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1 | AN ACT concerning civil law.
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2 | Be it enacted by the People of the State of Illinois,
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3 | represented in the General Assembly:
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4 | Section 5. The Code of Civil Procedure is amended by | |||||||||||||||||||||||||||||
5 | changing Sections 15-1504.5, 15-1508, 15-1701, 15-1703, and | |||||||||||||||||||||||||||||
6 | 15-1704 and by adding Sections 15-1504.6, and 15-1508.5 as | |||||||||||||||||||||||||||||
7 | follows: | |||||||||||||||||||||||||||||
8 | (735 ILCS 5/15-1504.5)
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9 | Sec. 15-1504.5. Homeowner notice to be attached to summons. | |||||||||||||||||||||||||||||
10 | For all residential foreclosure actions filed, the plaintiff | |||||||||||||||||||||||||||||
11 | must attach a Homeowner Notice to the summons. The Homeowner | |||||||||||||||||||||||||||||
12 | Notice must be in at least 12 point type and in English and | |||||||||||||||||||||||||||||
13 | Spanish. The Spanish translation shall be prepared by the | |||||||||||||||||||||||||||||
14 | Attorney General and posted on the Attorney General's website. | |||||||||||||||||||||||||||||
15 | A notice that includes the Attorney General's Spanish | |||||||||||||||||||||||||||||
16 | translation in substantially similar form shall be deemed to | |||||||||||||||||||||||||||||
17 | comply with the Spanish notice requirement in this Section. The | |||||||||||||||||||||||||||||
18 | Notice must be in substantially the following form: | |||||||||||||||||||||||||||||
19 | IMPORTANT INFORMATION FOR HOMEOWNERS IN FORECLOSURE
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20 | 1. POSSESSION: The lawful occupants of a home have the | |||||||||||||||||||||||||||||
21 | right to live in the home until a judge enters an order for |
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1 | possession. | ||||||
2 | 2. OWNERSHIP: You continue to own your home until the | ||||||
3 | court rules otherwise. | ||||||
4 | 3. REINSTATEMENT: As the homeowner you have the right | ||||||
5 | to bring the mortgage current within 90 days after you | ||||||
6 | receive the summons. | ||||||
7 | 4. REDEMPTION: As the homeowner you have the right to | ||||||
8 | sell your home, refinance, or pay off the loan during the | ||||||
9 | redemption period. | ||||||
10 | 5. SURPLUS: As the homeowner you have the right to | ||||||
11 | petition the court for any excess money that results from a | ||||||
12 | foreclosure sale of your home. | ||||||
13 | 6. WORKOUT OPTIONS: The mortgage company does not want | ||||||
14 | to foreclose on your home if there is any way to avoid it. | ||||||
15 | Call your mortgage company [insert name of the homeowner's | ||||||
16 | current mortgage servicer in bold and 14 point type] or its | ||||||
17 | attorneys to find out the alternatives to foreclosure. | ||||||
18 | 7. PAYOFF AMOUNT: You have the right to obtain a | ||||||
19 | written statement of the amount necessary to pay off your | ||||||
20 | loan. Your mortgage company (identified above) must | ||||||
21 | provide you this statement within 10 business days of | ||||||
22 | receiving your request, provided that your request is in | ||||||
23 | writing and includes your name, the address of the | ||||||
24 | property, and the mortgage account or loan number. Your | ||||||
25 | first payoff statement will be free. | ||||||
26 | 8. GET ADVICE: This information is not exhaustive and |
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1 | does not replace the advice of a professional. You may have | ||||||
2 | other options. Get professional advice from a lawyer or | ||||||
3 | certified housing counselor about your rights and options | ||||||
4 | to avoid foreclosure. | ||||||
5 | 9. LAWYER: If you do not have a lawyer, you may be able | ||||||
6 | to find assistance by contacting the Illinois State Bar | ||||||
7 | Association or a legal aid organization that provides free | ||||||
8 | legal assistance. | ||||||
9 | 10. PROCEED WITH CAUTION: You may be contacted by | ||||||
10 | people offering to help you avoid foreclosure. Before | ||||||
11 | entering into any transaction with persons offering to help | ||||||
12 | you, please contact a lawyer, government official, or | ||||||
13 | housing counselor for advice.
