Full Text of HB1574 97th General Assembly
HB1574ham001 97TH GENERAL ASSEMBLY | Rep. Elizabeth Hernandez Filed: 4/12/2011
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| 1 | | AMENDMENT TO HOUSE BILL 1574
| 2 | | AMENDMENT NO. ______. Amend House Bill 1574 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 15-1202.5 and 15-1508 as follows: | 6 | | (735 ILCS 5/15-1202.5)
| 7 | | Sec. 15-1202.5. Dwelling unit. For the purposes of Sections | 8 | | 15-1508, 15-1508.5, 15-1703, and 15-1704 only, "dwelling unit" | 9 | | means a room or suite of rooms providing complete, independent | 10 | | living 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 | | (Source: P.A. 96-111, eff. 10-29-09.) | 14 | | (735 ILCS 5/15-1508) (from Ch. 110, par. 15-1508) | 15 | | Sec. 15-1508. Report of Sale and Confirmation of Sale. |
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| 1 | | (a) Report. The person conducting the sale shall promptly | 2 | | make a report to
the court, which report shall include a copy | 3 | | of all receipts and, if any,
certificate of sale. | 4 | | (b) Hearing. Upon motion and notice in accordance with | 5 | | court rules
applicable to motions generally, which motion shall | 6 | | not be made prior to
sale, the court shall conduct a hearing to
| 7 | | confirm the sale. Unless the court finds that (i) a notice | 8 | | required in
accordance with subsection (c) of Section 15-1507 | 9 | | was not given, (ii) the
terms of sale were unconscionable, | 10 | | (iii) the sale was conducted
fraudulently , or (iv) that justice | 11 | | was otherwise not done, the court shall
then enter an order | 12 | | confirming the sale. The confirmation order shall include a | 13 | | name, address, and telephone number of the holder of the | 14 | | certificate of sale or deed issued pursuant to that certificate | 15 | | or, if no certificate or deed was issued, the purchaser, whom a | 16 | | municipality or county may contact with concerns about the real | 17 | | estate. The confirmation order may
also: | 18 | | (1) approve the mortgagee's fees and costs arising | 19 | | between the entry of
the judgment of foreclosure and the | 20 | | confirmation hearing, those costs and
fees to be allowable | 21 | | to the same extent as provided in the note and mortgage
and | 22 | | in Section 15-1504; | 23 | | (2) provide for a personal judgment against any party | 24 | | for a deficiency;
and | 25 | | (3) determine the priority of the judgments of parties | 26 | | who deferred proving
the priority pursuant to subsection |
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| 1 | | (h) of Section 15-1506, but
the court shall not
defer | 2 | | confirming the sale pending the determination of such | 3 | | priority. | 4 | | (b-5) Notice with respect to residential real estate. With | 5 | | respect to residential real estate, the notice required under | 6 | | subsection (b) of this Section shall be sent to the mortgagor | 7 | | even if the mortgagor has previously been held in default. In | 8 | | the event the mortgagor has filed an appearance, the notice | 9 | | shall be sent to the address indicated on the appearance. In | 10 | | all other cases, the notice shall be sent to the mortgagor at | 11 | | the common address of the foreclosed property. The notice shall | 12 | | be sent by first class mail. Unless the right to possession has | 13 | | been previously terminated by the court, the notice shall | 14 | | include the following language in 12-point boldface | 15 | | capitalized type: | 16 | | IF YOU ARE THE MORTGAGOR (HOMEOWNER), YOU HAVE THE RIGHT TO | 17 | | REMAIN IN POSSESSION FOR 30 DAYS AFTER ENTRY OF AN ORDER OF | 18 | | POSSESSION, IN ACCORDANCE WITH SECTION 15-1701(c) OF THE | 19 | | ILLINOIS MORTGAGE FORECLOSURE LAW. | 20 | | (b-10) Notice of confirmation order sent to municipality or | 21 | | county. A copy of the confirmation order required under | 22 | | subsection (b) shall be sent to the municipality in which the | 23 | | foreclosed property is located, or to the county within the | 24 | | boundary of which the foreclosed property is located if the | 25 | | foreclosed property is located in an unincorporated territory. | 26 | | A municipality or county must clearly publish on its website a |
