Thursday, November 28, 2019

How the Foreclosure Crisis Continues to Affect Single-Family Homes

Although the foreclosure crisis occurred more than a decade ago and most people have bounced back from the recession that ensued, the effects of the foreclosure crisis linger. According to a recent article in, a new study reports that the foreclosure crisis and real estate bubble burst of 2008 continues to “impact housing, from more unaffordable house and household instability to increased rents and evictions, depressed house prices, and deferred maintenance.” To learn more about how the foreclosure crisis continues to affect home costs in the U.S., we want to take a closer look at the article and the recent study.

More Rental Properties in Suburban Neighborhoods
As a result of the foreclosure crisis, there are fewer family-owned single-family houses in suburbs across the country, including the suburbs of Chicago. According to Suzanne Lanyi Charles, a professor of city and regional planning at Cornell University who authored the report, more families are now renting instead of buying homes. Charles explained how “single-family rental housing is an increasingly prevalent form of housing tenure in U.S. suburban neighborhoods, representing a paradigm shift in how households gain access to a suburban single-family home.”

Why are there more rental properties than family-owned homes? Many large corporations, Charles clarified, purchased foreclosed single-family homes after the 2008 crisis “in an attempt to stabilize neighborhoods.” Those properties remain corporation-owned, and those corporations continue to rent properties to families in those areas. For some families, being able to rent—as opposed to buying—a single-family home in a suburban area has been helpful.

Charles suggests, the fact that many of these houses are now rentals makes them available to families that would not have been able to buy those same homes in those neighborhoods. At the same time, however, “the reverse is also true,” Charles argues. She discusses the paradox: “Single-family rental housing in some neighborhoods may afford renters access to the opportunity that some neighborhoods can provide, while . . . in others [it] may have negative effects on households and neighborhoods.” Accordingly, Charles argues that a one-size-fits-all solution to managing corporation-owned housing will not work for all families. Charles refers specifically to Democratic presidential candidate Elizabeth Warren’s plans to limit the ability of corporations to own a large portion of single-family rental homes.

Additional Changes in Housing Since the Foreclosure Crisis
In addition to shifts in the rental market—meaning that there are far more single-family homes for rent and fewer for sale—the foreclosure crisis has also led to other changes in single-family housing. An article in The Washington Post cites the following as other ways in which the foreclosure crisis has affected single-family homes:
  • Types of home loans that existed before the foreclosure crisis largely do not exist anymore—instead, potential homebuyers typically choose between a fixed-rate loan or a loan that meets “Qualified Mortgage” standards”;
  • Most loans require a down payment of at least 3.5%;
  • Potential homebuyers are unlikely to qualify for a home loan with a credit score of under 620; and
  • Potential homebuyers with a credit score of under 760 will likely pay more in interest.
Contact an Oak Park Foreclosure Defense Lawyer

If you have questions about foreclosure or need help saving your home, an Oak Park foreclosure defense attorney can speak with you about your options. Contact the Emerson Law Firm to learn more.

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How Are Foreclosure Activity and Consumer Confidence Related?

“Zombie” Vacancy Rates Decline in the Midwest

Wednesday, October 16, 2019

How are Foreclosure Activity and Consumer Confidence Related?

Does consumer confidence have anything to do with foreclosure activity or the foreclosure rates in a particular area? According to a recent article in, “consumer confidence appears to be easing,” meaning that consumers in the U.S. have less confidence in the economy than they did at this same time last year. As a result, consumer spending has slowed. Indeed, consumer spending in 2019 has been “at its second weakest pace since . . .2013.” To put it another way, consumers are more stressed about finances than they were previously. But does this mean that foreclosure rates are also likely to rise?

By and large, the report indicates that foreclosure activity remains low, but emphasizes that it is important to keep an eye on foreclosure activity in the coming months.

Foreclosure Rates Continue to Decline
According to the article, despite an increase in consumer financial stress, foreclosure rates remain low. Based on data from CoreLogic, only 3.8% of home mortgages were in some stage of foreclosure as of July 2019, which represents a decline from 4.1% in July 2018. In other words, foreclosure activity continues to decline nationwide. In addition, “the share of all delinquent mortgages at least one payment past due is down 21 basis points per year.”