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14 | 11. IF YOU HAVE TENANTS OR RENT YOUR PROPERTY: | ||||||
15 | A. Within 7 days after receiving this notice, you | ||||||
16 | must notify any tenants living in your property, and | ||||||
17 | anyone who routinely makes rental payments on behalf of | ||||||
18 | a tenant, that the building is in foreclosure | ||||||
19 | proceedings. This must be in writing and must provide | ||||||
20 | the tenants with the case name and case number of the | ||||||
21 | pending foreclosure action, and shall notify tenants | ||||||
22 | of the court where the foreclosure action is pending. | ||||||
23 | The notice must also include the following language: | ||||||
24 | "This is not a notice to vacate the premises. This | ||||||
25 | notice does not mean ownership of the building has | ||||||
26 | changed. All tenants are still responsible for payment |
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1 | of rent and other obligations under the rental | ||||||
2 | agreement. The owner or landlord is still responsible | ||||||
3 | for his or her obligations under the rental agreement. | ||||||
4 | You shall receive additional notice if there is a | ||||||
5 | change in owner." | ||||||
6 | B. You must also give written notice to anyone who | ||||||
7 | might rent or lease your property, that the building is | ||||||
8 | in foreclosure proceedings, before you rent or lease | ||||||
9 | the property to him or her. | ||||||
10 | C. If you do not provide these notices to anyone | ||||||
11 | entitled to notice, you may be liable to your tenants | ||||||
12 | for any damages that they suffer, as well as a penalty | ||||||
13 | of $200, and any attorney's fees or court costs that | ||||||
14 | the tenant may accrue. | ||||||
15 | D. Even though your building is in foreclosure, you | ||||||
16 | must still keep your property in good repair and | ||||||
17 | utilities must be paid under the terms of any lease or | ||||||
18 | as required by State and local law. | ||||||
19 | (Source: P.A. 95-961, eff. 1-1-09.) | ||||||
20 | (735 ILCS 5/15-1504.6 new)
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21 | Sec. 15-1504.6. Notice by mortgagor to occupants. | ||||||
22 | (a) Within 7 days after being served a foreclosure | ||||||
23 | complaint, as defined in Section 15-1504, a mortgagor or owner | ||||||
24 | of the mortgaged real estate that is the subject of the | ||||||
25 | foreclosure complaint shall notify, in writing, all occupants |
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1 | of the mortgaged real estate that a foreclosure action has been | ||||||
2 | filed against the mortgagor or owner. A mortgagor or owner | ||||||
3 | shall also notify, in writing, any other third party who has a | ||||||
4 | consistent pattern and practice of paying rent to the mortgagor | ||||||
5 | or owner on behalf of an occupant that the mortgaged real | ||||||
6 | estate is in foreclosure. The notice shall include the court in | ||||||
7 | which the foreclosure action is pending, the case name, and the | ||||||
8 | case number and shall include the following language: | ||||||
9 | "This is not a notice to vacate the premises. This notice | ||||||
10 | does not mean ownership of the building has changed. All | ||||||
11 | tenants are still responsible for payment of rent and other | ||||||
12 | obligations under the lease or rental agreement. The owner or | ||||||
13 | landlord is still responsible for his or her obligations under | ||||||
14 | the lease or rental agreement. You shall receive additional | ||||||
15 | notice if there is a change in owner." | ||||||
16 | (b) The written notice required by subsection (a) of this | ||||||
17 | Section shall be served: by delivering a copy to the occupant, | ||||||
18 | or by leaving the same with some person of the age of 13 years | ||||||
19 | or older, residing on or in possession of the premises; or by | ||||||
20 | sending a copy of the notice to the occupant by certified or | ||||||
21 | registered mail, return receipt requested. | ||||||
22 | (c) Once served with a foreclosure complaint, the mortgagor | ||||||
23 | or owner of the mortgaged real estate shall also disclose to a | ||||||
24 | prospective occupant, in writing, that the mortgaged real | ||||||
25 | estate is in foreclosure prior to entering into a lease or | ||||||
26 | rental agreement for a dwelling unit at the mortgaged real |
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1 | estate. | ||||||
2 | (d) Penalty for noncompliance. If the mortgagor or owner | ||||||
3 | fails to comply with this Section, the occupant may terminate | ||||||
4 | any lease by written notice. The written notice shall specify a | ||||||
5 | date of termination no later than 30 days after the date of the | ||||||
6 | written notice. An occupant may bring an action in the circuit | ||||||
7 | court against a mortgagor or owner for failure to provide | ||||||
8 | notice as required in this Section. If the occupant establishes | ||||||
9 | that a violation of this Section has occurred, the occupant is | ||||||
10 | entitled to recover $200 plus actual damages, attorney's fees, | ||||||
11 | and costs. | ||||||
12 | (735 ILCS 5/15-1508.5 new)
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13 | Sec. 15-1508.5. Notice by holder or purchaser to occupants | ||||||
14 | of mortgaged real estate. | ||||||
15 | (a) Within 7 days after the confirmation of sale under | ||||||
16 | Section 15-1508, the holder of the certificate of sale or deed | ||||||
17 | issued pursuant to that certificate or, if no certificate or | ||||||
18 | deed was issued, the purchaser, shall notify all occupants of | ||||||
19 | the mortgaged real estate, except the mortgagor, that he or she | ||||||
20 | has acquired the mortgaged real estate. | ||||||
21 | (b) The notice required under subsection (a) shall be in | ||||||
22 | writing and shall: | ||||||
23 | (1) provide the name and address of the holder or | ||||||
24 | purchaser who acquired the mortgaged real estate and the | ||||||
25 | date it was acquired; |
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1 | (2) provide the name, address, and telephone number of | ||||||
2 | the individual or entity to whom the occupants should pay | ||||||
3 | rent and whom occupants may contact with concerns about the | ||||||
4 | mortgaged real estate or to request repairs of that | ||||||
5 | property; | ||||||
6 | (3) provide the occupant not less than 5 days from the | ||||||
7 | date of service of the notice to pay the rent, if rent is | ||||||
