Painless injections, easy rebates, honest dealer financing, quick-closing short sales. All are contradictions in terms.
But wait. As you and your agent were scrolling through the listings of homes on the market, you saw lots of short sales, and a sizeable number of those assured you that closing would occur immediately if not sooner.
Santa doesn’t really use reindeer, Valentine’s Day was invented by Hallmark to torture men, and quick-closing short sales are anything but. You should have little to no confidence in a listing (or a listing agent for that matter) that assures you that a short sale is already approved or can close quickly. I’ll spare you the war stories, but these days quick short sale closings don’t occur. The Seller’s lender re-sets the clock with every new contract – even if the purchase price in the new contract is exactly the same as the purchase price in the last contract.
So, why are there delays? Who is responsible?
Let’s rule out a few suspects first. It’s not the Buyer, the Buyer’s agent, or the Buyer’s attorney. They all want the transaction to close quickly and have little or nothing to do with getting the Seller’s lender’s approval of the short sale.
Well, who do we have left in the suspect pool? The Seller’s agent? Not likely. While an agent may claim to be a short sale expert, sometimes that just means that he has taken a class or two or has been involved in a few short sale real estate transactions. One defining characteristic of every lender’s short sale department is that they impose restrictions on who they will communicate with; they don’t want to deal with more than one person or one office. And – in the Chicago metro area anyway – that one contact with the Seller’s lender usually is the Seller’s attorney or that attorney’s office. So, we can excuse the listing agent from the line-up.
How about the Seller’s attorney? Yes, the Seller’s attorney definitely qualifies as a suspect. If the attorney delays submitting the short sale request to the lender, or delays responding to Seller’s lender’s peremptory demands for additional documents or information, or fails to (politely and) regularly push the Seller’s lender for information, then the Seller’s attorney bears responsibility for the delay. While this does happen, it usually doesn’t occur if the Seller’s attorney is a real estate attorney, or more precisely, an experienced real estate attorney.
Since we just issued a pardon to the Seller’s attorney – or at least commuted his sentence – who is left? The lender. The lender. THE *%&!@ LENDER.
From failing to acknowledge that they received documents, losing documents, making numerous (and duplicative) demands for additional information, failing or refusing to return calls, e-mails, and faxes, imposing ridiculously short deadlines to respond to their demands, burying files for weeks (if not months) at a time, to and including imposing unreasonable conditions on short sale approvals, short sale lenders give no indication that they are interested in processing their short sale files quickly.
As a Buyer, what can you do to hurry the process along? Very little. Even if the Seller’s attorney is paying close attention to the file, submitting information and documents as soon as they are asked for, responding to often ridiculous lender demands, and politely prodding the lender’s negotiator for progress reports, you still are at the whim of the lender. If Seller’s attorney isn’t diligent, heaven help you.
So what can a Buyer do?
1. Be patient. The reason you are involved with a short sale property is because you are getting a deal. When your anxiety spikes and your blood pressure rises, try to focus on what a good deal you are getting.
2. Stay in touch with your real estate agent and attorney. If the Seller’s attorney is doing a good job, your agent and attorney will be updated about once a week, and they will pass that information on to you.
3. Have a fall-back position if the closing doesn’t occur within a reasonable time frame (arrange alternative housing, if needed; walk away from the transaction; or decide how much longer you are willing to hang on).
I’d like to tell you that you this is the pessimistic perspective; unfortunately, it is a realistic one.
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This one sounds like it should be easy. And in theory it is. It is just a matter of checking with the Process Server (the person serving the summons) to find out whether the defendant was served with summons, and if so, how.
If the Process Server is the Sheriff’s office, the plaintiff can’t assume that customer service is a big priority. That is, no one from the Sheriff’s office is going to call to advise whether the service was successful, and that office is not going to send copies of the affidavit of service to the plaintiff either. The plaintiff has to call the Sheriff’s office and provide information about the case (like the case number or the Sheriff’s return number). That office then checks its records and reports that the defendant either has or has not been served; usually the Sheriff’s office will also provide additional information like the date and method of service (personal or substitute service). The Sheriff’s office sends the affidavit of service directly to the court file.
Since the Sheriff’s office doesn’t take kindly to daily telephone calls from people checking on the status of service, it makes sense to wait to check until after the last day the defendant can be served. The Summons specifies the last day that service can be accomplished (not later than 7 days before the appearance date for Cook county, and not later than 3 days for Lake and McHenry counties). So once that date has passed, it is safe to call.
If the Process Server is a licensed private detective, the customer service may be a little better. The plaintiff still should plan to check with the Process Server after the last day that service can be accomplished, but frequently the plaintiff will be contacted before that time with the results of the service. The licensed private detective’s office will also send the affidavit of service to the plaintiff so it can be brought to court on the day of the court appearance.
If the defendant has been served with Summons, the next step is the court appearance for Part V (Prove-up or Trial). If the defendant has not been served, there is more work to be done.
Since the original Summons has an expiration date (a certain number of days before the appearance date), a new Summons is needed (this is called an Alias Summons). On the appearance date, the plaintiff reports that the Summons was returned not served and asks the judge to enter an order permitting an Alias Summons and setting a new appearance date. Then it’s back to Part II (Preparing the [Alias] Summons) and Part III (Placing the [Alias] Summons for Service).
