You Have A Sale Date - What Can Be Done?

A judgment of foreclosure has been entered and a sale date is coming. The question almost every homeowner asks at this point is some version of the same one: can the sale be stopped?

The honest answer is that Illinois law provides a specific set of mechanisms for interrupting a foreclosure sale, each with its own deadline, and which of them remain available depends on where the case sits on the calendar. Some of those deadlines run from the date of service, months before the judgment. Others run from the judgment itself. A few are federal rather than state, and turn on what the mortgage servicer did or failed to do rather than on anything that happened in the courtroom. None of them are automatic.

This article covers the stage of the Illinois foreclosure timeline that sits between the entry of judgment and the auction — roughly ninety days in an ordinary residential case. For how that stage fits into the sequence as a whole, see our overview, How Long Does a Foreclosure Take in Illinois?

Why is there a gap between the judgment and the sale at all?

The ninety days is not a grace period the court grants. It is the residue of two statutory waiting periods that have to expire before the property can be sold.

Under 735 ILCS 5/15-1507(b)(1), the real estate is sold upon expiration of the reinstatement period and the redemption period, or upon entry of judgment after all rights of redemption have been waived. Until those periods run, there is no sale to hold.

The redemption period is the longer of the two and therefore the one that usually controls. For residential real estate, 735 ILCS 5/15-1603(b) sets it to end on the later of seven months from the date all mortgagors were served or otherwise submitted to the jurisdiction of the court, or three months from the date the judgment of foreclosure was entered. For other property the first figure is six months rather than seven. Where service happened early and the judgment came late, the three-month prong is what pushes the sale out — which is where the familiar "about ninety days after judgment" figure comes from. Where the case moved quickly to judgment, the seven-month prong may still be running, and the sale is further off. The statute also allows shorter periods in narrow circumstances, including where the property is found abandoned and where the mortgagee waives its right to a deficiency and the property is worth less than a threshold tied to the judgment amount.

What can be done here. The first step is arithmetic, not argument. The redemption and reinstatement dates are computed from the record — the date of service or appearance for each mortgagor, and the date the judgment was entered — and compared against the sale date the plaintiff has set. Where the dates do not line up, the timing of the sale itself can be raised. Where they do, the calculation still tells you which of the remedies below remain open, which is what every other decision at this stage depends on.

Reinstatement: 735 ILCS 5/15-1602

Reinstatement means curing the default — paying the arrears and the other amounts the statute permits — and having the mortgage restored as though acceleration had not occurred. When it is completed, the statute provides that the foreclosure and other proceedings to enforce the obligation are dismissed.

The catch is the deadline. Section 15-1602 permits reinstatement before the expiration of ninety days from the date the mortgagor, or if more than one, all of the mortgagors, have been served with summons or by publication or have otherwise submitted to the jurisdiction of the court. That window runs from service, not from judgment. By the time a sale date is on the calendar, it has very often already closed. Homeowners are frequently surprised by this, because the ninety-day reinstatement window and the ninety-day gap between judgment and auction are easily confused with one another. They are different periods, measured from different events, and they rarely overlap.

Section 15-1602 also limits repetition: where the relief has been used, it is not available again under the same mortgage for five years from the dismissal of that foreclosure.

What can be done here. Where the reinstatement window is still open, a written reinstatement figure can be demanded from the servicer and examined line by line against the note, the mortgage and the payment history — property inspection charges, corporate advances, attorney fees and escrow shortages are all worth testing. Where the window has closed, the dates on which it opened and closed are still worth confirming against the return of service, because a defect in service moves the date the clock started.

Redemption: 735 ILCS 5/15-1603

Redemption is different from reinstatement. Reinstatement cures the default and revives the loan; redemption pays the debt off in full and ends it. Only an owner of redemption as defined by the statute may redeem, and only during the period described above.

