Full Text of SB2033 97th General Assembly
SB2033 97TH GENERAL ASSEMBLY |
| | 97TH GENERAL ASSEMBLY
State of Illinois
2011 and 2012 SB2033 Introduced 2/10/2011, by Sen. John G. Mulroe SYNOPSIS AS INTRODUCED: |
| 735 ILCS 5/15-1504 | from Ch. 110, par. 15-1504 |
|
Amends the Code of Civil Procedure. Adds, to the provisions concerning the form of a foreclosure complaint, a requirement for a statement as to whether the mortgaged real estate is vacant or occupied. Effective immediately.
|
| |
| | A BILL FOR |
|
| | | SB2033 | | LRB097 10111 AJO 50293 b |
|
| 1 | | AN ACT concerning civil law.
| 2 | | Be it enacted by the People of the State of Illinois,
| 3 | | represented in the General Assembly:
| 4 | | Section 5. The Code of Civil Procedure is amended by | 5 | | changing Section 15-1504 as follows:
| 6 | | (735 ILCS 5/15-1504) (from Ch. 110, par. 15-1504)
| 7 | | Sec. 15-1504. Pleadings and service.
| 8 | | (a) Form of Complaint. A foreclosure complaint
may be in | 9 | | substantially the following form:
| 10 | | (1) Plaintiff files this complaint to foreclose the | 11 | | mortgage (or other
conveyance in the nature of a mortgage) | 12 | | (hereinafter called "mortgage")
hereinafter described and | 13 | | joins the following person as defendants: (here
insert | 14 | | names of all defendants).
| 15 | | (2) The mortgaged real estate is: (select one) | 16 | | ...... vacant | 17 | | ...... occupied
| 18 | | (3) (2) Attached as Exhibit "A" is a copy of the | 19 | | mortgage and as Exhibit "B"
is a copy of the note secured | 20 | | thereby.
| 21 | | (4) (3) Information concerning mortgage:
| 22 | | (A) Nature of instrument: (here insert whether a | 23 | | mortgage, trust deed or
other instrument in the nature |
| | | SB2033 | - 2 - | LRB097 10111 AJO 50293 b |
|
| 1 | | of a mortgage, etc.)
| 2 | | (B) Date of mortgage:
| 3 | | (C) Name of mortgagor:
| 4 | | (D) Name of mortgagee:
| 5 | | (E) Date and place of recording:
| 6 | | (F) Identification of recording: (here insert book | 7 | | and page number or document number)
| 8 | | (G) Interest subject to the mortgage: (here insert | 9 | | whether fee simple,
estate for years, undivided | 10 | | interest, etc.)
| 11 | | (H) Amount of original indebtedness, including | 12 | | subsequent advances made
under the mortgage:
| 13 | | (I) Both the legal description of the mortgaged | 14 | | real estate and the
common address or other information | 15 | | sufficient to identify it with reasonable certainty:
| 16 | | (J) Statement as to defaults, including, but not | 17 | | necessarily
limited to, date of default, current | 18 | | unpaid principal balance, per diem
interest accruing, | 19 | | and any further information concerning the default:
| 20 | | (K) Name of present owner of the real estate:
| 21 | | (L) Names of other persons who are joined as | 22 | | defendants and whose
interest in or lien on the | 23 | | mortgaged real estate is sought to be terminated:
| 24 | | (M) Names of defendants claimed to be personally | 25 | | liable
for deficiency, if any:
| 26 | | (N) Capacity in which plaintiff brings this |
| | | SB2033 | - 3 - | LRB097 10111 AJO 50293 b |
|
| 1 | | foreclosure (here indicate
whether plaintiff is the | 2 | | legal holder of the indebtedness, a pledgee, an
agent, | 3 | | the trustee under a trust deed or otherwise, as | 4 | | appropriate):
| 5 | | (O) Facts in support of redemption period shorter | 6 | | than
the longer of (i) 7 months from the date the | 7 | | mortgagor or, if more than
one, all the mortgagors (I) | 8 | | have been served with summons or by publication
or (II) | 9 | | have otherwise submitted to the jurisdiction of the | 10 | | court, or (ii)
3 months from the entry of the judgment | 11 | | of foreclosure, if sought (here
indicate whether based | 12 | | upon the real estate not being residential,
| 13 | | abandonment, or real estate value less than 90%
of | 14 | | amount owed, etc.):
| 15 | | (P) Statement that the right of redemption has been | 16 | | waived by all
owners of redemption, if applicable:
| 17 | | (Q) Facts in support of request for attorneys' fees | 18 | | and of costs and
expenses, if applicable:
| 19 | | (R) Facts in support of a request for appointment | 20 | | of mortgagee in
possession or for appointment of | 21 | | receiver, and identity of such receiver, if
sought:
| 22 | | (S) Offer to mortgagor in accordance with Section | 23 | | 15-1402 to accept
title to the real estate in | 24 | | satisfaction of all indebtedness and
obligations | 25 | | secured by the mortgage without judicial sale, if | 26 | | sought:
|
| | | SB2033 | - 4 - | LRB097 10111 AJO 50293 b |
|
| 1 | | (T) Name or names of defendants whose right to
| 2 | | possess the mortgaged real estate, after the | 3 | | confirmation of a foreclosure
sale, is
sought to be | 4 | | terminated and, if not elsewhere stated, the facts in | 5 | | support
thereof:
| 6 | | REQUEST FOR RELIEF
| 7 | | Plaintiff requests:
| 8 | | (i) A judgment of foreclosure and sale.
