Illinois General Assembly - Full Text of Public Act 093-0428
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Public Act 093-0428


 

Public Act 93-0428 of the 93rd General Assembly


Public Act 93-0428

HB2550 Enrolled                      LRB093 09802 LCB 10047 b

    AN ACT concerning mortgages.

    Be it enacted by the People of  the  State  of  Illinois,
represented in the General Assembly:

    Section  5.   The  Mortgage  Act  is  amended by changing
Section 2 as follows:

    (765 ILCS 905/2) (from Ch. 95, par. 52)
    Sec. 2.  Every mortgagee of real property,  his  assignee
of  record,  or  other  legal representative, having received
full satisfaction and payment of all  such  sum  or  sums  of
money  as are really due to him from the mortgagor, and every
trustee, or his successor in trust, in a deed of trust in the
nature of a mortgage, the notes, bonds or other  indebtedness
secured  thereby  having  been fully paid before September 7,
1973, shall, at the request of the mortgagor, or grantor in a
deed of trust in the nature of a mortgage, his  heirs,  legal
representatives  or  assigns,  in case such mortgage or trust
deed has been  recorded  or  registered,  make,  execute  and
deliver to the mortgagor or grantor in a deed of trust in the
nature  of  a  mortgage,  his heirs, legal representatives or
assigns, an instrument in writing executed in conformity with
the provisions of this section  releasing  such  mortgage  or
deed  of  trust  in  the  nature of a mortgage, which release
shall be entitled  to  be  recorded  or  registered  and  the
recorder  or registrar upon receipt of such a release and the
payment  of  the  recording  fee  therefor  shall  record  or
register the same.
    Mortgages of real property and  deeds  of  trust  in  the
nature  of a mortgage shall be released of record only in the
manner  provided  herein  or  as  provided  in  the  Mortgage
Certificate of Release Act;  however,  nothing  contained  in
this  Act  shall  in  any  manner  affect the validity of any
release of a mortgage or deed of trust made prior to  January
1, 1952 on the margin of the record.
    Except  in  the case of a mortgage that is required to be
released under the Mortgage Certificate of Release Act, every
mortgagee of real property, his assignee of record, or  other
legal  representative,  having received full satisfaction and
payment of all such sum or sums of money as are really due to
him from the mortgagor, and every trustee, or  his  successor
in trust, in a deed of trust in the nature of a mortgage, the
notes,  bonds  or  other  indebtedness secured thereby having
been fully paid after September 7, 1973, shall make,  execute
and deliver to the mortgagor or grantor in a deed of trust in
the nature of a mortgage, his heirs, legal representatives or
assigns,  an instrument in writing releasing such mortgage or
deed of trust in the nature of a mortgage  or  shall  deliver
that  release  to  the recorder or registrar for recording or
registering.  If the release is delivered to the mortgagor or
grantor, it must have imprinted on its face in  bold  letters
at   least  1/4  inch  in  height  the  following:  "FOR  THE
PROTECTION OF THE OWNER, THIS RELEASE SHALL BE FILED WITH THE
RECORDER OR THE REGISTRAR  OF  TITLES  IN  WHOSE  OFFICE  THE
MORTGAGE  OR  DEED  OF  TRUST  WAS  FILED".  The recorder, or
registrar, upon receipt of such a  release and the payment of
the recording or registration fee, shall record  or  register
the release.  A certificate of release issued and recorded by
a  title  insurance  company  or  its  duly  appointed  agent
pursuant  to  the  Mortgage  Certificate of Release Act shall
satisfy the requirements of this Section 2.
(Source: P.A. 92-765, eff. 8-6-02.)

