98TH GENERAL ASSEMBLY
State of Illinois
2013 and 2014
SB1728

 

Introduced 2/15/2013, by Sen. Jacqueline Y. Collins

 

SYNOPSIS AS INTRODUCED:
 
735 ILCS 5/15-1502.5
735 ILCS 5/15-1502.6 new
735 ILCS 5/15-1504  from Ch. 110, par. 15-1504
735 ILCS 5/15-1507  from Ch. 110, par. 15-1507
765 ILCS 5/28  from Ch. 30, par. 27
765 ILCS 5/30  from Ch. 30, par. 29

    Amends the Code of Civil Procedure. Provides that a Section concerning homeowner protections is repealed on January 1, 2014 (instead of July 1, 2013). Adds a new Section concerning homeowner protection which becomes operative on January 1, 2014 and contains substantially the same provisions of the former Section, with additions and deletions. Defines terms. Provides that the notice provided to certain mortgagors in default must contain language advising the mortgagor that a list of approved housing counselors can be found on the website of the Illinois Foreclosure Prevention Network. Adds requirements concerning: foreclosure prevention alternative applications; documents relative to foreclosure proceedings; proceedings in foreclosure actions; and private rights of action. Provides that the Section concerning homeowner protection applies only to residential real estate with no more than 4 dwelling units that is occupied as a principal residence by the mortgagor and that its provisions are severable. Provides that the Department of Financial and Professional Regulation may adopt rules to implement the Section. Provides that for certain types of properties, a mortgage foreclosure complaint must contain statements as to what sustainable loan workout plans or foreclosure prevention alternatives have or will be attempted. Amends the Conveyances Act. In provisions concerning the effect of recording deeds, mortgages, and other instruments, makes the following changes: provides that those provisions also apply to the recording of assignments, mortgage releases, mortgage modifications, land equity loans, liens, lis pendens, and memoranda of judgment; changes the scope to instruments that affect interests in real property; and provides that deeds and title papers are void until recorded (instead of void until recorded as to creditors and subsequent purchasers) with the recorder's office in the county in which the property is located. Effective immediately, except that the new homeowner protection provisions take effect January 1, 2014.


LRB098 09930 HEP 40088 b

 

 

A BILL FOR

 

SB1728LRB098 09930 HEP 40088 b

1    AN ACT concerning civil law.
 
2    Be it enacted by the People of the State of Illinois,
3represented in the General Assembly:
 
4    Section 5. The Code of Civil Procedure is amended by
5changing Sections 15-1502.5, 15-1504, and 15-1507 and by adding
6Section 15-1502.6 as follows:
 
7    (735 ILCS 5/15-1502.5)
8    (Section scheduled to be repealed on July 1, 2013)
9    Sec. 15-1502.5. Homeowner protection.
10    (a) As used in this Section:
11    "Approved counseling agency" means a housing counseling
12agency approved by the U.S. Department of Housing and Urban
13Development.
14    "Approved Housing Counseling" means in-person counseling
15provided by a counselor employed by an approved counseling
16agency to all borrowers, or documented telephone counseling
17where a hardship would be imposed on one or more borrowers. A
18hardship shall exist in instances in which the borrower is
19confined to his or her home due to medical conditions, as
20verified in writing by a physician or the borrower resides 50
21miles or more from the nearest approved counseling agency. In
22instances of telephone counseling, the borrower must supply all
23necessary documents to the counselor at least 72 hours prior to

 

 

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1the scheduled telephone counseling session.
2    "Delinquent" means past due with respect to a payment on a
3mortgage secured by residential real estate.
4    "Department" means the Department of Financial and
5Professional Regulation.
6    "Secretary" means the Secretary of Financial and
7Professional Regulation or other person authorized to act in
8the Secretary's stead.
9    "Sustainable loan workout plan" means a plan that the
10mortgagor and approved counseling agency believe shall enable
11the mortgagor to stay current on his or her mortgage payments
12for the foreseeable future when taking into account the
13mortgagor income and existing and foreseeable debts. A
14sustainable loan workout plan may include, but is not limited
15to, (1) a temporary suspension of payments, (2) a lengthened
16loan term, (3) a lowered or frozen interest rate, (4) a
17principal write down, (5) a repayment plan to pay the existing
18loan in full, (6) deferred payments, or (7) refinancing into a
19new affordable loan.
20    (b) Except in the circumstance in which a mortgagor has
21filed a petition for relief under the United States Bankruptcy
22Code, no mortgagee shall file a complaint to foreclose a
23mortgage secured by residential real estate until the
24requirements of this Section have been satisfied.
25    (c) Notwithstanding any other provision to the contrary,
26with respect to a particular mortgage secured by residential

 

 

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1real estate, the procedures and forbearances described in this
2Section apply only once per subject mortgage.
3    Except for mortgages secured by residential real estate in
4which any mortgagor has filed for relief under the United
5States Bankruptcy Code, if a mortgage secured by residential
6real estate becomes delinquent by more than 30 days the
7mortgagee shall send via U.S. mail a notice advising the
8mortgagor that he or she may wish to seek approved housing
9counseling. Notwithstanding anything to the contrary in this
10Section, nothing shall preclude the mortgagor and mortgagee
11from communicating with each other during the initial 30 days
12of delinquency or reaching agreement on a sustainable loan
13workout plan, or both.
14    No foreclosure action under Part 15 of Article XV of the
15Code of Civil Procedure shall be instituted on a mortgage
16secured by residential real estate before mailing the notice
17described in this subsection (c).
18    The notice required in this subsection (c) shall state the
19date on which the notice was mailed, shall be headed in bold
2014-point type "GRACE PERIOD NOTICE", and shall state the
21following in 14-point type: "YOUR LOAN IS MORE THAN 30 DAYS
22PAST DUE. YOU MAY BE EXPERIENCING FINANCIAL DIFFICULTY. IT MAY
23BE IN YOUR BEST INTEREST TO SEEK APPROVED HOUSING COUNSELING.
24YOU HAVE A GRACE PERIOD OF 30 DAYS FROM THE DATE OF THIS NOTICE
25TO OBTAIN APPROVED HOUSING COUNSELING. DURING THE GRACE PERIOD,
26THE LAW PROHIBITS US FROM TAKING ANY LEGAL ACTION AGAINST YOU.

 

 

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1YOU MAY BE ENTITLED TO AN ADDITIONAL 30 DAY GRACE PERIOD IF YOU
2OBTAIN HOUSING COUNSELING FROM AN APPROVED HOUSING COUNSELING
3AGENCY. A LIST OF APPROVED COUNSELING AGENCIES MAY BE OBTAINED
4FROM THE ILLINOIS DEPARTMENT OF FINANCIAL AND PROFESSIONAL
5REGULATION."
6    The notice shall also list the Department's current
7consumer hotline, the Department's website, and the telephone
8number, fax number, and mailing address of the mortgagee. No
9language, other than language substantially similar to the
10language prescribed in this subsection (c), shall be included
11in the notice. Notwithstanding any other provision to the
12contrary, the grace period notice required by this subsection
13(c) may be combined with a counseling notification required
14under federal law.
15    The sending of the notice required under this subsection
16(c) means depositing or causing to be deposited into the United
17States mail an envelope with first-class postage prepaid that
18contains the document to be delivered. The envelope shall be
19addressed to the mortgagor at the common address of the
20residential real estate securing the mortgage.
21    (d) Until 30 days after mailing the notice provided for
22under subsection (c) of this Section, no legal action shall be
23instituted under Part 15 of Article XV of the Code of Civil
24Procedure.
25    (e) If, within the 30-day period provided under subsection
26(d) of this Section, an approved counseling agency provides

 

 