8 | due for the current rental period, and not less than 5 days | ||||||
9 | from the beginning of each subsequent rental period to pay | ||||||
10 | rent for that rental period; | ||||||
11 | (4) include the following language: | ||||||
12 | "This is notice that the ownership of the building | ||||||
13 | has changed. It is not a notice to vacate the premises. | ||||||
14 | If the new owner decides to end your lease or rental | ||||||
15 | agreement at the building, you will receive additional | ||||||
16 | notice of the termination of your tenancy. You may wish | ||||||
17 | to contact a lawyer or your local legal aid or housing | ||||||
18 | counseling agency to discuss any rights you may have."; | ||||||
19 | and | ||||||
20 | (5) attach a copy of the order confirming sale or other | ||||||
21 | court order that indicates the holder or purchaser has | ||||||
22 | acquired the mortgaged real estate. | ||||||
23 | (c) The written notice required by subsection (a) shall be | ||||||
24 | served: by delivering a copy to the occupant, or by leaving the | ||||||
25 | same with some person of the age of 13 years or older, residing | ||||||
26 | on or in possession of the premises; or by sending a copy of |
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1 | the notice to the occupant by certified or registered mail, | ||||||
2 | return receipt requested. | ||||||
3 | (d) An occupant of mortgaged real estate shall not be | ||||||
4 | liable for rent to the holder or purchaser, and the holder or | ||||||
5 | purchaser shall not terminate an occupant's tenancy for | ||||||
6 | non-payment of such rent, until the holder or purchaser has | ||||||
7 | served the notice prescribed in subsection (a). An occupant who | ||||||
8 | previously paid rent for the current rental period to the | ||||||
9 | mortgagor, or other entity with the authority to operate, | ||||||
10 | manage, and conserve the mortgaged real estate at the time of | ||||||
11 | payment, shall not be held liable for that rent by the holder | ||||||
12 | or purchaser, and the occupant's tenancy shall not be | ||||||
13 | terminated for non-payment of such rent.
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14 | (735 ILCS 5/15-1701) (from Ch. 110, par. 15-1701)
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15 | Sec. 15-1701. Right to possession.
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16 | (a) General. The provisions of
this Article shall govern | ||||||
17 | the right to possession of the mortgaged real
estate during | ||||||
18 | foreclosure. Possession under this Article includes physical
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19 | possession of the mortgaged real estate to the same extent to | ||||||
20 | which the
mortgagor, absent the foreclosure, would have been | ||||||
21 | entitled to physical
possession. For the purposes of Part 17, | ||||||
22 | real estate is residential real estate
only if it is | ||||||
23 | residential real estate at the time the foreclosure is | ||||||
24 | commenced.
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25 | (b) Pre-Judgment. Prior to the entry of a judgment of |
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1 | foreclosure:
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2 | (1) In the case of residential real estate, the | ||||||
3 | mortgagor shall be
entitled to possession of the real | ||||||
4 | estate except if (i) the mortgagee shall
object and show | ||||||
5 | good cause, (ii) the mortgagee is so authorized by the | ||||||
6 | terms of
the mortgage or other written instrument, and | ||||||
7 | (iii) the court is satisfied that
there is a reasonable | ||||||
8 | probability that the mortgagee will prevail on a final
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9 | hearing of the cause, the court shall upon request place | ||||||
10 | the mortgagee in
possession. If the residential real estate | ||||||
11 | consists of more than one dwelling
unit, then for the | ||||||
12 | purpose of this Part residential real estate shall mean | ||||||
13 | only
that dwelling unit or units occupied by persons | ||||||
14 | described in clauses (i), (ii)
and (iii) of Section | ||||||
15 | 15-1219.
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16 | (2) In all other cases, if (i) the mortgagee is so | ||||||
17 | authorized by the
terms of the mortgage or other written | ||||||
18 | instrument, and (ii) the court is
satisfied that there is a | ||||||
19 | reasonable probability that the mortgagee will
prevail on a | ||||||
20 | final hearing of the cause, the mortgagee shall
upon | ||||||
21 | request be placed in possession of the real estate, except | ||||||
22 | that if the
mortgagor shall object and show good cause, the | ||||||
23 | court shall allow the
mortgagor to remain in possession.
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24 | (c) Judgment Through 30 Days After Sale Confirmation. After | ||||||
25 | the entry
of a judgment of foreclosure and through the 30th day | ||||||
26 | after a foreclosure
sale is confirmed:
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1 | (1) Subsection (b) of Section 15-1701 shall be | ||||||
2 | applicable, regardless of
the provisions of the mortgage or | ||||||
3 | other instrument, except that after a
sale pursuant to the | ||||||
4 | judgment the holder of the certificate of sale
(or, if | ||||||
5 | none, the purchaser at the sale) shall have the mortgagee's | ||||||
6 | right to be
placed in possession, with all rights and | ||||||
7 | duties of a mortgagee in possession
under this Article.
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8 | (2) Notwithstanding paragraph (1) of subsection (b) | ||||||
9 | and paragraph (1) of
subsection (c) of Section 15-1701, | ||||||
10 | upon request of the mortgagee, a mortgagor
of residential | ||||||
11 | real estate shall not be allowed to remain in possession | ||||||
12 | between
the expiration of the redemption period and through | ||||||
13 | the 30th day after sale
confirmation unless (i) the | ||||||
14 | mortgagor pays to the mortgagee or such holder or
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15 | purchaser, whichever is applicable, monthly the lesser of | ||||||
16 | the interest due
under the mortgage calculated at the | ||||||
17 | mortgage rate of interest applicable as if
no default had | ||||||
18 | occurred or the fair rental value of the real estate, or | ||||||
19 | (ii)
the mortgagor otherwise shows good cause. Any amounts | ||||||
20 | paid by the mortgagor
pursuant to this subsection shall be | ||||||
21 | credited against the amounts due from the
mortgagor.
