Full Text of HB1698 97th General Assembly
HB1698sam001 97TH GENERAL ASSEMBLY | Sen. John G. Mulroe Filed: 5/18/2011
| | 09700HB1698sam001 | | LRB097 07917 AJO 55727 a |
|
| 1 | | AMENDMENT TO HOUSE BILL 1698
| 2 | | AMENDMENT NO. ______. Amend House Bill 1698 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, 15-1504.1, 15-1507.1, 15-1508, | 6 | | 15-1603, and 15-1701 and by adding Sections 15-1200.5 and | 7 | | 15-1505.8 as follows: | 8 | | (735 ILCS 5/15-1200.5 new) | 9 | | Sec. 15-1200.5. Abandoned residential property. "Abandoned | 10 | | residential property" means residential real estate that upon | 11 | | inspection is not occupied by any mortgagor or bona fide tenant | 12 | | as a principal residence and as to which at least 2 of the | 13 | | following circumstances exist: | 14 | | (1) the property has had at least one uncorrected | 15 | | municipal or county building, housing, or similar code | 16 | | violation in the preceding year, or has been declared unfit |
| | | 09700HB1698sam001 | - 2 - | LRB097 07917 AJO 55727 a |
|
| 1 | | for occupancy and ordered to remain vacant and unoccupied | 2 | | by a municipal or county authority; | 3 | | (2) construction was initiated on the property and | 4 | | discontinued prior to completion, and there is no valid | 5 | | municipal or county construction or building permit posted | 6 | | on the property; | 7 | | (3) gas, electric, or water utility service to the | 8 | | property has been terminated; | 9 | | (4) windows or entrances to the property are boarded up | 10 | | or closed off, or multiple window panes are broken and | 11 | | unrepaired; | 12 | | (5) doors to the property are smashed through, broken | 13 | | off, unhinged, or continuously unlocked; | 14 | | (6) rubbish, trash, garbage, debris, graffiti, | 15 | | neglected weeds, grass, trees, bushes, or other nuisance | 16 | | greenery, or other hazardous, noxious, or unhealthy | 17 | | substances or materials, have accumulated on the property; | 18 | | (7) the police or the sheriff's office has received at | 19 | | least one report of trespassing, vandalism, or other | 20 | | illegal activity being committed on the property in the | 21 | | preceding year; | 22 | | (8) pursuant to the terms of the mortgage, the | 23 | | mortgagee has posted a pre-foreclosure notice of its intent | 24 | | to enter the property for purposes of maintaining or | 25 | | repairing it, and upon entering the property following the | 26 | | posting of the notice and a lack of response by the |
| | | 09700HB1698sam001 | - 3 - | LRB097 07917 AJO 55727 a |
|
| 1 | | mortgagor, has found the property unoccupied; | 2 | | (9) the mortgagee or an interested or authorized party | 3 | | has secured or winterized the property due to the property | 4 | | being deemed vacant and unprotected or in danger of | 5 | | freezing; | 6 | | (10) any mortgagor, or his or her personal | 7 | | representatives or assigns, has issued an oral or written | 8 | | statement expressing the clear intent of all mortgagors to | 9 | | abandon the property; | 10 | | (11) any property manager or other person conducting an | 11 | | inspection of the property has issued an oral or written | 12 | | statement indicating all mortgagors or bona fide tenants | 13 | | have moved out and vacated the property; | 14 | | (12) the property is a vacant lot; | 15 | | (13) the property is deteriorating and is either below | 16 | | or is in imminent danger of falling below minimum municipal | 17 | | or county government standards for public safety and | 18 | | sanitation; or | 19 | | (14) any other reasonable indicia of abandonment that | 20 | | is not otherwise included in this Section.
| 21 | | (735 ILCS 5/15-1504) (from Ch. 110, par. 15-1504)
| 22 | | Sec. 15-1504. Pleadings and service.
| 23 | | (a) Form of Complaint. A foreclosure complaint
may be in | 24 | | substantially the following form:
| 25 | | (1) Plaintiff files this complaint to foreclose the |
| | | 09700HB1698sam001 | - 4 - | LRB097 07917 AJO 55727 a |
|
| 1 | | mortgage (or other
conveyance in the nature of a mortgage) | 2 | | (hereinafter called "mortgage")
hereinafter described and | 3 | | joins the following person as defendants: (here
insert | 4 | | names of all defendants).
| 5 | | (2) Attached as Exhibit "A" is a copy of the mortgage | 6 | | and as Exhibit "B"
is a copy of the note secured thereby.
| 7 | | (3) Information concerning mortgage:
| 8 | | (A) Nature of instrument: (here insert whether a | 9 | | mortgage, trust deed or
other instrument in the nature | 10 | | of a mortgage, etc.)
| 11 | | (B) Date of mortgage:
| 12 | | (C) Name of mortgagor:
| 13 | | (D) Name of mortgagee:
| 14 | | (E) Date and place of recording:
| 15 | | (F) Identification of recording: (here insert book | 16 | | and page number or document number)
| 17 | | (G) Interest subject to the mortgage: (here insert | 18 | | whether fee simple,
estate for years, undivided | 19 | | interest, etc.)
| 20 | | (H) Amount of original indebtedness, including | 21 | | subsequent advances made
under the mortgage:
| 22 | | (I) Both the legal description of the mortgaged | 23 | | real estate and the
common address or other information | 24 | | sufficient to identify it with reasonable certainty:
| 25 | | (J) Statement as to defaults, including, but not | 26 | | necessarily
limited to, date of default, current |
| | | 09700HB1698sam001 | - 5 - | LRB097 07917 AJO 55727 a |
|
| 1 | | unpaid principal balance, per diem
interest accruing, | 2 | | and any further information concerning the default:
| 3 | | (K) Name of present owner of the real estate:
| 4 | | (L) Names of other persons who are joined as | 5 | | defendants and whose
interest in or lien on the | 6 | | mortgaged real estate is sought to be terminated:
| 7 | | (M) Names of defendants claimed to be personally | 8 | | liable
for deficiency, if any:
| 9 | | (N) Capacity in which plaintiff brings this | 10 | | foreclosure (here indicate
whether plaintiff is the | 11 | | legal holder of the indebtedness, a pledgee, an
agent, | 12 | | the trustee under a trust deed or otherwise, as | 13 | | appropriate):
| 14 | | (O) Facts in support of redemption period shorter | 15 | | than
the longer of (i) 7 months from the date the | 16 | | mortgagor or, if more than
one, all the mortgagors (I) | 17 | | have been served with summons or by publication
or (II) | 18 | | have otherwise submitted to the jurisdiction of the | 19 | | court, or (ii)
3 months from the entry of the judgment | 20 | | of foreclosure, if sought (here
indicate whether based | 21 | | upon the real estate not being residential ,
| 22 | | abandonment, or real estate value less than 90%
of | 23 | | amount owed, etc.):
| 24 | | (P) Statement that the right of redemption has been | 25 | | waived by all
owners of redemption, if applicable:
| 26 | | (Q) Facts in support of request for attorneys' fees |
| | | 09700HB1698sam001 | - 6 - | LRB097 07917 AJO 55727 a |
|
| 1 | | and of costs and
expenses, if applicable:
| 2 | | (R) Facts in support of a request for appointment | 3 | | of mortgagee in
possession or for appointment of | 4 | | receiver, and identity of such receiver, if
sought:
| 5 | | (S) Offer to mortgagor in accordance with Section | 6 | | 15-1402 to accept
title to the real estate in | 7 | | satisfaction of all indebtedness and
obligations | 8 | | secured by the mortgage without judicial sale, if | 9 | | sought:
| 10 | | (T) Name or names of defendants whose right to
| 11 | | possess the mortgaged real estate, after the | 12 | | confirmation of a foreclosure
sale, is
sought to be | 13 | | terminated and, if not elsewhere stated, the facts in | 14 | | support
thereof:
| 15 | | REQUEST FOR RELIEF
| 16 | | Plaintiff requests:
| 17 | | (i) A judgment of foreclosure and sale.