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1written notice to the mortgagee that the mortgagor is seeking
2approved counseling services, then no legal action under Part
315 of Article XV of the Code of Civil Procedure shall be
4instituted for 30 days after the date of that notice. The date
5that such notice is sent shall be stated in the notice, and
6shall be sent to the address or fax number contained in the
7Grace Period Notice required under subsection (c) of this
8Section. During the 30-day period provided under this
9subsection (e), the mortgagor or counselor or both may prepare
10and proffer to the mortgagee a proposed sustainable loan
11workout plan. The mortgagee will then determine whether to
12accept the proposed sustainable loan workout plan. If the
13mortgagee and the mortgagor agree to a sustainable loan workout
14plan, then no legal action under Part 15 of Article XV of the
15Code of Civil Procedure shall be instituted for as long as the
16sustainable loan workout plan is complied with by the
17mortgagor.
18    The agreed sustainable loan workout plan and any
19modifications thereto must be in writing and signed by the
20mortgagee and the mortgagor.
21    Upon written notice to the mortgagee, the mortgagor may
22change approved counseling agencies, but such a change does not
23entitle the mortgagor to any additional period of forbearance.
24    (f) If the mortgagor fails to comply with the sustainable
25loan workout plan, then nothing in this Section shall be
26construed to impair the legal rights of the mortgagee to

 

 

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1enforce the contract.
2    (g) A counselor employed by a housing counseling agency or
3the housing counseling agency that in good faith provides
4counseling shall not be liable to a mortgagee or mortgagor for
5civil damages, except for willful or wanton misconduct on the
6part of the counselor in providing the counseling.
7    (h) There shall be no waiver of any provision of this
8Section.
9    (i) It is the General Assembly's intent that compliance
10with this Section shall not prejudice a mortgagee in ratings of
11its bad debt collection or calculation standards or policies.
12    (j) This Section shall not apply, or shall cease to apply,
13to residential real estate that is not occupied as a principal
14residence by the mortgagor.
15    (k) This Section is repealed January 1, 2014 July 1, 2013.
16(Source: P.A. 95-1047, eff. 4-6-09; 96-1419, eff. 10-1-10.)
 
17    (735 ILCS 5/15-1502.6 new)
18    Sec. 15-1502.6. Homeowner protection.
19    (a) As used in this Section:
20    "Approved counseling agency" means a housing counseling
21agency approved by the U.S. Department of Housing and Urban
22Development.
23    "Approved Housing Counseling" means in-person counseling
24provided by a counselor employed by an approved counseling
25agency to all borrowers, or documented telephone counseling

 

 

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1where meeting in person would cause a hardship to be imposed on
2one or more borrowers. A hardship shall exist in instances in
3which the borrower is confined to his or her home due to
4medical conditions, as verified in writing by a physician, or
5the borrower resides 50 miles or more from the nearest approved
6counseling agency. In instances of telephone counseling, the
7borrower must supply all necessary documents to the counselor
8at least 72 hours prior to the scheduled telephone counseling
9session.
10    "Delinquent" means past due with respect to a payment on a
11mortgage secured by residential real estate.
12    "Department" means the Department of Financial and
13Professional Regulation.
14    "First lien" means the most senior mortgage or deed of
15trust on the property that is the subject of the notice of
16foreclosure or notice of sale.
17    "Foreclosure prevention alternative" means a first lien
18loan modification or another available loss mitigation option,
19including but not limited to a: (1) short sale; (2) short
20refinance; (3) deed in lieu of foreclosure; (4) cash-for-keys
21negotiation; or (5) special forbearance.
22    "Secretary" means the Secretary of Financial and
23Professional Regulation or other person authorized to act in
24the Secretary's stead.
25    "Sustainable loan workout plan" means a plan that the
26mortgagor and approved counseling agency believe shall enable

 

 

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1the mortgagor to stay current on his or her mortgage payments
2for the foreseeable future when taking into account the
3mortgagor's income and existing and foreseeable debts. A
4sustainable loan workout plan may include, but is not limited
5to, (1) a temporary suspension of payments, (2) a lengthened
6loan term, (3) a lowered or frozen interest rate, (4) a
7principal write down, (5) a repayment plan to pay the existing
8loan in full, (6) deferred payments, or (7) refinancing into a
9new affordable loan.
10    "Written notice", "written acknowledgment", or "written
11offer" means depositing or causing to be deposited into the
12United States mail an envelope, with first-class postage
13prepaid, that contains the document to be delivered. The
14envelope shall be addressed to the mortgagor at the common
15address of the residential real estate securing the mortgage.
16The date of written notice, written acknowledgment, or written
17offer shall be the same as the day it is mailed.
18    (b) Except in the circumstance in which a mortgagor has
19filed a petition for relief under the United States Bankruptcy
20Code, no mortgagee shall file a complaint to foreclose a
21mortgage secured by residential real estate until the
22requirements of this Section have been satisfied.
23    (c) Notwithstanding any other provision to the contrary,
24with respect to a particular mortgage secured by residential
25real estate, the procedures and forbearances described in this
26Section apply only once per subject mortgage.

 

 

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1    If a mortgage secured by residential real estate becomes
2delinquent by more than 30 days, the mortgagee shall send
3written notice advising the mortgagor that he or she may wish
4to seek approved housing counseling. Notwithstanding anything
5to the contrary in this Section, nothing shall preclude the
6mortgagor and mortgagee from communicating with each other
7during the initial 30 days of delinquency or reaching agreement
8on a sustainable loan workout plan, or both.
9    No foreclosure action under Part 15 of Article XV of the
10Code of Civil Procedure shall be instituted on a mortgage
11secured by residential real estate before mailing the notice
12described in this subsection (c).
13    The notice required in this subsection (c) shall state the
14date on which the notice was mailed, shall be headed in bold
1514-point type "GRACE PERIOD NOTICE", and shall state the
16following in 14-point type: "YOUR LOAN IS MORE THAN 30 DAYS
17PAST DUE. YOU MAY BE EXPERIENCING FINANCIAL DIFFICULTY. IT MAY
18BE IN YOUR BEST INTEREST TO SEEK APPROVED HOUSING COUNSELING.
19YOU HAVE A GRACE PERIOD OF 30 DAYS FROM THE DATE OF THIS NOTICE
20TO OBTAIN APPROVED HOUSING COUNSELING. DURING THE GRACE PERIOD,
21THE LAW PROHIBITS US FROM TAKING ANY LEGAL ACTION AGAINST YOU.
22YOU MAY BE ENTITLED TO AN ADDITIONAL 30 DAY GRACE PERIOD IF YOU
23OBTAIN HOUSING COUNSELING FROM AN APPROVED HOUSING COUNSELING
24AGENCY. A LIST OF APPROVED COUNSELING AGENCIES MAY BE OBTAINED
25FROM THE ILLINOIS DEPARTMENT OF FINANCIAL AND PROFESSIONAL
26REGULATION OR THE ILLINOIS FORECLOSURE PREVENTION NETWORK

 

 

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1WEBSITE, HTTP://KEEPYOURHOMEILLINOIS.ORG."
2    The notice shall also list the Department's current
3consumer hotline, the Department's website, and the telephone
4number, fax number, and mailing address of the mortgagee. No
5language, other than language substantially similar to the
6language prescribed in this subsection (c), shall be included
7in the notice. Notwithstanding any other provision to the
8contrary, the grace period notice required by this subsection
9(c) may be combined with a counseling notification required
10under federal law.
11    (d) Until 30 days after mailing the notice provided for
12under subsection (c) of this Section, no legal action shall be
13instituted under Part 15 of Article XV of the Code of Civil
14Procedure.
15    (e) If, within the 30-day period provided under subsection
16(d) of this Section, an approved counseling agency provides
17written notice to the mortgagee that the mortgagor is seeking
18approved counseling services, then no legal action under Part
1915 of Article XV of the Code of Civil Procedure shall be
20instituted for 30 days after the date of that notice. The date
21that such notice is sent shall be stated in the notice, and
22shall be sent to the address or fax number contained in the
23Grace Period Notice required under subsection (c) of this
24Section. During the 30-day period provided under this
25subsection (e), the mortgagor or counselor or both may prepare
26and proffer to the mortgagee a proposed sustainable loan

 

 

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1workout plan. The mortgagee shall then determine whether to
2accept the proposed sustainable loan workout plan. If the
3mortgagee and the mortgagor agree to a sustainable loan workout
4plan, then no legal action under Part 15 of Article XV of the
5Code of Civil Procedure shall be instituted for as long as the
6sustainable loan workout plan is complied with by the
7mortgagor.
8    The agreed sustainable loan workout plan and any
9modifications thereto must be in writing and signed by the
10mortgagee and the mortgagor.
11    Upon written notice to the mortgagee, the mortgagor may
12change approved counseling agencies, but such a change does not
13entitle the mortgagor to any additional period of forbearance.
14    (f) If the mortgagor fails to comply with the sustainable
15loan workout plan, then nothing in this Section shall be
16construed to impair the legal rights of the mortgagee to
17enforce the contract.
18    (g) A counselor employed by a housing counseling agency or
19the housing counseling agency that in good faith provides
20counseling shall not be liable to a mortgagee or mortgagor for
21civil damages, except for willful or wanton misconduct on the
22part of the counselor in providing the counseling.
23    (h) There shall be no waiver of any provision of this
24Section.
25    (i) It is the General Assembly's intent that compliance
26with this Section shall not prejudice a mortgagee in ratings of

