|
|||||||
| |||||||
| |||||||
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 | ||||||
5 | changing Sections 15-1701, 15-1703, and 15-1704 and by adding | ||||||
6 | Sections 15-1202.5 and 15-1508.5 as follows: | ||||||
7 | (735 ILCS 5/15-1202.5 new)
| ||||||
8 | Sec. 15-1202.5. Dwelling Unit. "Dwelling unit" means a room | ||||||
9 | or suite of rooms providing complete, independent living | ||||||
10 | facilities for at least one person, including permanent | ||||||
11 | provisions for sanitation, cooking, eating, sleeping, and | ||||||
12 | other activities routinely associated with daily life. | ||||||
13 | (735 ILCS 5/15-1508.5 new)
| ||||||
14 | Sec. 15-1508.5. Notice by holder or purchaser to occupants | ||||||
15 | of mortgaged real estate. | ||||||
16 | (a) The holder of the certificate of sale or deed issued | ||||||
17 | pursuant to that certificate or, if no certificate or deed was | ||||||
18 | issued, the purchaser, shall: | ||||||
19 | (1) following the judicial sale under Section 15-1507, | ||||||
20 | but not later than 14 days after the confirmation of sale | ||||||
21 | under Section 15-1508, make a good faith effort to | ||||||
22 | ascertain the identities and addresses of all occupants of |
| |||||||
| |||||||
1 | dwelling units of the mortgaged real estate; and | ||||||
2 | (2) following the order confirming sale under Section | ||||||
3 | 15-1508, but not later than 21 days after the order | ||||||
4 | confirming sale, notify all known occupants of dwelling | ||||||
5 | units of the mortgaged real estate that he or she has | ||||||
6 | acquired the mortgaged real estate, including any | ||||||
7 | occupants identified as a result of the good faith effort | ||||||
8 | required under this subsection. The holder or purchaser is | ||||||
9 | not required to provide the notice required by this Section | ||||||
10 | to a mortgagor or party against whom an order of possession | ||||||
11 | has been entered authorizing the removal of the mortgagor | ||||||
12 | or party pursuant to Section 15-1508(g). | ||||||
13 | (b) The notice required under subsection (a)(2) shall be in | ||||||
14 | writing and shall: | ||||||
15 | (1) identify the occupant being served by name; | ||||||
16 | (2) inform the occupant that the mortgaged real estate | ||||||
17 | is the subject of a foreclosure action and that control of | ||||||
18 | the mortgaged real estate has changed; | ||||||
19 | (3) provide the name, address, and telephone number of | ||||||
20 | the individual or entity whom occupants may contact with | ||||||
21 | concerns about the mortgaged real estate or to request | ||||||
22 | repairs of that property; | ||||||
23 | (4) include the following language, or language that is | ||||||
24 | substantially similar:
"This is NOT a notice to vacate the | ||||||
25 | premises. You will receive additional notice if your lease | ||||||
26 | or rental agreement is being terminated. You may wish to |
| |||||||
| |||||||
1 | contact a lawyer or your local legal aid or housing | ||||||
2 | counseling agency to discuss any rights that you may | ||||||
3 | have."; and | ||||||
4 | (5) attach a copy of the order confirming sale or other | ||||||
5 | court order that indicates the holder or purchaser has | ||||||
6 | acquired the mortgaged real estate. | ||||||
7 | (c) The written notice required by subsection (a)(2) shall | ||||||
8 | be served: by delivering a copy to the known occupant, or by | ||||||
9 | leaving the same with some person of the age of 13 years or | ||||||
10 | older, who is residing on or in possession of the premises; or | ||||||
11 | by sending a copy of the notice to the known occupant by | ||||||
12 | first-class mail, addressed to the occupant by name. | ||||||
13 | (d) In the event that the holder or purchaser ascertains | ||||||
14 | the identity and address of an occupant of a dwelling unit of | ||||||
15 | the mortgaged real estate more than 14 days after the | ||||||
16 | confirmation of sale under Section 15-1508, the holder or | ||||||
17 | purchaser shall provide the notice required by subsection | ||||||
18 | (a)(2) within 7 days of ascertaining the identity and address | ||||||
19 | of the occupant. | ||||||
20 | (e)(i) A holder or purchaser who fails to comply with | ||||||
21 | subsections (a), (b), (c), and (d) may not collect any rent due | ||||||
22 | and owing from a known occupant, or terminate a known | ||||||
23 | occupant's tenancy for non-payment of such rent, until the | ||||||
24 | holder or purchaser has served the notice described in | ||||||
25 | subsection (a)(2) of this Section 15-1508.5 upon the occupant. | ||||||
26 | The provisions of this subsection shall be the exclusive remedy |
| |||||||
| |||||||
1 | for the failure of a holder or purchaser to provide notice | ||||||
2 | under this Section. | ||||||
3 | (ii) An occupant who previously paid rent for the current | ||||||
4 | rental period to the mortgagor, or other entity with the | ||||||
5 | authority to operate, manage, and conserve the mortgaged real | ||||||
6 | estate at the time of payment, shall not be held liable for | ||||||
7 | that rent by the holder or purchaser, and the occupant's | ||||||
8 | tenancy shall not be terminated for non-payment of rent for | ||||||
9 | that rental period. | ||||||
10 | (f) Following the confirmation of sale, a holder or | ||||||
11 | purchaser may request, in writing, a copy of the lease or | ||||||
12 | rental agreement of an occupant who has been served the notice | ||||||
