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Full Text of SB1355  97th General Assembly




SB1355 EngrossedLRB097 07919 AJO 48034 b

1    AN ACT concerning civil law.
2    Be it enacted by the People of the State of Illinois,
3represented in the General Assembly:
4    Section 5. The Code of Civil Procedure is amended by
5changing Sections 15-1503 and 15-1508 as follows:
6    (735 ILCS 5/15-1503)  (from Ch. 110, par. 15-1503)
7    Sec. 15-1503. Notice of Foreclosure.
8    (a) A notice of foreclosure, whether the foreclosure is
9initiated by complaint or counterclaim, made in accordance with
10this Section and recorded in the county in which the mortgaged
11real estate is located shall be constructive notice of the
12pendency of the foreclosure to every person claiming an
13interest in or lien on the mortgaged real estate, whose
14interest or lien has not been recorded prior to the recording
15of such notice of foreclosure. Such notice of foreclosure must
16be executed by any party or any party's attorney and shall
17include (i) the names of all plaintiffs and the case number,
18(ii) the court in which the action was brought, (iii) the names
19of title holders of record, (iv) a legal description of the
20real estate sufficient to identify it with reasonable
21certainty, (v) a common address or description of the location
22of the real estate and (vi) identification of the mortgage
23sought to be foreclosed. An incorrect common address or



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1description of the location, or an immaterial error in the
2identification of a plaintiff or title holder of record, shall
3not invalidate the lis pendens effect of the notice under this
4Section. A notice which complies with this Section shall be
5deemed to comply with Section 2-1901 of the Code of Civil
6Procedure and shall have the same effect as a notice filed
7pursuant to that Section; however, a notice which complies with
8Section 2-1901 shall not be constructive notice unless it also
9complies with the requirements of this Section.
10    (b) With respect to residential real estate, a copy of the
11notice of foreclosure described in subsection (a) of Section
1215-1503 shall be sent by first class mail, postage prepaid, to
13the municipality within the boundary of which the mortgaged
14real estate is located, or to the county within the boundary of
15which the mortgaged real estate is located if the mortgaged
16real estate is located in an unincorporated territory. A
17municipality or county must clearly publish on its website a
18single address to which such notice shall be sent. If a
19municipality or county does not maintain a website, then the
20municipality or county must publicly post in its main office a
21single address to which such notice shall be sent. In the event
22that a municipality or county has not complied with the
23publication requirement in this subsection (b), then such
24notice to the municipality or county shall be sent by first
25class mail to the chairperson of the county board or county
26clerk in the case of a county, to the mayor or city clerk in the



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1case of a city, to the president of the board of trustees or
2village clerk in the case of a village, or to the supervisor or
3town clerk in the case of a town provided pursuant to Section
42-211 of the Code of Civil Procedure.
5(Source: P.A. 96-856, eff. 3-1-10.)
6    (735 ILCS 5/15-1508)  (from Ch. 110, par. 15-1508)
7    Sec. 15-1508. Report of Sale and Confirmation of Sale.
8    (a) Report. The person conducting the sale shall promptly
9make a report to the court, which report shall include a copy
10of all receipts and, if any, certificate of sale.
11    (b) Hearing. Upon motion and notice in accordance with
12court rules applicable to motions generally, which motion shall
13not be made prior to sale, the court shall conduct a hearing to
14confirm the sale. Unless the court finds that (i) a notice
15required in accordance with subsection (c) of Section 15-1507
16was not given, (ii) the terms of sale were unconscionable,
17(iii) the sale was conducted fraudulently or (iv) that justice
18was otherwise not done, the court shall then enter an order
19confirming the sale. The confirmation order shall include a
20name, address, and telephone number of the holder of the
21certificate of sale or deed issued pursuant to that certificate
22or, if no certificate or deed was issued, the purchaser, whom a
23municipality or county may contact with concerns about the real
24estate. The confirmation order may also:
25        (1) approve the mortgagee's fees and costs arising



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1    between the entry of the judgment of foreclosure and the
2    confirmation hearing, those costs and fees to be allowable
3    to the same extent as provided in the note and mortgage and
4    in Section 15-1504;
5        (2) provide for a personal judgment against any party
6    for a deficiency; and
7        (3) determine the priority of the judgments of parties
8    who deferred proving the priority pursuant to subsection
9    (h) of Section 15-1506, but the court shall not defer
10    confirming the sale pending the determination of such
11    priority.
12    (b-5) Notice with respect to residential real estate. With
13respect to residential real estate, the notice required under
14subsection (b) of this Section shall be sent to the mortgagor
15even if the mortgagor has previously been held in default. In
16the event the mortgagor has filed an appearance, the notice
17shall be sent to the address indicated on the appearance. In
18all other cases, the notice shall be sent to the mortgagor at
19the common address of the foreclosed property. The notice shall
20be sent by first class mail. Unless the right to possession has
21been previously terminated by the court, the notice shall
22include the following language in 12-point boldface
23capitalized type:



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2    (b-10) Notice of confirmation order sent to municipality or
3county. With respect to residential real estate, a A copy of
4the confirmation order required under subsection (b) shall be
5sent by first class mail, postage prepaid, to the municipality
6in which the foreclosed property is located, or to the county
7within the boundary of which the foreclosed property is located
8if the foreclosed property is located in an unincorporated
9territory. A municipality or county must clearly publish on its
10website a single address to which such order notice shall be
11sent. If a municipality or county does not maintain a website,
12then the municipality or county must publicly post in its main
13office a single address to which such order notice shall be
14sent. In the event that a municipality or county has not
15complied with the publication requirement in this subsection
16(b-10), then such order notice to the municipality or county
17shall be sent by first class mail to the chairperson of the
18county board or county clerk in the case of a county, to the
19mayor or city clerk in the case of a city, to the president of
20the board of trustees or village clerk in the case of a
21village, or to the supervisor or town clerk in the case of a
22town provided pursuant to Section 2-211 of the Code of Civil
24    (b-15) Notice of confirmation order sent to known insurers.
25With respect to residential real estate, a copy of the
26confirmation order required under subsection (b) shall be sent