Steven G. Evans
Attorney at Law
At this point in the process the landlord has filed a Complaint to start an eviction case and had the Circuit Clerk’s office issue a Summons. The landlord knows that in order for the court to obtain jurisdiction over the tenant, the tenant must be served with Summons. But what does that mean? How is that done?
The law in Illinois describes the process for obtaining jurisdiction over a defendant (the tenant) at 735 ILCS 5/2-203. The tenant must be served with a Summons, either personally or with substitute service, by a person qualified to do so.
Personal service is just what it sounds like: The person serving the Summons (sometimes called the “Process Server”) confronts the tenant and delivers the paperwork (a copy of the Summons and Complaint) to him or her. With substitute service, the Process Server doesn’t deliver the paperwork to the tenant; instead the paperwork is delivered to a person at the defendant’s residence, and that person must be at least 13 years old and must be a member of the family or a resident at the property. Then the Process Server completes an affidavit confirming how the Summons was served, and that affidavit gets filed with the court.
Under Illinois law, usually the Process Server is a Sheriff’s deputy; although in certain circumstances Summons may be served by a licensed private detective agency (735 ILCS 5/2-202).
Just like there was a fee to be paid when the Complaint was filed with the Circuit Clerk, there is a fee to be paid for serving the Summons. So, after the Complaint has been filed and the Summons has been issued, the plaintiff provides the paperwork (the original Summons, two copies of the Summons, and two copies of the Complaint for each defendant) to the Process Server and pays the service fee. The amount depends on factors like which county the lawsuit is filed in, how many defendants there are in the suit, and where in the county the defendants are located.
Next Step: Checking the Status of Service.
Steven G. Evans
Attorney at Law
The landlord’s goal in an eviction case is to get the tenant out of the property and to collect the past-due rent. To achieve that goal, the landlord needs to have a judge enter an order entitling the landlord to possession of the property and granting the landlord an award for damages (rent, attorney’s fees, and costs). To achieve that goal, the court – the judge – must have jurisdiction over the tenant.
If the court does not have jurisdiction over the tenant, any order entered by the judge will be unenforceable against the tenant. The judge is not interested in wasting the court’s time, so the case will not proceed until the court has jurisdiction over the tenant.
How does the court obtain jurisdiction over the tenant? Glad you asked – the tenant must be served with Summons.
The Summons is a document that is prepared by the person bringing the lawsuit, the plaintiff, and is issued by the Circuit Clerk’s office. Many counties provide Summons forms, which can be obtained at that county’s Circuit Clerk’s office; some counties allow you on-line access to forms (Cook County Summons, Lake County Summons, McHenry County Summons). The plaintiff fills out the form completely and submits it to the personnel at the Circuit Clerk’s office at the same time the Complaint is filed.
The Circuit Clerk’s office issues the summons by stamping the document with the case number that has been assigned to the case and by adding the Circuit Clerk’s seal to the document. That office charges a fee for issuing the summons, and that fee is included in the fee collected for filing the Complaint. Once the Complaint is filed and the Summons is issued, the plaintiff leaves the Circuit Clerk’s office with the file-stamped copies of the Complaint and Summons – on to the next step.
Steven G. Evans
Attorney at Law
Your tenant is behind on the rent and avoiding you. You served the tenant with a Five Day Notice, hoping that would prompt the tenant to catch up the rent payments. But the fifth day came and went – no payment.
What happens now?
You have a decision to make – are you going to engage an Illinois lawyer to represent you in the eviction process? I may be a little biased (ok, a lot biased), but I think the expertise and the savings in time and aggravation is worth the investment. But plenty of do-it-yourselfers disagree.
Whether or not the landlord is represented by an attorney, most eviction cases will follow the same general outline:
- Preparing and Filing the Complaint;
- Issuing Summons;
- Placing the Summons for Service;
- Checking on the Status of Service (Alias Summons, if necessary);
- Prove-up or Trial;
- Order of Possession; and
- Enforcing the Order of Possession.
This post is an overview of the first step, Preparing and Filing the Complaint.
Many counties provide Complaint forms, which can be obtained at that county’s Circuit Clerk’s office; some counties allow you on-line access to forms (Cook County Eviction Complaint, Lake County Eviction Complaint, McHenry County Eviction Complaint). The person bringing the lawsuit, the plaintiff, has to fill out the Complaint form completely, being careful to name all of the tenants as defendants – including unknown occupants - and then files the Complaint with the Circuit Clerk’s office. The personnel at the Circuit Clerk’s office will: a) accept the original Complaint for filing, b) assign a case number to the matter, c) file-stamp the original Complaint and the copies of the Complaint the plaintiff provides, and d) require payment of a fee. The amount of the fee will depend on the county and on the dollar amount of the judgment that the plaintiff is trying to obtain against the defendant. Each county has its own fee schedule which can be obtained by phone or (usually) on-line (Cook County Fee Schedule, Lake County Fee Schedule, McHenry County Fee Schedule). A quick glance at the fee schedules will show you that, as is true in many other respects, Cook county residents have the privilege of paying substantially more for county services.
At the same time the Complaint is filed, the plaintiff has the Circuit Clerk’s office issue Summons for the defendant (discussed here). Once the Complaint is filed and the summons is issued, the plaintiff leaves the Circuit Clerk’s office with the file-stamped copies of the Complaint and Summons – then on to the next step (Part III – (Placing the Summons for Service)).