Sen. A. J. Wilhelmi

Filed: 11/29/2010

 

 


 

 


 
09600HB5224sam002LRB096 16341 AJO 43930 a

1
AMENDMENT TO HOUSE BILL 5224

2    AMENDMENT NO. ______. Amend House Bill 5224 by replacing
3everything after the enacting clause with the following:
 
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

 

 

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1include (i) the names of all plaintiffs and the case number,
2(ii) the court in which the action was brought, (iii) the names
3of title holders of record, (iv) a legal description of the
4real estate sufficient to identify it with reasonable
5certainty, (v) a common address or description of the location
6of the real estate and (vi) identification of the mortgage
7sought to be foreclosed. An incorrect common address or
8description of the location, or an immaterial error in the
9identification of a plaintiff or title holder of record, shall
10not invalidate the lis pendens effect of the notice under this
11Section. A notice which complies with this Section shall be
12deemed to comply with Section 2-1901 of the Code of Civil
13Procedure and shall have the same effect as a notice filed
14pursuant to that Section; however, a notice which complies with
15Section 2-1901 shall not be constructive notice unless it also
16complies with the requirements of this Section.
17    (b) With respect to residential real estate, a copy of the
18notice of foreclosure described in subsection (a) of Section
1915-1503 shall be sent by first class mail, postage prepaid, to
20the municipality within the boundary of which the mortgaged
21real estate is located, or to the county within the boundary of
22which the mortgaged real estate is located if the mortgaged
23real estate is located in an unincorporated territory. A
24municipality or county must clearly publish on its website a
25single address to which such notice shall be sent. If a
26municipality or county does not maintain a website, then the

 

 

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1municipality or county must publicly post in its main office a
2single address to which such notice shall be sent. In the event
3that a municipality or county has not complied with the
4publication requirement in this subsection (b), then such
5notice to the municipality or county shall be sent by first
6class mail to the chairperson of the county board or county
7clerk in the case of a county, to the mayor or city clerk in the
8case of a city, to the president of the board of trustees or
9village clerk in the case of a village, or to the supervisor or
10town clerk in the case of a town provided pursuant to Section
112-211 of the Code of Civil Procedure.
12(Source: P.A. 96-856, eff. 3-1-10.)
 
13    (735 ILCS 5/15-1508)  (from Ch. 110, par. 15-1508)
14    Sec. 15-1508. Report of Sale and Confirmation of Sale.
15    (a) Report. The person conducting the sale shall promptly
16make a report to the court, which report shall include a copy
17of all receipts and, if any, certificate of sale.
18    (b) Hearing. Upon motion and notice in accordance with
19court rules applicable to motions generally, which motion shall
20not be made prior to sale, the court shall conduct a hearing to
21confirm the sale. Unless the court finds that (i) a notice
22required in accordance with subsection (c) of Section 15-1507
23was not given, (ii) the terms of sale were unconscionable,
24(iii) the sale was conducted fraudulently or (iv) that justice
25was otherwise not done, the court shall then enter an order

 

 

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1confirming the sale. The confirmation order shall include a
2name, address, and telephone number of the holder of the
3certificate of sale or deed issued pursuant to that certificate
4or, if no certificate or deed was issued, the purchaser, whom a
5municipality or county may contact with concerns about the real
6estate. The confirmation order may also:
7        (1) approve the mortgagee's fees and costs arising
8    between the entry of the judgment of foreclosure and the
9    confirmation hearing, those costs and fees to be allowable
10    to the same extent as provided in the note and mortgage and
11    in Section 15-1504;
12        (2) provide for a personal judgment against any party
13    for a deficiency; and
14        (3) determine the priority of the judgments of parties
15    who deferred proving the priority pursuant to subsection
16    (h) of Section 15-1506, but the court shall not defer
17    confirming the sale pending the determination of such
18    priority.
19    (b-5) Notice with respect to residential real estate. With
20respect to residential real estate, the notice required under
21subsection (b) of this Section shall be sent to the mortgagor
22even if the mortgagor has previously been held in default. In
23the event the mortgagor has filed an appearance, the notice
24shall be sent to the address indicated on the appearance. In
25all other cases, the notice shall be sent to the mortgagor at
26the common address of the foreclosed property. The notice shall

 

 

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1be sent by first class mail. Unless the right to possession has
2been previously terminated by the court, the notice shall
3include the following language in 12-point boldface
4capitalized type:
5
IF YOU ARE THE MORTGAGOR (HOMEOWNER), YOU HAVE THE RIGHT TO
6
REMAIN IN POSSESSION FOR 30 DAYS AFTER ENTRY OF AN ORDER OF
7
POSSESSION, IN ACCORDANCE WITH SECTION 15-1701(c) OF THE
8
ILLINOIS MORTGAGE FORECLOSURE LAW.
9    (b-10) Notice of confirmation order sent to municipality or
10county. With respect to residential real estate, a A copy of
11the confirmation order required under subsection (b) shall be
12sent by first class mail, postage prepaid, to the municipality
13in which the foreclosed property is located, or to the county
14within the boundary of which the foreclosed property is located
15if the foreclosed property is located in an unincorporated
16territory. A municipality or county must clearly publish on its
17website a single address to which such order notice shall be
18sent. If a municipality or county does not maintain a website,
19then the municipality or county must publicly post in its main
20office a single address to which such order notice shall be
21sent. In the event that a municipality or county has not
22complied with the publication requirement in this subsection
23(b-10), then such order notice to the municipality or county
24shall be sent by first class mail to the chairperson of the
25county board or county clerk in the case of a county, to the
26mayor or city clerk in the case of a city, to the president of

