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Public Act 095-0961


 

Public Act 0961 95TH GENERAL ASSEMBLY



 


 
Public Act 095-0961
 
SB1879 Enrolled LRB095 15221 MJR 41202 b

    AN ACT concerning regulation.
 
    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 15-1510 and by adding Sections 15-1504.5 and
15-1505.5 as follows:
 
    (735 ILCS 5/15-1504.5 new)
    Sec. 15-1504.5. Homeowner notice to be attached to summons.
For all residential foreclosure actions filed, the plaintiff
must attach a Homeowner Notice to the summons. The Homeowner
Notice must be in at least 12 point type and in English and
Spanish. The Spanish translation shall be prepared by the
Attorney General and posted on the Attorney General's website.
A notice that includes the Attorney General's Spanish
translation in substantially similar form shall be deemed to
comply with the Spanish notice requirement in this Section. The
Notice must be in substantially the following form:
 
IMPORTANT INFORMATION FOR HOMEOWNERS IN FORECLOSURE

 
        1. POSSESSION: The lawful occupants of a home have the
    right to live in the home until a judge enters an order for
    possession.
        2. OWNERSHIP: You continue to own your home until the
    court rules otherwise.
        3. REINSTATEMENT: As the homeowner you have the right
    to bring the mortgage current within 90 days after you
    receive the summons.
        4. REDEMPTION: As the homeowner you have the right to
    sell your home, refinance, or pay off the loan during the
    redemption period.
        5. SURPLUS: As the homeowner you have the right to
    petition the court for any excess money that results from a
    foreclosure sale of your home.
        6. WORKOUT OPTIONS: The mortgage company does not want
    to foreclose on your home if there is any way to avoid it.
    Call your mortgage company [insert name of the homeowner's
    current mortgage servicer in bold and 14 point type] or its
    attorneys to find out the alternatives to foreclosure.
        7. PAYOFF AMOUNT: You have the right to obtain a
    written statement of the amount necessary to pay off your
    loan. Your mortgage company (identified above) must
    provide you this statement within 10 business days of
    receiving your request, provided that your request is in
    writing and includes your name, the address of the
    property, and the mortgage account or loan number. Your
    first payoff statement will be free.
        8. GET ADVICE: This information is not exhaustive and
    does not replace the advice of a professional. You may have
    other options. Get professional advice from a lawyer or
    certified housing counselor about your rights and options
    to avoid foreclosure.
        9. LAWYER: If you do not have a lawyer, you may be able
    to find assistance by contacting the Illinois State Bar
    Association or a legal aid organization that provides free
    legal assistance.
        10. PROCEED WITH CAUTION: You may be contacted by
    people offering to help you avoid foreclosure. Before
    entering into any transaction with persons offering to help
    you, please contact a lawyer, government official, or
    housing counselor for advice.
 
    (735 ILCS 5/15-1505.5 new)
    Sec. 15-1505.5. Payoff demands.
    (a) In a foreclosure action subject to this Article, on the
written demand of a mortgagor or the mortgagor's authorized
agent (which shall include the mortgagor's name, the mortgaged
property's address, and the mortgage account or loan number), a
mortgagee or the mortgagee's authorized agent shall prepare and
deliver an accurate statement of the total outstanding balance
of the mortgagor's obligation that would be required to satisfy
the obligation in full as of the date of preparation ("payoff
demand statement") to the mortgagor or the mortgagor's
authorized agent who has requested it within 10 business days
after receipt of the demand. For purposes of this Section, a
payoff demand statement is accurate if prepared in good faith
based on the records of the mortgagee or the mortgagee's agent.
    (b) The payoff demand statement shall include the
following:
        (1) the information necessary to calculate the payoff
    amount on a per diem basis for the lesser of a period of 30
    days or until the date scheduled for judicial sale;
        (2) estimated charges (stated as such) that the
    mortgagee reasonably believes may be incurred within 30
    days from the date of preparation of the payoff demand
    statement; and
        (3) the loan number for the obligation to be paid, the
    address of the mortgagee, the telephone number of the
    mortgagee and, if a banking organization or corporation,
    the name of the department, if applicable, and its
    telephone number and facsimile phone number.
    (c) A mortgagee or mortgagee's agent who willfully fails to
prepare and deliver an accurate payoff demand statement within
10 business days after receipt of a written demand is liable to
the mortgagor for actual damages sustained for failure to
deliver the statement. The mortgagee or mortgagee's agent is
liable to the mortgagor for $500 if no actual damages are
sustained. For purposes of this subsection, "willfully" means a
failure to comply with this Section without just cause or
excuse or mitigating circumstances.
    (d) The mortgagor must petition the judge within the
foreclosure action for the award of any damages pursuant to
this Section, which award shall be determined by the judge.
    (e) Unless the payoff demand statement provides otherwise,
the statement is deemed to apply only to the unpaid balance of
the single obligation that is named in the demand and that is
secured by the mortgage or deed of trust identified in the
payoff demand statement.
    (f) The demand for and preparation and delivery of a payoff
demand statement pursuant to this Section does not change any
date or time period that is prescribed in the note or that is
otherwise provided by law. Failure to comply with any provision
of this Section does not change any of the rights of the
parties as set forth in the note, mortgage, or applicable law.
    (g) The mortgagee or mortgagee's agent shall furnish the
first payoff demand statement at no cost to the mortgagor.
    (h) For the purposes of this Section, unless the context
otherwise requires, "deliver" or "delivery" means depositing
or causing to be deposited into the United States mail an
envelope with postage prepaid that contains a copy of the
documents to be delivered and that is addressed to the person
whose name and address are provided in the payoff demand.
"Delivery" may also include transmitting those documents by
telephone facsimile to the person or electronically if the
payoff demand specifically requests and authorizes that the
documents be transmitted in electronic form.
    (i) The mortgagee or mortgagee's agent is not required to
comply with the payoff demand statement procedure set forth in
this Section when responding to a notice of intent to redeem
issued under Section 15-1603(e).
 
