No, we do not believe that it is necessary under Illinois law to re-start the foreclosure process when the mortgagor gets married. Instead, your bank simply may add the new spouse as a party to the existing foreclosure proceedings.

It is difficult to determine what specific interest, if any, the new spouse has in the foreclosure property in this case. However, to the extent that the new spouse may have a homestead interest in the property or is claiming an interest in the property, your bank has the right to add her to the proceedings and terminate that interest. To add the spouse, your bank’s counsel must file an affidavit with the clerk of the court identifying her as a “nonrecord claimant” — an individual who has a homestead or other claimed interest in the property but did not record that interest prior to the filing of the foreclosure notice. After filing the affidavit, you must provide the spouse with notice of the foreclosure at least 30 days before the court enters a judgment.

Note that even if you do not notify the spouse of the foreclosure and add her as a nonrecord claimant, she has her own right to claim an interest in the foreclosure property and be added to the proceedings at any time before judgment. Consequently, we believe it would be prudent to follow the foreclosure law’s requirements to add the spouse as a nonrecord claimant, thus assuring her potential interest in the property will be terminated in the foreclosure judgment. 

Note, too, that foreclosure law is different in every state. For each state where you have initiated foreclosure on a residential property, you will have to review that state’s foreclosure laws to determine the appropriate procedure for addressing a new spouse’s potential rights.

For resources related to our guidance, please see:

• 735 ILCS 5/12-901 (“Every individual is entitled to an estate of homestead to the extent in value of $15,000 of his or her interest in a farm or lot of land and buildings thereon, a condominium, or personal property, owned or rightly possessed by lease or otherwise and occupied by him or her as a residence, or in a cooperative that owns property that the individual uses as a residence. That homestead and all right in and title to that homestead is exempt from attachment, judgment, levy, or judgment sale for the payment of his or her debts or other purposes and from the laws of conveyance, descent, and legacy, except as provided in this Code or in Section 20-6 of the Probate Act of 1975. This Section is not applicable between joint tenants or tenants in common but it is applicable as to any creditors of those persons. If 2 or more individuals own property that is exempt as a homestead, the value of the exemption of each individual may not exceed his or her proportionate share of $30,000 based upon percentage of ownership.”) 

• 735 ILCS 5/15-1210 (“‘Nonrecord claimant’ means any person (i) who has or claims to have an interest in mortgaged real estate, (ii) whose name or interest, at the time a notice of foreclosure is recorded in accordance with Section 15-1503, is not disclosed of record . . . and (iii) whose interest falls in any of the following categories: (1) right of homestead. . . ..”)

• 735 ILCS 5/15-1502(b) (“The interest in the mortgaged real estate of a nonrecord claimant who is given notice of the foreclosure as provided in paragraph (2) of subsection (c) of Section 15-1502 shall be barred and terminated by any judgment of foreclosure to the same extent as if such claimant had been a party.”)

• 735 ILCS 5/15-1502(c)(1) (“A party in a foreclosure seeking to bar and terminate the interest in the mortgaged real estate of nonrecord claimants shall file in the office of the clerk of the court in which such action is pending an affidavit stating (i) the names and respective present or last known places of residence of such nonrecord claimants, or (ii) that the existence, names or the present or last known places of residence, or both, of such nonrecord claimants are unknown as of that time to the party and to the party’s attorney . . . .”)

• 735 ILCS 5/15-1502(c)(2) (“At least 30 days prior to the entry of a judgment of foreclosure, any person identified in the affidavit described in paragraph (1) of subsection (c) of Section 15-1502 shall be given a notice of the foreclosure complying with the requirements of Section 15-1503 by the party filing the affidavit. Such notice shall be given in the manner and upon the terms and conditions set forth in Sections 2-206 and 2-207 of the Code of Civil Procedure . . . .”)

• 735 ILCS 5/15-1501(b) (“Any party may join as a party any other person, although such person is not a necessary party, including, without limitation, the following: (1) All persons having a possessory interest in the mortgaged real estate