SB3158 101ST GENERAL ASSEMBLY

LRB101 19850 LNS 69370 b

101ST GENERAL ASSEMBLY
State of Illinois
2019 and 2020
SB3158

Introduced 2/11/2020, by Sen. Jacqueline Y. Collins

SYNOPSIS AS INTRODUCED:

735 ILCS 5/9-121
735 ILCS 5/9-122 new
735 ILCS 5/15-1701	from Ch. 110, par. 15-1701
815 ILCS 505/2Z	from Ch. 121 1/2, par. 262Z

Amends the Eviction Article of the Code of Civil Procedure. Defines terms. Provides that a complaint for an eviction action shall include specified information. Provides that upon entry of an eviction order, the court shall make specified findings. Provides that a court file shall not be sealed if it pertains to an eviction in which: (1) the tenancy is commercial, or (2) the property that the plaintiff seeks possession of is a condominium unit and no tenants or occupants are named as defendants. Provides that the court may order that a court file in an eviction action be sealed if the interests of justice outweigh the interests of the public, taking specified factors in account. Provides that the court file shall be sealed: (1) in a foreclosure-related eviction action; (2) in a not-for-cause eviction; (3) if the parties to the eviction action so agree; and (4) in any action not resulting in an eviction order entered in favor of the plaintiff. Provides that any tenant or occupant named as a defendant in an eviction action may file a motion or petition to seal the court file. Provides the manner in which court files shall be sealed. Provides that the clerk of the circuit court shall automatically seal all eviction court files no later than 3 years after the plaintiff's initial filing with the court. Provides that if a person knows or has reasonable cause to know that information is derived from a sealed court file, he or she shall not disseminate the information. Provides, with exceptions, that a consumer reporting agency shall not disclose, or use in a consumer report, information regarding an eviction action in which there is no final disposition entered or the court file is sealed, and that any violation is an unlawful practice under the Consumer Fraud and Deceptive Business Practices Act. Provides for damages in the amount of $2,000 for each violation, or twice the actual and consequential damages sustained, whichever is greater, and the costs of the action. Makes conforming changes in the Mortgage Foreclosure Article of the Code of Civil Procedure and the Consumer Fraud and Deceptive Business Practices Act.

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 changing Sections 9-121 and 15-1701 and by adding Section 9-122 as follows:

(735 ILCS 5/9-121)

Sec. 9-121. Sealing of court file.

(a) Definition. As used in this Section: ,

"Consumer report" has the meaning provided in Section 603 of the Fair Credit Reporting Act, 15 U.S.C. 1681a(d).

"Consumer reporting agency" has the meaning provided in Section 603 of the Fair Credit Reporting Act, 15 U.S.C. 1681a(f).

"Court court file" means the court file created when an eviction action is filed with the court, any document filed in the eviction action, and any document or other information, inscribed on a tangible medium or stored in an electronic or other medium, associated with the eviction action or court record.

"Dissemination" or "disseminate" means to publish, produce, print, manufacture, copy, distribute, sell, lease, exhibit, broadcast, display, transmit, or otherwise share information in any format so as to make the information accessible to others.

"Foreclosure-related eviction" means an eviction action brought against a tenant under Section 9-207.5; as set forth in paragraph (6) of subsection (h) of Section 15-1701; or in which a bona fide tenant is named in the foreclosure action as a permissible party under Section 15-1501.

"For-cause eviction" means an eviction action in which the court finds that a tenant or occupant has materially breached the lease; or an eviction action brought against a tenant or an occupant as set forth in paragraph (7) of subsection (a) of Section 9-102 in which the court finds that a tenant or occupant materially violated the lease or covenants, rules, regulations, or bylaws of the condominium.

"Not-for-cause eviction" means an eviction action in which the court does not find that a tenant or occupant has materially breached the lease; or an eviction action brought against a tenant or an occupant as set forth in paragraph (7) of subsection (a) of Section 9-102 in which the court does not find that the tenant or occupant materially violated the lease or covenants, rules, regulations, or bylaws of the condominium. "Not-for-cause eviction" includes an eviction action brought against a tenant or occupant on the basis that a tenant or occupant remains in the property after the termination of the lease or tenancy by its own limitation, condition, or terms, or by notice to quit or otherwise.

