Illinois General Assembly - Full Text of HB1574
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Full Text of HB1574  97th General Assembly


Rep. Elizabeth Hernandez

Filed: 4/12/2011





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2    AMENDMENT NO. ______. Amend House Bill 1574 by replacing
3everything after the enacting clause with the following:
4    "Section 5. The Code of Civil Procedure is amended by
5changing 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
815-1508, 15-1508.5, 15-1703, and 15-1704 only, "dwelling unit"
9means a room or suite of rooms providing complete, independent
10living facilities for at least one person, including permanent
11provisions for sanitation, cooking, eating, sleeping, and
12other 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
2make a report to the court, which report shall include a copy
3of all receipts and, if any, certificate of sale.
4    (b) Hearing. Upon motion and notice in accordance with
5court rules applicable to motions generally, which motion shall
6not be made prior to sale, the court shall conduct a hearing to
7confirm the sale. Unless the court finds that (i) a notice
8required in accordance with subsection (c) of Section 15-1507
9was not given, (ii) the terms of sale were unconscionable,
10(iii) the sale was conducted fraudulently, or (iv) that justice
11was otherwise not done, the court shall then enter an order
12confirming the sale. The confirmation order shall include a
13name, address, and telephone number of the holder of the
14certificate of sale or deed issued pursuant to that certificate
15or, if no certificate or deed was issued, the purchaser, whom a
16municipality or county may contact with concerns about the real
17estate. 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
5respect to residential real estate, the notice required under
6subsection (b) of this Section shall be sent to the mortgagor
7even if the mortgagor has previously been held in default. In
8the event the mortgagor has filed an appearance, the notice
9shall be sent to the address indicated on the appearance. In
10all other cases, the notice shall be sent to the mortgagor at
11the common address of the foreclosed property. The notice shall
12be sent by first class mail. Unless the right to possession has
13been previously terminated by the court, the notice shall
14include the following language in 12-point boldface
15capitalized type:
20    (b-10) Notice of confirmation order sent to municipality or
21county. A copy of the confirmation order required under
22subsection (b) shall be sent to the municipality in which the
23foreclosed property is located, or to the county within the
24boundary of which the foreclosed property is located if the
25foreclosed property is located in an unincorporated territory.
26A municipality or county must clearly publish on its website a



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1single address to which such notice shall be sent. If a
2municipality or county does not maintain a website, then the
3municipality or county must publicly post in its main office a
4single address to which such notice shall be sent. In the event
5that a municipality or county has not complied with the
6publication requirement in this subsection (b-10), then such
7notice to the municipality or county shall be provided pursuant
8to Section 2-211 of the Code of Civil Procedure.
9    (c) Failure to Give Notice. If any sale is held without
10compliance with subsection (c) of Section 15-1507 of this
11Article, any party entitled to the notice provided for in
12paragraph (3) of that subsection (c) who was not so notified
13may, by motion supported by affidavit made prior to
14confirmation of such sale, ask the court which entered the
15judgment to set aside the sale. Any such party shall guarantee
16or secure by bond a bid equal to the successful bid at the
17prior sale, unless the party seeking to set aside the sale is
18the mortgagor, the real estate sold at the sale is residential
19real estate, and the mortgagor occupies the residential real
20estate at the time the motion is filed. In that event, no
21guarantee or bond shall be required of the mortgagor. Any
22subsequent sale is subject to the same notice requirement as
23the original sale.
24    (d) Validity of Sale. Except as provided in subsection (c)
25of Section 15-1508, no sale under this Article shall be held
26invalid or be set aside because of any defect in the notice



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1thereof or in the publication of the same, or in the
2proceedings of the officer conducting the sale, except upon
3good cause shown in a hearing pursuant to subsection (b) of
4Section 15-1508. At any time after a sale has occurred, any
5party entitled to notice under paragraph (3) of subsection (c)
6of Section 15-1507 may recover from the mortgagee any damages
7caused by the mortgagee's failure to comply with such paragraph
8(3). Any party who recovers damages in a judicial proceeding
9brought under this subsection may also recover from the
10mortgagee the reasonable expenses of litigation, including
11reasonable attorney's fees.
12    (d-5) Making Home Affordable Program. The court that
13entered the judgment shall set aside a sale held pursuant to
14Section 15-1507, upon motion of the mortgagor at any time prior
15to the confirmation of the sale, if the mortgagor proves by a
16preponderance of the evidence that (i) the mortgagor has
17applied for assistance under the Making Home Affordable Program
18established by the United States Department of the Treasury
19pursuant to the Emergency Economic Stabilization Act of 2008,
20as amended by the American Recovery and Reinvestment Act of
212009, and (ii) the mortgaged real estate was sold in material
22violation of the program's requirements for proceeding to a
23judicial sale. The provisions of this subsection (d-5), except
24for this sentence, shall become inoperative on January 1, 2013
25for all actions filed under this Article after December 31,
262012, in which the mortgagor did not apply for assistance under



