is under consideration plus 30 days. See 11 U.S.C. §507(a)(8)(A)(ii)(I).

Trust fund tax liability generally cannot be discharged in bankruptcy.

Most businesses that fail do not property hold money to pay the IRS. This can create tax liability that cannot be discharged in abnkruptcy.

If your small business may fail and if you have employees, pay special attention to your employees’ payroll tax withholdings. The personal liability you can create for yourself is both expensive and non-dischargable in bankruptcy in most cases.

Federal law requires employers to withhold from the pay of and hold “in trust” for the benefit of its employees the employee’s share of federal income and social security taxes. See 26 U.S.C §3102, 26 U.S.C. §3402. Because of the requirement that these taxes be held in trust for the benefit of the employee and the federal government, they are commonly referred to as “trust fund taxes.” There are similar payroll taxes, sales taxes, and excise taxes to be remitted to the State of Illinois that are considered to be trust fund taxes.

Unpaid trust fund taxes cannot be discharged in the company’s bankruptcy filing. See 11 U.S.C. §523(a)(1)(A); 11 U.S.C. §507(a)(8)(C). This generally is not that big of a concern if the company is liquidating under Chapter 7 of the Bankruptcy Code because the company is essentially dead anyhow. However, this is a big problem for the owners of the company who were responsible for the collection and holding of these trust fund taxes.

The employer, officer, or member of the company who are deemed “responsible” for “willful” failure to collect and remit trust fund taxes will have personal liability for the unpaid trust fund taxes. See 26 U.S.C. §6672 (federal taxes); 35 ILCS 735/3-7(a) (Illinois taxes). Additionally, they will likely face a 100% penalty in addition to the unpaid tax liability.

For the individual owners and employers of the defunct company who are held responsible for the company’s failure to remit trust fund taxes, their personal liability for the taxes and for the penalty imposed for failure to pay the taxes is non-dischargable in bankruptcy. See 11 U.S.C. §523(a)(1)(A); 11 U.S.C. §507(a)(8)(C). This debt must be paid in full.

If you think your small business may fail, speak to your bankruptcy attorney well in advance of the doors closing.

Because of the harsh penalty for failing to pay tax authorities certain taxes, small business owners should consult with a knowledgeable bankruptcy attorney before closing up shop. Winding up the company the right way can save you significant tax liability and penalties.

Should you keep paying association assessments if your Illinois condominium is in foreclosure?

November 15, 2014 By John P. Dickson

Short answer: In 99% of all cases, yes, you have to keep paying your condominium association or homeowners’ association dues. Read on for an explanation of why it is a good idea to keep paying your Illinois condominium association dues even if your unit is in foreclosure.

Is your Illinois condominium in foreclosure? This blog post explains when you should continue paying your condominium assessments and fees and when you can safely stop paying.

[Read more…]

Accepting a new position or leaving your old job? Be careful what you sign.

November 12, 2014 By John P. Dickson

A disturbing trend that has been making news lately is the imposition of noncompete agreements on even low level employees. Jimmy Johns (the freaky-fast sandwich company) came under fire in October when the national media caught wind of the fact that it forces its delivery drivers to sign noncompete agreements as a condition of working there.

Quoting directly from the document:

This is an excerpt of the noncompete agreement Jimmy Johns forces its drivers to sign as a condition of being hired.

To break this down in simpler terms: If you have accepted a job at Jimmy John’s, you are prohibited for 2 full years after quitting from working at any fast food sandwich shop that is within 3 miles of a Jimmy John’s location.

That’s a big problem if you are a fast food employee because there are many locations in Illinois where a 3-mile radius from any Jimmy John’s location covers the entire map:

Jimmy John's locations near Crystal Lake

Here are the 41 results for Jimmy John’s locations when you plug Crystal Lake’s zip code into Jimmy John’s store locator on its website. I haven’t measured, but I would wager that there is nowhere in the southeast corner of the county that is not within 3 miles of a Jimmy John’s location.

Most people work fast food as a job of last resort–it’s not your dream position, but at least it pays the bills. Imagine losing the right to accept a position of last resort merely because you delivered sandwiches. It’s a scary thought.

It’s not just Jimmy John’s. More and more companies are forcing their employees to execute restrictive agreements .