| 18 | | (ii) An order granting a shortened redemption period, | 19 | | if sought.
| 20 | | (iii) A personal judgment for a deficiency, if sought.
| 21 | | (iv) An order granting possession, if sought.
| 22 | | (v) An order placing the mortgagee in possession or | 23 | | appointing a receiver,
if sought.
| 24 | | (vi) A judgment for attorneys' fees, costs and | 25 | | expenses, if sought.
|
| | | 09700HB1698sam001 | - 7 - | LRB097 07917 AJO 55727 a |
|
| 1 | | (b) Required Information. A foreclosure complaint need | 2 | | contain only such
statements and requests called for by the | 3 | | form set forth in subsection (a) of
Section
15-1504 as may be | 4 | | appropriate for the relief sought. Such complaint may
be filed | 5 | | as a counterclaim, may be joined with other counts or may | 6 | | include
in the same count additional matters or a request for | 7 | | any additional
relief permitted by Article
II of the Code of | 8 | | Civil Procedure.
| 9 | | (c) Allegations. The statements contained in a complaint in | 10 | | the form
set forth in subsection (a) of Section 15-1504 are | 11 | | deemed and construed to include
allegations as follows:
| 12 | | (1) on the date indicated the obligor of the | 13 | | indebtedness or other
obligations secured by the mortgage | 14 | | was justly indebted in the amount of
the indicated original | 15 | | indebtedness to the original mortgagee or payee of
the | 16 | | mortgage note;
| 17 | | (2) that the exhibits attached are true and correct | 18 | | copies of the
mortgage and note and are incorporated and | 19 | | made a part of the complaint by
express reference;
| 20 | | (3) that the mortgagor was at the date indicated an | 21 | | owner of the
interest in the real estate described in the | 22 | | complaint and that as of that
date made, executed and | 23 | | delivered the mortgage as security for the note or
other | 24 | | obligations;
| 25 | | (4) that the mortgage was recorded in the county in | 26 | | which the mortgaged
real estate is located, on the date |
| | | 09700HB1698sam001 | - 8 - | LRB097 07917 AJO 55727 a |
|
| 1 | | indicated, in the book and page or as
the document number | 2 | | indicated;
| 3 | | (5) that defaults occurred as indicated;
| 4 | | (6) that at the time of the filing of the complaint the | 5 | | persons named as
present owners are the owners of the | 6 | | indicated interests in and to the real
estate described;
| 7 | | (7) that the mortgage constitutes a valid, prior and | 8 | | paramount lien upon
the indicated interest in the mortgaged | 9 | | real estate, which lien is prior and
superior to the right, | 10 | | title, interest, claim or lien of all parties and
nonrecord | 11 | | claimants whose interests in the mortgaged real estate are
| 12 | | sought to be terminated;
| 13 | | (8) that by reason of the defaults alleged, if the | 14 | | indebtedness has not
matured by its terms, the same has | 15 | | become due by the exercise, by the
plaintiff or other | 16 | | persons having such power, of a right or power to
declare | 17 | | immediately due and payable the whole of all indebtedness | 18 | | secured
by the mortgage;
| 19 | | (9) that any and all notices of default or election to | 20 | | declare the
indebtedness due and payable or other notices | 21 | | required to be given have
been duly and properly given;
| 22 | | (10) that any and all periods of grace or other period | 23 | | of time allowed
for the performance of the covenants or | 24 | | conditions claimed to be breached
or for the curing of any | 25 | | breaches have expired;
| 26 | | (11) that the amounts indicated in the statement
in the |
| | | 09700HB1698sam001 | - 9 - | LRB097 07917 AJO 55727 a |
|
| 1 | | complaint are correctly stated and
if such statement | 2 | | indicates any advances made or to be made by the
plaintiff | 3 | | or owner of the mortgage indebtedness, that such advances | 4 | | were,
in fact, made or will be
required to be made, and | 5 | | under and by virtue of the mortgage the same
constitute | 6 | | additional indebtedness secured by the mortgage; and
| 7 | | (12) that, upon confirmation of the sale, the holder of | 8 | | the certificate
of sale or deed issued pursuant to that | 9 | | certificate or, if no certificate or
deed was issued, the | 10 | | purchaser at the sale will be entitled to full possession
| 11 | | of the mortgaged real estate against the parties
named in | 12 | | clause (T) of
paragraph (3) of subsection (a) of Section | 13 | | 15-1504 or elsewhere to the same
effect;
the omission of | 14 | | any
party indicates that plaintiff will not seek a | 15 | | possessory order in the order
confirming sale unless the | 16 | | request is subsequently made under subsection (h) of
| 17 | | Section 15-1701 or by separate action under Article 9 of | 18 | | this Code.
| 19 | | (d) Request for Fees and Costs. A statement in the | 20 | | complaint that
plaintiff seeks the inclusion of attorneys' fees | 21 | | and of costs and expenses
shall be deemed and construed to | 22 | | include allegations that:
| 23 | | (1) plaintiff has been compelled to employ and retain | 24 | | attorneys to
prepare and file the complaint and to | 25 | | represent and advise the plaintiff in
the foreclosure of | 26 | | the mortgage and the plaintiff will thereby become
liable |
| | | 09700HB1698sam001 | - 10 - | LRB097 07917 AJO 55727 a |
|
| 1 | | for the usual, reasonable and customary fees of the | 2 | | attorneys in
that behalf;
| 3 | | (2) that the plaintiff has been compelled to advance or | 4 | | will be
compelled to advance, various sums of money in | 5 | | payment of costs, fees,
expenses and disbursements | 6 | | incurred in connection with the foreclosure,
including, | 7 | | without limiting the generality of the foregoing, filing | 8 | | fees,
stenographer's fees, witness fees, costs of | 9 | | publication, costs of procuring
and preparing documentary | 10 | | evidence and costs of procuring
abstracts of title, Torrens | 11 | | certificates, foreclosure minutes and a title
insurance | 12 | | policy;
| 13 | | (3) that under the terms of the mortgage, all such | 14 | | advances, costs,
attorneys' fees and other fees, expenses | 15 | | and disbursements are made a lien
upon the mortgaged real | 16 | | estate and the plaintiff is entitled to recover all
such | 17 | | advances, costs, attorneys' fees, expenses and | 18 | | disbursements, together
with interest on all advances at | 19 | | the rate provided in the mortgage, or, if
no rate is | 20 | | provided therein, at the statutory judgment rate, from the
| 21 | | date on which such advances are made;
| 22 | | (4) that in order to protect the lien of the mortgage, | 23 | | it may become
necessary for plaintiff to pay taxes and | 24 | | assessments which have been or may
be levied upon the | 25 | | mortgaged real estate;
| 26 | | (5) that in order to protect and preserve the mortgaged |
| | | 09700HB1698sam001 | - 11 - | LRB097 07917 AJO 55727 a |
|
| 1 | | real estate, it
may also become necessary for the plaintiff | 2 | | to pay liability (protecting
mortgagor and mortgagee), | 3 | | fire and other hazard
insurance premiums on the mortgaged | 4 | | real estate, make such repairs
to the mortgaged real
estate | 5 | | as may reasonably be deemed necessary for the proper | 6 | | preservation
thereof, advance for costs to inspect the | 7 | | mortgaged real estate or to
appraise it, or both, and | 8 | | advance for premiums for pre-existing private or
| 9 | | governmental mortgage insurance to the extent required | 10 | | after a foreclosure
is commenced in order to keep such | 11 | | insurance in force; and
| 12 | | (6) that under the terms of the mortgage, any money so | 13 | | paid or expended
will become an additional indebtedness | 14 | | secured by the mortgage and will bear
interest from the | 15 | | date such monies are advanced at the rate provided in the
| 16 | | mortgage, or, if no rate is provided, at the
statutory | 17 | | judgment rate.