| 9 | | (ii) An order granting a shortened redemption period, | 10 | | if sought.
| 11 | | (iii) A personal judgment for a deficiency, if sought.
| 12 | | (iv) An order granting possession, if sought.
| 13 | | (v) An order placing the mortgagee in possession or | 14 | | appointing a receiver,
if sought.
| 15 | | (vi) A judgment for attorneys' fees, costs and | 16 | | expenses, if sought.
| 17 | | (b) Required Information. A foreclosure complaint need | 18 | | contain only such
statements and requests called for by the | 19 | | form set forth in subsection (a) of
Section
15-1504 as may be | 20 | | appropriate for the relief sought. Such complaint may
be filed | 21 | | as a counterclaim, may be joined with other counts or may | 22 | | include
in the same count additional matters or a request for | 23 | | any additional
relief permitted by Article
II of the Code of | 24 | | Civil Procedure.
| 25 | | (c) Allegations. The statements contained in a complaint in |
| | | SB2033 | - 5 - | LRB097 10111 AJO 50293 b |
|
| 1 | | the form
set forth in subsection (a) of Section 15-1504 are | 2 | | deemed and construed to include
allegations as follows:
| 3 | | (1) on the date indicated the obligor of the | 4 | | indebtedness or other
obligations secured by the mortgage | 5 | | was justly indebted in the amount of
the indicated original | 6 | | indebtedness to the original mortgagee or payee of
the | 7 | | mortgage note;
| 8 | | (2) that the exhibits attached are true and correct | 9 | | copies of the
mortgage and note and are incorporated and | 10 | | made a part of the complaint by
express reference;
| 11 | | (3) that the mortgagor was at the date indicated an | 12 | | owner of the
interest in the real estate described in the | 13 | | complaint and that as of that
date made, executed and | 14 | | delivered the mortgage as security for the note or
other | 15 | | obligations;
| 16 | | (4) that the mortgage was recorded in the county in | 17 | | which the mortgaged
real estate is located, on the date | 18 | | indicated, in the book and page or as
the document number | 19 | | indicated;
| 20 | | (5) that defaults occurred as indicated;
| 21 | | (6) that at the time of the filing of the complaint the | 22 | | persons named as
present owners are the owners of the | 23 | | indicated interests in and to the real
estate described;
| 24 | | (7) that the mortgage constitutes a valid, prior and | 25 | | paramount lien upon
the indicated interest in the mortgaged | 26 | | real estate, which lien is prior and
superior to the right, |
| | | SB2033 | - 6 - | LRB097 10111 AJO 50293 b |
|
| 1 | | title, interest, claim or lien of all parties and
nonrecord | 2 | | claimants whose interests in the mortgaged real estate are
| 3 | | sought to be terminated;
| 4 | | (8) that by reason of the defaults alleged, if the | 5 | | indebtedness has not
matured by its terms, the same has | 6 | | become due by the exercise, by the
plaintiff or other | 7 | | persons having such power, of a right or power to
declare | 8 | | immediately due and payable the whole of all indebtedness | 9 | | secured
by the mortgage;
| 10 | | (9) that any and all notices of default or election to | 11 | | declare the
indebtedness due and payable or other notices | 12 | | required to be given have
been duly and properly given;
| 13 | | (10) that any and all periods of grace or other period | 14 | | of time allowed
for the performance of the covenants or | 15 | | conditions claimed to be breached
or for the curing of any | 16 | | breaches have expired;
| 17 | | (11) that the amounts indicated in the statement
in the | 18 | | complaint are correctly stated and
if such statement | 19 | | indicates any advances made or to be made by the
plaintiff | 20 | | or owner of the mortgage indebtedness, that such advances | 21 | | were,
in fact, made or will be
required to be made, and | 22 | | under and by virtue of the mortgage the same
constitute | 23 | | additional indebtedness secured by the mortgage; and
