|
|
|
95TH GENERAL ASSEMBLY
State of Illinois
2007 and 2008 HB5896
Introduced , by Rep. Ed Sullivan, Jr. SYNOPSIS AS INTRODUCED: |
|
735 ILCS 5/15-1502.5 new |
|
735 ILCS 5/15-1504 |
from Ch. 110, par. 15-1504 |
|
Amends the Code of Civil Procedure. Provides that, prior to commencing a mortgage foreclosure action, the plaintiff must contact the mortgagor advising the mortgagor of foreclosure in the near future and notifying the mortgagor that an in-person meeting to review refinancing the mortgage loan is available. Provides the notice must also contain a list of HUD-certified credit counselors. Provides that the plaintiff must wait at least 30 days after the date of the in-person meeting, or 30 days after the notice was served if no meeting was requested by the mortgagor, before the action to foreclose may be commenced. Provides that the plaintiff in any foreclosure action must attach to the complaint a sworn affidavit stating that these requirements have been complied with.
|
| |
|
|
A BILL FOR
|
|
|
|
|
HB5896 |
|
LRB095 17980 AJO 44063 b |
|
|
1 |
| AN ACT concerning civil law.
|
2 |
| Be it enacted by the People of the State of Illinois,
|
3 |
| represented in the General Assembly:
|
4 |
| Section 5. The Code of Civil Procedure is amended by adding |
5 |
| Section 15-1502.5 and by changing Section 15-1504 as follows: |
6 |
| (735 ILCS 5/15-1502.5 new)
|
7 |
| Sec. 15-1502.5. Pre-foreclosure counseling. |
8 |
| (a) Prior to commencing a foreclosure action, the plaintiff |
9 |
| must exercise due diligence to make contact with the mortgagor |
10 |
| by written notice sent by certified mail, return receipt |
11 |
| requested. The notice must state that the mortgage is scheduled |
12 |
| to be foreclosed in the near future, that an in-person meeting |
13 |
| is available to the mortgagor and the manner in which the |
14 |
| meeting may be scheduled, and that at the meeting the mortgagor |
15 |
| will be advised of any available options for restructuring or |
16 |
| refinancing the mortgage loan. The notice shall also contain a |
17 |
| list of credit counselors certified by the federal Department |
18 |
| of Housing and Urban development who are available to assist |
19 |
| the mortgagor. The foreclosure action may not be commenced |
20 |
| until at least 30 days after the date of the in-person meeting |
21 |
| or 30 days after the notice was served if no meeting was |
22 |
| requested by the mortgagor.
|
|
|
|
HB5896 |
- 2 - |
LRB095 17980 AJO 44063 b |
|
|
1 |
| (735 ILCS 5/15-1504) (from Ch. 110, par. 15-1504)
|
2 |
| Sec. 15-1504. Pleadings and service.
|
3 |
| (a) Form of Complaint. A foreclosure complaint
may be in |
4 |
| substantially the following form:
|
5 |
| (1) Plaintiff files this complaint to foreclose the |
6 |
| mortgage (or other
conveyance in the nature of a mortgage) |
7 |
| (hereinafter called "mortgage")
hereinafter described and |
8 |
| joins the following person as defendants: (here
insert |
9 |
| names of all defendants).
|
10 |
| (2) Attached as Exhibit "A" is a copy of the mortgage |
11 |
| and as Exhibit "B"
is a copy of the note secured thereby.
|
12 |
| (3) Information concerning mortgage:
|
13 |
| (A) Nature of instrument: (here insert whether a |
14 |
| mortgage, trust deed or
other instrument in the nature |
15 |
| of a mortgage, etc.)
|
16 |
| (B) Date of mortgage:
|
17 |
| (C) Name of mortgagor:
|
18 |
| (D) Name of mortgagee:
|
19 |
| (E) Date and place of recording:
|
20 |
| (F) Identification of recording: (here insert book |
21 |
| and page number or document number)
|
22 |
| (G) Interest subject to the mortgage: (here insert |
23 |
| whether fee simple,
estate for years, undivided |
24 |
| interest, etc.)