A Seattle franchisee of the national janitorial company, ServiceMaster is starting to come under fire for forcing its employee janitors to execute noncompete agreements. Camp counselors and hairdressers have lost jobs because of similarly restrictive employment provisions. Noncompetes used to be reserved for high level employees and individuals with the ability to take customers with them. Now, if sandwich delivery drivers, janitors, and hairdressers are at risk of having their livelihood taken away from them because they took a job with the wrong company, no one is safe.

An ounce of prevention is worth a pound of cure. Figure out what you’re signing before you sign it.

If your employer is forcing you to sign a document, you can guarantee that your employer’s attorney has drafted this document to be as friendly as possible to your employer. If the other side of the deal is represented by lawyers, you had better have your own representation or your are going to be taken for a ride. Before signing anything related to a new position or before signing anything in connection with a severance package, you would serve yourself well by speaking with a McHenry County employment attorney to ensure your rights are protected. Contract review is a low-cost preventative measure to ensure that you know what you are signing.

Serious traffic violations for commercial drivers in Illinois

November 6, 2014 By John P. Dickson

I defend enough traffic tickets for Commercial Driver’s License (CDL) holders that this question comes up too often: What counts as a Serious Traffic Violation for commercial drivers in Illinois? First, a little bit of background.

CDL holders beware serious traffic violations in Illinois

If you drive a truck like this, you need to keep track of your serious traffic violations.

Why are serious moving violations so dangerous for Illinois commercial drivers?

If you rack up two serious moving violations in any 36-month period, your license will be suspended for a minimum of two months. See 625 ILCS 5/6-514(e). You cannot take the risk having even one serious moving violation on your record because if another one happens, you will lose your ability to work for a long period of time.

Illinois has adopted the FMCSA regulations for serious traffic violations. There are 8 of them.

Section 6-500 of the Illinois Vehicle Code defines some examples of serious traffic violations:

Serious Traffic Violation. “Serious traffic violation” means:
(A) a conviction when operating a commercial motor vehicle, or when operating a non-CMV while holding a CDL, of:
(i) a violation relating to excessive speeding, involving a single speeding charge of 15 miles per hour or more above the legal speed limit; or
(ii) a violation relating to reckless driving; or
(iii) a violation of any State law or local ordinance relating to motor vehicle traffic control (other than parking violations) arising in connection with a fatal traffic accident; or
(iv) a violation of Section 6-501, relating to having multiple driver’s licenses; or
(v) a violation of paragraph (a) of Section 6-507, relating to the requirement to have a valid CDL; or
(vi) a violation relating to improper or erratic traffic lane changes; or
(vii) a violation relating to following another vehicle too closely; or
(viii) a violation relating to texting while driving; or
(ix) a violation relating to the use of a hand-held mobile telephone while driving; or
(B) any other similar violation of a law or local ordinance of any state relating to motor vehicle traffic control, other than a parking violation, which the Secretary of State determines by administrative rule to be serious.

So, we have eight basic serious traffic violations in Illinois:

Speeding 15 m.p.h. or more
Reckless driving
Any traffic ticket (e.g. a busted headlight) arising in connection with a fatal accident
Multiple driver’s licenses
Not having a CDL
Lane usage or lane change tickets
Following too closely
Using a cellphone to talk without a headset or to text.

Note well that while the statue says there has to be a “conviction” of these offenses for them to count as a serious traffic violation, a disposition of supervision on the charge counts as a conviction for your CDL. See 625 ILCS 5/6-500(8) (“‘Conviction’ means . . . the payment of a fine or court cost regardless of whether the imposition of sentence is deferred and ultimately a judgment dismissing the underlying charge is entered.”).

Also note well that a serious traffic violation can be “any other similar violation of a law or local ordinance of any state relating to motor vehicle traffic control, other than a parking violation, which the Secretary of State determines by administrative rule to be serious.” How many separate offense could that be?

