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posted: 2/28/2010 12:01 AM

If no judgment has been entered in your foreclosure, you have time

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Q. I was served with a foreclosure notice back in August. I filed papers with the court asking the bank's law firm to produce some documentation. I have been to court twice now and both times the law firm has asked for a continuance. It seems that they can't find the documents that I requested. I have a third court date later this month. I was wondering if I should retain a lawyer if there is another continuance. Also when does the redemption period begin?

I appreciate your time and response.

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A. There are some courts (although none in Illinois that I am aware of) that have dismissed foreclosure cases as a result of the lender being unable to produce original documents. Obviously, the lender's attorneys believe it is important to come up with the documents or they would not be requesting continuances. I would continue to press the attorneys for the production of these documents and if they are unable to produce them, ask the judge to dismiss the case.

The redemption period commences on the date the last defendant was served and runs for the longer of seven months from that date or three months from the date judgment is entered (which, of course, has yet to occur in your case).

I sued a guy a few years ago and got a judgment against him. At the time, he didn't have a job and didn't own anything except his condominium. My attorney at the time suggested I record the judgment against his condominium and wait. He said sooner or later the condo owner would need to settle up with me.

Last week, I was served with foreclosure papers. Apparently, the condo owned by the guy I got the judgment against is being foreclosed.

What does this do to me? Do I still have a judgment against the guy or his property? The papers say I have to file an Appearance. Should I do that? If the property goes to foreclosure sale, will I get paid?

A. As you have determined, you were named in the foreclosure suit as a result of your having an interest in the property. Your interest evolves from the memorandum of judgment you recorded against the property.

You have two choices here. One, file an Appearance in the foreclosure case and then file a counterclaim for the amount of your judgment lien. If you do this yourself you will spend some money and probably a lot of time. If you hire an attorney, you will spend a significant amount of money. Accordingly, you should evaluate your position before taking this action. Your other choice is to do nothing, in which case your judgment lien against the property will be extinguished, although you would retain your right to satisfy your judgment by other means, such as a wage garnishment.

The most important issue is this: Which was recorded against the property first, your judgment or the mortgage. In virtually all cases, the mortgage will have been recorded first, as the lender would not have allowed the loan to close in the event there was a judgment lien ahead of it. There is, however, a gap in time from when the title search was performed (a prerequisite to obtaining the loan) and the recording of the loan. If you recorded your judgment lien in that gap, you are in excellent shape.

Presuming your judgment lien was recorded after the mortgage, you must now determine if any money may be left for you after a foreclosure sale and payoff of the mortgage. For example, if the property is worth $200,000 and the mortgage balance is $100,000, obviously you want to preserve your lien. More likely, however, is that the property is worth something like $150,000 and the loan balance is $180,000. In this case, because the lender's lien has priority over your lien, you would probably receive nothing.

I would suggest contacting a real estate attorney to review your options.

• Send your questions to Attorney Tom Resnick, 345 N. Quentin Road, Palatine IL 60067, by e-mail to tdr100@hotmail.com or call (847) 359-8983.

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