Full Text of HB0011 98th General Assembly
HB0011ham001 98TH GENERAL ASSEMBLY | Rep. Mary E. Flowers Filed: 3/8/2013
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| 1 | | AMENDMENT TO HOUSE BILL 11
| 2 | | AMENDMENT NO. ______. Amend House Bill 11 as follows:
| 3 | | on page 3, by replacing line 14 with the following: | 4 | | "changing Section 15-1508 and by adding Section 9-107.11 as | 5 | | follows:"; and | 6 | | on page 4, by replacing line 2 through line 24 with the | 7 | | following: | 8 | | "(735 ILCS 5/15-1508) (from Ch. 110, par. 15-1508) | 9 | | Sec. 15-1508. Report of Sale and Confirmation of Sale. | 10 | | (a) Report. The person conducting the sale shall promptly | 11 | | make a report to
the court, which report shall include a copy | 12 | | of all receipts and, if any,
certificate of sale. | 13 | | (b) Hearing. Upon motion and notice in accordance with | 14 | | court rules
applicable to motions generally, which motion shall | 15 | | not be made prior to
sale, the court shall conduct a hearing to
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| 1 | | confirm the sale. Unless the court finds that (i) a notice | 2 | | required in
accordance with subsection (c) of Section 15-1507 | 3 | | was not given, (ii) the
terms of sale were unconscionable, | 4 | | (iii) the sale was conducted
fraudulently, or (iv) justice was | 5 | | otherwise not done, the court shall
then enter an order | 6 | | confirming the sale. The confirmation order shall include a | 7 | | name, address, and telephone number of the holder of the | 8 | | certificate of sale or deed issued pursuant to that certificate | 9 | | or, if no certificate or deed was issued, the purchaser, whom a | 10 | | municipality or county may contact with concerns about the real | 11 | | estate. The confirmation order may
also: | 12 | | (1) approve the mortgagee's fees and costs arising | 13 | | between the entry of
the judgment of foreclosure and the | 14 | | confirmation hearing, those costs and
fees to be allowable | 15 | | to the same extent as provided in the note and mortgage
and | 16 | | in Section 15-1504; | 17 | | (2) provide for a personal judgment against any party | 18 | | for a deficiency;
and | 19 | | (3) determine the priority of the judgments of parties | 20 | | who deferred proving
the priority pursuant to subsection | 21 | | (h) of Section 15-1506, but
the court shall not
defer | 22 | | confirming the sale pending the determination of such | 23 | | priority. | 24 | | (b-5) Notice with respect to residential real estate. With | 25 | | respect to residential real estate, the notice required under | 26 | | subsection (b) of this Section shall be sent to the mortgagor |
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| 1 | | even if the mortgagor has previously been held in default. In | 2 | | the event the mortgagor has filed an appearance, the notice | 3 | | shall be sent to the address indicated on the appearance. In | 4 | | all other cases, the notice shall be sent to the mortgagor at | 5 | | the common address of the foreclosed property. The notice shall | 6 | | be sent by first class mail. Unless the right to possession has | 7 | | been previously terminated by the court, the notice shall | 8 | | include the following language in 12-point boldface | 9 | | capitalized type: | 10 | | IF YOU ARE THE MORTGAGOR (HOMEOWNER), YOU HAVE THE RIGHT TO | 11 | | REMAIN IN POSSESSION FOR 30 DAYS AFTER ENTRY OF AN ORDER OF | 12 | | POSSESSION, IN ACCORDANCE WITH SECTION 15-1701(c) OF THE | 13 | | ILLINOIS MORTGAGE FORECLOSURE LAW. | 14 | | (b-10) Notice of confirmation order sent to municipality or | 15 | | county. A copy of the confirmation order required under | 16 | | subsection (b) shall be sent to the municipality in which the | 17 | | foreclosed property is located, or to the county within the | 18 | | boundary of which the foreclosed property is located if the | 19 | | foreclosed property is located in an unincorporated territory. | 20 | | A municipality or county must clearly publish on its website a | 21 | | single address to which such notice shall be sent. If a | 22 | | municipality or county does not maintain a website, then the | 23 | | municipality or county must publicly post in its main office a | 24 | | single address to which such notice shall be sent. In the event | 25 | | that a municipality or county has not complied with the | 26 | | publication requirement in this subsection (b-10), then such |