The Illinois Secretary of State has designated 44 additional offenses as serious traffic violations:

92 Ill. Admin. Code 1040.20 contains a list of all of the serious moving violations deemed to be serious by the Illinois Secretary of State:

625 ILCS 5/6-501 Violation of More Than One Driver’s License
625 ILCS 5/6-507(a)(1) Driving Without a Commercial Driver’s License (CDL) in Possession
625 ILCS 5/6-507 (b) Unlawful Operation of CMV
625 ILCS 5/11-308 Disregarding Lane Control Signal
625 ILCS 5/11-503 Reckless Driving
625 ILCS 5/11-601(a) Speeding Too Fast for Conditions or Failure to Reduce Speed to Avoid an Accident
625 ILCS 5/11-601(b)(5) 15-25 MPH Above Posted Speed Limit
625 ILCS 5/11-601(b)(7) Over 25 MPH Above Posted Speed Limit
625 ILCS 5/11-601(b) Over 29 MPH Above Posted Speed Limit
625 ILCS 5/11-601.5 Driving 40 MPH or More in Excess of the Applicable Speed Limit. Class “A” Misdemeanor
625 ILCS 5/11-605 Exceeding the Maximum Speed Limit in a School Zone
625 ILCS 5/11-605(a) Exceeding the Maximum Speed Limit in a School Zone
625 ILCS 5/11-605(b) Exceeding the Maximum Speed Limit Through a Highway Construction or Maintenance Zone
625 ILCS 5/11-701 Failure to Drive on Right Side of Roadway
625 ILCS 5/11-702 Improper Passing Upon Meeting an Approaching Vehicle
625 ILCS 5/11-703(a) Improper Passing on Left
625 ILCS 5/11-703(b) Failure to Yield Right-of-Way to Vehicle Passing on the Left
625 ILCS 5/11-704 Improper Passing on the Right
625 ILCS 5/11-705 Improper Passing on the Left with Insufficient Visibility or Within 200 Feet of an Intersection
625 ILCS 5/11-706 Driving on Left Side of Roadway Where Prohibited
625 ILCS 5/11-707(b) Driving on Left Side of Roadway in a No-Passing Zone
625 ILCS 5/11-707(d) Passing in Unincorporated Area Where There Exists a School Speed Zone as Defined in Section 11-605
625 ILCS 5/11-708 Driving Wrong Way on One-Way Street or Highway or Around Traffic Island
625 ILCS 5/11-709(a) Improper Traffic Lane Usage
625 ILCS 5/11-709(b) Improper Center Lane Usage
625 ILCS 5/11-709(c) Improper Traffic Lane Usage
625 ILCS 5/11-709(d) Improper Traffic Lane Usage
625 ILCS 5/11-709.1 Passing on Shoulder While Merging into Traffic
625 ILCS 5/11-710 Following Too Closely
625 ILCS 5/6-101 Operating a Motor Vehicle Without a Valid License or Permit
625 ILCS 5/6-104(a) Violation of License Classification for First and Second Division Vehicles
625 ILCS 5/6-104(b) Violation of Classification for Transporting Persons for Hire
625 ILCS 5/6-104(c) Violation of Classification for Transporting Property for Hire
625 ILCS 5/6-104(d) Violation of School Bus Permits
625 ILCS 5/6-104(e) Violation of Religious Bus Driver Permits
625 ILCS 5/6-104(f) Violation of Classification for Transportation of the Elderly
625 ILCS 5/6-105 Violation of Instruction Permit
625 ILCS 5/11-1002(d) Passing Vehicle Stopped for Pedestrian
625 ILCS 5/11-1201(a) For drivers who are not always required to stop, failing to stop before reaching the railroad crossing, if tracks are not clear
625 ILCS 5/11-1201(a-5) For drivers who are not always required to stop, failing to slow down and check that the tracks are clear of approaching train
625 ILCS 5/11-1201(d-1) Failing to negotiate a railroad-highway grade crossing because of insufficient undercarriage clearance
625 ILCS 5/11-1412.1 Driving Upon Sidewalk
625 ILCS 5/11-1414(a) Passing School Bus Receiving or Discharging Children
625 ILCS 5/11-1425(b) Failing to have sufficient space to drive completely through the railroad crossing without stopping

Pleading guilty to a serious traffic violation is irresponsible for CDL drivers in Illinois.

Don’t risk your license and your livelihood. Our attorneys have experience negotiating down serious traffic violations to non-serious traffic violations (and occasionally non-moving violations). And when the prosecutors refuse to negotiate, we aggressively defend trials.

