Sen. Jacqueline Y. Collins
Filed: 5/4/2009
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1 | AMENDMENT TO HOUSE BILL 3863
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2 | AMENDMENT NO. ______. Amend House Bill 3863 by replacing | ||||||
3 | everything after the enacting clause with the following:
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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)
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8 | Sec. 15-1202.5. Dwelling unit. For the purposes of Sections | ||||||
9 | 15-1508.5, 15-1703, and 15-1704 only, "dwelling unit" means a | ||||||
10 | room or suite of rooms providing complete, independent living | ||||||
11 | facilities for at least one person, including permanent | ||||||
12 | provisions for sanitation, cooking, eating, sleeping, and | ||||||
13 | other activities routinely associated with daily life. | ||||||
14 | (735 ILCS 5/15-1508.5 new) | ||||||
15 | Sec. 15-1508.5. Notice by holder or purchaser to known |
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1 | occupants of dwelling units of mortgaged real estate. | ||||||
2 | (a) The holder of the certificate of sale or deed issued | ||||||
3 | pursuant to that certificate or, if no certificate or deed was | ||||||
4 | issued, the purchaser, shall: | ||||||
5 | (1) following the judicial sale under Section 15-1507, | ||||||
6 | but no later than 21 days after the confirmation of sale | ||||||
7 | under Section 15-1508, make a good faith effort to | ||||||
8 | ascertain the identities and addresses of all occupants of | ||||||
9 | dwelling units of the mortgaged real estate; and | ||||||
10 | (2) following the order confirming sale under Section | ||||||
11 | 15-1508, but no later than 21 days after the order | ||||||
12 | confirming sale, notify all known occupants of dwelling | ||||||
13 | units of the mortgaged real estate that the holder or | ||||||
14 | purchaser has acquired the mortgaged real estate. The | ||||||
15 | notice shall be in writing and shall: | ||||||
16 | (i) identify the occupant being served by the name | ||||||
17 | known to the holder or purchaser; | ||||||
18 | (ii) inform the occupant that the mortgaged real | ||||||
19 | estate at which the dwelling unit is located is the | ||||||
20 | subject of a foreclosure and that control of the | ||||||
21 | mortgaged real estate has changed; | ||||||
22 | (iii) provide the name, address, and telephone | ||||||
23 | number of an individual or entity whom the occupants | ||||||
24 | may contact with concerns about the mortgaged real | ||||||
25 | estate or to request repairs of that property; | ||||||
26 | (iv) include the following language, or language |
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1 | that is substantially similar:
"This is NOT a notice to | ||||||
2 | vacate the premises. You may wish to contact a lawyer | ||||||
3 | or your local legal aid or housing counseling agency to | ||||||
4 | discuss any rights that you may have."; and | ||||||
5 | (v) include the name of the case, the case number, | ||||||
6 | and the court where the order confirming the sale has | ||||||
7 | been entered. | ||||||
8 | (b) The written notice required by subsection (a) of this | ||||||
9 | Section shall be served by delivering a copy thereof to the | ||||||
10 | known occupant, or by leaving the same with some person of the | ||||||
11 | age of 13 years or upwards who is residing on or in possession | ||||||
12 | of the premises, or by sending a copy of the notice to the | ||||||
13 | known occupant by first-class mail, addressed to the occupant | ||||||
14 | by the name known to the holder or purchaser. | ||||||
15 | (c) In the event that the holder or purchaser ascertains | ||||||
16 | the identity and address of an occupant of a dwelling unit of | ||||||
17 | the mortgaged real estate more than 21 days after the | ||||||
18 | confirmation of sale under Section 15-1508, the holder or | ||||||
19 | purchaser shall provide the notice required by subparagraph (2) | ||||||
20 | of subsection (a) within 7 days of ascertaining the identity | ||||||
21 | and address of the occupant. | ||||||
22 | (d)(i) A holder or purchaser who fails to comply with | ||||||
23 | subsections (a), (b), and (c) may not collect any rent due and | ||||||
24 | owing from a known occupant, or terminate a known occupant's | ||||||
25 | tenancy for non-payment of such rent, until the holder or | ||||||
26 | purchaser has served the notice described in paragraph (2) of |
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1 | subsection (a) of this Section upon the known occupant. After | ||||||
2 | providing such notice, the holder or purchaser may collect any | ||||||
3 | and all rent otherwise due and owing the holder or purchaser | ||||||
4 | from the known occupant and may terminate the known occupant's | ||||||
5 | tenancy for non-payment of such rent if the holder or purchaser | ||||||
6 | otherwise has such right to terminate. | ||||||
7 | (ii) An occupant who previously paid rent for the current | ||||||
8 | rental period to the mortgagor, or other entity with the | ||||||
9 | authority to operate, manage, and conserve the mortgaged real | ||||||
10 | estate at the time of payment, shall not be held liable for | ||||||
11 | that rent by the holder or purchaser, and the occupant's | ||||||
12 | tenancy shall not be terminated for non-payment of rent for | ||||||
13 | that rental period. | ||||||
14 | (e) Within 21 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 | (i) inform 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 | (ii) include the following language: "This is NOT a | ||||||
22 | notice to vacate the premises."; and | ||||||
23 | (iii) provide the name, address, and telephone number | ||||||
24 | of the individual or entity whom occupants may contact with | ||||||
25 | concerns about the mortgaged real estate or to request | ||||||
26 | repairs of the property; |