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22 | (d) After 30 Days After Sale Confirmation. The holder of
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23 | the certificate of sale or deed issued pursuant to that | ||||||
24 | certificate or, if
no certificate or deed was issued, the | ||||||
25 | purchaser, except to the extent the
holder or purchaser may | ||||||
26 | consent otherwise, shall be entitled to possession of
the |
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1 | mortgaged real estate, as of the date 30 days after the order | ||||||
2 | confirming
the sale is entered, against those parties to the | ||||||
3 | foreclosure whose interests
the court has ordered terminated, | ||||||
4 | without further notice to any party, further
order of the | ||||||
5 | court, or resort to proceedings under any other statute other | ||||||
6 | than
this Article.
This right to possession shall be limited by | ||||||
7 | the provisions
governing entering and enforcing orders of | ||||||
8 | possession under subsection (g) of
Section
15-1508.
If the | ||||||
9 | holder or purchaser determines that there are occupants
of the | ||||||
10 | mortgaged real estate who have not been made parties to the | ||||||
11 | foreclosure
and had their interests terminated therein, the | ||||||
12 | holder or purchaser may bring a
proceeding under subsection (h) | ||||||
13 | of this Section or under Article 9 of this Code
to terminate | ||||||
14 | the rights of possession of any such occupants. The holder or
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15 | purchaser shall not be entitled to proceed against any such | ||||||
16 | occupant under
Article 9 of this Code until after 30 days after | ||||||
17 | the order confirming the sale
is entered. Until the rights of | ||||||
18 | possession of all such occupants have been terminated, the | ||||||
19 | holder or purchaser shall maintain the mortgaged real estate in | ||||||
20 | a condition that is safe, healthful, and fit for occupancy and | ||||||
21 | in compliance with the terms of any lease and with the | ||||||
22 | requirements of State and local law. The holder or purchaser | ||||||
23 | shall also accept all rental payments from an occupant of the | ||||||
24 | mortgaged property and any payments from a third party or any | ||||||
25 | rental assistance program in support of an occupant's housing. | ||||||
26 | The holder or purchaser shall not charge an occupant of the |
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1 | mortgaged real estate a rental amount greater than that which | ||||||
2 | the occupant had been paying for use and occupancy of the | ||||||
3 | mortgaged real estate prior to the confirmation of sale, for | ||||||
4 | the 12 months following the confirmation of sale.
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5 | (e) Termination of Leases. A lease of all or any part of | ||||||
6 | the mortgaged
real estate shall not be terminated automatically | ||||||
7 | solely by virtue of the entry
into possession by (i) a | ||||||
8 | mortgagee or receiver prior to the entry of an order
confirming | ||||||
9 | the sale, (ii) the holder of the certificate of sale, (iii) the
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10 | holder of the deed issued pursuant to that certificate, or (iv) | ||||||
11 | if no
certificate or deed was issued, the purchaser at the | ||||||
12 | sale.
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13 | (f) Other Statutes; Instruments. The provisions of this | ||||||
14 | Article
providing for possession of mortgaged real estate shall | ||||||
15 | supersede any other
inconsistent statutory provisions. In | ||||||
16 | particular, and without limitation,
whenever a receiver is | ||||||
17 | sought to be appointed in any action in which a
foreclosure is | ||||||
18 | also pending, a receiver shall be appointed only in
accordance | ||||||
19 | with this Article. Except as may be authorized by this Article,
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20 | no mortgage or other instrument may modify or supersede the | ||||||
21 | provisions of this
Article.
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22 | (g) Certain Leases. Leases of the mortgaged real estate | ||||||
23 | entered into by
a mortgagee in possession or a receiver and | ||||||
24 | approved by the court in a
foreclosure shall be binding on all | ||||||
25 | parties, including the mortgagor after
redemption, the | ||||||
26 | purchaser at a sale pursuant to a judgment of foreclosure
and |
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1 | any person acquiring an interest in the mortgaged real estate | ||||||
2 | after
entry of a judgment of foreclosure in accordance with | ||||||
3 | Sections 15-1402 and
15-1403.
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4 | (h) Proceedings Against Certain Occupants.
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5 | (1) The mortgagee-in-possession of the mortgaged real | ||||||
6 | estate under Section
15-1703, a receiver appointed under | ||||||
7 | Section 15-1704, a holder of the
certificate of sale or | ||||||
8 | deed, or the purchaser may, at any time during the
pendency | ||||||
9 | of the foreclosure and up to 90 days after the date of the | ||||||
10 | order
confirming the sale,
file a supplemental petition for | ||||||
11 | possession against a person not personally
named as a party
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12 | to the foreclosure. The supplemental petition for | ||||||
13 | possession shall name each such
occupant against whom | ||||||
14 | possession is sought and state the facts upon which the
| ||||||
15 | claim for relief is premised.
