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Public Act 095-0262
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| SB0258 Enrolled |
LRB095 09724 LCT 29928 b |
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AN ACT concerning civil law.
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Be it enacted by the People of the State of Illinois,
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represented in the General Assembly:
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Section 5. The Code of Civil Procedure is amended by |
changing Section 15-1701 as follows:
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(735 ILCS 5/15-1701) (from Ch. 110, par. 15-1701)
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Sec. 15-1701. Right to possession.
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(a) General. The provisions of
this Article shall govern |
the right to possession of the mortgaged real
estate during |
foreclosure. Possession under this Article includes physical
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possession of the mortgaged real estate to the same extent to |
which the
mortgagor, absent the foreclosure, would have been |
entitled to physical
possession. For the purposes of Part 17, |
real estate is residential real estate
only if it is |
residential real estate at the time the foreclosure is |
commenced.
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(b) Pre-Judgment. Prior to the entry of a judgment of |
foreclosure:
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(1) In the case of residential real estate, the |
mortgagor shall be
entitled to possession of the real |
estate except if (i) the mortgagee shall
object and show |
good cause, (ii) the mortgagee is so authorized by the |
terms of
the mortgage or other written instrument, and |
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(iii) the court is satisfied that
there is a reasonable |
probability that the mortgagee will prevail on a final
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hearing of the cause, the court shall upon request place |
the mortgagee in
possession. If the residential real estate |
consists of more than one dwelling
unit, then for the |
purpose of this Part residential real estate shall mean |
only
that dwelling unit or units occupied by persons |
described in clauses (i), (ii)
and (iii) of Section |
15-1219.
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(2) In all other cases, if (i) the mortgagee is so |
authorized by the
terms of the mortgage or other written |
instrument, and (ii) the court is
satisfied that there is a |
reasonable probability that the mortgagee will
prevail on a |
final hearing of the cause, the mortgagee shall
upon |
request be placed in possession of the real estate, except |
that if the
mortgagor shall object and show good cause, the |
court shall allow the
mortgagor to remain in possession.
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(c) Judgment Through 30 Days After Sale Confirmation. After |
the entry
of a judgment of foreclosure and through the 30th day |
after a foreclosure
sale is confirmed:
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(1) Subsection (b) of Section 15-1701 shall be |
applicable, regardless of
the provisions of the mortgage or |
other instrument, except that after a
sale pursuant to the |
judgment the holder of the certificate of sale
(or, if |
none, the purchaser at the sale) shall have the mortgagee's |
right to be
placed in possession, with all rights and |
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duties of a mortgagee in possession
under this Article.
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(2) Notwithstanding paragraph (1) of subsection (b) |
and paragraph (1) of
subsection (c) of Section 15-1701, |
upon request of the mortgagee, a mortgagor
of residential |
real estate shall not be allowed to remain in possession |
between
the expiration of the redemption period and through |
the 30th day after sale
confirmation unless (i) the |
mortgagor pays to the mortgagee or such holder or
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purchaser, whichever is applicable, monthly the lesser of |
the interest due
under the mortgage calculated at the |
mortgage rate of interest applicable as if
no default had |
occurred or the fair rental value of the real estate, or |
(ii)
the mortgagor otherwise shows good cause. Any amounts |
paid by the mortgagor
pursuant to this subsection shall be |
credited against the amounts due from the
mortgagor.
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(d) After 30 Days After Sale Confirmation. The holder of
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the certificate of sale or deed issued pursuant to that |
certificate or, if
no certificate or deed was issued, the |
purchaser, except to the extent the
holder or purchaser may |
consent otherwise, shall be entitled to possession of
the |
mortgaged real estate, as of the date 30 days after the order |
confirming
the sale is entered, against those parties to the |
foreclosure whose interests
the court has ordered terminated, |
without further notice to any party, further
order of the |
court, or resort to proceedings under any other statute other |
than
this Article.