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1 | (f)(i) The provisions of subsection (d) of this Section | ||||||
2 | shall be the exclusive remedy for the failure of a holder or | ||||||
3 | purchaser to provide notice to a known occupant under this | ||||||
4 | Section. | ||||||
5 | (ii) This Section shall not abrogate any right that a | ||||||
6 | holder or purchaser may have to possession of the mortgaged | ||||||
7 | real estate and to maintain a proceeding against an occupant of | ||||||
8 | a dwelling unit for possession under Article 9 of this Code or | ||||||
9 | subsection (h) of Section 15-1701. | ||||||
10 | (iii) In the event that the holder or purchaser is a | ||||||
11 | mortgagee in possession of the mortgaged real estate pursuant | ||||||
12 | to Section 15-1703 at the time of the confirmation of sale and | ||||||
13 | has complied with requirements of subsection (a-5) of Section | ||||||
14 | 15-1703, the holder or purchaser is excused from the | ||||||
15 | requirements of subsections (a) and (e) of this Section. | ||||||
16 | (iv) A holder or purchaser is not required to provide the | ||||||
17 | notice required by this Section to a mortgagor or party against | ||||||
18 | whom an order of possession has been entered authorizing the | ||||||
19 | removal of the mortgagor or party pursuant to subsection (g) of | ||||||
20 | Section 15-1508.
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21 | (735 ILCS 5/15-1701) (from Ch. 110, par. 15-1701)
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22 | Sec. 15-1701. Right to possession.
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23 | (a) General. The provisions of
this Article shall govern | ||||||
24 | the right to possession of the mortgaged real
estate during | ||||||
25 | foreclosure. Possession under this Article includes physical
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1 | possession of the mortgaged real estate to the same extent to | ||||||
2 | which the
mortgagor, absent the foreclosure, would have been | ||||||
3 | entitled to physical
possession. For the purposes of Part 17, | ||||||
4 | real estate is residential real estate
only if it is | ||||||
5 | residential real estate at the time the foreclosure is | ||||||
6 | commenced.
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7 | (b) Pre-Judgment. Prior to the entry of a judgment of | ||||||
8 | foreclosure:
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9 | (1) In the case of residential real estate, the | ||||||
10 | mortgagor shall be
entitled to possession of the real | ||||||
11 | estate except if (i) the mortgagee shall
object and show | ||||||
12 | good cause, (ii) the mortgagee is so authorized by the | ||||||
13 | terms of
the mortgage or other written instrument, and | ||||||
14 | (iii) the court is satisfied that
there is a reasonable | ||||||
15 | probability that the mortgagee will prevail on a final
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16 | hearing of the cause, the court shall upon request place | ||||||
17 | the mortgagee in
possession. If the residential real estate | ||||||
18 | consists of more than one dwelling
unit, then for the | ||||||
19 | purpose of this Part residential real estate shall mean | ||||||
20 | only
that dwelling unit or units occupied by persons | ||||||
21 | described in clauses (i), (ii)
and (iii) of Section | ||||||
22 | 15-1219.
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23 | (2) In all other cases, if (i) the mortgagee is so | ||||||
24 | authorized by the
terms of the mortgage or other written | ||||||
25 | instrument, and (ii) the court is
satisfied that there is a | ||||||
26 | reasonable probability that the mortgagee will
prevail on a |
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1 | final hearing of the cause, the mortgagee shall
upon | ||||||
2 | request be placed in possession of the real estate, except | ||||||
3 | that if the
mortgagor shall object and show good cause, the | ||||||
4 | court shall allow the
mortgagor to remain in possession.
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5 | (c) Judgment Through 30 Days After Sale Confirmation. After | ||||||
6 | the entry
of a judgment of foreclosure and through the 30th day | ||||||
7 | after a foreclosure
sale is confirmed:
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8 | (1) Subsection (b) of Section 15-1701 shall be | ||||||
9 | applicable, regardless of
the provisions of the mortgage or | ||||||
10 | other instrument, except that after a
sale pursuant to the | ||||||
11 | judgment the holder of the certificate of sale
(or, if | ||||||
12 | none, the purchaser at the sale) shall have the mortgagee's | ||||||
13 | right to be
placed in possession, with all rights and | ||||||
14 | duties of a mortgagee in possession
under this Article.
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15 | (2) Notwithstanding paragraph (1) of subsection (b) | ||||||
16 | and paragraph (1) of
subsection (c) of Section 15-1701, | ||||||
17 | upon request of the mortgagee, a mortgagor
of residential | ||||||
18 | real estate shall not be allowed to remain in possession | ||||||
19 | between
the expiration of the redemption period and through | ||||||
20 | the 30th day after sale
confirmation unless (i) the | ||||||
21 | mortgagor pays to the mortgagee or such holder or
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22 | purchaser, whichever is applicable, monthly the lesser of | ||||||
23 | the interest due
under the mortgage calculated at the | ||||||
24 | mortgage rate of interest applicable as if
no default had | ||||||
25 | occurred or the fair rental value of the real estate, or | ||||||
26 | (ii)
the mortgagor otherwise shows good cause. Any amounts |
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1 | paid by the mortgagor
pursuant to this subsection shall be | ||||||
2 | credited against the amounts due from the
mortgagor.
