FAQ's. Common Concerns about Personal Injury, Bankruptcy & Real Estate matters.
Going through something as difficult as a major legal event can leave you filled with questions about the past, present, and what to expect in the future. Get answers to some of the top questions I receive about Illinois personal injury, real estate and bankruptcy matters to help put your mind at ease. Check back often for even more answers to your legal questions. Better yet, give us a call to see how we can help.
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At What Point do I need to hire a Real Estate Lawyer?
Do not wait to hire a real estate lawyer! Its not a bad idea to line one up as soon as you know that you are going to be selling your house or buying one. At the very, very latest, you should be hiring your attorney within 24 hours of signing acceptance on your contract (‘the offer’) with a buyer or seller. Most (not all) contracts will only give five days in which to have an attorney review your contract or make changes to it, and within 5 days, the buyer’s lawyer will likely be sending out a letter with their “attorney review” modifications and/ or requests from the property inspection. If you are the seller, your lawyer also needs to get moving on ordering title and other tasks sooner rather than later, to meet your closing date. It is likely, though, that you will have legal questions even before your house is under contract, and since you are paying a flat fee (no hourly charges here), you may as well hire a lawyer as early on in the process as possible so that you can ask questions as they arise.
Feel free to call me at 630 250-8813 with no obligation on your part, just to talk so that I can answer any questions that you may have about the home selling or buying experience - as you get ready to start the process of a real estate closing.
Who will actually be working on my Real Estate case for my closing?
If you hire O'Connor Cadiz Law for your real estate closing. You will work closely and directly with me. I enjoy my job immensely and it is my mission for every case that I take, to handle it personally. I see my clients as people and not just as little bags of money as I hop from one closing to the other. I want to get to know you and see you through the process from start to finish. If you have a question, it is me that you will talk to. If you send an email to my office, it is me who will answer it. That does not mean that I am available 24 hours a day- I am out at closings a lot, as you can imagine, and do have a busy schedule, but I still make myself accessible to clients and their realtors, and I will always be the one to get back to you. Some other lawyers operate the same way, but the overwhelming majority do not. It is just a different business model, and they often will assign someone else (usually a non-lawyer) to your case. Often times these workers are overstressed, overworked, and will sit at their desk all day wearing a headset (I’ve seen it). If you are okay with that, that’s fine- but just know from the outset that you may not always get the attorney you hired to handle the all aspects of your case. You might not even ever speak to them directly until you get to the closing.
Interested in learning more about how I might be able to help you? Give me a call to see if we are a good fit to handle your Chicago area real estate closing. Don't live near Schaumburg or Itasca? It doesn't matter, you don't have to come in to my office. My number is 630 250-8813. Talk to you soon!
Do I have to use the Lawyer that my Realtor Recommends?
No, but you can. First of all, your Realtor should be giving you more than one lawyer’s name. Your Realtor is likely recommending him or her because of good work that he or she has seen come out of their office in the past. That is a good start, but there are other considerations. Is your Realtor recommending them because they are cheap and in turn, thinks that this is what you want or need? Price should be only one consideration, and quite frankly, not the most important- especially since most real estate attorneys charge about the same anyway. Back to your Realtor recommendation, assuming that your Realtor recommends “X” and “Y” lawyers based on service or a relationship or whatever & not just price, this does not mean that his or her personality will match yours or that their style of working is compatible with your service needs. Lots of people prefer to work with lawyers whom they already know who is experienced with real estate closings - or simply someone independent from the Realtor. Your Realtor wants you to be happy and will understand, so don’t worry about ‘offending’ anyone (likewise if you are buying, you don’t have to use the lender that your agent recommends either). At the end of the day, you have to be comfortable with your selection.
Do I really need a Real Estate Lawyer for my Illinois Home Closing? Why does IL use lawyers for Real Estate?
Why Indeed! This is one of those questions that makes me want to roll my eyes and bang my head against a wall every time I hear it. If they knew what I knew...