| 18 | | (e) Request for Foreclosure. The request for foreclosure is | 19 | | deemed and
construed to mean that the plaintiff requests that:
| 20 | | (1) an accounting may be taken under the direction of | 21 | | the court of the
amounts due and owing to the plaintiff;
| 22 | | (2) that the defendants be ordered to pay to the | 23 | | plaintiff before
expiration of any redemption period (or, | 24 | | if no redemption period, before a
short date fixed by the | 25 | | court) whatever sums may appear to be due upon the taking
| 26 | | of such account,
together with attorneys' fees and costs of |
| | | 09700HB1698sam001 | - 12 - | LRB097 07917 AJO 55727 a |
|
| 1 | | the proceedings (to the extent
provided in the mortgage or | 2 | | by law);
| 3 | | (3) that in default of such payment in accordance with | 4 | | the judgment, the
mortgaged real estate be sold as directed | 5 | | by the court, to satisfy the
amount due to the plaintiff as | 6 | | set forth in the judgment, together with the
interest | 7 | | thereon at the statutory judgment rate from the date of the | 8 | | judgment;
| 9 | | (4) that in the event the plaintiff is a purchaser of | 10 | | the mortgaged real
estate at such sale, the plaintiff may | 11 | | offset against the purchase price of
such real estate the | 12 | | amounts due under the judgment of foreclosure and
order | 13 | | confirming the sale;
| 14 | | (5) that in the event of such sale and the failure of | 15 | | any person entitled
thereto to redeem prior to such sale | 16 | | pursuant to this Article, the
defendants made parties to | 17 | | the foreclosure in accordance with this Article,
and all | 18 | | nonrecord claimants given notice of the foreclosure in | 19 | | accordance
with this Article, and all persons claiming by, | 20 | | through or under them, and
each and any and all of them, | 21 | | may be forever barred and foreclosed of any
right, title, | 22 | | interest, claim, lien, or right to redeem in and to the
| 23 | | mortgaged real estate; and
| 24 | | (6) that if no redemption is made prior to such sale, a | 25 | | deed may be
issued to the purchaser thereat according to | 26 | | law and such purchaser be let
into possession of the |
| | | 09700HB1698sam001 | - 13 - | LRB097 07917 AJO 55727 a |
|
| 1 | | mortgaged real estate in accordance with Part 17 of this | 2 | | Article.
| 3 | | (f) Request for Deficiency Judgment. A request for a | 4 | | personal judgment
for a deficiency in a foreclosure complaint | 5 | | if the sale of the mortgaged
real estate fails to produce a | 6 | | sufficient amount to pay the amount found
due, the plaintiff | 7 | | may have a personal judgment against any party in the
| 8 | | foreclosure indicated as being personally liable therefor and | 9 | | the enforcement
thereof be had as provided by law.
| 10 | | (g) Request for Possession or Receiver. A request for | 11 | | possession or appointment
of a receiver has the meaning as | 12 | | stated in subsection (b) of Section 15-1706.
| 13 | | (h) Answers by Parties. Any party
may assert its interest | 14 | | by counterclaim and such counterclaim may at the
option of that | 15 | | party stand in lieu of answer to the complaint for
foreclosure | 16 | | and all counter complaints previously or thereafter filed
in | 17 | | the foreclosure. Any such counterclaim shall be deemed to | 18 | | constitute a
statement that the counter claimant does not have | 19 | | sufficient knowledge to
form a belief as to the truth or | 20 | | falsity of the
allegations of the complaint and all other | 21 | | counterclaims, except
to the extent that the counterclaim | 22 | | admits or specifically denies such
allegations.
| 23 | | (Source: P.A. 91-357, eff. 7-29-99.)
| 24 | | (735 ILCS 5/15-1504.1) | 25 | | Sec. 15-1504.1. Filing fee for Abandoned Residential |
| | | 09700HB1698sam001 | - 14 - | LRB097 07917 AJO 55727 a |
|
| 1 | | Property Municipality Relief Foreclosure Prevention Program | 2 | | Fund. | 3 | | (a) With respect to residential real estate, at the time of | 4 | | the filing of a foreclosure complaint, the plaintiff shall pay | 5 | | to the clerk of the court in which the foreclosure complaint is | 6 | | filed a fee of $50 for deposit into the Abandoned Residential | 7 | | Property Municipality Relief Foreclosure Prevention Program | 8 | | Fund, a special
fund created in the State treasury. The clerk | 9 | | shall remit the fee to the State Treasurer as provided in this | 10 | | Section to be expended for the purposes set forth in Section | 11 | | 7.31 7.30 of the Illinois Housing Development Act. All fees | 12 | | paid by plaintiffs to the clerk of the court as provided in | 13 | | this Section shall be disbursed within 60 days after receipt by | 14 | | the clerk of the court as follows: (i) 98% to the State | 15 | | Treasurer for deposit into the Abandoned Residential Property | 16 | | Municipality Relief Foreclosure Prevention Counseling Program | 17 | | Fund, and (ii) 2% to the clerk of the court for administrative | 18 | | expenses related to implementation of this Section. | 19 | | (b) Not later than March 1 of each year, the clerk of the | 20 | | court shall submit to the Illinois Housing Development | 21 | | Authority a report of the funds collected and remitted pursuant | 22 | | to this Section during the preceding year.
| 23 | | (c) Subsection (a) shall become inoperative on January 1, | 24 | | 2016. This Section is repealed on March 2, 2016. | 25 | | (Source: P.A. 96-1419, eff. 10-1-10; revised 9-16-10.) |
| | | 09700HB1698sam001 | - 15 - | LRB097 07917 AJO 55727 a |
|
| 1 | | (735 ILCS 5/15-1505.8 new) | 2 | | Sec. 15-1505.8. Expedited judgment and sale procedure for | 3 | | abandoned residential property. | 4 | | (a) Upon motion and notice, the mortgagee may elect to | 5 | | utilize the expedited judgment and sale procedure for abandoned | 6 | | residential property set forth in this Section to obtain a | 7 | | judgment of foreclosure pursuant to Section 15-1506. The motion | 8 | | may be combined with or made part of the motion requesting a | 9 | | judgment of foreclosure. If service upon the mortgagor was | 10 | | obtained by publication, then notice of the motion to the | 11 | | mortgagor shall be posted at the property address. | 12 | | (b) The motion requesting an expedited judgment of | 13 | | foreclosure and sale may be filed by the mortgagee at the time | 14 | | the foreclosure complaint is filed or any time thereafter and | 15 | | shall be accompanied by an affidavit setting forth facts | 16 | | sufficient for the court to find that the mortgaged real estate | 17 | | is abandoned residential property. | 18 | | (c) Motion for an expedited judgment and sale. | 19 | | (1) If a motion for an expedited judgment and sale is | 20 | | filed at the time the foreclosure complaint is filed, the | 21 | | motion shall be heard by the court no later than: | 22 | | (A) 45 days after the date of service of the | 23 | | summons on the mortgagor or, if more than one, no later | 24 | | than 45 days after the date of service on the last | 25 | | served mortgagor; | 26 | | (B) 45 days after the date of first publication, if |
| | | 09700HB1698sam001 | - 16 - | LRB097 07917 AJO 55727 a |
|