This right to possession shall be limited by |
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the provisions
governing entering and enforcing orders of |
possession under subsection (g) of
Section
15-1508.
If the |
holder or purchaser determines that there are occupants
of the |
mortgaged real estate who have not been made parties to the |
foreclosure
and had their interests terminated therein, the |
holder or purchaser may bring a
proceeding under subsection (h) |
of this Section or under Article 9 of this Code
to terminate |
the rights of possession of any such occupants. The holder or
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purchaser shall not be entitled to proceed against any such |
occupant under
Article 9 of this Code until after 30 days after |
the order confirming the sale
is entered.
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(e) Termination of Leases. A lease of all or any part of |
the mortgaged
real estate shall not be terminated automatically |
solely by virtue of the entry
into possession by (i) a |
mortgagee or receiver prior to the entry of an order
confirming |
the sale, (ii) the holder of the certificate of sale, (iii) the
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holder of the deed issued pursuant to that certificate, or (iv) |
if no
certificate or deed was issued, the purchaser at the |
sale.
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(f) Other Statutes; Instruments. The provisions of this |
Article
providing for possession of mortgaged real estate shall |
supersede any other
inconsistent statutory provisions. In |
particular, and without limitation,
whenever a receiver is |
sought to be appointed in any action in which a
foreclosure is |
also pending, a receiver shall be appointed only in
accordance |
with this Article. Except as may be authorized by this Article,
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no mortgage or other instrument may modify or supersede the |
provisions of this
Article.
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(g) Certain Leases. Leases of the mortgaged real estate |
entered into by
a mortgagee in possession or a receiver and |
approved by the court in a
foreclosure shall be binding on all |
parties, including the mortgagor after
redemption, the |
purchaser at a sale pursuant to a judgment of foreclosure
and |
any person acquiring an interest in the mortgaged real estate |
after
entry of a judgment of foreclosure in accordance with |
Sections 15-1402 and
15-1403.
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(h) Proceedings Against Certain Occupants.
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(1) The mortgagee-in-possession of the mortgaged real |
estate under Section
15-1703, a receiver appointed under |
Section 15-1704, a holder of the
certificate of sale or |
deed, or the purchaser may, at any time during the
pendency |
of the foreclosure and up to 90 days after the date of the |
order
confirming the sale,
file a supplemental petition for |
possession against a person not personally
named as a party
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to the foreclosure. The supplemental petition for |
possession shall name each such
occupant against whom |
possession is sought and state the facts upon which the
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claim for relief is premised.
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(2) The petitioner shall serve upon each named occupant |
the petition,
a notice of hearing on the petition, and, if |
any, a copy of the certificate of
sale or deed. The |
proceeding for the termination of such occupant's |
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possessory
interest, including service of the notice of the |
hearing and the petition,
shall in all respects comport |
with the requirements of Article 9 of this Code,
except as |
otherwise specified in this Section. The hearing shall be |
no less
than 21 days from the date of service of the |
notice.
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(3) The supplemental petition shall be heard as part of |
the foreclosure
proceeding and without the payment of |
additional filing fees. An order for
possession obtained |
under this Section shall name each occupant whose interest
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has been terminated, shall recite that it is only effective |
as to the occupant
so named and those holding under them, |
and shall be enforceable for no more
than 90 days after its |
entry, except that the 90-day period may be extended to
the |
extent and in the manner provided in Section 9-117 of |
Article 9 and except as provided in item (4) of this |
subsection (h). |
(4) In a case of foreclosure where the tenant is |
current on his or her rent, any order of possession must |
allow the tenant to retain possession of the property |
covered in his or her rental agreement (i) for 120 days |
following the notice of the hearing on the supplemental |
petition that has been properly served upon the tenant, or |
(ii) through the duration of his or her lease, whichever is |
shorter. This item (4) shall only apply if the tenant |
continues to pay his or her rent in full during the 120-day |