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TJ, Esq.
TJ, Esq., Attorney
Category: Business Law
Satisfied Customers: 12359
Experience:  JD, MBA
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I signed a Deed In Lieu of Foreclosure agreement 5 1/2 years

Customer Question

I signed a Deed In Lieu of Foreclosure agreement 5 1/2 years ago and a settlememnt agreement for a 3 year period 0f 12/03 to 12/06 that I fulfilled completely. I signed a new note in 06 that became in default in late 08 and the bank filled for the deed to come out of escrow (which was part of the original agreement) before the the agreed notices and times to cure were given to me. I sought legal help from a local attorney who claims that their deed was not valid and that the bank would have to start a foreclosure process if they wanted me out of my house. Instead they filed a complaint seeking Forcible Entry and Detainer action. I responded to the notice and asked for a jury trial. The plaintiff then amended its case and asked for a summary judgement. I counter responded to the summary judgement motion but failed to provide affadavit to show the presumptive move on the banks part that got them deed to my property. The case is on appeal in Illinois. Can I stop the eviction process.
Submitted: 7 years ago.
Category: Business Law
Expert:  TJ, Esq. replied 7 years ago.

Hello and thank you for allowing me the opportunity to assist you.

It sounds like your attorney is correct. In order to get an injunction pending appeal, you must generally provide some sort of bond to cover losses that the other party may incur due to the delay. The bond protects the other party in case you lose the appeal. Also, it does sound correct that your response to the summary judgment would lose since you did not support it with an affidavit. A summary judgment is granted when there are no facts in dispute. Therefore, a motion for summary judgment (and a response to it) must be supported by evidence such as an affidavit. Without the affidavit, there was apparently no evidence to support your position … in other words, you merely made unsupported claims. So, I think you’re between a rock and a hard place.

I wish I could give you better news, but I’d be lying.

I regret that my answer is unfavorable, but please understand that it would be unfair to you (and unprofessional of me) to provide you with anything less than a truthful response. With that in mind, I hope that you found some value in my answer. If so, then please remember to click the green accept button so that I will receive credit and compensation for my time. Positive feedback is always appreciated as well. Thank you and good luck!

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DISCLAIMER: Please be aware that only an attorney licensed in your state is authorized to advise you in legal matters, and that the limitations of this setting may prevent your legal issues from being thoroughly addressed. Accordingly, please understand that (1) by answering your question(s) I am not acting as your attorney, (2) my answer(s) should be construed as general information only, and (3) our discussion is not an adequate substitute for an in-person consultation with an attorney.

 



Edited by TJG, Esq. on 10/1/2009 at 7:36 PM EST
TJ, Esq. and other Business Law Specialists are ready to help you
Customer: replied 7 years ago.
So, with the previous question and answer in mind,do you feel that i can file a complaint against the bank with me as the plaintiff,charging among other things breach of contract,violation of the law firms fiduciary duties to hold my deed in escrow until the agreement was fully satisfied,etc, that I haven't had the space or time to list and ask in that case that the circuit judge in Illinois to place a temporary or perminate injuction in effect to stop the eviction and maintain the status quo, while the court sorts out whom should have legal title to the property per our original contract agreement. Or is any type of injunction impossible at this point. The bank clearly violated our contract,by filing for a deed without proper notices, amoung other things.The appelate is not reviewing any contract violation issues in the case I am appealing.
Expert:  TJ, Esq. replied 7 years ago.
In general, you need a bond to get injunctive relief. The reason is that if you are granted the injuction, but then you lose the case, the other party may have been damaged by the needless delay.

Still, you can file the Complaint, ask for an injunction, and then ask that the bond be nominal because of your likelihood of victory. You're going to file the Complaint regardless, right? It doesn't hurt to ask for the injunction with little or no bond.



DISCLAIMER: Please be aware that only an attorney licensed in your state is authorized to advise you in legal matters, and that the limitations of this setting may prevent your legal issues from being thoroughly addressed. Accordingly, please understand that (1) by answering your question(s) I am not acting as your attorney, (2) my answer(s) should be construed as general information only, and (3) our discussion is not an adequate substitute for an in-person consultation with an attorney.

Customer: replied 7 years ago.
So for clarification purposes, If I file the complaint with the breach of contract issue,I may ask for an injection to stop the eviction process that is under way in the other case and preserve the status quo, to allow the judicial system review if in fact there was or was not a breach of contract or other issues in the contract that allowed the bank to get and record my deed making them the rightful owner, which is what gets me evicted correct? This injunction (can be) sought even though a decision to grant possession to the bank in the forcible entry and detainer case has been already ruled on,correct?
Expert:  TJ, Esq. replied 7 years ago.
Can you seek an injuntion? Most certainly. Is it a proper request considering the other case? I can't say since I don't know the details. But if I were going to file a Complaint for breach of contract, I'd ask for the injunction.




DISCLAIMER: Please be aware that only an attorney licensed in your state is authorized to advise you in legal matters, and that the limitations of this setting may prevent your legal issues from being thoroughly addressed. Accordingly, please understand that (1) by answering your question(s) I am not acting as your attorney, (2) my answer(s) should be construed as general information only, and (3) our discussion is not an adequate substitute for an in-person consultation with an attorney.