| 1 | | service of process is by publication; or | 2 | | (C) 45 days after the mortgagors have otherwise | 3 | | submitted to the jurisdiction of the court. | 4 | | (2) If a motion for an expedited judgment and sale is | 5 | | filed after the foreclosure complaint is filed, the motion | 6 | | shall be heard no later than 15 days after the motion is | 7 | | filed, provided that at least: | 8 | | (A) 30 days have transpired since service of the | 9 | | summons on the mortgagor, or, if there is more than one | 10 | | mortgagor, 30 days have transpired since service on all | 11 | | mortgagors; or | 12 | | (B) 30 days have transpired since the date of first | 13 | | publication, if service of process is by publication; | 14 | | or | 15 | | (C) 30 days have transpired since all mortgagors | 16 | | have otherwise submitted to the jurisdiction of the | 17 | | court. | 18 | | (d) The hearing shall be given priority by the court and | 19 | | shall be scheduled to be heard within the applicable time | 20 | | period set forth in subsection (c). | 21 | | (e) The affidavit shall be signed by and based upon the | 22 | | information and belief of the mortgagee, an agent of the | 23 | | mortgagee, the sheriff of the county or local law enforcement | 24 | | agency of the municipality in which the property is located, or | 25 | | a building inspector or other municipal or county official for | 26 | | the municipality or county in which the property is located. |
| | | 09700HB1698sam001 | - 17 - | LRB097 07917 AJO 55727 a |
|
| 1 | | The affidavit shall state that the property is not occupied by | 2 | | any mortgagor or bona fide tenant as a principal residence and | 3 | | there exists at least 2 of the criteria set forth in Section | 4 | | 15-1200.5, which shall be stated in the affidavit. Photographic | 5 | | or other documentary evidence that demonstrates supporting | 6 | | facts set forth in the affidavit shall be attached to the | 7 | | affidavit. An affidavit that meets the foregoing criteria shall | 8 | | be prima facie evidence that the property which is the subject | 9 | | of the foreclosure complaint is abandoned residential | 10 | | property. | 11 | | (f) At the hearing on the motion requesting an expedited | 12 | | judgment and sale, and upon a finding by the court that the | 13 | | mortgaged real estate is abandoned residential property, the | 14 | | court shall immediately proceed to enter a judgment of | 15 | | foreclosure as requested in the complaint. The judgment of | 16 | | foreclosure shall include the matters identified in Section | 17 | | 15-1506. | 18 | | (g) The reinstatement period and redemption period for the | 19 | | abandoned residential property shall end in accordance with | 20 | | paragraph (4) of subsection (b) of Section 15-1603, and the | 21 | | property shall be sold at the earliest practicable time at a | 22 | | sale as provided in this Article. | 23 | | (h) Mortgagee responsibility. | 24 | | (1) A mortgagee or its agent may enter an abandoned | 25 | | residential property that is the subject of a foreclosure | 26 | | complaint for the purpose of maintaining or securing the |
| | | 09700HB1698sam001 | - 18 - | LRB097 07917 AJO 55727 a |
|
| 1 | | property, provided that entry is not barred by an automatic | 2 | | stay issued by a bankruptcy court. A mortgagee and its | 3 | | agents shall not be held liable for any claim of | 4 | | negligence, civil trespass, or criminal trespass based | 5 | | upon entering the abandoned residential property or | 6 | | maintaining or securing the abandoned residential | 7 | | property. | 8 | | (2) The mortgagee shall be responsible for repairs or | 9 | | other maintenance to the abandoned residential property if | 10 | | it purchases the property at the foreclosure sale held | 11 | | pursuant to Section 15-1507 and the sale is confirmed by | 12 | | the court pursuant to Section 15-1508. | 13 | | (i) Upon confirmation of the sale held pursuant to Section | 14 | | 15-1507, any personal property remaining in or upon the | 15 | | abandoned residential property shall be deemed to have been | 16 | | abandoned by the owner of such personal property and may be | 17 | | disposed of or donated by the holder of the certificate of sale | 18 | | or, if none, by the purchaser at the sale. In the event of | 19 | | donation of any such personal property, the holder of the | 20 | | certificate of sale or, if none, the purchaser at the sale may | 21 | | transfer such donated property with a bill of sale. No | 22 | | mortgagee or its successors or assigns, holder of a certificate | 23 | | of sale, or purchaser at the sale, or its attorneys or agents, | 24 | | shall be liable for any such disposal or donation of personal | 25 | | property. | 26 | | (j) No mortgagee shall be held liable for seeking a |
| | | 09700HB1698sam001 | - 19 - | LRB097 07917 AJO 55727 a |
|
| 1 | | judicial determination of abandonment, if the mortgagee, upon | 2 | | information and belief at the time the motion requesting an | 3 | | expedited judgment of foreclosure and sale is filed with the | 4 | | court, makes a good faith assertion through its affidavit that | 5 | | evidence exists supporting the fact the mortgaged real estate | 6 | | is abandoned residential property. | 7 | | (735 ILCS 5/15-1507.1) | 8 | | (Section scheduled to be repealed on March 2, 2016) | 9 | | Sec. 15-1507.1. Judicial sale fee for Foreclosure | 10 | | Prevention Program Abandoned Residential Property Municipality | 11 | | Relief Fund. | 12 | | (a) Upon and at the sale of residential real estate under | 13 | | Section 15-1507, the purchaser shall pay to the person | 14 | | conducting the sale pursuant to Section 15-1507 a fee for | 15 | | deposit into the Foreclosure Prevention Program Abandoned | 16 | | Residential Property Municipality Relief Fund, a special
fund | 17 | | created in the State treasury. The fee shall be calculated at | 18 | | the rate of $1 for each $1,000 or fraction thereof of the | 19 | | amount paid by the purchaser to the person conducting the sale, | 20 | | as reflected in the receipt of sale issued to the purchaser, | 21 | | provided that in no event shall the fee exceed $300. No fee | 22 | | shall be paid by the mortgagee acquiring the residential real | 23 | | estate pursuant to its credit bid at the sale or by any | 24 | | mortgagee, judgment creditor, or other lienor acquiring the | 25 | | residential real estate whose rights in and to the residential |
| | | 09700HB1698sam001 | - 20 - | LRB097 07917 AJO 55727 a |
|
| 1 | | real estate arose prior to the sale. Upon confirmation of the | 2 | | sale under Section 15-1508, the person conducting the sale | 3 | | shall remit the fee to the clerk of the court in which the | 4 | | foreclosure case is pending. The clerk shall remit the fee to | 5 | | the State Treasurer as provided in this Section, to be expended | 6 | | for the purposes set forth in Section 7.30 7.31 of the Illinois | 7 | | Housing Development Act. | 8 | | (b) All fees paid by purchasers as provided in this Section | 9 | | shall be disbursed within 60 days after receipt by the clerk of | 10 | | the court as follows: (i) 98% to the State Treasurer for | 11 | | deposit into the Foreclosure Prevention Program Abandoned | 12 | | Residential Property Municipality Relief Fund, and (ii) 2% to | 13 | | the clerk of the court for administrative expenses related to | 14 | | implementation of this Section. | 15 | | (c) Not later than March 1 of each year, the clerk of the | 16 | | court shall submit to the Illinois Housing Development | 17 | | Authority a report of the funds collected and remitted during | 18 | | the preceding year pursuant to this Section. | 19 | | (d) (Blank.) Subsections (a) and (b) of this Section shall | 20 | | become inoperative on January 1, 2016. This Section is repealed | 21 | | on March 2, 2016.
