Full Text of SB1053 96th General Assembly
SB1053sam001 96TH GENERAL ASSEMBLY
|
Sen. Don Harmon
Filed: 3/17/2009
|
|
09600SB1053sam001 |
|
LRB096 07124 AJO 23964 a |
|
| 1 |
| AMENDMENT TO SENATE BILL 1053
| 2 |
| AMENDMENT NO. ______. Amend Senate Bill 1053 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 9-117 and 15-1701 as follows:
| 6 |
| (735 ILCS 5/9-117) (from Ch. 110, par. 9-117)
| 7 |
| Sec. 9-117. Expiration of Judgment. No judgment for | 8 |
| possession
obtained in an action brought under this Article may | 9 |
| be enforced more than 120
90 days after judgment is entered, | 10 |
| unless upon motion by the plaintiff
the court grants an | 11 |
| extension of the period of enforcement of the judgment.
| 12 |
| Plaintiff's notice of motion shall contain the following notice | 13 |
| directed
to the defendant:
| 14 |
| "Your landlord, (insert name), obtained an eviction | 15 |
| judgment against
you on (insert date), but the sheriff did | 16 |
| not evict you within the 120 90 days
that the landlord has |
|
|
|
09600SB1053sam001 |
- 2 - |
LRB096 07124 AJO 23964 a |
|
| 1 |
| to evict after a judgment in court. On the date
stated in | 2 |
| this notice, your landlord will be asking the court to | 3 |
| allow the
sheriff to evict you based on that judgment. You | 4 |
| must attend the court
hearing if you want the court to stop | 5 |
| the landlord from having you evicted.
To prevent the | 6 |
| eviction, you must be able to prove that (1) the landlord
| 7 |
| and you made an agreement after the judgment (for instance, | 8 |
| to pay up back
rent or to comply with the lease) and you | 9 |
| have lived up to the agreement;
or (2) the reason the | 10 |
| landlord brought the original eviction case has been
| 11 |
| resolved or forgiven, and the eviction the landlord now | 12 |
| wants the court to
grant is based on a new or different | 13 |
| reason; or (3) that you have another
legal or equitable | 14 |
| reason why the court should not grant the landlord's
| 15 |
| request for your eviction."
| 16 |
| The court shall grant the motion for the extension of the | 17 |
| judgment of
possession unless the defendant establishes that | 18 |
| the tenancy has been
reinstated, that the breach upon which the | 19 |
| judgment was issued has
been cured or waived, that the | 20 |
| plaintiff and defendant entered into a
post-judgment agreement | 21 |
| whose terms the defendant has performed, or that
other legal or | 22 |
| equitable grounds exist that bar enforcement of the judgment.
| 23 |
| This Section does not apply to any action based upon a breach | 24 |
| of a contract
entered into on or after July 1, 1962, for the | 25 |
| purchase of premises in
which the court has entered a stay | 26 |
| under Section 9-110; nor shall this
Section apply to any action |
|
|
|
09600SB1053sam001 |
- 3 - |
LRB096 07124 AJO 23964 a |
|
| 1 |
| to which the provisions of Section 9-111 apply;
nor shall this | 2 |
| Section affect the rights of Boards of Managers under
Section | 3 |
| 9-104.2.
| 4 |
| (Source: P.A. 86-1280.)
| 5 |
| (735 ILCS 5/15-1701) (from Ch. 110, par. 15-1701)
| 6 |
| Sec. 15-1701. Right to possession.
| 7 |
| (a) General. The provisions of
this Article shall govern | 8 |
| the right to possession of the mortgaged real
estate during | 9 |
| foreclosure. Possession under this Article includes physical
| 10 |
| possession of the mortgaged real estate to the same extent to | 11 |
| which the
mortgagor, absent the foreclosure, would have been | 12 |
| entitled to physical
possession. For the purposes of Part 17, | 13 |
| real estate is residential real estate
only if it is | 14 |
| residential real estate at the time the foreclosure is | 15 |
| commenced.
| 16 |
| (b) Pre-Judgment. Prior to the entry of a judgment of | 17 |
| foreclosure:
| 18 |
| (1) In the case of residential real estate, the | 19 |
| mortgagor shall be
entitled to possession of the real | 20 |
| estate except if (i) the mortgagee shall
object and show | 21 |
| good cause, (ii) the mortgagee is so authorized by the | 22 |
| terms of
the mortgage or other written instrument, and | 23 |
| (iii) the court is satisfied that
there is a reasonable | 24 |
| probability that the mortgagee will prevail on a final
| 25 |
| hearing of the cause, the court shall upon request place |
|
|
|
09600SB1053sam001 |
- 4 - |
LRB096 07124 AJO 23964 a |
|
| 1 |
| the mortgagee in
possession. If the residential real estate | 2 |
| consists of more than one dwelling
unit, then for the | 3 |
| purpose of this Part residential real estate shall mean | 4 |
| only
that dwelling unit or units occupied by persons | 5 |
| described in clauses (i), (ii)
and (iii) of Section | 6 |
| 15-1219.
