Full Text of HB3863 96th General Assembly
HB3863eng 96TH GENERAL ASSEMBLY
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| AN ACT concerning civil law.
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| Be it enacted by the People of the State of Illinois,
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| represented in the General Assembly:
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| Section 5. The Code of Civil Procedure is amended by | 5 |
| changing Sections 15-1701, 15-1703, and 15-1704 and by adding | 6 |
| Sections 15-1202.5 and 15-1508.5 as follows: | 7 |
| (735 ILCS 5/15-1202.5 new)
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| Sec. 15-1202.5. Dwelling Unit. "Dwelling unit" means a room | 9 |
| or suite of rooms providing complete, independent living | 10 |
| facilities for at least one person, including permanent | 11 |
| provisions for sanitation, cooking, eating, sleeping, and | 12 |
| other activities routinely associated with daily life. | 13 |
| (735 ILCS 5/15-1508.5 new)
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| Sec. 15-1508.5. Notice by holder or purchaser to occupants | 15 |
| of mortgaged real estate. | 16 |
| (a) The holder of the certificate of sale or deed issued | 17 |
| pursuant to that certificate or, if no certificate or deed was | 18 |
| issued, the purchaser, shall: | 19 |
| (1) following the judicial sale under Section 15-1507, | 20 |
| but not later than 14 days after the confirmation of sale | 21 |
| under Section 15-1508, make a good faith effort to | 22 |
| ascertain the identities and addresses of all occupants of |
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| dwelling units of the mortgaged real estate; and | 2 |
| (2) following the order confirming sale under Section | 3 |
| 15-1508, but not later than 21 days after the order | 4 |
| confirming sale, notify all known occupants of dwelling | 5 |
| units of the mortgaged real estate that he or she has | 6 |
| acquired the mortgaged real estate, including any | 7 |
| occupants identified as a result of the good faith effort | 8 |
| required under this subsection. The holder or purchaser is | 9 |
| not required to provide the notice required by this Section | 10 |
| to a mortgagor or party against whom an order of possession | 11 |
| has been entered authorizing the removal of the mortgagor | 12 |
| or party pursuant to Section 15-1508(g). | 13 |
| (b) The notice required under subsection (a)(2) shall be in | 14 |
| writing and shall: | 15 |
| (1) identify the occupant being served by name; | 16 |
| (2) inform the occupant that the mortgaged real estate | 17 |
| is the subject of a foreclosure action and that control of | 18 |
| the mortgaged real estate has changed; | 19 |
| (3) provide the name, address, and telephone number of | 20 |
| the individual or entity whom occupants may contact with | 21 |
| concerns about the mortgaged real estate or to request | 22 |
| repairs of that property; | 23 |
| (4) include the following language, or language that is | 24 |
| substantially similar:
"This is NOT a notice to vacate the | 25 |
| premises. You will receive additional notice if your lease | 26 |
| or rental agreement is being terminated. You may wish to |
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| contact a lawyer or your local legal aid or housing | 2 |
| counseling agency to discuss any rights that you may | 3 |
| have."; and | 4 |
| (5) attach a copy of the order confirming sale or other | 5 |
| court order that indicates the holder or purchaser has | 6 |
| acquired the mortgaged real estate. | 7 |
| (c) The written notice required by subsection (a)(2) shall | 8 |
| be served: by delivering a copy to the known occupant, or by | 9 |
| leaving the same with some person of the age of 13 years or | 10 |
| older, who is residing on or in possession of the premises; or | 11 |
| by sending a copy of the notice to the known occupant by | 12 |
| first-class mail, addressed to the occupant by name. | 13 |
| (d) In the event that the holder or purchaser ascertains | 14 |
| the identity and address of an occupant of a dwelling unit of | 15 |
| the mortgaged real estate more than 14 days after the | 16 |
| confirmation of sale under Section 15-1508, the holder or | 17 |
| purchaser shall provide the notice required by subsection | 18 |
| (a)(2) within 7 days of ascertaining the identity and address | 19 |
| of the occupant. | 20 |
| (e)(i) A holder or purchaser who fails to comply with | 21 |
| subsections (a), (b), (c), and (d) may not collect any rent due | 22 |
| and owing from a known occupant, or terminate a known | 23 |
| occupant's tenancy for non-payment of such rent, until the | 24 |
| holder or purchaser has served the notice described in | 25 |
| subsection (a)(2) of this Section 15-1508.5 upon the occupant. | 26 |
| The provisions of this subsection shall be the exclusive remedy |
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| for the failure of a holder or purchaser to provide notice | 2 |
| under this Section. | 3 |
| (ii) An occupant who previously paid rent for the current | 4 |
| rental period to the mortgagor, or other entity with the | 5 |
| authority to operate, manage, and conserve the mortgaged real | 6 |
| estate at the time of payment, shall not be held liable for | 7 |
| that rent by the holder or purchaser, and the occupant's | 8 |
| tenancy shall not be terminated for non-payment of rent for | 9 |
| that rental period. | 10 |
| (f) Following the confirmation of sale, a holder or | 11 |
| purchaser may request, in writing, a copy of the lease or | 12 |
| rental agreement of an occupant who has been served the notice | 13 |
