Illinois General Assembly - Full Text of HB3966
Illinois General Assembly

Previous General Assemblies

Full Text of HB3966  99th General Assembly

HB3966 99TH GENERAL ASSEMBLY

  
  

 


 
99TH GENERAL ASSEMBLY
State of Illinois
2015 and 2016
HB3966

 

Introduced , by Rep. Joe Sosnowski

 

SYNOPSIS AS INTRODUCED:
 
735 ILCS 5/15-1701  from Ch. 110, par. 15-1701

    Amends the Code of Civil Procedure. Provides that in a foreclosure proceeding and up to 90 days after the date of the order confirming the sale, a mortgagee-in-possession of the mortgaged real estate, a receiver, a holder of the certificate of sale or deed, or the purchaser may file a supplemental petition for possession against an occupant of the property who is a squatter. Provides procedural requirements. Provides that the court shall enter a final ruling on the petition no later than 180 days after it is filed, and that the sheriff shall evict the squatter as soon as practicable after the entry of an order granting possession.


LRB099 07045 HEP 27128 b

 

 

A BILL FOR

 

HB3966LRB099 07045 HEP 27128 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 Section 15-1701 as follows:
 
6    (735 ILCS 5/15-1701)  (from Ch. 110, par. 15-1701)
7    Sec. 15-1701. Right to possession.
8    (a) General. The provisions of this Article shall govern
9the right to possession of the mortgaged real estate during
10foreclosure. Possession under this Article includes physical
11possession of the mortgaged real estate to the same extent to
12which the mortgagor, absent the foreclosure, would have been
13entitled to physical possession. For the purposes of Part 17,
14real estate is residential real estate only if it is
15residential real estate at the time the foreclosure is
16commenced.
17    (b) Pre-Judgment. Prior to the entry of a judgment of
18foreclosure:
19        (1) In the case of residential real estate, the
20    mortgagor shall be entitled to possession of the real
21    estate except if (i) the mortgagee shall object and show
22    good cause, (ii) the mortgagee is so authorized by the
23    terms of the mortgage or other written instrument, and

 

 

HB3966- 2 -LRB099 07045 HEP 27128 b

1    (iii) the court is satisfied that there is a reasonable
2    probability that the mortgagee will prevail on a final
3    hearing of the cause, the court shall upon request place
4    the mortgagee in possession. If the residential real estate
5    consists of more than one dwelling unit, then for the
6    purpose of this Part residential real estate shall mean
7    only that dwelling unit or units occupied by persons
8    described in clauses (i), (ii) and (iii) of Section
9    15-1219.
10        (2) In all other cases, if (i) the mortgagee is so
11    authorized by the terms of the mortgage or other written
12    instrument, and (ii) the court is satisfied that there is a
13    reasonable probability that the mortgagee will prevail on a
14    final hearing of the cause, the mortgagee shall upon
15    request be placed in possession of the real estate, except
16    that if the mortgagor shall object and show good cause, the
17    court shall allow the mortgagor to remain in possession.
18    (c) Judgment Through 30 Days After Sale Confirmation. After
19the entry of a judgment of foreclosure and through the 30th day
20after a foreclosure sale is confirmed:
21        (1) Subsection (b) of Section 15-1701 shall be
22    applicable, regardless of the provisions of the mortgage or
23    other instrument, except that after a sale pursuant to the
24    judgment the holder of the certificate of sale (or, if
25    none, the purchaser at the sale) shall have the mortgagee's
26    right to be placed in possession, with all rights and

 

 