 

 

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1its bad debt collection or calculation standards or policies.
2    (j) With respect to foreclosure prevention alternative
3applications, the following apply:
4        (1) When a mortgagor submits a complete foreclosure
5    prevention alternative application, or any document in
6    connection with a foreclosure prevention alternative
7    application, the mortgagee shall provide written
8    acknowledgment of the receipt of the documentation within 5
9    business days of receipt.
10        (2) For purposes of this Section, an application is
11    complete when a mortgagor has supplied the mortgagee with
12    all documents required by the mortgagee within the
13    reasonable timeframe specified by the mortgage servicer.
14        (3) The mortgagee may not charge an application,
15    processing, or other fee in connection with a foreclosure
16    prevention alternative application.
17        (4) The mortgagee may not collect any late fees for
18    periods during which a foreclosure prevention alternative
19    is under consideration or a denial is being appealed.
20        (5) In its initial written acknowledgment of receipt of
21    the complete loan modification application, or any
22    document in connection with a foreclosure prevention
23    alternative application, the mortgagee shall include the
24    following information:
25            (i) a description of the foreclosure prevention
26        alternative evaluation process, including an estimate

 

 

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1        of when a decision on the foreclosure prevention
2        alternative will be made after a complete application
3        has been submitted by the mortgagor and the length of
4        time the mortgagor will have to consider an offer of a
5        foreclosure prevention alternative;
6            (ii) any deadlines, including deadlines to submit
7        missing documentation, that would affect the
8        processing of a foreclosure prevention alternative
9        application;
10            (iii) any expiration dates for submitted
11        documents; and
12            (iv) any deficiency in the mortgagor's first lien
13        loan modification application or an acknowledgment of
14        receipt of a complete foreclosure prevention
15        alternative application or both.
16        (6) A mortgagee shall have no more than 30 days after
17    receipt of a complete foreclosure prevention alternative
18    application to provide the mortgagor with a written
19    acceptance or denial of the complete foreclosure
20    prevention alternative application, or, if applicable, to
21    provide the mortgagor with a written acceptance or denial
22    of an appeal.
23        (7) When a mortgagor accepts an offered foreclosure
24    prevention alternative, the mortgagee shall provide the
25    mortgagor with a copy of the fully executed foreclosure
26    prevention alternative agreement within 7 days following

 

 

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1    receipt of the executed copy from the mortgagor.
2        (8) If a mortgagor submits a complete application for a
3    foreclosure prevention alternative offered by or through
4    the mortgagor's mortgage servicer, a mortgage servicer,
5    trustee, beneficiary, or authorized agent may not file a
6    foreclosure complaint, seek a foreclosure judgment, or
7    conduct or seek to confirm a judicial sale.
8        (9) If a foreclosure prevention alternative is
9    approved in writing, a mortgage servicer, mortgagee,
10    trustee, beneficiary, or authorized agent may not record a
11    notice of foreclosure or a notice of sale or conduct a
12    judicial sale as long as the mortgagor is in compliance
13    with the terms of the foreclosure prevention alternative.
14        (10) A mortgagee, beneficiary, or authorized agent
15    shall record a rescission of a notice of foreclosure or
16    cancel a pending judicial sale, if applicable, upon the
17    mortgagor executing a permanent foreclosure prevention
18    alternative.
19        (11) If the mortgagor's application for a foreclosure
20    prevention alternative is denied, the mortgagor shall have
21    at least 30 days from the date of the written denial to
22    appeal the denial and to provide evidence that the mortgage
23    servicer's determination was in error.
24        (12) Following the denial of a foreclosure prevention
25    alternative, the mortgagee shall send a written notice to
26    the mortgagor identifying the reasons for the denial,

 

 

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1    including the following:
2            (i) the amount of time from the date of the denial
3        letter in which the mortgagor may request an appeal of
4        the denial of the foreclosure prevention alternative
5        and instructions regarding how to appeal the denial;
6            (ii) if the denial was based on investor
7        disallowance, the specific reasons for the investor
8        disallowance;
9            (iii) if the denial is the result of a net present
10        value calculation, the monthly gross income and
11        property value used to calculate the net present value
12        and a statement that the mortgagor may obtain all of
13        the inputs used in the net present value calculation
14        upon written request to the mortgage servicer;
15            (iv) if applicable, a finding that the mortgagor
16        was previously offered a foreclosure prevention
17        alternative and defaulted on, or otherwise breached,
18        the mortgagor's obligations under the foreclosure
19        prevention alternative agreement;
20            (v) if applicable, a description of other
21        foreclosure prevention alternatives for which the
22        mortgagor may be eligible, and a list of the steps the
23        mortgagor must take in order to be considered for those
24        options; and
25            (vi) if the mortgagee has already approved the
26        mortgagor for another foreclosure prevention

 

 

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1        alternative, information necessary to complete the
2        approved foreclosure prevention alternative.
3        (13) A mortgage servicer, mortgagee, trustee,
4    beneficiary, or authorized agent may not record or file a
5    foreclosure complaint, seek a foreclosure judgment, or
6    conduct or seek to confirm a judicial sale until:
7            (i) the mortgagee provides written notice of a
8        determination that the mortgagor is not eligible for a
9        foreclosure prevention alternative and any appeal
10        period has expired;
11            (ii) the mortgagor does not accept an offered
12        foreclosure prevention alternative within 14 days of
13        the written offer;
14            (iii) the mortgagor accepts a foreclosure
15        prevention alternative, but defaults on or otherwise
16        breaches the mortgagor's obligations under the
17        foreclosure prevention alternative; or
18            (iv) if the mortgagor appeals the denial, the later
19        of 15 days after the denial of the appeal or 14 days
20        after a foreclosure prevention alternative is offered
21        in writing after appeal but declined by the mortgagor,
22        or, if a foreclosure prevention alternative is offered
23        in writing and accepted after appeal, the date on which
24        the mortgagor breaches the terms of the offer.
25        (14) In order to minimize the risk of mortgagors
26    submitting multiple applications for first lien loan

 

 

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1    modifications for the purpose of delay, the mortgagee is
2    not obligated to evaluate applications from mortgagors who
3    have already been evaluated or afforded a fair opportunity
4    to be evaluated for a foreclosure prevention alternative
5    prior to January 1, 2014, or who have been evaluated or
6    afforded a fair opportunity to be evaluated consistent with
7    the requirements of this Section, unless there has been a
8    material change in the mortgagor's financial circumstances
9    since the date of the mortgagor's previous application and
10    that change is documented by the mortgagor and submitted to
11    the mortgage servicer.
12        (15) If a mortgagor has been approved in writing for a
13    foreclosure prevention alternative, and the servicing of
14    that mortgagor's loan is transferred or sold to another
15    mortgage servicer, the subsequent mortgagee must continue
16    to honor any previously approved foreclosure prevention
17    alternative.
18    (k) When a mortgagor requests a foreclosure prevention
19alternative, the mortgagee shall promptly establish a single
20point of contact and provide to the mortgagor one or more
21direct means of communication with the single point of contact.
22The single point of contact shall be responsible for doing all
23of the following:
24        (i) communicating the process by which a mortgagor may
25    apply for an available foreclosure prevention alternative
26    and the deadline for any required submissions to be

 

 