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3 | (d) After 30 Days After Sale Confirmation. The holder of
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4 | the certificate of sale or deed issued pursuant to that | ||||||
5 | certificate or, if
no certificate or deed was issued, the | ||||||
6 | purchaser, except to the extent the
holder or purchaser may | ||||||
7 | consent otherwise, shall be entitled to possession of
the | ||||||
8 | mortgaged real estate, as of the date 30 days after the order | ||||||
9 | confirming
the sale is entered, against those parties to the | ||||||
10 | foreclosure whose interests
the court has ordered terminated, | ||||||
11 | without further notice to any party, further
order of the | ||||||
12 | court, or resort to proceedings under any other statute other | ||||||
13 | than
this Article.
This right to possession shall be limited by | ||||||
14 | the provisions
governing entering and enforcing orders of | ||||||
15 | possession under subsection (g) of
Section
15-1508.
If the | ||||||
16 | holder or purchaser determines that there are occupants
of the | ||||||
17 | mortgaged real estate who have not been made parties to the | ||||||
18 | foreclosure
and had their interests terminated therein, the | ||||||
19 | holder or purchaser may bring a
proceeding under subsection (h) | ||||||
20 | of this Section or under Article 9 of this Code
to terminate | ||||||
21 | the rights of possession of any such occupants. The holder or
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22 | purchaser shall not be entitled to proceed against any such | ||||||
23 | occupant under
Article 9 of this Code until after 30 days after | ||||||
24 | the order confirming the sale
is entered.
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25 | (e) Termination of Leases. A lease of all or any part of | ||||||
26 | the mortgaged
real estate shall not be terminated automatically |
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1 | solely by virtue of the entry
into possession by (i) a | ||||||
2 | mortgagee or receiver prior to the entry of an order
confirming | ||||||
3 | the sale, (ii) the holder of the certificate of sale, (iii) the
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4 | holder of the deed issued pursuant to that certificate, or (iv) | ||||||
5 | if no
certificate or deed was issued, the purchaser at the | ||||||
6 | sale.
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7 | (f) Other Statutes; Instruments. The provisions of this | ||||||
8 | Article
providing for possession of mortgaged real estate shall | ||||||
9 | supersede any other
inconsistent statutory provisions. In | ||||||
10 | particular, and without limitation,
whenever a receiver is | ||||||
11 | sought to be appointed in any action in which a
foreclosure is | ||||||
12 | also pending, a receiver shall be appointed only in
accordance | ||||||
13 | with this Article. Except as may be authorized by this Article,
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14 | no mortgage or other instrument may modify or supersede the | ||||||
15 | provisions of this
Article.
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16 | (g) Certain Leases. Leases of the mortgaged real estate | ||||||
17 | entered into by
a mortgagee in possession or a receiver and | ||||||
18 | approved by the court in a
foreclosure shall be binding on all | ||||||
19 | parties, including the mortgagor after
redemption, the | ||||||
20 | purchaser at a sale pursuant to a judgment of foreclosure
and | ||||||
21 | any person acquiring an interest in the mortgaged real estate | ||||||
22 | after
entry of a judgment of foreclosure in accordance with | ||||||
23 | Sections 15-1402 and
15-1403.
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24 | (h) Proceedings Against Certain Occupants.
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25 | (1) The mortgagee-in-possession of the mortgaged real | ||||||
26 | estate under Section
15-1703, a receiver appointed under |
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1 | Section 15-1704, a holder of the
certificate of sale or | ||||||
2 | deed, or the purchaser may, at any time during the
pendency | ||||||
3 | of the foreclosure and up to 90 days after the date of the | ||||||
4 | order
confirming the sale,
file a supplemental petition for | ||||||
5 | possession against a person not personally
named as a party
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6 | to the foreclosure. The supplemental petition for | ||||||
7 | possession shall name each such
occupant against whom | ||||||
8 | possession is sought and state the facts upon which the
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9 | claim for relief is premised.
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10 | (2) The petitioner shall serve upon each named occupant | ||||||
11 | the petition,
a notice of hearing on the petition, and, if | ||||||
12 | any, a copy of the certificate of
sale or deed. The | ||||||
13 | proceeding for the termination of such occupant's | ||||||
14 | possessory
interest, including service of the notice of the | ||||||
15 | hearing and the petition,
shall in all respects comport | ||||||
16 | with the requirements of Article 9 of this Code,
except as | ||||||
17 | otherwise specified in this Section. The hearing shall be | ||||||
18 | no less
than 21 days from the date of service of the | ||||||
19 | notice.
