Illinois General Assembly - Full Text of HB0838
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Full Text of HB0838  95th General Assembly


Judiciary I - Civil Law Committee

Filed: 3/12/2008





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2     AMENDMENT NO. ______. Amend House Bill 838 by replacing
3 everything after the enacting clause with the following:
4     "Section 5. The Code of Civil Procedure is amended by
5 changing Sections 15-1504 and 15-1510 and by adding Sections
6 15-1504.5 and 15-1505.5 as follows:
7     (735 ILCS 5/15-1504)  (from Ch. 110, par. 15-1504)
8     Sec. 15-1504. Pleadings and service.
9     (a) Form of Complaint. A copy of the mortgage and note
10 secured thereby must be attached to the foreclosure complaint.
11 If any note required to be attached to a complaint filed
12 pursuant to this subsection (a) of Section 15-1504 of this Code
13 cannot be located for filing as an exhibit after due diligence
14 by the moving party of such a complaint, the moving party must
15 file an affidavit stating the following:
16         (i) All the holders of the note;



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1         (ii) The time each note holder held the note identified
2     by the day, month, and year; and
3         (iii) The reasonable efforts made by the moving party
4     to obtain the note.
5     A foreclosure complaint may be in substantially the
6 following form:
7         (1) Plaintiff files this complaint to foreclose the
8     mortgage (or other conveyance in the nature of a mortgage)
9     (hereinafter called "mortgage") hereinafter described and
10     joins the following person as defendants: (here insert
11     names of all defendants).
12         (2) Attached as Exhibit "A" is a copy of the mortgage
13     and as Exhibit "B" is a copy of the note secured thereby.
14         (3) Information concerning mortgage:
15             (A) Nature of instrument: (here insert whether a
16         mortgage, trust deed or other instrument in the nature
17         of a mortgage, etc.)
18             (B) Date of mortgage:
19             (C) Name of mortgagor:
20             (D) Name of mortgagee:
21             (E) Date and place of recording:
22             (F) Identification of recording: (here insert book
23         and page number or document number)
24             (G) Interest subject to the mortgage: (here insert
25         whether fee simple, estate for years, undivided
26         interest, etc.)



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



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1         of foreclosure, if sought (here indicate whether based
2         upon the real estate not being residential,
3         abandonment, or real estate value less than 90% of
4         amount owed, etc.):
5             (P) Statement that the right of redemption has been
6         waived by all owners of redemption, if applicable:
7             (Q) Facts in support of request for attorneys' fees
8         and of costs and expenses, if applicable:
9             (R) Facts in support of a request for appointment
10         of mortgagee in possession or for appointment of
11         receiver, and identity of such receiver, if sought:
12             (S) Offer to mortgagor in accordance with Section
13         15-1402 to accept title to the real estate in
14         satisfaction of all indebtedness and obligations
15         secured by the mortgage without judicial sale, if
16         sought:
17             (T) Name or names of defendants whose right to
18         possess the mortgaged real estate, after the
19         confirmation of a foreclosure sale, is sought to be
20         terminated and, if not elsewhere stated, the facts in
21         support thereof:
23     Plaintiff requests:
24         (i) A judgment of foreclosure and sale.
25         (ii) An order granting a shortened redemption period,



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



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



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1     declare the indebtedness due and payable or other notices
2     required to be given have been duly and properly given;
3         (10) that any and all periods of grace or other period
4     of time allowed for the performance of the covenants or
5     conditions claimed to be breached or for the curing of any
6     breaches have expired;
7         (11) that the amounts indicated in the statement in the
8     complaint are correctly stated and if such statement
9     indicates any advances made or to be made by the plaintiff
10     or owner of the mortgage indebtedness, that such advances
11     were, in fact, made or will be required to be made, and
12     under and by virtue of the mortgage the same constitute
13     additional indebtedness secured by the mortgage; and
14         (12) that, upon confirmation of the sale, the holder of
15     the certificate of sale or deed issued pursuant to that
16     certificate or, if no certificate or deed was issued, the
17     purchaser at the sale will be entitled to full possession
18     of the mortgaged real estate against the parties named in
19     clause (T) of paragraph (3) of subsection (a) of Section
20     15-1504 or elsewhere to the same effect; the omission of
21     any party indicates that plaintiff will not seek a
22     possessory order in the order confirming sale unless the
23     request is subsequently made under subsection (h) of
24     Section 15-1701 or by separate action under Article 9 of
25     this Code.
26     (d) Request for Fees and Costs. A statement in the



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



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



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



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



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1 falsity of the allegations of the complaint and all other
2 counterclaims, except to the extent that the counterclaim
3 admits or specifically denies such allegations.
4 (Source: P.A. 91-357, eff. 7-29-99.)
5     (735 ILCS 5/15-1504.5 new)
6     Sec. 15-1504.5. Notice with complaint. For all residential
7 foreclosure actions filed, the plaintiff must attach a notice
8 to the summons and complaint that specifies to the defendant
9 mortgagor his or her statutory right to maintain homeownership
10 during the pendency of the foreclosure action. The notice must
11 be in substantially the following form:
12     a. As a homeowner, you have the following rights during the
13 foreclosure proceedings:
14         1. POSSESSION: The lawful occupants may be able to live
15     in the house until a judge enters an order of eviction.
16         2. OWNERSHIP: You may have the right to sell the house
17     or refinance the mortgage during the redemption period.
18         3. REINSTATEMENT: You may have the right to bring the
19     mortgage current within 90 days after you receive this
20     Summons.
21         4. REDEMPTION: You may have the right to pay off the
22     loan during the redemption period.
23         5. SURPLUS: You have the right to petition for any
24     excess money that results from a foreclosure sale of the
25     house.