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1    considered for these options;
2        (ii) coordinating receipt of all documents associated
3    with available foreclosure prevention alternatives and
4    notifying the mortgagor of any missing documents necessary
5    to complete the application;
6        (iii) having access to current information and
7    personnel sufficient to timely, accurately, and adequately
8    inform the mortgagor of the current status of the
9    foreclosure prevention alternative application;
10        (iv) ensuring that a mortgagor is considered for all
11    foreclosure prevention alternatives offered by or through
12    the mortgage servicer, if any; and
13        (v) having access to individuals with the ability and
14    authority to stop foreclosure proceedings when necessary.
15    The single point of contact shall remain assigned to the
16mortgagor's account until the mortgagee determines that all
17loss mitigation options offered by or through the mortgagee
18have been exhausted or the mortgagor's account becomes current.
19    The mortgagee shall ensure that a single point of contact
20refers and transfers a mortgagor to an appropriate supervisor
21upon request of the mortgagor, if the single point of contact
22has a supervisor.
23    As used in this subsection (k), "single point of contact"
24means an individual who has the ability and authority to
25perform the responsibilities described in this subsection.
26    (l) With respect to documents relative to a foreclosure

 

 

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1proceeding, the following apply:
2        (1) Any affidavit filed in any court relative to a
3    foreclosure proceeding shall be accurate and complete and
4    supported by competent and reliable evidence.
5        (2) Before recording or filing any of the documents
6    related to the foreclosure, a mortgagee shall ensure that
7    it has reviewed competent and reliable evidence to
8    substantiate the mortgagor's default and the mortgagee's
9    right to foreclose, including the mortgagor's loan status
10    and loan information.
11        (3) Any mortgagee that engages in multiple and repeated
12    uncorrected violations in recording documents or in filing
13    documents in any court relative to a foreclosure proceeding
14    shall be liable for a civil penalty, of up to $7,500 per
15    mortgage or deed of trust, in an action brought by a
16    government entity or in an administrative proceeding
17    brought by the Department against a respective licensee, in
18    addition to any other remedies available to these entities.
19    (m) Notwithstanding any other provision of this Section, no
20request for a deficiency judgment shall be granted to any
21plaintiff for a first lien mortgage, deed of trust, or purchase
22money loan that is:
23        (i) secured by owner-occupied residential real
24    property containing no more than 4 dwelling units; and
25        (ii) in fact used to pay all or part of the purchase
26    price of the dwelling occupied entirely or in part by the

 

 

SB1728- 20 -LRB098 09930 HEP 40088 b

1    purchaser.
2    As used in this subsection (m), a "purchase money loan" is
3any loan, refinance, or other credit transaction
4(collectively, a "credit transaction") which is used to
5refinance a purchase money loan, or subsequent refinances of a
6purchase money loan, except to the extent that in a credit
7transaction, the lender or creditor advances new principal
8(hereafter "new advance") which is not applied to any
9obligation owed or to be owed under the purchase money loan, or
10to fees, costs, or related expenses of the credit transaction.
11Any new credit transaction shall be deemed to be a purchase
12money loan except as to the principal amount of any new
13advance. Any payment of principal shall be applied first to the
14principal balance of the purchase money loan, and then to the
15principal balance of any new advance, and interest payments
16shall be applied to any interest due and owing.
17    (n) Whenever a judicial sale is postponed for at least 10
18business days, a mortgagee, beneficiary, or authorized agent
19shall provide written notice regarding the new sale date and
20time, to all parties who have appeared or filed an answer,
21within 5 business days following the postponement. Failure to
22comply with this subsection (n) does not invalidate any sale
23that would otherwise be valid.
24    (o) Failure to comply with any of the requirements of this
25Section shall provide a private right of action, which can be
26asserted by a mortgagor as a defense or counterclaim in a

 

 

SB1728- 21 -LRB098 09930 HEP 40088 b

1foreclosure action, or as a claim in an independent action. In
2a foreclosure action, the mortgagor may assert a defense or
3counterclaim to oppose or vacate a foreclosure judgment, to
4postpone or set aside a judicial sale, or to oppose or vacate
5an order approving a sale.
6    After a deed upon sale has been recorded, a mortgage
7servicer, mortgagee, trustee, beneficiary, or authorized agent
8shall be liable to a mortgagor for actual economic damages
9resulting from a material violation of this Section by that
10mortgage servicer, mortgagee, trustee, beneficiary, or
11authorized agent where the violation was not corrected and
12remedied prior to the recording of the deed upon sale. If the
13court finds that the material violation was intentional or
14reckless, or resulted from willful misconduct by a mortgage
15servicer, mortgagee, trustee, beneficiary, or authorized
16agent, the court may award the mortgagor the greater of treble
17actual damages or statutory damages of $50,000.
18    A mortgage servicer, mortgagee, trustee, beneficiary, or
19authorized agent is not liable for any violation that it has
20corrected and remedied prior to the recordation of a deed upon
21sale, or that has been corrected and remedied by a third party
22working on its behalf prior to the recordation of a deed upon
23sale.
24    A violation of this Section by a person licensed by the
25Department shall be deemed to be a violation of that person's
26licensing law.

 

 

SB1728- 22 -LRB098 09930 HEP 40088 b

1    No violation of this Article shall affect the validity of a
2sale in favor of a bona fide purchaser and any of its
3encumbrancers for value without notice. A third-party
4encumbrancer shall not be relieved of liability resulting from
5violations of this Section, committed by that third-party
6encumbrancer, that occurred prior to the sale of the subject
7property to the bona fide purchaser.
8    The rights, remedies, and procedures provided by this
9Section are in addition to and independent of any other rights,
10remedies, or procedures under any other law. Nothing in this
11Section shall be construed to alter, limit, or negate any other
12rights, remedies, or procedures provided by law.
13    A court shall award a prevailing mortgagor reasonable
14attorney's fees and costs in an action brought under this
15Section. A mortgagor shall be deemed to have prevailed for
16purposes of this subsection (o) if the mortgagor obtained
17injunctive relief or was awarded damages under this Section.
18    (p) For all residential real estate with no more than 4
19dwelling units that is occupied as a principal residence by the
20mortgagor, a judgment must include, in addition to the other
21information required in Section 15-1506 of this Code, a written
22finding by the court that all reasonable foreclosure prevention
23alternatives have been exhausted by the mortgagee and
24mortgagor.
25    (q) Consistent with its general regulatory authority, the
26Department may adopt rules applicable to any entity or person

 

 

SB1728- 23 -LRB098 09930 HEP 40088 b

1under its respective jurisdiction that are necessary to
2implement this Section. A violation of the rules adopted
3pursuant to this Section shall be enforceable only by the
4Department.
5    (r) Unless otherwise provided, this Section applies only to
6residential real estate with no more than 4 dwelling units that
7is occupied as a principal residence by the mortgagor.
8    (s) The provisions of this Section are severable. If any
9provision of this Section or its application is held invalid,
10that invalidity shall not affect other provisions or
11applications that can be given effect without the invalid
12provision or application.
 
13    (735 ILCS 5/15-1504)  (from Ch. 110, par. 15-1504)
14    (Text of Section before amendment by P.A. 97-1164)
15    Sec. 15-1504. Pleadings and service.
16    (a) Form of Complaint. A foreclosure complaint may be in
17substantially the following form:
18        (1) Plaintiff files this complaint to foreclose the
19    mortgage (or other conveyance in the nature of a mortgage)
20    (hereinafter called "mortgage") hereinafter described and
21    joins the following person as defendants: (here insert
22    names of all defendants).
23        (2) Attached as Exhibit "A" is a copy of the mortgage
24    and as Exhibit "B" is a copy of the note secured thereby.
25        (3) Information concerning mortgage:

 

 

SB1728- 24 -LRB098 09930 HEP 40088 b

1            (A) Nature of instrument: (here insert whether a
2        mortgage, trust deed or other instrument in the nature
3        of a mortgage, etc.)
4            (B) Date of mortgage:
5            (C) Name of mortgagor:
6            (D) Name of mortgagee:
7            (E) Date and place of recording:
8            (F) Identification of recording: (here insert book
9        and page number or document number)
10            (G) Interest subject to the mortgage: (here insert
11        whether fee simple, estate for years, undivided
12        interest, etc.)
13            (H) Amount of original indebtedness, including
14        subsequent advances made under the mortgage:
15            (I) Both the legal description of the mortgaged
16        real estate and the common address or other information
17        sufficient to identify it with reasonable certainty:
18            (J) Statement as to defaults, including, but not
19        necessarily limited to, date of default, current
20        unpaid principal balance, per diem interest accruing,
21        and any further information concerning the default:
22            (K) Name of present owner of the real estate:
23            (L) Names of other persons who are joined as
24        defendants and whose interest in or lien on the
25        mortgaged real estate is sought to be terminated:
26            (M) Names of defendants claimed to be personally

