FREQUENTLY ASKED QUESTIONS
What Local Rules specifically govern foreclosure, partition and quiet title cases in Lake County?
Local Rules VII.A., B., & C. specifically govern foreclosure, partition and quiet title cases in Lake County.
If I file a foreclosure, partition, or quiet title case, what are some of the differences from a standard civil case?
The principal difference at the outset is the necessity to file (with the complaint) guaranteed evidence of the state of the record title of the property. See Rule VII(A)(1). This document is referred to as a Preliminary Judicial Report and will reflect the name of the record owner, a legal description of the parcel of land, and a listing of all interests in the property that appear of record. All parties with an interest in the property are necessary parties to the foreclosure case and must be named in the complaint.
What happens if I fail to provide a Preliminary Judicial Report?
The case may be dismissed after notice for such failure.
How soon after filing the motion for default judgment will the default hearing be held?
Usually, a hearing will be scheduled to occur between fourteen and twenty-one days after the filing of the application.
What do I need to bring to the default hearing?
Any evidence necessary to support your claims and a proposed judgment entry.
If I am unable to save my house from foreclosure, when do I have to move out of my house?
As part of the decree of foreclosure, the purchaser at sheriff’s sale is awarded a “writ of possession.” This allows the purchaser to evict the former owners of the home without the need to file a separate eviction case. The purchaser must notify the Sheriff’s Department that he or she desires to have the previous owner evicted. At this point a representative of the Sheriff’s Departmentwill notify the previous owners of the house in question of the date by which they must vacate the premises, usually within two weeks of the notification.
Once the plaintiff and any other parties who have claimed a lien on the property have been paid out of the sheriff’s sale proceeds, the party who owned the property at the time of sheriff’s sale is entitled to any remaining funds. In order to receive these funds, the owner of the property at the time of sheriff’s sale must file a motion to distribute balance of funds with the Clerk of Court.
What is a partition case?
A partition case is filed where two or more people own property together, no longer wish to do so, and cannot agree on listing the property for sale or how the money realized in a sale would be shared by the parties. In a partition case, the Court will determine how the funds realized from the sale are to be distributed to the parties and order the property to be sold at sheriff’s sale unless the parties are able to reach some other agreement during the pendency of the case.
What is a quiet title case?
A quiet title case is filed when a party claims an interest in property which is allegedly invalid and negatively effects the title of a parcel of property. Examples of such interests include encroachments by fences or buildings and unreleased but paid mortgages or judgment liens. If the party seeking to quiet title proves that the interest is invalid, the Court will declare the interest null and void.
LOCAL RULES APPLICABLE TO FORECLOSURE, PARTITION, AND QUIET TITLE CASES
LOCAL RULE VII.A. FORECLOSURE, QUIET TITLE AND PARTITION ACTIONS
LOCAL RULE VII.B. SHERIFF'S SALES
LOCAL RULE VII.C. CONFIRMATION OF SALE
LOCAL RULE VII.E. RECEIVERSHIP
All parties seeking affirmative relief in a foreclosure case must be certain that the submissions to the court include or comply with all of the items set forth in this checklist.
· If the debt involves a promissory note, the complaint, counterclaim, or crossclaim has attached to it: (1) a legible copy of the promissory note, or (2) an affidavit of lost note that establishes the material terms of the unavailable note, or (3) a signed statement indicating when a copy of the note or the affidavit of lost note will be filed.
· A Preliminary Judicial Report (PJR) has been filed no more than 30 days after the filing of the complaint, or other pleading requiring a PJR.
· The PJR has an effective date current within 30 days prior to the filing of the complaint.
· The PJR covers the complete and correct property being foreclosed.
· The PJR lists the plaintiff as the real party in interest by showing a complete chain of assignments, if any.
· All persons listed on the PJR have been added as a party and have been properly served with service of process.
· In support of any dispositive motion, an affidavit of damages has been filed establishing: (1) the principal balanced owed; (2) the date of default on the note; and (3) and the applicable interest rate.
· A Final Judicial Report (FJR) has been filed.
· The FJR has an effective date more recent than the date on which the last necessary party was served with process (ONLY FOR JUDGE LUCCI'S CASES -- FOR OTHER JUDGES, SEE LOCAL RULES OF COURT).
· The FJR begins from the effective date of the PJR.
· The FJR covers the complete and correct property being foreclosed.
· The FJR lists the plaintiff as the real party in interest if the PJR did not.
· A proposed judgment entry granting a decree of foreclosure has been sent to the court.
· The entry accounts for all of the remaining parties in the case.
· The entry finds an amount of damages that matches the damages established in the above mentioned affidavit of damages.
· The entry covers the complete and correct property being foreclosed.
· The entry directs that the proceeds of the sale, if any, shall be held by the sheriff.
· The entry finds an amount of damages owing to any cross claimant matching the amount established by that cross claimant. *However, the entry cannot make a finding for parties not requesting summary judgment or default judgment. See Security Fed. Sav. & Loan Assn. v. Kleinman, No. 98-L-098 (11th Dist. Ct. App., Lake, 12-3-1999), 1999 WL 1313837.
· All undetermined lien amounts in favor of other co-defendants are transferred to proceeds of the sale.
· The entry finds that the mortgage being foreclosed upon is a good, valid, and subsisting lien.
· The entry finds that the mortgage conditions have been broken, and the holder is entitled to foreclose.
· A motion for confirmation of sale has been filed, together with a proposed entry confirming the sale:
· The total distribution in the entry matches the amount from the Sheriff’s return of sale.
· The name of the purchaser(s) in the entry is correct and complete according to the Sheriff’s return of sale.
· The entry provides that all outstanding liens are cancelled.
· The entry has either the signature of all parties not in default or states that it has been submitted to all parties not in default.
· The entry does not seek a deficiency judgment against parties who have bankruptcy protection.
· The deficiency amount, if any, is correctly stated in the entry.
· The entry lists the priority of liens in the correct order.
Judgment entries which are submitted to the court will be rejected if any of the relevant items shown on this checklist are not included or completed.
After the Sheriff’s Sale
In Conjunction with Any Dispositive Motion Filed by the Party Seeking Affirmative Relief
CHECKLIST FOR FORECLOSURE CASES
If there is money left over after a sheriff’s sale, who is entitled to this money?
Magistrate Mathew E. Spangler adjudicates foreclosure cases for the court. His office telephone is (440) 350-2648.