| 22 | | (Source: P.A. 96-1419, eff. 10-1-10.) | 23 | | (735 ILCS 5/15-1508) (from Ch. 110, par. 15-1508) | 24 | | Sec. 15-1508. Report of Sale and Confirmation of Sale. | 25 | | (a) Report. The person conducting the sale shall promptly |
| | | 09700HB1698sam001 | - 21 - | LRB097 07917 AJO 55727 a |
|
| 1 | | make a report to
the court, which report shall include a copy | 2 | | of all receipts and, if any,
certificate of sale. | 3 | | (b) Hearing. Upon motion and notice in accordance with | 4 | | court rules
applicable to motions generally, which motion shall | 5 | | not be made prior to
sale, the court shall conduct a hearing to
| 6 | | confirm the sale. Unless the court finds that (i) a notice | 7 | | required in
accordance with subsection (c) of Section 15-1507 | 8 | | was not given, (ii) the
terms of sale were unconscionable, | 9 | | (iii) the sale was conducted
fraudulently , or (iv) that justice | 10 | | was otherwise not done, the court shall
then enter an order | 11 | | confirming the sale. The confirmation order shall include a | 12 | | name, address, and telephone number of the holder of the | 13 | | certificate of sale or deed issued pursuant to that certificate | 14 | | or, if no certificate or deed was issued, the purchaser, whom a | 15 | | municipality or county may contact with concerns about the real | 16 | | estate. The confirmation order may
also: | 17 | | (1) approve the mortgagee's fees and costs arising | 18 | | between the entry of
the judgment of foreclosure and the | 19 | | confirmation hearing, those costs and
fees to be allowable | 20 | | to the same extent as provided in the note and mortgage
and | 21 | | in Section 15-1504; | 22 | | (2) provide for a personal judgment against any party | 23 | | for a deficiency;
and | 24 | | (3) determine the priority of the judgments of parties | 25 | | who deferred proving
the priority pursuant to subsection | 26 | | (h) of Section 15-1506, but
the court shall not
defer |
| | | 09700HB1698sam001 | - 22 - | LRB097 07917 AJO 55727 a |
|
| 1 | | confirming the sale pending the determination of such | 2 | | priority. | 3 | | (b-3) Hearing to confirm sale of abandoned residential | 4 | | property. Upon motion and notice, which motion shall be made | 5 | | prior to the sale and heard by the court upon conclusion of the | 6 | | sale, the court shall enter an order confirming the sale of the | 7 | | abandoned residential property, unless the court finds that a | 8 | | reason set forth in items (i) through (iv) of subsection (b) of | 9 | | this Section exists for not approving the sale. The | 10 | | confirmation order also may address the matters identified in | 11 | | items (1) through (3) of subsection (b) of this Section. | 12 | | Notwithstanding anything to the contrary in subsection (g) of | 13 | | this Section, the order confirming the sale of the abandoned | 14 | | residential property shall award to the purchaser possession of | 15 | | the property as of the date of the entry of the order | 16 | | confirming the sale. | 17 | | (b-5) Notice with respect to residential real estate. With | 18 | | respect to residential real estate, the notice required under | 19 | | subsection (b) of this Section shall be sent to the mortgagor | 20 | | even if the mortgagor has previously been held in default. In | 21 | | the event the mortgagor has filed an appearance, the notice | 22 | | shall be sent to the address indicated on the appearance. In | 23 | | all other cases, the notice shall be sent to the mortgagor at | 24 | | the common address of the foreclosed property. The notice shall | 25 | | be sent by first class mail. Unless the right to possession has | 26 | | been previously terminated by the court, the notice shall |
| | | 09700HB1698sam001 | - 23 - | LRB097 07917 AJO 55727 a |
|
| 1 | | include the following language in 12-point boldface | 2 | | capitalized type: | 3 | | IF YOU ARE THE MORTGAGOR (HOMEOWNER), YOU HAVE THE RIGHT TO | 4 | | REMAIN IN POSSESSION FOR 30 DAYS AFTER ENTRY OF AN ORDER OF | 5 | | POSSESSION, IN ACCORDANCE WITH SECTION 15-1701(c) OF THE | 6 | | ILLINOIS MORTGAGE FORECLOSURE LAW. | 7 | | (b-10) Notice of confirmation order sent to municipality or | 8 | | county. A copy of the confirmation order required under | 9 | | subsection (b) shall be sent to the municipality in which the | 10 | | foreclosed property is located, or to the county within the | 11 | | boundary of which the foreclosed property is located if the | 12 | | foreclosed property is located in an unincorporated territory. | 13 | | A municipality or county must clearly publish on its website a | 14 | | single address to which such notice shall be sent. If a | 15 | | municipality or county does not maintain a website, then the | 16 | | municipality or county must publicly post in its main office a | 17 | | single address to which such notice shall be sent. In the event | 18 | | that a municipality or county has not complied with the | 19 | | publication requirement in this subsection (b-10), then such | 20 | | notice to the municipality or county shall be provided pursuant | 21 | | to Section 2-211 of the Code of Civil Procedure. | 22 | | (c) Failure to Give Notice. If any sale is held without | 23 | | compliance with
subsection (c) of Section 15-1507 of this | 24 | | Article, any party entitled to
the notice provided for in | 25 | | paragraph (3) of that subsection
(c) who was not so notified | 26 | | may, by motion supported by affidavit
made prior to |
| | | 09700HB1698sam001 | - 24 - | LRB097 07917 AJO 55727 a |
|
| 1 | | confirmation of such sale, ask the court which entered the
| 2 | | judgment to set aside the sale. Any such party shall guarantee | 3 | | or secure by bond a bid equal to the successful bid at the | 4 | | prior sale, unless the party seeking to set aside the sale is | 5 | | the mortgagor, the real estate sold at the sale is residential | 6 | | real estate, and the mortgagor occupies the residential real | 7 | | estate at the time the motion is filed. In that event, no | 8 | | guarantee or bond shall be required of the mortgagor. Any
| 9 | | subsequent sale is subject to the same notice requirement as | 10 | | the original sale. | 11 | | (d) Validity of Sale. Except as provided in subsection (c) | 12 | | of Section
15-1508, no sale under this Article shall be held | 13 | | invalid or be set aside
because of any defect in the notice | 14 | | thereof or in the publication of the
same, or in the | 15 | | proceedings of the officer conducting the sale, except upon
| 16 | | good cause shown in a hearing pursuant to subsection (b) of | 17 | | Section
15-1508. At any time after a sale has occurred, any | 18 | | party entitled to
notice under paragraph (3) of subsection (c) | 19 | | of Section 15-1507 may recover
from the mortgagee any damages | 20 | | caused by the mortgagee's failure to comply
with such paragraph | 21 | | (3). Any party who recovers damages in a judicial
proceeding | 22 | | brought under this subsection may also recover from the
| 23 | | mortgagee the reasonable expenses of litigation, including | 24 | | reasonable attorney's fees. | 25 | | (d-5) Making Home Affordable Program. The court that | 26 | | entered the judgment shall set aside a sale held pursuant to |
| | | 09700HB1698sam001 | - 25 - | LRB097 07917 AJO 55727 a |
|
| 1 | | Section 15-1507, upon motion of the mortgagor at any time prior | 2 | | to the confirmation of the sale, if the mortgagor proves by a | 3 | | preponderance of the evidence that (i) the mortgagor has | 4 | | applied for assistance under the Making Home Affordable Program | 5 | | established by the United States Department of the Treasury | 6 | | pursuant to the Emergency Economic Stabilization Act of 2008, | 7 | | as amended by the American Recovery and Reinvestment Act of | 8 | | 2009, and (ii) the mortgaged real estate was sold in material | 9 | | violation of the program's requirements for proceeding to a | 10 | | judicial sale. The provisions of this subsection (d-5), except | 11 | | for this sentence, shall become inoperative on January 1, 2013 | 12 | | for all actions filed under this Article after December 31, | 13 | | 2012, in which the mortgagor did not apply for assistance under | 14 | | the Making Home Affordable Program on or before December 31, | 15 | | 2012. | 16 | | (e) Deficiency Judgment. In any order confirming a sale | 17 | | pursuant to the
judgment of foreclosure, the court shall also | 18 | | enter a personal judgment
for deficiency against any party (i) | 19 | | if otherwise authorized and (ii) to
the extent requested in the | 20 | | complaint and proven upon presentation of the
report of sale in | 21 | | accordance with Section 15-1508. Except as otherwise provided
| 22 | | in this Article, a judgment may be entered for any balance of | 23 | | money that
may be found due to the plaintiff, over and above | 24 | | the proceeds of the sale
or sales, and enforcement may be had | 25 | | for the collection of such balance,
the same as when the | 26 | | judgment is solely for the payment of money. Such
judgment may |
| | | 09700HB1698sam001 | - 26 - | LRB097 07917 AJO 55727 a |
|
| 1 | | be entered, or enforcement had,
only in cases where personal | 2 | | service has been had upon the
persons personally liable for the | 3 | | mortgage indebtedness, unless they have
entered their | 4 | | appearance in the foreclosure action. | 5 | | (f) Satisfaction. Upon confirmation of the sale, the
| 6 | | judgment stands satisfied to the extent of the sale price less | 7 | | expenses and
costs. If the order confirming the sale includes a | 8 | | deficiency judgment, the
judgment shall become a lien in the | 9 | | manner of any other
judgment for the payment of money. | 10 | | (g) The order confirming the sale shall include, | 11 | | notwithstanding any
previous orders awarding possession during | 12 | | the pendency of the foreclosure, an
award to the purchaser of | 13 | | possession of the mortgaged real estate, as of the
date 30 days | 14 | | after the entry of the order, against the
parties to the | 15 | | foreclosure whose interests have been terminated. | 16 | | An order of possession authorizing the removal of a person | 17 | | from possession
of the mortgaged real estate shall be entered | 18 | | and enforced only against those
persons personally
named as | 19 | | individuals in the complaint or the petition under subsection | 20 | | (h)
of Section 15-1701 and in the order of possession and shall
| 21 | | not be entered and enforced against any person who is only | 22 | | generically
described as an
unknown owner or nonrecord claimant | 23 | | or by another generic designation in the
complaint. | 24 | | Notwithstanding the preceding paragraph, the failure to | 25 | | personally
name,
include, or seek an award of
possession of the | 26 | | mortgaged real estate against a person in the
confirmation |
| | | 09700HB1698sam001 | - 27 - | LRB097 07917 AJO 55727 a |
|
| 1 | | order shall not abrogate any right that the purchaser may have | 2 | | to
possession of the mortgaged real estate and to maintain a | 3 | | proceeding against
that person for
possession under Article 9 | 4 | | of this Code or subsection (h) of Section 15-1701;
and | 5 | | possession against a person
who (1) has not been personally | 6 | | named as a party to the
foreclosure and (2) has not been | 7 | | provided an opportunity to be heard in the
foreclosure | 8 | | proceeding may be sought only by maintaining a
proceeding under | 9 | | Article 9 of this
Code or subsection (h) of Section 15-1701. | 10 | | (Source: P.A. 95-826, eff. 8-14-08; 96-265, eff. 8-11-09; | 11 | | 96-856, eff. 3-1-10; 96-1245, eff. 7-23-10; revised 9-16-10.)