13 | prescribed in subsection (a)(2) of this Section, or the notice | ||||||
14 | prescribed in subsection (a-5)(2) of Section 15-1703. An | ||||||
15 | occupant who has received a request shall provide the holder or | ||||||
16 | purchaser with a copy of any lease or rental agreement, or make | ||||||
17 | such lease or rental agreement available for duplication to the | ||||||
18 | holder or purchaser, within 14 days of receiving the request. | ||||||
19 | In the event that there is no written lease or rental | ||||||
20 | agreement, or if the occupant cannot produce such agreement, | ||||||
21 | the occupant may provide a statement, verbally or in writing, | ||||||
22 | about the terms of his or her possession of the unit, including | ||||||
23 | the term of the tenancy, the amount of periodic rental | ||||||
24 | payments, if any, and when rent is due. An occupant shall not | ||||||
25 | unreasonably withhold information requested by a holder or | ||||||
26 | purchaser under this subsection. A holder or purchaser shall |
| |||||||
| |||||||
1 | include the following in a request under this subsection: (1) | ||||||
2 | the specific information or documentation requested; (2) a | ||||||
3 | mailing address, an electronic mail address if available, and a | ||||||
4 | telephone number for responses to the request; (3) that the | ||||||
5 | occupant shall respond within 14 days of receiving the request. | ||||||
6 | The request under this subsection shall be served in the same | ||||||
7 | manner described in subsection (c) of this Section, and may be | ||||||
8 | served concurrently with the notice required under subsection | ||||||
9 | (a)(2) of this Section. An occupant's failure to comply with | ||||||
10 | the requirements of this subsection shall create the rebuttable | ||||||
11 | presumption, in a proceeding under Section 15-1701(h)(1), that | ||||||
12 | the term of the occupant's current leasehold interest is not | ||||||
13 | more than 30 days. | ||||||
14 | (g) Within 14 days of the confirmation of sale under | ||||||
15 | Section 15-1508, the holder or purchaser shall post a written | ||||||
16 | notice on the primary entrance of each dwelling unit subject to | ||||||
17 | the foreclosure action. This notice shall: | ||||||
18 | (1) inform the occupant that the dwelling unit is the | ||||||
19 | subject of a foreclosure action and that control of the | ||||||
20 | mortgaged real estate has changed; | ||||||
21 | (2) include the following language: "This is NOT a | ||||||
22 | notice to vacate the premises."; and | ||||||
23 | (3) provide the name, address, and telephone number of | ||||||
24 | the individual or entity whom occupants may contact with | ||||||
25 | concerns about the mortgaged real estate or to request | ||||||
26 | repairs of the property. |
| |||||||
| |||||||
1 | (h) In the event that the holder or purchaser is a | ||||||
2 | mortgagee in possession of the mortgaged real estate pursuant | ||||||
3 | to Section 15-1703 at the time of the confirmation of sale and | ||||||
4 | has complied with requirements of subsection (a-5) of Section | ||||||
5 | 15-1703, the holder or purchaser is excused from the | ||||||
6 | requirements of subsections (a) and (g) of this Section | ||||||
7 | 15-1508.5.
| ||||||
8 | (735 ILCS 5/15-1701) (from Ch. 110, par. 15-1701)
| ||||||
9 | Sec. 15-1701. Right to possession.
| ||||||
10 | (a) General. The provisions of
this Article shall govern | ||||||
11 | the right to possession of the mortgaged real
estate during | ||||||
12 | foreclosure. Possession under this Article includes physical
| ||||||
13 | possession of the mortgaged real estate to the same extent to | ||||||
14 | which the
mortgagor, absent the foreclosure, would have been | ||||||
15 | entitled to physical
possession. For the purposes of Part 17, | ||||||
16 | real estate is residential real estate
only if it is | ||||||
17 | residential real estate at the time the foreclosure is | ||||||
18 | commenced.
| ||||||
19 | (b) Pre-Judgment. Prior to the entry of a judgment of | ||||||
20 | foreclosure:
| ||||||
21 | (1) In the case of residential real estate, the | ||||||
22 | mortgagor shall be
entitled to possession of the real | ||||||
23 | estate except if (i) the mortgagee shall
object and show | ||||||
24 | good cause, (ii) the mortgagee is so authorized by the | ||||||
25 | terms of
the mortgage or other written instrument, and |
| |||||||
| |||||||
1 | (iii) the court is satisfied that
there is a reasonable | ||||||
2 | probability that the mortgagee will prevail on a final
| ||||||
3 | hearing of the cause, the court shall upon request place | ||||||
4 | the mortgagee in
possession. If the residential real estate | ||||||
5 | consists of more than one dwelling
unit, then for the | ||||||
6 | purpose of this Part residential real estate shall mean | ||||||
7 | only
that dwelling unit or units occupied by persons | ||||||
8 | described in clauses (i), (ii)
and (iii) of Section | ||||||
9 | 15-1219.
| ||||||
10 | (2) In all other cases, if (i) the mortgagee is so | ||||||
11 | authorized by the
terms of the mortgage or other written | ||||||
12 | instrument, and (ii) the court is
satisfied that there is a | ||||||
13 | reasonable probability that the mortgagee will
prevail on a | ||||||
14 | final hearing of the cause, the mortgagee shall
upon | ||||||
15 | request be placed in possession of the real estate, except | ||||||
16 | that if the
mortgagor shall object and show good cause, the | ||||||
17 | court shall allow the
mortgagor to remain in possession.