"Seal" or "sealing" means to make the court file unavailable to the public without a court order, but to physically and electronically maintain the records, unless the records would otherwise be destroyed due to age.

(a-5) A complaint for an eviction action shall include the following information:

(1) whether the tenancy is residential or commercial;

(2) the type of notice or demand that was given to defendant, if any;

(3) a statement alleging the basis for the eviction action, including whether a plaintiff alleges the eviction action is a for-cause eviction or not-for-cause eviction;

(4) a statement alleging whether the eviction action is a foreclosure-related eviction; and

(5) whether the property the plaintiff seeks possession of is a condominium unit, and if so, whether each defendant named in the action is an owner, tenant, or occupant of the unit.

Nothing in this subsection imposes any duty upon the clerk of the circuit court to inspect a complaint for an eviction action for compliance with this subsection.

(a-10) Upon entry of an eviction order against a defendant, or when a court is required to consider whether a court file is qualified for sealing under subsection (b) or (c) in accordance with subsection (e), the court shall make the following findings:

(1) whether the eviction action is a foreclosure-related eviction;

(2) whether the eviction action is a for-cause eviction or a not-for-cause eviction;

(3) whether the eviction action relates to a commercial tenancy and not a residential tenancy; and

(4) whether the property is a condominium, and if so, whether the tenant or occupant was evicted for cause.

(a-15) A court file shall not be sealed under this Section if it pertains to an eviction action in which: (1) the tenancy is commercial, and not residential; or (2) the property that the plaintiff seeks possession of is a condominium unit and no tenants or occupants are named as defendants in the action.

(b) Discretionary sealing of court file. The court may order that a court file in an eviction action be placed under seal, regardless of the final disposition of the action, if the interests of justice in sealing the court file outweigh the interests of the public in maintaining a public record of the case, including, but not limited to, under the following circumstances: if

(1) the court finds that the plaintiff's action is sufficiently without a basis in fact or law, which may include a lack of jurisdiction;

(2) the judgment in favor of the plaintiff is for an amount of $1,000 or less;

(3) the court finds that there is a prima facie defense to the eviction action;

(4) the parties enter into a settlement agreement, including an agreed entry of judgment, that does not result in the plaintiff recovering possession; or

(5) the court determines that there are other grounds justifying the sealing of the court file , that placing the court file under seal is clearly in the interests of justice, and that those interests are not outweighed by the public's interest in knowing about the record.

(b-5) In determining a motion or petition to seal pursuant to subsection (b), the court may consider the following:

(1) the disposition of the eviction action relating to the court file;

(2) whether the sealing of the court file is disputed by the plaintiff, and if so, the adverse effects on the plaintiff if the case file is sealed;

(3) the amount of time between the filing of the eviction action and the filing of the motion or petition to seal the court file;

(4) the specific adverse consequences to the defendant if the court file remains a public record;

(5) whether there are any extenuating circumstances that may have led to the plaintiff bringing an eviction action against the tenant or occupant, including whether the tenant or occupant has any defenses to the action; and

(6) any other factor the court deems useful in balancing the interests of justice against the interests of the public in accordance with subsection (b).

(c) Mandatory sealing of court file. The court file relating to an eviction action brought against a tenant under Section 9-207.5 of this Code or as set forth in subdivision (h)(6) of Section 15-1701 of this Code shall be placed under seal:

(1) in a foreclosure-related eviction action;

(2) in a not-for-cause eviction;

(3) if the parties to the eviction action so agree; and

(4) in an action not resulting in an eviction order entered in favor of the plaintiff.

(d) Except as provided in subsection (a-10), any tenant or occupant named as a defendant in an eviction action may file a motion or petition to seal the court file of the eviction action, including an action filed before the effective date of this amendatory Act of the 101st General Assembly.