HB3966- 3 -LRB099 07045 HEP 27128 b

1    duties of a mortgagee in possession under this Article.
2        (2) Notwithstanding paragraph (1) of subsection (b)
3    and paragraph (1) of subsection (c) of Section 15-1701,
4    upon request of the mortgagee, a mortgagor of residential
5    real estate shall not be allowed to remain in possession
6    between the expiration of the redemption period and through
7    the 30th day after sale confirmation unless (i) the
8    mortgagor pays to the mortgagee or such holder or
9    purchaser, whichever is applicable, monthly the lesser of
10    the interest due under the mortgage calculated at the
11    mortgage rate of interest applicable as if no default had
12    occurred or the fair rental value of the real estate, or
13    (ii) the mortgagor otherwise shows good cause. Any amounts
14    paid by the mortgagor pursuant to this subsection shall be
15    credited against the amounts due from the mortgagor.
16    (d) After 30 Days After Sale Confirmation. The holder of
17the certificate of sale or deed issued pursuant to that
18certificate or, if no certificate or deed was issued, the
19purchaser, except to the extent the holder or purchaser may
20consent otherwise, shall be entitled to possession of the
21mortgaged real estate, as of the date 30 days after the order
22confirming the sale is entered, against those parties to the
23foreclosure whose interests the court has ordered terminated,
24without further notice to any party, further order of the
25court, or resort to proceedings under any other statute other
26than this Article. This right to possession shall be limited by

 

 

HB3966- 4 -LRB099 07045 HEP 27128 b

1the provisions governing entering and enforcing orders of
2possession under subsection (g) of Section 15-1508. If the
3holder or purchaser determines that there are occupants of the
4mortgaged real estate who have not been made parties to the
5foreclosure and had their interests terminated therein, the
6holder or purchaser may bring a proceeding under subsection (h)
7of this Section, if applicable, or under Article IX of this
8Code to terminate the rights of possession of any such
9occupants. The holder or purchaser shall not be entitled to
10proceed against any such occupant under Article IX of this Code
11until after 30 days after the order confirming the sale is
12entered.
13    (e) Termination of Leases. A lease of all or any part of
14the mortgaged real estate shall not be terminated automatically
15solely by virtue of the entry into possession by (i) a
16mortgagee or receiver prior to the entry of an order confirming
17the sale, (ii) the holder of the certificate of sale, (iii) the
18holder of the deed issued pursuant to that certificate, or (iv)
19if no certificate or deed was issued, the purchaser at the
20sale.
21    (f) Other Statutes; Instruments. The provisions of this
22Article providing for possession of mortgaged real estate shall
23supersede any other inconsistent statutory provisions. In
24particular, and without limitation, whenever a receiver is
25sought to be appointed in any action in which a foreclosure is
26also pending, a receiver shall be appointed only in accordance

 

 

HB3966- 5 -LRB099 07045 HEP 27128 b

1with this Article. Except as may be authorized by this Article,
2no mortgage or other instrument may modify or supersede the
3provisions of this Article.
4    (g) Certain Leases. Leases of the mortgaged real estate
5entered into by a mortgagee in possession or a receiver and
6approved by the court in a foreclosure shall be binding on all
7parties, including the mortgagor after redemption, the
8purchaser at a sale pursuant to a judgment of foreclosure and
9any person acquiring an interest in the mortgaged real estate
10after entry of a judgment of foreclosure in accordance with
11Sections 15-1402 and 15-1403.
12    (h) Proceedings Against Certain Occupants.
13        (1) The mortgagee-in-possession of the mortgaged real
14    estate under Section 15-1703, a receiver appointed under
15    Section 15-1704, a holder of the certificate of sale or
16    deed, or the purchaser may, at any time during the pendency
17    of the foreclosure and up to 90 days after the date of the
18    order confirming the sale, file a supplemental petition for
19    possession against a person not personally named as a party
20    to the foreclosure. This subsection (h) does not apply to
21    squatters or any lessee with a bona fide lease of a
22    dwelling unit in residential real estate in foreclosure.
23        (2) The supplemental petition for possession shall
24    name each such occupant against whom possession is sought
25    and state the facts upon which the claim for relief is
26    premised.