| ||||||
18 | (c) Judgment Through 30 Days After Sale Confirmation. After | ||||||
19 | the entry
of a judgment of foreclosure and through the 30th day | ||||||
20 | after a foreclosure
sale is confirmed:
| ||||||
21 | (1) Subsection (b) of Section 15-1701 shall be | ||||||
22 | applicable, regardless of
the provisions of the mortgage or | ||||||
23 | other instrument, except that after a
sale pursuant to the | ||||||
24 | judgment the holder of the certificate of sale
(or, if | ||||||
25 | none, the purchaser at the sale) shall have the mortgagee's | ||||||
26 | right to be
placed in possession, with all rights and |
| |||||||
| |||||||
1 | duties of a mortgagee in possession
under this Article.
| ||||||
2 | (2) Notwithstanding paragraph (1) of subsection (b) | ||||||
3 | and paragraph (1) of
subsection (c) of Section 15-1701, | ||||||
4 | upon request of the mortgagee, a mortgagor
of residential | ||||||
5 | real estate shall not be allowed to remain in possession | ||||||
6 | between
the expiration of the redemption period and through | ||||||
7 | the 30th day after sale
confirmation unless (i) the | ||||||
8 | mortgagor pays to the mortgagee or such holder or
| ||||||
9 | purchaser, whichever is applicable, monthly the lesser of | ||||||
10 | the interest due
under the mortgage calculated at the | ||||||
11 | mortgage rate of interest applicable as if
no default had | ||||||
12 | occurred or the fair rental value of the real estate, or | ||||||
13 | (ii)
the mortgagor otherwise shows good cause. Any amounts | ||||||
14 | paid by the mortgagor
pursuant to this subsection shall be | ||||||
15 | credited against the amounts due from the
mortgagor.
| ||||||
16 | (d) After 30 Days After Sale Confirmation. The holder of
| ||||||
17 | the certificate of sale or deed issued pursuant to that | ||||||
18 | certificate or, if
no certificate or deed was issued, the | ||||||
19 | purchaser, except to the extent the
holder or purchaser may | ||||||
20 | consent otherwise, shall be entitled to possession of
the | ||||||
21 | mortgaged real estate, as of the date 30 days after the order | ||||||
22 | confirming
the sale is entered, against those parties to the | ||||||
23 | foreclosure whose interests
the court has ordered terminated, | ||||||
24 | without further notice to any party, further
order of the | ||||||
25 | court, or resort to proceedings under any other statute other | ||||||
26 | than
this Article.
This right to possession shall be limited by |
| |||||||
| |||||||
1 | the provisions
governing entering and enforcing orders of | ||||||
2 | possession under subsection (g) of
Section
15-1508.
If the | ||||||
3 | holder or purchaser determines that there are occupants
of the | ||||||
4 | mortgaged real estate who have not been made parties to the | ||||||
5 | foreclosure
and had their interests terminated therein, the | ||||||
6 | holder or purchaser may bring a
proceeding under subsection (h) | ||||||
7 | of this Section or under Article 9 of this Code
to terminate | ||||||
8 | the rights of possession of any such occupants. The holder or
| ||||||
9 | purchaser shall not be entitled to proceed against any such | ||||||
10 | occupant under
Article 9 of this Code until after 30 days after | ||||||
11 | the order confirming the sale
is entered. Following the | ||||||
12 | confirmation of sale and until the right of possession of an | ||||||
13 | occupant of a dwelling unit of the mortgaged real estate has | ||||||
14 | been terminated, the holder or purchaser shall: (i) maintain | ||||||
15 | any essential utility services that had been the obligation of | ||||||
16 | the mortgagor, receiver, or mortgagee in possession prior to | ||||||
17 | the order confirming sale; (ii) maintain the mortgaged real | ||||||
18 | estate in the same physical condition as had been the | ||||||
19 | obligation of the mortgagor, receiver, or mortgagee in | ||||||
20 | possession prior to the confirmation of sale; and (iii) | ||||||
21 | maintain the mortgaged real estate in compliance with the | ||||||
22 | requirements of State and local law. Nothing in this subsection | ||||||
23 | shall prohibit the holder or purchaser and an occupant from | ||||||
24 | entering into a new lease agreement that changes their | ||||||
25 | respective utility obligations.
| ||||||
26 | (e) Termination of Leases. A lease of all or any part of |
| |||||||
| |||||||
1 | the mortgaged
real estate shall not be terminated automatically | ||||||
2 | solely by virtue of the entry
into possession by (i) a | ||||||
3 | mortgagee or receiver prior to the entry of an order
confirming | ||||||
4 | the sale, (ii) the holder of the certificate of sale, (iii) the
| ||||||
5 | holder of the deed issued pursuant to that certificate, or (iv) | ||||||
6 | if no
certificate or deed was issued, the purchaser at the | ||||||
7 | sale.
| ||||||
8 | (f) Other Statutes; Instruments. The provisions of this | ||||||
9 | Article
providing for possession of mortgaged real estate shall | ||||||
10 | supersede any other
inconsistent statutory provisions. In | ||||||
11 | particular, and without limitation,
whenever a receiver is | ||||||
12 | sought to be appointed in any action in which a
foreclosure is | ||||||
13 | also pending, a receiver shall be appointed only in
accordance | ||||||
14 | with this Article. Except as may be authorized by this Article,
| ||||||
15 | no mortgage or other instrument may modify or supersede the | ||||||
16 | provisions of this
Article.