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20 | (3) The supplemental petition shall be heard as part of | ||||||
21 | the foreclosure
proceeding and without the payment of | ||||||
22 | additional filing fees. An order for
possession obtained | ||||||
23 | under this Section shall name each occupant whose interest
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24 | has been terminated, shall recite that it is only effective | ||||||
25 | as to the occupant
so named and those holding under them, | ||||||
26 | and shall be enforceable for no more
than 90 days after its |
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1 | entry, except that the 90-day period may be extended to
the | ||||||
2 | extent and in the manner provided in Section 9-117 of | ||||||
3 | Article 9 and except as provided in item (4) of this | ||||||
4 | subsection (h). | ||||||
5 | (4) In a case of foreclosure where the occupant tenant | ||||||
6 | is current on his or her rent, or where timely written | ||||||
7 | notice of to whom and where the rent is to be paid has not | ||||||
8 | been provided to the occupant tenant , or where the occupant | ||||||
9 | tenant has made good-faith efforts to make rental payments | ||||||
10 | in order to keep current, any order of possession must | ||||||
11 | allow the occupant tenant to retain possession of the | ||||||
12 | property covered in his or her rental agreement (i) for 120 | ||||||
13 | days following the notice of the hearing on the | ||||||
14 | supplemental petition that has been properly served upon | ||||||
15 | the occupant tenant , or (ii) through the duration of his or | ||||||
16 | her lease, whichever is shorter , provided that if the | ||||||
17 | duration of his or her lease is less than 30 days from the | ||||||
18 | date of the order, the order shall allow the occupant to | ||||||
19 | retain possession for 30 days from the date of the order. A | ||||||
20 | mortgagee in possession, receiver, holder of a certificate | ||||||
21 | of sale or deed, or purchaser at the judicial sale, who | ||||||
22 | asserts that the occupant is not current in rent, shall | ||||||
23 | file an affidavit to that effect in the supplemental | ||||||
24 | petition proceeding . If the occupant tenant has been given | ||||||
25 | timely written notice of to whom and where the rent is to | ||||||
26 | be paid, this item (4) shall only apply if the occupant |
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1 | tenant continues to pay his or her rent in full during the | ||||||
2 | 120-day period or has made good-faith efforts to pay the | ||||||
3 | rent in full during that period.
No | ||||||
4 | mortgagee-in-possession, receiver or holder of a | ||||||
5 | certificate of sale or deed, or purchaser who fails to file | ||||||
6 | a supplemental petition under this subsection during the | ||||||
7 | pendency of a mortgage foreclosure shall file a forcible | ||||||
8 | entry and detainer action against an occupant a tenant of | ||||||
9 | the mortgaged real estate until 90 days after a notice of | ||||||
10 | intent to file such action has been properly served upon | ||||||
11 | the occupant tenant . | ||||||
12 | (5) The court records relating to a supplemental | ||||||
13 | petition for possession filed under this subsection (h) | ||||||
14 | against an occupant a tenant who is entitled to notice | ||||||
15 | under item (4) of this subsection (h), or relating to a | ||||||
16 | forcible entry and detainer action brought against an | ||||||
17 | occupant a tenant who would have lawful possession of the | ||||||
18 | premises but for the foreclosure of a mortgage on the | ||||||
19 | property, shall be ordered sealed and shall not be | ||||||
20 | disclosed to any person, other than a law enforcement | ||||||
21 | officer or any other representative of a governmental | ||||||
22 | entity, except upon further order of the court.
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23 | (Source: P.A. 95-262, eff. 1-1-08; 95-933, eff. 8-26-08.)
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24 | (735 ILCS 5/15-1703) (from Ch. 110, par. 15-1703)
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25 | Sec. 15-1703. Mortgagee in Possession. (a) Powers and |
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1 | Duties. A mortgagee
placed in possession of the real estate | ||||||
2 | pursuant to Section 15-1701 or Section
15-1702 shall have:
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3 | (1) such power and authority with respect to the real | ||||||
4 | estate and other
property subject to the mortgage, | ||||||
5 | including the right to receive the rents,
issues and | ||||||
6 | profits thereof, as may have been conferred upon the | ||||||
7 | mortgagee
by the terms of the mortgage or other written | ||||||
8 | instrument authorizing the
taking of possession;
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9 | (2) all other rights and privileges of a mortgagee in | ||||||
10 | possession under
law not inconsistent herewith; and
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11 | (3) the same powers, duties and liabilities as a | ||||||
12 | receiver appointed for
the real estate in accordance with | ||||||
13 | this Article. If an order placing a
mortgagee in possession | ||||||
14 | is modified, revoked or set aside, the mortgagee
shall not | ||||||
15 | be liable for any damages to the extent such damages arise
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16 | solely out of the fact that the mortgagor was removed from | ||||||
17 | possession or
that the mortgagee was placed in possession.