The amount required is set by 735 ILCS 5/15-1603(d): the amount specified in the judgment — principal, accrued interest, court-approved costs, reasonable attorney fees and amounts advanced under the mortgage — plus per diem interest, plus the additional expenses the mortgagee reasonably incurs between judgment and redemption that the court authorizes and certifies.

Because redemption requires the full payoff, it is in practice a refinance or sale question rather than a litigation question. Where there is equity in the property, a controlled sale before the auction, or a refinance that redeems, puts the homeowner in a different position than an auction does. Where there is no equity, redemption is generally not a realistic path and the analysis moves elsewhere.

There is also a separate, later right. Under 735 ILCS 5/15-1604, where the purchaser at the sale was the mortgagee or its nominee and the price was below the statutory threshold, an owner of redemption has a special right to redeem ending thirty days after the sale is confirmed. It is narrow, and it exists after the auction rather than before it — but it is a reason not to treat the auction as the end of the analysis.

What can be done here. The payoff figure the servicer certifies can be examined against the judgment and against the statute's list of what may be included, and the per diem and post-judgment expense components verified rather than accepted. Where a sale or refinance is being considered, the redemption deadline is the outside date the transaction has to close by, and it is fixed by statute rather than by the lender's willingness to wait.

Motions directed at the judgment itself

The remedies above accept the judgment and work within it. The other route is to attack the judgment before the sale is confirmed.

A foreclosure case is not over until the sale is confirmed, which means the court retains authority to revisit the judgment. But the standard that applies to a motion to vacate a default judgment of foreclosure changes depending on when the motion is filed.

In Wells Fargo Bank, N.A. v. McCluskey, 2013 IL 115469, the Illinois Supreme Court held that once a motion to confirm the judicial sale has been filed, a borrower seeking to set aside a default judgment of foreclosure may do so only by filing objections to confirmation under 735 ILCS 5/15-1508(b) — which requires showing that notice was not given, that the terms of sale were unconscionable, that the sale was conducted fraudulently, or that justice was otherwise not done. Before that point, the more liberal standard of 735 ILCS 5/2-1301(e) is available, under which a court may set aside a default on terms that are reasonable, with substantial justice between the parties as the touchstone. Presenting a meritorious defense to the complaint, which may be enough under the earlier standard, is not by itself enough once confirmation has been sought.

The practical consequence is that the filing of the motion to confirm — not the auction, and not the judgment — is the event that narrows the available grounds.

What can be done here. Where a default judgment was entered, the record is examined for the basis on which it was entered and for grounds to vacate under section 2-1301(e), and the motion is brought before the plaintiff moves to confirm rather than after. Objections to the court's jurisdiction over the person have their own statute and their own sequencing rules, and are identified before other relief is sought so they are not waived. Where the case has moved past the point at which section 2-1301(e) is available, the analysis shifts to the post-judgment relief provisions and to the confirmation objections themselves.

The federal servicing rules: the 120-day rule and dual tracking

Two provisions of Regulation X, which implements RESPA, bear directly on this stage.

The first is 12 C.F.R. § 1024.41(f)(1), which prohibits a servicer from making the first notice or filing required for foreclosure unless the borrower's obligation is more than 120 days delinquent, the foreclosure is based on a violation of a due-on-sale clause, or the servicer is joining the action of a superior or subordinate lienholder. This is the rule behind the observation that a foreclosure generally cannot be filed until roughly four months after default.

The second is the dual-tracking prohibition in 12 C.F.R. § 1024.41(g). If a borrower submits a complete loss mitigation application after the foreclosure has been commenced but more than 37 days before a scheduled sale, the servicer may not move for a foreclosure judgment or order of sale, or conduct a foreclosure sale, unless one of three things has occurred: the servicer has sent a notice that the borrower is not eligible for any loss mitigation option and the appeal process has been exhausted or not invoked; the borrower has rejected all options offered; or the borrower has failed to perform under an agreement on an option.