 

 

SB1728- 25 -LRB098 09930 HEP 40088 b

1        liable for deficiency, if any:
2            (N) Capacity in which plaintiff brings this
3        foreclosure (here indicate whether plaintiff is the
4        legal holder of the indebtedness, a pledgee, an agent,
5        the trustee under a trust deed or otherwise, as
6        appropriate):
7            (O) Facts in support of redemption period shorter
8        than the longer of (i) 7 months from the date the
9        mortgagor or, if more than one, all the mortgagors (I)
10        have been served with summons or by publication or (II)
11        have otherwise submitted to the jurisdiction of the
12        court, or (ii) 3 months from the entry of the judgment
13        of foreclosure, if sought (here indicate whether based
14        upon the real estate not being residential,
15        abandonment, or real estate value less than 90% of
16        amount owed, etc.):
17            (P) Statement that the right of redemption has been
18        waived by all owners of redemption, if applicable:
19            (Q) Facts in support of request for attorneys' fees
20        and of costs and expenses, if applicable:
21            (R) Facts in support of a request for appointment
22        of mortgagee in possession or for appointment of
23        receiver, and identity of such receiver, if sought:
24            (S) Offer to mortgagor in accordance with Section
25        15-1402 to accept title to the real estate in
26        satisfaction of all indebtedness and obligations

 

 

SB1728- 26 -LRB098 09930 HEP 40088 b

1        secured by the mortgage without judicial sale, if
2        sought:
3            (T) Name or names of defendants whose right to
4        possess the mortgaged real estate, after the
5        confirmation of a foreclosure sale, is sought to be
6        terminated and, if not elsewhere stated, the facts in
7        support thereof:
8            (U) For all residential real estate with no more
9        than 4 dwelling units that is occupied as a principal
10        residence by the mortgagor, statement as to what
11        sustainable loan workout plans, if any, have been
12        attempted between the mortgagee and mortgagor:
13            (V) For all residential real estate with no more
14        than 4 dwelling units that is occupied as a principal
15        residence by the mortgagor, statement as to what
16        foreclosure prevention alternatives will be attempted
17        between the mortgagee and mortgagor:
 
18
REQUEST FOR RELIEF
19    Plaintiff requests:
20        (i) A judgment of foreclosure and sale.
21        (ii) An order granting a shortened redemption period,
22    if sought.
23        (iii) A personal judgment for a deficiency, if sought.
24        (iv) An order granting possession, if sought.
25        (v) An order placing the mortgagee in possession or

 

 

SB1728- 27 -LRB098 09930 HEP 40088 b

1    appointing a receiver, if sought.
2        (vi) A judgment for attorneys' fees, costs and
3    expenses, if sought.
4    (b) Required Information. A foreclosure complaint need
5contain only such statements and requests called for by the
6form set forth in subsection (a) of Section 15-1504 as may be
7appropriate for the relief sought. Such complaint may be filed
8as a counterclaim, may be joined with other counts or may
9include in the same count additional matters or a request for
10any additional relief permitted by Article II of the Code of
11Civil Procedure.
12    (c) Allegations. The statements contained in a complaint in
13the form set forth in subsection (a) of Section 15-1504 are
14deemed and construed to include allegations as follows:
15        (1) on the date indicated the obligor of the
16    indebtedness or other obligations secured by the mortgage
17    was justly indebted in the amount of the indicated original
18    indebtedness to the original mortgagee or payee of the
19    mortgage note;
20        (2) that the exhibits attached are true and correct
21    copies of the mortgage and note and are incorporated and
22    made a part of the complaint by express reference;
23        (3) that the mortgagor was at the date indicated an
24    owner of the interest in the real estate described in the
25    complaint and that as of that date made, executed and
26    delivered the mortgage as security for the note or other

 

 

SB1728- 28 -LRB098 09930 HEP 40088 b

1    obligations;
2        (4) that the mortgage was recorded in the county in
3    which the mortgaged real estate is located, on the date
4    indicated, in the book and page or as the document number
5    indicated;
6        (5) that defaults occurred as indicated;
7        (6) that at the time of the filing of the complaint the
8    persons named as present owners are the owners of the
9    indicated interests in and to the real estate described;
10        (7) that the mortgage constitutes a valid, prior and
11    paramount lien upon the indicated interest in the mortgaged
12    real estate, which lien is prior and superior to the right,
13    title, interest, claim or lien of all parties and nonrecord
14    claimants whose interests in the mortgaged real estate are
15    sought to be terminated;
16        (8) that by reason of the defaults alleged, if the
17    indebtedness has not matured by its terms, the same has
18    become due by the exercise, by the plaintiff or other
19    persons having such power, of a right or power to declare
20    immediately due and payable the whole of all indebtedness
21    secured by the mortgage;
22        (9) that any and all notices of default or election to
23    declare the indebtedness due and payable or other notices
24    required to be given have been duly and properly given;
25        (10) that any and all periods of grace or other period
26    of time allowed for the performance of the covenants or

 

 

SB1728- 29 -LRB098 09930 HEP 40088 b

1    conditions claimed to be breached or for the curing of any
2    breaches have expired;
3        (11) that the amounts indicated in the statement in the
4    complaint are correctly stated and if such statement
5    indicates any advances made or to be made by the plaintiff
6    or owner of the mortgage indebtedness, that such advances
7    were, in fact, made or will be required to be made, and
8    under and by virtue of the mortgage the same constitute
9    additional indebtedness secured by the mortgage; and
10        (12) that, upon confirmation of the sale, the holder of
11    the certificate of sale or deed issued pursuant to that
12    certificate or, if no certificate or deed was issued, the
13    purchaser at the sale will be entitled to full possession
14    of the mortgaged real estate against the parties named in
15    clause (T) of paragraph (3) of subsection (a) of Section
16    15-1504 or elsewhere to the same effect; the omission of
17    any party indicates that plaintiff will not seek a
18    possessory order in the order confirming sale unless the
19    request is subsequently made under subsection (h) of
20    Section 15-1701 or by separate action under Article 9 of
21    this Code.
22    (d) Request for Fees and Costs. A statement in the
23complaint that plaintiff seeks the inclusion of attorneys' fees
24and of costs and expenses shall be deemed and construed to
25include allegations that:
26        (1) plaintiff has been compelled to employ and retain

 

 

SB1728- 30 -LRB098 09930 HEP 40088 b

1    attorneys to prepare and file the complaint and to
2    represent and advise the plaintiff in the foreclosure of
3    the mortgage and the plaintiff will thereby become liable
4    for the usual, reasonable and customary fees of the
5    attorneys in that behalf;
6        (2) that the plaintiff has been compelled to advance or
7    will be compelled to advance, various sums of money in
8    payment of costs, fees, expenses and disbursements
9    incurred in connection with the foreclosure, including,
10    without limiting the generality of the foregoing, filing
11    fees, stenographer's fees, witness fees, costs of
12    publication, costs of procuring and preparing documentary
13    evidence and costs of procuring abstracts of title, Torrens
14    certificates, foreclosure minutes and a title insurance
15    policy;
16        (3) that under the terms of the mortgage, all such
17    advances, costs, attorneys' fees and other fees, expenses
18    and disbursements are made a lien upon the mortgaged real
19    estate and the plaintiff is entitled to recover all such
20    advances, costs, attorneys' fees, expenses and
21    disbursements, together with interest on all advances at
22    the rate provided in the mortgage, or, if no rate is
23    provided therein, at the statutory judgment rate, from the
24    date on which such advances are made;
25        (4) that in order to protect the lien of the mortgage,
26    it may become necessary for plaintiff to pay taxes and

 

 

