HB3335eng 97TH GENERAL ASSEMBLY

  
  
  

 


 
HB3335 EngrossedLRB097 09053 AJO 50324 b

1    AN ACT concerning civil law.
 
2    Be it enacted by the People of the State of Illinois,
3represented in the General Assembly:
 
4    Section 5. The Code of Civil Procedure is amended by
5changing Sections 15-1503 and 15-1508 as follows:
 
6    (735 ILCS 5/15-1503)  (from Ch. 110, par. 15-1503)
7    Sec. 15-1503. Notice of Foreclosure.
8    (a) A notice of foreclosure, whether the foreclosure is
9initiated by complaint or counterclaim, made in accordance with
10this Section and recorded in the county in which the mortgaged
11real estate is located shall be constructive notice of the
12pendency of the foreclosure to every person claiming an
13interest in or lien on the mortgaged real estate, whose
14interest or lien has not been recorded prior to the recording
15of such notice of foreclosure. Such notice of foreclosure must
16be executed by any party or any party's attorney and shall
17include (i) the names of all plaintiffs and the case number,
18(ii) the court in which the action was brought, (iii) the names
19of title holders of record, (iv) a legal description of the
20real estate sufficient to identify it with reasonable
21certainty, (v) a common address or description of the location
22of the real estate and (vi) identification of the mortgage
23sought to be foreclosed. An incorrect common address or

 

 

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1description of the location, or an immaterial error in the
2identification of a plaintiff or title holder of record, shall
3not invalidate the lis pendens effect of the notice under this
4Section. A notice which complies with this Section shall be
5deemed to comply with Section 2-1901 of the Code of Civil
6Procedure and shall have the same effect as a notice filed
7pursuant to that Section; however, a notice which complies with
8Section 2-1901 shall not be constructive notice unless it also
9complies with the requirements of this Section.
10    (b) With respect to residential real estate, a copy of the
11notice of foreclosure described in subsection (a) of Section
1215-1503 shall be sent by first class mail, postage prepaid, to
13the alderman for the ward in which the property is located if
14the property is located in a municipality with a population of
15more than 2,000,000 and to the municipality within the boundary
16of which the mortgaged real estate is located, or to the county
17within the boundary of which the mortgaged real estate is
18located if the mortgaged real estate is located in an
19unincorporated territory. A municipality or county must
20clearly publish on its website a single address to which such
21notice shall be sent. If a municipality or county does not
22maintain a website, then the municipality or county must
23publicly post in its main office a single address to which such
24notice shall be sent. In the event that a municipality or
25county has not complied with the publication requirement in
26this subsection (b), then such notice to the municipality or

 

 

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1county shall be provided pursuant to Section 2-211 of the Code
2of Civil Procedure.
3(Source: P.A. 96-856, eff. 3-1-10.)
 
4    (735 ILCS 5/15-1508)  (from Ch. 110, par. 15-1508)
5    Sec. 15-1508. Report of Sale and Confirmation of Sale.
6    (a) Report. The person conducting the sale shall promptly
7make a report to the court, which report shall include a copy
8of all receipts and, if any, certificate of sale.
9    (b) Hearing. Upon motion and notice in accordance with
10court rules applicable to motions generally, which motion shall
11not be made prior to sale, the court shall conduct a hearing to
12confirm the sale. Unless the court finds that (i) a notice
13required in accordance with subsection (c) of Section 15-1507
14was not given, (ii) the terms of sale were unconscionable,
15(iii) the sale was conducted fraudulently or (iv) that justice
16was otherwise not done, the court shall then enter an order
17confirming the sale. The confirmation order shall include a
18name, address, and telephone number of the holder of the
19certificate of sale or deed issued pursuant to that certificate
20or, if no certificate or deed was issued, the purchaser, whom a
21municipality or county may contact with concerns about the real
22estate. The confirmation order may also:
23        (1) approve the mortgagee's fees and costs arising
24    between the entry of the judgment of foreclosure and the
25    confirmation hearing, those costs and fees to be allowable

 

 

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1    to the same extent as provided in the note and mortgage and
2    in Section 15-1504;
3        (2) provide for a personal judgment against any party
4    for a deficiency; and
5        (3) determine the priority of the judgments of parties
6    who deferred proving the priority pursuant to subsection
7    (h) of Section 15-1506, but the court shall not defer
8    confirming the sale pending the determination of such
9    priority.
10    (b-5) Notice with respect to residential real estate. With
11respect to residential real estate, the notice required under
12subsection (b) of this Section shall be sent to the mortgagor
13even if the mortgagor has previously been held in default. In
14the event the mortgagor has filed an appearance, the notice
15shall be sent to the address indicated on the appearance. In
16all other cases, the notice shall be sent to the mortgagor at
17the common address of the foreclosed property. The notice shall
18be sent by first class mail. Unless the right to possession has
19been previously terminated by the court, the notice shall
20include the following language in 12-point boldface
21capitalized type:
22
IF YOU ARE THE MORTGAGOR (HOMEOWNER), YOU HAVE THE RIGHT TO
23
REMAIN IN POSSESSION FOR 30 DAYS AFTER ENTRY OF AN ORDER OF
24
POSSESSION, IN ACCORDANCE WITH SECTION 15-1701(c) OF THE
25
ILLINOIS MORTGAGE FORECLOSURE LAW.
26    (b-10) Notice of confirmation order sent to municipality or

 

 