| 12 | | (735 ILCS 5/15-1603) (from Ch. 110, par. 15-1603)
| 13 | | Sec. 15-1603. Redemption.
| 14 | | (a) Owner of Redemption. Except as
provided in subsection | 15 | | (b) of Section 15-1402, only an owner of redemption
may redeem | 16 | | from the foreclosure, and such owner of redemption may redeem
| 17 | | only during the redemption period specified in subsection (b) | 18 | | of Section
15-1603 and only if the right of redemption has not | 19 | | been validly waived.
| 20 | | (b) Redemption Period.
| 21 | | (1) In the foreclosure of a mortgage of
real estate | 22 | | which is residential real estate at the time the | 23 | | foreclosure
is commenced, the redemption period shall end | 24 | | on the later of
(i) the date 7 months from the date the | 25 | | mortgagor or, if more than one, all
the mortgagors (A) have |
| | | 09700HB1698sam001 | - 28 - | LRB097 07917 AJO 55727 a |
|
| 1 | | been served with summons or by publication or (B)
have | 2 | | otherwise submitted to the jurisdiction of the court, or | 3 | | (ii) the date
3 months from the date of entry of a judgment | 4 | | of foreclosure.
| 5 | | (2) In all other foreclosures, the redemption period | 6 | | shall end on the later of
(i) the date 6 months from the | 7 | | date the mortgagor or, if more than one,
all the mortgagors | 8 | | (A) have been served with summons or by publication or
(B) | 9 | | have otherwise submitted to the jurisdiction of the court, | 10 | | or (ii) the
date 3 months from the date of entry of a | 11 | | judgment of foreclosure.
| 12 | | (3) Notwithstanding paragraphs (1) and (2),
the | 13 | | redemption period shall end at the later
of the expiration | 14 | | of any reinstatement period provided for in Section
15-1602 | 15 | | or the date 60 days after the date the judgment of | 16 | | foreclosure is
entered, if the court finds that (i) the | 17 | | value of
the mortgaged real estate as of the date of the | 18 | | judgment is less than 90%
of the amount specified pursuant | 19 | | to subsection (d) of Section 15-1603 and
(ii) the mortgagee | 20 | | waives any and all rights to a personal judgment for a
| 21 | | deficiency against the mortgagor and against all other | 22 | | persons liable for
the indebtedness or other obligations | 23 | | secured by the mortgage.
| 24 | | (4) Notwithstanding paragraphs (1) and (2),
the | 25 | | redemption period shall end on the date 30
days after the | 26 | | date the judgment of foreclosure is entered if
the court |
| | | 09700HB1698sam001 | - 29 - | LRB097 07917 AJO 55727 a |
|
| 1 | | finds that the mortgaged real estate is abandoned | 2 | | residential property has
been abandoned . In cases where the | 3 | | redemption period is shortened on
account of abandonment, | 4 | | the reinstatement period shall not extend beyond
the date | 5 | | the judgment is entered redemption period as shortened .
| 6 | | (c) Extension of Redemption Period.
| 7 | | (1) Once expired, the right of redemption provided for | 8 | | in Sections
15-1603 or 15-1604 shall not be revived. The | 9 | | period within which the right of
redemption provided for in | 10 | | Sections 15-1603 or 15-1604 may be exercised runs
| 11 | | independently of any action by any person to enforce the | 12 | | judgment of
foreclosure or effect a sale pursuant thereto. | 13 | | Neither the initiation of
any legal proceeding nor the | 14 | | order of any court staying the enforcement of
a judgment of | 15 | | foreclosure or the sale pursuant to a judgment or the
| 16 | | confirmation of the sale, shall have the effect of tolling | 17 | | the running of
the redemption period.
| 18 | | (2) If a court has the authority to stay, and does | 19 | | stay, the running of
the redemption period, or if the | 20 | | redemption period is extended by any
statute of the United | 21 | | States, the redemption period shall be extended until
the | 22 | | expiration of the same number of days after the expiration | 23 | | of the stay
order as the number of days remaining in the | 24 | | redemption period at the time
the stay order became | 25 | | effective, or, if later, until the expiration of 30
days | 26 | | after the stay order terminates. If the stay
order |
| | | 09700HB1698sam001 | - 30 - | LRB097 07917 AJO 55727 a |
|
| 1 | | terminates more than 30 days prior to the expiration of the
| 2 | | redemption period, the redemption period shall not be | 3 | | extended.
| 4 | | (d) Amount Required to Redeem. The amount required to | 5 | | redeem shall be the sum of:
| 6 | | (1) The amount specified in the judgment of | 7 | | foreclosure, which shall
consist of (i) all principal and | 8 | | accrued interest secured by the mortgage
and due as of the | 9 | | date of the judgment, (ii) all costs allowed by law,
(iii) | 10 | | costs and expenses approved by the court, (iv) to the | 11 | | extent provided
for in the mortgage and approved by the | 12 | | court, additional costs, expenses
and reasonable | 13 | | attorneys' fees incurred by the mortgagee, (v) all amounts
| 14 | | paid pursuant to Section 15-1505 and (vi) per diem interest | 15 | | from the date
of judgment to the date of redemption | 16 | | calculated at the mortgage rate of
interest applicable as | 17 | | if no default had occurred; and
| 18 | | (2) The amount of other expenses authorized by the | 19 | | court which the
mortgagee reasonably incurs between the | 20 | | date of judgment and the date of
redemption, which shall be | 21 | | the amount certified by the mortgagee in
accordance with | 22 | | subsection (e) of Section 15-1603.
