Illinois General Assembly

Previous General Assemblies

Public Act 095-0262


 

Public Act 0262 95TH GENERAL ASSEMBLY



 


 
Public Act 095-0262
 
SB0258 Enrolled LRB095 09724 LCT 29928 b

    AN ACT concerning civil law.
 
    Be it enacted by the People of the State of Illinois,
represented in the General Assembly:
 
    Section 5. The Code of Civil Procedure is amended by
changing Section 15-1701 as follows:
 
    (735 ILCS 5/15-1701)  (from Ch. 110, par. 15-1701)
    Sec. 15-1701. Right to possession.
    (a) General. The provisions of this Article shall govern
the right to possession of the mortgaged real estate during
foreclosure. Possession under this Article includes physical
possession of the mortgaged real estate to the same extent to
which the mortgagor, absent the foreclosure, would have been
entitled to physical possession. For the purposes of Part 17,
real estate is residential real estate only if it is
residential real estate at the time the foreclosure is
commenced.
    (b) Pre-Judgment. Prior to the entry of a judgment of
foreclosure:
        (1) In the case of residential real estate, the
    mortgagor shall be entitled to possession of the real
    estate except if (i) the mortgagee shall object and show
    good cause, (ii) the mortgagee is so authorized by the
    terms of the mortgage or other written instrument, and
    (iii) the court is satisfied that there is a reasonable
    probability that the mortgagee will prevail on a final
    hearing of the cause, the court shall upon request place
    the mortgagee in possession. If the residential real estate
    consists of more than one dwelling unit, then for the
    purpose of this Part residential real estate shall mean
    only that dwelling unit or units occupied by persons
    described in clauses (i), (ii) and (iii) of Section
    15-1219.
        (2) In all other cases, if (i) the mortgagee is so
    authorized by the terms of the mortgage or other written
    instrument, and (ii) the court is satisfied that there is a
    reasonable probability that the mortgagee will prevail on a
    final hearing of the cause, the mortgagee shall upon
    request be placed in possession of the real estate, except
    that if the mortgagor shall object and show good cause, the
    court shall allow the mortgagor to remain in possession.
    (c) Judgment Through 30 Days After Sale Confirmation. After
the entry of a judgment of foreclosure and through the 30th day
after a foreclosure sale is confirmed:
        (1) Subsection (b) of Section 15-1701 shall be
    applicable, regardless of the provisions of the mortgage or
    other instrument, except that after a sale pursuant to the
    judgment the holder of the certificate of sale (or, if
    none, the purchaser at the sale) shall have the mortgagee's
    right to be placed in possession, with all rights and
    duties of a mortgagee in possession under this Article.
        (2) Notwithstanding paragraph (1) of subsection (b)
    and paragraph (1) of subsection (c) of Section 15-1701,
    upon request of the mortgagee, a mortgagor of residential
    real estate shall not be allowed to remain in possession
    between the expiration of the redemption period and through
    the 30th day after sale confirmation unless (i) the
    mortgagor pays to the mortgagee or such holder or
    purchaser, whichever is applicable, monthly the lesser of
    the interest due under the mortgage calculated at the
    mortgage rate of interest applicable as if no default had
    occurred or the fair rental value of the real estate, or
    (ii) the mortgagor otherwise shows good cause. Any amounts
    paid by the mortgagor pursuant to this subsection shall be
    credited against the amounts due from the mortgagor.
    (d) After 30 Days After Sale Confirmation. The holder of
the certificate of sale or deed issued pursuant to that
certificate or, if no certificate or deed was issued, the
purchaser, except to the extent the holder or purchaser may
consent otherwise, shall be entitled to possession of the
mortgaged real estate, as of the date 30 days after the order
confirming the sale is entered, against those parties to the
foreclosure whose interests the court has ordered terminated,
without further notice to any party, further order of the
court, or resort to proceedings under any other statute other
than this Article. This right to possession shall be limited by
the provisions governing entering and enforcing orders of
possession under subsection (g) of Section 15-1508. If the
holder or purchaser determines that there are occupants of the
mortgaged real estate who have not been made parties to the
foreclosure and had their interests terminated therein, the
holder or purchaser may bring a proceeding under subsection (h)
of this Section or under Article 9 of this Code to terminate
the rights of possession of any such occupants. The holder or
purchaser shall not be entitled to proceed against any such
occupant under Article 9 of this Code until after 30 days after
the order confirming the sale is entered.
    (e) Termination of Leases. A lease of all or any part of
the mortgaged real estate shall not be terminated automatically
solely by virtue of the entry into possession by (i) a
mortgagee or receiver prior to the entry of an order confirming
the sale, (ii) the holder of the certificate of sale, (iii) the
holder of the deed issued pursuant to that certificate, or (iv)
if no certificate or deed was issued, the purchaser at the
sale.
    (f) Other Statutes; Instruments. The provisions of this
Article providing for possession of mortgaged real estate shall
supersede any other inconsistent statutory provisions. In
particular, and without limitation, whenever a receiver is
sought to be appointed in any action in which a foreclosure is
also pending, a receiver shall be appointed only in accordance
with this Article. Except as may be authorized by this Article,
no mortgage or other instrument may modify or supersede the
provisions of this Article.
    (g) Certain Leases. Leases of the mortgaged real estate
entered into by a mortgagee in possession or a receiver and
approved by the court in a foreclosure shall be binding on all
parties, including the mortgagor after redemption, the
purchaser at a sale pursuant to a judgment of foreclosure and
any person acquiring an interest in the mortgaged real estate
after entry of a judgment of foreclosure in accordance with
Sections 15-1402 and 15-1403.
    (h) Proceedings Against Certain Occupants.
        (1) The mortgagee-in-possession of the mortgaged real
    estate under Section 15-1703, a receiver appointed under
    Section 15-1704, a holder of the certificate of sale or
    deed, or the purchaser may, at any time during the pendency
    of the foreclosure and up to 90 days after the date of the
    order confirming the sale, file a supplemental petition for
    possession against a person not personally named as a party
    to the foreclosure. The supplemental petition for
    possession shall name each such occupant against whom
    possession is sought and state the facts upon which the
    claim for relief is premised.
        (2) The petitioner shall serve upon each named occupant
    the petition, a notice of hearing on the petition, and, if
    any, a copy of the certificate of sale or deed. The
    proceeding for the termination of such occupant's
    possessory interest, including service of the notice of the
    hearing and the petition, shall in all respects comport
    with the requirements of Article 9 of this Code, except as
    otherwise specified in this Section. The hearing shall be
    no less than 21 days from the date of service of the
    notice.
        (3) The supplemental petition shall be heard as part of
    the foreclosure proceeding and without the payment of
    additional filing fees. An order for possession obtained
    under this Section shall name each occupant whose interest
    has been terminated, shall recite that it is only effective
    as to the occupant so named and those holding under them,
    and shall be enforceable for no more than 90 days after its
    entry, except that the 90-day period may be extended to the
    extent and in the manner provided in Section 9-117 of
    Article 9 and except as provided in item (4) of this
    subsection (h).
        (4) In a case of foreclosure where the tenant is
    current on his or her rent, any order of possession must
    allow the tenant to retain possession of the property
    covered in his or her rental agreement (i) for 120 days
    following the notice of the hearing on the supplemental
    petition that has been properly served upon the tenant, or
    (ii) through the duration of his or her lease, whichever is
    shorter. This item (4) shall only apply if the tenant
    continues to pay his or her rent in full during the 120-day
    period.
(Source: P.A. 88-21; 88-265; 88-670, eff. 12-2-94; 89-203, eff.
7-21-95.)

Effective Date: 1/1/2008