HB6951 96TH GENERAL ASSEMBLY

LRB096 24381 AJO 44009 b

96TH GENERAL ASSEMBLY
State of Illinois
2009 and 2010
HB6951

Introduced , by Rep. Marlow H. Colvin

SYNOPSIS AS INTRODUCED:

735 ILCS 5/15-1502.10 new
735 ILCS 5/15-1504	from Ch. 110, par. 15-1504
735 ILCS 5/15-1506	from Ch. 110, par. 15-1506

Amends the Code of Civil Procedure. Provides that as a condition precedent to initiating foreclosure on residential real estate, a plaintiff shall comply with the requirements of any applicable federal, State, local, or contractual loss mitigation program, and if no program results in a modification of the mortgage, the plaintiff shall review the mortgage under the other programs utilized by the plaintiff. Provides that each affidavit filed in a foreclosure proceeding must include a detailed description of the affiant's claimed personal knowledge. Provides that if a note that is required to be attached to the foreclosure complaint is missing, the moving party must file a detailed affidavit about the efforts to locate the note and the note's terms and riders. Provides that each foreclosure complaint shall include a loss mitigation affidavit describing what steps, in any, were taken by the plaintiff to assess the mortgage loan's eligibility for modification under designated federal programs. Provides that a foreclosure judgment shall include a finding by the court that the plaintiff complied with applicable federal, State, or local loss mitigation requirements, or that there are no such applicable requirements. Provides that if the plaintiff has not complied with such a program that the proceedings shall be stayed until the court determines that the plaintiff has complied. Effective immediately.

A BILL FOR

AN ACT concerning civil law.

Be it enacted by the People of the State of Illinois, represented in the General Assembly:

Section 5. The Code of Civil Procedure is amended by adding Section 15-1502.10 and changing Sections 15-1504 and 15-1506 as follows:

(735 ILCS 5/15-1502.10 new)

Sec. 15-1502.10. Condition precedent to foreclosure on residential real estate.

(a) This Section applies only to a foreclosure of property that is residential real estate.

(b) As a condition precedent to initiating foreclosure pursuant to this Section, the plaintiff shall (i) comply with the requirements of any federal, State, local, or contractual loss mitigation programs that apply to the subject mortgage, including, but not limited to, those requirements pertaining to the federal Home Affordable Modification Program of the Making Home Affordable initiative of the Secretary of the Treasury, authorized under the Emergency Economic Stabilization Act of 2008 (Public Law 110-343) (HAMP); and (ii) if no federal, State, local, or contractual loss mitigation program applies to the subject mortgage, or if review under applicable federal, State, local, or contractual loss mitigation programs fails to result in a modification of the subject mortgage, review the subject mortgage for a loan modification under every other loss mitigation program utilized by plaintiff.

(735 ILCS 5/15-1504) (from Ch. 110, par. 15-1504)

Sec. 15-1504. Pleadings and service.

(a) Foundational requirements for affidavits. Every affidavit filed in a foreclosure proceeding shall include a detailed description of the basis of the affiant's claimed personal knowledge of the facts set forth in the affidavit, including:

(1) a statement of which specific data systems the affiant queried in preparing the affidavit, if the affiant queried data systems in preparing the affidavit;

(2) a detailed factual statement of the basis of the affiant's belief that each data system identified contained accurate information; and

(3) if applicable, a detailed description of the basis of the affiant's statement that the attached mortgage and note are true and correct.

(b) Lost note affidavit. A copy of the mortgage and note secured thereby shall be attached to the foreclosure complaint. If any note required to be attached to a complaint filed pursuant to this subsection (b) cannot be located for filing as an exhibit, the moving party shall file an affidavit stating the following:

(1) the reasonable efforts made by the moving party to obtain the note; and

(2) a description of the terms of the note and any riders attached thereto, including:

(A) date of execution;

(B) parties;

(C) amount;

(D) interest rate and, if applicable, the margin used to calculate the interest rate and the initial date of reset;

(E) if applicable, the existence of a prepayment penalty; and

(F) if applicable, the existence of a balloon payment.

Nothing in this subsection (b) shall be construed in derogation of the parties' rights established under Section 3-309 of the Uniform Commercial Code or any similar rights established under Illinois law.

(c) Loss mitigation affidavit. Every foreclosure complaint shall include, as an attachment, an affidavit stating:

(1) Which federal, State, local, or contractual loss mitigation programs apply to the subject mortgage.

