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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 15-1208, 15-1504, and 15-1506 as follows:
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6 | (735 ILCS 5/15-1208) (from Ch. 110, par. 15-1208)
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7 | Sec. 15-1208. Mortgagee. "Mortgagee" means (i) the holder | |||||||||||||||||||||||
8 | of an
indebtedness or obligee of a
non-monetary obligation | |||||||||||||||||||||||
9 | secured by a mortgage or any person designated or
authorized to | |||||||||||||||||||||||
10 | act on behalf of such holder and (ii) any person claiming
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11 | through a mortgagee as successor.
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12 | (Source: P.A. 84-1462.)
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13 | (735 ILCS 5/15-1504) (from Ch. 110, par. 15-1504)
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14 | Sec. 15-1504. Pleadings and service.
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15 | (a) Form of Complaint. A foreclosure complaint
may be in | |||||||||||||||||||||||
16 | substantially the following form:
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17 | (1) Plaintiff files this complaint to foreclose the | |||||||||||||||||||||||
18 | mortgage (or other
conveyance in the nature of a mortgage) | |||||||||||||||||||||||
19 | (hereinafter called "mortgage")
hereinafter described and | |||||||||||||||||||||||
20 | joins the following person as defendants: (here
insert | |||||||||||||||||||||||
21 | names of all defendants).
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22 | (2) Attached as Exhibit "A" is a copy of the mortgage |
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1 | and as Exhibit "B"
is a copy of the note secured thereby.
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2 | (3) Information concerning mortgage:
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3 | (A) Nature of instrument: (here insert whether a | ||||||
4 | mortgage, trust deed or
other instrument in the nature | ||||||
5 | of a mortgage, etc.)
| ||||||
6 | (B) Date of mortgage:
| ||||||
7 | (C) Name of mortgagor:
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8 | (D) Name of mortgagee:
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9 | (E) Date and place of recording:
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10 | (F) Identification of recording: (here insert book | ||||||
11 | and page number or document number)
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12 | (G) Interest subject to the mortgage: (here insert | ||||||
13 | whether fee simple,
estate for years, undivided | ||||||
14 | interest, etc.)
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15 | (H) Amount of original indebtedness, including | ||||||
16 | subsequent advances made
under the mortgage:
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17 | (I) Both the legal description of the mortgaged | ||||||
18 | real estate and the
common address or other information | ||||||
19 | sufficient to identify it with reasonable certainty:
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20 | (J) Statement as to defaults, including, but not | ||||||
21 | necessarily
limited to, date of default, current | ||||||
22 | unpaid principal balance, per diem
interest accruing, | ||||||
23 | and any further information concerning the default:
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24 | (K) Name of present owner of the real estate:
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25 | (L) Names of other persons who are joined as | ||||||
26 | defendants and whose
interest in or lien on the |
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| |||||||
1 | mortgaged real estate is sought to be terminated:
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2 | (M) Names of defendants claimed to be personally | ||||||
3 | liable
for deficiency, if any:
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4 | (N) Capacity in which plaintiff brings this | ||||||
5 | foreclosure (here indicate
whether plaintiff is the | ||||||
6 | legal holder of the indebtedness or , a pledgee, an
| ||||||
7 | agent, the trustee under a trust deed or otherwise , as | ||||||
8 | appropriate) ; attached as Exhibit "C" are copies of all | ||||||
9 | documents which demonstrate that the plaintiff is the | ||||||
10 | mortgagee, as defined in Section 15-1208 :
| ||||||
11 | (O) Facts in support of redemption period shorter | ||||||
12 | than
the longer of (i) 7 months from the date the | ||||||
13 | mortgagor or, if more than
one, all the mortgagors (I) | ||||||
14 | have been served with summons or by publication
or (II) | ||||||
15 | have otherwise submitted to the jurisdiction of the | ||||||
16 | court, or (ii)
3 months from the entry of the judgment | ||||||
17 | of foreclosure, if sought (here
indicate whether based | ||||||
18 | upon the real estate not being residential,
| ||||||
19 | abandonment, or real estate value less than 90%
of | ||||||
20 | amount owed, etc.):
| ||||||
21 | (P) Statement that the right of redemption has been | ||||||
22 | waived by all
owners of redemption, if applicable:
| ||||||
23 | (Q) Facts in support of request for attorneys' fees | ||||||
24 | and of costs and
expenses, if applicable:
| ||||||
25 | (R) Facts in support of a request for appointment | ||||||
26 | of mortgagee in
possession or for appointment of |
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| |||||||
1 | receiver, and identity of such receiver, if
sought:
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2 | (S) Offer to mortgagor in accordance with Section | ||||||
3 | 15-1402 to accept
title to the real estate in | ||||||
4 | satisfaction of all indebtedness and
obligations | ||||||
5 | secured by the mortgage without judicial sale, if | ||||||
6 | sought:
| ||||||
7 | (T) Name or names of defendants whose right to
| ||||||
8 | possess the mortgaged real estate, after the | ||||||
9 | confirmation of a foreclosure
sale, is
sought to be | ||||||
10 | terminated and, if not elsewhere stated, the facts in | ||||||
11 | support
thereof:
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12 | REQUEST FOR RELIEF
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13 | Plaintiff requests:
| ||||||
14 | (i) A judgment of foreclosure and sale.