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1county. A copy of the confirmation order required under
2subsection (b) shall be sent to the municipality in which the
3foreclosed property is located, or to the county within the
4boundary of which the foreclosed property is located if the
5foreclosed property is located in an unincorporated territory.
6A municipality or county must clearly publish on its website a
7single address to which such notice shall be sent. If a
8municipality or county does not maintain a website, then the
9municipality or county must publicly post in its main office a
10single address to which such notice shall be sent. In the event
11that a municipality or county has not complied with the
12publication requirement in this subsection (b-10), then such
13notice to the municipality or county shall be provided pursuant
14to Section 2-211 of the Code of Civil Procedure.
15    (b-15) Notice of confirmation order sent to known insurers.
16With respect to residential real estate, a copy of the
17confirmation order required under subsection (b) shall be sent
18by first class mail, postage prepaid, to the last-known
19property insurer of the foreclosed property and, in the case of
20a municipality with a population of more than 2,000,000, to the
21alderman for the ward in which the property is located. Failure
22to send or receive a copy of the order shall not impair or
23abrogate in any way the rights of the mortgagee or purchaser or
24affect the status of the foreclosure proceedings.
25    (c) Failure to Give Notice. If any sale is held without
26compliance with subsection (c) of Section 15-1507 of this

 

 

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1Article, any party entitled to the notice provided for in
2paragraph (3) of that subsection (c) who was not so notified
3may, by motion supported by affidavit made prior to
4confirmation of such sale, ask the court which entered the
5judgment to set aside the sale. Any such party shall guarantee
6or secure by bond a bid equal to the successful bid at the
7prior sale, unless the party seeking to set aside the sale is
8the mortgagor, the real estate sold at the sale is residential
9real estate, and the mortgagor occupies the residential real
10estate at the time the motion is filed. In that event, no
11guarantee or bond shall be required of the mortgagor. Any
12subsequent sale is subject to the same notice requirement as
13the original sale.
14    (d) Validity of Sale. Except as provided in subsection (c)
15of Section 15-1508, no sale under this Article shall be held
16invalid or be set aside because of any defect in the notice
17thereof or in the publication of the same, or in the
18proceedings of the officer conducting the sale, except upon
19good cause shown in a hearing pursuant to subsection (b) of
20Section 15-1508. At any time after a sale has occurred, any
21party entitled to notice under paragraph (3) of subsection (c)
22of Section 15-1507 may recover from the mortgagee any damages
23caused by the mortgagee's failure to comply with such paragraph
24(3). Any party who recovers damages in a judicial proceeding
25brought under this subsection may also recover from the
26mortgagee the reasonable expenses of litigation, including

 

 

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1reasonable attorney's fees.
2    (d-5) Making Home Affordable Program. The court that
3entered the judgment shall set aside a sale held pursuant to
4Section 15-1507, upon motion of the mortgagor at any time prior
5to the confirmation of the sale, if the mortgagor proves by a
6preponderance of the evidence that (i) the mortgagor has
7applied for assistance under the Making Home Affordable Program
8established by the United States Department of the Treasury
9pursuant to the Emergency Economic Stabilization Act of 2008,
10as amended by the American Recovery and Reinvestment Act of
112009, and (ii) the mortgaged real estate was sold in material
12violation of the program's requirements for proceeding to a
13judicial sale. The provisions of this subsection (d-5), except
14for this sentence, shall become inoperative on January 1, 2013
15for all actions filed under this Article after December 31,
162012, in which the mortgagor did not apply for assistance under
17the Making Home Affordable Program on or before December 31,
182012.
19    (e) Deficiency Judgment. In any order confirming a sale
20pursuant to the judgment of foreclosure, the court shall also
21enter a personal judgment for deficiency against any party (i)
22if otherwise authorized and (ii) to the extent requested in the
23complaint and proven upon presentation of the report of sale in
24accordance with Section 15-1508. Except as otherwise provided
25in this Article, a judgment may be entered for any balance of
26money that may be found due to the plaintiff, over and above

 

 

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1the proceeds of the sale or sales, and enforcement may be had
2for the collection of such balance, the same as when the
3judgment is solely for the payment of money. Such judgment may
4be entered, or enforcement had, only in cases where personal
5service has been had upon the persons personally liable for the
6mortgage indebtedness, unless they have entered their
7appearance in the foreclosure action.
8    (f) Satisfaction. Upon confirmation of the sale, the
9judgment stands satisfied to the extent of the sale price less
10expenses and costs. If the order confirming the sale includes a
11deficiency judgment, the judgment shall become a lien in the
12manner of any other judgment for the payment of money.
13    (g) The order confirming the sale shall include,
14notwithstanding any previous orders awarding possession during
15the pendency of the foreclosure, an award to the purchaser of
16possession of the mortgaged real estate, as of the date 30 days
17after the entry of the order, against the parties to the
18foreclosure whose interests have been terminated.
19    An order of possession authorizing the removal of a person
20from possession of the mortgaged real estate shall be entered
21and enforced only against those persons personally named as
22individuals in the complaint or the petition under subsection
23(h) of Section 15-1701 and in the order of possession and shall
24not be entered and enforced against any person who is only
25generically described as an unknown owner or nonrecord claimant
26or by another generic designation in the complaint.

 

 

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1    Notwithstanding the preceding paragraph, the failure to
2personally name, include, or seek an award of possession of the
3mortgaged real estate against a person in the confirmation
4order shall not abrogate any right that the purchaser may have
5to possession of the mortgaged real estate and to maintain a
6proceeding against that person for possession under Article 9
7of this Code or subsection (h) of Section 15-1701; and
8possession against a person who (1) has not been personally
9named as a party to the foreclosure and (2) has not been
10provided an opportunity to be heard in the foreclosure
11proceeding may be sought only by maintaining a proceeding under
12Article 9 of this Code or subsection (h) of Section 15-1701.
13(Source: P.A. 95-826, eff. 8-14-08; 96-265, eff. 8-11-09;
1496-856, eff. 3-1-10; 96-1245, eff. 7-23-10; revised 9-16-10.)
 
15    Section 99. Effective date. This Act takes effect January
161, 2012.