| prescribed in subsection (a)(2) of this Section, or the notice | 14 |
| prescribed in subsection (a-5)(2) of Section 15-1703. An | 15 |
| occupant who has received a request shall provide the holder or | 16 |
| purchaser with a copy of any lease or rental agreement, or make | 17 |
| such lease or rental agreement available for duplication to the | 18 |
| holder or purchaser, within 14 days of receiving the request. | 19 |
| In the event that there is no written lease or rental | 20 |
| agreement, or if the occupant cannot produce such agreement, | 21 |
| the occupant may provide a statement, verbally or in writing, | 22 |
| about the terms of his or her possession of the unit, including | 23 |
| the term of the tenancy, the amount of periodic rental | 24 |
| payments, if any, and when rent is due. An occupant shall not | 25 |
| unreasonably withhold information requested by a holder or | 26 |
| purchaser under this subsection. A holder or purchaser shall |
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| include the following in a request under this subsection: (1) | 2 |
| the specific information or documentation requested; (2) a | 3 |
| mailing address, an electronic mail address if available, and a | 4 |
| telephone number for responses to the request; (3) that the | 5 |
| occupant shall respond within 14 days of receiving the request. | 6 |
| The request under this subsection shall be served in the same | 7 |
| manner described in subsection (c) of this Section, and may be | 8 |
| served concurrently with the notice required under subsection | 9 |
| (a)(2) of this Section. An occupant's failure to comply with | 10 |
| the requirements of this subsection shall create the rebuttable | 11 |
| presumption, in a proceeding under Section 15-1701(h)(1), that | 12 |
| the term of the occupant's current leasehold interest is not | 13 |
| more than 30 days. | 14 |
| (g) Within 14 days of the confirmation of sale under | 15 |
| Section 15-1508, the holder or purchaser shall post a written | 16 |
| notice on the primary entrance of each dwelling unit subject to | 17 |
| the foreclosure action. This notice shall: | 18 |
| (1) inform the occupant that the dwelling unit is the | 19 |
| subject of a foreclosure action and that control of the | 20 |
| mortgaged real estate has changed; | 21 |
| (2) include the following language: "This is NOT a | 22 |
| notice to vacate the premises."; and | 23 |
| (3) provide the name, address, and telephone number of | 24 |
| the individual or entity whom occupants may contact with | 25 |
| concerns about the mortgaged real estate or to request | 26 |
| repairs of the property. |
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| (h) In the event that the holder or purchaser is a | 2 |
| mortgagee in possession of the mortgaged real estate pursuant | 3 |
| to Section 15-1703 at the time of the confirmation of sale and | 4 |
| has complied with requirements of subsection (a-5) of Section | 5 |
| 15-1703, the holder or purchaser is excused from the | 6 |
| requirements of subsections (a) and (g) of this Section | 7 |
| 15-1508.5.
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| (735 ILCS 5/15-1701) (from Ch. 110, par. 15-1701)
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| Sec. 15-1701. Right to possession.
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| (a) General. The provisions of
this Article shall govern | 11 |
| the right to possession of the mortgaged real
estate during | 12 |
| foreclosure. Possession under this Article includes physical
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| possession of the mortgaged real estate to the same extent to | 14 |
| which the
mortgagor, absent the foreclosure, would have been | 15 |
| entitled to physical
possession. For the purposes of Part 17, | 16 |
| real estate is residential real estate
only if it is | 17 |
| residential real estate at the time the foreclosure is | 18 |
| commenced.
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| (b) Pre-Judgment. Prior to the entry of a judgment of | 20 |
| foreclosure:
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| (1) In the case of residential real estate, the | 22 |
| mortgagor shall be
entitled to possession of the real | 23 |
| estate except if (i) the mortgagee shall
object and show | 24 |
| good cause, (ii) the mortgagee is so authorized by the | 25 |
| terms of
the mortgage or other written instrument, and |
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| (iii) the court is satisfied that
there is a reasonable | 2 |
| probability that the mortgagee will prevail on a final
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| hearing of the cause, the court shall upon request place | 4 |
| the mortgagee in
possession. If the residential real estate | 5 |
| consists of more than one dwelling
unit, then for the | 6 |
| purpose of this Part residential real estate shall mean | 7 |
| only
that dwelling unit or units occupied by persons | 8 |
| described in clauses (i), (ii)
and (iii) of Section | 9 |
| 15-1219.
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| (2) In all other cases, if (i) the mortgagee is so | 11 |
| authorized by the
terms of the mortgage or other written | 12 |
| instrument, and (ii) the court is
satisfied that there is a | 13 |
| reasonable probability that the mortgagee will
prevail on a | 14 |
| final hearing of the cause, the mortgagee shall
upon | 15 |
| request be placed in possession of the real estate, except | 16 |
| that if the
mortgagor shall object and show good cause, the | 17 |
| court shall allow the
mortgagor to remain in possession.