Why it is not customary everywhere in the United States to use lawyers to assist in what is usually one’s largest financial transaction, I will never understand. Especially since real estate deals all start out with a contract. Contracts are legally binding documents! They impose obligations on all parties, obligations which people can and do get sued over. Read that sentence again. I guess the best answer that I can come up with is that in some other parts of the country, real estate agents or title agents will ‘practice law’ to a certain extent, or come close to it, and a blind eye is turned towards it. Not here! In other parts, title companies hire lawyers to prepare legal documents. Lawyers get involved once it is too late and folks are running up the courthouse steps. Using a lawyer for your real estate closing not only makes everything run smoother but is like preventitive meidicine, too.
What Will Probably Happen if you don't hire a lawyer for your real estate closing in Illinois
Most title companies here, in the Chicago area (& suburbs) will turn sellers away if they don’t have lawyers. Without one, you will quite simply be unprepared to close and your buyer will want blood (or money). Here, sellers' lawyers typically handle the title work (this is a good thing!) and prepare closing documents, ensuring that everything runs smoothly. Even if you decide not to get a lawyer, there is a 99% chance or greater that the other party will hire one, and you aren’t going to know how to respond to the letters and other legal requests that come your way, so its not just the closing that you need to worry about. Its the six weeks or so before that, too. There are may legal obligations placed upon you and what you don't know can hurt you and cost you money, not to mention stress.
Hiring an attorney for your real estate closing is inexpensive (flat fees are typical) and is money well spent. Your Realtor will agree! Speaking of your Realtor, do not expect him or her to explain your documents to you at closing, they won’t do it, nor should they (nor will the employees of the title company, in fact- the title company will make you sign something saying they did not act as your lawyer). Your realtor probably told you on day one to get an attorney. You don't have to use who they recommend, by the way.
Looking for an independent real estate attorney to get the job done? Give me a call at 630 250-8813 and I will be happy to get on the phone and answer any questions you have.
I filed a Chapter 13 bankruptcy and forgot a few documents. Now there's a Motion to Dismiss. Can I save it?
The odds are against you from the outset if you filed a bankruptcy case on your own. The Bankruptcy Code is incredibly complex and often times, it is what you don't know or what you left out that can get you into trouble with the U.S. Bankruptcy Trustee, which is why it is a good idea to get the help of a bankruptcy lawyer as early on as possible. Even though you filed Pro-Se (representing yourself), it might not be too late to enlist the help of an attorney who can review the Trustee's Motion to Dismiss your bankruptcy and see if it can be saved. Perhaps the missing documents can be filed right away before the court date. If they are filed correctly and within the appropriate time frames, you have a better chance of either the Trustee withdrawing the motion or the judge allowing your case to proceed. It would be a good idea to have the attorney review the Chapter 13 plan as well, so that you don't face further issues with having it confirmed.
While it is tempting to try and save money by filing for bankruptcy without a lawyer, it is generally not a good idea- especially in Chapter 13. The majority of the fees will be paid by the plan itself over a three to five year period and should not change the amount that you pay each month into your Chapter 13 plan, because of how chapter 13 works. This means that money which would have gone to unsecured creditors such as credit card companies will now go your lawyer instead which is a direct benefit to you.
My Chapter 13 Bankruptcy is being dismissed for missing payments. Can I re-file?
Chapter 13 Bankruptcy means that you are making one payment each month to the bankruptcy trustee, for distribution to your creditors. If you fall behind and stop making your payments, the trustee will file a motion with the court asking that your Chapter 13 case be dismissed, leaving you without the protection of the court or your 13 plan. If the trustee has filed a motion but it has not yet been dismissed by the judge, it might not be too late. Before making any decisions, look at your reason for falling behind. Was the plan unrealistic to begin with or did something happen in the meantime which is now resolved, allowing you to stay current with your payments in the future? If there was a problem with your plan, speak with your bankruptcy lawyer immediately to see what possibilities exist for you to modify your plan, which may be easier if there has been a change in your circumstances such as reduced hours at work. Another possibility might be working something out with the bankruptcy trustee to defer your default to the end of the plan. However, if your bankruptcy has already been dismissed, you may be able to re-file but first, look into whether or not it makes sense to do so. If you do refile your chapter 13 bankruptcy, be sure to also file a motion to extend the automatic stay, as they are only good for 30 days on a refiled case.
I am moving or just moved. Where do I have to file my bankruptcy?