| 23 | | (e) Notice of Intent to Redeem. An owner of redemption who | 24 | | intends to
redeem shall give written notice of such intent to | 25 | | redeem to the
mortgagee's attorney of record specifying the | 26 | | date designated for
redemption and the current address of the |
| | | 09700HB1698sam001 | - 31 - | LRB097 07917 AJO 55727 a |
|
| 1 | | owner of redemption for purposes
of receiving notice. Such | 2 | | owner of redemption shall file with the clerk of
the court a | 3 | | certification of the giving of such notice. The notice of
| 4 | | intent to redeem must be received by the mortgagee's attorney | 5 | | at least 15
days (other than Saturday, Sunday or court holiday) | 6 | | prior to the date
designated for redemption. The mortgagee | 7 | | shall thereupon file with the
clerk of the court and shall give | 8 | | written notice to the owner of redemption
at least three days | 9 | | (other than Saturday, Sunday or court holiday) before
the date | 10 | | designated for redemption a certification,
accompanied by | 11 | | copies of paid receipts or appropriate affidavits, of
any | 12 | | expenses authorized in paragraph (2) of subsection (d) of | 13 | | Section
15-1603. If the mortgagee fails
to serve such | 14 | | certification within the time specified herein, then the owner
| 15 | | of redemption intending to redeem may redeem on the date | 16 | | designated for
redemption in the notice of intent to redeem, | 17 | | and the mortgagee shall not
be entitled to payment of any | 18 | | expenses authorized in paragraph (2) of
subsection (d) of | 19 | | Section 15-1603.
| 20 | | (f) Procedure for Redemption.
| 21 | | (1) An owner of redemption may redeem
the real estate | 22 | | from the foreclosure by paying the amount specified in
| 23 | | subsection (d) of Section 15-1603 to the mortgagee or the | 24 | | mortgagee's
attorney of record on or before the date | 25 | | designated for redemption pursuant
to subsection (e) of | 26 | | Section 15-1603.
|
| | | 09700HB1698sam001 | - 32 - | LRB097 07917 AJO 55727 a |
|
| 1 | | (2) If the mortgagee refuses to accept payment or if | 2 | | the owner of
redemption redeeming from the foreclosure | 3 | | objects to the reasonableness of
the additional expenses | 4 | | authorized in paragraph (2) of subsection (d) of
Section | 5 | | 15-1603 and certified in accordance with subsection (e) of | 6 | | Section
15-1603, the owner of redemption shall pay
the | 7 | | certified amount to the clerk of the court on or before the | 8 | | date
designated for redemption, together with a written | 9 | | statement specifying the
expenses to which objection is | 10 | | made. In such case the clerk shall pay to the
mortgagee the | 11 | | amount tendered minus the amount to which the objection | 12 | | pertains.
| 13 | | (3) Upon payment to the clerk, whether or not the owner | 14 | | of redemption
files an objection at the time of payment, | 15 | | the clerk shall give a receipt
of payment to the person | 16 | | redeeming from the foreclosure, and shall file a
copy of | 17 | | that receipt in the foreclosure record. Upon receipt of the
| 18 | | amounts specified to be paid to the mortgagee pursuant to | 19 | | this Section, the
mortgagee shall promptly furnish the | 20 | | mortgagor with a release of the
mortgage or satisfaction of | 21 | | the judgment, as appropriate, and the evidence
of all | 22 | | indebtedness secured by the mortgage shall be cancelled.
| 23 | | (g) Procedure Upon Objection. If an objection is filed by | 24 | | an owner of
redemption in accordance with paragraph (2) of | 25 | | subsection (f) of Section
15-1603, the clerk shall hold the | 26 | | amount to which the objection pertains
until the court orders |
| | | 09700HB1698sam001 | - 33 - | LRB097 07917 AJO 55727 a |
|
| 1 | | distribution of those funds. The court shall hold a
hearing | 2 | | promptly to determine the distribution of any funds held by the
| 3 | | clerk pursuant to such objection. Each party shall pay its own | 4 | | costs and
expenses in connection with any objection, including | 5 | | attorneys' fees,
subject to Section 2-611 of the Code of Civil | 6 | | Procedure.
| 7 | | (h) Failure to Redeem. Unless the real estate being | 8 | | foreclosed is redeemed
from the foreclosure, it shall be sold | 9 | | as provided in this Article.
| 10 | | (Source: P.A. 86-974.)
| 11 | | (735 ILCS 5/15-1701) (from Ch. 110, par. 15-1701)
| 12 | | Sec. 15-1701. Right to possession.
| 13 | | (a) General. The provisions of
this Article shall govern | 14 | | the right to possession of the mortgaged real
estate during | 15 | | foreclosure. Possession under this Article includes physical
| 16 | | possession of the mortgaged real estate to the same extent to | 17 | | which the
mortgagor, absent the foreclosure, would have been | 18 | | entitled to physical
possession. For the purposes of Part 17, | 19 | | real estate is residential real estate
only if it is | 20 | | residential real estate at the time the foreclosure is | 21 | | commenced.
| 22 | | (a-5) Abandoned residential property. Notwithstanding | 23 | | anything to the contrary in this Section, the holder of the | 24 | | certificate of sale or deed issued pursuant to that certificate | 25 | | or, if no certificate or deed was issued, the purchaser, of |
| | | 09700HB1698sam001 | - 34 - | LRB097 07917 AJO 55727 a |
|
| 1 | | abandoned residential property shall be entitled to possession | 2 | | of the property as of the date the order confirming the sale of | 3 | | the abandoned residential property is entered. | 4 | | (b) Pre-Judgment. Prior to the entry of a judgment of | 5 | | foreclosure:
| 6 | | (1) In the case of residential real estate, the | 7 | | mortgagor shall be
entitled to possession of the real | 8 | | estate except if (i) the mortgagee shall
object and show | 9 | | good cause, (ii) the mortgagee is so authorized by the | 10 | | terms of
the mortgage or other written instrument, and | 11 | | (iii) the court is satisfied that
there is a reasonable | 12 | | probability that the mortgagee will prevail on a final
| 13 | | hearing of the cause, the court shall upon request place | 14 | | the mortgagee in
possession. If the residential real estate | 15 | | consists of more than one dwelling
unit, then for the | 16 | | purpose of this Part residential real estate shall mean | 17 | | only
that dwelling unit or units occupied by persons | 18 | | described in clauses (i), (ii)
and (iii) of Section | 19 | | 15-1219.
| 20 | | (2) In all other cases, if (i) the mortgagee is so | 21 | | authorized by the
terms of the mortgage or other written | 22 | | instrument, and (ii) the court is
satisfied that there is a | 23 | | reasonable probability that the mortgagee will
prevail on a | 24 | | final hearing of the cause, the mortgagee shall
upon | 25 | | request be placed in possession of the real estate, except | 26 | | that if the
mortgagor shall object and show good cause, the |
| | | 09700HB1698sam001 | - 35 - | LRB097 07917 AJO 55727 a |
|
| 1 | | court shall allow the
mortgagor to remain in possession.
| 2 | | (c) Judgment Through 30 Days After Sale Confirmation. After | 3 | | the entry
of a judgment of foreclosure and through the 30th day | 4 | | after a foreclosure
sale is confirmed:
| 5 | | (1) Subsection (b) of Section 15-1701 shall be | 6 | | applicable, regardless of
the provisions of the mortgage or | 7 | | other instrument, except that after a
sale pursuant to the | 8 | | judgment the holder of the certificate of sale
(or, if | 9 | | none, the purchaser at the sale) shall have the mortgagee's | 10 | | right to be
placed in possession, with all rights and | 11 | | duties of a mortgagee in possession
under this Article.
| 12 | | (2) Notwithstanding paragraph (1) of subsection (b) | 13 | | and paragraph (1) of
subsection (c) of Section 15-1701, | 14 | | upon request of the mortgagee, a mortgagor
of residential | 15 | | real estate shall not be allowed to remain in possession | 16 | | between
the expiration of the redemption period and through | 17 | | the 30th day after sale
confirmation unless (i) the | 18 | | mortgagor pays to the mortgagee or such holder or
| 19 | | purchaser, whichever is applicable, monthly the lesser of | 20 | | the interest due
under the mortgage calculated at the | 21 | | mortgage rate of interest applicable as if
no default had | 22 | | occurred or the fair rental value of the real estate, or | 23 | | (ii)
the mortgagor otherwise shows good cause. Any amounts | 24 | | paid by the mortgagor
pursuant to this subsection shall be | 25 | | credited against the amounts due from the
mortgagor.
| 26 | | (d) After 30 Days After Sale Confirmation. The holder of
|
| | | 09700HB1698sam001 | - 36 - | LRB097 07917 AJO 55727 a |
|
| 1 | | the certificate of sale or deed issued pursuant to that | 2 | | certificate or, if
no certificate or deed was issued, the | 3 | | purchaser, except to the extent the
holder or purchaser may | 4 | | consent otherwise, shall be entitled to possession of
the | 5 | | mortgaged real estate, as of the date 30 days after the order | 6 | | confirming
the sale is entered, against those parties to the | 7 | | foreclosure whose interests
the court has ordered terminated, | 8 | | without further notice to any party, further
order of the | 9 | | court, or resort to proceedings under any other statute other | 10 | | than
this Article.
