Underlying foreclosure case not germane to eviction suit

In a case handed down by the Illinois Appellate Court for the Third District, the court determined that a dispute about the validity of a mortgage foreclosure judgment is not germane in an eviction action brought by the foreclosing party against an occupant of the foreclosed real estate.

In the case, Wells Fargo Bank, N.A. v. Cecil W. Watson, Wells Fargo sought to evict an occupant in the real estate acquired by the bank after a foreclosure.  Wells Fargo was granted summary judgment in the eviction procedure and the defendant appealed claiming that issues of material fact existed as to whether or not Wells Fargo had standing in to file the foreclosure case.

Eviction cases are special in that, because the law wants them to advance “quickly” (although not as fast as any landlord would like!), the parties to an eviction can only raise matters “germane” to the plaintiff’s right of possession.  The appeals court ruled that the dispute over the foreclosure case was not germane to the issue of possession and instead constituted an attack on the foreclosure judgment and affirmed the eviction order of the lower court.

While the case is not groundbreaking, it does stand for the proposition that defendants in eviction cases arising out of a foreclosure cannot use defects in the foreclosure case as a defense to an eviction.

This entry was posted in foreclosure and tagged , . Bookmark the permalink.

2 Responses to Underlying foreclosure case not germane to eviction suit

  1. dan barcus says:

    I have a question, not sure where to leave it, but this seems like a good place. I am negotiating to buy a foreclosed 2 flat in Rogers Park that Deutsche has title to. The former owner and potentially other unknown people are occupying the property still, and have refused entry to anyone and everyone. For whatever reason, Deutsche did not evict them. So if I buy it, I will certainly try to work “cash for keys” but am not optimistic. I’ve read a lot of your site, and from what I gather, #1, I take the deed to Cook County Court #1 downtown and file a Forcible Entry and Detainer Suit immediately, #2 I attempt to have them served by the Sheriff, #3 then an alias by a process server until #4 at last they do get served, whomever they are. #5 Then the former owners and/or tenants will either respond or not, and #6 we take the process from there one step at a time. Do I have this more or less straight? I am open to hiring your firm to handle this, do you do closings as well? Should I place a call to you directly once we have an accepted contract and closing date? Your posts are very informative and much appreciated. Love how “on point” they are!

    • Richard Magnone says:

      Dan, that’s not the procedure at all. The protecting tenants in foreclosure act gives tenants lots of rights. On top of that, the recently passed Keep Chicago Renting ordinance could place additional restrictions on you if you purchase after the law’s effective date. Thank you for the compliments on the website. Things have been pretty hectic around here lately, so I’ve tried to keep up with the biggest bits of news. However, the matters you are dealing with are quite complex and you probably need to seek some legal help with respect to them.

Leave a Reply

Your email address will not be published. Required fields are marked *