(2) If applicable, that plaintiff has reviewed the mortgage loan for modification under the Home Affordable Modification Program of the Making Home Affordable initiative of the Secretary of the Treasury, authorized under the Emergency Economic Stabilization Act of 2008 (Public Law 110-343) (HAMP), the results of that review (including all borrower-related and mortgage-related input data used in any net present value analyses and any other information required to be provided to the mortgagor under the supplemental directives and other guidelines for HAMP), a record of all HAMP-related communications with the borrower, written or verbal, and, if applicable, the reasons that plaintiff's review resulted in a denial of a HAMP modification, including, as an attachment, a copy of the written Non-Approval Notice provided to the mortgagor, as required by U.S. Department of Treasury Supplemental Directive 09-08.

(3) If applicable, that plaintiff has not reviewed the mortgage loan for a HAMP modification, including the reasons that plaintiff did not conduct the review.

(4) That plaintiff has complied with the requirements of any other federal, State, local, or contractual loss mitigation programs that apply to the subject mortgage and the results of any analysis conducted under those programs.

(5) That plaintiff has complied with the requirements of Section 15-1502.5, the results of those efforts, and, if applicable, the reasons that plaintiff's efforts did not result in an agreed sustainable loan workout plan.

(6) A detailed description of all additional loss mitigation efforts made by plaintiff and the results thereof, including efforts to avoid foreclosure through a non-HAMP loan modification program, short sale, deed in lieu of foreclosure, or other alternative that is intended to simplify the mortgagor's relinquishment of ownership of the property, and, if applicable, an explanation for the denial of a loan modification or other loss mitigation.

(d) (a) Form of Complaint. A foreclosure complaint may be in substantially the following form:

(1) Plaintiff files this complaint to foreclose the mortgage (or other conveyance in the nature of a mortgage) (hereinafter called "mortgage") hereinafter described and joins the following person as defendants: (here insert names of all defendants).

(2) Attached as Exhibit "A" is a copy of the mortgage and as Exhibit "B" is a copy of the note secured thereby.

(3) Information concerning mortgage:

(A) Nature of instrument: (here insert whether a mortgage, trust deed or other instrument in the nature of a mortgage, etc.)

(B) Date of mortgage:

(C) Name of mortgagor:

(D) Name of current mortgagee, and, if different, name of original mortgagee:

(E) Date and place of recording:

(F) Identification of recording: (here insert book and page number or document number)

(G) Interest subject to the mortgage: (here insert whether fee simple, estate for years, undivided interest, etc.)

(H) Amount of original indebtedness, including an itemization of subsequent advances, fees, or additional charges, including force-placed insurance, made under the mortgage stating the purpose, payee, amount, and date of each:

(I) Both the legal description of the mortgaged real estate and the common address or other information sufficient to identify it with reasonable certainty:

(J) Statement as to defaults, including, but not necessarily limited to, date of default, current unpaid principal balance, per diem interest accruing, and any further information concerning the default:

(K) Each and every borrower payment made in the last 36 months, including amount and date, whether such payment was accepted or returned to the mortgagor, and how the payment was applied to the borrower's account (e.g., applied to principal or interest, or placed in suspense account):

(L) (K) Name of present owner of the real estate:

(M) (L) Names of other persons who are joined as defendants and whose interest in or lien on the mortgaged real estate is sought to be terminated:

(N) (M) Names of defendants claimed to be personally liable for deficiency, if any:

(O) (N) Capacity in which plaintiff brings this foreclosure (here indicate whether plaintiff is the legal holder of the indebtedness, a pledgee, an agent, the trustee under a trust deed or otherwise, as appropriate); attached as Exhibit "C" are copies of all documents, including endorsements, assignments, or transfers, that demonstrate that plaintiff is legally entitled to bring the foreclosure:

(P) (O) Facts in support of redemption period shorter than the longer of (i) 7 months from the date the mortgagor or, if more than one, all the mortgagors (I) have been served with summons or by publication or (II) have otherwise submitted to the jurisdiction of the court, or (ii) 3 months from the entry of the judgment of foreclosure, if sought (here indicate whether based upon the real estate not being residential, abandonment, or real estate value less than 90% of amount owed, etc.):

(Q) (P) Statement that the right of redemption has been waived by all owners of redemption, if applicable:

(R) (Q) Facts in support of request for attorneys' fees and of costs and expenses, if applicable:

(S) (R) Facts in support of a request for appointment of mortgagee in possession or for appointment of receiver, and identity of such receiver, if sought:

(T) (S) Offer to mortgagor in accordance with Section 15-1402 to accept title to the real estate in satisfaction of all indebtedness and obligations secured by the mortgage without judicial sale, if sought:

(U) (T) Name or names of defendants whose right to possess the mortgaged real estate, after the confirmation of a foreclosure sale, is sought to be terminated and, if not elsewhere stated, the facts in support thereof:

(V) Attached as Exhibit "D" is the Lost Mitigation Affidavit, as required by subsection (c) of this Section.