(e) Court files shall be sealed as follows:

(1) Court files identified as qualifying for mandatory sealing under paragraph (1) or (2) of subsection (c) shall be sealed by court order as soon as it is apparent to the court that an action qualifies for mandatory sealing. The court shall examine the plaintiff's complaint and any other relevant information proffered by the parties, make findings in accordance with subsection (a-10), and order the court file sealed at the earliest upon filing and no later than the return date on the original pleading filed by the plaintiff.

Nothing in this subsection imposes a duty upon the clerk of the circuit court to inspect a complaint for an eviction action to ensure compliance with this subsection.

(2) Court files identified as qualifying for mandatory sealing under paragraph (3) of subsection (c) shall be sealed by court order as soon as the parties' agreement to seal is entered by the court.

(3) Except as provided in this paragraph, court files identified as qualifying for mandatory sealing under paragraph (4) of subsection (c) shall be sealed by court order no later than entry of the final disposition of the action. The court shall seal the court file of an eviction action in which there is not a final disposition and no appeal is pending and there has been no action of record for over 6 months without another court date scheduled.

(4) All other court files, including, but not limited to, those pertaining to eviction actions filed before the effective date of this amendatory Act of the 101st General Assembly and those pertaining to eviction actions that qualify for mandatory sealing under subsection (c) but were misidentified as not qualifying for mandatory sealing, shall be sealed, upon motion or petition, if the court finds that the court file qualifies for mandatory sealing under subsection (c) or discretionary sealing under subsection (b).

(5) In an eviction action in which the court determines a court file qualifies for mandatory sealing under subsection (c) or discretionary sealing under subsection (b), the court shall enter a separate order to seal the court file.

(6) In an eviction action in which the court finds that the court file is exempt from sealing under subsection (a-10), the court shall enter a separate order with that finding.

(f) Unless the court finds that the action involves either a commercial tenancy or a condominium unit in accordance with paragraph (3) or (4) of subsection (a-10), the clerk of the circuit court shall automatically seal all eviction action court files no later than 3 years after the plaintiff's initial filing with the court, regardless of the final disposition of the case. This subsection applies only to eviction actions filed after the effective date of this amendatory Act of the 101st General Assembly.

(Source: P.A. 100-173, eff. 1-1-18.)

(735 ILCS 5/9-122 new)

Sec. 9-122. Dissemination and use of information contained in a sealed court file.

(a) If a person knows or has reasonable cause to know that information is derived from a sealed court file, he or she shall not disseminate the information.

(b) A consumer reporting agency, including a tenant background screening service, shall not disclose the existence of, or information regarding, an eviction action if there is no final disposition entered by the court or if the court file is sealed under Section 9-121 or otherwise made confidential by the court, or use the action as a factor to determine any score or recommendation to be included in a consumer report pertaining to a person named in an action. A consumer reporting agency may include in a consumer report information found in a publicly available court file, if: (i) the consumer's full name, date of birth, social security number, and both the basis for and final disposition of the eviction action reported are included in the report; (ii) the consumer is permitted to include a 100-word statement about any court file included in any way in the report; and (iii) the information is removed from the report or from the calculation of any score or recommendation therein within 7 days of sealing of the court file from which it is derived.

Any violation of this subsection is an unlawful practice under the Consumer Fraud and Deceptive Business Practices Act.

(c) Any person who violates this Section shall be liable to the affected tenant or occupant for $2,000 for each violation, or twice the actual and consequential damages sustained, whichever is greater, and the costs of the action, including reasonable attorney's fees.

(d) This Section does not apply to a tenant or occupant whose court file was sealed, his or her counsel, the court, or the clerk of the circuit court.

(e) Nothing in this Section shall be deemed to waive the rights or remedies of any consumer under any law, rule, or regulation.

(f) Nothing in this Section prohibits the dissemination of information regarding a money judgment for the sole purpose of enforcing the judgment pursuant to Article XII of the Code of Civil Procedure.