How to stop a foreclosure in McHenry County, Illinois

November 4, 2014 By John P. Dickson

I have noticed that a fair bit of the traffic coming to my website is seeks an answer to how you can stop the foreclosure of your house in McHenry County. You have six basic options that are outlined at the end of this post. Hopefully, this will answer a few of your questions, and if you have any additional questions you should not hesitate to give me a call. I return all phone calls personally within 24 hours, and usually the same day.

So, the bank has filed a foreclosure lawsuit against you in McHenry County. What happens next?

Although you should have known it was coming, most people are blindsided when a process server or sheriff’s deputy knocks on the door to serve you with papers for the foreclosure lawsuit. When this happens to you, take a deep breath because it is not the end of the world, and you will not be homeless for at least the next 7 months (read this previous blog post I wrote outlining the timeline for your foreclosure case).

Once you have been served with papers, the first thing you need to do is pull out your calendar. The process server handed you one or more copies of two types of documents: the Complaint and the Summons. Here’s what your Summons will look like:

This is what your Summons will look like. See in the center of the page where the word “Summons” is written and underlined? That’s the title of the document, and most court documents (Complaints, Orders, Motions) will have their title written in a similar manner.

The first paragraph of the Summons commands you to “file an answer in this case, or otherwise file your appearance. . . within 30 days after service of this summons, exclusive of the day of service.”

Mark this date down on your calendar. The day you were served does not count as one of the 30 days. Therefore, for example, if you are served on November 1, 2014, the 30 day clock begins counting on November 2, and you need to file an appearance in writing with the Clerk of Courts on or before December 1, 2014. If the 30th day falls on a weekend day or court holiday, your appearance is due on the next day the Courts are open. Call the Clerk of Courts before you drive out to Woodstock to make sure the courthouse is open–(815) 334-4310.

Next, look at your Complaint. It will look like this:

Example McHenry County Mortgage Foreclosure Complaint

This is an example of what your mortgage foreclosure Complaint will look like in McHenry County. Note the date by the red arrow.

Look at the red arrow in this picture. Mark that date down on your calendar, and make sure to go to court on that date. However, if you wait until this date to file your written appearance, you will be in default in the case and a judgment may be entered against you before you go to court. In practice it rarely happens, but it is a possibility. Do not ignore the date commanded by the Summons merely because the Complaint has your first court date written on it!

After your first court date, make sure to calendar every court date that is coming up. While I cannot guarantee that the judge in McHenry County will not pull the rug out from under your feet and end the case, you have a much better chance of avoiding an immediate foreclosure judgment if you show up to court for your case.

So, now that I know what deadlines I am working against, what can I do to stop my foreclosure?

Stopping a foreclosure is easy in theory and difficult in practice. When you missed the payments on your mortgage, the bank “accelerated” your loan which means that instead of having to honor the monthly payment plan that you agreed to with the bank, they can now demand that you pay the loan in full immediately. However, there are certain federal and Illinois-specific programs that the banks are bound by that an get you out of this jam. Let’s talk about your options in order.

Option 1: Pay off the mortgage in full including any accruing interest, court costs, attorney fees, and other charges.

Of course paying off the mortgage in full is an option, but if you had enough money to pay the mortgage off, you wouldn’t have been late on your payments.

Option 2: Defend the foreclosure in McHenry County court.

Defending the foreclosure only buys you some time to sort things out. You’re not going to “win” your foreclosure because a foreclosure case is not terribly difficult to prove: Did you take out a loan with the bank? Yes. Did you pledge your house as security for the loan? Yes. Well, then the bank is 99.99% of the way to what is has to prove in court. You are almost certainly not going to win unless the bank violated a federal law such as RESPA (rare) made a big mistake (super rare).

And, the downside of defending the foreclosure is that the time you gain is not free. Interest on the loan is still being added to the balance. The bank is still paying your property taxes and adding that amount to the balance. The bank has probably “force placed” insurance on the property, and the insurance they buy is about two to three times more expensive than what you could buy, and that amount is added to the balance. The bank’s attorney fees are added to the balance. The bank’s court costs are added to the balance.