 

 

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1the board of trustees or village clerk in the case of a
2village, or to the supervisor or town clerk in the case of a
3town provided pursuant to Section 2-211 of the Code of Civil
4Procedure.
5    (b-15) Notice of confirmation order sent to known insurers.
6With respect to residential real estate, a copy of the
7confirmation order required under subsection (b) shall be sent
8by first class mail, postage prepaid, to the last-known
9property insurer of the foreclosed property. Failure to send or
10receive a copy of the order shall not impair or abrogate in any
11way the rights of the mortgagee or purchaser or affect the
12status of the foreclosure proceedings.
13    (c) Failure to Give Notice. If any sale is held without
14compliance with subsection (c) of Section 15-1507 of this
15Article, any party entitled to the notice provided for in
16paragraph (3) of that subsection (c) who was not so notified
17may, by motion supported by affidavit made prior to
18confirmation of such sale, ask the court which entered the
19judgment to set aside the sale. Any such party shall guarantee
20or secure by bond a bid equal to the successful bid at the
21prior sale, unless the party seeking to set aside the sale is
22the mortgagor, the real estate sold at the sale is residential
23real estate, and the mortgagor occupies the residential real
24estate at the time the motion is filed. In that event, no
25guarantee or bond shall be required of the mortgagor. Any
26subsequent sale is subject to the same notice requirement as

 

 

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1the original sale.
2    (d) Validity of Sale. Except as provided in subsection (c)
3of Section 15-1508, no sale under this Article shall be held
4invalid or be set aside because of any defect in the notice
5thereof or in the publication of the same, or in the
6proceedings of the officer conducting the sale, except upon
7good cause shown in a hearing pursuant to subsection (b) of
8Section 15-1508. At any time after a sale has occurred, any
9party entitled to notice under paragraph (3) of subsection (c)
10of Section 15-1507 may recover from the mortgagee any damages
11caused by the mortgagee's failure to comply with such paragraph
12(3). Any party who recovers damages in a judicial proceeding
13brought under this subsection may also recover from the
14mortgagee the reasonable expenses of litigation, including
15reasonable attorney's fees.
16    (d-5) Making Home Affordable Program. The court that
17entered the judgment shall set aside a sale held pursuant to
18Section 15-1507, upon motion of the mortgagor at any time prior
19to the confirmation of the sale, if the mortgagor proves by a
20preponderance of the evidence that (i) the mortgagor has
21applied for assistance under the Making Home Affordable Program
22established by the United States Department of the Treasury
23pursuant to the Emergency Economic Stabilization Act of 2008,
24as amended by the American Recovery and Reinvestment Act of
252009, and (ii) the mortgaged real estate was sold in material
26violation of the program's requirements for proceeding to a

 

 

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1judicial sale. The provisions of this subsection (d-5), except
2for this sentence, shall become inoperative on January 1, 2013
3for all actions filed under this Article after December 31,
42012, in which the mortgagor did not apply for assistance under
5the Making Home Affordable Program on or before December 31,
62012.
7    (e) Deficiency Judgment. In any order confirming a sale
8pursuant to the judgment of foreclosure, the court shall also
9enter a personal judgment for deficiency against any party (i)
10if otherwise authorized and (ii) to the extent requested in the
11complaint and proven upon presentation of the report of sale in
12accordance with Section 15-1508. Except as otherwise provided
13in this Article, a judgment may be entered for any balance of
14money that may be found due to the plaintiff, over and above
15the proceeds of the sale or sales, and enforcement may be had
16for the collection of such balance, the same as when the
17judgment is solely for the payment of money. Such judgment may
18be entered, or enforcement had, only in cases where personal
19service has been had upon the persons personally liable for the
20mortgage indebtedness, unless they have entered their
21appearance in the foreclosure action.
22    (f) Satisfaction. Upon confirmation of the sale, the
23judgment stands satisfied to the extent of the sale price less
24expenses and costs. If the order confirming the sale includes a
25deficiency judgment, the judgment shall become a lien in the
26manner of any other judgment for the payment of money.

 

 

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1    (g) The order confirming the sale shall include,
2notwithstanding any previous orders awarding possession during
3the pendency of the foreclosure, an award to the purchaser of
4possession of the mortgaged real estate, as of the date 30 days
5after the entry of the order, against the parties to the
6foreclosure whose interests have been terminated.
7    An order of possession authorizing the removal of a person
8from possession of the mortgaged real estate shall be entered
9and enforced only against those persons personally named as
10individuals in the complaint or the petition under subsection
11(h) of Section 15-1701 and in the order of possession and shall
12not be entered and enforced against any person who is only
13generically described as an unknown owner or nonrecord claimant
14or by another generic designation in the complaint.
15    Notwithstanding the preceding paragraph, the failure to
16personally name, include, or seek an award of possession of the
17mortgaged real estate against a person in the confirmation
18order shall not abrogate any right that the purchaser may have
19to possession of the mortgaged real estate and to maintain a
20proceeding against that person for possession under Article 9
21of this Code or subsection (h) of Section 15-1701; and
22possession against a person who (1) has not been personally
23named as a party to the foreclosure and (2) has not been
24provided an opportunity to be heard in the foreclosure
25proceeding may be sought only by maintaining a proceeding under
26Article 9 of this Code or subsection (h) of Section 15-1701.

 

 

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1(Source: P.A. 95-826, eff. 8-14-08; 96-265, eff. 8-11-09;
296-856, eff. 3-1-10; 96-1245, eff. 7-23-10; revised 9-16-10.)
 
3    Section 99. Effective date. This Act takes effect July 1,
42011.".