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Public Act 098-0605


 

Public Act 0605 98TH GENERAL ASSEMBLY



 


 
Public Act 098-0605
 
SB1045 EnrolledLRB098 05334 HEP 35368 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 15-1508 as follows:
 
    (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
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
    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-3) Hearing to confirm sale of abandoned residential
property. Upon motion and notice by first-class mail to the
last known address of the mortgagor, which motion shall be made
prior to the sale and heard by the court at the earliest
practicable time after conclusion of the sale, and upon the
posting at the property address of the notice required by
paragraph (2) of subsection (l) of Section 15-1505.8, the court
shall enter an order confirming the sale of the abandoned
residential property, unless the court finds that a reason set
forth in items (i) through (iv) of subsection (b) of this
Section exists for not approving the sale, or an order is
entered pursuant to subsection (h) of Section 15-1505.8. The
confirmation order also may address the matters identified in
items (1) through (3) of subsection (b) of this Section. The
notice required under subsection (b-5) of this Section shall
not be required.
    (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
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 a copy of the order 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 a copy of the order shall be sent. In
the event that a municipality or county has not complied with
the publication requirement in this subsection (b-10), then a
copy of the order shall be sent by first class mail, postage
prepaid, to the chairperson of the county board or county clerk
in the case of a county, to the mayor or city clerk in the case
of a city, to the president of the board of trustees or village
clerk in the case of a village, or to the president or town
clerk in the case of a town.
    (b-15) Notice of confirmation order sent to known insurers.
With respect to residential real estate, the party filing the
complaint shall send a copy of the confirmation order required
under subsection (b) by first class mail, postage prepaid, to
the last known property insurer of the foreclosed property.
Failure to send or receive a copy of the order shall not impair
or abrogate in any way the rights of the mortgagee or purchaser
or affect the status of the foreclosure proceedings.
    (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
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
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
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
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
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
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, 2016
2014 for all actions filed under this Article after December
31, 2015 2013, in which the mortgagor did not apply for
assistance under the Making Home Affordable Program on or
before December 31, 2015 2013.
    (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
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
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. No order of possession issued under
this Section shall be entered against a lessee with a bona fide
lease of a dwelling unit in residential real estate in
foreclosure, whether or not the lessee has been made a party in
the foreclosure. An order shall 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 IX
of this Code or, if applicable, under subsection (h) of Section
15-1701; and possession against a person who (1) has not been
personally 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 IX of this Code or, if applicable, under 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. 97-333, eff. 8-12-11; 97-575, eff. 8-26-11;
97-1159, eff. 1-29-13; 97-1164, eff. 6-1-13; 98-514, eff.
11-19-13.)
 
    Section 99. Effective date. This Act takes effect upon
becoming law.

Effective Date: 12/26/2013