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| (c) Judgment Through 30 Days After Sale Confirmation. After | 19 |
| the entry
of a judgment of foreclosure and through the 30th day | 20 |
| after a foreclosure
sale is confirmed:
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| (1) Subsection (b) of Section 15-1701 shall be | 22 |
| applicable, regardless of
the provisions of the mortgage or | 23 |
| other instrument, except that after a
sale pursuant to the | 24 |
| judgment the holder of the certificate of sale
(or, if | 25 |
| none, the purchaser at the sale) shall have the mortgagee's | 26 |
| right to be
placed in possession, with all rights and |
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| duties of a mortgagee in possession
under this Article.
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| (2) Notwithstanding paragraph (1) of subsection (b) | 3 |
| and paragraph (1) of
subsection (c) of Section 15-1701, | 4 |
| upon request of the mortgagee, a mortgagor
of residential | 5 |
| real estate shall not be allowed to remain in possession | 6 |
| between
the expiration of the redemption period and through | 7 |
| the 30th day after sale
confirmation unless (i) the | 8 |
| mortgagor pays to the mortgagee or such holder or
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| purchaser, whichever is applicable, monthly the lesser of | 10 |
| the interest due
under the mortgage calculated at the | 11 |
| mortgage rate of interest applicable as if
no default had | 12 |
| occurred or the fair rental value of the real estate, or | 13 |
| (ii)
the mortgagor otherwise shows good cause. Any amounts | 14 |
| paid by the mortgagor
pursuant to this subsection shall be | 15 |
| credited against the amounts due from the
mortgagor.
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| (d) After 30 Days After Sale Confirmation. The holder of
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| the certificate of sale or deed issued pursuant to that | 18 |
| certificate or, if
no certificate or deed was issued, the | 19 |
| purchaser, except to the extent the
holder or purchaser may | 20 |
| consent otherwise, shall be entitled to possession of
the | 21 |
| mortgaged real estate, as of the date 30 days after the order | 22 |
| confirming
the sale is entered, against those parties to the | 23 |
| foreclosure whose interests
the court has ordered terminated, | 24 |
| without further notice to any party, further
order of the | 25 |
| court, or resort to proceedings under any other statute other | 26 |
| than
this Article.
This right to possession shall be limited by |
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| the provisions
governing entering and enforcing orders of | 2 |
| possession under subsection (g) of
Section
15-1508.
If the | 3 |
| holder or purchaser determines that there are occupants
of the | 4 |
| mortgaged real estate who have not been made parties to the | 5 |
| foreclosure
and had their interests terminated therein, the | 6 |
| holder or purchaser may bring a
proceeding under subsection (h) | 7 |
| of this Section or under Article 9 of this Code
to terminate | 8 |
| the rights of possession of any such occupants. The holder or
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| purchaser shall not be entitled to proceed against any such | 10 |
| occupant under
Article 9 of this Code until after 30 days after | 11 |
| the order confirming the sale
is entered. Following the | 12 |
| confirmation of sale and until the right of possession of an | 13 |
| occupant of a dwelling unit of the mortgaged real estate has | 14 |
| been terminated, the holder or purchaser shall: (i) maintain | 15 |
| any essential utility services that had been the obligation of | 16 |
| the mortgagor, receiver, or mortgagee in possession prior to | 17 |
| the order confirming sale; (ii) maintain the mortgaged real | 18 |
| estate in the same physical condition as had been the | 19 |
| obligation of the mortgagor, receiver, or mortgagee in | 20 |
| possession prior to the confirmation of sale; and (iii) | 21 |
| maintain the mortgaged real estate in compliance with the | 22 |
| requirements of State and local law. Nothing in this subsection | 23 |
| shall prohibit the holder or purchaser and an occupant from | 24 |
| entering into a new lease agreement that changes their | 25 |
| respective utility obligations.
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| (e) Termination of Leases. A lease of all or any part of |
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| the mortgaged
real estate shall not be terminated automatically | 2 |
| solely by virtue of the entry
into possession by (i) a | 3 |
| mortgagee or receiver prior to the entry of an order
confirming | 4 |
| the sale, (ii) the holder of the certificate of sale, (iii) the
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| holder of the deed issued pursuant to that certificate, or (iv) | 6 |
| if no
certificate or deed was issued, the purchaser at the | 7 |
| sale.
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| (f) Other Statutes; Instruments. The provisions of this | 9 |
| Article
providing for possession of mortgaged real estate shall | 10 |
| supersede any other
inconsistent statutory provisions. In | 11 |
| particular, and without limitation,
whenever a receiver is | 12 |
| sought to be appointed in any action in which a
foreclosure is | 13 |
| also pending, a receiver shall be appointed only in
accordance | 14 |
| with this Article. Except as may be authorized by this Article,
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| no mortgage or other instrument may modify or supersede the | 16 |
| provisions of this
Article.
