Counsel’s Corner: Court System is Biggest Challenge in Foreclosure, Eviction Cases

Keith H. Werwas joined the Chicago, Illinois office of default servicing firm Potestivo & Associates in April 2009 and currently serves as Assistant Vice President – Managing Attorney. Keith works with all aspects of default servicing, including foreclosures, bankruptcies, landlord/tenant, title resolution, loss mitigation/home retention, REO disposition, and litigation. Potestivo & Associates is a member of the Legal League 100, a nationwide consortium comprised of 100 default servicing and financial services law firms providing a results-driven, go-to resource for the industry's decision makers. DS News recently spoke with Keith about the challenges of the judicial foreclosure process.

What is the biggest challenge you face when you take on a foreclosure or eviction case?

While we are seeing improvement, the biggest challenge faced in Illinois is the court system.  Because Illinois has a high volume of foreclosure and eviction actions, the court calendars become bogged down and cases aren’t heard as quickly. Sometimes it can take several months to have a case heard in front of a judge. (Editor's note: Illinois is a judicial foreclosure state, meaning foreclosures must pass through the court system). Also, over the last several years due to the foreclosure boom, a lot of attorneys have focused on litigiously defending borrowers in actions, which can lead to a slow down of getting a foreclosure or eviction completed.

How do you deal with it when someone makes a filing to prolong the case?

Our office has a thorough review process in place when it comes to filing pleadings. We have quality control steps in place with the goal to try and eliminate as many challenges to a case as possible at the onset.  If a borrower files a contested pleading to prolong the case, our litigation department is very skilled at attacking the pleading to dispose of it as quickly and efficiently as possible.

How do you handle the situation when the courts get bogged down?

Because we know the court systems can back up quite easily, our firm stays proactive in quickly drafting our pleadings when a case reaches a new milestone so that we can get the earliest date possible. We know timelines are critical in this industry so we do everything absolutely necessary to move files through the various milestones while navigating the court’s calendar.

What is the average time it takes to complete a foreclosure in Illinois?

If the case is not contested, you're looking at about eight or nine months. If a case becomes contested, depending on the nature of the case and the county that the case is in, it can take longer.

What steps do you take when a property in a foreclosure or eviction action is occupied?

The first thing you have to do is ascertain the identity of the occupants. If the occupant(s) in the property are named in the foreclosure action, we will obtain an order of possession through the foreclosure proceeding. If the occupant(s) are not named in the foreclosure action, then we file a forcible eviction action. Once the order of possession is obtained through either the foreclosure or the eviction action, the order is placed with the Sheriff for execution.

Where do you see the foreclosure timeline issue in a year compared to right now – better, worse, or the same?

I think timelines overall will continue to get better. While we can never predict what defenses may be put forward in an action, I think our industry is moving in the right direction to streamline the timelines.  Also, I think we will see the court system continue to evolve with their efficiencies as we move forward.