|
25 |
| (H) Amount of original indebtedness, including |
26 |
| subsequent advances made
under the mortgage:
|
|
|
|
HB5896 |
- 3 - |
LRB095 17980 AJO 44063 b |
|
|
1 |
| (I) Both the legal description of the mortgaged |
2 |
| real estate and the
common address or other information |
3 |
| sufficient to identify it with reasonable certainty:
|
4 |
| (J) Statement as to defaults, including, but not |
5 |
| necessarily
limited to, date of default, current |
6 |
| unpaid principal balance, per diem
interest accruing, |
7 |
| and any further information concerning the default:
|
8 |
| (K) Name of present owner of the real estate:
|
9 |
| (L) Names of other persons who are joined as |
10 |
| defendants and whose
interest in or lien on the |
11 |
| mortgaged real estate is sought to be terminated:
|
12 |
| (M) Names of defendants claimed to be personally |
13 |
| liable
for deficiency, if any:
|
14 |
| (N) Capacity in which plaintiff brings this |
15 |
| foreclosure (here indicate
whether plaintiff is the |
16 |
| legal holder of the indebtedness, a pledgee, an
agent, |
17 |
| the trustee under a trust deed or otherwise, as |
18 |
| appropriate):
|
19 |
| (O) Facts in support of redemption period shorter |
20 |
| than
the longer of (i) 7 months from the date the |
21 |
| mortgagor or, if more than
one, all the mortgagors (I) |
22 |
| have been served with summons or by publication
or (II) |
23 |
| have otherwise submitted to the jurisdiction of the |
24 |
| court, or (ii)
3 months from the entry of the judgment |
25 |
| of foreclosure, if sought (here
indicate whether based |
26 |
| upon the real estate not being residential,
|
|
|
|
HB5896 |
- 4 - |
LRB095 17980 AJO 44063 b |
|
|
1 |
| abandonment, or real estate value less than 90%
of |
2 |
| amount owed, etc.):
|
3 |
| (P) Statement that the right of redemption has been |
4 |
| waived by all
owners of redemption, if applicable:
|
5 |
| (Q) Facts in support of request for attorneys' fees |
6 |
| and of costs and
expenses, if applicable:
|
7 |
| (R) Facts in support of a request for appointment |
8 |
| of mortgagee in
possession or for appointment of |
9 |
| receiver, and identity of such receiver, if
sought:
|
10 |
| (S) Offer to mortgagor in accordance with Section |
11 |
| 15-1402 to accept
title to the real estate in |
12 |
| satisfaction of all indebtedness and
obligations |
13 |
| secured by the mortgage without judicial sale, if |
14 |
| sought:
|
15 |
| (T) Name or names of defendants whose right to
|
16 |
| possess the mortgaged real estate, after the |
17 |
| confirmation of a foreclosure
sale, is
sought to be |
18 |
| terminated and, if not elsewhere stated, the facts in |
19 |
| support
thereof:
|
20 |
| REQUEST FOR RELIEF
|
21 |
| Plaintiff requests:
|
22 |
| (i) A judgment of foreclosure and sale.
|
23 |
| (ii) An order granting a shortened redemption period, |
24 |
| if sought.
|
25 |
| (iii) A personal judgment for a deficiency, if sought.
|
|
|
|
HB5896 |
- 5 - |
LRB095 17980 AJO 44063 b |
|
|
1 |
| (iv) An order granting possession, if sought.
|
2 |
| (v) An order placing the mortgagee in possession or |
3 |
| appointing a receiver,
if sought.
|
4 |
| (vi) A judgment for attorneys' fees, costs and |
5 |
| expenses, if sought.
