The Mortgagor Has a Right to Possession of the Property During an Illinois Mortgage Foreclosure

In residential real estate foreclosure actions, the presumptive right to possession during foreclosure rests with the mortgagor of the real estate. Mellon Bank, N.A. v. Midwest Bank & Trust Co., 265 Ill.App. 3d 859, 638 N.E.2d 640, 202 Ill.Dec. 772 (1st. Dist. 1993).  A mortgagee can overcome this presumption only if it (1) objects and shows good cause, (2) has authority pursuant to the terms of the mortgage or other written instrument, and (3) the court is satisfied that there is a reasonable probability that the mortgagee will prevail at a final hearing.  735 ILCS 5/15-1701(b)(1). 

If a mortgagee wants to take possession of a property during the pendency of a foreclosure, the mortgagee must file a motion requesting it be placed in possession  The motion must indicate it has authority to take possession pursuant to the terms of the mortgage and that it is likely to prevail on its complaint.

Usually the mortgagee's right to take possession subsequent to a default is provided for in the terms of the mortgage.  The provision will likely be similar to this: "if the mortgagor defaults in the payment of said indebtedness then at mortgagee's option, mortgagee shall have the right to enter upon and take possession of said premises without notice." 

The mortgagee must also show that there is a reasonable probability of prevailing on its complaint.  A proven default is all that is needed to show a reasonable probability of success in a foreclosure action.  Brown County State Bank v. Kendrick, 140 Ill.App.3d 538, 488 N.E.2d 1079, 1081, 94 Ill.Dec. 832 (4th Dist.1986).  The mortgagee may prove the default by means of a verified pleading or affidavit to that effect. See Nissan Motor Acceptance Corp. v. Schaumburg Nissan, Inc., No. 93 C 2701, 1993 WL 326896 (N.D.Ill. Aug. 26, 1993). 

During the pendency of a foreclosure, if a mortgagee determines a property to be vacant, open and unsecured the best course of action is to file a motion and request to be placed in possession.  If a mortgagee takes possession of a property without court authority to do so, the mortgagee could face potential claims or liability for illegal eviction, damage to the property or theft of items potentially stored at the property.