| 7 |
| (2) In all other cases, if (i) the mortgagee is so | 8 |
| authorized by the
terms of the mortgage or other written | 9 |
| instrument, and (ii) the court is
satisfied that there is a | 10 |
| reasonable probability that the mortgagee will
prevail on a | 11 |
| final hearing of the cause, the mortgagee shall
upon | 12 |
| request be placed in possession of the real estate, except | 13 |
| that if the
mortgagor shall object and show good cause, the | 14 |
| court shall allow the
mortgagor to remain in possession.
| 15 |
| (c) Judgment Through 30 Days After Sale Confirmation. After | 16 |
| the entry
of a judgment of foreclosure and through the 30th day | 17 |
| after a foreclosure
sale is confirmed:
| 18 |
| (1) Subsection (b) of Section 15-1701 shall be | 19 |
| applicable, regardless of
the provisions of the mortgage or | 20 |
| other instrument, except that after a
sale pursuant to the | 21 |
| judgment the holder of the certificate of sale
(or, if | 22 |
| none, the purchaser at the sale) shall have the mortgagee's | 23 |
| right to be
placed in possession, with all rights and | 24 |
| duties of a mortgagee in possession
under this Article.
| 25 |
| (2) Notwithstanding paragraph (1) of subsection (b) | 26 |
| and paragraph (1) of
subsection (c) of Section 15-1701, |
|
|
|
09600SB1053sam001 |
- 5 - |
LRB096 07124 AJO 23964 a |
|
| 1 |
| upon request of the mortgagee, a mortgagor
of residential | 2 |
| real estate shall not be allowed to remain in possession | 3 |
| between
the expiration of the redemption period and through | 4 |
| the 30th day after sale
confirmation unless (i) the | 5 |
| mortgagor pays to the mortgagee or such holder or
| 6 |
| purchaser, whichever is applicable, monthly the lesser of | 7 |
| the interest due
under the mortgage calculated at the | 8 |
| mortgage rate of interest applicable as if
no default had | 9 |
| occurred or the fair rental value of the real estate, or | 10 |
| (ii)
the mortgagor otherwise shows good cause. Any amounts | 11 |
| paid by the mortgagor
pursuant to this subsection shall be | 12 |
| credited against the amounts due from the
mortgagor.
| 13 |
| (d) After 30 Days After Sale Confirmation. The holder of
| 14 |
| the certificate of sale or deed issued pursuant to that | 15 |
| certificate or, if
no certificate or deed was issued, the | 16 |
| purchaser, except to the extent the
holder or purchaser may | 17 |
| consent otherwise, shall be entitled to possession of
the | 18 |
| mortgaged real estate, as of the date 30 days after the order | 19 |
| confirming
the sale is entered, against those parties to the | 20 |
| foreclosure whose interests
the court has ordered terminated, | 21 |
| without further notice to any party, further
order of the | 22 |
| court, or resort to proceedings under any other statute other | 23 |
| than
this Article.
This right to possession shall be limited by | 24 |
| the provisions
governing entering and enforcing orders of | 25 |
| possession under subsection (g) of
Section
15-1508.
If the | 26 |
| holder or purchaser determines that there are occupants
of the |
|
|
|
09600SB1053sam001 |
- 6 - |
LRB096 07124 AJO 23964 a |
|
| 1 |
| mortgaged real estate who have not been made parties to the | 2 |
| foreclosure
and had their interests terminated therein, the | 3 |
| holder or purchaser may bring a
proceeding under subsection (h) | 4 |
| of this Section or under Article 9 of this Code
to terminate | 5 |
| the rights of possession of any such occupants. The holder or
| 6 |
| purchaser shall not be entitled to proceed against any such | 7 |
| occupant under
Article 9 of this Code until after 30 days after | 8 |
| the order confirming the sale
is entered.
| 9 |
| (e) Termination of Leases. A lease of all or any part of | 10 |
| the mortgaged
real estate shall not be terminated automatically | 11 |
| solely by virtue of the entry
into possession by (i) a | 12 |
| mortgagee or receiver prior to the entry of an order
confirming | 13 |
| the sale, (ii) the holder of the certificate of sale, (iii) the
| 14 |
| holder of the deed issued pursuant to that certificate, or (iv) | 15 |
| if no
certificate or deed was issued, the purchaser at the | 16 |
| sale.
| 17 |
| (f) Other Statutes; Instruments. The provisions of this | 18 |
| Article
providing for possession of mortgaged real estate shall | 19 |
| supersede any other
inconsistent statutory provisions. In | 20 |
| particular, and without limitation,
whenever a receiver is | 21 |
| sought to be appointed in any action in which a
foreclosure is | 22 |
| also pending, a receiver shall be appointed only in
accordance | 23 |
| with this Article. Except as may be authorized by this Article,
| 24 |
| no mortgage or other instrument may modify or supersede the | 25 |
| provisions of this
Article.
