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Alex S. Moe

Abstract

The Illinois Mortgage Foreclosure Law (IMFL) is a comprehensive statute laying out a single procedure for the entire foreclosure process. Residential foreclosures are dominated by statutory redemption, a seven-month period during which the borrower can pay off the entire loan balance and retain their property. Few borrowers do so, but the redemption period is independently important, for until it expires, a sale of the property--cornerstone of the foreclosure process--cannot occur.

The statutory redemption period starts to run when the borrower has been served. Normally, service occurs at a point certain in time. If service occurs by publication, however, the publication runs for three consecutive weeks. In that scenario, redemption should be calculated based on the third date of publication. This conclusion comports with the plain language of the statute, its lengthy history, and all available records of legislative intent.

New evidence suggests that more than four hundred residential foreclosures per year in Cook County alone have redemption periods miscalculated from the first date of publication. This is especially problematic because these are almost always cases where borrowers have not participated in the judicial process, and are unaware that their statutory rights have been infringed.

Fortunately, this issue permits a straightforward resolution. Plaintiff's firms can adjust their calculations to use the third date of publication. The judiciary can enforce compliance on a case-by-case basis, or systemically through an appropriate general order. Uniformly calculating redemption based on the last publication is not only consistent with the law and in accord with the broader statutory scheme, but also ensures that all borrowers in foreclosure benefit from the full measure of the IMFL's statutory protections.

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