    (735 ILCS 5/15-1510)  (from Ch. 110, par. 15-1510)
    Sec. 15-1510. Attorney's Fees and Costs by Written
Agreement.
    (a) The court may award reasonable attorney's fees and
costs to the defendant who prevails in a motion, an affirmative
defense or counterclaim, or in the foreclosure action. A
defendant who exercises the defendant's right of reinstatement
or redemption shall not be considered a prevailing party for
purposes of this Section. Nothing in this subsection shall
abrogate contractual terms in the mortgage or other written
agreement between the mortgagor and the mortgagee or rights as
otherwise provided in this Article which allow the mortgagee to
recover attorney's fees and costs under subsection (b).
    (b) Attorneys' fees and other costs incurred in connection
with the preparation, filing or prosecution of the foreclosure
suit shall be recoverable in a foreclosure only to the extent
specifically set forth in the mortgage or other written
agreement between the mortgagor and the mortgagee or as
otherwise provided in this Article.
(Source: P.A. 86-974.)
 
    Section 10. The Illinois Human Rights Act is amended by
changing Section 10-104 as follows:
 
    (775 ILCS 5/10-104)
    Sec. 10-104. Circuit Court Actions by the Illinois Attorney
General.
    (A) Standing, venue, limitations on actions, preliminary
investigations, notice, and Assurance of Voluntary Compliance.
        (1) Whenever the Illinois Attorney General has
    reasonable cause to believe that any person or group of
    persons is engaged in a pattern and practice of
    discrimination prohibited by this Act, the Illinois
    Attorney General may commence a civil action in the name of
    the People of the State, as parens patriae on behalf of
    persons within the State to enforce the provisions of this
    Act in any appropriate circuit court. Venue for this civil
    action shall be determined under Section 8-111(B)(6). Such
    actions shall be commenced no later than 2 years after the
    occurrence or the termination of an alleged civil rights
    violation or the breach of a conciliation agreement or
    Assurance of Voluntary Compliance entered into under this
    Act, whichever occurs last, to obtain relief with respect
    to the alleged civil rights violation or breach.
        (2) Prior to initiating a civil action, the Attorney
    General shall conduct a preliminary investigation to
    determine whether there is reasonable cause to believe that
    any person or group of persons is engaged in a pattern and
    practice of discrimination declared unlawful by this Act
    and whether the dispute can be resolved without litigation.
    In conducting this investigation, the Attorney General
    may:
            (a) require the individual or entity to file a
        statement or report in writing under oath or otherwise,
        as to all information the Attorney General may consider
        necessary;
            (b) examine under oath any person alleged to have
        participated in or with knowledge of the alleged
        pattern and practice violation; or
            (c) issue subpoenas or conduct hearings in aid of
        any investigation.
        (3) Service by the Attorney General of any notice
    requiring a person to file a statement or report, or of a
    subpoena upon any person, shall be made:
            (a) personally by delivery of a duly executed copy
        thereof to the person to be served or, if a person is
        not a natural person, in the manner provided in the
        Code of Civil Procedure when a complaint is filed; or
            (b) by mailing by certified mail a duly executed
        copy thereof to the person to be served at his or her
        last known abode or principal place of business within
        this State.
        (4) In lieu of a civil action, the individual or entity
    alleged to have engaged in a pattern or practice of
    discrimination deemed violative of this Act may enter into
    an Assurance of Voluntary Compliance with respect to the
    alleged pattern or practice violation.
        (5) The Illinois Attorney General may commence a civil
    action under this subsection (A) whether or not a charge
    has been filed under Sections 7A-102 or 7B-102 and without
    regard to the status of any charge, however, if the
    Department or local agency has obtained a conciliation or
    settlement agreement or if the parties have entered into an
    Assurance of Voluntary Compliance no action may be filed
    under this subsection (A) with respect to the alleged civil
