What Do You Do Before You Sue?

Notice & Cure Provisions in Home Mortgages – instructions on what to do before you file a suit against your lender.

Notice and Cure Provisions in Home Mortgages – What do you do before you sue?

By Attorney Peter Francis Geraci, J.D.

It depends. Individuals may consider bringing claims against their mortgage lenders under federal statutes such as the Truth in Lending Act, or the Fair Debt Collection Practices Act, and state statutes such as the Illinois Consumer Fraud and Deceptive Business Practices Act.

But, before you sue, what do you do? Read the mortgage! Many have provisions that have to be followed, or your lawsuit will be dismissed. Examples are “notice and cure”, and “mandatory arbitration”.

In Wortman v. Rushmore Loan Mgmt. Servs. LLC, No 19C2860,(N.D.Ill. Oct 16, 2019) plaintiff’s case against their mortgage service for sending them collection notices after bankruptcy discharge was dismissed. Why? Their personal obligation on the mortgage was discharged in Chapter 13, but only the personal obligation to pay the debt, not their obligation to comply with the terms of the mortgage.

In other words, a mortgage does not disappear because of a bankruptcy discharge. A mortgage servicer can send letters about filing a foreclosure suit to take the property back, and file a foreclosure suit.  All that a bankruptcy discharge does is eliminate the obligation of the discharged debtor to pay anything on the debt. It does not eliminate the other rights of a secured creditor, such as foreclosing on real estate, or repossessing a vehicle.

Not only do “liens”, or interests in property, survive discharge, but so do clauses in such lien documents and notes. That means that, if after discharge, a person wants to file a lawsuit against a creditor who still has a lien, they have to comply with those clauses.

What is a “notice and cure” provision? It says “a party who is in default is entitled to notice of the default, and a period of time to cure the default, before the other party may accelerate the contract and demand full payment, or foreclose or repossess”.

What is an “arbitration clause”? It says “if the borrower wants to make any claims against the lender it must do outside of court, in a proceeding involving appointed “arbitrators”.

Some cases hold that these clauses prohibit a lawsuit, unless the borrower first complies with them. Some cases hold that these clauses are not effective in a consumer protection lawsuit. In the Wortman case, the judge dismissed plaintiff’s case under FDCPA because the mortgage survived, and so did the “notice and cure” provision that required the borrower to give notice to the mortgage company before borrower filed suit.

So, what do you do before you sue? Read the document that established the relationship between you and who you want to sue. It may require you to arbitrate instead of go to court, or to give notice of your intent to sue. Those clauses may or may not prevent a suit, depending on what your claim is. But one thing is for sure: liens pass through bankruptcy, and so do the documents creating them, and so does the fine print in them. Bankruptcy only discharges the borrower’s obligation to make payments. If they don’t, the creditor can take action to get their property back.

This can work against mortgage lenders and car owners, but it can work in their favor also. After a discharge in either Chapter 7 or 13, a debtor can file a Chapter 13 to cure a mortgage default, even if the personal liability to pay has been discharged. The U.S. Supreme Court, Johnson v. Home State Bank, 501 U.S. 78 (1991) rule that, after discharge in bankruptcy, a debtor can file a Chapter 13 to cure a mortgage default, even if their personal liability on the mortgage was discharged.

This ability to file a Chapter 13 to cure mortgage default also works for people who are not on title to the property, but only have an inheritance interest. If mom dies without a will, an heir can file a Chapter 13 case to cure mortgage arrears, force the mortgage company to accept payments, and prevent foreclosure.

Geraci Law Reviews

Sample of Geraci Law Bankruptcy Firm over 25,000 reviews written by real clients.

Geraci Law Bankruptcy Reviews

Below are just a few of the 25,000+ Geraci Law reviews written by real clients.

“Thankruptcy!! Finished. I am glad I went with Geraci Law to help settle my debt – it was done without any surprises. Thankruptcy for sure!! Very good!” – Geraci Law, Evergreen Park, IL 

“Liz is the absolute best attorney, she makes things clear and is extremely patient considering I had many questions during this process. She even answered all my questions same day and helped me essentially get my life back after a bad car accident completely ruined my credit. I hope I never have to go through this process again but if I ever have to she’s definitely the one I’ll go see.” – Attorney Lizette Villegas, Northside Chicago, IL 

“Communication has been great as well as the simplicity of the process with Geraci. Fees are reasonable and the ease of the whole process has just been ridiculous (in a GOOD way)!” – Geraci Law, Schaumburg, IL 

“Felicia was very straight forward, compassionate and honest with me from the beginning. She explained everything so I would know what to expect through the entire process. She never came across as judgmental and was sensitive to my circumstances. I also worked with Abe when it came time to fill out all my paperwork and get everything ready to actually file my bankruptcy. He was great to work with, he answered all my questions and made sure I understood everything that was going to happen leading up to my 341 meeting. I would recommend Geraci Law and their great team of attorney’s to anyone looking to file bankruptcy.” – Attorney Felicia Petroff, Wauwatosa/Milwaukee, WI 

“Met with Rick and Ashley and they were amazing. I was dealing with financial issues and they were able to work with my family and I in resolving them. This is my second experience with this law firm and I recommend them fully. Go with them if you want real help!” – Attorneys Ashley Chike and Ricardo Gomez, Cottage Grove/Chatham/Chicago, IL 

Dial 1-800-CALL-PFG for a free phone mini-consultation, or make an appointment online 24/7 at www.infotapes.com.  Bankruptcy laws are in place to help you.  Who knows bankruptcy like Geraci Law?  Geraci Law has 25,000 5-star reviews 5starsince November 2016!