|
6 |
| (b) Required Information. A foreclosure complaint need |
7 |
| contain only such
statements and requests called for by the |
8 |
| form set forth in subsection (a) of
Section
15-1504 as may be |
9 |
| appropriate for the relief sought. Such complaint may
be filed |
10 |
| as a counterclaim, may be joined with other counts or may |
11 |
| include
in the same count additional matters or a request for |
12 |
| any additional
relief permitted by Article
II of the Code of |
13 |
| Civil Procedure.
|
14 |
| (c) Allegations. The statements contained in a complaint in |
15 |
| the form
set forth in subsection (a) of Section 15-1504 are |
16 |
| deemed and construed to include
allegations as follows:
|
17 |
| (1) on the date indicated the obligor of the |
18 |
| indebtedness or other
obligations secured by the mortgage |
19 |
| was justly indebted in the amount of
the indicated original |
20 |
| indebtedness to the original mortgagee or payee of
the |
21 |
| mortgage note;
|
22 |
| (2) that the exhibits attached are true and correct |
23 |
| copies of the
mortgage and note and are incorporated and |
24 |
| made a part of the complaint by
express reference;
|
25 |
| (3) that the mortgagor was at the date indicated an |
26 |
| owner of the
interest in the real estate described in the |
|
|
|
HB5896 |
- 6 - |
LRB095 17980 AJO 44063 b |
|
|
1 |
| complaint and that as of that
date made, executed and |
2 |
| delivered the mortgage as security for the note or
other |
3 |
| obligations;
|
4 |
| (4) that the mortgage was recorded in the county in |
5 |
| which the mortgaged
real estate is located, on the date |
6 |
| indicated, in the book and page or as
the document number |
7 |
| indicated;
|
8 |
| (5) that defaults occurred as indicated;
|
9 |
| (6) that at the time of the filing of the complaint the |
10 |
| persons named as
present owners are the owners of the |
11 |
| indicated interests in and to the real
estate described;
|
12 |
| (7) that the mortgage constitutes a valid, prior and |
13 |
| paramount lien upon
the indicated interest in the mortgaged |
14 |
| real estate, which lien is prior and
superior to the right, |
15 |
| title, interest, claim or lien of all parties and
nonrecord |
16 |
| claimants whose interests in the mortgaged real estate are
|
17 |
| sought to be terminated;
|
18 |
| (8) that by reason of the defaults alleged, if the |
19 |
| indebtedness has not
matured by its terms, the same has |
20 |
| become due by the exercise, by the
plaintiff or other |
21 |
| persons having such power, of a right or power to
declare |
22 |
| immediately due and payable the whole of all indebtedness |
23 |
| secured
by the mortgage;
|
24 |
| (9) that any and all notices of default or election to |
25 |
| declare the
indebtedness due and payable or other notices |
26 |
| required to be given have
been duly and properly given;
|
|
|
|
HB5896 |
- 7 - |
LRB095 17980 AJO 44063 b |
|
|
1 |
| (10) that any and all periods of grace or other period |
2 |
| of time allowed
for the performance of the covenants or |
3 |
| conditions claimed to be breached
or for the curing of any |
4 |
| breaches have expired;
|
5 |
| (11) that the amounts indicated in the statement
in the |
6 |
| complaint are correctly stated and
if such statement |
7 |
| indicates any advances made or to be made by the
plaintiff |
8 |
| or owner of the mortgage indebtedness, that such advances |
9 |
| were,
in fact, made or will be
required to be made, and |
10 |
| under and by virtue of the mortgage the same
constitute |
11 |
| additional indebtedness secured by the mortgage; and
|
12 |
| (12) that, upon confirmation of the sale, the holder of |
13 |
| the certificate
of sale or deed issued pursuant to that |
14 |
| certificate or, if no certificate or
deed was issued, the |
15 |
| purchaser at the sale will be entitled to full possession
|
16 |
| of the mortgaged real estate against the parties
named in |
17 |
| clause (T) of
paragraph (3) of subsection (a) of Section |
18 |
| 15-1504 or elsewhere to the same
effect;
the omission of |
19 |
| any
party indicates that plaintiff will not seek a |
20 |
| possessory order in the order
confirming sale unless the |
21 |
| request is subsequently made under subsection (h) of
|
22 |
| Section 15-1701 or by separate action under Article 9 of |
23 |
| this Code.