| ||||||
17 | (g) Certain Leases. Leases of the mortgaged real estate | ||||||
18 | entered into by
a mortgagee in possession or a receiver and | ||||||
19 | approved by the court in a
foreclosure shall be binding on all | ||||||
20 | parties, including the mortgagor after
redemption, the | ||||||
21 | purchaser at a sale pursuant to a judgment of foreclosure
and | ||||||
22 | any person acquiring an interest in the mortgaged real estate | ||||||
23 | after
entry of a judgment of foreclosure in accordance with | ||||||
24 | Sections 15-1402 and
15-1403.
| ||||||
25 | (h) Proceedings Against Certain Occupants.
| ||||||
26 | (1) The mortgagee-in-possession of the mortgaged real |
| |||||||
| |||||||
1 | estate under Section
15-1703, a receiver appointed under | ||||||
2 | Section 15-1704, a holder of the
certificate of sale or | ||||||
3 | deed, or the purchaser may, at any time during the
pendency | ||||||
4 | of the foreclosure and up to 90 days after the date of the | ||||||
5 | order
confirming the sale,
file a supplemental petition for | ||||||
6 | possession against a person not personally
named as a party
| ||||||
7 | to the foreclosure. The supplemental petition for | ||||||
8 | possession shall name each such
occupant against whom | ||||||
9 | possession is sought and state the facts upon which the
| ||||||
10 | claim for relief is premised.
| ||||||
11 | (2) The petitioner shall serve upon each named occupant | ||||||
12 | the petition,
a notice of hearing on the petition, and, if | ||||||
13 | any, a copy of the certificate of
sale or deed. The | ||||||
14 | proceeding for the termination of such occupant's | ||||||
15 | possessory
interest, including service of the notice of the | ||||||
16 | hearing and the petition,
shall in all respects comport | ||||||
17 | with the requirements of Article 9 of this Code,
except as | ||||||
18 | otherwise specified in this Section. The hearing shall be | ||||||
19 | no less
than 21 days from the date of service of the | ||||||
20 | notice.
| ||||||
21 | (3) The supplemental petition shall be heard as part of | ||||||
22 | the foreclosure
proceeding and without the payment of | ||||||
23 | additional filing fees. An order for
possession obtained | ||||||
24 | under this Section shall name each occupant whose interest
| ||||||
25 | has been terminated, shall recite that it is only effective | ||||||
26 | as to the occupant
so named and those holding under them, |
| |||||||
| |||||||
1 | and shall be enforceable for no more
than 90 days after its | ||||||
2 | entry, except that the 90-day period may be extended to
the | ||||||
3 | extent and in the manner provided in Section 9-117 of | ||||||
4 | Article 9 and except as provided in item (4) of this | ||||||
5 | subsection (h). | ||||||
6 | (4) In a case of foreclosure where the occupant tenant | ||||||
7 | is current on his or her rent, or where timely written | ||||||
8 | notice of to whom and where the rent is to be paid has not | ||||||
9 | been provided to the occupant tenant , or where the occupant | ||||||
10 | tenant has made good-faith efforts to make rental payments | ||||||
11 | in order to keep current, any order of possession must | ||||||
12 | allow the occupant tenant to retain possession of the | ||||||
13 | property covered in his or her rental agreement (i) for 120 | ||||||
14 | days following the notice of the hearing on the | ||||||
15 | supplemental petition that has been properly served upon | ||||||
16 | the occupant, or through the duration of his or her lease, | ||||||
17 | whichever is shorter, but in no event less than 30 days | ||||||
18 | after entry of the order of possession. A mortgagee in | ||||||
19 | possession, receiver, or holder of a certificate of sale or | ||||||
20 | deed, or purchaser at the judicial sale who asserts that | ||||||
21 | the occupant is not current in rent at the time the | ||||||
22 | supplemental petition is filed shall attach an affidavit to | ||||||
23 | that effect to the supplemental petition. If the occupant | ||||||
24 | the tenant, or (ii) through the duration of his or her | ||||||
25 | lease, whichever is shorter. If the tenant has been given | ||||||
26 | timely written notice of to whom and where the rent is to |
| |||||||
| |||||||
1 | be paid, this item (4) shall only apply if the occupant | ||||||
2 | tenant continues to pay his or her rent in full during the | ||||||
3 | 120-day period or has made good-faith efforts to pay the | ||||||
4 | rent in full during that period.
No | ||||||
5 | mortgagee-in-possession, receiver or holder of a | ||||||
6 | certificate of sale or deed, or purchaser who fails to file | ||||||
7 | a supplemental petition under this subsection during the | ||||||
8 | pendency of a mortgage foreclosure shall file a forcible | ||||||
9 | entry and detainer action against an occupant a tenant of | ||||||
10 | the mortgaged real estate until 90 days after a notice of | ||||||
11 | intent to file such action has been properly served upon | ||||||
12 | the occupant tenant . | ||||||
13 | (5) The court records relating to a supplemental | ||||||
14 | petition for possession filed under this subsection (h) | ||||||
15 | against a tenant who is entitled to notice under item (4) | ||||||
16 | of this subsection (h), or relating to a forcible entry and | ||||||
17 | detainer action brought against a tenant who would have | ||||||
18 | lawful possession of the premises but for the foreclosure | ||||||
19 | of a mortgage on the property, shall be ordered sealed and | ||||||
20 | shall not be disclosed to any person, other than a law | ||||||
21 | enforcement officer or any other representative of a | ||||||
22 | governmental entity, except upon further order of the | ||||||
23 | court.