SB1728- 31 -LRB098 09930 HEP 40088 b

1    assessments which have been or may be levied upon the
2    mortgaged real estate;
3        (5) that in order to protect and preserve the mortgaged
4    real estate, it may also become necessary for the plaintiff
5    to pay liability (protecting mortgagor and mortgagee),
6    fire and other hazard insurance premiums on the mortgaged
7    real estate, make such repairs to the mortgaged real estate
8    as may reasonably be deemed necessary for the proper
9    preservation thereof, advance for costs to inspect the
10    mortgaged real estate or to appraise it, or both, and
11    advance for premiums for pre-existing private or
12    governmental mortgage insurance to the extent required
13    after a foreclosure is commenced in order to keep such
14    insurance in force; and
15        (6) that under the terms of the mortgage, any money so
16    paid or expended will become an additional indebtedness
17    secured by the mortgage and will bear interest from the
18    date such monies are advanced at the rate provided in the
19    mortgage, or, if no rate is provided, at the statutory
20    judgment rate.
21    (e) Request for Foreclosure. The request for foreclosure is
22deemed and construed to mean that the plaintiff requests that:
23        (1) an accounting may be taken under the direction of
24    the court of the amounts due and owing to the plaintiff;
25        (2) that the defendants be ordered to pay to the
26    plaintiff before expiration of any redemption period (or,

 

 

SB1728- 32 -LRB098 09930 HEP 40088 b

1    if no redemption period, before a short date fixed by the
2    court) whatever sums may appear to be due upon the taking
3    of such account, together with attorneys' fees and costs of
4    the proceedings (to the extent provided in the mortgage or
5    by law);
6        (3) that in default of such payment in accordance with
7    the judgment, the mortgaged real estate be sold as directed
8    by the court, to satisfy the amount due to the plaintiff as
9    set forth in the judgment, together with the interest
10    thereon at the statutory judgment rate from the date of the
11    judgment;
12        (4) that in the event the plaintiff is a purchaser of
13    the mortgaged real estate at such sale, the plaintiff may
14    offset against the purchase price of such real estate the
15    amounts due under the judgment of foreclosure and order
16    confirming the sale;
17        (5) that in the event of such sale and the failure of
18    any person entitled thereto to redeem prior to such sale
19    pursuant to this Article, the defendants made parties to
20    the foreclosure in accordance with this Article, and all
21    nonrecord claimants given notice of the foreclosure in
22    accordance with this Article, and all persons claiming by,
23    through or under them, and each and any and all of them,
24    may be forever barred and foreclosed of any right, title,
25    interest, claim, lien, or right to redeem in and to the
26    mortgaged real estate; and

 

 

SB1728- 33 -LRB098 09930 HEP 40088 b

1        (6) that if no redemption is made prior to such sale, a
2    deed may be issued to the purchaser thereat according to
3    law and such purchaser be let into possession of the
4    mortgaged real estate in accordance with Part 17 of this
5    Article.
6    (f) Request for Deficiency Judgment. A request for a
7personal judgment for a deficiency in a foreclosure complaint
8if the sale of the mortgaged real estate fails to produce a
9sufficient amount to pay the amount found due, the plaintiff
10may have a personal judgment against any party in the
11foreclosure indicated as being personally liable therefor and
12the enforcement thereof be had as provided by law.
13    (g) Request for Possession or Receiver. A request for
14possession or appointment of a receiver has the meaning as
15stated in subsection (b) of Section 15-1706.
16    (h) Answers by Parties. Any party may assert its interest
17by counterclaim and such counterclaim may at the option of that
18party stand in lieu of answer to the complaint for foreclosure
19and all counter complaints previously or thereafter filed in
20the foreclosure. Any such counterclaim shall be deemed to
21constitute a statement that the counter claimant does not have
22sufficient knowledge to form a belief as to the truth or
23falsity of the allegations of the complaint and all other
24counterclaims, except to the extent that the counterclaim
25admits or specifically denies such allegations.
26(Source: P.A. 91-357, eff. 7-29-99.)
 

 

 

SB1728- 34 -LRB098 09930 HEP 40088 b

1    (Text of Section after amendment by P.A. 97-1164)
2    Sec. 15-1504. Pleadings and service.
3    (a) Form of Complaint. A foreclosure complaint may be in
4substantially the following form:
5        (1) Plaintiff files this complaint to foreclose the
6    mortgage (or other conveyance in the nature of a mortgage)
7    (hereinafter called "mortgage") hereinafter described and
8    joins the following person as defendants: (here insert
9    names of all defendants).
10        (2) Attached as Exhibit "A" is a copy of the mortgage
11    and as Exhibit "B" is a copy of the note secured thereby.
12        (3) Information concerning mortgage:
13            (A) Nature of instrument: (here insert whether a
14        mortgage, trust deed or other instrument in the nature
15        of a mortgage, etc.)
16            (B) Date of mortgage:
17            (C) Name of mortgagor:
18            (D) Name of mortgagee:
19            (E) Date and place of recording:
20            (F) Identification of recording: (here insert book
21        and page number or document number)
22            (G) Interest subject to the mortgage: (here insert
23        whether fee simple, estate for years, undivided
24        interest, etc.)
25            (H) Amount of original indebtedness, including

 

 

SB1728- 35 -LRB098 09930 HEP 40088 b

1        subsequent advances made under the mortgage:
2            (I) Both the legal description of the mortgaged
3        real estate and the common address or other information
4        sufficient to identify it with reasonable certainty:
5            (J) Statement as to defaults, including, but not
6        necessarily limited to, date of default, current
7        unpaid principal balance, per diem interest accruing,
8        and any further information concerning the default:
9            (K) Name of present owner of the real estate:
10            (L) Names of other persons who are joined as
11        defendants and whose interest in or lien on the
12        mortgaged real estate is sought to be terminated:
13            (M) Names of defendants claimed to be personally
14        liable for deficiency, if any:
15            (N) Capacity in which plaintiff brings this
16        foreclosure (here indicate whether plaintiff is the
17        legal holder of the indebtedness, a pledgee, an agent,
18        the trustee under a trust deed or otherwise, as
19        appropriate):
20            (O) Facts in support of redemption period shorter
21        than the longer of (i) 7 months from the date the
22        mortgagor or, if more than one, all the mortgagors (I)
23        have been served with summons or by publication or (II)
24        have otherwise submitted to the jurisdiction of the
25        court, or (ii) 3 months from the entry of the judgment
26        of foreclosure, if sought (here indicate whether based

 

 

SB1728- 36 -LRB098 09930 HEP 40088 b

1        upon the real estate not being residential or real
2        estate value less than 90% of amount owed, etc.):
3            (P) Statement that the right of redemption has been
4        waived by all owners of redemption, if applicable:
5            (Q) Facts in support of request for attorneys' fees
6        and of costs and expenses, if applicable:
7            (R) Facts in support of a request for appointment
8        of mortgagee in possession or for appointment of
9        receiver, and identity of such receiver, if sought:
10            (S) Offer to mortgagor in accordance with Section
11        15-1402 to accept title to the real estate in
12        satisfaction of all indebtedness and obligations
13        secured by the mortgage without judicial sale, if
14        sought:
15            (T) Name or names of defendants whose right to
16        possess the mortgaged real estate, after the
17        confirmation of a foreclosure sale, is sought to be
18        terminated and, if not elsewhere stated, the facts in
19        support thereof:
20            (U) For all residential real estate with no more
21        than 4 dwelling units that is occupied as a principal
22        residence by the mortgagor, statement as to what
23        sustainable loan workout plans, if any, have been
24        attempted between the mortgagee and mortgagor:
25            (V) For all residential real estate with no more
26        than 4 dwelling units that is occupied as a principal

 

 

SB1728- 37 -LRB098 09930 HEP 40088 b

1        residence by the mortgagor, statement as to what
2        foreclosure prevention alternatives will be attempted
3        between the mortgagee and mortgagor:
 
4
REQUEST FOR RELIEF
5    Plaintiff requests:
6        (i) A judgment of foreclosure and sale.
7        (ii) An order granting a shortened redemption period,
8    if sought.
9        (iii) A personal judgment for a deficiency, if sought.
10        (iv) An order granting possession, if sought.
11        (v) An order placing the mortgagee in possession or
12    appointing a receiver, if sought.
13        (vi) A judgment for attorneys' fees, costs and
14    expenses, if sought.
15    (b) Required Information. A foreclosure complaint need
16contain only such statements and requests called for by the
17form set forth in subsection (a) of Section 15-1504 as may be
18appropriate for the relief sought. Such complaint may be filed
19as a counterclaim, may be joined with other counts or may
20include in the same count additional matters or a request for
21any additional relief permitted by Article II of the Code of
22Civil Procedure.
23    (c) Allegations. The statements contained in a complaint in
24the form set forth in subsection (a) of Section 15-1504 are
25deemed and construed to include allegations as follows:

 

 

