SB2725ham001 95TH GENERAL ASSEMBLY

Consumer Protection Committee

Filed: 11/19/2008

09500SB2725ham001 LRB095 05934 AJO 53680 a

AMENDMENT TO SENATE BILL 2725

AMENDMENT NO. ______. Amend Senate Bill 2725 by replacing everything after the enacting clause with the following:

"Section 5. The Code of Civil Procedure is amended by changing Section 15-1106 as follows:

(735 ILCS 5/15-1106) (from Ch. 110, par. 15-1106)

Sec. 15-1106. Applicability of Article. (a) Exclusive Procedure. From and after the effective date of this amendatory Act of 1986, the following shall be foreclosed in a foreclosure pursuant to this Article:

(1) any mortgage created prior to, on or after the effective date of this amendatory Act of 1986;

(2) any real estate installment contract for residential real estate entered into on or after the effective date of this amendatory Act of 1986 and under which (i) the purchase price is to be paid in installments over a period in excess of five years and (ii) the amount unpaid under the terms of the contract at the time of the filing of the foreclosure complaint, including principal and due and unpaid interest, at the rate prior to default, is less than 80% of the original purchase price of the real estate as stated in the contract;

(3) any collateral assignment of beneficial interest made on or after the effective date of this amendatory Act of 1986 (i) which is made with respect to a land trust which was created contemporaneously with the collateral assignment of beneficial interest, (ii) which is made pursuant to a requirement of the holder of the obligation to secure the payment of money or performance of other obligations and (iii) as to which the security agreement or other writing creating the collateral assignment permits the real estate which is the subject of the land trust to be sold to satisfy the obligations.

(b) Uniform Commercial Code. A secured party, as defined in Article 9 of the Uniform Commercial Code, may at its election enforce its security interest in a foreclosure under this Article if its security interest was created on or after the effective date of this amendatory Act of 1986 and is created by (i) a collateral assignment of beneficial interest in a land trust or (ii) an assignment for security of a buyer's interest in a real estate installment contract. Such election shall be made by filing a complaint stating that it is brought under this Article, in which event the provisions of this Article shall be exclusive in such foreclosure.

(c) Real Estate Installment Contracts. A contract seller may at its election enforce in a foreclosure under this Article any real estate installment contract entered into on or after the effective date of this Amendatory Act of 1986 and not required to be foreclosed under this Article. Such election shall be made by filing a complaint stating that it is brought under this Article, in which event the provisions of this Article shall be exclusive in such foreclosure. A contract seller must enforce its contract under this Article if the real estate installment contract is one described in paragraph (2) of subsection (a) of Section 15-1106.

(d) Effect of Election. An election made pursuant to subsection (b) or (c) of Section 15-1106 shall be binding only in the foreclosure and shall be void if the foreclosure is terminated prior to entry of judgment.

(e) Supplementary General Principles of Law. General principles of law and equity, such as those relating to capacity to contract, principal and agent, marshalling of assets, priority, subrogation, estoppel, fraud, misrepresentations, duress, collusion, mistake, bankruptcy or other validating or invalidating cause, supplement this Article unless displaced by a particular provision of it. Section 9-110 of the Code of Civil Procedure shall not be applicable to any real estate installment contract which is foreclosed under this Article.

(f) Pending Actions. A complaint to foreclose a mortgage filed before July 1, 1987, and all proceedings and third party actions in connection therewith, shall be adjudicated pursuant to the Illinois statutes and applicable law in effect immediately prior to July 1, 1987. Such statutes shall remain in effect with respect to such complaint, proceedings and third party actions notwithstanding the amendment or repeal of such statutes on or after July 1, 1987.

(g) A complaint to foreclose a mortgage may not be filed from the effective date of this amendatory Act of the 95th General Assembly through the 90th day after the effective date of this amendatory Act of the 95th General Assembly if the subject real estate is residential real estate that is the primary residence of the mortgagor. Any pending mortgage foreclosure action in an Illinois state court is stayed, whether at the pre-judgment, judgment, or post-judgment stage, from the effective date of this amendatory Act of the 95th General Assembly through the 90th day after the effective date of this amendatory Act of the 95th General Assembly if the subject real estate is residential real estate that is the primary residence of the mortgagor. This stay shall include, but not be limited to, any judicial sale or other sale of the subject real estate; report of sale or confirmation of sale of the subject real estate; transfer or acquisition of title to the subject real estate; taking of possession of the subject real estate by the mortgagee; and proceedings against any occupant under Article IX of this Code, eviction of the current occupants of the subject real estate, or any other attempt to deny possession to the current occupants of the subject real estate. Nothing in this subsection (g) shall affect the mortgagor's right of redemption or reinstatement. Nothing in this subsection (g) shall affect any of the mortgagor's obligations under any mortgage instrument relating to the subject real estate. Nothing in this subsection (g) shall affect the ability of a mortgagee to dismiss a complaint for foreclosure.

(Source: P.A. 85-907.)

Section 99. Effective date. This Act takes effect upon becoming law.".