    rights violation practice that forms the basis for the
    complaint except for the purpose of enforcing the terms of
    the conciliation or settlement agreement or the terms of
    the Assurance of Voluntary Compliance.
        (6) If any person fails or refuses to file any
    statement or report, or obey any subpoena, issued pursuant
    to subdivision (A)(2) of this Section, the Attorney General
    will be deemed to have met the requirement of conducting a
    preliminary investigation and may proceed to initiate a
    civil action pursuant to subdivision (A)(1) of this
    Section.
    (B) Relief which may be granted.
        (1) In any civil action brought pursuant to subsection
    (A) of this Section, the Attorney General may obtain as a
    remedy, equitable relief (including any permanent or
    preliminary injunction, temporary restraining order, or
    other order, including an order enjoining the defendant
    from engaging in such civil rights violation or ordering
    any action as may be appropriate). In addition, the
    Attorney General may request and the Court may impose a
    civil penalty to vindicate the public interest:
            (a) for violations of Article 3 and Article 4 in an
        amount not exceeding $25,000 per violation, and in the
        case of violations of all other Articles in an amount
        not exceeding $10,000 if the defendant has not been
        adjudged to have committed any prior civil rights
        violations under the provision of the Act that is the
        basis of the complaint;
            (b) for violations of Article 3 and Article 4 in an
        amount not exceeding $50,000 per violation, and in the
        case of violations of all other Articles in an amount
        not exceeding $25,000 if the defendant has been
        adjudged to have committed one other civil rights
        violation under the provision of the Act within 5 years
        of the occurrence of the civil rights violation that is
        the basis of the complaint; and
            (c) for violations of Article 3 and Article 4 in an
        amount not exceeding $75,000 per violation, and in the
        case of violations of all other Articles in an amount
        not exceeding $50,000 if the defendant has been
        adjudged to have committed 2 or more civil rights
        violations under the provision of the Act within 5
        years of the occurrence of the civil rights violation
        that is the basis of the complaint.
        (2) A civil penalty imposed under subdivision (B)(1) of
    this Section shall be deposited into the Attorney General
    Court Ordered and Voluntary Compliance Payment Projects
    Fund, which is a special fund in the State Treasury. Moneys
    in the Fund shall be used, subject to appropriation, for
    the performance of any function pertaining to the exercise
    of the duties of the Attorney General including but not
    limited to enforcement of any law of this State and
    conducting public education programs; however, any moneys
    in the Fund that are required by the court or by an
    agreement to be used for a particular purpose shall be used
    for that purpose.
        (3) Aggrieved parties seeking actual damages must
    follow the procedure set out in Sections 7A-102 or 7B-102
    for filing a charge.
(Source: P.A. 93-1017, eff. 8-24-04.)
 
    Section 15. The Illinois Fairness in Lending Act is amended
by changing Section 3 as follows:
 
    (815 ILCS 120/3)  (from Ch. 17, par. 853)
    Sec. 3. No financial institution, in connection with or in
contemplation of any loan to any person, may:
    (a) Deny or vary the terms of a loan on the basis that a
specific parcel of real estate offered as security is located
in a specific geographical area.
    (b) Deny or vary the terms of a loan without having
considered all of the regular and dependable income of each
person who would be liable for repayment of the loan.
    (c) Deny or vary the terms of a loan on the sole basis of
the childbearing capacity of an applicant or an applicant's
spouse.
    (c-5) Deny or vary the terms of a loan on the basis of the
borrower's race, gender, disability, or national origin.
    (d) Utilize lending standards that have no economic basis
and which are discriminatory in effect.
    (e) Engage in equity stripping or loan flipping.
(Source: P.A. 93-561, eff. 1-1-04.)
 
    Section 99. Effective date. This Act takes effect upon
becoming law, except Section 5 takes effect January 1, 2009.

Effective Date: 9/23/2008