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18 | (a-5) Notice to occupants. | ||||||
19 | (1) Following the order placing the mortgagee in | ||||||
20 | possession of the mortgaged real estate, but no later than | ||||||
21 | 21 days after the entry of such order, the mortgagee in | ||||||
22 | possession shall make a good faith effort to ascertain the | ||||||
23 | identities and addresses of all occupants of dwelling units | ||||||
24 | of the mortgaged real estate. | ||||||
25 | (2) Following the order placing the mortgagee in | ||||||
26 | possession of the mortgaged real estate, but no later than |
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1 | 21 days after the entry of such order, the mortgagee in | ||||||
2 | possession shall notify all known occupants of dwelling | ||||||
3 | units of the mortgaged real estate that the mortgagee has | ||||||
4 | taken possession of the mortgaged real estate. The notice | ||||||
5 | shall be in writing and shall: | ||||||
6 | (i) identify the occupant being served by the name | ||||||
7 | known to the mortgagee in possession; | ||||||
8 | (ii) inform the occupant that the mortgaged real | ||||||
9 | estate at which the dwelling unit is located is the | ||||||
10 | subject of a foreclosure action and that control of the | ||||||
11 | mortgaged real estate has changed; | ||||||
12 | (iii) provide the name, address, and telephone | ||||||
13 | number of the individual or entity whom occupants may | ||||||
14 | contact with concerns about the mortgaged real estate | ||||||
15 | or to request repairs of that property; | ||||||
16 | (iv) include the following language, or language | ||||||
17 | that is substantially similar: "This is NOT a notice to | ||||||
18 | vacate the premises. You may wish to contact a lawyer | ||||||
19 | or your local legal aid or housing counseling agency to | ||||||
20 | discuss any rights that you may have."; and | ||||||
21 | (v) include the name of the case, the case number, | ||||||
22 | and the court where the foreclosure action is pending. | ||||||
23 | (3) The written notice required by item (2) of this | ||||||
24 | subsection (a-5) shall be served by delivering a copy | ||||||
25 | thereof to the known occupant, or by leaving the same with | ||||||
26 | some person of the age of 13 years or upwards, who is |
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1 | residing on or in possession of the premises; or by sending | ||||||
2 | a copy of the notice to the known occupant by first-class | ||||||
3 | mail, addressed to the occupant by the name known to the | ||||||
4 | mortgagee in possession. | ||||||
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 21 | ||||||
8 | days after being placed in possession of the mortgaged real | ||||||
9 | estate pursuant to Section 15-1703, the mortgagee in | ||||||
10 | possession shall provide the notice required by item (2) of | ||||||
11 | this subsection (a-5) within 7 days of ascertaining the | ||||||
12 | identity and address of the occupant. | ||||||
13 | (5)(i) A mortgagee in possession who fails to comply | ||||||
14 | with items (1), (2), (3), and (4) of this subsection (a-5) | ||||||
15 | may not collect any rent due and owing from a known | ||||||
16 | occupant, or terminate a known occupant's tenancy for | ||||||
17 | non-payment of such rent, until the mortgagee in possession | ||||||
18 | has served the notice described in item (2) of this | ||||||
19 | subsection (a-5) upon the known occupant. After providing | ||||||
20 | such notice, the mortgagee in possession may collect any | ||||||
21 | and all rent otherwise due and owing the mortgagee in | ||||||
22 | possession from the known occupant and may terminate the | ||||||
23 | known occupant's tenancy for non-payment of such rent if | ||||||
24 | the mortgagee in possession otherwise has such right to | ||||||
25 | terminate. | ||||||
26 | (ii) An occupant who previously paid rent for the |
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1 | current rental period to the mortgagor, or other entity | ||||||
2 | with the authority to operate, manage, and conserve the | ||||||
3 | mortgaged real estate at the time of payment, shall not be | ||||||
4 | held liable for that rent by the mortgagee in possession, | ||||||
5 | and the occupant's tenancy shall not be terminated for | ||||||
6 | non-payment of rent for that rental period. | ||||||
7 | (6) Within 21 days of the order placing the mortgagee | ||||||
8 | in possession of the mortgaged real estate, the mortgagee | ||||||
9 | in possession shall post a written notice on the primary | ||||||
10 | entrance of each dwelling unit subject to the foreclosure | ||||||
11 | action that informs the occupants that the mortgagee in | ||||||
12 | possession is now operating and managing the mortgaged real | ||||||
13 | estate. This notice shall: | ||||||
14 | (i) inform occupant that the dwelling unit is the | ||||||
15 | subject of a foreclosure action and that control of the | ||||||
16 | mortgaged real estate has changed; | ||||||
17 | (ii) include the following language: "This is NOT a | ||||||
18 | notice to vacate the premises;" and | ||||||
19 | (iii) provide the name, address, and telephone | ||||||
20 | number of the individual or entity whom occupants may | ||||||
21 | contact with concerns about the mortgaged real estate | ||||||
22 | or to request repairs of the property. | ||||||
23 | (7)(i) The provisions of item (5) of this subsection | ||||||
24 | (a-5) shall be the exclusive remedy for the failure of a | ||||||
25 | mortgagee in possession to provide notice to a known | ||||||
26 | occupant under this Section. |
| |||||||
| |||||||
1 | (ii) This Section shall not abrogate any right that a | ||||||
2 | mortgagee in possession may have to possession of the | ||||||
3 | mortgaged real estate and to maintain a proceeding against | ||||||
4 | an occupant of a dwelling unit for possession under Article | ||||||
5 | 9 of this Code or subsection (h) of Section 15-1701. | ||||||
6 | (b) Fees and Expenses. A mortgagee in possession shall not | ||||||
7 | be entitled
to any fees for so acting, but shall be entitled to | ||||||
8 | reimbursement for
reasonable costs, expenses and third party | ||||||
9 | management fees incurred in
connection with such possession.
