Illinois General Assembly - Full Text of SB2033
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Full Text of SB2033  97th General Assembly


Sen. John G. Mulroe

Filed: 4/11/2011





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2    AMENDMENT NO. ______. Amend Senate Bill 2033 by replacing
3everything after the enacting clause with the following:
4    "Section 5. The Code of Civil Procedure is amended by
5changing 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
9substantially 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            ...... abandoned



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1            ...... occupied
2        (3) (2) Attached as Exhibit "A" is a copy of the
3    mortgage and as Exhibit "B" is a copy of the note secured
4    thereby.
5        (4) (3) Information concerning mortgage:
6            (A) Nature of instrument: (here insert whether a
7        mortgage, trust deed or other instrument in the nature
8        of a mortgage, etc.)
9            (B) Date of mortgage:
10            (C) Name of mortgagor:
11            (D) Name of mortgagee:
12            (E) Date and place of recording:
13            (F) Identification of recording: (here insert book
14        and page number or document number)
15            (G) Interest subject to the mortgage: (here insert
16        whether fee simple, estate for years, undivided
17        interest, etc.)
18            (H) Amount of original indebtedness, including
19        subsequent advances made under the mortgage:
20            (I) Both the legal description of the mortgaged
21        real estate and the common address or other information
22        sufficient to identify it with reasonable certainty:
23            (J) Statement as to defaults, including, but not
24        necessarily limited to, date of default, current
25        unpaid principal balance, per diem interest accruing,
26        and any further information concerning the default:



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1            (K) Name of present owner of the real estate:
2            (L) Names of other persons who are joined as
3        defendants and whose interest in or lien on the
4        mortgaged real estate is sought to be terminated:
5            (M) Names of defendants claimed to be personally
6        liable for deficiency, if any:
7            (N) Capacity in which plaintiff brings this
8        foreclosure (here indicate whether plaintiff is the
9        legal holder of the indebtedness, a pledgee, an agent,
10        the trustee under a trust deed or otherwise, as
11        appropriate):
12            (O) Facts in support of redemption period shorter
13        than the longer of (i) 7 months from the date the
14        mortgagor or, if more than one, all the mortgagors (I)
15        have been served with summons or by publication or (II)
16        have otherwise submitted to the jurisdiction of the
17        court, or (ii) 3 months from the entry of the judgment
18        of foreclosure, if sought (here indicate whether based
19        upon the real estate not being residential,
20        abandonment, or real estate value less than 90% of
21        amount owed, etc.):
22            (P) Statement that the right of redemption has been
23        waived by all owners of redemption, if applicable:
24            (Q) Facts in support of request for attorneys' fees
25        and of costs and expenses, if applicable:
26            (R) Facts in support of a request for appointment



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1        of mortgagee in possession or for appointment of
2        receiver, and identity of such receiver, if sought:
3            (S) Offer to mortgagor in accordance with Section
4        15-1402 to accept title to the real estate in
5        satisfaction of all indebtedness and obligations
6        secured by the mortgage without judicial sale, if
7        sought:
8            (T) Name or names of defendants whose right to
9        possess the mortgaged real estate, after the
10        confirmation of a foreclosure sale, is sought to be
11        terminated and, if not elsewhere stated, the facts in
12        support thereof:
14    Plaintiff requests:
15        (i) A judgment of foreclosure and sale.
16        (ii) An order granting a shortened redemption period,
17    if sought.
18        (iii) A personal judgment for a deficiency, if sought.
19        (iv) An order granting possession, if sought.
20        (v) An order placing the mortgagee in possession or
21    appointing a receiver, if sought.
22        (vi) A judgment for attorneys' fees, costs and
23    expenses, if sought.
24    (b) Required Information. A foreclosure complaint need
25contain only such statements and requests called for by the