Moreover, although we have seen a downturn in consumer financial stress, the article emphasizes that “consumers remain on good footing despite some recent dips in confidence.” However, just because most consumers are able to pay their mortgages now does not mean that we should take this as a given. As the article underscores, it is important to keep a close watch on consumer financial stress and to analyze it in relation to “weak growth in real disposable income, falling demand for credit card loans, and a softening global outlook.”

Generally speaking, the fact that consumer financial stress is on the rise is not an immediate reason for worry. At the same time, however, rising consumer financial stress could signal shifts in foreclosure activity if the current trend continues.

Ways to Prevent Foreclosure
While the article clarifies that most homeowners should not be concerned about foreclosure rates at this point, it is nonetheless important to make clear that some homeowners are still struggling with the threat of foreclosure. What can those homeowners do to prevent foreclosure if they are not part of the large number of consumers benefiting from “historically low unemployment” and “rising household net worth”?

An article in The Balance cites a number of options for avoiding foreclosure that struggling homeowners should consider:
  • Ask for forbearance from your lender;
  • Seek a mortgage loan modification;
  • Refinance your mortgage;
  • Sell the house through a short sale;
  • Sign a deed-in-lieu of foreclosure; or
  • File for Chapter 13 bankruptcy.
Contact an Oak Park Foreclosure Defense Attorney

If you have questions about avoiding foreclosure, or if you are struggling with repaying your mortgage, you should speak with an Oak Park foreclosure defense lawyer as soon as possible. There may be options available that would allow you to keep your home. Contact the Emerson Law Firm to learn more about the consumer protection services we provide to residents of the Chicago area.

See Related Blog Posts:

Consumer Bankruptcy and Foreclosure: Get the Basics

“Zombie” Vacancy Rates Decline in the Midwest

Friday, August 23, 2019

“Zombie” Vacancy Rates Decline in the Midwest

For anyone who closely followed the bursting of the real estate bubble and the ensuing foreclosure crisis after 2007, you likely know that there is a strong link between vacant properties and foreclosures in Illinois and throughout the country. When homeowners abandon properties because they cannot afford to make mortgage payments and those properties end up in foreclosure, other homes in the neighborhood can suffer, too. For example, if homeowners considering selling their house live in a neighborhood with numerous vacant properties, their home might also decline in market value due to the unsightliness of the vacancies. If those same homeowners need to sell their house because they cannot afford mortgage payments or have an underwater mortgage, the existence of those vacancies can be even more problematic.

Yet according to a recent article in Curbed, the overall rate of vacant properties in neighborhoods throughout the U.S. is on a continuous decline, particularly in a number of Midwestern areas. The fact that there are fewer vacant homes could be a good sign in terms of homeowners’ ability to avoid foreclosure.

Vacant Property and Zombie Foreclosure Rates Continue to Get Lower
Many properties that end up vacant—especially the ones that ultimately harm market values of other homes in the same neighborhood—might also be classified as “zombie” foreclosures. As you may recall from the days of the foreclosure crisis, a “zombie” foreclosure is a term to refer to a residential property that has been left vacant (or abandoned) by the homeowners after learning that the house is going into foreclosure. Few of those homeowners return to the property, but when foreclosures get canceled for one reason or another, the properties remain vacant and can enter various stages of disrepair.

According to the article, zombie foreclosures and vacancies have shown a steady decline in recent years, and that drop continues to occur. Even in the cities that still have some of the highest vacant property rates in the country, zombie foreclosures are not nearly as common as the used to be. The article cites data from an ATTOM Data Solutions report. That report indicates that about 1,530,563 single-family homes and condos in the U.S. were vacant as of the end of the third quarter of 2019. To put that figure another way, it represents about 1.6% of all single-family homes and condos. The number of properties in foreclosure was much lower, at 304,000. That number is 22% lower than it was at the same point of the year in 2016.

