Sen. A. J. Wilhelmi
Filed: 4/23/2010
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1 | AMENDMENT TO HOUSE BILL 5055
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2 | AMENDMENT NO. ______. Amend House Bill 5055 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 15-1506 and 15-1507 as follows: | ||||||
6 | (735 ILCS 5/15-1506) (from Ch. 110, par. 15-1506) | ||||||
7 | Sec. 15-1506. Judgment. (a) Evidence. In the trial of a | ||||||
8 | foreclosure, the evidence to support the
allegations of the | ||||||
9 | complaint shall be taken in open court, except: | ||||||
10 | (1) where an allegation of fact in the complaint is not | ||||||
11 | denied by a
party's verified answer or verified counterclaim, | ||||||
12 | or where a party pursuant
to subsection (b) of Section 2-610 of | ||||||
13 | the Code of Civil Procedure states,
or is deemed to have | ||||||
14 | stated, in
its pleading that it has no knowledge
of such | ||||||
15 | allegation sufficient to form a belief and attaches the | ||||||
16 | required
affidavit, a sworn verification of the complaint or a |
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1 | separate affidavit
setting forth such fact is sufficient | ||||||
2 | evidence thereof against such party
and no further evidence of | ||||||
3 | such fact shall be required; and | ||||||
4 | (2) where all the allegations of fact in the complaint have | ||||||
5 | been proved
by verification of the complaint or affidavit, the | ||||||
6 | court upon motion
supported by an affidavit stating the amount | ||||||
7 | which is due the mortgagee,
shall enter a judgment of | ||||||
8 | foreclosure as requested in the complaint. | ||||||
9 | (b) Instruments. In all cases the evidence of the | ||||||
10 | indebtedness and the
mortgage foreclosed shall be exhibited to | ||||||
11 | the court and appropriately
marked, and copies thereof shall be | ||||||
12 | filed with the court. | ||||||
13 | (c) Summary and Default Judgments. Nothing in this Section | ||||||
14 | 15-1506
shall prevent a party from obtaining a summary or | ||||||
15 | default judgment
authorized by Article II of the Code of Civil | ||||||
16 | Procedure. | ||||||
17 | (d) Notice of Entry of Default. When any judgment in a | ||||||
18 | foreclosure is
entered by default, notice of such judgment | ||||||
19 | shall be given in accordance
with Section 2-1302 of the Code of | ||||||
20 | Civil Procedure. | ||||||
21 | (e) Matters Required in Judgment. A judgment of foreclosure | ||||||
22 | shall
include the last date for redemption and all rulings of | ||||||
23 | the court entered
with respect to each request for relief set | ||||||
24 | forth in the complaint. The
omission of the date for redemption | ||||||
25 | shall not extend the time for
redemption or impair the validity | ||||||
26 | of the judgment. |
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1 | (f) Special Matters in Judgment. Without limiting the | ||||||
2 | general
authority and powers of the court, special matters may | ||||||
3 | be included in the
judgment of foreclosure if sought by a party | ||||||
4 | in the complaint or by separate
motion brought by a party . Such | ||||||
5 | matters may include, without limitation: | ||||||
6 | (1) a manner of sale other than public auction; | ||||||
7 | (2) a sale by sealed bid; | ||||||
8 | (3) the an official or other person who shall be the | ||||||
9 | officer to
conduct the sale other than the one customarily | ||||||
10 | designated by the court ; | ||||||
11 | (4) provisions for non-exclusive broker listings or | ||||||
12 | designating a duly
licensed real estate broker nominated by one | ||||||
13 | of the parties to exclusively
list the real estate for sale; | ||||||
14 | (5) the fees or commissions to be paid out of the sale | ||||||
15 | proceeds to the
listing or other duly licensed broker, if any, | ||||||
16 | who shall have procured the accepted bid; | ||||||
17 | (6) the fees to be paid out of the sale proceeds to an | ||||||
18 | auctioneer, if
any, who shall have been authorized to conduct a | ||||||
19 | public auction sale; | ||||||
20 | (7) whether and in what manner and with what content signs | ||||||
21 | shall be
posted on the real estate; | ||||||
22 | (8) a particular time and place at which such bids shall be | ||||||
23 | received; | ||||||