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| 1 | | single address to which such notice shall be sent. If a | 2 | | municipality or county does not maintain a website, then the | 3 | | municipality or county must publicly post in its main office a | 4 | | single address to which such notice shall be sent. In the event | 5 | | that a municipality or county has not complied with the | 6 | | publication requirement in this subsection (b-10), then such | 7 | | notice to the municipality or county shall be provided pursuant | 8 | | to Section 2-211 of the Code of Civil Procedure. | 9 | | (c) Failure to Give Notice. If any sale is held without | 10 | | compliance with
subsection (c) of Section 15-1507 of this | 11 | | Article, any party entitled to
the notice provided for in | 12 | | paragraph (3) of that subsection
(c) who was not so notified | 13 | | may, by motion supported by affidavit
made prior to | 14 | | confirmation of such sale, ask the court which entered the
| 15 | | judgment to set aside the sale. Any such party shall guarantee | 16 | | or secure by bond a bid equal to the successful bid at the | 17 | | prior sale, unless the party seeking to set aside the sale is | 18 | | the mortgagor, the real estate sold at the sale is residential | 19 | | real estate, and the mortgagor occupies the residential real | 20 | | estate at the time the motion is filed. In that event, no | 21 | | guarantee or bond shall be required of the mortgagor. Any
| 22 | | subsequent sale is subject to the same notice requirement as | 23 | | the original sale. | 24 | | (d) Validity of Sale. Except as provided in subsection (c) | 25 | | of Section
15-1508, no sale under this Article shall be held | 26 | | invalid or be set aside
because of any defect in the notice |
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| 1 | | thereof or in the publication of the
same, or in the | 2 | | proceedings of the officer conducting the sale, except upon
| 3 | | good cause shown in a hearing pursuant to subsection (b) of | 4 | | Section
15-1508. At any time after a sale has occurred, any | 5 | | party entitled to
notice under paragraph (3) of subsection (c) | 6 | | of Section 15-1507 may recover
from the mortgagee any damages | 7 | | caused by the mortgagee's failure to comply
with such paragraph | 8 | | (3). Any party who recovers damages in a judicial
proceeding | 9 | | brought under this subsection may also recover from the
| 10 | | mortgagee the reasonable expenses of litigation, including | 11 | | reasonable attorney's fees. | 12 | | (d-5) Making Home Affordable Program. The court that | 13 | | entered the judgment shall set aside a sale held pursuant to | 14 | | Section 15-1507, upon motion of the mortgagor at any time prior | 15 | | to the confirmation of the sale, if the mortgagor proves by a | 16 | | preponderance of the evidence that (i) the mortgagor has | 17 | | applied for assistance under the Making Home Affordable Program | 18 | | established by the United States Department of the Treasury | 19 | | pursuant to the Emergency Economic Stabilization Act of 2008, | 20 | | as amended by the American Recovery and Reinvestment Act of | 21 | | 2009, and (ii) the mortgaged real estate was sold in material | 22 | | violation of the program's requirements for proceeding to a | 23 | | judicial sale. The provisions of this subsection (d-5), except | 24 | | for this sentence, shall become inoperative on January 1, 2013 | 25 | | for all actions filed under this Article after December 31, | 26 | | 2012, in which the mortgagor did not apply for assistance under |
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| 1 | | the Making Home Affordable Program on or before December 31, | 2 | | 2012. | 3 | | (e) Deficiency Judgment. In any order confirming a sale | 4 | | pursuant to the
judgment of foreclosure, the court shall also | 5 | | enter a personal judgment
for deficiency against any party (i) | 6 | | if otherwise authorized and (ii) to
the extent requested in the | 7 | | complaint and proven upon presentation of the
report of sale in | 8 | | accordance with Section 15-1508. Except as otherwise provided
| 9 | | in this Article, a judgment may be entered for any balance of | 10 | | money that
may be found due to the plaintiff, over and above | 11 | | the proceeds of the sale
or sales, and enforcement may be had | 12 | | for the collection of such balance,
the same as when the | 13 | | judgment is solely for the payment of money. Such
judgment may | 14 | | be entered, or enforcement had,
only in cases where personal | 15 | | service has been had upon the
persons personally liable for the | 16 | | mortgage indebtedness, unless they have
entered their | 17 | | appearance in the foreclosure action. | 18 | | (f) Satisfaction. Upon confirmation of the sale, the