SB1728- 38 -LRB098 09930 HEP 40088 b

1        (1) that, on the date indicated, the obligor of the
2    indebtedness or other obligations secured by the mortgage
3    was justly indebted in the amount of the indicated original
4    indebtedness to the original mortgagee or payee of the
5    mortgage note;
6        (2) that the exhibits attached are true and correct
7    copies of the mortgage and note and are incorporated and
8    made a part of the complaint by express reference;
9        (3) that the mortgagor was at the date indicated an
10    owner of the interest in the real estate described in the
11    complaint and that as of that date made, executed and
12    delivered the mortgage as security for the note or other
13    obligations;
14        (4) that the mortgage was recorded in the county in
15    which the mortgaged real estate is located, on the date
16    indicated, in the book and page or as the document number
17    indicated;
18        (5) that defaults occurred as indicated;
19        (6) that at the time of the filing of the complaint the
20    persons named as present owners are the owners of the
21    indicated interests in and to the real estate described;
22        (7) that the mortgage constitutes a valid, prior and
23    paramount lien upon the indicated interest in the mortgaged
24    real estate, which lien is prior and superior to the right,
25    title, interest, claim or lien of all parties and nonrecord
26    claimants whose interests in the mortgaged real estate are

 

 

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1    sought to be terminated;
2        (8) that by reason of the defaults alleged, if the
3    indebtedness has not matured by its terms, the same has
4    become due by the exercise, by the plaintiff or other
5    persons having such power, of a right or power to declare
6    immediately due and payable the whole of all indebtedness
7    secured by the mortgage;
8        (9) that any and all notices of default or election to
9    declare the indebtedness due and payable or other notices
10    required to be given have been duly and properly given;
11        (10) that any and all periods of grace or other period
12    of time allowed for the performance of the covenants or
13    conditions claimed to be breached or for the curing of any
14    breaches have expired;
15        (11) that the amounts indicated in the statement in the
16    complaint are correctly stated and if such statement
17    indicates any advances made or to be made by the plaintiff
18    or owner of the mortgage indebtedness, that such advances
19    were, in fact, made or will be required to be made, and
20    under and by virtue of the mortgage the same constitute
21    additional indebtedness secured by the mortgage; and
22        (12) that, upon confirmation of the sale, the holder of
23    the certificate of sale or deed issued pursuant to that
24    certificate or, if no certificate or deed was issued, the
25    purchaser at the sale will be entitled to full possession
26    of the mortgaged real estate against the parties named in

 

 

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1    clause (T) of paragraph (3) of subsection (a) of Section
2    15-1504 or elsewhere to the same effect; the omission of
3    any party indicates that plaintiff will not seek a
4    possessory order in the order confirming sale unless the
5    request is subsequently made under subsection (h) of
6    Section 15-1701 or by separate action under Article 9 of
7    this Code.
8    (d) Request for Fees and Costs. A statement in the
9complaint that plaintiff seeks the inclusion of attorneys' fees
10and of costs and expenses shall be deemed and construed to
11include allegations that:
12        (1) plaintiff has been compelled to employ and retain
13    attorneys to prepare and file the complaint and to
14    represent and advise the plaintiff in the foreclosure of
15    the mortgage and the plaintiff will thereby become liable
16    for the usual, reasonable and customary fees of the
17    attorneys in that behalf;
18        (2) the plaintiff has been compelled to advance or will
19    be compelled to advance, various sums of money in payment
20    of costs, fees, expenses and disbursements incurred in
21    connection with the foreclosure, including, without
22    limiting the generality of the foregoing, filing fees,
23    stenographer's fees, witness fees, costs of publication,
24    costs of procuring and preparing documentary evidence and
25    costs of procuring abstracts of title, Torrens
26    certificates, foreclosure minutes and a title insurance

 

 

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1    policy;
2        (3) under the terms of the mortgage, all such advances,
3    costs, attorneys' fees and other fees, expenses and
4    disbursements are made a lien upon the mortgaged real
5    estate and the plaintiff is entitled to recover all such
6    advances, costs, attorneys' fees, expenses and
7    disbursements, together with interest on all advances at
8    the rate provided in the mortgage, or, if no rate is
9    provided therein, at the statutory judgment rate, from the
10    date on which such advances are made;
11        (4) in order to protect the lien of the mortgage, it
12    may become necessary for plaintiff to pay taxes and
13    assessments which have been or may be levied upon the
14    mortgaged real estate;
15        (5) in order to protect and preserve the mortgaged real
16    estate, it may also become necessary for the plaintiff to
17    pay liability (protecting mortgagor and mortgagee), fire
18    and other hazard insurance premiums on the mortgaged real
19    estate, make such repairs to the mortgaged real estate as
20    may reasonably be deemed necessary for the proper
21    preservation thereof, advance for costs to inspect the
22    mortgaged real estate or to appraise it, or both, and
23    advance for premiums for pre-existing private or
24    governmental mortgage insurance to the extent required
25    after a foreclosure is commenced in order to keep such
26    insurance in force; and

 

 

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1        (6) under the terms of the mortgage, any money so paid
2    or expended will become an additional indebtedness secured
3    by the mortgage and will bear interest from the date such
4    monies are advanced at the rate provided in the mortgage,
5    or, if no rate is provided, at the statutory judgment rate.
6    (e) Request for Foreclosure. The request for foreclosure is
7deemed and construed to mean that the plaintiff requests that:
8        (1) an accounting may be taken under the direction of
9    the court of the amounts due and owing to the plaintiff;
10        (2) the defendants be ordered to pay to the plaintiff
11    before expiration of any redemption period (or, if no
12    redemption period, before a short date fixed by the court)
13    whatever sums may appear to be due upon the taking of such
14    account, together with attorneys' fees and costs of the
15    proceedings (to the extent provided in the mortgage or by
16    law);
17        (3) in default of such payment in accordance with the
18    judgment, the mortgaged real estate be sold as directed by
19    the court, to satisfy the amount due to the plaintiff as
20    set forth in the judgment, together with the interest
21    thereon at the statutory judgment rate from the date of the
22    judgment;
23        (4) in the event the plaintiff is a purchaser of the
24    mortgaged real estate at such sale, the plaintiff may
25    offset against the purchase price of such real estate the
26    amounts due under the judgment of foreclosure and order

 

 

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1    confirming the sale;
2        (5) in the event of such sale and the failure of any
3    person entitled thereto to redeem prior to such sale
4    pursuant to this Article, the defendants made parties to
5    the foreclosure in accordance with this Article, and all
6    nonrecord claimants given notice of the foreclosure in
7    accordance with this Article, and all persons claiming by,
8    through or under them, and each and any and all of them,
9    may be forever barred and foreclosed of any right, title,
10    interest, claim, lien, or right to redeem in and to the
11    mortgaged real estate; and
12        (6) if no redemption is made prior to such sale, a deed
13    may be issued to the purchaser thereat according to law and
14    such purchaser be let into possession of the mortgaged real
15    estate in accordance with Part 17 of this Article.
16    (f) Request for Deficiency Judgment. A request for a
17personal judgment for a deficiency in a foreclosure complaint
18if the sale of the mortgaged real estate fails to produce a
19sufficient amount to pay the amount found due, the plaintiff
20may have a personal judgment against any party in the
21foreclosure indicated as being personally liable therefor and
22the enforcement thereof be had as provided by law.
23    (g) Request for Possession or Receiver. A request for
24possession or appointment of a receiver has the meaning as
25stated in subsection (b) of Section 15-1706.
26    (h) Answers by Parties. Any party may assert its interest

 

 

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1by counterclaim and such counterclaim may at the option of that
2party stand in lieu of answer to the complaint for foreclosure
3and all counter complaints previously or thereafter filed in
4the foreclosure. Any such counterclaim shall be deemed to
5constitute a statement that the counter claimant does not have
6sufficient knowledge to form a belief as to the truth or
7falsity of the allegations of the complaint and all other
8counterclaims, except to the extent that the counterclaim
9admits or specifically denies such allegations.
10(Source: P.A. 97-1164, eff. 6-1-13.)
 