| ||||||
24 | (Source: P.A. 95-262, eff. 1-1-08; 95-933, eff. 8-26-08.)
| ||||||
25 | (735 ILCS 5/15-1703) (from Ch. 110, par. 15-1703)
|
| |||||||
| |||||||
1 | Sec. 15-1703. Mortgagee in Possession. (a) Powers and | ||||||
2 | Duties. A mortgagee
placed in possession of the real estate | ||||||
3 | pursuant to Section 15-1701 or Section
15-1702 shall have:
| ||||||
4 | (1) such power and authority with respect to the real | ||||||
5 | estate and other
property subject to the mortgage, including | ||||||
6 | the right to receive the rents,
issues and profits thereof, as | ||||||
7 | may have been conferred upon the mortgagee
by the terms of the | ||||||
8 | mortgage or other written instrument authorizing the
taking of | ||||||
9 | possession;
| ||||||
10 | (2) all other rights and privileges of a mortgagee in | ||||||
11 | possession under
law not inconsistent herewith; and
| ||||||
12 | (3) the same powers, duties and liabilities as a receiver | ||||||
13 | appointed for
the real estate in accordance with this Article. | ||||||
14 | If an order placing a
mortgagee in possession is modified, | ||||||
15 | revoked or set aside, the mortgagee
shall not be liable for any | ||||||
16 | damages to the extent such damages arise
solely out of the fact | ||||||
17 | that the mortgagor was removed from possession or
that the | ||||||
18 | mortgagee was placed in possession.
| ||||||
19 | (a-5) Notice to occupants. | ||||||
20 | (1) Within 14 days of taking possession of the | ||||||
21 | mortgaged real estate, the mortgagee in possession shall | ||||||
22 | make a good faith effort to ascertain the identities and | ||||||
23 | addresses of all occupants of dwelling units of the | ||||||
24 | mortgaged real estate. | ||||||
25 | (2) Within 21 days of taking possession of the | ||||||
26 | mortgaged real estate, the mortgagee in possession shall |
| |||||||
| |||||||
1 | notify all known occupants of dwelling units of the | ||||||
2 | mortgaged real estate, including any occupants identified | ||||||
3 | as a result of the good faith effort required under this | ||||||
4 | subsection, that he or she has taken possession of the | ||||||
5 | mortgaged real estate. The notice shall be in writing and | ||||||
6 | shall: | ||||||
7 | (i) identify the occupant being served by name; | ||||||
8 | (ii) inform the occupant that the mortgaged real | ||||||
9 | estate is the subject of a foreclosure action and that | ||||||
10 | control of the mortgaged real estate has changed; | ||||||
11 | (iii) provide the name, address, and telephone | ||||||
12 | number of the individual or entity whom occupants may | ||||||
13 | contact with concerns about the mortgaged real estate | ||||||
14 | or to request repairs of that property; | ||||||
15 | (iv) include the following language, or language | ||||||
16 | that is substantially similar: | ||||||
17 | "This is NOT a notice to vacate the premises. You | ||||||
18 | will receive additional notice if your lease or rental | ||||||
19 | agreement is being terminated. You may wish to contact | ||||||
20 | a lawyer or your local legal aid or housing counseling | ||||||
21 | agency to discuss any rights that you may have." | ||||||
22 | (v) attach a copy of the court order placing the | ||||||
23 | mortgagee in possession of the mortgaged real estate. | ||||||
24 | (3) The written notice required by item (2) of this | ||||||
25 | subsection (a-5) shall be served: by delivering a copy | ||||||
26 | thereof to the known occupant, or by leaving the same with |
| |||||||
| |||||||
1 | some person of the age of 13 years or older, who is | ||||||
2 | residing on or in possession of the premises; or by sending | ||||||
3 | a copy of the notice to the known occupant by first-class | ||||||
4 | mail, addressed to the occupant by name. | ||||||
5 | (4) In the event that a mortgagee in possession | ||||||
6 | ascertains the identity and address of an occupant of a | ||||||
7 | dwelling unit of the mortgaged real estate more than 14 | ||||||
8 | days after taking possession of the mortgaged real estate, | ||||||
9 | the mortgagee in possession shall provide the notice | ||||||
10 | required by subsection (a-5)(2) within 7 days of | ||||||
11 | ascertaining the identity and address of the occupant. | ||||||
12 | (5)(i) A mortgagee in possession who fails to comply | ||||||
13 | with items (2), (3), and (4) of this subsection (a-5) may | ||||||
14 | not collect any rent due and owing from a known occupant, | ||||||
15 | or terminate a known occupant's tenancy for non-payment of | ||||||
16 | such rent, until the mortgagee in possession has served the | ||||||
17 | notice described in item (2) of this subsection (a-5) upon | ||||||
18 | the occupant. The provisions of this subsection shall be | ||||||
19 | the exclusive remedy for the failure of a mortgagee in | ||||||
20 | possession to provide notice under this Section. | ||||||
21 | (ii) An occupant who previously paid rent for the | ||||||
22 | current rental period to the mortgagor, or other entity | ||||||
23 | with the authority to operate, manage, and conserve the | ||||||
24 | mortgaged real estate at the time of payment, shall not be | ||||||
25 | held liable for that rent by the mortgagee in possession, | ||||||
26 | and the occupant's tenancy shall not be terminated for |
| |||||||
| |||||||
1 | non-payment of rent for that rental period. | ||||||
2 | (6) Within 14 days of the order allowing the mortgagee | ||||||
3 | to take possession of the mortgaged real estate, the | ||||||
4 | mortgagee in possession shall post a written notice on the | ||||||
5 | primary entrance of each dwelling unit subject to the | ||||||
6 | foreclosure action that informs the occupants that the | ||||||
7 | mortgagee in possession is now operating and managing the | ||||||
8 | mortgaged real estate. This written notice shall: (i) | ||||||
9 | inform the occupant that the dwelling unit is the subject | ||||||
10 | of a foreclosure action and that control of the mortgaged | ||||||
11 | real estate has changed; (ii) include the following | ||||||
12 | language: "This is NOT a notice to vacate the premises."; | ||||||
13 | and (iii) provide the name, address, and telephone number | ||||||
14 | of the individual or entity whom occupants may contact with | ||||||
15 | concerns about the mortgaged real estate or to request | ||||||
16 | repairs of the property. | ||||||
17 | (b) Fees and Expenses. A mortgagee in possession shall not | ||||||
18 | be entitled
to any fees for so acting, but shall be entitled to | ||||||
19 | reimbursement for
reasonable costs, expenses and third party | ||||||
20 | management fees incurred in
connection with such possession.
