Navigating the Illinois Court System

Navigating the Illinois court system

Upon receipt of the summons and complaint, you will receive information as to what court the foreclosure suit was filed in. The Illinois state courts have three levels: the circuit court, the appellate court, and the Illinois Supreme Court. If this is a newly filed case, it will be filed with the circuit court of the county where the property is located. If it is Cook County, it will be the Circuit Court of Cook County. If it is Lake County, it will be the 19th Judicial Circuit Court of Lake County. Etc. Absent the process to move the case to a different court, the foreclosure will stay within the trial court until completion.

Once the case has been decided, the losing party has the opportunity to appeal to the Illinois Appellate Court. The Appellate Court is broken up into districts, with the First District covering Cook County and the 2nd District covering much of Northeastern Illinois. Technically, the Illinois Appellate Court system is a unified system, meaning there is only one court, so all Illinois Appellate Court cases are binding precedent for any trial court in the state, unless there is a conflict between districts, at which point the district the case is in will matter.

The losing party at the appellate level can request an appeal to the Illinois Supreme Court. The Illinois Supreme Court can choose to hear the appeal or not.

When drafting legal briefs, it is important to pull precedent from the Illinois Supreme Court and any appellate courts (unless there is a conflict among districts, then you should only pull precedent from your district as binding authority). In the realm of foreclosure litigation, there have been many legal decisions in Illinois from these courts, so it will usually be unnecessary to obtain persuasive precedent from other sources. However, if you are presented with a unique issue, it will make sense to cite the other state courts and Federal courts.

Now you may be confused, as the case you are dealing with was not filed with the Illinois court system, but instead with the Federal system. That’s right, if the Federal court has some form of jurisdiction, then it is possible for the bank to file the foreclosure in Federal court. Maybe one out of a hundred cases get filed in Federal Court, but with the number of foreclosures we are dealing with that is not so rare.

For foreclosures in Northern Illinois, the only relevant court will be the Northern District of Illinois, Eastern Division, Federal Court in Chicago. The foreclosures in Northern Illinois get filed in this court. If the home is in Northwestern Illinois, then you might see the Northern District of Illinois, Western Division, Federal Court in Rockford. After the case completes in either one of these courts, the loser can appeal to the 7th Circuit Federal Court in Chicago (yes it is confusing that Illinois state courts use the term “districts” and “circuits” in an opposite way to the Federal Courts – that’s the way it goes). The loser at the Circuit court can then ask the U.S. Supreme Court to hear the case… good luck with that one.

Now you might ask, as a defender of a foreclosure lawsuit, which court is preferable? Both courts have their pros and cons. If the Defendant has counterclaims based on Federal law, it would make sense to have the case moved to the Federal Court, as the Federal Court may take those claims more seriously. If the goal is to simply maximize the amount of time in the property before walking away from it, then the overburdened state courts might be better as their foreclosure process tends to take longer.

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For a practitioner level guide on foreclosure, check out the American Bar Association’s Guidebook on foreclosures.

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