| ||||||
10 | (Source: P.A. 84-1462.)
| ||||||
11 | (735 ILCS 5/15-1704) (from Ch. 110, par. 15-1704)
| ||||||
12 | Sec. 15-1704. Receivers. (a) Receiver. Notwithstanding the
| ||||||
13 | provisions of subsections (b), (c) and (d) of Section 15-1701, | ||||||
14 | and except
as provided in Section 15-1702, upon request of any | ||||||
15 | party and a showing of
good cause, the court shall appoint a | ||||||
16 | receiver for the mortgaged real estate.
| ||||||
17 | (b) Powers. A receiver appointed pursuant to this Article | ||||||
18 | shall have
possession of the mortgaged real estate and other | ||||||
19 | property subject to the
mortgage during the foreclosure, shall | ||||||
20 | have full power and authority to
operate, manage and conserve | ||||||
21 | such property, and shall have all the usual
powers of receivers | ||||||
22 | in like cases. Without limiting the foregoing, a
receiver shall | ||||||
23 | have the power and authority to:
| ||||||
24 | (1) secure tenants and execute leases for the real | ||||||
25 | estate,
the duration and terms of which are
reasonable and |
| |||||||
| |||||||
1 | customary for the type of use involved, and such leases
| ||||||
2 | shall have the same priority as if made by the owner of the | ||||||
3 | real estate;
but, unless approved by the Court, the | ||||||
4 | receiver shall not
execute oil, gas or other mineral | ||||||
5 | leases, or (even if otherwise allowed by
law) leases | ||||||
6 | extending beyond the time of the receiver's possession;
| ||||||
7 | provided, however, with respect to residential real estate | ||||||
8 | leased by the
receiver, nothing in this Section shall | ||||||
9 | affect the legal rights of any lessee
with respect to the | ||||||
10 | safety and habitability of the residential real estate;
| ||||||
11 | (2) collect the rents, issues and profits from the | ||||||
12 | mortgaged real estate;
| ||||||
13 | (3) insure the mortgaged real estate against loss by | ||||||
14 | fire or other casualty;
| ||||||
15 | (4) employ counsel, custodians, janitors and other | ||||||
16 | help; and
| ||||||
17 | (5) pay taxes which may have been or may be levied | ||||||
18 | against the mortgaged real estate.
| ||||||
19 | (c) Duties. A receiver appointed pursuant to this Article | ||||||
20 | must manage
the mortgaged real estate as would a prudent | ||||||
21 | person, taking into account
the effect of the receiver's | ||||||
22 | management on the interest of the mortgagor.
A receiver may, | ||||||
23 | without an order of the court, delegate managerial
functions to | ||||||
24 | a person in the business of managing real estate of the kind
| ||||||
25 | involved who is financially responsible, not related to the | ||||||
26 | mortgagee or
receiver and prudently selected. However, the |
| |||||||
| |||||||
1 | receiver
shall remain responsible to the mortgagor or other
| ||||||
2 | persons for the acts or omissions of such management agent. | ||||||
3 | When fees are
paid to such a management agent, the receiver's | ||||||
4 | fees may be adjusted to the
extent the court deems appropriate. | ||||||
5 | In managing the mortgaged real estate
and other property | ||||||
6 | subject to the mortgage,
a receiver or receiver's delegate, to | ||||||
7 | the extent the receiver receives
sufficient receipts from the | ||||||
8 | mortgaged real estate, such other property or
other sources, | ||||||
9 | except to the extent ordered otherwise by the court:
| ||||||
10 | (1) shall maintain the existing casualty and liability | ||||||
11 | insurance
required in accordance with the mortgage or | ||||||
12 | applicable to the real estate
and other property subject to | ||||||
13 | the mortgage at the time the receiver took possession;
| ||||||
14 | (2) shall use reasonable efforts to maintain the real | ||||||
15 | estate and other
property subject to the mortgage in at | ||||||
16 | least as good condition as existed at
the time the receiver | ||||||
17 | took possession, excepting reasonable wear and tear
and | ||||||
18 | damage by any casualty;
| ||||||
19 | (2.5) shall accept all rental payments from an occupant | ||||||
20 | of the mortgaged property, and any payments from a third | ||||||
21 | party or any rental assistance program in support of an | ||||||
22 | occupant's housing; | ||||||
23 | (3) shall apply receipts to payment of ordinary | ||||||
24 | operating expenses,
including royalties, rents and other | ||||||
25 | expenses of management;
| ||||||
26 | (4) shall pay any shared or common expense assessments |
| |||||||
| |||||||
1 | due to any
association of owners of interests in real | ||||||
2 | estate to the extent that such
assessments are or may | ||||||
3 | become a lien against the mortgaged real estate;
| ||||||
4 | (5) may pay the amounts due under any mortgage if the | ||||||
5 | mortgagee thereof
is not a party in the foreclosure;
| ||||||
6 | (6) may carry such additional casualty and liability | ||||||
7 | insurance as is
reasonably available and reasonable as to | ||||||
8 | amounts and risks covered;
| ||||||
9 | (7) may make other repairs and improvements necessary | ||||||
10 | to comply with
building, housing, and other similar codes | ||||||
11 | or with existing contractual
obligations affecting the | ||||||
12 | mortgaged real estate;
| ||||||
13 | (8) may hold receipts as reserves reasonably required | ||||||
14 | for the foregoing purposes; and
| ||||||
15 | (9) may take such other actions as may be reasonably | ||||||
16 | necessary to
conserve the mortgaged real estate and other | ||||||
17 | property subject to the
mortgage, or as otherwise | ||||||
18 | authorized by the court.