REQUEST FOR RELIEF

Plaintiff requests:

(i) A judgment of foreclosure and sale.

(ii) An order granting a shortened redemption period, if sought.

(iii) A personal judgment for a deficiency, if sought.

(iv) An order granting possession, if sought.

(v) An order placing the mortgagee in possession or appointing a receiver, if sought.

(vi) A judgment for attorneys' fees, costs and expenses, if sought.

(e) (b) Required Information. A foreclosure complaint need contain only such statements and requests called for by the form set forth in subsection (a) of Section 15-1504 as may be appropriate for the relief sought. Such complaint may be filed as a counterclaim, may be joined with other counts or may include in the same count additional matters or a request for any additional relief permitted by Article II of the Code of Civil Procedure.

(f) (c) Allegations. The statements contained in a complaint in the form set forth in subsection (a) of Section 15-1504 are deemed and construed to include allegations as follows:

(1) on the date indicated the obligor of the indebtedness or other obligations secured by the mortgage was justly indebted in the amount of the indicated original indebtedness to the original mortgagee or payee of the mortgage note;

(2) that the exhibits attached are true and correct copies of the mortgage and note and are incorporated and made a part of the complaint by express reference;

(3) that the mortgagor was at the date indicated an owner of the interest in the real estate described in the complaint and that as of that date made, executed and delivered the mortgage as security for the note or other obligations;

(4) that the mortgage was recorded in the county in which the mortgaged real estate is located, on the date indicated, in the book and page or as the document number indicated;

(5) that defaults occurred as indicated;

(6) that at the time of the filing of the complaint the persons named as present owners are the owners of the indicated interests in and to the real estate described;

(7) that the mortgage constitutes a valid, prior and paramount lien upon the indicated interest in the mortgaged real estate, which lien is prior and superior to the right, title, interest, claim or lien of all parties and nonrecord claimants whose interests in the mortgaged real estate are sought to be terminated;

(8) that by reason of the defaults alleged, if the indebtedness has not matured by its terms, the same has become due by the exercise, by the plaintiff or other persons having such power, of a right or power to declare immediately due and payable the whole of all indebtedness secured by the mortgage;

(9) that any and all notices of default or election to declare the indebtedness due and payable or other notices required to be given have been duly and properly given;

(10) that any and all periods of grace or other period of time allowed for the performance of the covenants or conditions claimed to be breached or for the curing of any breaches have expired;

(11) that the amounts indicated in the statement in the complaint are correctly stated and if such statement indicates any advances made or to be made by the plaintiff or owner of the mortgage indebtedness, that such advances were, in fact, made or will be required to be made, and under and by virtue of the mortgage the same constitute additional indebtedness secured by the mortgage; and

(12) that, upon confirmation of the sale, the holder of the certificate of sale or deed issued pursuant to that certificate or, if no certificate or deed was issued, the purchaser at the sale will be entitled to full possession of the mortgaged real estate against the parties named in clause (T) of paragraph (3) of subsection (a) of Section 15-1504 or elsewhere to the same effect; the omission of any party indicates that plaintiff will not seek a possessory order in the order confirming sale unless the request is subsequently made under subsection (h) of Section 15-1701 or by separate action under Article 9 of this Code.

(g) (d) Request for Fees and Costs. A statement in the complaint that plaintiff seeks the inclusion of attorneys' fees and of costs and expenses shall be deemed and construed to include allegations that:

(1) plaintiff has been compelled to employ and retain attorneys to prepare and file the complaint and to represent and advise the plaintiff in the foreclosure of the mortgage and the plaintiff will thereby become liable for the usual, reasonable and customary fees of the attorneys in that behalf;

(2) that the plaintiff has been compelled to advance or will be compelled to advance, various sums of money in payment of costs, fees, expenses and disbursements incurred in connection with the foreclosure, including, without limiting the generality of the foregoing, filing fees, stenographer's fees, witness fees, costs of publication, costs of procuring and preparing documentary evidence and costs of procuring abstracts of title, Torrens certificates, foreclosure minutes and a title insurance policy;

