The Illinois Mortgage Foreclosure Law (“IMFL”) is a comprehensive and highly technical statute that governs the entire foreclosure process. Key to that process are preforeclosure notices, designed to give a borrower information and time with which to engage in loss mitigation efforts. There are several different types of notices, each stemming from a different source of law, and all relatively straightforward to address on their merits. The difficulty stems from procedure: If a notice was not given as required, how should a defendant raise the issue? The
Illinois Appellate Court has offered conflicting answers to this procedural question. In 2014, Bank of America v. Adeyiga suggested that the Grace Period Notice was properly raised as an affirmative defense. But in 2015, CitiMortgage v. Bukowski held that the procedurally similar Notice of Acceleration (“NOA”) should be raised only through the IMFL’s particular procedural mechanisms, and not as an affirmative defense. And in 2016, Cathay Bank v. Accetturo combined the Adeyiga and Bukowski precedents to suggest that sometimes NOA issues were affirmative defenses and sometimes they were not, without exactly explaining how or why that distinction came to be or what purpose it served.
This Article proposes that, contrary to Accetturo, all issues concerning the NOA should be raised as denials of the IMFL’s deemed and construed allegations. The Article further suggests that this principle can be extended beyond Bukowski, and that most notice issues are best raised as denials of the deemed and construed allegations. Preferring deemed and construed allegations over affirmative defenses is both supported by the nature of a notice claim and is more consistent with the comprehensive pleading regime for mortgage foreclosures generally.
Against Accetturo and Beyond Bukowski: Litigating Notices in Illinois Foreclosures,
Loy. U. Chi. L. J.
Available at: https://lawecommons.luc.edu/luclj/vol48/iss4/6