We do not believe that the new Illinois Supreme Court mortgage foreclosure rules would require a bank that does not have an in-house loss mitigation program to start providing such a program. (See the most recent April 8, 2013 version of the rules, which includes some brief committee comments on Rule 114, which mandates the loss mitigation affidavit.)

Rule 114 requires foreclosure plaintiffs to submit an affidavit before moving for judgment, provided that the borrower has appeared or filed an answer. In addition, plaintiffs must “comply with the requirements of any loss mitigation program which applies to the subject mortgage loan.” In our view, this does not require a bank to create an in-house loss mitigation program. However, we cannot guarantee that a judge will interpret the rule differently, particularly because the rules have been in effect only since May 1 of this year.

We do suggest that you discuss this requirement with your foreclosure counsel, consider any other loss mitigation programs that may apply (such as any FHA, VA, or USDA programs, as suggested in a footnote in the rule’s form affidavit), and check with any counties in which you have foreclosures to see if they provide any loss mitigation or foreclosure mediation programs.