| 26 |
| (g) Certain Leases. Leases of the mortgaged real estate |
|
|
|
09600SB1053sam001 |
- 7 - |
LRB096 07124 AJO 23964 a |
|
| 1 |
| entered into by
a mortgagee in possession or a receiver and | 2 |
| approved by the court in a
foreclosure shall be binding on all | 3 |
| parties, including the mortgagor after
redemption, the | 4 |
| purchaser at a sale pursuant to a judgment of foreclosure
and | 5 |
| any person acquiring an interest in the mortgaged real estate | 6 |
| after
entry of a judgment of foreclosure in accordance with | 7 |
| Sections 15-1402 and
15-1403.
| 8 |
| (h) Proceedings Against Certain Occupants.
| 9 |
| (1) The mortgagee-in-possession of the mortgaged real | 10 |
| estate under Section
15-1703, a receiver appointed under | 11 |
| Section 15-1704, a holder of the
certificate of sale or | 12 |
| deed, or the purchaser may, at any time during the
pendency | 13 |
| of the foreclosure and up to 90 days after the date of the | 14 |
| order
confirming the sale,
file a supplemental petition for | 15 |
| possession against a person not personally
named as a party
| 16 |
| to the foreclosure. The supplemental petition for | 17 |
| possession shall name each such
occupant against whom | 18 |
| possession is sought and state the facts upon which the
| 19 |
| claim for relief is premised.
| 20 |
| (2) The petitioner shall serve upon each named occupant | 21 |
| the petition,
a notice of hearing on the petition, and, if | 22 |
| any, a copy of the certificate of
sale or deed. The | 23 |
| proceeding for the termination of such occupant's | 24 |
| possessory
interest, including service of the notice of the | 25 |
| hearing and the petition,
shall in all respects comport | 26 |
| with the requirements of Article 9 of this Code,
except as |
|
|
|
09600SB1053sam001 |
- 8 - |
LRB096 07124 AJO 23964 a |
|
| 1 |
| otherwise specified in this Section. The hearing shall be | 2 |
| no less
than 21 days from the date of service of the | 3 |
| notice.
| 4 |
| (3) The supplemental petition shall be heard as part of | 5 |
| the foreclosure
proceeding and without the payment of | 6 |
| additional filing fees. An order for
possession obtained | 7 |
| under this Section shall name each occupant whose interest
| 8 |
| has been terminated, shall recite that it is only effective | 9 |
| as to the occupant
so named and those holding under them, | 10 |
| and shall be enforceable for no more
than 120 90 days after | 11 |
| its entry, except that the 120-day 90-day period may be | 12 |
| extended to
the extent and in the manner provided in | 13 |
| Section 9-117 of Article 9 and except as provided in item | 14 |
| (4) of this subsection (h). | 15 |
| (4) In a case of foreclosure where the tenant is | 16 |
| current on his or her rent, or where timely written notice | 17 |
| of to whom and where the rent is to be paid has not been | 18 |
| provided to the tenant, or where the tenant has made | 19 |
| good-faith efforts to make rental payments in order to keep | 20 |
| current, any order of possession must allow the tenant to | 21 |
| retain possession of the property covered in his or her | 22 |
| rental agreement (i) for 120 days following the notice of | 23 |
| the hearing on the supplemental petition that has been | 24 |
| properly served upon the tenant, or (ii) through the | 25 |
| duration of his or her lease, whichever is shorter. If the | 26 |
| tenant has been given timely written notice of to whom and |
|
|
|
09600SB1053sam001 |
- 9 - |
LRB096 07124 AJO 23964 a |
|
| 1 |
| where the rent is to be paid, this item (4) shall only | 2 |
| apply if the tenant continues to pay his or her rent in | 3 |
| full during the 120-day period or has made good-faith | 4 |
| efforts to pay the 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 a tenant of the mortgaged | 10 |
| real estate until 90 days after a notice of intent to file | 11 |
| such action has been properly served upon the tenant. | 12 |
| (5) The court records relating to a supplemental | 13 |
| petition for possession filed under this subsection (h) | 14 |
| against a tenant who is entitled to notice under item (4) | 15 |
| of this subsection (h), or relating to a forcible entry and | 16 |
| detainer action brought against a tenant who would have | 17 |
| lawful possession of the premises but for the foreclosure | 18 |
| of a mortgage on the property, shall be ordered sealed and | 19 |
| shall not be disclosed to any person, other than a law | 20 |
| enforcement officer or any other representative of a | 21 |
| governmental entity, except upon further order of the | 22 |
| court.
| 23 |
| (Source: P.A. 95-262, eff. 1-1-08; 95-933, eff. 8-26-08.)
| 24 |
| Section 99. Effective date. This Act takes effect upon | 25 |
| becoming law.".
|
|