LOCAL UPDATE: Cook County General Administrative Order No. 2016-03, Reformation of Legal Description
On April 7, 2016, Cook County enacted General Administrative Order No. 2016-03 which details the requirements for motions to reform legal descriptions in mortgage foreclosure cases. Reformation counts have become increasingly more frequent in mortgage foreclosure cases over the past few years. This is mostly due to the fact that many investors will not accept indemnification letters from title companies for incorrect legal descriptions Lenders’ and servicers’ counsel are often required to plead a count for reformation of a legal description within their complaint for mortgage foreclosure. Previously, Cook County did not require that any specific documentation be submitted with the motion for reformation to support the claim that the legal description required reformation. However, the newly entered General Administrative Order now requires that any motion to reform or correct a legal description must clearly identify:
1) The legal description contained within the original document that is being reformed;
2) The correct legal description must also identify the portion of the legal that was previously incorrect;
4) The reason that the reformation count is sought and an explanation as to why the legal was incorrect; and
5) Evidence to support the reformation.
The General Administrative Order states that the following documents are acceptable as evidentiary support for the reformation motion:
1) Land survey with an affidavit from the appropriate affiant that identifies the nature of the error and the correction;
2) A survey from the original title file and a survey from the current title file; or
3) Any other evidence that the judge deems sufficient on a “case-by-case” basis dependent on the error contained within the legal description.
While the Order on its face appears to be extremely specific regarding the type of evidence that must be submitted with the reformation motion, the third paragraph listed above appears to leave the decision to reform to the judge’s discretion in all cases. Unfortunately, the items contained within the first two paragraphs are generally not available to use as support for the reformation motion and most servicers will not authorize fees for a survey. As the survey and affidavit have been frequently unobtainable when moving to reform the legal description, there have been favorable outcomes when submitting the tax assessed legal as obtained from the County as evidentiary support. A second option which has been well received by the court is to attach a copy of the plat map, clearly showing the correct legal description, as an exhibit to the reformation motion. As both options have been successful, we would recommend attempting to use the tax assessed legal or plat map as evidentiary support for the motion prior to paying higher fees to obtain surveys and accompanying affidavits.
Please feel free to contact Supervising Attorney Kim Goodell with any questions at (248) 853-4400 x1227 or via email at kgooodell@potestivolaw.com.