(g) Nothing in this Section prohibits the provision of the eviction order to a sheriff for the sole purpose of enforcement of the order.

(h) If any provision of this Section or its application to any person or circumstance is held invalid, the invalidity of that provision or application does not affect other provisions or applications of this Section that can be given effect without the invalid provision or application.

(735 ILCS 5/15-1701) (from Ch. 110, par. 15-1701)

Sec. 15-1701. Right to possession.

(a) General. The provisions of this Article shall govern the right to possession of the mortgaged real estate during foreclosure. Possession under this Article includes physical possession of the mortgaged real estate to the same extent to which the mortgagor, absent the foreclosure, would have been entitled to physical possession. For the purposes of Part 17, real estate is residential real estate only if it is residential real estate at the time the foreclosure is commenced.

(b) Pre-Judgment. Prior to the entry of a judgment of foreclosure:

(1) In the case of residential real estate, the mortgagor shall be entitled to possession of the real estate except if (i) the mortgagee shall object and show good cause, (ii) the mortgagee is so authorized by the terms of the mortgage or other written instrument, and (iii) the court is satisfied that there is a reasonable probability that the mortgagee will prevail on a final hearing of the cause, the court shall upon request place the mortgagee in possession. If the residential real estate consists of more than one dwelling unit, then for the purpose of this Part residential real estate shall mean only that dwelling unit or units occupied by persons described in clauses (i), (ii) and (iii) of Section 15-1219.

(2) In all other cases, if (i) the mortgagee is so authorized by the terms of the mortgage or other written instrument, and (ii) the court is satisfied that there is a reasonable probability that the mortgagee will prevail on a final hearing of the cause, the mortgagee shall upon request be placed in possession of the real estate, except that if the mortgagor shall object and show good cause, the court shall allow the mortgagor to remain in possession.

(c) Judgment Through 30 Days After Sale Confirmation. After the entry of a judgment of foreclosure and through the 30th day after a foreclosure sale is confirmed:

(1) Subsection (b) of Section 15-1701 shall be applicable, regardless of the provisions of the mortgage or other instrument, except that after a sale pursuant to the judgment the holder of the certificate of sale (or, if none, the purchaser at the sale) shall have the mortgagee's right to be placed in possession, with all rights and duties of a mortgagee in possession under this Article.

(2) Notwithstanding paragraph (1) of subsection (b) and paragraph (1) of subsection (c) of Section 15-1701, upon request of the mortgagee, a mortgagor of residential real estate shall not be allowed to remain in possession between the expiration of the redemption period and through the 30th day after sale confirmation unless (i) the mortgagor pays to the mortgagee or such holder or purchaser, whichever is applicable, monthly the lesser of the interest due under the mortgage calculated at the mortgage rate of interest applicable as if no default had occurred or the fair rental value of the real estate, or (ii) the mortgagor otherwise shows good cause. Any amounts paid by the mortgagor pursuant to this subsection shall be credited against the amounts due from the mortgagor.

(d) After 30 Days After Sale Confirmation. The holder of the certificate of sale or deed issued pursuant to that certificate or, if no certificate or deed was issued, the purchaser, except to the extent the holder or purchaser may consent otherwise, shall be entitled to possession of the mortgaged real estate, as of the date 30 days after the order confirming the sale is entered, against those parties to the foreclosure whose interests the court has ordered terminated, without further notice to any party, further order of the court, or resort to proceedings under any other statute other than this Article. This right to possession shall be limited by the provisions governing entering and enforcing orders of possession under subsection (g) of Section 15-1508. If the holder or purchaser determines that there are occupants of the mortgaged real estate who have not been made parties to the foreclosure and had their interests terminated therein, the holder or purchaser may bring an eviction proceeding under subsection (h) of this Section, if applicable, or under Article IX of this Code to terminate the rights of possession of any such occupants. The holder or purchaser shall not be entitled to proceed against any such occupant under Article IX of this Code until after 30 days after the order confirming the sale is entered.