| 19 | | judgment stands satisfied to the extent of the sale price less | 20 | | expenses and
costs. If the order confirming the sale includes a | 21 | | deficiency judgment, the
judgment shall become a lien in the | 22 | | manner of any other
judgment for the payment of money. | 23 | | (g) The order confirming the sale shall include, | 24 | | notwithstanding any
previous orders awarding possession during | 25 | | the pendency of the foreclosure, an
award to the purchaser of | 26 | | possession of the mortgaged real estate, as of the
date 30 days |
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| 1 | | after the entry of the order, against the
parties to the | 2 | | foreclosure whose interests have been terminated. | 3 | | An order of possession authorizing the removal of a person | 4 | | from possession
of the mortgaged real estate shall be entered | 5 | | and enforced only against those
persons personally
named as | 6 | | individuals in the complaint or the petition under subsection | 7 | | (h)
of Section 15-1701 and in the order of possession and shall
| 8 | | not be entered and enforced against any person who is only | 9 | | generically
described as an
unknown owner or nonrecord claimant | 10 | | or by another generic designation in the
complaint. | 11 | | Notwithstanding the preceding paragraph, the failure to | 12 | | personally
name,
include, or seek an award of
possession of the | 13 | | mortgaged real estate against a person in the
confirmation | 14 | | order shall not abrogate any right that the purchaser may have | 15 | | to
possession of the mortgaged real estate and to maintain a | 16 | | proceeding against
that person for
possession under Article 9 | 17 | | of this Code or subsection (h) of Section 15-1701;
and | 18 | | possession against a person
who (1) has not been personally | 19 | | named as a party to the
foreclosure and (2) has not been | 20 | | provided an opportunity to be heard in the
foreclosure | 21 | | proceeding may be sought only by maintaining a
proceeding under | 22 | | Article 9 of this
Code or subsection (h) of Section 15-1701. | 23 | | (h) With respect to mortgaged real estate containing 5 or | 24 | | more dwelling units, the order confirming the sale shall also | 25 | | provide that (i) the mortgagor transfer to the purchaser the | 26 | | security deposits, if any, that the mortgagor received to |
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| 1 | | secure payment of rent or to compensate for damage to the | 2 | | mortgaged real estate from any current occupant of a dwelling | 3 | | unit of the mortgaged real estate, as well as any statutory | 4 | | interest that has not been paid to the occupant, and (ii) the | 5 | | mortgagor provide an accounting of the security deposits that | 6 | | are transferred, including the name and address of each | 7 | | occupant for whom the mortgagor holds the deposit and the | 8 | | amount of that deposit and any statutory interest. | 9 | | (Source: P.A. 95-826, eff. 8-14-08; 96-265, eff. 8-11-09; | 10 | | 96-856, eff. 3-1-10; 96-1245, eff. 7-23-10; revised 9-16-10.) | 11 | | Section 10. The Security Deposit Return Act is amended by | 12 | | adding Section 1.2 as follows: | 13 | | (765 ILCS 710/1.2 new) | 14 | | Sec. 1.2. Security deposit transfer. Notwithstanding | 15 | | Section 1.1, when a lessor transfers actual possession of a | 16 | | security deposit received from a lessee, including any | 17 | | statutory interest that has not been paid to a lessee, to a | 18 | | holder of the certificate of sale or deed issued pursuant to | 19 | | that certificate or, if no certificate or deed was issued, the | 20 | | purchaser of a foreclosed property under Article 15 of the Code | 21 | | of Civil Procedure, the holder or purchaser shall be liable to | 22 | | a lessee for the security deposit that the lessee paid to the | 23 | | lessor, including any statutory interest that has not been paid | 24 | | to the lessee, as provided in this Act. Within 21 days after |
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| 1 | | the transfer of the security deposits, the holder or purchaser | 2 | | shall post a written notice that the holder or purchaser has | 3 | | acquired the security deposit on the primary entrance of each | 4 | | dwelling unit at the property with respect to which the holder | 5 | | or purchaser has acquired actual possession of a security | 6 | | deposit.
| 7 | | Section 99. Effective date. This Act takes effect upon | 8 | | becoming law.".
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