Even Midwestern Cities are Seeing Improvement
Midwestern cities in the U.S. were some of the hardest hit by zombie foreclosures and vacancies. Yet as the report makes clear, “there, too, the situation is starting to improve.” More homeowners are buying previously vacant properties because there are more people seeking out homes for purchase in general.

This is all good news because, as the report explains, the phenomenon of “hyper-vacancy,” in which many zombie foreclosures or vacancies exist, is “usually concentrated in areas that are losing jobs, investment, and economic opportunity.” If these areas are seeing more homebuyers and the blight associated with vacancies is slowly improving, it could be a sign of more economic stability in general and fewer families grappling with the threat of foreclosure.

Contact an Oak Park Foreclosure Defense Lawyer
If you have questions about the links between current real estate and foreclosure, or if you need help avoiding foreclosure, an experienced Oak Park foreclosure defense attorney at our firm can assist you. Contact the Emerson Law Firm today.

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Concerning Foreclosure Trends in the Chicago Area

Cook County Foreclosure Lawsuit Against Banks Continues

Friday, July 12, 2019

Concerning Foreclosure Trends in the Chicago Area

For quite some time, foreclosure activity has been declining in the Chicago area. Indeed, in large part, trends had been showing that new foreclosures had declined and shadow inventory had decreased. However, a recent article in Chicago Now, there are concerning signs about current foreclosure trends. As the article explains, “after steady declines over the last few years, Chicago foreclosure activity has recently shown an uptick.” In short, Illinois remains within the top five states in terms of foreclosure activity. We want to say more about the details of current trends in the area and to remind homeowners about processes for avoiding foreclosure.

Foreclosure Starts and Shadow Inventory Increase in Chicago
Data shows that two different forms of foreclosure activity are on the rise in the Chicago area: foreclosure starts (or the initial phase of a home entering into foreclosure), and an increase in shadow inventory (which refers to homes that are “in some stage of foreclosure”). Indeed, the Chicago shadow inventory is at a seven-month high and has been increasing since late 2018. In terms of overall foreclosure trends, there has been a “gradual upward drift” that has some consumer protection advocates concerned.

While the increasing rate of foreclosures in general may be a reason for caution, it is important to know that it may not be a reason to panic. In general, foreclosure activity has declined substantially over the last six years in the area. Despite the increase that has occurred over the last seven months, the foreclosure rate remains lower than it was in summer 2018—just one year ago.

Avoiding Foreclosure: Tips for Homeowners
As foreclosure rates climb slightly in the Chicago area, it is important for homeowners in Oak Park and throughout Chicagoland who are struggling to make mortgage payments to know that they may have options available to them to avoid foreclosure. If you are struggling with mortgage payments, you should get in touch with an experienced foreclosure defense attorney in Illinois. Yet in the meantime, the following are some tips to avoid foreclosure from HGTV:

  • Contact the lender to learn about a compromise option to get back on track with your mortgage payments;
  • Learn about options for a short sale, which typically may be an offer on your home for less than the total amount of the mortgage but ultimately will save the bank time and money, and will allow you to avoid foreclosure;
  • File for Chapter 13 bankruptcy, which will allow you to benefit from the automatic stay (stopping the foreclosure process once you file for bankruptcy) and will allow you to get back on track with mortgage payments through a repayment plan; or
  • Deed in lieu of foreclosure, which involves voluntarily signing over your home to the bank in order to avoid the credit damage that will be caused by a foreclosure.

Contact a Foreclosure Defense Lawyer in Oak Park for More Information
Most people who are behind on mortgage payments want to find a way to stay in their homes. If working out a solution with the mortgage lender is no longer possible, Chapter 13 bankruptcy could be the best option that will allow you to keep your home. An experienced Oak Park foreclosure defense attorney can discuss options with you. Contact the Emerson Law Firm to learn more about how we can help.

See Related Blog Posts:

Cook County Foreclosure Lawsuit Against Banks Continues
Is a Short Sale Better Than a Foreclosure?