|
24 |
| (d) Request for Fees and Costs. A statement in the |
25 |
| complaint that
plaintiff seeks the inclusion of attorneys' fees |
26 |
| and of costs and expenses
shall be deemed and construed to |
|
|
|
HB5896 |
- 8 - |
LRB095 17980 AJO 44063 b |
|
|
1 |
| include allegations that:
|
2 |
| (1) plaintiff has been compelled to employ and retain |
3 |
| attorneys to
prepare and file the complaint and to |
4 |
| represent and advise the plaintiff in
the foreclosure of |
5 |
| the mortgage and the plaintiff will thereby become
liable |
6 |
| for the usual, reasonable and customary fees of the |
7 |
| attorneys in
that behalf;
|
8 |
| (2) that the plaintiff has been compelled to advance or |
9 |
| will be
compelled to advance, various sums of money in |
10 |
| payment of costs, fees,
expenses and disbursements |
11 |
| incurred in connection with the foreclosure,
including, |
12 |
| without limiting the generality of the foregoing, filing |
13 |
| fees,
stenographer's fees, witness fees, costs of |
14 |
| publication, costs of procuring
and preparing documentary |
15 |
| evidence and costs of procuring
abstracts of title, Torrens |
16 |
| certificates, foreclosure minutes and a title
insurance |
17 |
| policy;
|
18 |
| (3) that under the terms of the mortgage, all such |
19 |
| advances, costs,
attorneys' fees and other fees, expenses |
20 |
| and disbursements are made a lien
upon the mortgaged real |
21 |
| estate and the plaintiff is entitled to recover all
such |
22 |
| advances, costs, attorneys' fees, expenses and |
23 |
| disbursements, together
with interest on all advances at |
24 |
| the rate provided in the mortgage, or, if
no rate is |
25 |
| provided therein, at the statutory judgment rate, from the
|
26 |
| date on which such advances are made;
|
|
|
|
HB5896 |
- 9 - |
LRB095 17980 AJO 44063 b |
|
|
1 |
| (4) that in order to protect the lien of the mortgage, |
2 |
| it may become
necessary for plaintiff to pay taxes and |
3 |
| assessments which have been or may
be levied upon the |
4 |
| mortgaged real estate;
|
5 |
| (5) that in order to protect and preserve the mortgaged |
6 |
| real estate, it
may also become necessary for the plaintiff |
7 |
| to pay liability (protecting
mortgagor and mortgagee), |
8 |
| fire and other hazard
insurance premiums on the mortgaged |
9 |
| real estate, make such repairs
to the mortgaged real
estate |
10 |
| as may reasonably be deemed necessary for the proper |
11 |
| preservation
thereof, advance for costs to inspect the |
12 |
| mortgaged real estate or to
appraise it, or both, and |
13 |
| advance for premiums for pre-existing private or
|
14 |
| governmental mortgage insurance to the extent required |
15 |
| after a foreclosure
is commenced in order to keep such |
16 |
| insurance in force; and
|
17 |
| (6) that under the terms of the mortgage, any money so |
18 |
| paid or expended
will become an additional indebtedness |
19 |
| secured by the mortgage and will bear
interest from the |
20 |
| date such monies are advanced at the rate provided in the
|
21 |
| mortgage, or, if no rate is provided, at the
statutory |
22 |
| judgment rate.