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16 | (2) The petitioner shall serve upon each named occupant | ||||||
17 | the petition,
a notice of hearing on the petition, and, if | ||||||
18 | any, a copy of the certificate of
sale or deed. The | ||||||
19 | proceeding for the termination of such occupant's | ||||||
20 | possessory
interest, including service of the notice of the | ||||||
21 | hearing and the petition,
shall in all respects comport | ||||||
22 | with the requirements of Article 9 of this Code,
except as | ||||||
23 | otherwise specified in this Section. The hearing shall be | ||||||
24 | no less
than 21 days from the date of service of the | ||||||
25 | notice.
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26 | (3) The supplemental petition shall be heard as part of |
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1 | the foreclosure
proceeding and without the payment of | ||||||
2 | additional filing fees. An order for
possession obtained | ||||||
3 | under this Section shall name each occupant whose interest
| ||||||
4 | has been terminated, shall recite that it is only effective | ||||||
5 | as to the occupant
so named and those holding under them, | ||||||
6 | and shall be enforceable for no more
than 90 days after its | ||||||
7 | entry, except that the 90-day period may be extended to
the | ||||||
8 | extent and in the manner provided in Section 9-117 of | ||||||
9 | Article 9 and except as provided in item (4) of this | ||||||
10 | subsection (h). | ||||||
11 | (4) Any order of possession shall allow the occupant In | ||||||
12 | a case of foreclosure where the tenant is current on his or | ||||||
13 | her rent, or where timely written notice of to whom and | ||||||
14 | where the rent is to be paid has not been provided to the | ||||||
15 | tenant, or where the tenant has made good-faith efforts to | ||||||
16 | make rental payments in order to keep current, any order of | ||||||
17 | possession must allow the tenant to retain possession of | ||||||
18 | the property covered in his or her rental agreement (i) for | ||||||
19 | 120 days following the notice of the hearing on the | ||||||
20 | supplemental petition that has been properly served upon | ||||||
21 | the tenant , or (ii) through the duration of his or her | ||||||
22 | lease, whichever is shorter. If the tenant has been given | ||||||
23 | timely written notice of to whom and where the rent is to | ||||||
24 | be paid, this item (4) shall only apply if the tenant | ||||||
25 | continues to pay his or her rent in full during the 120-day | ||||||
26 | period or has made good-faith efforts to pay the rent in |
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1 | full during that period .
No mortgagee-in-possession, | ||||||
2 | receiver or holder of a certificate of sale or deed, or | ||||||
3 | purchaser who fails to file a supplemental petition under | ||||||
4 | this subsection during the pendency of a mortgage | ||||||
5 | foreclosure shall file a forcible entry and detainer action | ||||||
6 | against an occupant a tenant of the mortgaged real estate | ||||||
7 | until 90 days after a notice of intent to file such action | ||||||
8 | has been properly served in the manner provided in this | ||||||
9 | Code upon the occupant tenant . This notice requirement | ||||||
10 | shall be in addition to, and shall not replace, the | ||||||
11 | provisions of Article 9 of this Code, including, but not | ||||||
12 | limited to, the procedures for terminating the tenancy of | ||||||
13 | an occupant. | ||||||
14 | (4.5) Notwithstanding the provisions of item (4) of | ||||||
15 | this subsection (h), all orders of possession granted | ||||||
16 | pursuant to this Article shall allow the occupant to retain | ||||||
17 | possession of the property covered in his or her lease for | ||||||
18 | no less than 30 days. | ||||||
19 | (4.6) The court may shorten the period of time that an | ||||||
20 | occupant is allowed to retain possession of the mortgaged | ||||||
21 | real estate under items (4) and (4.5) of this subsection | ||||||
22 | (h) if, upon separate motion by the petitioner or as a part | ||||||
23 | of the supplemental petition for possession, the court | ||||||
24 | finds, by a preponderance of the evidence, that: (i) the | ||||||
25 | occupant has been given the required notice under Section | ||||||
26 | 15-1508.5, 15-1703, or 15-1704; and (ii) the occupant has |
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1 | failed to pay rent or make a good faith effort to pay rent | ||||||
2 | within the time period prescribed in the required notice. | ||||||
3 | (5) The court records relating to a supplemental | ||||||
4 | petition for possession filed under this subsection (h) | ||||||
5 | against a tenant who is entitled to notice under item (4) | ||||||
6 | of this subsection (h), or relating to a forcible entry and | ||||||
7 | detainer action brought against a tenant who would have | ||||||
8 | lawful possession of the premises but for the foreclosure | ||||||
9 | of a mortgage on the property, shall be ordered sealed and | ||||||
10 | shall not be disclosed to any person, other than a law | ||||||
11 | enforcement officer or any other representative of a | ||||||
12 | governmental entity, except upon further order of the | ||||||
13 | court.
| ||||||
14 | (Source: P.A. 95-262, eff. 1-1-08; 95-933, eff. 8-26-08.)
