While this is FED court in Skokie, Illinois, with a fairly crochety old judge, Judge Machnik, he is doing his job. And to his credit, opposing counsel, while trying to get away with what he can, realizes that lack of jurisdiction is a very serious problem.
In the KQ case, Karen went through hard times, she was unable to pay her bills and then received some very bad advice from a short sale attorney who was advising people at seminars not to pay on their mortgages and just do short sales to get some debt relief.
Karen says he never told her the real story, that is short sales are very, very difficult to do. They require a dedicated team of professionals, from two hard working, highly experienced Realtors, in this case Blair Lele, and many attorneys–most of which will get paid pennies on the dollar. And then the short sale attorney never mentioned the hundreds of hours of work on the paper work, loading up documents to obscure websites, dealing with professionals that are under short deadlines but have 50 loans to process ahead of yours so you have to keep emailing and calling to keep it at the top of the pile.
The deal on a foreclosure is that your credit score will only drop 50 points for 2 years with a short sale vs. 200 to 250 points for a foreclosure for 5 years. So people want to do them. And everyone wins. If a bank forecloses,, then the bank sends the property to a sheriff’s sale where they get pennies on the dollar. Or, even worse, the bank “manages” the property themselves, puts it on the market themselves and it get destroyed by tenants or squatters and they get pennies on the dollar. Banks do not make for good property managers. They generally handle money and not property.
In this particular case, Karen has been working her butt off together with Realtor Lele to find a buyer and they actually found an amazing buyer who has stuck through the short sale process for many, many long months. Then along comes the Home Owner’s Association, and apparently portions of that are pretty much evil and greedy while others understand the process and want to do the right thing. The good part of the evil twin HOA is nice and cooperative and helps Karen and knows they will be paid in full in the end. But some other darker portion of the HOA hires an uncaring lawyer, he files suit for the $12,000 in HOA fess, which I agree, they can do this, it does not make a whole lot of sense given the short sale, but they have the legal right to do this.
Fast forward 4 months. Karen has been working with the good side of the HOA, has numerous emails back and forth assuring them the short sale is okay, they will get paid, etc. and they have her phone number, mailing address, and all her information. Now she finds out that the HOA has sued her, they served her mother and not her, she asks for papers from the HOA and receives nothing, contacts me to investigate and we find out the following.
A judgement for $12,000 AND possession of the unit was entered in October and stayed until December, and then on top of that, she was not served, her mother was (and no, at age 50+ Karen does not live with her mother, she moved to California for work, immediately lost her job there, is struggling to get her business of interior design back on its footings), but Karen was never served. To top it off, the evil part of the HOA files a false affidavit stating “after due inquiry” they could not find her, which is ludicrous because Karen has been emailing them back and forth, if you Google her you find her front page, etc.
In summary, jurisdiction is lacking for the assertion of personal jurisdicion for the money judgment (you MUST have personal jurisdiction to get a money judgment), and the false affidavit the HOA could not find Karen “after due inquiry” defeats their in rem or against the property judgment for possession.
The first time I went to court, opposing counsel and the court was soooo angry with me for bringing up jurisdiction, the judge struck my pleading and told me to come back in 10 days and he would hear it then. (This is a lawyer’s job, sometimes when you are the bearer of extremely bad news, the court will nit pick your pleading and strike it. In this case we filed an appearance, but the clerk lost it between the Daley Center and Skokie–another plea for electronic filing, please).
So we redrafted the pleading, filed an appearance from by driving the 40 miles back and forth to Skokie because Dororthy Brown can’t get her IT act together, and went back to court on Friday at 10 am.
Much better reception. As it slowly sunk in that there realio trulio was no jurisdiction, the matter was set for a briefing schedule (even though I did argue it the prior time in court), and as a Valentine’s day present, opposing counsel withdrew the eviction from the sheriff so the short sale can proceed.
Thank you, thank you.
So I want everyone to know, despite all the horror stories on this blog, yes, Virginia, some days the court AND opposing counsel does their job and we find the due process clause of the US constitution and the Illinois constitution finds some respect in court.
Let’s all just hope and pray that short sale goes thru next week, as expected.