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Public Act 097-1159
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| HB5019 Enrolled | LRB097 19428 DRJ 64681 b |
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AN ACT concerning regulation.
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Be it enacted by the People of the State of Illinois,
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represented in the General Assembly:
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Section 1. Purpose; intent. |
(a) Public Act 97-849, "AN ACT concerning business", was |
approved July 25, 2012. Public Act 97-849 contained an |
effective date Section providing that the Act takes effect on |
January 1, 2013.
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(b) The purpose of this Act
is to delay the effective date |
of the amendatory provisions contained in Sections 10, 15, and |
25 of Public Act 97-849 until the effective date of the federal |
regulations implementing Sections 1431, 1432, and 1433 of the |
federal Dodd-Frank Wall Street Reform and Consumer Protection |
Act.
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(c) This Act is not intended to repeal, even temporarily, |
any statute that was changed by Sections 10, 15, and 25 of |
Public Act 97-849; rather, it is the intent of the General |
Assembly to render the changes to those statutes by Public Act |
97-849 inoperative until the effective date of the federal |
regulations implementing Sections 1431, 1432, and 1433 of the |
federal Dodd-Frank Wall Street Reform and Consumer Protection |
Act.
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(d) This Act also makes substantive changes to the Code of |
Civil Procedure unrelated to Public Act 97-849, specifically by |
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amending certain provisions of Section 15-1508 concerning the |
Making Home Affordable Program.
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Section 5. The Code of Civil Procedure is amended by |
changing Section 15-1508 as follows:
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(735 ILCS 5/15-1508) (from Ch. 110, par. 15-1508) |
Sec. 15-1508. Report of Sale and Confirmation of Sale. |
(a) Report. The person conducting the sale shall promptly |
make a report to
the court, which report shall include a copy |
of all receipts and, if any,
certificate of sale. |
(b) Hearing. Upon motion and notice in accordance with |
court rules
applicable to motions generally, which motion shall |
not be made prior to
sale, the court shall conduct a hearing to
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confirm the sale. Unless the court finds that (i) a notice |
required in
accordance with subsection (c) of Section 15-1507 |
was not given, (ii) the
terms of sale were unconscionable, |
(iii) the sale was conducted
fraudulently, or (iv) justice was |
otherwise not done, the court shall
then enter an order |
confirming the sale. The confirmation order shall include a |
name, address, and telephone number of the holder of the |
certificate of sale or deed issued pursuant to that certificate |
or, if no certificate or deed was issued, the purchaser, whom a |
municipality or county may contact with concerns about the real |
estate. The confirmation order may
also: |
(1) approve the mortgagee's fees and costs arising |
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between the entry of
the judgment of foreclosure and the |
confirmation hearing, those costs and
fees to be allowable |
to the same extent as provided in the note and mortgage
and |
in Section 15-1504; |
(2) provide for a personal judgment against any party |
for a deficiency;
and |
(3) determine the priority of the judgments of parties |
who deferred proving
the priority pursuant to subsection |
(h) of Section 15-1506, but
the court shall not
defer |
confirming the sale pending the determination of such |
priority. |
(b-5) Notice with respect to residential real estate. With |
respect to residential real estate, the notice required under |
subsection (b) of this Section shall be sent to the mortgagor |
even if the mortgagor has previously been held in default. In |
the event the mortgagor has filed an appearance, the notice |
shall be sent to the address indicated on the appearance. In |
all other cases, the notice shall be sent to the mortgagor at |
the common address of the foreclosed property. The notice shall |
be sent by first class mail. Unless the right to possession has |
been previously terminated by the court, the notice shall |
include the following language in 12-point boldface |
capitalized type: |
IF YOU ARE THE MORTGAGOR (HOMEOWNER), YOU HAVE THE RIGHT TO |
REMAIN IN POSSESSION FOR 30 DAYS AFTER ENTRY OF AN ORDER OF |
POSSESSION, IN ACCORDANCE WITH SECTION 15-1701(c) OF THE |
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ILLINOIS MORTGAGE FORECLOSURE LAW. |
(b-10) Notice of confirmation order sent to municipality or |
county. A copy of the confirmation order required under |
subsection (b) shall be sent to the municipality in which the |
foreclosed property is located, or to the county within the |
boundary of which the foreclosed property is located if the |
foreclosed property is located in an unincorporated territory. |
A municipality or county must clearly publish on its website a |
single address to which such notice shall be sent. If a |
municipality or county does not maintain a website, then the |
municipality or county must publicly post in its main office a |
single address to which such notice shall be sent. In the event |
that a municipality or county has not complied with the |
publication requirement in this subsection (b-10), then such |
notice to the municipality or county shall be provided pursuant |
to Section 2-211 of the Code of Civil Procedure. |
(c) Failure to Give Notice. If any sale is held without |
compliance with
subsection (c) of Section 15-1507 of this |
Article, any party entitled to
the notice provided for in |
paragraph (3) of that subsection
(c) who was not so notified |
may, by motion supported by affidavit
made prior to |
confirmation of such sale, ask the court which entered the
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judgment to set aside the sale. Any such party shall guarantee |
or secure by bond a bid equal to the successful bid at the |
prior sale, unless the party seeking to set aside the sale is |
the mortgagor, the real estate sold at the sale is residential |
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real estate, and the mortgagor occupies the residential real |