| 24 | | (12) that, upon confirmation of the sale, the holder of | 25 | | the certificate
of sale or deed issued pursuant to that | 26 | | certificate or, if no certificate or
deed was issued, the |
| | | SB2033 | - 7 - | LRB097 10111 AJO 50293 b |
|
| 1 | | purchaser at the sale will be entitled to full possession
| 2 | | of the mortgaged real estate against the parties
named in | 3 | | clause (T) of
paragraph (4) (3) of subsection (a) of | 4 | | Section 15-1504 or elsewhere to the same
effect;
the | 5 | | omission of any
party indicates that plaintiff will not | 6 | | seek a possessory order in the order
confirming sale unless | 7 | | the request is subsequently made under subsection (h) of
| 8 | | Section 15-1701 or by separate action under Article 9 of | 9 | | this Code.
| 10 | | (d) Request for Fees and Costs. A statement in the | 11 | | complaint that
plaintiff seeks the inclusion of attorneys' fees | 12 | | and of costs and expenses
shall be deemed and construed to | 13 | | include allegations that:
| 14 | | (1) plaintiff has been compelled to employ and retain | 15 | | attorneys to
prepare and file the complaint and to | 16 | | represent and advise the plaintiff in
the foreclosure of | 17 | | the mortgage and the plaintiff will thereby become
liable | 18 | | for the usual, reasonable and customary fees of the | 19 | | attorneys in
that behalf;
| 20 | | (2) that the plaintiff has been compelled to advance or | 21 | | will be
compelled to advance, various sums of money in | 22 | | payment of costs, fees,
expenses and disbursements | 23 | | incurred in connection with the foreclosure,
including, | 24 | | without limiting the generality of the foregoing, filing | 25 | | fees,
stenographer's fees, witness fees, costs of | 26 | | publication, costs of procuring
and preparing documentary |
| | | SB2033 | - 8 - | LRB097 10111 AJO 50293 b |
|
| 1 | | evidence and costs of procuring
abstracts of title, Torrens | 2 | | certificates, foreclosure minutes and a title
insurance | 3 | | policy;
| 4 | | (3) that under the terms of the mortgage, all such | 5 | | advances, costs,
attorneys' fees and other fees, expenses | 6 | | and disbursements are made a lien
upon the mortgaged real | 7 | | estate and the plaintiff is entitled to recover all
such | 8 | | advances, costs, attorneys' fees, expenses and | 9 | | disbursements, together
with interest on all advances at | 10 | | the rate provided in the mortgage, or, if
no rate is | 11 | | provided therein, at the statutory judgment rate, from the
| 12 | | date on which such advances are made;
| 13 | | (4) that in order to protect the lien of the mortgage, | 14 | | it may become
necessary for plaintiff to pay taxes and | 15 | | assessments which have been or may
be levied upon the | 16 | | mortgaged real estate;
| 17 | | (5) that in order to protect and preserve the mortgaged | 18 | | real estate, it
may also become necessary for the plaintiff | 19 | | to pay liability (protecting
mortgagor and mortgagee), | 20 | | fire and other hazard
insurance premiums on the mortgaged | 21 | | real estate, make such repairs
to the mortgaged real
estate | 22 | | as may reasonably be deemed necessary for the proper | 23 | | preservation
thereof, advance for costs to inspect the | 24 | | mortgaged real estate or to
appraise it, or both, and | 25 | | advance for premiums for pre-existing private or
| 26 | | governmental mortgage insurance to the extent required |
| | | SB2033 | - 9 - | LRB097 10111 AJO 50293 b |
|
| 1 | | after a foreclosure
is commenced in order to keep such | 2 | | insurance in force; and
| 3 | | (6) that under the terms of the mortgage, any money so | 4 | | paid or expended
will become an additional indebtedness | 5 | | secured by the mortgage and will bear
interest from the | 6 | | date such monies are advanced at the rate provided in the
| 7 | | mortgage, or, if no rate is provided, at the
statutory | 8 | | judgment rate.