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1by first class mail, postage prepaid, to the last-known
2property insurer of the foreclosed property. Failure to send or
3receive a copy of the order shall not impair or abrogate in any
4way the rights of the mortgagee or purchaser or affect the
5status of the foreclosure proceedings.
6    (c) Failure to Give Notice. If any sale is held without
7compliance with subsection (c) of Section 15-1507 of this
8Article, any party entitled to the notice provided for in
9paragraph (3) of that subsection (c) who was not so notified
10may, by motion supported by affidavit made prior to
11confirmation of such sale, ask the court which entered the
12judgment to set aside the sale. Any such party shall guarantee
13or secure by bond a bid equal to the successful bid at the
14prior sale, unless the party seeking to set aside the sale is
15the mortgagor, the real estate sold at the sale is residential
16real estate, and the mortgagor occupies the residential real
17estate at the time the motion is filed. In that event, no
18guarantee or bond shall be required of the mortgagor. Any
19subsequent sale is subject to the same notice requirement as
20the original sale.
21    (d) Validity of Sale. Except as provided in subsection (c)
22of Section 15-1508, no sale under this Article shall be held
23invalid or be set aside because of any defect in the notice
24thereof or in the publication of the same, or in the
25proceedings of the officer conducting the sale, except upon
26good cause shown in a hearing pursuant to subsection (b) of



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1Section 15-1508. At any time after a sale has occurred, any
2party entitled to notice under paragraph (3) of subsection (c)
3of Section 15-1507 may recover from the mortgagee any damages
4caused by the mortgagee's failure to comply with such paragraph
5(3). Any party who recovers damages in a judicial proceeding
6brought under this subsection may also recover from the
7mortgagee the reasonable expenses of litigation, including
8reasonable attorney's fees.
9    (d-5) Making Home Affordable Program. The court that
10entered the judgment shall set aside a sale held pursuant to
11Section 15-1507, upon motion of the mortgagor at any time prior
12to the confirmation of the sale, if the mortgagor proves by a
13preponderance of the evidence that (i) the mortgagor has
14applied for assistance under the Making Home Affordable Program
15established by the United States Department of the Treasury
16pursuant to the Emergency Economic Stabilization Act of 2008,
17as amended by the American Recovery and Reinvestment Act of
182009, and (ii) the mortgaged real estate was sold in material
19violation of the program's requirements for proceeding to a
20judicial sale. The provisions of this subsection (d-5), except
21for this sentence, shall become inoperative on January 1, 2013
22for all actions filed under this Article after December 31,
232012, in which the mortgagor did not apply for assistance under
24the Making Home Affordable Program on or before December 31,
26    (e) Deficiency Judgment. In any order confirming a sale



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1pursuant to the judgment of foreclosure, the court shall also
2enter a personal judgment for deficiency against any party (i)
3if otherwise authorized and (ii) to the extent requested in the
4complaint and proven upon presentation of the report of sale in
5accordance with Section 15-1508. Except as otherwise provided
6in this Article, a judgment may be entered for any balance of
7money that may be found due to the plaintiff, over and above
8the proceeds of the sale or sales, and enforcement may be had
9for the collection of such balance, the same as when the
10judgment is solely for the payment of money. Such judgment may
11be entered, or enforcement had, only in cases where personal
12service has been had upon the persons personally liable for the
13mortgage indebtedness, unless they have entered their
14appearance in the foreclosure action.
15    (f) Satisfaction. Upon confirmation of the sale, the
16judgment stands satisfied to the extent of the sale price less
17expenses and costs. If the order confirming the sale includes a
18deficiency judgment, the judgment shall become a lien in the
19manner of any other judgment for the payment of money.
20    (g) The order confirming the sale shall include,
21notwithstanding any previous orders awarding possession during
22the pendency of the foreclosure, an award to the purchaser of
23possession of the mortgaged real estate, as of the date 30 days
24after the entry of the order, against the parties to the
25foreclosure whose interests have been terminated.
26    An order of possession authorizing the removal of a person



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1from possession of the mortgaged real estate shall be entered
2and enforced only against those persons personally named as
3individuals in the complaint or the petition under subsection
4(h) of Section 15-1701 and in the order of possession and shall
5not be entered and enforced against any person who is only
6generically described as an unknown owner or nonrecord claimant
7or by another generic designation in the complaint.
8    Notwithstanding the preceding paragraph, the failure to
9personally name, include, or seek an award of possession of the
10mortgaged real estate against a person in the confirmation
11order shall not abrogate any right that the purchaser may have
12to possession of the mortgaged real estate and to maintain a
13proceeding against that person for possession under Article 9
14of this Code or subsection (h) of Section 15-1701; and
15possession against a person who (1) has not been personally
16named as a party to the foreclosure and (2) has not been
17provided an opportunity to be heard in the foreclosure
18proceeding may be sought only by maintaining a proceeding under
19Article 9 of this Code or subsection (h) of Section 15-1701.
20(Source: P.A. 95-826, eff. 8-14-08; 96-265, eff. 8-11-09;
2196-856, eff. 3-1-10; 96-1245, eff. 7-23-10; revised 9-16-10.)
22    Section 99. Effective date. This Act takes effect upon
23becoming law.