|
23 |
| (e) Request for Foreclosure. The request for foreclosure is |
24 |
| deemed and
construed to mean that the plaintiff requests that:
|
25 |
| (1) an accounting may be taken under the direction of |
26 |
| the court of the
amounts due and owing to the plaintiff;
|
|
|
|
HB5896 |
- 10 - |
LRB095 17980 AJO 44063 b |
|
|
1 |
| (2) that the defendants be ordered to pay to the |
2 |
| plaintiff before
expiration of any redemption period (or, |
3 |
| if no redemption period, before a
short date fixed by the |
4 |
| court) whatever sums may appear to be due upon the taking
|
5 |
| of such account,
together with attorneys' fees and costs of |
6 |
| the proceedings (to the extent
provided in the mortgage or |
7 |
| by law);
|
8 |
| (3) that in default of such payment in accordance with |
9 |
| the judgment, the
mortgaged real estate be sold as directed |
10 |
| by the court, to satisfy the
amount due to the plaintiff as |
11 |
| set forth in the judgment, together with the
interest |
12 |
| thereon at the statutory judgment rate from the date of the |
13 |
| judgment;
|
14 |
| (4) that in the event the plaintiff is a purchaser of |
15 |
| the mortgaged real
estate at such sale, the plaintiff may |
16 |
| offset against the purchase price of
such real estate the |
17 |
| amounts due under the judgment of foreclosure and
order |
18 |
| confirming the sale;
|
19 |
| (5) that in the event of such sale and the failure of |
20 |
| any person entitled
thereto to redeem prior to such sale |
21 |
| pursuant to this Article, the
defendants made parties to |
22 |
| the foreclosure in accordance with this Article,
and all |
23 |
| nonrecord claimants given notice of the foreclosure in |
24 |
| accordance
with this Article, and all persons claiming by, |
25 |
| through or under them, and
each and any and all of them, |
26 |
| may be forever barred and foreclosed of any
right, title, |
|
|
|
HB5896 |
- 11 - |
LRB095 17980 AJO 44063 b |
|
|
1 |
| interest, claim, lien, or right to redeem in and to the
|
2 |
| mortgaged real estate; and
|
3 |
| (6) that if no redemption is made prior to such sale, a |
4 |
| deed may be
issued to the purchaser thereat according to |
5 |
| law and such purchaser be let
into possession of the |
6 |
| mortgaged real estate in accordance with Part 17 of this |
7 |
| Article.
|
8 |
| (f) Request for Deficiency Judgment. A request for a |
9 |
| personal judgment
for a deficiency in a foreclosure complaint |
10 |
| if the sale of the mortgaged
real estate fails to produce a |
11 |
| sufficient amount to pay the amount found
due, the plaintiff |
12 |
| may have a personal judgment against any party in the
|
13 |
| foreclosure indicated as being personally liable therefor and |
14 |
| the enforcement
thereof be had as provided by law.
|
15 |
| (g) Request for Possession or Receiver. A request for |
16 |
| possession or appointment
of a receiver has the meaning as |
17 |
| stated in subsection (b) of Section 15-1706.
|
18 |
| (h) Answers by Parties. Any party
may assert its interest |
19 |
| by counterclaim and such counterclaim may at the
option of that |
20 |
| party stand in lieu of answer to the complaint for
foreclosure |
21 |
| and all counter complaints previously or thereafter filed
in |
22 |
| the foreclosure. Any such counterclaim shall be deemed to |
23 |
| constitute a
statement that the counter claimant does not have |
24 |
| sufficient knowledge to
form a belief as to the truth or |
25 |
| falsity of the
allegations of the complaint and all other |
26 |
| counterclaims, except
to the extent that the counterclaim |
|
|
|
HB5896 |
- 12 - |
LRB095 17980 AJO 44063 b |
|
|
1 |
| admits or specifically denies such
allegations.
|
2 |
| (i) Pre-foreclosure meeting. Every foreclosure complaint |
3 |
| must be accompanied by a sworn affidavit of the plaintiff |
4 |
| stating that the plaintiff has complied with all the |
5 |
| requirements of Section 15-1502.5. Any complaint filed without |
6 |
| this affidavit is insufficient as a matter of law. |
7 |
| (Source: P.A. 91-357, eff. 7-29-99.)
|