| ||||||
15 | (735 ILCS 5/15-1703) (from Ch. 110, par. 15-1703)
| ||||||
16 | Sec. 15-1703. Mortgagee in Possession. (a) Powers and | ||||||
17 | Duties. A mortgagee
placed in possession of the real estate | ||||||
18 | pursuant to Section 15-1701 or Section
15-1702 shall have:
| ||||||
19 | (1) such power and authority with respect to the real | ||||||
20 | estate and other
property subject to the mortgage, including | ||||||
21 | the right to receive the rents,
issues and profits thereof, as | ||||||
22 | may have been conferred upon the mortgagee
by the terms of the | ||||||
23 | mortgage or other written instrument authorizing the
taking of | ||||||
24 | possession;
| ||||||
25 | (2) all other rights and privileges of a mortgagee in |
| |||||||
| |||||||
1 | possession under
law not inconsistent herewith; and
| ||||||
2 | (3) the same powers, duties and liabilities as a receiver | ||||||
3 | appointed for
the real estate in accordance with this Article. | ||||||
4 | If an order placing a
mortgagee in possession is modified, | ||||||
5 | revoked or set aside, the mortgagee
shall not be liable for any | ||||||
6 | damages to the extent such damages arise
solely out of the fact | ||||||
7 | that the mortgagor was removed from possession or
that the | ||||||
8 | mortgagee was placed in possession.
| ||||||
9 | (a-5) Notice to occupants. | ||||||
10 | (1) Within 7 days after taking possession of the | ||||||
11 | mortgaged real estate, the mortgagee in possession shall | ||||||
12 | notify all occupants of the mortgaged real estate that he | ||||||
13 | or she has acquired the mortgaged real estate. The notice | ||||||
14 | shall be in writing and shall: | ||||||
15 | (i) provide the name and address of the mortgagee | ||||||
16 | in possession and the date the mortgagee took | ||||||
17 | possession; | ||||||
18 | (ii) provide the name, address, and telephone | ||||||
19 | number of the individual or entity to whom the | ||||||
20 | occupants should pay rent and whom occupants may | ||||||
21 | contact with concerns about the mortgaged real estate | ||||||
22 | or to request repairs of that property; | ||||||
23 | (iii) provide the occupant not less than 5 days | ||||||
24 | from the date of service of the notice to pay the rent, | ||||||
25 | if rent is due for the current rental period, and not | ||||||
26 | less than 5 days from the beginning of each subsequent |
| |||||||
| |||||||
1 | rental period to pay rent for that rental period; and | ||||||
2 | (iv) attach a copy of the court order placing the | ||||||
3 | mortgagee in possession of the mortgaged real estate. | ||||||
4 | (2) The written notice required by item (1) of this | ||||||
5 | subsection (a-5) shall be served: by delivering a copy | ||||||
6 | thereof to the occupant, or by leaving the same with some | ||||||
7 | person of the age of 13 years or older, residing on or in | ||||||
8 | possession of the premises; or by sending a copy of the | ||||||
9 | notice to the occupant by certified or registered mail, | ||||||
10 | returned receipt requested. | ||||||
11 | (3) An occupant of mortgaged real estate shall not be | ||||||
12 | liable for rent to the mortgagee in possession, and the | ||||||
13 | mortgagee in possession shall not terminate an occupant's | ||||||
14 | tenancy for non-payment of such rent, until the mortgagee | ||||||
15 | in possession has served the notice prescribed in item (1) | ||||||
16 | of this subsection (a-5). An occupant who previously paid | ||||||
17 | rent for the current rental period to the mortgagor, or to | ||||||
18 | another entity with the authority to operate, manage, and | ||||||
19 | conserve the mortgaged real estate at the time of payment, | ||||||
20 | shall not be held liable for that rent by the mortgagee | ||||||
21 | after taking possession, and the mortgagee in possession | ||||||
22 | shall not terminate an occupant's tenancy for non-payment | ||||||
23 | of such rent. | ||||||
24 | (b) Fees and Expenses. A mortgagee in possession shall not | ||||||
25 | be entitled
to any fees for so acting, but shall be entitled to | ||||||
26 | reimbursement for
reasonable costs, expenses and third party |
| |||||||
| |||||||
1 | management fees incurred in
connection with such possession.
| ||||||
2 | (Source: P.A. 84-1462.)
| ||||||
3 | (735 ILCS 5/15-1704) (from Ch. 110, par. 15-1704)
| ||||||
4 | Sec. 15-1704. Receivers. (a) Receiver. Notwithstanding the
| ||||||
5 | provisions of subsections (b), (c) and (d) of Section 15-1701, | ||||||
6 | and except
as provided in Section 15-1702, upon request of any | ||||||
7 | party and a showing of
good cause, the court shall appoint a | ||||||
8 | receiver for the mortgaged real estate.
| ||||||
9 | (b) Powers. A receiver appointed pursuant to this Article | ||||||
10 | shall have
possession of the mortgaged real estate and other | ||||||
11 | property subject to the
mortgage during the foreclosure, shall | ||||||
12 | have full power and authority to
operate, manage and conserve | ||||||
13 | such property, and shall have all the usual
powers of receivers | ||||||
14 | in like cases. Without limiting the foregoing, a
receiver shall | ||||||
15 | have the power and authority to:
| ||||||
16 | (1) secure tenants and execute leases for the real estate,
| ||||||
17 | the duration and terms of which are
reasonable and customary | ||||||
18 | for the type of use involved, and such leases
shall have the | ||||||
19 | same priority as if made by the owner of the real estate;
but, | ||||||
20 | unless approved by the Court, the receiver shall not
execute | ||||||
21 | oil, gas or other mineral leases, or (even if otherwise allowed | ||||||
22 | by
law) leases extending beyond the time of the receiver's | ||||||
23 | possession;
provided, however, with respect to residential | ||||||
24 | real estate leased by the
receiver, nothing in this Section | ||||||
25 | shall affect the legal rights of any lessee
with respect to the |
| |||||||
| |||||||
1 | safety and habitability of the residential real estate;
| ||||||
2 | (2) collect the rents, issues and profits from the | ||||||
3 | mortgaged real estate;
| ||||||
4 | (3) insure the mortgaged real estate against loss by fire | ||||||
5 | or other casualty;
| ||||||
6 | (4) employ counsel, custodians, janitors and other help; | ||||||
7 | and
| ||||||
8 | (5) pay taxes which may have been or may be levied against | ||||||
9 | the mortgaged real estate.