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15 | (ii) An order granting a shortened redemption period, | ||||||
16 | if sought.
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17 | (iii) A personal judgment for a deficiency, if sought.
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18 | (iv) An order granting possession, if sought.
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19 | (v) An order placing the mortgagee in possession or | ||||||
20 | appointing a receiver,
if sought.
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21 | (vi) A judgment for attorneys' fees, costs and | ||||||
22 | expenses, if sought.
| ||||||
23 | (b) Required Information. A foreclosure complaint need | ||||||
24 | contain only such
statements and requests called for by the | ||||||
25 | form set forth in subsection (a) of
Section
15-1504 as may be |
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1 | appropriate for the relief sought. Such complaint may
be filed | ||||||
2 | as a counterclaim, may be joined with other counts or may | ||||||
3 | include
in the same count additional matters or a request for | ||||||
4 | any additional
relief permitted by Article
II of the Code of | ||||||
5 | Civil Procedure.
| ||||||
6 | (c) Allegations. The statements contained in a complaint in | ||||||
7 | the form
set forth in subsection (a) of Section 15-1504 are | ||||||
8 | deemed and construed to include
allegations as follows:
| ||||||
9 | (1) on the date indicated the obligor of the | ||||||
10 | indebtedness or other
obligations secured by the mortgage | ||||||
11 | was justly indebted in the amount of
the indicated original | ||||||
12 | indebtedness to the original mortgagee or payee of
the | ||||||
13 | mortgage note;
| ||||||
14 | (2) that the exhibits attached are true and correct | ||||||
15 | copies of the
mortgage and note and are incorporated and | ||||||
16 | made a part of the complaint by
express reference;
| ||||||
17 | (3) that the mortgagor was at the date indicated an | ||||||
18 | owner of the
interest in the real estate described in the | ||||||
19 | complaint and that as of that
date made, executed and | ||||||
20 | delivered the mortgage as security for the note or
other | ||||||
21 | obligations;
| ||||||
22 | (4) that the mortgage was recorded in the county in | ||||||
23 | which the mortgaged
real estate is located, on the date | ||||||
24 | indicated, in the book and page or as
the document number | ||||||
25 | indicated;
| ||||||
26 | (5) that defaults occurred as indicated;
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1 | (6) that at the time of the filing of the complaint the | ||||||
2 | persons named as
present owners are the owners of the | ||||||
3 | indicated interests in and to the real
estate described;
| ||||||
4 | (7) that the mortgage constitutes a valid, prior and | ||||||
5 | paramount lien upon
the indicated interest in the mortgaged | ||||||
6 | real estate, which lien is prior and
superior to the right, | ||||||
7 | title, interest, claim or lien of all parties and
nonrecord | ||||||
8 | claimants whose interests in the mortgaged real estate are
| ||||||
9 | sought to be terminated;
| ||||||
10 | (8) that by reason of the defaults alleged, if the | ||||||
11 | indebtedness has not
matured by its terms, the same has | ||||||
12 | become due by the exercise, by the
plaintiff or other | ||||||
13 | persons having such power, of a right or power to
declare | ||||||
14 | immediately due and payable the whole of all indebtedness | ||||||
15 | secured
by the mortgage;
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16 | (9) that any and all notices of default or election to | ||||||
17 | declare the
indebtedness due and payable or other notices | ||||||
18 | required to be given have
been duly and properly given;
| ||||||
19 | (10) that any and all periods of grace or other period | ||||||
20 | of time allowed
for the performance of the covenants or | ||||||
21 | conditions claimed to be breached
or for the curing of any | ||||||
22 | breaches have expired;
| ||||||
23 | (11) that the amounts indicated in the statement
in the | ||||||
24 | complaint are correctly stated and
if such statement | ||||||
25 | indicates any advances made or to be made by the
plaintiff | ||||||
26 | or owner of the mortgage indebtedness, that such advances |
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1 | were,
