Earlier this year, the Supreme Court of Illinois issued M.R. 31228, In re: Time Standards for Case Closure in Illinois Trial Courts, which includes standards for the length of time allowed for both foreclosure and eviction cases. The result of work by the Court Data & Performance Measures Task Force, the order issued March 22 is effective for all cases filed on or after January 1, 2022.The resulting standards are:
The court defines the end of the case as when the final order is filed. For foreclosures, this is the order confirming the judicial sale, while in an eviction, it is the order of possession. The court’s accompanying amendments to its Manual on Recordkeeping, which provide the data that will drive any future changes to these standards, further explains that judicial circuits must carve out the time a case spends as “inactive.” The court does not provide a very detailed explanation of “inactive,” however (see below).
To provide some context, Manley Deas Kochalski (MDK) estimates that in Illinois’s largest county, Cook, the fastest a foreclosure could reach final order is 224 days. While this is sooner than the 75% standard of 548 days, it is, again, the absolute fastest a case could move. When a case becomes even lightly contested, there is a substantial risk it could exceed the 75% standard. Highly contested cases, especially in Cook County, routinely exceed the three-year, 98% standard.
MDK is monitoring how courts will react to these standards in contested cases, as it possible the standards may be used as a sword against both borrowers and servicers. Or, the courts may simply show no change in case management.
We could better predict the impact of the order with access to the data used by the task force, but the court doesn’t provide that. Instead, it points out the inherent unreliability of Illinois court data and statistics. This is primarily because each judicial circuit has developed its own definitions and record-keeping practices.
Steps Toward More Accurate Data
The court has taken a number of steps to remedy that problem and to begin gathering more accurate, useable data. First, it has changed the case type/category abbreviations used to provide data to be more specific to certain case types. For example, foreclosures were previously filed as chancery (CH) case types. Now, in all counties except Cook (where they remain chancery), they are filed as foreclosure (FC) case type. Similarly, while evictions have historically been filed as municipal (M) in some counties, they are now filed as eviction (EV) case types. This will allow courts to review better quality data regarding these individual case types and adjust future time standards accordingly.
For its second step, the court has mandated uniform record keeping across the judicial circuits with its amended Manual on Recordkeeping. This document uses new case statistics and definitions for all circuits. The circuits are to report the length of time from the complaint to final order, or “closed” status, for all cases. They are also tasked with carving out the time a case spends on “inactive” in their reports. Again, the Manual on Recordkeeping does not provide a good definition of “inactive.”
Here's the manual’s definition of “inactive” for civil cases, including both foreclosures and evictions:
A case is inactive when, upon notice of a bankruptcy petition, the court enters an order placing the case on inactive status pending the resolution of a bankruptcy proceeding. A case shall be counted as “reactivated” when the reason for being inactive has been resolved.
The definition appears to be limited to cases in which there is an active bankruptcy stay. Several courts in Illinois, though, maintain mediation programs. The definition as it stands doesn’t include time spent in a mandatory mediation program as “inactive” status time, even though the case is not permitted to proceed toward final order. Additionally, and possibly more importantly, there is no recognition of loss mitigation related holds, some of which are mandated by federal regulation. MDK will be monitoring how the courts respond to extended mediation or loss mitigation hold time in light of these new standards.
Courts Could Move More Quickly
The new time standards could spur the courts to move files more expeditiously. This might result in less leniency for borrowers who fail to take part until the final stages, or toward those who repeatedly request extensions. Similarly, it could mean fewer continuances, motions to vacate default judgments granted, or motions to stay sale granted. On the other hand, the courts could use the order to push servicers to move files, sometimes in the face of loss mitigation holds. The result of this pressure could be orders dismissing cases with leave to reinstate, or possibly dismissals for want of prosecution.
MDK will monitor Illinois courts and their reaction to the new timing standards. We will update our clients accordingly.
This publication is for informational purposes only and does not constitute an opinion of Manley Deas Kochalski LLC.
Do not rely on this publication without seeking legal counsel.