Defending a foreclosure case can very quickly dig you a very deep financial hole, and for most people the only way out of that hole is bankruptcy. If you are not a great candidate for bankruptcy, defending a mortgage foreclosure case long is dangerous. That said, if you defend your mortgage foreclosure case and aggressively pursue other options such as a loan modification, short sale, or Deed in Lieu of foreclosure, the risk that you take to buy some time could pay off in the end.

Most people avoid calling a lawyer for their foreclosure because we all know that lawyers are expensive. You shouldn’t let this deter you. All of the lawyers practicing foreclosure defense know that you don’t have a lot of money (If you did, why would you be in foreclosure?) and are willing to work with you. I offer predictable, transparent, and reasonable pricing and a free initial consultation. If I can help you, great. If I can’t help you, you have only risked your time.

Option 3: Obtain a loan modification.

There are a number of mortgage foreclosure loan modification options available to McHenry County homeowners, both offered in-house by your bank and forced upon the banks by the federal and state governments (e.g. HAMP, HARP). I am not going to give an extensive run-down of these programs in this blog post because the programs and their eligibility requirements change on an almost monthly basis. By the time you read this blog post, the information about loan modifications will likely be stale. Give me a call if you want to know the current lay of the land. That said, almost all loan modification programs require the following things to be true:

You do not qualify for a traditional refinancing of your mortgage.
You have experienced a “hardship.”
You are several months behind on your mortgage payments.

Pay attention to that last one. I have heard horror stories from my clients where they needed a loan modification and called up their lender and were told that they need to stop paying their mortgage to qualify. So, they stopped paying, applied for a loan mod, were denied, and lost their house to foreclosure because the person who answered the phone for the bank told them to do it. Before you do something drastic like intentionally stopping making payments on your mortgage to get a loan modification, you should talk to someone who knows what they’re doing.

Option 4: File a Chapter 13 Bankruptcy.

Nobody wants to file bankruptcy, but if you are behind on your mortgage and cannot make ends meet, it is not a terrible option. There are four main types of bankruptcy available to individual debtors. Chapter 7 and Chapter 13 bankruptcies are the most common for consumer debtors. Chapter 7 creates a straight discharge of your debts, including the money you owe on the mortgage. A Chapter 7 bankruptcy will not eliminate the lien on your house created by the mortgage, and your lender can still foreclose on your house to recover payment. Accordingly, Chapter 7 is not a great option if you want to save your house. It is a great option if you need to get rid of the house.

A Chapter 13 bankruptcy will enable you to propose a plan to pay off some of your debts over 3-5 years and will stop the foreclosure on your house. If, at the end of those 3-5 years the plan has not brought your mortgage current, the bank can foreclose again.

Conceivably, you do not need an attorney to file bankruptcy. You can file bankruptcy on your own or with the assistance of a professional petition preparer. Attorneys, in my opinion, are invaluable for the bankruptcy process because it is a complicated process and you will likely need legal advice at some stage of your bankruptcy case.

Option 5: Short sell your house.

A short sale is a process by which the bank agrees to let you sell your house (and release their mortgage) for less than the bank is owed. Short sales are not a lot of fun because they might not extinguish your personal liability for the difference between what the bank is owed and what it gets, they take a lot of work, and they add a third party to the negotiations (you, the buyers, and the bank). That said, short sales succeed all of the time. Most short sales are driven by the listing real estate agent. If you would like to short sell your house, give me a call and I can give you a referral.

Option 6: Obtain a Deed in Lieu of foreclosure.

If your house is underwater, the bank probably will not give you a Deed in Lieu. I ask for these in just about every mortgage foreclosure case I handle, and the bank has yet to agree to it. Don’t bet the house on obtaining a Deed in Lieu because you probably will be disappointed.

How an attorney can help.

I have successfully defended dozens of residential, commercial, and farm land foreclosures in McHenry County, Illinois and surrounding areas. I will sit down with you to evaluate your goals for the foreclosure case and help you pursue them. Every case is unique, and everyone has different goals. The best solution for you may not be outlined on this page. Foreclosure cases move quickly in McHenry County, and you need to act as soon as possible to preserve your rights. Schedule your free initial consultation today.