| ||||||
19 | (d) Allocation of Receipts. Receipts received from | ||||||
20 | operation of the
real estate and other property subject to the | ||||||
21 | mortgage by the receiver
shall be applied in the following | ||||||
22 | order of priority.
| ||||||
23 | (1) to reimbursement of the receiver for all reasonable | ||||||
24 | costs and
expenses incurred by the receiver or the | ||||||
25 | receiver's delegates;
| ||||||
26 | (2) to payment of insurance premiums authorized in |
| |||||||
| |||||||
1 | paragraph (1) of
subsection (c) of Section 15-1704;
| ||||||
2 | (3) to payment of the receiver's delegates of any | ||||||
3 | reasonable management
fees for managing real estate of the | ||||||
4 | type involved;
| ||||||
5 | (4) to payment of receiver's fees allowed by the court;
| ||||||
6 | (5) to payment of expenses authorized in paragraphs | ||||||
7 | (2), (3) and (4) of
subsection (c) of Section 15-1704;
| ||||||
8 | (6) to payment of amounts authorized in paragraph (5) | ||||||
9 | of subsection (c)
of Section 15-1704;
| ||||||
10 | (7) to payment of expenses authorized in paragraphs (6) | ||||||
11 | and (7) of
subsection (c) of Section 15-1704; and
| ||||||
12 | (8) the balance, if any, shall be held or disbursed as | ||||||
13 | ordered by the court.
| ||||||
14 | (e) Non-Liability for Allocations. A receiver shall in no | ||||||
15 | event be
liable to any person for the allocation of, or failure | ||||||
16 | to allocate,
receipts to possible expenditures within the same | ||||||
17 | priority category.
| ||||||
18 | (f) Notice to occupants. | ||||||
19 | (1) Following an order appointing a receiver pursuant | ||||||
20 | to Section 15-1704, but no later than 21 days after the | ||||||
21 | entry of such order, the appointed receiver shall make a | ||||||
22 | good faith effort to ascertain the identities and addresses | ||||||
23 | of all occupants of dwelling units of the mortgaged real | ||||||
24 | estate. | ||||||
25 | (2) Following an order appointing a receiver pursuant | ||||||
26 | to Section 15-1704, but no later than 21 days after the |
| |||||||
| |||||||
1 | entry of such order, the appointed receiver shall notify | ||||||
2 | all known occupants of dwelling units of the mortgaged real | ||||||
3 | estate that the receiver has been appointed receiver of the | ||||||
4 | mortgaged real estate. Such notice shall be in writing and | ||||||
5 | shall: | ||||||
6 | (i) identify the occupant being served by the name | ||||||
7 | known to the receiver; | ||||||
8 | (ii) inform the occupant that the mortgaged real | ||||||
9 | estate at which the dwelling unit is located is the | ||||||
10 | subject of a foreclosure action and that control of the | ||||||
11 | mortgaged real estate has changed; | ||||||
12 | (iii) provide the name, address, and telephone | ||||||
13 | number of the individual or entity whom occupants may | ||||||
14 | contact with concerns about the mortgaged real estate | ||||||
15 | or to request repairs of that property; | ||||||
16 | (iv) include the following language, or language | ||||||
17 | that is substantially similar:
"This is NOT a notice to | ||||||
18 | vacate the premises. You may wish to contact a lawyer | ||||||
19 | or your local legal aid or housing counseling agency to | ||||||
20 | discuss any rights that you may have."; and | ||||||
21 | (v) include the name of the case, the case number, | ||||||
22 | and the court where the foreclosure action is pending; | ||||||
23 | (3) The written notice required by item (2) of this | ||||||
24 | subsection (f) shall be served by delivering a copy thereof | ||||||
25 | to the known occupant, or by leaving the same with some | ||||||
26 | person of the age of 13 years or upwards, who is residing |
| |||||||
| |||||||
1 | on or in possession of the premises; or by sending a copy | ||||||
2 | of the notice to the known occupant by first-class mail, | ||||||
3 | addressed to the occupant by the name known to the | ||||||
4 | receiver. | ||||||
5 | (4) In the event that a receiver ascertains the | ||||||
6 | identity and address of an occupant of a dwelling unit of | ||||||
7 | the mortgaged real estate more than 21 days after | ||||||
8 | appointment pursuant to Section 15-1704, the receiver | ||||||
9 | shall provide the notice required by item (2) of this | ||||||
10 | subsection (f) within 7 days of ascertaining the identity | ||||||
11 | and address of the occupant. | ||||||
12 | (5)(i) A receiver who fails to comply with items (1), | ||||||
13 | (2), (3), and (4) of this subsection (f) may not collect | ||||||
14 | any rent due and owing from a known occupant, or terminate | ||||||
15 | a known occupant's tenancy for non-payment of such rent, | ||||||
