Publication Date

8-8-2023

Document Type

Article

Abstract

By presenting a detailed case study, which focuses on who gets subjected to government liens, this essay helps U.S. states to make more informed decisions. It seeks to do so by critically assessing Illinois’ historic approach to lien imposition and enforcement, in part, because this state had the most forced sales of real property in recent years. In addition, Illinois also generated the largest amount of related economic losses in the U.S. during that same time period. This state did so despite adhering to the old majority rule for turning over surplus value from such sales. That rule required creditors to return any surplus to debtors, at least in cases wherein 1) a sale is final, 2) creditors are made whole and 3) debtors do what is legally required to receive the money that is left over after foreclosure. This rule is now the only possible one after the U.S. Supreme Court’s Tyler v. Hennepin County decision. My essay carries out the aforementioned research in its seven (7) parts (I-VII). Part I is the introduction. Part II provides some basic background information about government liens, which highlights how these encumbrances are imposed in Illinois. Part III describes the applicable law in the wake of Tyler. Part IV outlines this essay’s approach to collecting and analyzing government lien data. Parts V contains its analysis of these data, which finds that firsthand observations about a debtor’s conduct may be a better basis for making government lien imposition decisions than relying on projections that employ secondhand information. Part VI contains the essay’s recommendations, including one about how creditor-states may limit right violations by requiring perfect equality of treatment with respect to how liens are imposed and/or enforced against similarly situated debtorcitizens. Part VII is the conclusion.

Publication Title

University of Illinois Law Review Online

Volume

2023

Issue

Fall

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