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| 1 | | notice to the municipality or county shall be provided pursuant | 2 | | to Section 2-211 of the Code of Civil Procedure. | 3 | | (c) Failure to Give Notice. If any sale is held without | 4 | | compliance with
subsection (c) of Section 15-1507 of this | 5 | | Article, any party entitled to
the notice provided for in | 6 | | paragraph (3) of that subsection
(c) who was not so notified | 7 | | may, by motion supported by affidavit
made prior to | 8 | | confirmation of such sale, ask the court which entered the
| 9 | | judgment to set aside the sale. Any such party shall guarantee | 10 | | or secure by bond a bid equal to the successful bid at the | 11 | | prior sale, unless the party seeking to set aside the sale is | 12 | | the mortgagor, the real estate sold at the sale is residential | 13 | | real estate, and the mortgagor occupies the residential real | 14 | | estate at the time the motion is filed. In that event, no | 15 | | guarantee or bond shall be required of the mortgagor. Any
| 16 | | subsequent sale is subject to the same notice requirement as | 17 | | the original sale. | 18 | | (d) Validity of Sale. Except as provided in subsection (c) | 19 | | of Section
15-1508, no sale under this Article shall be held | 20 | | invalid or be set aside
because of any defect in the notice | 21 | | thereof or in the publication of the
same, or in the | 22 | | proceedings of the officer conducting the sale, except upon
| 23 | | good cause shown in a hearing pursuant to subsection (b) of | 24 | | Section
15-1508. At any time after a sale has occurred, any | 25 | | party entitled to
notice under paragraph (3) of subsection (c) | 26 | | of Section 15-1507 may recover
from the mortgagee any damages |
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| 1 | | caused by the mortgagee's failure to comply
with such paragraph | 2 | | (3). Any party who recovers damages in a judicial
proceeding | 3 | | brought under this subsection may also recover from the
| 4 | | mortgagee the reasonable expenses of litigation, including | 5 | | reasonable attorney's fees. | 6 | | (d-5) Making Home Affordable Program. The court that | 7 | | entered the judgment shall set aside a sale held pursuant to | 8 | | Section 15-1507, upon motion of the mortgagor at any time prior | 9 | | to the confirmation of the sale, if the mortgagor proves by a | 10 | | preponderance of the evidence that (i) the mortgagor has | 11 | | applied for assistance under the Making Home Affordable Program | 12 | | established by the United States Department of the Treasury | 13 | | pursuant to the Emergency Economic Stabilization Act of 2008, | 14 | | as amended by the American Recovery and Reinvestment Act of | 15 | | 2009, and (ii) the mortgaged real estate was sold in material | 16 | | violation of the program's requirements for proceeding to a | 17 | | judicial sale. The provisions of this subsection (d-5), except | 18 | | for this sentence, shall become inoperative on January 1, 2014 | 19 | | for all actions filed under this Article after December 31, | 20 | | 2013, in which the mortgagor did not apply for assistance under | 21 | | the Making Home Affordable Program on or before December 31, | 22 | | 2013. | 23 | | (d-10) Illinois Hardest Hit Program. The court that entered | 24 | | the judgment shall set aside a sale held pursuant to Section | 25 | | 15-1507 of this Act, upon motion of the mortgagor at any time | 26 | | prior to the confirmation of the sale, if the mortgagor proves |
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| 1 | | by a preponderance of the evidence that (i) the mortgagor is | 2 | | receiving assistance under the Illinois Hardest Hit Program as | 3 | | created by 12 U.S.C. 5211 and 12 U.S.C. 5219, and administered | 4 | | by the Illinois Housing Development Authority pursuant to the | 5 | | Illinois Housing Development Act and (ii) the assistance | 6 | | received under part (i) of this subsection has enabled the | 7 | | mortgagor to reinstate the mortgage pursuant to Section 15-1602 | 8 | | of this Act and make continuing mortgage payments as available | 9 | | under the Illinois Hardest Hit Program to avoid default. | 10 | | Nothing in this subsection shall prohibit the mortgagee from | 11 | | proceeding in the foreclosure action upon a subsequent default | 12 | | of the mortgagor. Except for this sentence, this subsection is | 13 | | inoperative on and after January 1, 2017 for all actions filed | 14 | | under this Article after December 31, 2016 in which the | 15 | | mortgagor did not begin receiving the assistance described in | 16 | | this subsection under the Illinois Hardest Hit Program on or | 17 | | before December 31, 2016. | 18 | | (e) Deficiency Judgment. In any order confirming a sale | 19 | | pursuant to the