This right to possession shall be limited by | 11 | | the provisions
governing entering and enforcing orders of | 12 | | possession under subsection (g) of
Section
15-1508.
If the | 13 | | holder or purchaser determines that there are occupants
of the | 14 | | mortgaged real estate who have not been made parties to the | 15 | | foreclosure
and had their interests terminated therein, the | 16 | | holder or purchaser may bring a
proceeding under subsection (h) | 17 | | of this Section or under Article 9 of this Code
to terminate | 18 | | the rights of possession of any such occupants. The holder or
| 19 | | purchaser shall not be entitled to proceed against any such | 20 | | occupant under
Article 9 of this Code until after 30 days after | 21 | | the order confirming the sale
is entered.
| 22 | | (e) Termination of Leases. A lease of all or any part of | 23 | | the mortgaged
real estate shall not be terminated automatically | 24 | | solely by virtue of the entry
into possession by (i) a | 25 | | mortgagee or receiver prior to the entry of an order
confirming | 26 | | the sale, (ii) the holder of the certificate of sale, (iii) the
|
| | | 09700HB1698sam001 | - 37 - | LRB097 07917 AJO 55727 a |
|
| 1 | | holder of the deed issued pursuant to that certificate, or (iv) | 2 | | if no
certificate or deed was issued, the purchaser at the | 3 | | sale.
| 4 | | (f) Other Statutes; Instruments. The provisions of this | 5 | | Article
providing for possession of mortgaged real estate shall | 6 | | supersede any other
inconsistent statutory provisions. In | 7 | | particular, and without limitation,
whenever a receiver is | 8 | | sought to be appointed in any action in which a
foreclosure is | 9 | | also pending, a receiver shall be appointed only in
accordance | 10 | | with this Article. Except as may be authorized by this Article,
| 11 | | no mortgage or other instrument may modify or supersede the | 12 | | provisions of this
Article.
| 13 | | (g) Certain Leases. Leases of the mortgaged real estate | 14 | | entered into by
a mortgagee in possession or a receiver and | 15 | | approved by the court in a
foreclosure shall be binding on all | 16 | | parties, including the mortgagor after
redemption, the | 17 | | purchaser at a sale pursuant to a judgment of foreclosure
and | 18 | | any person acquiring an interest in the mortgaged real estate | 19 | | after
entry of a judgment of foreclosure in accordance with | 20 | | Sections 15-1402 and
15-1403.
| 21 | | (h) Proceedings Against Certain Occupants.
| 22 | | (1) The mortgagee-in-possession of the mortgaged real | 23 | | estate under Section
15-1703, a receiver appointed under | 24 | | Section 15-1704, a holder of the
certificate of sale or | 25 | | deed, or the purchaser may, at any time during the
pendency | 26 | | of the foreclosure and up to 90 days after the date of the |
| | | 09700HB1698sam001 | - 38 - | LRB097 07917 AJO 55727 a |
|
| 1 | | order
confirming the sale,
file a supplemental petition for | 2 | | possession against a person not personally
named as a party
| 3 | | to the foreclosure. The supplemental petition for | 4 | | possession shall name each such
occupant against whom | 5 | | possession is sought and state the facts upon which the
| 6 | | claim for relief is premised.
| 7 | | (2) The petitioner shall serve upon each named occupant | 8 | | the petition,
a notice of hearing on the petition, and, if | 9 | | any, a copy of the certificate of
sale or deed. The | 10 | | proceeding for the termination of such occupant's | 11 | | possessory
interest, including service of the notice of the | 12 | | hearing and the petition,
shall in all respects comport | 13 | | with the requirements of Article 9 of this Code,
except as | 14 | | otherwise specified in this Section. The hearing shall be | 15 | | no less
than 21 days from the date of service of the | 16 | | notice.
| 17 | | (3) The supplemental petition shall be heard as part of | 18 | | the foreclosure
proceeding and without the payment of | 19 | | additional filing fees. An order for
possession obtained | 20 | | under this Section shall name each occupant whose interest
| 21 | | has been terminated, shall recite that it is only effective | 22 | | as to the occupant
so named and those holding under them, | 23 | | and shall be enforceable for no more
than 120 days after | 24 | | its entry, except that the 120-day period may be extended | 25 | | to
the extent and in the manner provided in Section 9-117 | 26 | | of Article 9 and except as provided in item (4) of this |
| | | 09700HB1698sam001 | - 39 - | LRB097 07917 AJO 55727 a |
|
| 1 | | subsection (h). | 2 | | (4) In a case of foreclosure where the occupant is | 3 | | current on his or her rent, or where timely written notice | 4 | | of to whom and where the rent is to be paid has not been | 5 | | provided to the occupant, or where the occupant has made | 6 | | good-faith efforts to make rental payments in order to keep | 7 | | current, any order of possession must allow the occupant to | 8 | | retain possession of the property covered in his or her | 9 | | rental agreement (i) for 120 days following the notice of | 10 | | the hearing on the supplemental petition that has been | 11 | | properly served upon the occupant, or (ii) through the | 12 | | duration of his or her lease, whichever is shorter, | 13 | | provided that if the duration of his or her lease is less | 14 | | than 30 days from the date of the order, the order shall | 15 | | allow the occupant to retain possession for 30 days from | 16 | | the date of the order. A mortgagee in possession, receiver, | 17 | | holder of a certificate of sale or deed, or purchaser at | 18 | | the judicial sale, who asserts that the occupant is not | 19 | | current in rent, shall file an affidavit to that effect in | 20 | | the supplemental petition proceeding. If the occupant has | 21 | | been given timely written notice of to whom and where the | 22 | | rent is to be paid, this item (4) shall only apply if the | 23 | | occupant continues to pay his or her rent in full during | 24 | | the 120-day period or has made good-faith efforts to pay | 25 | | the rent in full during that period.
No | 26 | | mortgagee-in-possession, receiver or holder of a |
| | | 09700HB1698sam001 | - 40 - | LRB097 07917 AJO 55727 a |
|
| 1 | | certificate of sale or deed, or purchaser who fails to file | 2 | | a supplemental petition under this subsection during the | 3 | | pendency of a mortgage foreclosure shall file a forcible | 4 | | entry and detainer action against an occupant of the | 5 | | mortgaged real estate until 90 days after a notice of | 6 | | intent to file such action has been properly served upon | 7 | | the occupant. | 8 | | (5) The court records relating to a supplemental | 9 | | petition for possession filed under this subsection (h) | 10 | | against an occupant who is entitled to notice under item | 11 | | (4) of this subsection (h), or relating to a forcible entry | 12 | | and detainer action brought against an occupant who would | 13 | | have lawful possession of the premises but for the | 14 | | foreclosure of a mortgage on the property, shall be ordered | 15 | | sealed and shall not be disclosed to any person, other than | 16 | | a law enforcement officer or any other representative of a | 17 | | governmental entity, except upon further order of the | 18 | | court.
| 19 | | (Source: P.A. 95-262, eff. 1-1-08; 95-933, eff. 8-26-08; 96-60, | 20 | | eff. 7-23-09; 96-111, eff. 10-29-09; 96-1000, eff. 7-2-10.)
| 21 | | Section 99. Effective date. This Act takes effect upon | 22 | | becoming law.".
|
|