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| (g) Certain Leases. Leases of the mortgaged real estate | 18 |
| entered into by
a mortgagee in possession or a receiver and | 19 |
| approved by the court in a
foreclosure shall be binding on all | 20 |
| parties, including the mortgagor after
redemption, the | 21 |
| purchaser at a sale pursuant to a judgment of foreclosure
and | 22 |
| any person acquiring an interest in the mortgaged real estate | 23 |
| after
entry of a judgment of foreclosure in accordance with | 24 |
| Sections 15-1402 and
15-1403.
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| (h) Proceedings Against Certain Occupants.
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| (1) The mortgagee-in-possession of the mortgaged real |
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| estate under Section
15-1703, a receiver appointed under | 2 |
| Section 15-1704, a holder of the
certificate of sale or | 3 |
| deed, or the purchaser may, at any time during the
pendency | 4 |
| of the foreclosure and up to 90 days after the date of the | 5 |
| order
confirming the sale,
file a supplemental petition for | 6 |
| possession against a person not personally
named as a party
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| to the foreclosure. The supplemental petition for | 8 |
| possession shall name each such
occupant against whom | 9 |
| possession is sought and state the facts upon which the
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| claim for relief is premised.
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| (2) The petitioner shall serve upon each named occupant | 12 |
| the petition,
a notice of hearing on the petition, and, if | 13 |
| any, a copy of the certificate of
sale or deed. The | 14 |
| proceeding for the termination of such occupant's | 15 |
| possessory
interest, including service of the notice of the | 16 |
| hearing and the petition,
shall in all respects comport | 17 |
| with the requirements of Article 9 of this Code,
except as | 18 |
| otherwise specified in this Section. The hearing shall be | 19 |
| no less
than 21 days from the date of service of the | 20 |
| notice.
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| (3) The supplemental petition shall be heard as part of | 22 |
| the foreclosure
proceeding and without the payment of | 23 |
| additional filing fees. An order for
possession obtained | 24 |
| under this Section shall name each occupant whose interest
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| has been terminated, shall recite that it is only effective | 26 |
| as to the occupant
so named and those holding under them, |
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| and shall be enforceable for no more
than 90 days after its | 2 |
| entry, except that the 90-day period may be extended to
the | 3 |
| extent and in the manner provided in Section 9-117 of | 4 |
| Article 9 and except as provided in item (4) of this | 5 |
| subsection (h). | 6 |
| (4) In a case of foreclosure where the occupant tenant | 7 |
| is current on his or her rent, or where timely written | 8 |
| notice of to whom and where the rent is to be paid has not | 9 |
| been provided to the occupant tenant , or where the occupant | 10 |
| tenant has made good-faith efforts to make rental payments | 11 |
| in order to keep current, any order of possession must | 12 |
| allow the occupant tenant to retain possession of the | 13 |
| property covered in his or her rental agreement (i) for 120 | 14 |
| days following the notice of the hearing on the | 15 |
| supplemental petition that has been properly served upon | 16 |
| the occupant, or through the duration of his or her lease, | 17 |
| whichever is shorter, but in no event less than 30 days | 18 |
| after entry of the order of possession. A mortgagee in | 19 |
| possession, receiver, or holder of a certificate of sale or | 20 |
| deed, or purchaser at the judicial sale who asserts that | 21 |
| the occupant is not current in rent at the time the | 22 |
| supplemental petition is filed shall attach an affidavit to | 23 |
| that effect to the supplemental petition. If the occupant | 24 |
| the tenant, or (ii) through the duration of his or her | 25 |
| lease, whichever is shorter. If the tenant has been given | 26 |
| timely written notice of to whom and where the rent is to |
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| be paid, this item (4) shall only apply if the occupant | 2 |
| tenant continues to pay his or her rent in full during the | 3 |
| 120-day period or has made good-faith efforts to pay the | 4 |
| rent in full during that period.
No | 5 |
| mortgagee-in-possession, receiver or holder of a | 6 |
| certificate of sale or deed, or purchaser who fails to file | 7 |
| a supplemental petition under this subsection during the | 8 |
| pendency of a mortgage foreclosure shall file a forcible | 9 |
| entry and detainer action against an occupant a tenant of | 10 |
| the mortgaged real estate until 90 days after a notice of | 11 |
| intent to file such action has been properly served upon | 12 |
| the occupant tenant . | 13 |
| (5) The court records relating to a supplemental | 14 |
| petition for possession filed under this subsection (h) | 15 |
| against a tenant who is entitled to notice under item (4) | 16 |
| of this subsection (h), or relating to a forcible entry and | 17 |
| detainer action brought against a tenant who would have | 18 |
| lawful possession of the premises but for the foreclosure | 19 |
| of a mortgage on the property, shall be ordered sealed and | 20 |
| shall not be disclosed to any person, other than a law | 21 |
| enforcement officer or any other representative of a | 22 |
| governmental entity, except upon further order of the | 23 |
| court.
