I don't know of any way to say this that won't sound cold and uncaring.  What Sheriff Dart is doing will help him sleep at night and will save some tenants from unjust eviction.  But, refusing to do the job he is sworn to do is wrong.  If laws need to be changed, there are other methods than deciding whose rights to protect over another's.  I just don't see why his office can't return to the court with these cases of tenants being evicted without due process.

Here are some things that I think should be considered when evaluating Sheriff Dart's soul.  Illinois is a judicial foreclosure state.  The lender pays for a process server to serve the foreclosure papers to the homeowner in default.  They usually start at the property under foreclosure if the borrower has represented himself to the lender as the occupant.  If the renter is at home, the presence of the process server at his doorstep would probably raise some kind of red flag.  If the loan was made on an investment property, the lender would have filed an assignment of rents along with the mortgage.  In that case, I suppose they would be happy to allow the renter to stay while the property is up for sale.  Come to think of it, if I were the lender, I would rather make a short term lease agreement with the tenant, and collect rent, than board up the joint.

Still, morally correct is admirable.  Ignoring one's duty is not.  There are many distasteful tasks that a Sheriff's office must perform.  What's to stop him or others, then, from choosing which laws to enforce based on whether they believe the laws are just.  That is for others to decide.  The truly courageous thing to do would be to resign in protest.

resigning would probably not have attracted much media attention.  Doing things the way he did has attracted a lot of news coverage and really brought the issues to light - not just in Cook county, but nationally. 

I also wondered why the lender would want to evict tenants who are paying rent.  One of the interviews I saw was in front of a large apartment building - not sure if that was for show, or if it was really one of the properties at issue. 

I think a part of the problem is the landlords probably bought a lot of rental units with owner occupied financing to get a better rate.  I have seen that happen, with the mortgage brokers encouragement.  "Just tell the bank you are planning to live there, they won't know what you are really doing." 

Either way on a forcible entry and detainer action, the tenant is required to receive notice.  I think they should get the same protections during a foreclosure.  I'm not sure where the breakdown in the system is coming from, but now that the whole country is aware of it, I think we will see some legislation to address the problem.

I think you hit the nail on the head with:

I just don't see why his office can't return to the court with these cases of tenants being evicted without due process.

I would tend to agree... the Sheriff should be able to go back to the court on just these evictions where the tenant didn't get notice and have them take care of it on a case by case basis.  Perhaps Sheriff Dart is overreaching a bit by stopping all evictions - if that is what he is doing.  I wasn't really clear on that.  It wouldn't make much sense to stop the process when the property is owner occupied.

Maybe they just need to add a step in the foreclosure process that requires the lender to identify the occupant early in the process.  If the occupant is a renter, who is paying rent, maybe they could utilize the assignment of rents and get the payments directly.  If there is no assignment of rents, the tenants could at least escrow their rents with the court while the foreclosure is pending. 

That is something that really irks me.  If the tenants are making their payments to the landlord, who is not making his mortgage payments, the landlord is really making out the entire time the foreclosure is pending.  When the foreclosure is finalized, the landlord isn't put out of his home - the innocent tenants are.  That is just wrong.

Thanks for the input, Scott.  Good to hear from someone in Cook county on the issue.

I am having some difficulty in understanding why this has even become an issue that would require the sheriff to take this position. Generally a lease or parties in possession is a encumbrance on title that would show up in the initial title search for the foreclosure. Here in Connecticut tenants of foreclosed properties must be named as defendants in order to foreclose their interest and have them ejected. They are served with a summons and complaint just like all the other defendants. By the time the foreclosure is finished they have had plenty of time to find another apartment.

If they are not named as defendants their leasehold interest in the property is not foreclosed, and they can not be ejected. The plaintiff would have to either reopen the case to name them as defendants (more time for them to relocate), or would have to begin an eviction proceeding in Housing Court. If the tenants are paying their rent and their lease has not expired the tenant will most likely prevail. Illinois' law of foreclosure must differ drastically from Connecticut's.

I agree that the majority of these "landlords" did exactly with what was said above:

I think a part of the problem is the landlords probably bought a lot of rental units with owner occupied financing to get a better rate.  I have seen that happen, with the mortgage brokers encouragement.  "Just tell the bank you are planning to live there, they won't know what you are really doing." 

They claimed owner-occupied.  There was no assignment of rents involved.  That's where it hurts the most.  They lied about everything else, why not this, too?

You keep referring to eviction actions and you attempt to shoehorn foreclosures into the same rules.  The big difference, though, is that the landlord and the tenant voluntarily entered into a lease contract.  Additional steps to evict a tenant when the evictor voluntarily contracted with them makes sense. Caveat Emptor. However, in the case of foreclosures, the lender is generally never a party to these leases.  It sounds like the Sheriff wants to require the Lender to first determine who the rentors are and then provide specific notice by name.  Requiring a Lender who is already underwater on a mortgage to jump through these hoops seems a bit overbroad. However, requiring all initial foreclosure complaints to be served at the property address to any unknown tenants makes sense.