    Section 10.  The Mortgage Certificate of Release  Act  is
amended  by  changing  Sections 5, 10, 15, 20, 35, 40, and 50
and by adding Sections 10.1 and 70 as follows:
    (765 ILCS 935/5)
    (Section scheduled to be repealed on January 1, 2004)
    Sec. 5.  Definitions.  As used in this Act:
    "Hold-harmless agreement" means a letter whereby a  title
insurance  company,  as  defined  in the Title Insurance Act,
agrees to indemnify another title insurance company preparing
to insure a present transaction that the  indemnifying  title
insurance  company has previously insured over without taking
an exception  to  its  title  insurance  policy  for  matters
remaining of record, such as a previously paid but unreleased
mortgage.  A  model  form of a hold-harmless agreement is set
forth in Section 70 of this Act.
    "Mortgage" means  a  mortgage  or  mortgage  lien  on  an
interest  in  one-to-four family residential real property in
this State given to secure a loan in the  original  principal
amount of less than $500,000. Trust deeds are not included.
    "Mortgagee"  means either: (i) the grantee of a mortgage;
or (ii) if a mortgage has been assigned of record,  the  last
person to whom the mortgage has been assigned of record.
    "Mortgage  servicer"  means  the  last  person  to whom a
mortgagor or the mortgagor's successor in interest  has  been
instructed  by a mortgagee to send payments on a loan secured
by a mortgage. A person transmitting a  payoff  statement  is
the  mortgage  servicer  for  the  mortgage  described in the
payoff statement.
    "Mortgagor" means the grantor of a mortgage.
    "Notice of intention  to  file  certificate  of  release"
means  a  statement  from  a title insurance company or title
insurance agent to the person to whom  payment  of  the  loan
secured  by  the  mortgage  was  made  in accordance with the
payoff statement of the intention to record a certificate  of
release.
    "Payoff  statement"  means  a statement for the amount of
the (i) unpaid balance of  a  loan  secured  by  a  mortgage,
including  principal,  interest,  and  any  other charges due
under or secured by the mortgage; and (ii) interest on a  per
day basis for the unpaid balance.
    "Record"  means to deliver the certificate of release for
recording with the county recorder.
    "Title insurance agent" has the same meaning ascribed  to
it as in Section 3 of the Title Insurance Act.
    "Title  insurance  company" has the same meaning ascribed
to it as in Section 3 of the Title Insurance Act.
(Source: P.A. 92-765, eff. 8-6-02.)

    (765 ILCS 935/10)
    (Section scheduled to be repealed on January 1, 2004)
    Sec. 10.  Mortgage presently being paid off.  Receipt  of
payment  pursuant  to  the  lender's written payoff statement
shall  constitute  authority  to  record  a  certificate   of
release.  Content and delivery of notice of intention to file
certificate of release. (a) The Notice of intention to file a
certificate  of  release  shall  state  that  if  the   title
insurance  company  or title insurance agent does not receive
from the mortgagee or mortgage servicer or its  successor  in
interest  either  a  release  or  a  written objection to the
issuance of a certificate of release pursuant  to  subsection
(c)  of  this Section,  A certificate of release shall may be
delivered for recording to the recorder  of  each  county  in
which  the  mortgage  is  recorded,  together  with the other
documents from the new transaction, including a deed  or  new
mortgage,  or both by the title insurance company or its duly
appointed agent. A notice of intention to file a  certificate
of  release  should  be  in  a  form and include content that
substantially complies with  Section  65  of  this  Act.  The
notice  of  intention  shall  include  a  copy of the closing
statement or HUD-1 form and the payoff check or a copy of it,
or a copy of the wire transfer order.
    (b)  The notice of intention to  file  a  certificate  of
release  shall  be  sent  by  certified  mail, return receipt
requested,  with  postage  prepaid,  or  by  another  service
providing receipted delivery,  no  sooner  than  the  day  of
closing  and  no later than 30 days after receipt of payment.
The notice shall be delivered to the location  identified  in
the  payoff  statement or as otherwise directed in writing by
the mortgagee  or  mortgage  servicer  or  its  successor  in
interest.  The  notice may be sent with the payment, and need
not be sent separately.
    (c)  Within 90  days  after  receipt  of  the  notice  of
intention  to file a certificate of release, the mortgagee or
mortgage servicer or its successor in interest  may  issue  a
release  or  may  object  in  writing  to  the  issuance of a
certificate of release, and by doing  so  shall  prevent  the
title   insurance  company  or  title  insurance  agent  from
executing and recording a certificate of release pursuant  to
this Act. Any written objection submitted by the mortgagee or
mortgage  servicer  or  its successor in interest shall state
the reason for which the release or  certificate  of  release
should  not be issued. The written objection shall be sent to
the title insurance  company  or  title  insurance  agent  by
certified   mail,  return  receipt  requested,  with  postage
prepaid, or by another service providing receipted  delivery.
A  title insurance company or title insurance agent shall not
cause a certificate of release to  be  recorded  pursuant  to
this   Section  if  the  title  insurance  company  or  title
insurance  agent  receives  a  written  objection  from   the
mortgagee or mortgage servicer or its successor in interest.
(Source: P.A. 92-765, eff. 8-6-02.)