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1the Making Home Affordable Program on or before December 31,
3    (e) Deficiency Judgment. In any order confirming a sale
4pursuant to the judgment of foreclosure, the court shall also
5enter a personal judgment for deficiency against any party (i)
6if otherwise authorized and (ii) to the extent requested in the
7complaint and proven upon presentation of the report of sale in
8accordance with Section 15-1508. Except as otherwise provided
9in this Article, a judgment may be entered for any balance of
10money that may be found due to the plaintiff, over and above
11the proceeds of the sale or sales, and enforcement may be had
12for the collection of such balance, the same as when the
13judgment is solely for the payment of money. Such judgment may
14be entered, or enforcement had, only in cases where personal
15service has been had upon the persons personally liable for the
16mortgage indebtedness, unless they have entered their
17appearance in the foreclosure action.
18    (f) Satisfaction. Upon confirmation of the sale, the
19judgment stands satisfied to the extent of the sale price less
20expenses and costs. If the order confirming the sale includes a
21deficiency judgment, the judgment shall become a lien in the
22manner of any other judgment for the payment of money.
23    (g) The order confirming the sale shall include,
24notwithstanding any previous orders awarding possession during
25the pendency of the foreclosure, an award to the purchaser of
26possession of the mortgaged real estate, as of the date 30 days



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1after the entry of the order, against the parties to the
2foreclosure whose interests have been terminated.
3    An order of possession authorizing the removal of a person
4from possession of the mortgaged real estate shall be entered
5and enforced only against those persons personally named as
6individuals in the complaint or the petition under subsection
7(h) of Section 15-1701 and in the order of possession and shall
8not be entered and enforced against any person who is only
9generically described as an unknown owner or nonrecord claimant
10or by another generic designation in the complaint.
11    Notwithstanding the preceding paragraph, the failure to
12personally name, include, or seek an award of possession of the
13mortgaged real estate against a person in the confirmation
14order shall not abrogate any right that the purchaser may have
15to possession of the mortgaged real estate and to maintain a
16proceeding against that person for possession under Article 9
17of this Code or subsection (h) of Section 15-1701; and
18possession against a person who (1) has not been personally
19named as a party to the foreclosure and (2) has not been
20provided an opportunity to be heard in the foreclosure
21proceeding may be sought only by maintaining a proceeding under
22Article 9 of this Code or subsection (h) of Section 15-1701.
23    (h) With respect to mortgaged real estate containing 5 or
24more dwelling units, the order confirming the sale shall also
25provide that (i) the mortgagor transfer to the purchaser the
26security deposits, if any, that the mortgagor received to



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1secure payment of rent or to compensate for damage to the
2mortgaged real estate from any current occupant of a dwelling
3unit of the mortgaged real estate, as well as any statutory
4interest that has not been paid to the occupant, and (ii) the
5mortgagor provide an accounting of the security deposits that
6are transferred, including the name and address of each
7occupant for whom the mortgagor holds the deposit and the
8amount of that deposit and any statutory interest.
9(Source: P.A. 95-826, eff. 8-14-08; 96-265, eff. 8-11-09;
1096-856, 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
12adding Section 1.2 as follows:
13    (765 ILCS 710/1.2 new)
14    Sec. 1.2. Security deposit transfer. Notwithstanding
15Section 1.1, when a lessor transfers actual possession of a
16security deposit received from a lessee, including any
17statutory interest that has not been paid to a lessee, to a
18holder of the certificate of sale or deed issued pursuant to
19that certificate or, if no certificate or deed was issued, the
20purchaser of a foreclosed property under Article 15 of the Code
21of Civil Procedure, the holder or purchaser shall be liable to
22a lessee for the security deposit that the lessee paid to the
23lessor, including any statutory interest that has not been paid
24to the lessee, as provided in this Act. Within 21 days after



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1the transfer of the security deposits, the holder or purchaser
2shall post a written notice that the holder or purchaser has
3acquired the security deposit on the primary entrance of each
4dwelling unit at the property with respect to which the holder
5or purchaser has acquired actual possession of a security
7    Section 99. Effective date. This Act takes effect upon
8becoming law.".