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1         6. WORKOUT OPTIONS: The mortgage company does not want
2     to foreclosure the mortgage if there is any way to avoid
3     it. Call the mortgage company or its attorneys to find out
4     the alternatives to foreclosure.
5         7. GET ADVICE: This information is not exhaustive and
6     does not replace the advice of a professional. You may have
7     other options. Get professional advice from a lawyer or
8     certified housing counselor about your rights and options
9     to avoid foreclosure.
10         8. A LAWYER: If you do not have a lawyer, and are
11     unable to afford one, you may be able to find assistance by
12     contacting Illinois Legal Aid or the Illinois State Bar
13     Association.
14         9. PROCEED WITH CAUTION: You may be contacted by people
15     offering to help you to avoid foreclosure. The Illinois
16     Mortgage Rescue Act provides you some protections in these
17     situations. Please follow these precautions:
18             a. Get legal advice before entering into any deal
19         involving your house.
20             b. Get legal advice before you pay money to any
21         person offering to help you avoid foreclosure.
22             c. Do not sign any papers you do not understand.
23     (735 ILCS 5/15-1505.5 new)
24     Sec. 15-1505.5. Payoff demands.
25     (a) On the written demand of a mortgagor or the mortgagor's



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1 authorized agent, a mortgagee or the mortgagee's authorized
2 agent shall prepare and deliver a payoff demand statement to
3 the mortgagor or the mortgagor's authorized agent who has
4 requested it within 5 business days after receipt of the
5 demand.
6     (b) The payoff demand statement shall provide the amounts
7 required as of the date of preparation and shall include the
8 information reasonably necessary to calculate the payoff
9 amount on a per diem basis for the time that the per diem
10 amount remains unchanged as provided in the note but not to
11 exceed 30 days. The payoff demand statement shall also include
12 the loan number for the obligation to be paid, the address of
13 the mortgagee, the telephone number of the mortgagee and, if a
14 banking organization or corporation, the name of the
15 department, and its telephone number and facsimile phone
16 number.
17     (c) The mortgagor or the mortgagor's authorized agent may
18 rely on a payoff demand statement for the purpose of
19 establishing the amount necessary to pay the obligation in full
20 and obtain a release of the mortgage or deed of trust that
21 secures the obligation through and including the time set forth
22 in the payoff demand statement.
23     (d) Any sums that were due the mortgagee or the mortgagee's
24 authorized agent that were not included in the payoff demand
25 statement or in any amended statement constitute an unsecured
26 obligation of the mortgagor pursuant to the terms of the note



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1 and are recoverable by the mortgagee or mortgagee's agent
2 pursuant to the terms of the note and as otherwise provided by
3 law.
4     (e) A mortgagee or mortgagee's agent who willfully fails to
5 prepare and deliver a payoff demand statement within 5 business
6 days after receipt of a written demand is liable to the
7 mortgagor for actual damages sustained for failure to deliver
8 the statement. The mortgagee or mortgagee's agent is liable to
9 the mortgagor for $500 if no actual damages are sustained. Each
10 failure of the mortgagee to prepare and deliver the payoff
11 demand statement when required to do so pursuant to this
12 Section constitutes a separate cause of action. For purposes of
13 this subsection, "willfully" means a failure to comply with
14 this Section without just cause or excuse.
15     (f) Unless the payoff demand statement provides otherwise,
16 the statement is deemed to apply only to the unpaid balance of
17 the single obligation that is named in the demand and that is
18 secured by the mortgage or deed of trust identified in the
19 payoff demand statement.
20     (g) The demand for and preparation and delivery of a payoff
21 demand statement pursuant to this Section does not change any
22 date or time period that is prescribed in the note or that is
23 otherwise provided by law.
24     (h) The mortgagee or mortgagee's agent may assess a fee of
25 no more than $10 for furnishing each payoff demand statement.
26 This is conclusively presumed to be reasonable.



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1     (i) For the purposes of this Section, unless the context
2 otherwise requires:
3         (1) "Deliver" or "delivery" means depositing or
4     causing to be deposited into the United States mail an
5     envelope with postage prepaid that contains a copy of the
6     documents to be delivered and that is addressed to the
7     person whose name and address are provided in the payoff
8     demand. Delivery may also include transmitting those
9     documents by telephone facsimile to the person or
10     electronically if the payoff demand specifically requests
11     and authorizes that the documents be transmitted in
12     electronic form.
13         (2) "Payoff demand" means a written demand for a payoff
14     demand statement made by the mortgagor or the mortgagor's
15     authorized agent.
16         (3) "Payoff demand statement" means a written
17     statement that is prepared in response to a written demand
18     made by a mortgagee or the mortgagee's authorized agent
19     that sets forth the amounts required by the beneficiary to
20     fully satisfy all of the obligations secured by the loan
21     that is the subject of the demand.
22     (735 ILCS 5/15-1510)  (from Ch. 110, par. 15-1510)
23     Sec. 15-1510. Attorney's Fees and Costs by Written
24 Agreement. The court may award reasonable attorney's fees and
25 costs to the prevailing party in the foreclosure action.



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1 Attorneys' fees and other costs incurred in connection with the
2 preparation, filing or prosecution of the foreclosure suit
3 shall be recoverable in a foreclosure only to the extent
4 specifically set forth in the mortgage or other written
5 agreement between the mortgagor and the mortgagee or as
6 otherwise provided in this Article.
7 (Source: P.A. 86-974.)
8     Section 99. Effective date. This Act takes effect January
9 1, 2009.".