In her December Illinois Bar Journal article, “A Firefly Is Not a Fly Made of Fire,” Lauren Riddick makes a convincing case that many mortgage foreclosure filing preconditions have been mischaracterized as a “condition precedent,” resulting in a stricter standard of compliance for lenders than would otherwise be required. 

Prior to initiating foreclosure, Riddick writes, most mortgages require that lenders send a notice to their defaulting borrowers. These notices, which answer to a variety of monikers (“demand letter,” “notice are of acceleration,” and “acceleration notice” are favorites), are typically intended to notify the borrowers of the default, provide an opportunity to cure, and advise of next steps. However, what’s been largely overlooked is that this contractual notice requirement is being inaccurately characterized as a “condition precedent” by the Illinois judiciary, with an attendant incorrect standard of review. Interestingly, Illinois courts don’t appear to have purposely selected this characterization over another; instead, they seem to be unaware of the error.

Read the article A Firefly Is Not a Fly Made of Fire in the December issue of the Illinois Bar Journal.