11    (735 ILCS 5/15-1507)  (from Ch. 110, par. 15-1507)
12    Sec. 15-1507. Judicial Sale.
13    (a) In General. Except as provided in Sections 15-1402 and
1415-1403, upon entry of a judgment of foreclosure, the real
15estate which is the subject of the judgment shall be sold at a
16judicial sale in accordance with this Section 15-1507.
17    (b) Sale Procedures. Upon expiration of the reinstatement
18period and the redemption period in accordance with subsection
19(b) or (c) of Section 15-1603 or upon the entry of a judgment
20of foreclosure after the waiver of all rights of redemption,
21except as provided in subsection (g) of Section 15-1506, the
22real estate shall be sold at a sale as provided in this
23Article, on such terms and conditions as shall be specified by
24the court in the judgment of foreclosure. A sale may be
25conducted by any judge or sheriff.

 

 

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1    (c) Notice of Sale. The mortgagee, or such other party
2designated by the court, in a foreclosure under this Article
3shall give public notice of the sale as follows:
4        (1) The notice of sale shall include at least the
5    following information, but an immaterial error in the
6    information shall not invalidate the legal effect of the
7    notice:
8            (A) the name, address and telephone number of the
9        person to contact for information regarding the real
10        estate;
11            (B) the common address and other common
12        description (other than legal description), if any, of
13        the real estate;
14            (C) a legal description of the real estate
15        sufficient to identify it with reasonable certainty;
16            (D) a description of the improvements on the real
17        estate;
18            (E) the times specified in the judgment, if any,
19        when the real estate may be inspected prior to sale;
20            (F) the time and place of the sale;
21            (G) the terms of the sale;
22            (H) the case title, case number and the court in
23        which the foreclosure was filed;
24            (H-1) in the case of a condominium unit to which
25        subsection (g) of Section 9 of the Condominium Property
26        Act applies, the statement required by subdivision

 

 

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1        (g)(5) of Section 9 of the Condominium Property Act;
2            (H-2) in the case of a unit of a common interest
3        community to which subsection (g-1) of Section 18.5 of
4        the Condominium Property Act applies, the statement
5        required by subdivision (g-1) of Section 18.5 of the
6        Condominium Property Act; and
7            (I) such other information ordered by the Court.
8        (2) The notice of sale shall be published at least 3
9    consecutive calendar weeks (Sunday through Saturday), once
10    in each week, the first such notice to be published not
11    more than 45 days prior to the sale, the last such notice
12    to be published not less than 7 days prior to the sale, by:
13    (i) (A) advertisements in a newspaper circulated to the
14    general public in the county in which the real estate is
15    located, in the section of that newspaper where legal
16    notices are commonly placed and (B) separate
17    advertisements in the section of such a newspaper, which
18    (except in counties with a population in excess of
19    3,000,000) may be the same newspaper, in which real estate
20    other than real estate being sold as part of legal
21    proceedings is commonly advertised to the general public;
22    provided, that the separate advertisements in the real
23    estate section need not include a legal description and
24    that where both advertisements could be published in the
25    same newspaper and that newspaper does not have separate
26    legal notices and real estate advertisement sections, a

 

 

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1    single advertisement with the legal description shall be
2    sufficient; and (ii) such other publications as may be
3    further ordered by the court.
4        (3) The party who gives notice of public sale in
5    accordance with subsection (c) of Section 15-1507 shall
6    also give notice to all parties in the action who have
7    appeared or filed an answer and have not theretofore been
8    found by the court to be in default for failure to plead.
9    Such notice shall be given in the manner provided in the
10    applicable rules of court for service of papers other than
11    process and complaint, not more than 45 days nor less than
12    7 days prior to the day of sale. After notice is given as
13    required in this Section a copy thereof shall be filed in
14    the office of the clerk of the court entering the judgment,
15    together with a certificate of counsel or other proof that
16    notice has been served in compliance with this Section.
17        (4) The party who gives notice of public sale in
18    accordance with subsection (c) of Section 15-1507 shall
19    again give notice in accordance with that Section of any
20    adjourned sale; provided, however, that if the adjourned
21    sale is to occur less than 60 days after the last scheduled
22    sale, notice of any adjourned sale need not be given
23    pursuant to this Section. In the event of adjournment, the
24    person conducting the sale shall, upon adjournment,
25    announce the date, time and place upon which the adjourned
26    sale shall be held. Notwithstanding any language to the

 

 

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1    contrary, for any adjourned sale that is to be conducted
2    more than 60 days after the date on which it was to first
3    be held, the party giving notice of such sale shall again
4    give notice in accordance with this Section.
5        (5) Notice of the sale may be given prior to the
6    expiration of any reinstatement period or redemption
7    period.
8        (6) No other notice by publication or posting shall be
9    necessary unless required by order or rule of the court.
10        (7) The person named in the notice of sale to be
11    contacted for information about the real estate may, but
12    shall not be required, to provide additional information
13    other than that set forth in the notice of sale.
14    (d) Election of Property. If the real estate which is the
15subject of a judgment of foreclosure is susceptible of
16division, the court may order it to be sold as necessary to
17satisfy the judgment. The court shall determine which real
18estate shall be sold, and the court may determine the order in
19which separate tracts may be sold.
20    (e) Receipt upon Sale. Upon and at the sale of mortgaged
21real estate, the person conducting the sale shall give to the
22purchaser a receipt of sale. The receipt shall describe the
23real estate purchased and shall show the amount bid, the amount
24paid, the total amount paid to date and the amount still to be
25paid therefor. An additional receipt shall be given at the time
26of each subsequent payment.

 

 

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1    (f) Certificate of Sale. Upon payment in full of the amount
2bid, the person conducting the sale shall issue, in duplicate,
3and give to the purchaser a Certificate of Sale. The
4Certificate of Sale shall be in a recordable form, describe the
5real estate purchased, indicate the date and place of sale and
6show the amount paid therefor. The Certificate of Sale shall
7further indicate that it is subject to confirmation by the
8court. The duplicate certificate may be recorded in accordance
9with Section 12-121. The Certificate of Sale shall be freely
10assignable by endorsement thereon.
11    (g) Interest after Sale. Any bid at sale shall be deemed to
12include, without the necessity of a court order, interest at
13the statutory judgment rate on any unpaid portion of the sale
14price from the date of sale to the date of payment.
15(Source: P.A. 96-1045, eff. 7-14-10.)
 
16    Section 10. The Conveyances Act is amended by changing
17Sections 28 and 30 as follows:
 
18    (765 ILCS 5/28)  (from Ch. 30, par. 27)
19    Sec. 28. Deeds, mortgages, powers of attorney, and other
20instruments relating to or affecting the title to real estate
21in this state, shall be recorded in the recorder's office in
22the county in which such real estate is situated; but if such
23county is not organized, then in the county to which such
24unorganized county is attached for judicial purposes. No deed,

 

 

SB1728- 50 -LRB098 09930 HEP 40088 b

1mortgage, assignment of mortgage, or other instrument relating
2to or affecting the title to real estate in this State may
3include a provision prohibiting the recording of that
4instrument, and any such provision in an instrument signed
5after the effective date of this amendatory Act shall be void
6and of no force and effect.
7(Source: P.A. 89-160, eff. 7-19-95.)
 
8    (765 ILCS 5/30)  (from Ch. 30, par. 29)
9    Sec. 30. Effect of recording. All deeds, mortgages,
10assignments, mortgage releases, mortgage modifications, land
11equity loans, liens, lis pendens, memoranda of judgment, and
12other instruments in of writing that affect interests in real
13property and that which are authorized to be recorded, shall
14take effect and be in force from and after the time of filing
15the same for record, and not before, as to all creditors and
16subsequent purchasers, without notice; and all these such deeds
17and title papers shall be adjudged void as to all such
18creditors and subsequent purchasers, without notice, until the
19same shall be filed for record with the recorder's office in
20the county in which the property is located.
21(Source: Laws 1871-2, p. 282.)
 
22    Section 95. No acceleration or delay. Where this Act makes
23changes in a statute that is represented in this Act by text
24that is not yet or no longer in effect (for example, a Section

 

 

SB1728- 51 -LRB098 09930 HEP 40088 b

1represented by multiple versions), the use of that text does
2not accelerate or delay the taking effect of (i) the changes
3made by this Act or (ii) provisions derived from any other
4Public Act.
 
5    Section 99. Effective date. This Act takes effect upon
6becoming law, except that Sec. 15-1502.6 of Section 5 takes
7effect on January 1, 2014.