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1form set forth in subsection (a) of Section 15-1504 as may be
2appropriate for the relief sought. Such complaint may be filed
3as a counterclaim, may be joined with other counts or may
4include in the same count additional matters or a request for
5any additional relief permitted by Article II of the Code of
6Civil Procedure.
7    (c) Allegations. The statements contained in a complaint in
8the form set forth in subsection (a) of Section 15-1504 are
9deemed and construed to include allegations as follows:
10        (1) on the date indicated the obligor of the
11    indebtedness or other obligations secured by the mortgage
12    was justly indebted in the amount of the indicated original
13    indebtedness to the original mortgagee or payee of the
14    mortgage note;
15        (2) that the exhibits attached are true and correct
16    copies of the mortgage and note and are incorporated and
17    made a part of the complaint by express reference;
18        (3) that the mortgagor was at the date indicated an
19    owner of the interest in the real estate described in the
20    complaint and that as of that date made, executed and
21    delivered the mortgage as security for the note or other
22    obligations;
23        (4) that the mortgage was recorded in the county in
24    which the mortgaged real estate is located, on the date
25    indicated, in the book and page or as the document number
26    indicated;



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1        (5) that defaults occurred as indicated;
2        (6) that at the time of the filing of the complaint the
3    persons named as present owners are the owners of the
4    indicated interests in and to the real estate described;
5        (7) that the mortgage constitutes a valid, prior and
6    paramount lien upon the indicated interest in the mortgaged
7    real estate, which lien is prior and superior to the right,
8    title, interest, claim or lien of all parties and nonrecord
9    claimants whose interests in the mortgaged real estate are
10    sought to be terminated;
11        (8) that by reason of the defaults alleged, if the
12    indebtedness has not matured by its terms, the same has
13    become due by the exercise, by the plaintiff or other
14    persons having such power, of a right or power to declare
15    immediately due and payable the whole of all indebtedness
16    secured by the mortgage;
17        (9) that any and all notices of default or election to
18    declare the indebtedness due and payable or other notices
19    required to be given have been duly and properly given;
20        (10) that any and all periods of grace or other period
21    of time allowed for the performance of the covenants or
22    conditions claimed to be breached or for the curing of any
23    breaches have expired;
24        (11) that the amounts indicated in the statement in the
25    complaint are correctly stated and if such statement
26    indicates any advances made or to be made by the plaintiff



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1    or owner of the mortgage indebtedness, that such advances
2    were, in fact, made or will be required to be made, and
3    under and by virtue of the mortgage the same constitute
4    additional indebtedness secured by the mortgage; and
5        (12) that, upon confirmation of the sale, the holder of
6    the certificate of sale or deed issued pursuant to that
7    certificate or, if no certificate or deed was issued, the
8    purchaser at the sale will be entitled to full possession
9    of the mortgaged real estate against the parties named in
10    clause (T) of paragraph (4) (3) of subsection (a) of
11    Section 15-1504 or elsewhere to the same effect; the
12    omission of any party indicates that plaintiff will not
13    seek a possessory order in the order confirming sale unless
14    the request is subsequently made under subsection (h) of
15    Section 15-1701 or by separate action under Article 9 of
16    this Code.
17    (d) Request for Fees and Costs. A statement in the
18complaint that plaintiff seeks the inclusion of attorneys' fees
19and of costs and expenses shall be deemed and construed to
20include allegations that:
21        (1) plaintiff has been compelled to employ and retain
22    attorneys to prepare and file the complaint and to
23    represent and advise the plaintiff in the foreclosure of
24    the mortgage and the plaintiff will thereby become liable
25    for the usual, reasonable and customary fees of the
26    attorneys in that behalf;



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1        (2) that the plaintiff has been compelled to advance or
2    will be compelled to advance, various sums of money in
3    payment of costs, fees, expenses and disbursements
4    incurred in connection with the foreclosure, including,
5    without limiting the generality of the foregoing, filing
6    fees, stenographer's fees, witness fees, costs of
7    publication, costs of procuring and preparing documentary
8    evidence and costs of procuring abstracts of title, Torrens
9    certificates, foreclosure minutes and a title insurance
10    policy;
11        (3) that under the terms of the mortgage, all such
12    advances, costs, attorneys' fees and other fees, expenses
13    and disbursements are made a lien upon the mortgaged real
14    estate and the plaintiff is entitled to recover all such
15    advances, costs, attorneys' fees, expenses and
16    disbursements, together with interest on all advances at
17    the rate provided in the mortgage, or, if no rate is
18    provided therein, at the statutory judgment rate, from the
19    date on which such advances are made;
20        (4) that in order to protect the lien of the mortgage,
21    it may become necessary for plaintiff to pay taxes and
22    assessments which have been or may be levied upon the
23    mortgaged real estate;
24        (5) that in order to protect and preserve the mortgaged
25    real estate, it may also become necessary for the plaintiff
26    to pay liability (protecting mortgagor and mortgagee),