in fact, made or will be
required to be made, and | ||||||
2 | under and by virtue of the mortgage the same
constitute | ||||||
3 | additional indebtedness secured by the mortgage; and
| ||||||
4 | (12) that, upon confirmation of the sale, the holder of | ||||||
5 | the certificate
of sale or deed issued pursuant to that | ||||||
6 | certificate or, if no certificate or
deed was issued, the | ||||||
7 | purchaser at the sale will be entitled to full possession
| ||||||
8 | of the mortgaged real estate against the parties
named in | ||||||
9 | clause (T) of
paragraph (3) of subsection (a) of Section | ||||||
10 | 15-1504 or elsewhere to the same
effect;
the omission of | ||||||
11 | any
party indicates that plaintiff will not seek a | ||||||
12 | possessory order in the order
confirming sale unless the | ||||||
13 | request is subsequently made under subsection (h) of
| ||||||
14 | Section 15-1701 or by separate action under Article 9 of | ||||||
15 | this Code.
| ||||||
16 | (d) Request for Fees and Costs. A statement in the | ||||||
17 | complaint that
plaintiff seeks the inclusion of attorneys' fees | ||||||
18 | and of costs and expenses
shall be deemed and construed to | ||||||
19 | include allegations that:
| ||||||
20 | (1) plaintiff has been compelled to employ and retain | ||||||
21 | attorneys to
prepare and file the complaint and to | ||||||
22 | represent and advise the plaintiff in
the foreclosure of | ||||||
23 | the mortgage and the plaintiff will thereby become
liable | ||||||
24 | for the usual, reasonable and customary fees of the | ||||||
25 | attorneys in
that behalf;
| ||||||
26 | (2) that the plaintiff has been compelled to advance or |
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1 | will be
compelled to advance, various sums of money in | ||||||
2 | payment of costs, fees,
expenses and disbursements | ||||||
3 | incurred in connection with the foreclosure,
including, | ||||||
4 | without limiting the generality of the foregoing, filing | ||||||
5 | fees,
stenographer's fees, witness fees, costs of | ||||||
6 | publication, costs of procuring
and preparing documentary | ||||||
7 | evidence and costs of procuring
abstracts of title, Torrens | ||||||
8 | certificates, foreclosure minutes and a title
insurance | ||||||
9 | policy;
| ||||||
10 | (3) that under the terms of the mortgage, all such | ||||||
11 | advances, costs,
attorneys' fees and other fees, expenses | ||||||
12 | and disbursements are made a lien
upon the mortgaged real | ||||||
13 | estate and the plaintiff is entitled to recover all
such | ||||||
14 | advances, costs, attorneys' fees, expenses and | ||||||
15 | disbursements, together
with interest on all advances at | ||||||
16 | the rate provided in the mortgage, or, if
no rate is | ||||||
17 | provided therein, at the statutory judgment rate, from the
| ||||||
18 | date on which such advances are made;
| ||||||
19 | (4) that in order to protect the lien of the mortgage, | ||||||
20 | it may become
necessary for plaintiff to pay taxes and | ||||||
21 | assessments which have been or may
be levied upon the | ||||||
22 | mortgaged real estate;
| ||||||
23 | (5) that in order to protect and preserve the mortgaged | ||||||
24 | real estate, it
may also become necessary for the plaintiff | ||||||
25 | to pay liability (protecting
mortgagor and mortgagee), | ||||||
26 | fire and other hazard
insurance premiums on the mortgaged |
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| |||||||
1 | real estate, make such repairs
to the mortgaged real
estate | ||||||
2 | as may reasonably be deemed necessary for the proper | ||||||
3 | preservation
thereof, advance for costs to inspect the | ||||||
4 | mortgaged real estate or to
appraise it, or both, and | ||||||
5 | advance for premiums for pre-existing private or
| ||||||
6 | governmental mortgage insurance to the extent required | ||||||
7 | after a foreclosure
is commenced in order to keep such | ||||||
8 | insurance in force; and
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9 | (6) that under the terms of the mortgage, any money so | ||||||
10 | paid or expended
will become an additional indebtedness | ||||||
11 | secured by the mortgage and will bear
interest from the | ||||||
12 | date such monies are advanced at the rate provided in the
| ||||||
13 | mortgage, or, if no rate is provided, at the
statutory | ||||||
14 | judgment rate.