Read ALL ABOUT DEBT RELIEF at www.bankruptcybookbypeterfrancisgeraci.com.

Great Geraci Law Reviews!

Great Geraci Law Reviews!

From Geraci Law, Evergreen Park Location (South Side Chicago)  “The atmosphere is calming, DeJeana and Isaac at front desk very pleasant and knowledgeable. Mr. Mario has a very pleasant nature and smile very reassuring. Also Mr. Khalil always remembered by name, assured me things were going to be ok, always walked me to front door and wanted me not to worry but have a wonderful Christmas. And the chocolate cookies are the bomb! ”

From Geraci Law, Rockford Location “I came in after receiving a lawsuit and frozen accounts, attorney Jason worked hard and fast to help me correct this awful mistake and to help me plan for a better financial 2020. Life happens, please go and get the help you need, before it snowballs and becomes a bigger issue like I did. I was embarrassed and ashamed of my failing business and then when I was diagnosed with my illness I was crushed under my financial obligations and medical bills. Geraci law is quick and efficient and helped me with ease through this difficult time. 10/10 would recommend to anyone going through a rough patch like I was.”

From Geraci Law, Chicago Location “I have filed bankruptcy before with DebtStoppers and they made things kind of complicated for me. I had to file a chapter 13 because of parking tickets, I felt like the world was caving on me until I came to PFG associates. They made the entire process really easy and even when I fell behind a little bit they worked with me. I would recommend it to anyone who wants to come out of the hole. Thanks guys I appreciate it.”

From Geraci Law Racine, Wisconsin Location “ I had an awesome experience with Geraci Law in Racine. They were very patient with me and my crazy schedule. I met with Joe and Felicia and they were both very helpful and answered all my questions. I was referred to them by a friend, and I would definitely refer others to them as well!”

Geraci Law Evergreen Park

Geraci Law Evergreen Park – Remodeled!

Geraci Law Evergreen Park office located at 3560 W 95th Street at the corner of 95th and Central Park on the South Side of Chicago near Oak Lawn was recently remodeled!

We offer same and next day appointments. You can call 800 CALL PFG (800-225-5734) to set up a FREE consultation or you can click the link below to schedule online!

https://www.infotapes.com/Bankruptcy/OfficeLocator

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Dial 1-800-CALL-PFG for a free phone mini-consultation, or make an appointment online 24/7 at www.infotapes.com.  Bankruptcy laws are in place to help you.  Who knows bankruptcy like Geraci Law?  Geraci Law has 20,000 5-star reviews 5starsince November 2016!

Read ALL ABOUT DEBT RELIEF at www.bankruptcybookbypeterfrancisgeraci.com.

PFG at Festival of Lights!

PFG at Chicago’s Festival of Lights!

Peter Francis Geraci celebrated on Chicago’s famous Michigan Avenue for the Festival of Lights Parade. See photos below!

Michig Light

Mich Lights

Need help this holiday season? Dial 1-800-CALL-PFG for a free phone mini-consultation, or make an appointment online 24/7 at www.infotapes.com.  Bankruptcy laws are in place to help you.  Who knows bankruptcy like Geraci Law?  Geraci Law has 20,000 5-star reviews 5starsince November 2016!

Read ALL ABOUT DEBT RELIEF at www.bankruptcybookbypeterfrancisgeraci.com.

Injured? Call PFG!

Injured? Hurt at Work? Call PFG!

Since 2017, Geraci, Arreola, and Hernandez clients received over $13.5 million in personal injuries and workers compensation cases.

Have you been injured? A family member hurt at work? Call Geraci, Arreola and Hernandez at 800.401.4010. Our team specializes in injuries to fight for you.

Are you struggling with the debt since the injury? Geraci Law will review your situation to determine if bankruptcy is an option. Debt and injury experts in one place, one phone call to figure out a possible solution.

Dial 1-800-CALL-PFG for a free phone mini-consultation, or make an appointment online 24/7 at www.infotapes.com.  Bankruptcy laws are in place to help you.  Who knows bankruptcy like Geraci Law?  Geraci Law has 20,000 5-star reviews 5starsince November 2016!

Read ALL ABOUT DEBT RELIEF at www.bankruptcybookbypeterfrancisgeraci.com.

PFG in Milwaukee, Wisconsin!

PFG in Milwaukee, Wisconsin 

Peter Geraci visited Geraci Law offices and ended in Milwaukee for a conference with Geraci Law attorneys.  Below are some of the photos from the trip!

First stop was to 4218 N Cicero to visit Attorneys Lizette Villegas and Wylie Mok and paralegal Maria Yoshida.

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Next to Geraci Law in Gurnee. Below are photos with Paralegal Nikolas Miranda. Then a photo of the Geraci Law Gurnee team with paralegal Nikolas Miranda and Attorney Marc Affolter.

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Heading further north, PFG visited the Geraci Law Racine office at 6218 Washington (just west of Green Bay Road). He met with Attorney Joseph Blaha.

JJB PFG

After visiting Racine, PFG visited Attorney Andrew Golanowski and Attorney Rob Brynjelsen in Geraci Law Wauwatosa at 2505 N Mayfair Road.

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PFG and Geraci Law Wisconsin Attorneys attended CLE (continuing Legal Education) in Milwaukee. After meetings, the group had dinner at Moe’s The Place for Steaks in Milwaukee.

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Attorney Andrew Golanowski showed off his basketball skills!!!

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