Friday, June 7, 2019

Cook County Foreclosure Lawsuit Against Banks Continues

Back in 2014, Cook County filed a lawsuit against Wells Fargo, HSBC, and Bank of America related to the banks’ foreclosure practices, according to an article in the Cook County Record. While the outcome of that case limited the damages available to Cook County and to affected borrowers, a recent federal case could allow Cook County to have federal judges reconsider the ruling. We want to say more about the 2014 case and its connection to foreclosures in Chicagoland, and the possible implications of the recent case for reconsidering what banks owe when they engage in predatory lending practices.

Getting the Facts of the Case: Cook County’s Recent History Suing for Discriminatory Lending Practices Leading to Foreclosure

The 2014 lawsuit alleged “the lenders engaged in discriminatory predatory lending practices against racial and ethnic minority borrowers,” and that those discriminatory lending practices “fueled a wave of foreclosures, stripping equity from minority borrowers and sending them into default.” As a result, homes throughout the Chicago area and its suburbs ending up vacant, and property values in neighborhoods across the region declined. As the article explains, that lawsuit resulted in a 2018 court ruling in which federal judges “limited the kinds of monetary damages the country could demand from the big banks.”

In short, the 2018 decision said that Cook County could only obtain “direct costs the Cook County Sheriff’s Office and courts may have been forced to pay to handle a larger than usual number of foreclosure cases.” Cook County had sought much more extensive damages that would have included payment for “depressed property tax collections” as well as for “increased blight and crime.” While the 2018 ruling came as a disappointment for consumer advocates and for Cook County, a recent federal court ruling suggests that Cook County may in fact have been able to seek some of those additional damages.

New Federal Case Expands Possibilities for Damages in Foreclosure and Predatory Lending Cases

While the recent case occurred in the 11th Circuit Court of Appeals, it could prove to be persuasive in Illinois. In that case, the 11th Circuit ruled that the City of Miami should be able to move forward with a predatory lending claim against several big banks, including both Wells Fargo and Bank of America, which were also named in the Cook County suit. The 11th Circuit specifically clarified that “the connection between the banks’ alleged actions and the lost property tax revenues and other economic woes the city suffered” could show that the big banks proximately caused those harms. Accordingly, the Court allowed the city to move forward with its lawsuit seeking more extensive damages against the named big banks.

According to Judge Stanley Marcus, who authored the decision, “proximate cause asks whether there is a direct, logical, and identifiable connection between the injury sustained and its alleged cause.” Judge Marcus emphasized that the city showed there was indeed proximate cause because it proved that the bank’s conduct was “necessarily and directly connected to” the harms that occurred in the city.

Cook County is now using the language from that decision to argue that it should be entitled to seek broader damages from the big banks named in its lawsuit.

Learn More from a Foreclosure Defense Lawyer in Oak Park

If you need help with foreclosure defense or what to learn more about your options if you were the victim of predatory lending practices, an Oak Park foreclosure defense attorney can assist you. Contact the Emerson Law Firm for more information.

See Related Blog Posts:

Is a Short Sale Better Than a Foreclosure?

Recent Court Case Addresses Role of Third-Party Buyers in Foreclosure Sales

Friday, April 19, 2019

Is a Short Sale Better Than a Foreclosure?

Many homeowners in Oak Park, Illinois are getting to the point at which the foreclosure crisis no longer feels like a threat as neighborhoods throughout Chicagoland continue to recover. However, many homeowners continue to face foreclosure, and a lot of those individuals do not understand their options when it comes to foreclosure defense and methods for keeping their home. In some cases, foreclosure avoidance tactics allow the homeowner to keep his or her house, while in other cases, they do not.

A recent article in Forbes discusses the difference between a short sale and a foreclosure. We want to say more about whether a short sale is better than a foreclosure, and to provide more information about other ways of avoiding owing money once a short sale goes through.

What is a Short Sale?
Many homeowners are confused about the distinction between a short sale and a foreclosure. They do have certain similarities, with the most obvious being that both a short sale and a foreclosure result in the homeowner losing the property. However, a short sale can be much better for your credit. A short sale, importantly, is not foreclosure. As such, it is a way of avoiding foreclosure.