(3) that under the terms of the mortgage, all such advances, costs, attorneys' fees and other fees, expenses and disbursements are made a lien upon the mortgaged real estate and the plaintiff is entitled to recover all such advances, costs, attorneys' fees, expenses and disbursements, together with interest on all advances at the rate provided in the mortgage, or, if no rate is provided therein, at the statutory judgment rate, from the date on which such advances are made;

(4) that in order to protect the lien of the mortgage, it may become necessary for plaintiff to pay taxes and assessments which have been or may be levied upon the mortgaged real estate;

(5) that in order to protect and preserve the mortgaged real estate, it may also become necessary for the plaintiff to pay liability (protecting mortgagor and mortgagee), fire and other hazard insurance premiums on the mortgaged real estate, make such repairs to the mortgaged real estate as may reasonably be deemed necessary for the proper preservation thereof, advance for costs to inspect the mortgaged real estate or to appraise it, or both, and advance for premiums for pre-existing private or governmental mortgage insurance to the extent required after a foreclosure is commenced in order to keep such insurance in force; and

(6) that under the terms of the mortgage, any money so paid or expended will become an additional indebtedness secured by the mortgage and will bear interest from the date such monies are advanced at the rate provided in the mortgage, or, if no rate is provided, at the statutory judgment rate.

(h) (e) Request for Foreclosure. The request for foreclosure is deemed and construed to mean that the plaintiff requests that:

(1) an accounting may be taken under the direction of the court of the amounts due and owing to the plaintiff;

(2) that the defendants be ordered to pay to the plaintiff before expiration of any redemption period (or, if no redemption period, before a short date fixed by the court) whatever sums may appear to be due upon the taking of such account, together with attorneys' fees and costs of the proceedings (to the extent provided in the mortgage or by law);

(3) that in default of such payment in accordance with the judgment, the mortgaged real estate be sold as directed by the court, to satisfy the amount due to the plaintiff as set forth in the judgment, together with the interest thereon at the statutory judgment rate from the date of the judgment;

(4) that in the event the plaintiff is a purchaser of the mortgaged real estate at such sale, the plaintiff may offset against the purchase price of such real estate the amounts due under the judgment of foreclosure and order confirming the sale;

(5) that in the event of such sale and the failure of any person entitled thereto to redeem prior to such sale pursuant to this Article, the defendants made parties to the foreclosure in accordance with this Article, and all nonrecord claimants given notice of the foreclosure in accordance with this Article, and all persons claiming by, through or under them, and each and any and all of them, may be forever barred and foreclosed of any right, title, interest, claim, lien, or right to redeem in and to the mortgaged real estate; and

(6) that if no redemption is made prior to such sale, a deed may be issued to the purchaser thereat according to law and such purchaser be let into possession of the mortgaged real estate in accordance with Part 17 of this Article.

(i) (f) Request for Deficiency Judgment. A request for a personal judgment for a deficiency in a foreclosure complaint if the sale of the mortgaged real estate fails to produce a sufficient amount to pay the amount found due, the plaintiff may have a personal judgment against any party in the foreclosure indicated as being personally liable therefor and the enforcement thereof be had as provided by law.

(j) (g) Request for Possession or Receiver. A request for possession or appointment of a receiver has the meaning as stated in subsection (b) of Section 15-1706.

(k) (h) Answers by Parties. Any party may assert its interest by counterclaim and such counterclaim may at the option of that party stand in lieu of answer to the complaint for foreclosure and all counter complaints previously or thereafter filed in the foreclosure. Any such counterclaim shall be deemed to constitute a statement that the counter claimant does not have sufficient knowledge to form a belief as to the truth or falsity of the allegations of the complaint and all other counterclaims, except to the extent that the counterclaim admits or specifically denies such allegations.

(Source: P.A. 91-357, eff. 7-29-99.)

(735 ILCS 5/15-1506) (from Ch. 110, par. 15-1506)

Sec. 15-1506. Judgment. (a) Evidence. In the trial of a foreclosure, the evidence to support the allegations of the complaint shall be taken in open court, except:

(1) where an allegation of fact in the complaint is not denied by a party's verified answer or verified counterclaim, or where a party pursuant to subsection (b) of Section 2-610 of the Code of Civil Procedure states, or is deemed to have stated, in its pleading that it has no knowledge of such allegation sufficient to form a belief and attaches the required affidavit, a sworn verification of the complaint or a separate affidavit setting forth such fact is sufficient evidence thereof against such party and no further evidence of such fact shall be required; and

(2) where all the allegations of fact in the complaint have been proved by verification of the complaint or affidavit, the court upon motion supported by an affidavit stating the amount which is due the mortgagee, may shall enter a judgment of foreclosure as requested in the complaint.