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| (Source: P.A. 95-262, eff. 1-1-08; 95-933, eff. 8-26-08.)
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| (735 ILCS 5/15-1703) (from Ch. 110, par. 15-1703)
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| Sec. 15-1703. Mortgagee in Possession. (a) Powers and | 2 |
| Duties. A mortgagee
placed in possession of the real estate | 3 |
| pursuant to Section 15-1701 or Section
15-1702 shall have:
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| (1) such power and authority with respect to the real | 5 |
| estate and other
property subject to the mortgage, including | 6 |
| the right to receive the rents,
issues and profits thereof, as | 7 |
| may have been conferred upon the mortgagee
by the terms of the | 8 |
| mortgage or other written instrument authorizing the
taking of | 9 |
| possession;
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| (2) all other rights and privileges of a mortgagee in | 11 |
| possession under
law not inconsistent herewith; and
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| (3) the same powers, duties and liabilities as a receiver | 13 |
| appointed for
the real estate in accordance with this Article. | 14 |
| If an order placing a
mortgagee in possession is modified, | 15 |
| revoked or set aside, the mortgagee
shall not be liable for any | 16 |
| damages to the extent such damages arise
solely out of the fact | 17 |
| that the mortgagor was removed from possession or
that the | 18 |
| mortgagee was placed in possession.
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| (a-5) Notice to occupants. | 20 |
| (1) Within 14 days of taking possession of the | 21 |
| mortgaged real estate, the mortgagee in possession shall | 22 |
| make a good faith effort to ascertain the identities and | 23 |
| addresses of all occupants of dwelling units of the | 24 |
| mortgaged real estate. | 25 |
| (2) Within 21 days of taking possession of the | 26 |
| mortgaged real estate, the mortgagee in possession shall |
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| notify all known occupants of dwelling units of the | 2 |
| mortgaged real estate, including any occupants identified | 3 |
| as a result of the good faith effort required under this | 4 |
| subsection, that he or she has taken possession of the | 5 |
| mortgaged real estate. The notice shall be in writing and | 6 |
| shall: | 7 |
| (i) identify the occupant being served by name; | 8 |
| (ii) inform the occupant that the mortgaged real | 9 |
| estate is the subject of a foreclosure action and that | 10 |
| control of the mortgaged real estate has changed; | 11 |
| (iii) provide the name, address, and telephone | 12 |
| number of the individual or entity whom occupants may | 13 |
| contact with concerns about the mortgaged real estate | 14 |
| or to request repairs of that property; | 15 |
| (iv) include the following language, or language | 16 |
| that is substantially similar: | 17 |
| "This is NOT a notice to vacate the premises. You | 18 |
| will receive additional notice if your lease or rental | 19 |
| agreement is being terminated. You may wish to contact | 20 |
| a lawyer or your local legal aid or housing counseling | 21 |
| agency to discuss any rights that you may have." | 22 |
| (v) attach a copy of the court order placing the | 23 |
| mortgagee in possession of the mortgaged real estate. | 24 |
| (3) The written notice required by item (2) of this | 25 |
| subsection (a-5) shall be served: by delivering a copy | 26 |
| thereof to the known occupant, or by leaving the same with |
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| some person of the age of 13 years or older, who is | 2 |
| residing on or in possession of the premises; or by sending | 3 |
| a copy of the notice to the known occupant by first-class | 4 |
| mail, addressed to the occupant by name. | 5 |
| (4) In the event that a mortgagee in possession | 6 |
| ascertains the identity and address of an occupant of a | 7 |
| dwelling unit of the mortgaged real estate more than 14 | 8 |
| days after taking possession of the mortgaged real estate, | 9 |
| the mortgagee in possession shall provide the notice | 10 |
| required by subsection (a-5)(2) within 7 days of | 11 |
| ascertaining the identity and address of the occupant. | 12 |
| (5)(i) A mortgagee in possession who fails to comply | 13 |
| with items (2), (3), and (4) of this subsection (a-5) may | 14 |
| not collect any rent due and owing from a known occupant, | 15 |
| or terminate a known occupant's tenancy for non-payment of | 16 |
| such rent, until the mortgagee in possession has served the | 17 |
| notice described in item (2) of this subsection (a-5) upon | 18 |
| the occupant. The provisions of this subsection shall be | 19 |
| the exclusive remedy for the failure of a mortgagee in | 20 |
| possession to provide notice under this Section. | 21 |
| (ii) An occupant who previously paid rent for the | 22 |
| current rental period to the mortgagor, or other entity | 23 |
| with the authority to operate, manage, and conserve the | 24 |
| mortgaged real estate at the time of payment, shall not be | 25 |
| held liable for that rent by the mortgagee in possession, | 26 |
| and the occupant's tenancy shall not be terminated for |
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| non-payment of rent for that rental period. | 2 |
| (6) Within 14 days of the order allowing the mortgagee | 3 |
| to take possession of the mortgaged real estate, the | 4 |
| mortgagee in possession shall post a written notice on the | 5 |
| primary entrance of each dwelling unit subject to the | 6 |
| foreclosure action that informs the occupants that the | 7 |
| mortgagee in possession is now operating and managing the | 8 |
| mortgaged real estate. This written notice shall: (i) | 9 |
| inform the occupant that the dwelling unit is the subject | 10 |
| of a foreclosure action and that control of the mortgaged | 11 |
| real estate has changed; (ii) include the following | 12 |
| language: "This is NOT a notice to vacate the premises."; | 13 |
| and (iii) provide the name, address, and telephone number | 14 |
| of the individual or entity whom occupants may contact with | 15 |
| concerns about the mortgaged real estate or to request | 16 |
| repairs of the property. | 17 |
| (b) Fees and Expenses. A mortgagee in possession shall not | 18 |
| be entitled
to any fees for so acting, but shall be entitled to | 19 |
| reimbursement for
reasonable costs, expenses and third party | 20 |
| management fees incurred in
connection with such possession.