| ||||||
21 | (Source: P.A. 84-1462.)
| ||||||
22 | (735 ILCS 5/15-1704) (from Ch. 110, par. 15-1704)
| ||||||
23 | Sec. 15-1704. Receivers. (a) Receiver. Notwithstanding the
| ||||||
24 | provisions of subsections (b), (c) and (d) of Section 15-1701, | ||||||
25 | and except
as provided in Section 15-1702, upon request of any |
| |||||||
| |||||||
1 | party and a showing of
good cause, the court shall appoint a | ||||||
2 | receiver for the mortgaged real estate.
| ||||||
3 | (b) Powers. A receiver appointed pursuant to this Article | ||||||
4 | shall have
possession of the mortgaged real estate and other | ||||||
5 | property subject to the
mortgage during the foreclosure, shall | ||||||
6 | have full power and authority to
operate, manage and conserve | ||||||
7 | such property, and shall have all the usual
powers of receivers | ||||||
8 | in like cases. Without limiting the foregoing, a
receiver shall | ||||||
9 | have the power and authority to:
| ||||||
10 | (1) secure tenants and execute leases for the real estate,
| ||||||
11 | the duration and terms of which are
reasonable and customary | ||||||
12 | for the type of use involved, and such leases
shall have the | ||||||
13 | same priority as if made by the owner of the real estate;
but, | ||||||
14 | unless approved by the Court, the receiver shall not
execute | ||||||
15 | oil, gas or other mineral leases, or (even if otherwise allowed | ||||||
16 | by
law) leases extending beyond the time of the receiver's | ||||||
17 | possession;
provided, however, with respect to residential | ||||||
18 | real estate leased by the
receiver, nothing in this Section | ||||||
19 | shall affect the legal rights of any lessee
with respect to the | ||||||
20 | safety and habitability of the residential real estate;
| ||||||
21 | (2) collect the rents, issues and profits from the | ||||||
22 | mortgaged real estate;
| ||||||
23 | (3) insure the mortgaged real estate against loss by fire | ||||||
24 | or other casualty;
| ||||||
25 | (4) employ counsel, custodians, janitors and other help; | ||||||
26 | and
|
| |||||||
| |||||||
1 | (5) pay taxes which may have been or may be levied against | ||||||
2 | the mortgaged real estate.
| ||||||
3 | (c) Duties. A receiver appointed pursuant to this Article | ||||||
4 | must manage
the mortgaged real estate as would a prudent | ||||||
5 | person, taking into account
the effect of the receiver's | ||||||
6 | management on the interest of the mortgagor.