judgment of foreclosure, the court shall also | 20 | | enter a personal judgment
for deficiency against any party (i) | 21 | | if otherwise authorized and (ii) to
the extent requested in the | 22 | | complaint and proven upon presentation of the
report of sale in | 23 | | accordance with Section 15-1508. Except as otherwise provided
| 24 | | in this Article, a judgment may be entered for any balance of | 25 | | money that
may be found due to the plaintiff, over and above | 26 | | the proceeds of the sale
or sales, and enforcement may be had |
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| 1 | | for the collection of such balance,
the same as when the | 2 | | judgment is solely for the payment of money. Such
judgment may | 3 | | be entered, or enforcement had,
only in cases where personal | 4 | | service has been had upon the
persons personally liable for the | 5 | | mortgage indebtedness, unless they have
entered their | 6 | | appearance in the foreclosure action. | 7 | | (f) Satisfaction. Upon confirmation of the sale, the
| 8 | | judgment stands satisfied to the extent of the sale price less | 9 | | expenses and
costs. If the order confirming the sale includes a | 10 | | deficiency judgment, the
judgment shall become a lien in the | 11 | | manner of any other
judgment for the payment of money. | 12 | | (g) The order confirming the sale shall include, | 13 | | notwithstanding any
previous orders awarding possession during | 14 | | the pendency of the foreclosure, an
award to the purchaser of | 15 | | possession of the mortgaged real estate, as of the
date 30 days | 16 | | after the entry of the order, against the
parties to the | 17 | | foreclosure whose interests have been terminated. | 18 | | An order of possession authorizing the removal of a person | 19 | | from possession
of the mortgaged real estate shall be entered | 20 | | and enforced only against those
persons personally
named as | 21 | | individuals in the complaint or the petition under subsection | 22 | | (h)
of Section 15-1701 and in the order of possession and shall
| 23 | | not be entered and enforced against any person who is only | 24 | | generically
described as an
unknown owner or nonrecord claimant | 25 | | or by another generic designation in the
complaint. | 26 | | Notwithstanding the preceding paragraph, the failure to |
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| 1 | | personally
name,
include, or seek an award of
possession of the | 2 | | mortgaged real estate against a person in the
confirmation | 3 | | order shall not abrogate any right that the purchaser may have | 4 | | to
possession of the mortgaged real estate and to maintain a | 5 | | proceeding against
that person for
possession under Article 9 | 6 | | of this Code or subsection (h) of Section 15-1701;
and | 7 | | possession against a person
who (1) has not been personally | 8 | | named as a party to the
foreclosure and (2) has not been | 9 | | provided an opportunity to be heard in the
foreclosure | 10 | | proceeding may be sought only by maintaining a
proceeding under | 11 | | Article 9 of this
Code or subsection (h) of Section 15-1701. | 12 | | (h) With respect to mortgaged real estate containing 5 or | 13 | | more dwelling units, the order confirming the sale shall also | 14 | | provide that (i) the mortgagor shall transfer to the purchaser | 15 | | the security deposits, if any, that the mortgagor received to | 16 | | secure payment of rent or to compensate for damage to the | 17 | | mortgaged real estate from any current occupant of a dwelling | 18 | | unit of the mortgaged real estate, as well as any statutory | 19 | | interest that has not been paid to the occupant, and (ii) the | 20 | | mortgagor shall provide an accounting of the security deposits | 21 | | that are transferred, including the name and address of each | 22 | | occupant for whom the mortgagor holds the deposit and the | 23 | | amount of the deposit and any statutory interest. | 24 | | (Source: P.A. 96-265, eff. 8-11-09; 96-856, eff. 3-1-10; | 25 | | 96-1245, eff. 7-23-10; 97-333, eff. 8-12-11; 97-575, eff. | 26 | | 8-26-11; 97-1159, eff. 1-29-13.)".
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