Your Rights

Ok, the process server visited your house and left you a Summons and Complaint for foreclosure.  Now what the heck do you do?

The first thing you want to check is whether the company suing you actually owns your mortgage.  That may seem like a simple no-brainer, but I find case after case where the loan is originated by one company and another company files the foreclosure.  The right to file the lawsuit is called "standing".  Does the plaintiff have standing to file the lawsuit against you?

I typically file a motion to dismiss because the plaintiff does not have a proper assignment of the mortgage from the original lender.
 

 The 5th District Appellate Court sits in Mt. Vernon IL and hears appeals of cases throughout Southern Illinois.  On June 16, 2008, the Judges issued a decision in Bayview Loan Servicing L.L.C. vs. Jeffrey Eden Nelson, holding that plaintiff Bayview did not have standing to file the foreclosure case because it did not have an assignment of the mortgage from the original lender.  The lower court granted Bayview a judgment of foreclosure and ordered a sale of the property.  The homeowner appealed and argued that Bayview failed to establish that it held the mortgage.  Justice Stewart, joined in a unanimous opinion by Justice Goldenhersh and Justice Spomer, called Bayview a stranger to the mortgage and overturned the foreclosure and sale.

 ANDY MIOFSKY  618/931-1313