estate at the time the motion is filed. In that event, no |
guarantee or bond shall be required of the mortgagor. Any
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subsequent sale is subject to the same notice requirement as |
the original sale. |
(d) Validity of Sale. Except as provided in subsection (c) |
of Section
15-1508, no sale under this Article shall be held |
invalid or be set aside
because of any defect in the notice |
thereof or in the publication of the
same, or in the |
proceedings of the officer conducting the sale, except upon
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good cause shown in a hearing pursuant to subsection (b) of |
Section
15-1508. At any time after a sale has occurred, any |
party entitled to
notice under paragraph (3) of subsection (c) |
of Section 15-1507 may recover
from the mortgagee any damages |
caused by the mortgagee's failure to comply
with such paragraph |
(3). Any party who recovers damages in a judicial
proceeding |
brought under this subsection may also recover from the
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mortgagee the reasonable expenses of litigation, including |
reasonable attorney's fees. |
(d-5) Making Home Affordable Program. The court that |
entered the judgment shall set aside a sale held pursuant to |
Section 15-1507, upon motion of the mortgagor at any time prior |
to the confirmation of the sale, if the mortgagor proves by a |
preponderance of the evidence that (i) the mortgagor has |
applied for assistance under the Making Home Affordable Program |
established by the United States Department of the Treasury |
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pursuant to the Emergency Economic Stabilization Act of 2008, |
as amended by the American Recovery and Reinvestment Act of |
2009, and (ii) the mortgaged real estate was sold in material |
violation of the program's requirements for proceeding to a |
judicial sale. The provisions of this subsection (d-5), except |
for this sentence, shall become inoperative on January 1, 2014 |
2013 for all actions filed under this Article after December |
31, 2013 2012, in which the mortgagor did not apply for |
assistance under the Making Home Affordable Program on or |
before December 31, 2013 2012. |
(e) Deficiency Judgment. In any order confirming a sale |
pursuant to the
judgment of foreclosure, the court shall also |
enter a personal judgment
for deficiency against any party (i) |
if otherwise authorized and (ii) to
the extent requested in the |
complaint and proven upon presentation of the
report of sale in |
accordance with Section 15-1508. Except as otherwise provided
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in this Article, a judgment may be entered for any balance of |
money that
may be found due to the plaintiff, over and above |
the proceeds of the sale
or sales, and enforcement may be had |
for the collection of such balance,
the same as when the |
judgment is solely for the payment of money. Such
judgment may |
be entered, or enforcement had,
only in cases where personal |
service has been had upon the
persons personally liable for the |
mortgage indebtedness, unless they have
entered their |
appearance in the foreclosure action. |
(f) Satisfaction. Upon confirmation of the sale, the
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judgment stands satisfied to the extent of the sale price less |
expenses and
costs. If the order confirming the sale includes a |
deficiency judgment, the
judgment shall become a lien in the |
manner of any other
judgment for the payment of money. |
(g) The order confirming the sale shall include, |
notwithstanding any
previous orders awarding possession during |
the pendency of the foreclosure, an
award to the purchaser of |
possession of the mortgaged real estate, as of the
date 30 days |
after the entry of the order, against the
parties to the |
foreclosure whose interests have been terminated. |
An order of possession authorizing the removal of a person |
from possession
of the mortgaged real estate shall be entered |
and enforced only against those
persons personally
named as |
individuals in the complaint or the petition under subsection |
(h)
of Section 15-1701 and in the order of possession and shall
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not be entered and enforced against any person who is only |
generically
described as an
unknown owner or nonrecord claimant |
or by another generic designation in the
complaint. |
Notwithstanding the preceding paragraph, the failure to |
personally
name,
include, or seek an award of
possession of the |
mortgaged real estate against a person in the
confirmation |
order shall not abrogate any right that the purchaser may have |
to
possession of the mortgaged real estate and to maintain a |
proceeding against
that person for
possession under Article 9 |
of this Code or subsection (h) of Section 15-1701;
and |
possession against a person
who (1) has not been personally |
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named as a party to the
foreclosure and (2) has not been |
provided an opportunity to be heard in the
foreclosure |
proceeding may be sought only by maintaining a
proceeding under |
Article 9 of this
Code or subsection (h) of Section 15-1701. |
(h) With respect to mortgaged real estate containing 5 or |
more dwelling units, the order confirming the sale shall also |
provide that (i) the mortgagor shall transfer to the purchaser |
the security deposits, if any, that the mortgagor received to |
secure payment of rent or to compensate for damage to the |
mortgaged real estate from any current occupant of a dwelling |
unit of the mortgaged real estate, as well as any statutory |
interest that has not been paid to the occupant, and (ii) the |
mortgagor shall provide an accounting of the security deposits |
that are transferred, including the name and address of each |
occupant for whom the mortgagor holds the deposit and the |
amount of the deposit and any statutory interest. |
(Source: P.A. 96-265, eff. 8-11-09; 96-856, eff. 3-1-10; |
96-1245, eff. 7-23-10; 97-333, eff. 8-12-11; 97-575, eff. |
8-26-11.)
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Section 10. "AN ACT concerning business", approved July 25, |
2012 (Public Act 97-849), is amended by changing Section 99 as |
follows:
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(P.A. 97-849, Sec. 99)
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Sec. 99. Effective date. This Act takes effect on January |