| ||||||
10 | (c) Duties. A receiver appointed pursuant to this Article | ||||||
11 | must manage
the mortgaged real estate as would a prudent | ||||||
12 | person, taking into account
the effect of the receiver's | ||||||
13 | management on the interest of the mortgagor.
A receiver may, | ||||||
14 | without an order of the court, delegate managerial
functions to | ||||||
15 | a person in the business of managing real estate of the kind
| ||||||
16 | involved who is financially responsible, not related to the | ||||||
17 | mortgagee or
receiver and prudently selected. However, the | ||||||
18 | receiver
shall remain responsible to the mortgagor or other
| ||||||
19 | persons for the acts or omissions of such management agent. | ||||||
20 | When fees are
paid to such a management agent, the receiver's | ||||||
21 | fees may be adjusted to the
extent the court deems appropriate. | ||||||
22 | In managing the mortgaged real estate
and other property | ||||||
23 | subject to the mortgage,
a receiver or receiver's delegate, to | ||||||
24 | the extent the receiver receives
sufficient receipts from the | ||||||
25 | mortgaged real estate, such other property or
other sources, | ||||||
26 | except to the extent ordered otherwise by the court:
|
| |||||||
| |||||||
1 | (1) shall maintain the existing casualty and liability | ||||||
2 | insurance
required in accordance with the mortgage or | ||||||
3 | applicable to the real estate
and other property subject to the | ||||||
4 | mortgage at the time the receiver took possession;
| ||||||
5 | (2) shall use reasonable efforts to maintain the real | ||||||
6 | estate and other
property subject to the mortgage in at least | ||||||
7 | as good condition as existed at
the time the receiver took | ||||||
8 | possession, excepting reasonable wear and tear
and damage by | ||||||
9 | any casualty;
| ||||||
10 | (3) shall maintain the mortgaged real estate in a condition | ||||||
11 | that is safe, healthful, and fit for occupancy and in | ||||||
12 | compliance with the terms of any lease and with the | ||||||
13 | requirements of State and local law; | ||||||
14 | (4) shall accept all rental payments from an occupant of | ||||||
15 | the mortgaged property and any payments from a third party or | ||||||
16 | any rental assistance program in support of an occupant's | ||||||
17 | housing; | ||||||
18 | (5) (3) shall apply receipts to payment of ordinary | ||||||
19 | operating expenses,
including royalties, rents and other | ||||||
20 | expenses of management;
| ||||||
21 | (6) (4) shall pay any shared or common expense assessments | ||||||
22 | due to any
association of owners of interests in real estate to | ||||||
23 | the extent that such
assessments are or may become a lien | ||||||
24 | against the mortgaged real estate;
| ||||||
25 | (7) (5) may pay the amounts due under any mortgage if the | ||||||
26 | mortgagee thereof
is not a party in the foreclosure;
|
| |||||||
| |||||||
1 | (8) (6) may carry such additional casualty and liability | ||||||
2 | insurance as is
reasonably available and reasonable as to | ||||||
3 | amounts and risks covered;
| ||||||
4 | (9) (7) may make other repairs and improvements necessary | ||||||
5 | to comply with
building, housing, and other similar codes or | ||||||
6 | with existing contractual
obligations affecting the mortgaged | ||||||
7 | real estate;
| ||||||
8 | (10) (8) may hold receipts as reserves reasonably required | ||||||
9 | for the foregoing purposes; and
| ||||||
10 | (11) (9) may take such other actions as may be reasonably | ||||||
11 | necessary to
conserve the mortgaged real estate and other | ||||||
12 | property subject to the
mortgage, or as otherwise authorized by | ||||||
13 | the court.
| ||||||
14 | (d) Allocation of Receipts. Receipts received from | ||||||
15 | operation of the
real estate and other property subject to the | ||||||
16 | mortgage by the receiver
shall be applied in the following | ||||||
17 | order of priority.