(b) Instruments. In all cases the evidence of the indebtedness and the mortgage foreclosed shall be exhibited to the court and appropriately marked, and copies thereof shall be filed with the court.

(c) Summary and Default Judgments. Nothing in this Section 15-1506 shall prevent a party from obtaining a summary or default judgment authorized by Article II of the Code of Civil Procedure.

(d) Notice of Entry of Default. When any judgment in a foreclosure is entered by default, notice of such judgment shall be given in accordance with Section 2-1302 of the Code of Civil Procedure.

(e) Matters Required in Judgment. A judgment of foreclosure shall include the last date for redemption and all rulings of the court entered with respect to each request for relief set forth in the complaint. If the plaintiff in the action is not the original mortgagee, a judgment of foreclosure shall make specific findings of fact concerning the capacity in which the plaintiff brought the foreclosure action and a determination of whether this capacity legally entitles the plaintiff to bring the action. The judgment shall also include a finding by the court that: (i) the plaintiff has complied with any applicable federal, State, or local loss mitigation requirements; or (ii) there are no applicable federal, State, or local loss mitigation requirements. If the court determines that the plaintiff has not complied with applicable loss mitigation requirements, the court shall stay the matter until the court determines that the plaintiff has complied with those requirements. The omission of the date for redemption shall not extend the time for redemption or impair the validity of the judgment.

(f) Special Matters in Judgment. Without limiting the general authority and powers of the court, special matters may be included in the judgment of foreclosure if sought by a party in the complaint or by separate motion. Such matters may include, without limitation:

(1) a manner of sale other than public auction;

(2) a sale by sealed bid;

(3) an official or other person who shall be the officer to conduct the sale other than the one customarily designated by the court;

(4) provisions for non-exclusive broker listings or designating a duly licensed real estate broker nominated by one of the parties to exclusively list the real estate for sale;

(5) the fees or commissions to be paid out of the sale proceeds to the listing or other duly licensed broker, if any, who shall have procured the accepted bid;

(6) the fees to be paid out of the sale proceeds to an auctioneer, if any, who shall have been authorized to conduct a public auction sale;

(7) whether and in what manner and with what content signs shall be posted on the real estate;

(8) a particular time and place at which such bids shall be received;

(9) a particular newspaper or newspapers in which notice of sale shall be published;

(10) the format for the advertising of such sale, including the size, content and format of such advertising, and additional advertising of such sale;

(11) matters or exceptions to which title in the real estate may be subject at the sale;

(12) a requirement that title insurance in a specified form be provided to a purchaser at the sale, and who shall pay for such insurance;

(13) whether and to what extent bids with mortgage or other contingencies will be allowed;

(14) such other matters as approved by the court to ensure sale of the real estate for the most commercially favorable price for the type of real estate involved.

(g) Agreement of the Parties. If all of the parties agree in writing on the minimum price and that the real estate may be sold to the first person who offers in writing to purchase the real estate for such price, and on such other commercially reasonable terms and conditions as the parties may agree, then the court shall order the real estate to be sold on such terms, subject to confirmation of the sale in accordance with Section 15-1508.

(h) Postponement of Proving Priority. With the approval of the court prior to the entry of the judgment of foreclosure, a party claiming an interest in the proceeds of the sale of the mortgaged real estate may defer proving the priority of such interest until the hearing to confirm the sale.

(i) Effect of Judgment and Lien. (1) Upon the entry of the judgment of foreclosure, all rights of a party in the foreclosure against the mortgagor provided for in the judgment of foreclosure or this Article shall be secured by a lien on the mortgaged real estate, which lien shall have the same priority as the claim to which the judgment relates and shall be terminated upon confirmation of a judicial sale in accordance with this Article.

(2) Upon the entry of the judgment of foreclosure, the rights in the real estate subject to the judgment of foreclosure of (i) all persons made a party in the foreclosure and (ii) all nonrecord claimants given notice in accordance with paragraph (2) of subsection (c) of Section 15-1502, shall be solely as provided for in the judgment of foreclosure and in this Article.

(Source: P.A. 85-907.)

Section 99. Effective date. This Act takes effect upon becoming law.