| 21 |
| (Source: P.A. 84-1462.)
| 22 |
| (735 ILCS 5/15-1704) (from Ch. 110, par. 15-1704)
| 23 |
| Sec. 15-1704. Receivers. (a) Receiver. Notwithstanding the
| 24 |
| provisions of subsections (b), (c) and (d) of Section 15-1701, | 25 |
| and except
as provided in Section 15-1702, upon request of any |
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| party and a showing of
good cause, the court shall appoint a | 2 |
| receiver for the mortgaged real estate.
| 3 |
| (b) Powers. A receiver appointed pursuant to this Article | 4 |
| shall have
possession of the mortgaged real estate and other | 5 |
| property subject to the
mortgage during the foreclosure, shall | 6 |
| have full power and authority to
operate, manage and conserve | 7 |
| such property, and shall have all the usual
powers of receivers | 8 |
| in like cases. Without limiting the foregoing, a
receiver shall | 9 |
| have the power and authority to:
| 10 |
| (1) secure tenants and execute leases for the real estate,
| 11 |
| the duration and terms of which are
reasonable and customary | 12 |
| for the type of use involved, and such leases
shall have the | 13 |
| same priority as if made by the owner of the real estate;
but, | 14 |
| unless approved by the Court, the receiver shall not
execute | 15 |
| oil, gas or other mineral leases, or (even if otherwise allowed | 16 |
| by
law) leases extending beyond the time of the receiver's | 17 |
| possession;
provided, however, with respect to residential | 18 |
| real estate leased by the
receiver, nothing in this Section | 19 |
| shall affect the legal rights of any lessee
with respect to the | 20 |
| safety and habitability of the residential real estate;
| 21 |
| (2) collect the rents, issues and profits from the | 22 |
| mortgaged real estate;
| 23 |
| (3) insure the mortgaged real estate against loss by fire | 24 |
| or other casualty;
| 25 |
| (4) employ counsel, custodians, janitors and other help; | 26 |
| and
|
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| (5) pay taxes which may have been or may be levied against | 2 |
| the mortgaged real estate.
| 3 |
| (c) Duties. A receiver appointed pursuant to this Article | 4 |
| must manage
the mortgaged real estate as would a prudent | 5 |
| person, taking into account
the effect of the receiver's | 6 |
| management on the interest of the mortgagor.