16 | until the receiver has served the notice described in item | ||||||
17 | (2) of this subsection (f) upon the known occupant. After | ||||||
18 | providing such notice, the receiver may collect any and all | ||||||
19 | rent otherwise due and owing the receiver from the known | ||||||
20 | occupant and may terminate the known occupant's tenancy for | ||||||
21 | non-payment of such rent if the receiver otherwise has such | ||||||
22 | right to terminate. | ||||||
23 | (ii) An occupant who previously paid rent for the | ||||||
24 | current rental period to the mortgagor, or other entity | ||||||
25 | with the authority to operate, manage, and conserve the | ||||||
26 | mortgaged real estate at the time of payment, shall not be |
| |||||||
| |||||||
1 | held liable for that rent by the receiver, and the | ||||||
2 | occupant's tenancy shall not be terminated for non-payment | ||||||
3 | of rent for that rental period. | ||||||
4 | (6) Within 21 days of appointment, the receiver shall | ||||||
5 | post a written notice on the primary entrance of each | ||||||
6 | dwelling unit subject to the foreclosure action that | ||||||
7 | informs occupants that the receiver has been appointed to | ||||||
8 | operate and manage the property. This notice shall: | ||||||
9 | (i) inform occupant that the dwelling unit is the | ||||||
10 | subject of a foreclosure action and that control of the | ||||||
11 | mortgaged real estate has changed; | ||||||
12 | (ii) include the following language: "This is NOT a | ||||||
13 | notice to vacate the premises;" and | ||||||
14 | (iii) provide the name, address, and telephone | ||||||
15 | number of the individual or entity whom occupants may | ||||||
16 | contact with concerns about the mortgaged real estate | ||||||
17 | or to request repairs of the property. | ||||||
18 | (7)(i) The provisions of item (5) of this subsection | ||||||
19 | (f) shall be the exclusive remedy for the failure of a | ||||||
20 | receiver to provide notice to a known occupant under this | ||||||
21 | Section. | ||||||
22 | (ii) This Section shall not abrogate any right that a | ||||||
23 | receiver may have to possession of the mortgaged real | ||||||
24 | estate and to maintain a proceeding against an occupant of | ||||||
25 | a dwelling unit for possession under Article 9 of this Code | ||||||
26 | or subsection (h) of Section 15-1701. |
| |||||||
| |||||||
1 | (g) Increase of rents. Notwithstanding any other provision | ||||||
2 | of this Article, a receiver shall not charge an occupant of the | ||||||
3 | mortgaged real estate a rental amount above that which the | ||||||
4 | occupant had been paying for use and occupancy of the mortgaged | ||||||
5 | real estate prior the appointment of a receiver without leave | ||||||
6 | of court. The court may allow an increase of rent if, upon | ||||||
7 | motion by the receiver, the court finds by a preponderance of | ||||||
8 | the evidence, that the increase of rent is necessary to | ||||||
9 | operate, manage, and conserve the mortgaged real estate | ||||||
10 | pursuant to this Section. A list of the current rents for each | ||||||
11 | unit in the mortgaged real estate, and a list of the proposed | ||||||
12 | rent increase for each of those units, must be attached to a | ||||||
13 | motion for a rent increase under this subsection (g). All | ||||||
14 | occupants of the mortgaged real estate who may be affected by | ||||||
15 | the motion for a rent increase, if not otherwise entitled to | ||||||
16 | notice, shall be notified in writing of the nature of the | ||||||
17 | motion, the date and time of the motion, and the court where | ||||||
18 | the motion will be heard. Such notice shall be by personal | ||||||
19 | service or first-class mail. In the event that the receiver and | ||||||
20 | an occupant of a dwelling unit agree to a rent increase for | ||||||
21 | that dwelling unit, the receiver is excused from the | ||||||
22 | requirements of this subsection (g) as to that dwelling unit. | ||||||
23 | Nothing in this subsection (g) shall alter the terms of any | ||||||
24 | 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. Compliance. In a foreclosure action filed on or | ||||||
5 | before the effective date of this Act, a holder or purchaser, | ||||||
6 | receiver, or mortgagee in possession required to serve notice | ||||||
7 | or otherwise comply with Section 15-1508.5, subsection (a-5) of | ||||||
8 | Section 15-1703, and subsection (f) of 15-1704 shall have an | ||||||
9 | additional 60 days to comply with the provisions of this Act.
| ||||||
10 | Section 99. Effective date. This Act takes effect 90 days | ||||||
11 | after becoming law.".
|