Two features of that rule do most of the work. The application must be complete, as the regulation defines that term, which is why what was sent and when it was received matters more than what was discussed on the phone. And the 37-day measurement makes the submission date, not the decision date, the operative fact. These provisions are the subject of a pending federal rulemaking, so the current text is what governs until any amendment takes effect.

What can be done here. The servicing file is reconstructed from the borrower's side — what was submitted, on what date, through what channel, and what the servicer acknowledged in writing — and compared against the date the case was filed and the date the sale was scheduled. Where the sequence does not match what the regulation requires, that is raised in the foreclosure case, on a documentary record assembled before it is needed rather than after.

Illinois Supreme Court Rule 114: the loss mitigation affidavit

Illinois has its own requirement layered on top of the federal one. Under Illinois Supreme Court Rule 114(a), in cases filed under the Illinois Mortgage Foreclosure Law where the mortgagor has appeared or filed an answer or other responsive pleading, the plaintiff must comply with the requirements of any loss mitigation program that applies to the loan before moving for a judgment of foreclosure.

Rule 114(b) requires the plaintiff to document that compliance by filing an affidavit, prior to or at the time of moving for judgment, specifying any type of loss mitigation applicable to the mortgage, what steps were taken to offer it to the mortgagor, and the status of those efforts. Rule 114(c) requires the affidavit to follow, or substantially adopt, the form in the Article II Forms Appendix. Rule 114(d) is the enforcement provision: the court may, on its own motion or on motion of a mortgagor, stay the proceedings or deny entry of a foreclosure judgment where the plaintiff has not complied.

Note the condition in subsection (a). The obligation attaches where the mortgagor has appeared or pleaded. A homeowner who never appeared has, among other things, given up the benefit of this rule — one more reason the response window after service matters as much as it does.

What can be done here. The affidavit that was filed, if one was, is read against what the rule requires it to specify and against what the servicing record actually shows about the loss mitigation that was offered and its status. A rule aimed at the entry of judgment is raised most naturally in connection with the judgment, so where a judgment has already been entered the Rule 114 question is generally presented together with the motion directed at that judgment rather than on its own.

The notice of the sale

The sale itself has formal requirements, and they are worth confirming while the sale is still ahead rather than discovering afterward. Under 735 ILCS 5/15-1507(c), notice of the sale must be published at least three consecutive calendar weeks, once in each week, with the first publication not more than 45 days before the sale and the last not less than 7 days before it. Parties who have appeared and have not been found in default must be sent notice not more than 45 days nor less than 7 days before the day of sale, served in the manner the rules of court provide for papers other than process and complaint.

Section 15-1507(b) also permits the sale to be conducted in person, online, or both at the mortgagee's request, which has made the mechanics stated in the notice — where the sale will occur and how to participate — a more practical question than they once were.

What can be done here. The publication dates and the notices served are checked against the statutory windows, and the notice is compared against the property and the judgment for accuracy. Defects in the notice of sale are among the grounds the statute identifies for refusing to approve a sale, so what is documented now is what is available at the confirmation hearing later.

County practice: Cook, DuPage and Will

The statute is the same across Illinois; the mechanics are not. Cook, DuPage and Will each handle sales and the motions surrounding them differently — who conducts the sale, whether it is held online or in person, how far in advance a motion to stay a sale must be on file to be heard before the sale date, and which calendar hears it. A motion that is timely as a matter of statute can still arrive too late to be heard in a particular courtroom before the auction proceeds. Local practice is part of the timing analysis, not separate from it.

After the sale, the case is still open

If a sale does go forward, the case does not end there. The sale has no effect until the court enters an order approving it, and 735 ILCS 5/15-1508(b) sets out the specific grounds on which a court may decline to approve one. The confirmation hearing is the subject of the next article in this series.

If you have a sale date approaching in Cook, DuPage or Will County, or a judgment has been entered and you are not sure which of these deadlines are still open, you can reach us through our contact page.

This article is general information about Illinois foreclosure procedure and is not legal advice. Reading it does not create an attorney-client relationship. Deadlines and available remedies depend on the specific facts and record of a case.