A receiver may, | 7 |
| without an order of the court, delegate managerial
functions to | 8 |
| a person in the business of managing real estate of the kind
| 9 |
| involved who is financially responsible, not related to the | 10 |
| mortgagee or
receiver and prudently selected. However, the | 11 |
| receiver
shall remain responsible to the mortgagor or other
| 12 |
| persons for the acts or omissions of such management agent. | 13 |
| When fees are
paid to such a management agent, the receiver's | 14 |
| fees may be adjusted to the
extent the court deems appropriate. | 15 |
| In managing the mortgaged real estate
and other property | 16 |
| subject to the mortgage,
a receiver or receiver's delegate, to | 17 |
| the extent the receiver receives
sufficient receipts from the | 18 |
| mortgaged real estate, such other property or
other sources, | 19 |
| except to the extent ordered otherwise by the court:
| 20 |
| (1) shall maintain the existing casualty and liability | 21 |
| insurance
required in accordance with the mortgage or | 22 |
| applicable to the real estate
and other property subject to the | 23 |
| mortgage at the time the receiver took possession;
| 24 |
| (2) shall use reasonable efforts to maintain the real | 25 |
| estate and other
property subject to the mortgage in at least | 26 |
| as good condition as existed at
the time the receiver took |
|
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| possession, excepting reasonable wear and tear
and damage by | 2 |
| any casualty;
| 3 |
| (3) shall: (i) maintain any essential utility services that | 4 |
| had been the obligation of the mortgagor prior to an order | 5 |
| appointing a receiver or allowing the mortgagee to take | 6 |
| possession of the mortgaged real estate; (ii) maintain the | 7 |
| mortgaged real estate in the same physical condition as had | 8 |
| been the obligation of the mortgagor prior to an order | 9 |
| appointing a receiver or allowing the mortgagee to take | 10 |
| possession of the mortgaged real estate; and (iii) maintain the | 11 |
| mortgaged real estate in compliance with the requirements of | 12 |
| State and local law; | 13 |
| (4) shall accept all rental payments from an occupant of | 14 |
| the mortgaged property and any payments from a third party or | 15 |
| any rental assistance program in support of an occupant's | 16 |
| housing; | 17 |
| (5) (3) shall apply receipts to payment of ordinary | 18 |
| operating expenses,
including royalties, rents and other | 19 |
| expenses of management;
| 20 |
| (6) (4) shall pay any shared or common expense assessments | 21 |
| due to any
association of owners of interests in real estate to | 22 |
| the extent that such
assessments are or may become a lien | 23 |
| against the mortgaged real estate;
| 24 |
| (7) (5) may pay the amounts due under any mortgage if the | 25 |
| mortgagee thereof
is not a party in the foreclosure;
| 26 |
| (8) (6) may carry such additional casualty and liability |
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| insurance as is
reasonably available and reasonable as to | 2 |
| amounts and risks covered;
| 3 |
| (9) (7) may make other repairs and improvements necessary | 4 |
| to comply with
building, housing, and other similar codes or | 5 |
| with existing contractual
obligations affecting the mortgaged | 6 |
| real estate;
| 7 |
| (10) (8) may hold receipts as reserves reasonably required | 8 |
| for the foregoing purposes; and
| 9 |
| (11) (9) may take such other actions as may be reasonably | 10 |
| necessary to
conserve the mortgaged real estate and other | 11 |
| property subject to the
mortgage, or as otherwise authorized by | 12 |
| the court.
| 13 |
| (d) Allocation of Receipts. Receipts received from | 14 |
| operation of the
real estate and other property subject to the | 15 |
| mortgage by the receiver
shall be applied in the following | 16 |
| order of priority.
| 17 |
| (1) to reimbursement of the receiver for all reasonable | 18 |
| costs and
expenses incurred by the receiver or the receiver's | 19 |
| delegates;
| 20 |
| (2) to payment of insurance premiums authorized in | 21 |
| paragraph (1) of
subsection (c) of Section 15-1704;
| 22 |
| (3) to payment of the receiver's delegates of any | 23 |
| reasonable management
fees for managing real estate of the type | 24 |
| involved;
| 25 |
| (4) to payment of receiver's fees allowed by the court;
| 26 |
| (5) to payment of expenses authorized in paragraphs (2), |
|
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| (3) , (5), and (6) (4) of
subsection (c) of Section 15-1704;
| 2 |
| (6) to payment of amounts authorized in paragraph (7) (5) | 3 |
| of subsection (c)
of Section 15-1704;
| 4 |
| (7) to payment of expenses authorized in paragraphs (8) (6) | 5 |
| and (9) (7) of
subsection (c) of Section 15-1704; and
| 6 |
| (8) the balance, if any, shall be held or disbursed as | 7 |
| ordered by the court.
| 8 |
| (e) Non-Liability for Allocations. A receiver shall in no | 9 |
| event be
liable to any person for the allocation of, or failure | 10 |
| to allocate,
receipts to possible expenditures within the same | 11 |
| priority category.