24 | (9) a particular newspaper or newspapers in which notice of
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25 | sale shall be published; | ||||||
26 | (10) the format for the advertising of such sale,
including |
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1 | the size, content
and format of such advertising, and | ||||||
2 | additional advertising of such sale; | ||||||
3 | (11) matters or exceptions to which title in the real | ||||||
4 | estate may be subject
at the sale; | ||||||
5 | (12) a requirement that title insurance in a specified form | ||||||
6 | be provided
to a purchaser at the sale, and who shall pay for | ||||||
7 | such insurance; | ||||||
8 | (13) whether and to what extent bids with mortgage or other
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9 | contingencies will be allowed; | ||||||
10 | (14) such other matters as approved by the court to ensure | ||||||
11 | sale of the
real estate for the most commercially favorable | ||||||
12 | price for the type of real
estate involved. | ||||||
13 | (g) Agreement of the Parties. If all of the parties agree | ||||||
14 | in writing on
the minimum price and that the real estate may be | ||||||
15 | sold to the first person
who offers in writing to purchase the | ||||||
16 | real estate for such price, and on
such other commercially | ||||||
17 | reasonable terms and conditions as the parties may
agree, then | ||||||
18 | the court shall order the real estate to be sold on such terms,
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19 | subject to confirmation of the sale in accordance with Section | ||||||
20 | 15-1508. | ||||||
21 | (h) Postponement of Proving Priority. With the approval of | ||||||
22 | the court
prior to the entry of the judgment of foreclosure, a | ||||||
23 | party claiming an
interest in the proceeds of the sale of the | ||||||
24 | mortgaged real estate may defer
proving the priority of such | ||||||
25 | interest until the hearing to confirm the sale. | ||||||
26 | (i) Effect of Judgment and Lien.
(1) Upon the entry of the |
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1 | judgment of foreclosure, all rights of a party
in the | ||||||
2 | foreclosure against the mortgagor provided for in the judgment | ||||||
3 | of foreclosure
or this Article shall be secured by a lien on | ||||||
4 | the mortgaged
real estate, which lien shall have the same | ||||||
5 | priority as the claim to
which the judgment relates and shall | ||||||
6 | be terminated upon confirmation of a judicial
sale in | ||||||
7 | accordance with this Article. | ||||||
8 | (2) Upon the entry of the judgment of foreclosure, the | ||||||
9 | rights in the
real estate subject to the judgment of | ||||||
10 | foreclosure of (i) all persons made
a party in the foreclosure | ||||||
11 | and (ii) all nonrecord claimants given notice in
accordance | ||||||
12 | with paragraph (2) of subsection (c) of Section 15-1502, shall
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13 | be solely as provided for in
the judgment of foreclosure and in | ||||||
14 | this Article. | ||||||
15 | (Source: P.A. 85-907.) | ||||||
16 | (735 ILCS 5/15-1507) (from Ch. 110, par. 15-1507) | ||||||
17 | Sec. 15-1507. Judicial Sale. | ||||||
18 | (a) In General. Except as provided in
Sections 15-1402 and | ||||||
19 | 15-1403, upon entry of a judgment of foreclosure, the
real | ||||||
20 | estate which is the subject of the judgment shall be sold at a
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21 | judicial sale in accordance with this Section 15-1507. | ||||||
22 | (b) Sale Procedures. Upon expiration of the reinstatement | ||||||
23 | period and
the redemption period in accordance with subsection | ||||||
24 | (b) or (c) of Section
15-1603 or upon the entry of a judgment | ||||||
25 | of foreclosure after the waiver of
all rights of redemption, |
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1 | except as provided in subsection (g) of Section
15-1506, the | ||||||
2 | real estate shall be sold at a sale as provided in this
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3 | Article, on such terms and conditions as shall be specified by | ||||||
4 | the court in
the judgment of foreclosure. In the absence of an | ||||||
5 | appointment made pursuant to a motion under subsection (f) of | ||||||