| ||||||
15 | (e) Request for Foreclosure. The request for foreclosure is | ||||||
16 | deemed and
construed to mean that the plaintiff requests that:
| ||||||
17 | (1) an accounting may be taken under the direction of | ||||||
18 | the court of the
amounts due and owing to the plaintiff;
| ||||||
19 | (2) that the defendants be ordered to pay to the | ||||||
20 | plaintiff before
expiration of any redemption period (or, | ||||||
21 | if no redemption period, before a
short date fixed by the | ||||||
22 | court) whatever sums may appear to be due upon the taking
| ||||||
23 | of such account,
together with attorneys' fees and costs of | ||||||
24 | the proceedings (to the extent
provided in the mortgage or | ||||||
25 | by law);
| ||||||
26 | (3) that in default of such payment in accordance with |
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| |||||||
1 | the judgment, the
mortgaged real estate be sold as directed | ||||||
2 | by the court, to satisfy the
amount due to the plaintiff as | ||||||
3 | set forth in the judgment, together with the
interest | ||||||
4 | thereon at the statutory judgment rate from the date of the | ||||||
5 | judgment;
| ||||||
6 | (4) that in the event the plaintiff is a purchaser of | ||||||
7 | the mortgaged real
estate at such sale, the plaintiff may | ||||||
8 | offset against the purchase price of
such real estate the | ||||||
9 | amounts due under the judgment of foreclosure and
order | ||||||
10 | confirming the sale;
| ||||||
11 | (5) that in the event of such sale and the failure of | ||||||
12 | any person entitled
thereto to redeem prior to such sale | ||||||
13 | pursuant to this Article, the
defendants made parties to | ||||||
14 | the foreclosure in accordance with this Article,
and all | ||||||
15 | nonrecord claimants given notice of the foreclosure in | ||||||
16 | accordance
with this Article, and all persons claiming by, | ||||||
17 | through or under them, and
each and any and all of them, | ||||||
18 | may be forever barred and foreclosed of any
right, title, | ||||||
19 | interest, claim, lien, or right to redeem in and to the
| ||||||
20 | mortgaged real estate; and
| ||||||
21 | (6) that if no redemption is made prior to such sale, a | ||||||
22 | deed may be
issued to the purchaser thereat according to | ||||||
23 | law and such purchaser be let
into possession of the | ||||||
24 | mortgaged real estate in accordance with Part 17 of this | ||||||
25 | Article.
| ||||||
26 | (f) Request for Deficiency Judgment. A request for a |
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| |||||||
1 | personal judgment
for a deficiency in a foreclosure complaint | ||||||
2 | if the sale of the mortgaged
real estate fails to produce a | ||||||
3 | sufficient amount to pay the amount found
due, the plaintiff | ||||||
4 | may have a personal judgment against any party in the
| ||||||
5 | foreclosure indicated as being personally liable therefor and | ||||||
6 | the enforcement
thereof be had as provided by law.
| ||||||
7 | (g) Request for Possession or Receiver. A request for | ||||||
8 | possession or appointment
of a receiver has the meaning as | ||||||
9 | stated in subsection (b) of Section 15-1706.