| 9 | | (e) Request for Foreclosure. The request for foreclosure is | 10 | | deemed and
construed to mean that the plaintiff requests that:
| 11 | | (1) an accounting may be taken under the direction of | 12 | | the court of the
amounts due and owing to the plaintiff;
| 13 | | (2) that the defendants be ordered to pay to the | 14 | | plaintiff before
expiration of any redemption period (or, | 15 | | if no redemption period, before a
short date fixed by the | 16 | | court) whatever sums may appear to be due upon the taking
| 17 | | of such account,
together with attorneys' fees and costs of | 18 | | the proceedings (to the extent
provided in the mortgage or | 19 | | by law);
| 20 | | (3) that in default of such payment in accordance with | 21 | | the judgment, the
mortgaged real estate be sold as directed | 22 | | by the court, to satisfy the
amount due to the plaintiff as | 23 | | set forth in the judgment, together with the
interest | 24 | | thereon at the statutory judgment rate from the date of the | 25 | | judgment;
| 26 | | (4) that in the event the plaintiff is a purchaser of |
| | | SB2033 | - 10 - | LRB097 10111 AJO 50293 b |
|
| 1 | | the mortgaged real
estate at such sale, the plaintiff may | 2 | | offset against the purchase price of
such real estate the | 3 | | amounts due under the judgment of foreclosure and
order | 4 | | confirming the sale;
| 5 | | (5) that in the event of such sale and the failure of | 6 | | any person entitled
thereto to redeem prior to such sale | 7 | | pursuant to this Article, the
defendants made parties to | 8 | | the foreclosure in accordance with this Article,
and all | 9 | | nonrecord claimants given notice of the foreclosure in | 10 | | accordance
with this Article, and all persons claiming by, | 11 | | through or under them, and
each and any and all of them, | 12 | | may be forever barred and foreclosed of any
right, title, | 13 | | interest, claim, lien, or right to redeem in and to the
| 14 | | mortgaged real estate; and
| 15 | | (6) that if no redemption is made prior to such sale, a | 16 | | deed may be
issued to the purchaser thereat according to | 17 | | law and such purchaser be let
into possession of the | 18 | | mortgaged real estate in accordance with Part 17 of this | 19 | | Article.
| 20 | | (f) Request for Deficiency Judgment. A request for a | 21 | | personal judgment
for a deficiency in a foreclosure complaint | 22 | | if the sale of the mortgaged
real estate fails to produce a | 23 | | sufficient amount to pay the amount found
due, the plaintiff | 24 | | may have a personal judgment against any party in the
| 25 | | foreclosure indicated as being personally liable therefor and | 26 | | the enforcement
thereof be had as provided by law.
|
| | | SB2033 | - 11 - | LRB097 10111 AJO 50293 b |
|
| 1 | | (g) Request for Possession or Receiver. A request for | 2 | | possession or appointment
of a receiver has the meaning as | 3 | | stated in subsection (b) of Section 15-1706.
| 4 | | (h) Answers by Parties. Any party
may assert its interest | 5 | | by counterclaim and such counterclaim may at the
option of that | 6 | | party stand in lieu of answer to the complaint for
foreclosure | 7 | | and all counter complaints previously or thereafter filed
in | 8 | | the foreclosure. Any such counterclaim shall be deemed to | 9 | | constitute a
statement that the counter claimant does not have | 10 | | sufficient knowledge to
form a belief as to the truth or | 11 | | falsity of the
allegations of the complaint and all other | 12 | | counterclaims, except
to the extent that the counterclaim | 13 | | admits or specifically denies such
allegations.
| 14 | | (Source: P.A. 91-357, eff. 7-29-99.)
| 15 | | Section 99. Effective date. This Act takes effect upon | 16 | | becoming law.
|
|