A receiver may, | ||||||
7 | without an order of the court, delegate managerial
functions to | ||||||
8 | a person in the business of managing real estate of the kind
| ||||||
9 | involved who is financially responsible, not related to the | ||||||
10 | mortgagee or
receiver and prudently selected. However, the | ||||||
11 | receiver
shall remain responsible to the mortgagor or other
| ||||||
12 | persons for the acts or omissions of such management agent. | ||||||
13 | When fees are
paid to such a management agent, the receiver's | ||||||
14 | fees may be adjusted to the
extent the court deems appropriate. | ||||||
15 | In managing the mortgaged real estate
and other property | ||||||
16 | subject to the mortgage,
a receiver or receiver's delegate, to | ||||||
17 | the extent the receiver receives
sufficient receipts from the | ||||||
18 | mortgaged real estate, such other property or
other sources, | ||||||
19 | except to the extent ordered otherwise by the court:
| ||||||
20 | (1) shall maintain the existing casualty and liability | ||||||
21 | insurance
required in accordance with the mortgage or | ||||||
22 | applicable to the real estate
and other property subject to the | ||||||
23 | mortgage at the time the receiver took possession;
| ||||||
24 | (2) shall use reasonable efforts to maintain the real | ||||||
25 | estate and other
property subject to the mortgage in at least | ||||||
26 | as good condition as existed at
the time the receiver took |
| |||||||
| |||||||
1 | possession, excepting reasonable wear and tear
and damage by | ||||||
2 | any casualty;
| ||||||
3 | (3) shall: (i) maintain any essential utility services that | ||||||
4 | had been the obligation of the mortgagor prior to an order | ||||||
5 | appointing a receiver or allowing the mortgagee to take | ||||||
6 | possession of the mortgaged real estate; (ii) maintain the | ||||||
7 | mortgaged real estate in the same physical condition as had | ||||||
8 | been the obligation of the mortgagor prior to an order | ||||||
9 | appointing a receiver or allowing the mortgagee to take | ||||||
10 | possession of the mortgaged real estate; and (iii) maintain the | ||||||
11 | mortgaged real estate in compliance with the requirements of | ||||||
12 | State and local law; | ||||||
13 | (4) shall accept all rental payments from an occupant of | ||||||
14 | the mortgaged property and any payments from a third party or | ||||||
15 | any rental assistance program in support of an occupant's | ||||||
16 | housing; | ||||||
17 | (5) (3) shall apply receipts to payment of ordinary | ||||||
18 | operating expenses,
including royalties, rents and other | ||||||
19 | expenses of management;
| ||||||
20 | (6) (4) shall pay any shared or common expense assessments | ||||||
21 | due to any
association of owners of interests in real estate to | ||||||
22 | the extent that such
assessments are or may become a lien | ||||||
23 | against the mortgaged real estate;
| ||||||
24 | (7) (5) may pay the amounts due under any mortgage if the | ||||||
25 | mortgagee thereof
is not a party in the foreclosure;
| ||||||
26 | (8) (6) may carry such additional casualty and liability |
| |||||||
| |||||||
1 | insurance as is
reasonably available and reasonable as to | ||||||
2 | amounts and risks covered;
| ||||||
3 | (9) (7) may make other repairs and improvements necessary | ||||||
4 | to comply with
building, housing, and other similar codes or | ||||||
5 | with existing contractual
obligations affecting the mortgaged | ||||||
6 | real estate;
| ||||||
7 | (10) (8) may hold receipts as reserves reasonably required | ||||||
8 | for the foregoing purposes; and
| ||||||
9 | (11) (9) may take such other actions as may be reasonably | ||||||
10 | necessary to
conserve the mortgaged real estate and other | ||||||
11 | property subject to the
mortgage, or as otherwise authorized by | ||||||
12 | the court.
| ||||||
13 | (d) Allocation of Receipts. Receipts received from | ||||||
14 | operation of the
real estate and other property subject to the | ||||||
15 | mortgage by the receiver
shall be applied in the following | ||||||
16 | order of priority.
| ||||||
17 | (1) to reimbursement of the receiver for all reasonable | ||||||
18 | costs and
expenses incurred by the receiver or the receiver's | ||||||
19 | delegates;
| ||||||
20 | (2) to payment of insurance premiums authorized in | ||||||
21 | paragraph (1) of
subsection (c) of Section 15-1704;
| ||||||
22 | (3) to payment of the receiver's delegates of any | ||||||
23 | reasonable management
fees for managing real estate of the type | ||||||
24 | involved;
| ||||||
25 | (4) to payment of receiver's fees allowed by the court;
| ||||||
26 | (5) to payment of expenses authorized in paragraphs (2), |
| |||||||
| |||||||
1 | (3) , (5), and (6) (4) of
subsection (c) of Section 15-1704;
| ||||||
2 | (6) to payment of amounts authorized in paragraph (7) (5) | ||||||
3 | of subsection (c)
of Section 15-1704;
| ||||||
4 | (7) to payment of expenses authorized in paragraphs (8) (6) | ||||||
5 | and (9) (7) of
subsection (c) of Section 15-1704; and
| ||||||
6 | (8) the balance, if any, shall be held or disbursed as | ||||||
7 | ordered by the court.
| ||||||
8 | (e) Non-Liability for Allocations. A receiver shall in no | ||||||
9 | event be
liable to any person for the allocation of, or failure | ||||||
10 | to allocate,
receipts to possible expenditures within the same | ||||||
11 | priority category.