Two legislative options might work here.  1.  Require a copy of the initial foreclosure complaint to be served on the "unknown tenant" at the property address for all foreclosures. (BTW,  foreclosure attorney's in Ohio serve the unknown tenant anyway). 2. Require the landlord to insert a clause in the lease agreement which explains the tenant's rights in case of a foreclosure (which would provide preemptive notice at the time the lease is signed.) Either way, it isn't right to bind the lenders by refusing to serve evictions on foreclosures due to a third party contract when the current law requires it.  I don't want the taxpayers to have to sink another 700 billion dollars into the lending market because of maverick Sheriffs who refuse to follow the current law. I think the Sheriff walks a fine line when he refuses to abide by certain laws, but arrests others who don't abide by certain laws. 

Kudos to the guy for trying altho a bit misguided maybe.  He has a point in regards to the innocent renter being tossed out on their ear when they paid the rent all along.  I have seen a few Assignment of Rent documents but that is not always the case.  I think, i would have to check with an attorney, but it may be built into our mortgages now.  The problem does seem to go back to Buyers/Borrowers are liars and most of them would slip up in closing.  After all you sign at least 2 documents that this is your primary home and you will live there.  Most closing instructions state that if other information is obtained regarding occupancy the tilte company is required to notify the lender and stop closing immediately.  How many of you actually stopped the closing, especially with the loan officer sitting right there. 

On the topic of process serving - has anyone actually served papers on an idividual before? There are many rules regarding this and in some states only the Sheriff can do it.  I have served in California before - there you can actually open up a process serving shop - we would file documents at the court for attorneys, deliver docs all over, and even pick up/copy medical records, etc. 

When I served papers in CA I was not allowed to discuss the details.  All I could do would be to ask the suspect if they are "john doe" (insert name here).  If the answer was yes, I would hand him the docs telling him he has been served and then run for cover....actually had a gun pulled on a co-worker in Oakland.  We were not allowed to say who we where, where we worked or anything about the case.  If the person answered no I am not john doe than I walk away with Oh gee I am sorry you look just like him.  There are many rules about non-identification serving after so many trys but we would have to look into that state by state.

Which leads me to my point - it is not always that easy to determine who the person answering the door is.  In Ohio I believe only the Sheriff can serve - unless that has changed since I moved back from CA.  Even if the renter answers and says no I just rent this place, the process server would not be allowed to disclose the nature of the visit.  Therefore, the renter would be oblivious to what is going on until the actual eviction date. 

I do think it is aweful that renters have no protection (that I know of anyway) and one would think the banks would recognize them but in the end it is about the almighty dollar and morals/integrity never seem to factor into that. 

I believe Ohio has started to require that all Landlords register their rental properties with the County Auditor.  I think that is pretty new in the last few months maybe a year.  That would be helpfull to the banks.  At least then they could possible look at serving the "unknown tenant" as someone mentioned earlier.  I just don't know if that is possible - I am sure there is some law preventing it.  Privacy and all that.

Thanks for your comment! You are right on target!

Erin, I just found this today but it looks like it has been in the works for a bit - it is for Ohio tho.

From the Ohio Real Estate Blog:  http://ohiorealestateblog.blogspot.com/search/label/Deeds%3B%20Conveyance%20and%20Recording%20Issues

H.B. 626 was introduced by the Ohio House of Representatives on October 7, 2008 to help soften the blow of these unfortunate, and lately, frequent occurrences.

Maybe Illinois will do something like this in the future if not already.

A thorough investigation is needed for the FORECLOSURE FRAUD which is causing people to FALSELY lose ownership of their properties and become evicted; it cheats Investors, and certain mortgage companies.  This fraud occurs when debt collector attorneys deliberately file judicial foreclosures under names of defunct mortgage companies, or companies which do not own the promissory notes, effecting illegal seizures.  Those collectors charge fees far beyond "Acceleration Clauses," thereby making it impossible for borrowers to recover their properties or bring current  mortgage arrears.  Incredibly (through use of another’s identity), the foreclosure  “plaintiff” is actually sometimes the disguised collector.  SEE: http://chuckgallagher.wordpress.com/2008/01/03/foreclosure-fraud-an-interesting-variation-of-mortgage-fraud-comments-ethics-speaker-chuck-gallagher/.
        
Collectors make even more $$$ from protracted litigations for  "Unfair Debt Collection Practices," etc.  (*Example of foreclosure litigation in: "Super Future Equities v. Wells Fargo Bank, et al.")  Accordingly, people actually HAVE NOT lost ownership of their properties, but those owners don't know it!!  For predatory and deceptive mortgage lenders, foreclosure frauds are bonanzas because it makes possible real estate FLIPPING frauds, and misleads Investors concerning housing markets.  SEE:
www.lawgrace.org/2008/09/14/lehman-brothers%E2%80%99-mortgage-troubles-nationally-evidence-of-foreclosure-fraud-deception-and-conspiracy-with-wells-fargo-deceptive-judicial-filings/

Foreclosure fraud also enables mortgage companies like Wells Fargo Bank to file with the IRS false 1099-A's and 1099-C's and receive unlawful tax write offs and tax credits.  SEE:
www.lawgrace.org/2008/08/08/my-august-8-2008-statement-to-the-louisiana-secretary-of-state-office-of-financial-institutions-concerning-wells-fargo-irs-and-mortgage-frauds-sham-foreclosures-and-judicial-collusion-and-national-app/.  Also, some unscrupulous debt collector attorneys are committing fraud in Bankruptcy Court by filing sham "lift stay" motions via use of movants which lack STANDING.  For irrefutable proof and extensive details about real estate fraud, visit: www.lawgrace.org.       
   
Barbara Ann Jackson
Law & Grace, Inc.