Iowa Delay of Sale in Foreclosures

Iowa's foreclosure laws have some unusual quirks. One is the ability to request a delay of sale. Make no mistake--requesting a delay of sale does nothing except delay the date of the sheriff's sale. Here is a brief overview of how delay of sale works:

A foreclosure petition is filed.

The borrower/mortgagor/defendant (will call this person the borrower from here on out) files a demand for delay of sale.

If the property is not the residence of the borrower, the sheriff's sale will be delayed two months from the date the foreclosure decree is entered.

If the property is the residence of the borrower, and the lender is seeking a deficiency judgment, the sheriff's sale will be delayed twelve months from the date the foreclosure decree is entered. A deficiency judgment is best explained with an example: The borrower owes $100,000 on the mortgage. The lender only gets $80,000 when it sells the property after the foreclosure. The $20,000 difference is the deficiency. If the lender is going to try to get that difference from the borrower, the lender is seeking a deficiency judgment.

If the property is the residence of the borrower, and the lender is NOT seeking a deficiency judgment, the sheriff's sale will be delayed six months from the date the foreclosure decree is entered.

Remember, these delay periods only apply IF the borrower demands a delay of sale.

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Deed and Green

Deed and green. Sounds like someone who works to improve the environment. But it is actually a pejorative term to describe what lazy attorneys do, or rather don't do, for their clients. In the olden days in Illinois, the declarations of value required when selling real estate were green. Hence they were called "green sheets." So "deed and green" refers to an attorney who does nothing but prepare a deed and green sheet for a seller of real estate--no representation, no attending closing, nothing. Seriously, all they do is fill in the blanks on a couple of prepared documents. This is not representation. This is providing secretarial services. In Illinois, there is an ethics opinion which states it is unethical for an attorney to prepare a deed and delegate all other responsibilities of the real estate transaction to a non-attorney. Here is a snippet of that opinion:

Opinion No. 94-1 July, 1994
Topic: Unauthorized Practice of Law; Conflicts of Interest; Limitation of Scope of Representation Digest:
A lawyer aids in the unauthorized practice of law, and may violate rules pertaining to confidentiality, conflicts, and the duty to communicate with and explain matters to a client, by limiting his role in a real estate transaction to the drafting of documents and delegating the gathering and dissemination of information, the resolution of problems arising from such the documents drafted, and other problems which may arise at the closing, to the real estate broker.
Ref.: Illinois Rules of Professional Conduct, Rules 5.5(b), 1.4(b), 5.4(c)
ISBA Opinion on Professional Conduct, Nos. 90-35 and 87-2

If you would like to read the rest, just let me know.

So why would an attorney do this? Are they lazy? Are they trying to minimize risk? Sucumbing to the demands of referring real estate agents? I have no idea. I am sure, however, that if a problem arises, the disciplinary commission and the attorney's malpractice carrier will not be amused with any arguments that the attorney felt his or her responsibility ended at preparing the deed.

In our area, there are only a couple of bad apples I know of who pull the "deed and green" routine, but in other parts of Illinois, with the exception of the Chicago area, it is more common. And in Iowa? Oh my goodness! You certainly would not guess Iowa prides itself on keeping attorneys involved in real estate transactions. We are involved in transactions throughout the entire state, and I am constantly shocked at how little attorneys do in "representing" their clients. Outside of our community, you are more likely to see Sasquatch on your way home from work this morning that you are to find an attorney at a closing.

So, come on "deed and green" attorneys; either represent your clients or don't represent your clients. Stop being satisfied with doing only part of your job. And sellers, if you can't find an attorney who will actually represent you, don't pay for someone to complete a couple of simple documents for you. Keep looking for someone who is willing to actually do his or her job. We are out there! And if there really is not one attorney in your community willing to represent you (and sadly, there are places like that), fill in the blanks yourself and save the $50-$100. All the documents you need are easily available on the Internet.