| ||||||
12 | (f) Notice to Occupants. | ||||||
13 | (1) Within 14 days of appointment, the receiver shall | ||||||
14 | make a good faith effort to ascertain the identities and | ||||||
15 | addresses of the mortgaged real estate. | ||||||
16 | (2) Within 21 days of appointment, the receiver shall | ||||||
17 | notify all occupants of dwelling units of the mortgaged | ||||||
18 | real estate that he or she has been appointed receiver of | ||||||
19 | the mortgaged real estate, including any occupants | ||||||
20 | identified as a result of the good faith effort under this | ||||||
21 | subsection. Such notice shall be in writing and shall: | ||||||
22 | (i) identify the occupant being served by name; | ||||||
23 | (ii) inform the occupant that the mortgaged real | ||||||
24 | estate is the subject of a foreclosure action and that | ||||||
25 | control of the mortgaged real estate has changed; | ||||||
26 | (iii) provide the name, address, and telephone |
| |||||||
| |||||||
1 | number of the individual or entity whom occupants may | ||||||
2 | contact with concerns about the mortgaged real estate | ||||||
3 | or to request repairs of that property; | ||||||
4 | (iv) include the following language, or language | ||||||
5 | that is substantially similar: | ||||||
6 | "This is NOT a notice to vacate the premises. You | ||||||
7 | will receive additional notice if your lease or rental | ||||||
8 | agreement is being terminated. You may wish to contact | ||||||
9 | a lawyer or your local legal aid or housing counseling | ||||||
10 | agency to discuss any rights that you may have." | ||||||
11 | (v) attach a copy of the order appointing the | ||||||
12 | receiver as receiver for the mortgaged real estate. | ||||||
13 | (3) The notice required by item (2) of this subsection | ||||||
14 | (f) shall be served: by delivering a written or printed, or | ||||||
15 | partly written and printed, copy thereof to the known | ||||||
16 | occupant, or by leaving the same with some person of the | ||||||
17 | age of 13 years or older, residing on or in possession of | ||||||
18 | the premises; or by sending a copy of the notice to the | ||||||
19 | known occupant by first-class mail, addressed to the | ||||||
20 | occupant by name. | ||||||
21 | (4) In the event that a receiver ascertains the | ||||||
22 | identity and address of an occupant of a dwelling unit of | ||||||
23 | the mortgaged real estate more than 14 days after | ||||||
24 | appointment, the receiver shall provide the notice | ||||||
25 | required by part (2) of this subsection (f) within 7 days | ||||||
26 | of ascertaining the identity and address of the occupant. |
| |||||||
| |||||||
1 | (5)(i) A receiver who fails to comply with items (2), | ||||||
2 | (3), and (4) of this subsection (f) may not collect any | ||||||
3 | rent due and owing from a known occupant, or terminate a | ||||||
4 | known occupant's tenancy for non-payment of such rent, | ||||||
5 | until the receiver has served the notice described in item | ||||||
6 | (2) of this subsection (f) upon the occupant. The | ||||||
7 | provisions of this subsection shall be the exclusive remedy | ||||||
8 | for the failure of a receiver to provide notice under this | ||||||
9 | Section. | ||||||
10 | (ii) An occupant who previously paid rent for the | ||||||
11 | current rental period to the mortgagor, or other entity | ||||||
12 | with the authority to operate, manage, and conserve the | ||||||
13 | mortgaged real estate at the time of payment, shall not be | ||||||
14 | held liable for that rent by the receiver, and the | ||||||
15 | occupant's tenancy shall not be terminated for non-payment | ||||||
16 | of rent for that rental period. | ||||||
17 | (6) Within 14 days of appointment, the receiver shall | ||||||
18 | post a written notice on the primary entrance of all | ||||||
19 | dwelling units subject to the foreclosure action that | ||||||
20 | informs occupants that the receiver has been appointed to | ||||||
21 | operate and manage the property. This written notice shall: | ||||||
22 | (i) inform the occupant that the dwelling unit is the | ||||||
23 | subject of a foreclosure action and that control of the | ||||||
24 | mortgaged real estate has changed; (ii) include the | ||||||
25 | following language: "This is NOT a notice to vacate the | ||||||
26 | premises."; and (iii) provide the name, address, and |
| |||||||
| |||||||
1 | telephone number of the individual or entity whom occupants | ||||||
2 | may contact with concerns about the mortgaged real estate | ||||||
3 | or to request repairs of the property. | ||||||
4 | (g) Increase of rents. Notwithstanding any other provision | ||||||
5 | of this Article, a receiver shall not charge an occupant of the | ||||||
6 | mortgaged real estate a rental amount greater than that which | ||||||
7 | the occupant had been paying for use and occupancy of the | ||||||
8 | mortgaged real estate prior to the appointment of a receiver, | ||||||
9 | without leave of court or an agreement with the occupant about | ||||||
10 | the increased rent. The court may allow an increase of rent if, | ||||||
11 | upon motion by the receiver, the court finds by a preponderance | ||||||
12 | of the evidence, that the increase of rent is necessary to | ||||||
13 | operate, manage, and conserve the mortgaged real estate | ||||||
14 | pursuant to this Section. A list of the current rents for each | ||||||
15 | unit in the mortgaged real estate, and a list of the proposed | ||||||
16 | rent increase for each of those units, must be attached to a | ||||||
17 | motion for a rent increase under this subsection (g). All | ||||||
18 | occupants of the mortgaged real estate who may be affected by | ||||||
19 | the motion for a rent increase, if not otherwise entitled to | ||||||
20 | notice, shall be notified in writing of the nature of the | ||||||
21 | motion, the date and time of the motion, and the court where | ||||||
22 | the motion will be heard. Such notice shall be by personal | ||||||
23 | service or first-class mail. Nothing in this subsection (g) | ||||||
24 | shall alter the terms of any lease agreement. | ||||||
25 | (h) (f) Removal. The court may remove a receiver upon a | ||||||
26 | showing of good
cause, in which case a new receiver may be |
| |||||||
| |||||||
1 | appointed in accordance with
subsection (b) of Section 15-1702 | ||||||
2 | and subsection (a) of Section 15-1704.
| ||||||
3 | (Source: P.A. 84-1462.)
| ||||||
4 | Section 98. In a foreclosure action filed on or before the | ||||||
5 | effective date of this Act, a holder or purchaser, receiver, or | ||||||
6 | mortgagee in possession required to serve notice or otherwise | ||||||
7 | comply with Section 15-1508.5, Section 15-1703(a-5), and | ||||||
8 | Section 15-1704(f) shall have an additional 60 days to comply | ||||||
9 | with the provisions of this Act.
| ||||||
10 | Section 99. Effective date. This Act takes effect 90 days | ||||||
11 | after becoming law.
|