6 | Section 15-1506, the person conducting the sale shall be chosen | ||||||
7 | by the plaintiff and shall be (i) any person who had been | ||||||
8 | appointed pursuant to Section 15-1506 by any circuit court in | ||||||
9 | any matter prior to the effective date of this amendatory Act | ||||||
10 | of the 96th General Assembly, (ii) any judge, or (iii) the | ||||||
11 | sheriff of the county in which the real estate is located. A | ||||||
12 | sale may be conducted by any judge or sheriff. | ||||||
13 | (c) Notice of Sale. The mortgagee, or such other party | ||||||
14 | designated by the
court, in a foreclosure under this Article | ||||||
15 | shall give public notice of the
sale as follows: | ||||||
16 | (1) The notice of sale shall include at least the | ||||||
17 | following information,
but an immaterial error in the | ||||||
18 | information shall not invalidate the legal
effect of the | ||||||
19 | notice: | ||||||
20 | (A) the name, address and telephone number of the | ||||||
21 | person to contact for
information regarding the real | ||||||
22 | estate; | ||||||
23 | (B) the common address and other common | ||||||
24 | description (other than legal
description), if any, of | ||||||
25 | the real estate; | ||||||
26 | (C) a legal description of the real estate |
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1 | sufficient to identify it with
reasonable certainty; | ||||||
2 | (D) a description of the improvements on the real | ||||||
3 | estate; | ||||||
4 | (E) the times specified in the judgment, if any, | ||||||
5 | when the real estate
may be inspected prior to sale; | ||||||
6 | (F) the time and place of the sale; | ||||||
7 | (G) the terms of the sale; | ||||||
8 | (H) the case title, case number and the court in | ||||||
9 | which
the foreclosure was filed; | ||||||
10 | (H-1) in the case of a condominium unit to which | ||||||
11 | subsection (g) of Section 9 of the Condominium Property | ||||||
12 | Act applies, the statement required by subdivision | ||||||
13 | (g)(5) of Section 9 of the Condominium Property Act; | ||||||
14 | and
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15 | (I) such other information ordered by the Court. | ||||||
16 | (2) The notice of sale shall be published at least 3 | ||||||
17 | consecutive
calendar weeks (Sunday through Saturday), once | ||||||
18 | in each week, the first such
notice to be published not | ||||||
19 | more than 45 days prior to the sale, the last
such notice | ||||||
20 | to be published not less than 7 days prior to the sale, by:
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21 | (i) (A) advertisements in a newspaper circulated to the | ||||||
22 | general public
in the county in which the real estate is | ||||||
23 | located, in the section of that
newspaper where legal | ||||||
24 | notices are commonly placed and (B) separate
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25 | advertisements in the section of such a newspaper, which | ||||||
26 | (except in
counties with a population in excess of |
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1 | 3,000,000) may be the same
newspaper, in which real estate | ||||||
2 | other than real estate being sold as part of
legal | ||||||
3 | proceedings is commonly advertised to the general public; | ||||||
4 | provided,
that the separate advertisements in the real | ||||||
5 | estate section need not
include a legal description and | ||||||
6 | that where both advertisements could be
published in the | ||||||
7 | same newspaper and that newspaper does not have separate
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8 | legal notices and real estate advertisement sections, a | ||||||
9 | single
advertisement with the legal description shall be | ||||||
10 | sufficient; and
(ii) such other publications as may be | ||||||
11 | further ordered by the court. | ||||||
12 | (3) The party who gives notice of public sale in | ||||||
13 | accordance with
subsection (c) of Section 15-1507 shall | ||||||
14 | also give notice to all parties in
the action who have | ||||||
15 | appeared and have not theretofore been found by the
court | ||||||
16 | to be in default for failure to plead. Such notice shall be | ||||||
17 | given in
the manner provided in the applicable rules of | ||||||
18 | court for service of papers
