SB0192 100TH GENERAL ASSEMBLY

LRB100 05408 HEP 15419 b

100TH GENERAL ASSEMBLY
State of Illinois
2017 and 2018
SB0192

Introduced 1/18/2017, by Sen. Pamela J. Althoff

SYNOPSIS AS INTRODUCED:

735 ILCS 5/15-1506

from Ch. 110, par. 15-1506

Amends the Mortgage Foreclosure Article of the Code of Civil Procedure. Provides that in the trial of a foreclosure, the mortgagee establishes a prima facie case for foreclosure once the following evidence has been offered and admitted: (1) the mortgage at issue in the case; and (2) the note at issue in the case. Provides that the mortgagee is not required to present further evidence in order to establish a prima facie case of foreclosure, and once a prima facie case of foreclosure has been established by the mortgagee, the burden of proof and of presenting evidence shifts to the mortgagor to prove the amount owed on the note, payment, and any affirmative defense the mortgagor claims. Provides that failure of the mortgagor to present evidence of the amount owed on the note shall constitute a waiver of that issue, regardless of any contrary pleadings, and the mortgagee shall thereafter have the burden of presenting evidence of the amount due on the note. Provides that if the burden of presenting evidence regarding the amount owed on the note shifts back to the mortgagee because of the mortgagor's failure to present such evidence, the amount owed on the note shall be proven by affidavit. Provides that if the mortgagor presents evidence of the amount owed on the note, the mortgagee may present evidence in rebuttal, and this rebuttal evidence must be taken in open court.

A BILL FOR

AN ACT concerning civil law.

Be it enacted by the People of the State of Illinois, represented in the General Assembly:

Section 5. The Code of Civil Procedure is amended by changing Section 15-1506 as follows:

(735 ILCS 5/15-1506) (from Ch. 110, par. 15-1506)

Sec. 15-1506. Judgment.

(a) Evidence. In the trial of a foreclosure, the evidence to support the allegations of the complaint shall be taken in open court, except:

(1) where an allegation of fact in the complaint is not denied by a party's verified answer or verified counterclaim, or where a party pursuant to subsection (b) of Section 2-610 of the Code of Civil Procedure states, or is deemed to have stated, in its pleading that it has no knowledge of such allegation sufficient to form a belief and attaches the required affidavit, a sworn verification of the complaint or a separate affidavit setting forth such fact is sufficient evidence thereof against such party and no further evidence of such fact shall be required; and

(2) where all the allegations of fact in the complaint have been proved by verification of the complaint or affidavit, the court upon motion supported by an affidavit stating the amount which is due the mortgagee, shall enter a judgment of foreclosure as requested in the complaint.

(a-5) Burden of Proof at Trial. In the trial of a foreclosure, the mortgagee establishes a prima facie case for foreclosure once the following evidence has been offered and admitted:

(1) the mortgage at issue in the case; and

(2) the note at issue in the case.

The mortgagee is not required to present further evidence in order to establish a prima facie case of foreclosure. Once a prima facie case of foreclosure has been established by the mortgagee, the burden of proof and of presenting evidence shifts to the mortgagor to prove the amount owed on the note, payment, and any affirmative defense the mortgagor claims. This subsection (a-5) is declarative of existing law.

(a-7) Proof of Amount Owed. Failure of the mortgagor to present evidence of the amount owed on the note shall constitute a waiver of that issue, regardless of any contrary pleadings, and the mortgagee shall thereafter have the burden of presenting evidence of the amount due on the note. Notwithstanding the requirements of subsection (a) of this Section, if the burden of presenting evidence regarding the amount owed on the note shifts back to the mortgagee because of the mortgagor's failure to present such evidence, the amount owed on the note shall be proven by affidavit. If the mortgagor presents evidence of the amount owed on the note, the mortgagee may present evidence in rebuttal, and this rebuttal evidence must be taken in open court.

(b) Instruments. In all cases the evidence of the indebtedness and the mortgage foreclosed shall be exhibited to the court and appropriately marked, and copies thereof shall be filed with the court.

(c) Summary and Default Judgments. Nothing in this Section 15-1506 shall prevent a party from obtaining a summary or default judgment authorized by Article II of the Code of Civil Procedure.

(d) Notice of Entry of Default. When any judgment in a foreclosure is entered by default, notice of such judgment shall be given in accordance with Section 2-1302 of the Code of Civil Procedure.

(e) Matters Required in Judgment. A judgment of foreclosure shall include the last date for redemption and all rulings of the court entered with respect to each request for relief set forth in the complaint. The omission of the date for redemption shall not extend the time for redemption or impair the validity of the judgment.

(f) Special Matters in Judgment. Without limiting the general authority and powers of the court, special matters may be included in the judgment of foreclosure if sought by a party in the complaint or by separate motion. Such matters may include, without limitation:

(1) a manner of sale other than public auction;

(2) a sale by sealed bid;

(3) an official or other person who shall be the officer to conduct the sale other than the one customarily designated by the court;

(4) provisions for non-exclusive broker listings or designating a duly licensed real estate broker nominated by one of the parties to exclusively list the real estate for sale;

(5) the fees or commissions to be paid out of the sale proceeds to the listing or other duly licensed broker, if any, who shall have procured the accepted bid;

(6) the fees to be paid out of the sale proceeds to an auctioneer, if any, who shall have been authorized to conduct a public auction sale;

(7) whether and in what manner and with what content signs shall be posted on the real estate;

(8) a particular time and place at which such bids shall be received;

(9) a particular newspaper or newspapers in which notice of sale shall be published;

(10) the format for the advertising of such sale, including the size, content and format of such advertising, and additional advertising of such sale;

(11) matters or exceptions to which title in the real estate may be subject at the sale;

(12) a requirement that title insurance in a specified form be provided to a purchaser at the sale, and who shall pay for such insurance;

(13) whether and to what extent bids with mortgage or other contingencies will be allowed;

(14) such other matters as approved by the court to ensure sale of the real estate for the most commercially favorable price for the type of real estate involved.

(g) Agreement of the Parties. If all of the parties agree in writing on the minimum price and that the real estate may be sold to the first person who offers in writing to purchase the real estate for such price, and on such other commercially reasonable terms and conditions as the parties may agree, then the court shall order the real estate to be sold on such terms, subject to confirmation of the sale in accordance with Section 15-1508.

(h) Postponement of Proving Priority. With the approval of the court prior to the entry of the judgment of foreclosure, a party claiming an interest in the proceeds of the sale of the mortgaged real estate may defer proving the priority of such interest until the hearing to confirm the sale.

(i) Effect of Judgment and Lien.

(1) Upon the entry of the judgment of foreclosure, all rights of a party in the foreclosure against the mortgagor provided for in the judgment of foreclosure or this Article shall be secured by a lien on the mortgaged real estate, which lien shall have the same priority as the claim to which the judgment relates and shall be terminated upon confirmation of a judicial sale in accordance with this Article.

(2) Upon the entry of the judgment of foreclosure, the rights in the real estate subject to the judgment of foreclosure of (i) all persons made a party in the foreclosure and (ii) all nonrecord claimants given notice in accordance with paragraph (2) of subsection (c) of Section 15-1502, shall be solely as provided for in the judgment of foreclosure and in this Article.

(3) Entry of a judgment of foreclosure does not terminate or otherwise affect a bona fide lease of a dwelling unit in residential real estate in foreclosure, whether or not the lessee has been made a party in the foreclosure.

(Source: P.A. 98-514, eff. 11-19-13.)