So what is a short sale? As the article explains, a short sale is a type of sale that involves selling your house for a total price that is less than what you owe on your mortgage. For instance, if you purchased your home at the height of the market for $500,000, it may have declined significantly in market value since then. As a result, with the mortgage payments you have already made, let us say you still owe $475,000 on the mortgage. However, with the current market, your home is valued at only $400,000. You are able to find a buyer for that amount, but it leaves you with a deficit of $75,000. Since “you are technically coming up short” by $75,000, this type of sale is known as a short sale.

Other than the shortfall, a short sale works much like any other home sale. Many homeowners work with real estate agents and advertise the property in the same way they would another house. However, the bank has a final say in who gets to buy the house in a short sale.

Why is a Short Sale Usually Preferable to a Foreclosure?
When a homeowner completes a short sale, the expectation is usually that the bank is going to forgive the remaining amount of debt. In the example above, the bank would be forgiving the $75,000 that the homeowner still owes on the mortgage. In some cases, however, the bank tries to recoup the money.

As the article clarifies, some short sales result in the mortgage lender filing a “deficiency judgment” against you in an attempt to obtain the “shortfall” amount from the sale. In the example given above, the lender might seek a deficiency judgment for $75,000. While some states do not allow mortgage lenders to file deficiency judgments in these circumstances, Illinois law does allow for deficiency judgments after a short sale, but there are ways to avoid them.

If the short sale agreement between the homeowner and the mortgage lender expressly states that the mortgage lender is giving up its right to seek the “shortfall” amount, the lender cannot file a deficiency judgment. Even if the lender will not agree to this type of clause, it is important to know that the lender will not automatically receive a deficiency judgment. Rather, the mortgage lender will need to file a claim, and the court will need to award the deficiency judgment. Under Illinois law, deficiency judgments are prohibited after a deed in lieu of foreclosure, and they are permitted after a foreclosure.

Contact an Oak Park Foreclosure Defense Attorney
If you have questions about short sales, avoiding foreclosure, and deficiency judgments, an Oak Park foreclosure defense lawyer can help. Contact the Emerson Law Firm today for more information.

See Related Blog Posts:

Recent Court Case Addresses Role of Third-Party Buyers in Foreclosure Sales

How the Government Shutdown Has Affected Foreclosures

Sunday, March 10, 2019

Recent Court Case Addresses Role of Third-Party Buyers in Foreclosure Sales

If an Oak Park resident’s home goes into foreclosure, there are a number of steps that exist before the property goes through the process for a judicial foreclosure and the home is sold. Since Illinois is a judicial foreclosure state, all foreclosures go through the court system. However, in some cases, the homeowner is continuously taking action to attempt to retain possession of the home and to stop the foreclosure. What happens when a judgment of foreclosure is entered and the house is sold to a third party, but the homeowner appeals the judgment in an attempt to keep the property?

That is the basis for a recent case that went before the First Appellate District of Illinois, Deutsche Bank National Trust Co. v. Roman (2019). According to a recent article in about the case, the court had to determine whether a third-party buyer is a party to the foreclosure case, and whether an appeal can reverse a foreclosure judgment and sale. The court ruling could have implications for other foreclosure judgments and sales in the Oak Park area.

Getting the Facts About the Case

As the court explained in the background of the case, the matter had “a long litigation history.” We want to provide some basic facts about the background to make clear how the court reached its conclusion. In short, the defendants, Cesar and Irene Romans, owned a residential property in Chicago that went into foreclosure. The bank initiated the foreclosure process, and after approximately a year and a half, the court entered a judgment of foreclosure and sale.

The Romans appealed, and the case went through a lengthy litigation process. More than four years after the court entered the judgment of foreclosure and sale, a judicial sale of the property was scheduled. The Romans attempted to stop the judicial sale, arguing that they never received a grace period notice and that they never received a proper notice of default. The lower court agreed to an emergency motion to stay the sale of the property, but the court ultimately found against the Romans and permitted the sale to move forward a couple of months later. The buyer of the property was a third-party buyer unconnected to the foreclosure case. The Romans continued to appeal the judicial sale.