Your bankruptcy petition will be filed in the district bankruptcy court where you live. But, if you recently moved- you will have to have lived in the court’s jurisdiction for the last 180 days (roughly six months). If you are a business, then where you have your principal place of business, where the business is organized or where there is a pending case of an affiliate or your partner. 28 USC 362.
Will I lose my retirement if I file for bankruptcy?
Your Pension, IRA, and 401k are protected in bankruptcy in the State of Illinois. When the bankruptcy laws were written, lawmakers wanted to make sure to protect people's retirment plans. However, they must be properly 'exempted' on Schedule C of your bankruptcy schedules in order to be protected. Also, your retirmenet plan must be an acutal retirement plan like a pension, IRA, 401k, etc. You cannot protect a regular savings account, for example, and declare that your intention was always to put that away for retirment. In that case, it would be treated as any other bank account which most people will protect using their "wildcard' exemption of $4,000 in Illinois.
Retirmenet plans are their own category of assets with its own special section of the law which protects it. There are many, many 'categories' of property in bankruptcy, all of which make up the bankruptcy estate. And for each item you own, a determination must be made as to whether or not it can be protected and if so, how much. This should be looked at before you file and certainly before determininig which chapter of bankruptcy you wish to be filing under. Bankruptcy laws are very complex. If you are considering filing, give us a call at 630 250-8813 for our Itasca location or 630 250-8809 for Schaumburg. We'd be glad to help.
What will happen at my 341 First Meeting of Creditors for my Chapter 7 Bankruptcy Case?
A member of the panel of private trustees, usually an attorney, will be assigned to ask you questions at your 341 First Meeting of Creditors. Every Chapter 7 and Chapter 13 debtor has to attend. It is a matter of routine but still must be taken seriously. You will be placed under oath and asked to provide identification. The Trustee's job is to make sure that all of the paperwork was properly filled out, that you understood it, that you disclosed all of your assets and all of your liabilities, to determine in a Chapter 7 if you have anything above and beyond what you are allowed to keep for distribution to your creditors, and so forth. In Chicago and suburban Illinois courthouses, this is usually done inside a tiny room across a desk from the trustee with a small tape recorder on the table with your attorney sitting right next to you.
To call it a first meeting of creditors is a bit of a misnomer because it implies that there will be a second (just like you don’t want to call the first person you marry your “first wife” or “first husband” while you are still married to them). Usually there is only one 341 meeting, unless there is something that needs to be looked into further or if your paperwork needs to be amended. Bankruptcy is a very rule-specific area of law where everything required must be followed strictly. To have a second meeting happens far more often for people who file without an attorney. Your attorney will give you an idea ahead of time as to what to expect so that you are not nervous, and will come with you to the meeting but cannot answer questions for you.
Creditors have the right to show up but rarely do. When and if a creditor shows up, it is usually to talk to your attorney to find out if you would like to sign a reaffirmation agreement so that you can keep some item of secured property, like a washing machine, for re-negotiated terms. This is another of many reasons why you should have an attorney with you for your bankruptcy case, as you may be asked to sign legal documents that may or may not be in your best interest to sign.
How are my debts to the Illinois Tollway dealt with in Bankruptcy?
Debts owed to the Illinois Tollway for unpaid tolls are technically not dischargeable in bankruptcy. This means that in a Chapter 7, you will have to pay the unpaid tolls back once your other debts have been discharged in bankruptcy. They survive the bankruptcy because they are a debt owed to a government (the State of Illinois) that is in the nature of a tax and unless they are more than three years old, are non-dischargeable. However, it has been the practice of the Illinois Tollway to remove the penalties, late fees etc from what you owe. I have also heard of instances where they do not pursue the underlying tolls at all, though this is more likely to happen if the amount of tolls is small. Nonetheless, be prepared to have to re-pay those old tolls. If Chapter 13 is a viable option for you and you owe a lot of money in tolls, you may wish to consider a Chapter 13 plan to deal with them. Remember that if you still owe tolls, your ipass may not be re-enabled until those old tolls are paid, which is why some people will use cash lanes to avoid the problem becoming bigger than what it already is. When you file for bankruptcy, remember to provide your plate number and/or violation notice number so that the tollway can match it up to your filing. While the tolls are not dischargeable in your bankruptcy, the tollway still must respect the automatic stay and leave you alone until the case is over.