    (765 ILCS 935/10.1 new)
    Sec. 10.1.  Previously paid mortgages.  A title insurance
company or its duly appointed title insurance agent may issue
a  mortgage certificate of release pursuant to this Act for a
mortgage that appears in the chain  of  title  prior  to  the
mortgage  presently  being paid.  The title insurance company
must have proof of payment from its own prior files  that  it
paid   the   mortgage  or  mortgages  pursuant  to  a  payoff
statement. Where another title insurance company has paid off
an unreleased mortgage pursuant to a  payoff  statement,  the
title insurance company or its duly appointed title insurance
agent   in   the   current  transaction  may  rely  upon  the
hold-harmless letter of that prior title insurance company to
issue a mortgage  certificate  of  release.   This  grant  of
authority  is subject to the condition that the issuer of the
mortgage certificate of release does not have notice that the
lender opposes its release.  A single mortgage certificate of
release may include more than one  mortgage,  including  both
presently and previously paid mortgages.

    (765 ILCS 935/15)
    (Section scheduled to be repealed on January 1, 2004)
    Sec.  15.  Certificate  of  release.   An officer or duly
appointed agent of a title insurance company may,  on  behalf
of  a mortgagor or a person who has acquired from a mortgagor
title to all  or  part  of  the  property  described  in  the
mortgage, execute a certificate of release that complies with
the  requirements  of  this Act and record the certificate of
release with  the  recorder  of  each  county  in  which  the
mortgage  is  recorded,  provided  that  payment  of the loan
secured by the mortgage was made in accordance with a written
payoff statement furnished by the mortgagee or  the  mortgage
servicer.  The  title insurance company or its duly appointed
agent shall not be required to search the public record for a
possible  recorded  satisfaction  or  release.   ,   that   a
satisfaction  or  release  of the mortgage has not previously
been recorded, and that a  notice  of  intention  to  file  a
certificate  of  release  was sent in accordance with Section
10.
(Source: P.A. 92-765, eff. 8-6-02.)

    (765 ILCS 935/20)
    (Section scheduled to be repealed on January 1, 2004)
    Sec.  20.  Contents  of  certificate  of  release.      A
certificate  of  release executed under this Act must contain
substantially all of the following for  each  mortgage  being
released:
    (a)  The  name of the mortgagor, the name of the original
mortgagee, and, if applicable, the mortgage servicer  at  the
date  of  the mortgage, the date of recording, and the volume
and page or  document  number  or  other  official  recording
designation  in  the real property records where the mortgage
is recorded., together with similar information for the  last
recorded assignment of the mortgage.
    (b)  A statement that the mortgage was paid in accordance
with the written payoff statement received from the mortgagee
or  mortgage  servicer  and  there  is  no objection from the
mortgagee or mortgage servicer or its successor in  interest.
With  respect to previously paid mortgages, the hold-harmless
letter from a title insurance company, as provided in Section
10.1 of this Act, shall satisfy this requirement.
    (c)  A  statement   that   the   person   executing   the
certificate  of  release  is  an  officer or a duly appointed
agent of a title insurance company authorized and licensed to
transact the business of insuring titles to interests in real
property in this State pursuant to subsections (2) and (3) of
Section 3 of the Title Insurance Act.
    (d)  A statement that the certificate of release is  made
on  behalf  of  the  mortgagor or a person who acquired title
from the mortgagor to all or a part of the property described
in the mortgage.
    (e)  A statement that the mortgagee or mortgage  servicer
provided  a  written  payoff  statement.   The  hold-harmless
letter from a title insurance company, as provided in Section
10.1 of this Act, shall satisfy this requirement with respect
to previously paid mortgages.
(Source: P.A. 92-765, eff. 8-6-02.)

    (765 ILCS 935/35)
    (Section scheduled to be repealed on January 1, 2004)
    Sec. 35.  Effect of recording certificate of release. For
purposes of releasing the lien of the mortgage, a certificate
of release containing the information and statements provided
for  in  Section 20 and executed as provided in Section 25 is
prima facie evidence of the facts contained therein, and upon
being recorded with the recorder, shall constitute a  release
of  the  lien of the mortgage described in the certificate of
release. The title insurance company or title insurance agent
recording the certificate of release may  use  the  recording
fee  it  may have collected for the recording of a release or
satisfaction of the mortgage to effect the recording  of  the
certificate of release.
(Source: P.A. 92-765, eff. 8-6-02.)