| 12 |
| (f) Notice to Occupants. | 13 |
| (1) Within 14 days of appointment, the receiver shall | 14 |
| make a good faith effort to ascertain the identities and | 15 |
| addresses of the mortgaged real estate. | 16 |
| (2) Within 21 days of appointment, the receiver shall | 17 |
| notify all occupants of dwelling units of the mortgaged | 18 |
| real estate that he or she has been appointed receiver of | 19 |
| the mortgaged real estate, including any occupants | 20 |
| identified as a result of the good faith effort under this | 21 |
| subsection. Such notice shall be in writing and shall: | 22 |
| (i) identify the occupant being served by name; | 23 |
| (ii) inform the occupant that the mortgaged real | 24 |
| estate is the subject of a foreclosure action and that | 25 |
| control of the mortgaged real estate has changed; | 26 |
| (iii) provide the name, address, and telephone |
|
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| number of the individual or entity whom occupants may | 2 |
| contact with concerns about the mortgaged real estate | 3 |
| or to request repairs of that property; | 4 |
| (iv) include the following language, or language | 5 |
| that is substantially similar: | 6 |
| "This is NOT a notice to vacate the premises. You | 7 |
| will receive additional notice if your lease or rental | 8 |
| agreement is being terminated. You may wish to contact | 9 |
| a lawyer or your local legal aid or housing counseling | 10 |
| agency to discuss any rights that you may have." | 11 |
| (v) attach a copy of the order appointing the | 12 |
| receiver as receiver for the mortgaged real estate. | 13 |
| (3) The notice required by item (2) of this subsection | 14 |
| (f) shall be served: by delivering a written or printed, or | 15 |
| partly written and printed, copy thereof to the known | 16 |
| occupant, or by leaving the same with some person of the | 17 |
| age of 13 years or older, residing on or in possession of | 18 |
| the premises; or by sending a copy of the notice to the | 19 |
| known occupant by first-class mail, addressed to the | 20 |
| occupant by name. | 21 |
| (4) In the event that a receiver ascertains the | 22 |
| identity and address of an occupant of a dwelling unit of | 23 |
| the mortgaged real estate more than 14 days after | 24 |
| appointment, the receiver shall provide the notice | 25 |
| required by part (2) of this subsection (f) within 7 days | 26 |
| of ascertaining the identity and address of the occupant. |
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| 1 |
| (5)(i) A receiver who fails to comply with items (2), | 2 |
| (3), and (4) of this subsection (f) may not collect any | 3 |
| rent due and owing from a known occupant, or terminate a | 4 |
| known occupant's tenancy for non-payment of such rent, | 5 |
| until the receiver has served the notice described in item | 6 |
| (2) of this subsection (f) upon the occupant. The | 7 |
| provisions of this subsection shall be the exclusive remedy | 8 |
| for the failure of a receiver to provide notice under this | 9 |
| Section. | 10 |
| (ii) An occupant who previously paid rent for the | 11 |
| current rental period to the mortgagor, or other entity | 12 |
| with the authority to operate, manage, and conserve the | 13 |
| mortgaged real estate at the time of payment, shall not be | 14 |
| held liable for that rent by the receiver, and the | 15 |
| occupant's tenancy shall not be terminated for non-payment | 16 |
| of rent for that rental period. | 17 |
| (6) Within 14 days of appointment, the receiver shall | 18 |
| post a written notice on the primary entrance of all | 19 |
| dwelling units subject to the foreclosure action that | 20 |
| informs occupants that the receiver has been appointed to | 21 |
| operate and manage the property. This written notice shall: | 22 |
| (i) inform the occupant that the dwelling unit is the | 23 |
| subject of a foreclosure action and that control of the | 24 |
| mortgaged real estate has changed; (ii) include the | 25 |
| following language: "This is NOT a notice to vacate the | 26 |
| premises."; and (iii) provide the name, address, and |
|
|
|
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| 1 |
| telephone number of the individual or entity whom occupants | 2 |
| may contact with concerns about the mortgaged real estate | 3 |
| or to request repairs of the property. | 4 |
| (g) Increase of rents. Notwithstanding any other provision | 5 |
| of this Article, a receiver shall not charge an occupant of the | 6 |
| mortgaged real estate a rental amount greater than that which | 7 |
| the occupant had been paying for use and occupancy of the | 8 |
| mortgaged real estate prior to the appointment of a receiver, | 9 |
| without leave of court or an agreement with the occupant about | 10 |
| the increased rent. The court may allow an increase of rent if, | 11 |
| upon motion by the receiver, the court finds by a preponderance | 12 |
| of the evidence, that the increase of rent is necessary to | 13 |
| operate, manage, and conserve the mortgaged real estate | 14 |
| pursuant to this Section. A list of the current rents for each | 15 |
| unit in the mortgaged real estate, and a list of the proposed | 16 |
| rent increase for each of those units, must be attached to a | 17 |
| motion for a rent increase under this subsection (g). All | 18 |
| occupants of the mortgaged real estate who may be affected by | 19 |
| the motion for a rent increase, if not otherwise entitled to | 20 |
| notice, shall be notified in writing of the nature of the | 21 |
| motion, the date and time of the motion, and the court where | 22 |
| the motion will be heard. Such notice shall be by personal | 23 |
| service or first-class mail. Nothing in this subsection (g) | 24 |
| shall alter the terms of any lease agreement. | 25 |
| (h) (f) Removal. The court may remove a receiver upon a | 26 |
| showing of good
cause, in which case a new receiver may be |
|
|
|
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| 1 |
| appointed in accordance with
subsection (b) of Section 15-1702 | 2 |
| and subsection (a) of Section 15-1704.
| 3 |
| (Source: P.A. 84-1462.)
| 4 |
| Section 98. In a foreclosure action filed on or before the | 5 |
| effective date of this Act, a holder or purchaser, receiver, or | 6 |
| mortgagee in possession required to serve notice or otherwise | 7 |
| comply with Section 15-1508.5, Section 15-1703(a-5), and | 8 |
| Section 15-1704(f) shall have an additional 60 days to comply | 9 |
| with the provisions of this Act.
| 10 |
| Section 99. Effective date. This Act takes effect 90 days | 11 |
| after becoming law.
|
|