Most standard mortgages contain an acceleration clause. The clause generally requires a lender to provide a borrower with notice of default and its intent to accelerate. It also requires that the lender prescribe steps that can be taken to cure the default and a date at least thirty days from the date of notice by which a borrower must cure the default.
This clause is often ignored by lenders and is a condition precedent to filing a foreclosure action. Simply put, a condition precedent is an affirmative action that must be taken before performing another action. In this context, a lender must take the steps outlined in the mortgage's acceleration clause prior to filing for foreclosure. Failure to do so does not invalidate the mortgage, but it can lead to the temporary dismissal of the foreclosure claim, resetting the clock for the distressed borrower.
More after the jump.
In Illinois, a 2-619 motion is a hybrid between a 2-615 motion (motion to dismiss for failure to state a claim0 and a 2-1005 motion (motion for summary judgment). Defensive in nature, these motions dispose of issues of law and fact. The motion admits the truth and sufficiency of the claim, but not for purposes of the affirmative matters asserted.
An affirmative matter is a defense that either negates a cause of action, or refutes critical conclusions of law or fact. In the case of an acceleration clause, since the acceleration must take place before the foreclosure filing, the absence of an acceleration is an affirmative matter that negates the cause of action. Since section 2-619 also allows for affirmative defenses, this can be brought even if counsel is retained beyond the point where filing a 2-619 motion would be appropriate.
Ultimately, it seems that any missed procedural step can be used to dismiss a claim in this manner.