    (765 ILCS 935/40)
    (Section scheduled to be repealed on January 1, 2004)
    Sec. 40.  Wrongful or erroneous certificate of release.
Recording  of  a wrongful or erroneous certificate of release
by a title insurance company or  its  title  insurance  agent
shall not relieve the mortgagor or the mortgagor's successors
or assignees from any personal liability on the loan or other
obligations secured by the mortgage. In addition to any other
remedy  provided  by law, a title insurance company executing
or recording a certificate of release under this Act that has
actual  knowledge  that  the   information   and   statements
contained  therein  are  false is liable to the mortgagee for
actual  damages  sustained  due  to  the  recording  of   the
certificate  of release.   The prevailing party in any action
or proceeding seeking actual damages due to the recording  of
a certificate of release shall be entitled to the recovery of
reasonable  attorneys  fees and costs incurred in that action
or proceeding.
(Source: P.A. 92-765, eff. 8-6-02.)

    (765 ILCS 935/50)
    (Section scheduled to be repealed on January 1, 2004)
    Sec. 50.  Form of certificate of release.  A  certificate
of release, in substantially the following form, allowing for
alterations  to  permit  the inclusion of multiple mortgages,
both presently and previously paid, complies with this Act.

                   CERTIFICATE OF RELEASE
Date:....Title Order No.:.....
1. Name of mortgagor(s):.....
2. Name of original mortgagee:.....
3. Name of mortgage servicer (if any):.....
4. Name of last assignee of mortgage or record (if any):.....
4. 5.  Mortgage  recording:  Vol.:.....Page:.....or  Document
No.:.....
6. Last assignment recording (if any):
Vol.:.....Page:.....or Document No.......
5. 7.  The  above  referenced  mortgage  has  been  paid   in
accordance  with the payoff statement received from....., and
there is no objection from the mortgagee or mortgage servicer
or its  successor  in  interest  to  the  recording  of  this
certificate of release.
6. 8.  The person executing this certificate of release is an
officer  or duly appointed agent of a title insurance company
authorized and licensed to transact the business of  insuring
titles  to  interests in real property in this State pursuant
to Section 30 of this Act.
7. 9.  This certificate of release is made on behalf  of  the
mortgagor  or  a person who acquired title from the mortgagor
to all or part of the property described in the mortgage.
8. 10.  The mortgagee or mortgage servicer provided a  payoff
statement.
9. 11.  The property described in the mortgage is as follows:
Permanent Index Number:.....
Common Address:.....
(Name of title insurance company)
By:.....
(Name  of  officer  and  title  or  name of agent and name of
officer / representative thereof)
Address:.....
Telephone No.:.....
State of Illinois)
                 )
County of        )
This instrument was acknowledged before me on .....(date)  by
.....(name  of  person)  as  .....(officer  for  /  agent of)
.....(title insurance company).
.....
Notary Public
My commission expires on.....
(Source: P.A. 92-765, eff. 8-6-02.)

    (765 ILCS 935/70 new)
    Sec.   70.  Form   of   hold-harmless    agreement.     A
hold-harmless  agreement in substantially the following form,
allowing  for  alterations  to  reflect  the  facts  of   the
transaction  and  identity  of the title insurance companies,
complies with this Act.

                   Hold-harmless Agreement
TO:  .................... (Presently insuring title insurance
company)

Re: Policy No.: ...... (Previously insuring  title  insurance
company)
    Policy amount: $..............
    Policy/Commitment    No.:    ...............   (Presently
insuring title insurance company)

You show as exception number(s)  ..................  in  your
above   referenced   commitment  for  title  insurance  dated
.........., the following exception(s):

Mortgage dated ........., recorded as  Document  No.  .......
made   by   .................................   (borrow)   to
.................................   (lender)   to  secure  an
indebtedness in the amount of $.........

For and in consideration of your deleting said  exception(s),
we  agree  to indemnify you against loss that you may sustain
as a result of said deletion.  In no event may said indemnity
exceed the face amount of our policy as noted above.

In the event any claim is made against you  as  a  result  of
your  deletion,  you agree to notify us within 30 days of the
date the claim is made.

Any action you take  with  respect  to  the  claim  will  not
obligate us under this letter unless the aforesaid notice has
been  furnished  us and we have adequate time to consider our
approval or disapproval of the action.

..........................................
Title Insurance Company (Previously insuring)
    (765 ILCS 935/65 rep.)
    (765 ILCS 935/90 rep.)
    Section 20.  The Mortgage Certificate of Release  Act  is
amended by repealing Sections 65 and 90.

    Section  99.   Effective  date.   This  Act  takes effect
December 31, 2003.

Effective Date: 12/31/03