| ||||||
10 | (h) Answers by Parties. Any party
may assert its interest | ||||||
11 | by counterclaim and such counterclaim may at the
option of that | ||||||
12 | party stand in lieu of answer to the complaint for
foreclosure | ||||||
13 | and all counter complaints previously or thereafter filed
in | ||||||
14 | the foreclosure. Any such counterclaim shall be deemed to | ||||||
15 | constitute a
statement that the counter claimant does not have | ||||||
16 | sufficient knowledge to
form a belief as to the truth or | ||||||
17 | falsity of the
allegations of the complaint and all other | ||||||
18 | counterclaims, except
to the extent that the counterclaim | ||||||
19 | admits or specifically denies such
allegations.
| ||||||
20 | (Source: P.A. 91-357, eff. 7-29-99.)
| ||||||
21 | (735 ILCS 5/15-1506) (from Ch. 110, par. 15-1506)
| ||||||
22 | Sec. 15-1506. Judgment. (a) Evidence. In the trial of a | ||||||
23 | foreclosure, the evidence to support the
allegations of the | ||||||
24 | complaint shall be taken in open court, except:
| ||||||
25 | (1) where an allegation of fact in the complaint is not |
| |||||||
| |||||||
1 | denied by a
party's verified answer or verified counterclaim, | ||||||
2 | or where a party pursuant
to subsection (b) of Section 2-610 of | ||||||
3 | the Code of Civil Procedure states,
or is deemed to have | ||||||
4 | stated, in
its pleading that it has no knowledge
of such | ||||||
5 | allegation sufficient to form a belief and attaches the | ||||||
6 | required
affidavit, a sworn verification of the complaint or a | ||||||
7 | separate affidavit
setting forth such fact is sufficient | ||||||
8 | evidence thereof against such party
and no further evidence of | ||||||
9 | such fact shall be required; and
| ||||||
10 | (2) where all the allegations of fact in the complaint have | ||||||
11 | been proved
by verification of the complaint or affidavit, the | ||||||
12 | court upon motion
supported by an affidavit stating the amount | ||||||
13 | which is due the mortgagee, may
shall enter a judgment of | ||||||
14 | foreclosure as requested in the complaint.
| ||||||
15 | (b) Instruments. In all cases the evidence of who the legal | ||||||
16 | holder of the indebtedness is, the indebtedness itself, and the
| ||||||
17 | mortgage foreclosed shall be exhibited to the court and | ||||||
18 | appropriately
marked, and copies thereof shall be filed with | ||||||
19 | the court.
| ||||||
20 | (c) Summary and Default Judgments. Nothing in this Section | ||||||
21 | 15-1506
shall prevent a party from obtaining a summary or | ||||||
22 | default judgment
authorized by Article II of the Code of Civil | ||||||
23 | Procedure.
| ||||||
24 | (d) Notice of Entry of Default. When any judgment in a | ||||||
25 | foreclosure is
entered by default, notice of such judgment | ||||||
26 | shall be given in accordance
with Section 2-1302 of the Code of |
| |||||||
| |||||||
1 | Civil Procedure.
| ||||||
2 | (e) Matters Required in Judgment. A judgment of foreclosure | ||||||
3 | shall
include the last date for redemption and all rulings of | ||||||
4 | the court entered
with respect to each request for relief set | ||||||
5 | forth in the complaint. If the plaintiff in the action is not | ||||||
6 | the original mortgagee, a judgment of foreclosure shall make | ||||||
7 | specific findings of fact concerning the capacity in which the | ||||||
8 | plaintiff brought the foreclosure action (legal holder of the | ||||||
9 | indebtedness or the trustee under a trust deed) and a | ||||||
10 | determination of whether this capacity legally entitles the | ||||||
11 | plaintiff to bring the action. The
omission of the date for | ||||||
12 | redemption shall not extend the time for
redemption or impair | ||||||
13 | the validity of the judgment.