| ||||||
18 | (1) to reimbursement of the receiver for all reasonable | ||||||
19 | costs and
expenses incurred by the receiver or the receiver's | ||||||
20 | delegates;
| ||||||
21 | (2) to payment of insurance premiums authorized in | ||||||
22 | paragraph (1) of
subsection (c) of Section 15-1704;
| ||||||
23 | (3) to payment of the receiver's delegates of any | ||||||
24 | reasonable management
fees for managing real estate of the type | ||||||
25 | involved;
| ||||||
26 | (4) to payment of receiver's fees allowed by the court;
|
| |||||||
| |||||||
1 | (5) to payment of expenses authorized in paragraphs (2), | ||||||
2 | (3) , (5), and (6) (4) of
subsection (c) of Section 15-1704;
| ||||||
3 | (6) to payment of amounts authorized in paragraph (7) (5) | ||||||
4 | of subsection (c)
of Section 15-1704;
| ||||||
5 | (7) to payment of expenses authorized in paragraphs (8) (6) | ||||||
6 | and (9) (7) of
subsection (c) of Section 15-1704; and
| ||||||
7 | (8) the balance, if any, shall be held or disbursed as | ||||||
8 | ordered by the court.
| ||||||
9 | (e) Non-Liability for Allocations. A receiver shall in no | ||||||
10 | event be
liable to any person for the allocation of, or failure | ||||||
11 | to allocate,
receipts to possible expenditures within the same | ||||||
12 | priority category.
| ||||||
13 | (f) Notice to Occupants. | ||||||
14 | (1) Within 7 days after appointment, the receiver shall | ||||||
15 | notify all occupants of the mortgaged real estate that he | ||||||
16 | or she has been appointed receiver of the mortgaged real | ||||||
17 | estate. The notice shall be in writing and shall: | ||||||
18 | (i) provide the name and address of the receiver | ||||||
19 | and the date the receiver was appointed; | ||||||
20 | (ii) provide the name, address, and telephone | ||||||
21 | number of the individual or entity to whom the | ||||||
22 | occupants should pay rent and whom occupants may | ||||||
23 | contact with concerns about the mortgaged real estate | ||||||
24 | or to request repairs of that property; | ||||||
25 | (iii) provide the occupant not less than 5 days | ||||||
26 | from the date of service of the notice to pay the rent, |
| |||||||
| |||||||
1 | if rent is due for the current rental period, and not | ||||||
2 | less than 5 days from the beginning of each subsequent | ||||||
3 | rental period to pay rent for that rental period; and | ||||||
4 | (iv) attach a copy of the order appointing the | ||||||
5 | receiver as receiver for the mortgaged real estate. | ||||||
6 | (2) The notice required by item (1) of this subsection | ||||||
7 | (f) shall be served: by delivering a written or printed, or | ||||||
8 | partly written and printed, copy thereof to the occupant, | ||||||
9 | or by leaving the same with some person of the age of 13 | ||||||
10 | years or older, residing on or in possession of the | ||||||
11 | premises; or by sending a copy of the notice to the | ||||||
12 | occupant by certified or registered mail, returned receipt | ||||||
13 | requested. | ||||||
14 | (3) An occupant of mortgaged real estate shall not be | ||||||
15 | liable for rent to the receiver, and the receiver shall not | ||||||
16 | terminate an occupant's tenancy for non-payment of such | ||||||
17 | rent, until the receiver has served the notice prescribed | ||||||
18 | in item (1) of this subsection (f). An occupant who | ||||||
19 | previously paid rent for the current rental period to the | ||||||
20 | mortgagor, or other entity with the authority to operate, | ||||||
21 | manage and conserve the mortgaged real estate at the time | ||||||
22 | of payment, shall not be held liable for that rent by the | ||||||
23 | receiver after appointment, and the receiver shall not | ||||||
24 | terminate an occupant's tenancy for non-payment of such | ||||||
25 | rent. | ||||||
26 | (g) Increase of rents. Notwithstanding any other provision |
| |||||||
| |||||||
1 | of this Article, a receiver or mortgagee in possession shall | ||||||
2 | not charge an occupant of the mortgaged real estate a rental | ||||||
3 | amount greater than that which the occupant had been paying for | ||||||
4 | use and occupancy of the mortgaged real estate prior to the | ||||||
5 | appointment of a receiver or mortgagee in possession, without | ||||||
6 | leave of court. The court may allow an increase of rent if, | ||||||
7 | upon motion by the receiver or mortgagee in possession, the | ||||||
8 | court finds by a preponderance of the evidence, that the | ||||||
9 | increase of rent is necessary to operate, manage, and conserve | ||||||
10 | the mortgaged real estate pursuant to this Section. A list of | ||||||
11 | the current rents for each unit in the mortgaged real estate, | ||||||
12 | and a list of the proposed rent increase for each of those | ||||||
13 | units, must be attached to a motion for a rent increase under | ||||||
14 | this subsection (g). All occupants of the mortgaged real estate | ||||||
15 | who may be affected by the motion for a rent increase, if not | ||||||
16 | otherwise entitled to notice, shall be notified in writing of | ||||||
17 | the nature of the motion, the date and time of the motion, and | ||||||
18 | the court where the motion will be heard. Such notice shall be | ||||||
19 | by personal service or first-class mail. Nothing in this | ||||||
20 | subsection (g) shall alter the terms of any lease agreement. | ||||||
21 | (h) (f) Removal. The court may remove a receiver upon a | ||||||
22 | showing of good
cause, in which case a new receiver may be | ||||||
23 | appointed in accordance with
subsection (b) of Section 15-1702 | ||||||
24 | and subsection (a) of Section 15-1704.
| ||||||
25 | (Source: P.A. 84-1462.)
| ||||||
26 | Section 99. Effective date. This Act takes effect upon |
| |||||||
| |||||||
1 | becoming law.
|