other than process and | ||||||
19 | complaint, not more than 45 days nor less
than 7
days prior | ||||||
20 | to the day of sale. After notice is given as required in | ||||||
21 | this
Section a copy thereof shall be filed in the office of | ||||||
22 | the clerk of the
court entering the judgment, together with | ||||||
23 | a certificate of counsel or
other proof that notice has | ||||||
24 | been served in compliance with this Section. | ||||||
25 | (4) The party who gives notice of public sale in | ||||||
26 | accordance with
subsection (c) of Section 15-1507 shall |
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1 | again give notice in accordance
with that Section of any | ||||||
2 | adjourned sale; provided, however, that if the
adjourned | ||||||
3 | sale is to occur less than 60 days after the last scheduled | ||||||
4 | sale,
notice of any adjourned sale need not be given | ||||||
5 | pursuant to this
Section. In the event of adjournment, the
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6 | person conducting the sale shall, upon adjournment, | ||||||
7 | announce the date, time
and place upon which the adjourned | ||||||
8 | sale shall be held. Notwithstanding any
language to the | ||||||
9 | contrary, for any adjourned sale that is to be conducted
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10 | more than 60 days after the date on which it was to first | ||||||
11 | be held, the
party giving notice of such sale shall again | ||||||
12 | give notice in accordance with
this Section. | ||||||
13 | (5) Notice of the sale may be given prior to the | ||||||
14 | expiration of any
reinstatement period or redemption | ||||||
15 | period. | ||||||
16 | (6) No other notice by publication or posting shall be | ||||||
17 | necessary unless
required by order or rule of the court. | ||||||
18 | (7) The person named in the notice of sale to be | ||||||
19 | contacted for
information about the real estate may, but | ||||||
20 | shall not be required, to
provide additional information | ||||||
21 | other than that set forth in the notice of sale. | ||||||
22 | (d) Election of Property. If the real estate which is the | ||||||
23 | subject of a
judgment of foreclosure is susceptible of | ||||||
24 | division, the court may order it to be sold
as necessary to | ||||||
25 | satisfy the judgment. The court shall determine which real
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26 | estate shall be sold, and the court may determine the order in |
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1 | which
separate tracts may be sold. | ||||||
2 | (e) Receipt upon Sale.
Upon and at the sale
of mortgaged | ||||||
3 | real estate, the person conducting the sale shall give to
the | ||||||
4 | purchaser a receipt of sale. The receipt shall describe the | ||||||
5 | real
estate purchased and shall show the amount bid, the amount | ||||||
6 | paid, the
total amount paid to
date and the amount still to be | ||||||
7 | paid therefor. An
additional receipt shall be given at the time | ||||||
8 | of each subsequent
payment. | ||||||
9 | (f) Certificate of Sale. Upon
payment in full of the amount | ||||||
10 | bid, the person conducting
the sale shall issue, in duplicate, | ||||||
11 | and give to the purchaser a Certificate
of Sale. The | ||||||
12 | Certificate of Sale shall be in a recordable form, describe
the | ||||||
13 | real estate purchased, indicate the date and place of sale and | ||||||
14 | show the
amount paid therefor. The Certificate of Sale shall | ||||||
15 | further indicate that
it is subject to confirmation by the | ||||||
16 | court. The duplicate certificate may
be recorded in accordance | ||||||
17 | with Section 12-121. The Certificate of Sale
shall be freely | ||||||
18 | assignable by endorsement thereon. | ||||||
19 | (g) Interest after Sale. Any bid at sale shall be deemed to | ||||||
20 | include,
without the necessity of a court order, interest at | ||||||
21 | the statutory judgment
rate on any unpaid portion of the sale | ||||||
22 | price from the date of sale to the
date of payment. | ||||||
23 | (Source: P.A. 94-1049, eff. 1-1-07.)
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24 | Section 99. Effective date. This Act takes effect upon | ||||||
25 | becoming law.".
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