The plaintiff argues that the Romans’ appeal is moot because the property already had been conveyed to a third party under Illinois Supreme Court Rule 305(k).

Does a Third Party’s Acquisition of Property Render an Appeal Moot?

In the present case, the court had to determine whether a third party’s acquisition of the property in question rendered the appeal moot under Rule 305(k), and thus whether the third party was a “party to the foreclosure proceedings,” according to the article.

The court ultimately concluded that a third party buyer in a judicial foreclosure sale is not a party to the lawsuit, and that public policy behind Rule 305(k) is to prevent a third party from “losing [a] property due to facts unknown to him at the time of the sale.” Accordingly, the court clarified that, in a foreclosure case where the third party buyer has no other stake in the foreclosure proceedings than as a purchaser, an appeal from the former homeowners who went through the foreclosure process is moot under Rule 305(k).

Contact an Oak Park Foreclosure Defense Lawyer

An Oak Park foreclosure defense lawyer may be able to help you to stop a foreclosure at various points in the process. Contact the Emerson Law Firm today to learn more about your options.

See Related Blog Posts:

How the Government Shutdown has Affected Foreclosures
Reading the FDCPA: Are Foreclosure Actors Debt Collectors Under the Law?

Thursday, February 7, 2019

How the Government Shutdown has Affected Foreclosures

Just because the government shutdown is over does not mean that it is not having lingering effects; its effects are still being felt among government employees and consumers across the country. One area in which the government shutdown is still plaguing consumers concerns homeowners working on foreclosure avoidance and homeowners who are in government mortgage programs. How is the shutdown continuing to impact these groups of people? In short, during the government shutdown, many employees from the U.S. Department of Housing and Urban Development (HUD) were furloughed, meaning that they were in effect sent home from work without pay. As you might recall, the government shutdown lasted over a month.

During that time, people who were relying on HUD services to avoid foreclosure did not get the help they needed, according to a recent article in The Hill. And that lack of help has now put a significant number of homeowners at risk of losing their houses.

How the Government Shutdown Affects Homeowners Who Need Mortgage Help
During the government shutdown, a large number of HUD workers were furloughed, which meant that those workers could not handle cases related to foreclosure—from requests for modifications to questions about foreclosure cases that already have been started. As a result of being unable to handle new cases coming in and questions pertaining to existing cases, many HUD employees returned to work once the shutdown ended to find that cases “piled up while critical agency resources were unavailable.”

The fact that so many HUD workers were furloughed also means that they were unavailable to provide information to homeowners who are facing foreclosure this month. Indeed, according to the article, one elderly woman had been working with a HUD representative prior to the shutdown after being wrongfully denied entry into a foreclosure avoidance program for newly widowed spouses by her lender. But because no one at HUD could help that woman during the month of January—a critical time for her case, which is coming up for foreclosure this month in February—she may now be at much greater risk of losing her home.

This particular example is only one of many related to the lingering harms of the government shutdown on homeowners hoping to avoid foreclosure.

Millions of Borrowers may Have Been Affected by the Shutdown
The article underscores that more than nine million borrowers currently have mortgages provided by, or insured by, government agencies including HUD or the U.S. Department of Agriculture (USDA). The majority of these homeowners are “low-income, seniors, and/or residents of rural areas.” That is to say that most of these homeowners do not have other places to turn for help in avoiding foreclosure. If the government agency that handles their mortgage is closed, then most of those homeowners simply do not get help or answers to their questions. While many HUD employees were furloughed, so were employees at the USDA.

Currently, the article suggests that “thousands” of homeowners likely may lose their homes in the near future due to the shutdown—had HUD and the USDA been open, those homeowners would not be facing foreclosure today. Since the government shutdown lasted for such a long time, there is currently a “substantial backlog of requests for assistance,” which means that those same homeowners may not be able to obtain help from HUD or the USDA any time soon.