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1    fire and other hazard insurance premiums on the mortgaged
2    real estate, make such repairs to the mortgaged real estate
3    as may reasonably be deemed necessary for the proper
4    preservation thereof, advance for costs to inspect the
5    mortgaged real estate or to appraise it, or both, and
6    advance for premiums for pre-existing private or
7    governmental mortgage insurance to the extent required
8    after a foreclosure is commenced in order to keep such
9    insurance in force; and
10        (6) that under the terms of the mortgage, any money so
11    paid or expended will become an additional indebtedness
12    secured by the mortgage and will bear interest from the
13    date such monies are advanced at the rate provided in the
14    mortgage, or, if no rate is provided, at the statutory
15    judgment rate.
16    (e) Request for Foreclosure. The request for foreclosure is
17deemed and construed to mean that the plaintiff requests that:
18        (1) an accounting may be taken under the direction of
19    the court of the amounts due and owing to the plaintiff;
20        (2) that the defendants be ordered to pay to the
21    plaintiff before expiration of any redemption period (or,
22    if no redemption period, before a short date fixed by the
23    court) whatever sums may appear to be due upon the taking
24    of such account, together with attorneys' fees and costs of
25    the proceedings (to the extent provided in the mortgage or
26    by law);



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1        (3) that in default of such payment in accordance with
2    the judgment, the mortgaged real estate be sold as directed
3    by the court, to satisfy the amount due to the plaintiff as
4    set forth in the judgment, together with the interest
5    thereon at the statutory judgment rate from the date of the
6    judgment;
7        (4) that in the event the plaintiff is a purchaser of
8    the mortgaged real estate at such sale, the plaintiff may
9    offset against the purchase price of such real estate the
10    amounts due under the judgment of foreclosure and order
11    confirming the sale;
12        (5) that in the event of such sale and the failure of
13    any person entitled thereto to redeem prior to such sale
14    pursuant to this Article, the defendants made parties to
15    the foreclosure in accordance with this Article, and all
16    nonrecord claimants given notice of the foreclosure in
17    accordance with this Article, and all persons claiming by,
18    through or under them, and each and any and all of them,
19    may be forever barred and foreclosed of any right, title,
20    interest, claim, lien, or right to redeem in and to the
21    mortgaged real estate; and
22        (6) that if no redemption is made prior to such sale, a
23    deed may be issued to the purchaser thereat according to
24    law and such purchaser be let into possession of the
25    mortgaged real estate in accordance with Part 17 of this
26    Article.



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1    (f) Request for Deficiency Judgment. A request for a
2personal judgment for a deficiency in a foreclosure complaint
3if the sale of the mortgaged real estate fails to produce a
4sufficient amount to pay the amount found due, the plaintiff
5may have a personal judgment against any party in the
6foreclosure indicated as being personally liable therefor and
7the enforcement thereof be had as provided by law.
8    (g) Request for Possession or Receiver. A request for
9possession or appointment of a receiver has the meaning as
10stated in subsection (b) of Section 15-1706.
11    (h) Answers by Parties. Any party may assert its interest
12by counterclaim and such counterclaim may at the option of that
13party stand in lieu of answer to the complaint for foreclosure
14and all counter complaints previously or thereafter filed in
15the foreclosure. Any such counterclaim shall be deemed to
16constitute a statement that the counter claimant does not have
17sufficient knowledge to form a belief as to the truth or
18falsity of the allegations of the complaint and all other
19counterclaims, except to the extent that the counterclaim
20admits or specifically denies such allegations.
21(Source: P.A. 91-357, eff. 7-29-99.)
22    Section 99. Effective date. This Act takes effect upon
23becoming law.".