| ||||||
14 | (f) Special Matters in Judgment. Without limiting the | ||||||
15 | general
authority and powers of the court, special matters may | ||||||
16 | be included in the
judgment of foreclosure if sought by a party | ||||||
17 | in the complaint or by separate
motion. Such matters may | ||||||
18 | include, without limitation:
| ||||||
19 | (1) a manner of sale other than public auction;
| ||||||
20 | (2) a sale by sealed bid;
| ||||||
21 | (3) an official or other person who shall be the officer to
| ||||||
22 | conduct the sale other than the one customarily designated by | ||||||
23 | the court;
| ||||||
24 | (4) provisions for non-exclusive broker listings or | ||||||
25 | designating a duly
licensed real estate broker nominated by one | ||||||
26 | of the parties to exclusively
list the real estate for sale;
|
| |||||||
| |||||||
1 | (5) the fees or commissions to be paid out of the sale | ||||||
2 | proceeds to the
listing or other duly licensed broker, if any, | ||||||
3 | who shall have procured the accepted bid;
| ||||||
4 | (6) the fees to be paid out of the sale proceeds to an | ||||||
5 | auctioneer, if
any, who shall have been authorized to conduct a | ||||||
6 | public auction sale;
| ||||||
7 | (7) whether and in what manner and with what content signs | ||||||
8 | shall be
posted on the real estate;
| ||||||
9 | (8) a particular time and place at which such bids shall be | ||||||
10 | received;
| ||||||
11 | (9) a particular newspaper or newspapers in which notice of
| ||||||
12 | sale shall be published;
| ||||||
13 | (10) the format for the advertising of such sale,
including | ||||||
14 | the size, content
and format of such advertising, and | ||||||
15 | additional advertising of such sale;
| ||||||
16 | (11) matters or exceptions to which title in the real | ||||||
17 | estate may be subject
at the sale;
| ||||||
18 | (12) a requirement that title insurance in a specified form | ||||||
19 | be provided
to a purchaser at the sale, and who shall pay for | ||||||
20 | such insurance;
| ||||||
21 | (13) whether and to what extent bids with mortgage or other
| ||||||
22 | contingencies will be allowed;
| ||||||
23 | (14) such other matters as approved by the court to ensure | ||||||
24 | sale of the
real estate for the most commercially favorable | ||||||
25 | price for the type of real
estate involved.
| ||||||
26 | (g) Agreement of the Parties. If all of the parties agree |
| |||||||
| |||||||
1 | in writing on
the minimum price and that the real estate may be | ||||||
2 | sold to the first person
who offers in writing to purchase the | ||||||
3 | real estate for such price, and on
such other commercially | ||||||
4 | reasonable terms and conditions as the parties may
agree, then | ||||||
5 | the court shall order the real estate to be sold on such terms,
| ||||||
6 | subject to confirmation of the sale in accordance with Section | ||||||
7 | 15-1508.
| ||||||
8 | (h) Postponement of Proving Priority. With the approval of | ||||||
9 | the court
prior to the entry of the judgment of foreclosure, a | ||||||
10 | party claiming an
interest in the proceeds of the sale of the | ||||||
11 | mortgaged real estate may defer
proving the priority of such | ||||||
12 | interest until the hearing to confirm the sale.
| ||||||
13 | (i) Effect of Judgment and Lien.
(1) Upon the entry of the | ||||||
14 | judgment of foreclosure, all rights of a party
in the | ||||||
15 | foreclosure against the mortgagor provided for in the judgment | ||||||
16 | of foreclosure
or this Article shall be secured by a lien on | ||||||
17 | the mortgaged
real estate, which lien shall have the same | ||||||
18 | priority as the claim to
which the judgment relates and shall | ||||||
19 | be terminated upon confirmation of a judicial
sale in | ||||||
20 | accordance with this Article.
| ||||||
21 | (2) Upon the entry of the judgment of foreclosure, the | ||||||
22 | rights in the
real estate subject to the judgment of | ||||||
23 | foreclosure of (i) all persons made
a party in the foreclosure | ||||||
24 | and (ii) all nonrecord claimants given notice in
accordance | ||||||
25 | with paragraph (2) of subsection (c) of Section 15-1502, shall
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26 | be solely as provided for in
the judgment of foreclosure and in |
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1 | this Article.
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2 | (Source: P.A. 85-907.)
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3 | Section 99. Effective date. This Act takes effect upon | ||||||
4 | becoming law.
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