Consumer protections advocates argue that the agencies should extend foreclosure deadlines by the same amount of time as the government shutdown and should “issue a stay on foreclosures until they clear the backlog of pending requests for assistance.” Whether such steps will be taken remains to be seen.

Contact an Oak Park Foreclosure Defense Lawyer
In the meantime, if you need help avoiding foreclosure, an Oak Park foreclosure defense attorney can assist you. Contact the Emerson Law Firm to learn more.

See Related Blog Posts:

Reading the FDCPA: Are Foreclosure Actors Debt Collectors Under the Law?
Foreclosure Evictions Postponed for the Holiday Season

Wednesday, January 2, 2019

Reading the FDCPA: Are Foreclosure Actors Debt Collectors Under the Law?

A recent case to go before the U.S. Supreme Court, Obduskey v. McCarthy Holthus LLP, raises an issue that links foreclosure actions with the Fair Debt Collection Practices Act (FDCPA). More specifically, the issue in the case is whether a party taking foreclosure actions can be defined as a debt collector under the FDCPA, and thus whether a homeowner who is being subjected to those foreclosure actions has rights related to the foreclosure under the FDCPA. We will say more about the case and how its outcome could impact both homeowners and consumers more generally in the Oak Park, Illinois area.

Facts of Obduskey v. McCarthy Holthus LLP

The facts of the case are relatively simple. The plaintiff and homeowner, Dennis Obluskey, took out a mortgage in 2007 through Magnus Financial Corporation. His mortgage ultimately was sold to Wells Fargo, which then became the mortgage servicer. The homeowner got behind on mortgage payments between 2007 and 2009. By 2009, Wells Fargo began a nonjudicial foreclosure.

As a side note, Illinois is not a nonjudicial foreclosure state. To be clear, states in the U.S. either are judicial foreclosure states or nonjudicial foreclosure states. Illinois is a judicial foreclosure state, which means that any foreclosure needs to go through the court system. Nonjudicial foreclosure states allow a lender to foreclose on a home without going through the court system. Although the case at issue arises out of a nonjudicial foreclosure state, its outcome nonetheless could affect the rights of homeowners and consumers in judicial foreclosure states given that it could expand the definition of “debt collector” under the FDCPA.

Now, back to the facts of the case. In the language of the foreclosure notice to the homeowner, Wells Fargo indicated that its counsel, McCarthy Holthus LLP, “may be considered a debt collector attempting to collect a debt.” McCarthy, however, did not ask the homeowner to make any payments on the debt. The homeowner later filed a claim alleging that McCarthy and Wells Fargo violated the FDCPA.

Does the FDCPA Apply in Any Foreclosure Cases?

The question that the U.S. Supreme Court will need to address is whether the FDCPA is applicable in any foreclosure cases, and specifically in nonjudicial foreclosures. The case previously was heard by the 10th Circuit, which concluded—in line with a previous decision from the 9th Circuit—that the FDCPA is not applicable in nonjudicial foreclosure cases. Other circuits have disagreed. For example, the U.S. Courts of Appeals for the 4th Circuit, the 5th Circuit, and the 6th Circuit all have determined that the FDCPA does apply in these foreclosure cases. The 7th Circuit, which hears cases out of Illinois, has not ruled on the issue.

Are threats of foreclosure attempts to collect debts? Do such foreclosure attempts then make lenders debt collectors in certain circumstances? The Supreme Court will hear the case on January 7, 2019, and the decision likely will be handed down in May or June. If the Supreme Court determines that lawyers who are carrying out foreclosure proceedings are debt collectors under the FDCPA, it would broaden the scope of who can be a debt collector under the law and thus would broaden the types of situations in which a consumer may have FDCPA protections.

Contact an Oak Park Consumer Protection Lawyer

If you have questions about the FDCPA and consumers’ rights and protections, you should speak with an Oak Park consumer protection attorney. An advocate at our firm can discuss your situation with you. Contact the Emerson Law Firm for more information.

See Related Blog Posts:
Advocates Seek Consumer Protection from Abusive Debt Collection Tactics
Wells Fargo Admits to Hundreds of Wrongful Foreclosures