 

 

HB3966- 6 -LRB099 07045 HEP 27128 b

1        (3) The petitioner shall serve upon each named occupant
2    the petition, a notice of hearing on the petition, and, if
3    any, a copy of the certificate of sale or deed. The
4    proceeding for the termination of such occupant's
5    possessory interest, including service of the notice of the
6    hearing and the petition, shall in all respects comport
7    with the requirements of Article IX of this Code, except as
8    otherwise specified in this Section. The hearing shall be
9    no less than 21 days from the date of service of the
10    notice.
11        (4) The supplemental petition shall be heard as part of
12    the foreclosure proceeding and without the payment of
13    additional filing fees. An order for possession obtained
14    under this Section shall name each occupant whose interest
15    has been terminated, shall recite that it is only effective
16    as to the occupant so named and those holding under them,
17    and shall be enforceable for no more than 120 days after
18    its entry, except that the 120-day period may be extended
19    to the extent and in the manner provided in Section 9-117
20    of Article IX and except as provided in item (5) of this
21    subsection (h).
22        (5) In a case of foreclosure where the occupant is
23    current on his or her rent, or where timely written notice
24    of to whom and where the rent is to be paid has not been
25    provided to the occupant, or where the occupant has made
26    good-faith efforts to make rental payments in order to keep

 

 

HB3966- 7 -LRB099 07045 HEP 27128 b

1    current, any order of possession must allow the occupant to
2    retain possession of the property covered in his or her
3    rental agreement (i) for 120 days following the notice of
4    the hearing on the supplemental petition that has been
5    properly served upon the occupant, or (ii) through the
6    duration of his or her lease, whichever is shorter,
7    provided that if the duration of his or her lease is less
8    than 30 days from the date of the order, the order shall
9    allow the occupant to retain possession for 30 days from
10    the date of the order. A mortgagee in possession, receiver,
11    holder of a certificate of sale or deed, or purchaser at
12    the judicial sale, who asserts that the occupant is not
13    current in rent, shall file an affidavit to that effect in
14    the supplemental petition proceeding. If the occupant has
15    been given timely written notice of to whom and where the
16    rent is to be paid, this item (5) shall only apply if the
17    occupant continues to pay his or her rent in full during
18    the 120-day period or has made good-faith efforts to pay
19    the rent in full during that period.
20        (6) The court records relating to a supplemental
21    petition for possession filed under this subsection (h)
22    against an occupant who is entitled to notice under item
23    (5) of this subsection (h), or relating to a forcible entry
24    and detainer action brought against an occupant who would
25    have lawful possession of the premises but for the
26    foreclosure of a mortgage on the property, shall be ordered

 

 

HB3966- 8 -LRB099 07045 HEP 27128 b

1    sealed and shall not be disclosed to any person, other than
2    a law enforcement officer or any other representative of a
3    governmental entity, except upon further order of the
4    court.
5    (h-5) Proceedings Against Squatters.
6        (1) The mortgagee-in-possession of the mortgaged real
7    estate under Section 15-1703, a receiver appointed under
8    Section 15-1704, a holder of the certificate of sale or
9    deed, or the purchaser may, at any time during the pendency
10    of the foreclosure and up to 90 days after the date of the
11    order confirming the sale, file a supplemental petition for
12    possession against an occupant of the property who is a
13    squatter.
14        (2) As used in this subsection, "squatter" means a
15    person who occupies the property without title or payment
16    of rent.
17        (3) The petitioner shall serve upon the squatter the
18    petition, a notice of hearing on the petition, and, if any,
19    a copy of the certificate of sale or deed. The proceeding
20    for the termination of the squatter's possessory interest,
21    including service of the notice of the hearing and the
22    petition, shall in all respects comport with the
23    requirements of Article IX of this Code, except as
24    otherwise specified in this Section. The hearing shall be
25    no less than 21 days from the date of service of the
26    notice.

 

 

HB3966- 9 -LRB099 07045 HEP 27128 b

1        (4) The supplemental petition shall be heard as part of
2    the foreclosure proceeding and without the payment of
3    additional filing fees, and the court shall enter a final
4    ruling on the petition no later than 180 days after it is
5    filed.
6        (5) The sheriff shall evict the squatter as soon as
7    practicable after the entry of an order granting possession
8    under this subsection.
9    (i) Termination of bona fide leases. The holder of the
10certificate of sale, the holder of the deed issued pursuant to
11that certificate, or, if no certificate or deed was issued, the
12purchaser at the sale shall not terminate a bona fide lease of
13a dwelling unit in residential real estate in foreclosure
14except pursuant to Article IX of this Code.
15(Source: P.A. 98-514, eff. 11-19-13.)