(e) Termination of Leases. A lease of all or any part of the mortgaged real estate shall not be terminated automatically solely by virtue of the entry into possession by (i) a mortgagee or receiver prior to the entry of an order confirming the sale, (ii) the holder of the certificate of sale, (iii) the holder of the deed issued pursuant to that certificate, or (iv) if no certificate or deed was issued, the purchaser at the sale.

(f) Other Statutes; Instruments. The provisions of this Article providing for possession of mortgaged real estate shall supersede any other inconsistent statutory provisions. In particular, and without limitation, whenever a receiver is sought to be appointed in any action in which a foreclosure is also pending, a receiver shall be appointed only in accordance with this Article. Except as may be authorized by this Article, no mortgage or other instrument may modify or supersede the provisions of this Article.

(g) Certain Leases. Leases of the mortgaged real estate entered into by a mortgagee in possession or a receiver and approved by the court in a foreclosure shall be binding on all parties, including the mortgagor after redemption, the purchaser at a sale pursuant to a judgment of foreclosure and any person acquiring an interest in the mortgaged real estate after entry of a judgment of foreclosure in accordance with Sections 15-1402 and 15-1403.

(h) Proceedings Against Certain Occupants.

(1) The mortgagee-in-possession of the mortgaged real estate under Section 15-1703, a receiver appointed under Section 15-1704, a holder of the certificate of sale or deed, or the purchaser may, at any time during the pendency of the foreclosure and up to 90 days after the date of the order confirming the sale, file a supplemental eviction petition against a person not personally named as a party to the foreclosure. This subsection (h) does not apply to any lessee with a bona fide lease of a dwelling unit in residential real estate in foreclosure.

(2) The supplemental eviction petition shall name each such occupant against whom an eviction order is sought and state the facts upon which the claim for relief is premised.

(3) The petitioner shall serve upon each named occupant the petition, a notice of hearing on the petition, and, if any, a copy of the certificate of sale or deed. The eviction proceeding, including service of the notice of the hearing and the petition, shall in all respects comport with the requirements of Article IX of this Code, except as otherwise specified in this Section. The hearing shall be no less than 21 days from the date of service of the notice.

(4) The supplemental petition shall be heard as part of the foreclosure proceeding and without the payment of additional filing fees. An eviction order obtained under this Section shall name each occupant whose interest has been terminated, shall recite that it is only effective as to the occupant so named and those holding under them, and shall be enforceable for no more than 120 days after its entry, except that the 120-day period may be extended to the extent and in the manner provided in Section 9-117 of Article IX and except as provided in item (5) of this subsection (h).

(5) In a case of foreclosure where the occupant is current on his or her rent, or where timely written notice of to whom and where the rent is to be paid has not been provided to the occupant, or where the occupant has made good-faith efforts to make rental payments in order to keep current, any eviction order must allow the occupant to retain possession of the property covered in his or her rental agreement (i) for 120 days following the notice of the hearing on the supplemental petition that has been properly served upon the occupant, or (ii) through the duration of his or her lease, whichever is shorter, provided that if the duration of his or her lease is less than 30 days from the date of the order, the order shall allow the occupant to retain possession for 30 days from the date of the order. A mortgagee in possession, receiver, holder of a certificate of sale or deed, or purchaser at the judicial sale, who asserts that the occupant is not current in rent, shall file an affidavit to that effect in the supplemental petition proceeding. If the occupant has been given timely written notice of to whom and where the rent is to be paid, this item (5) shall only apply if the occupant continues to pay his or her rent in full during the 120-day period or has made good-faith efforts to pay the rent in full during that period.

(6) The court records relating to a supplemental eviction petition filed under this subsection (h) against an occupant who is entitled to notice under item (5) of this subsection (h), or relating to an eviction action brought against an occupant who would have lawful possession of the premises but for the foreclosure of a mortgage on the property, or relating to a foreclosure action in which a tenant or occupant has been named as a defendant in the foreclosure action shall be ordered sealed and shall not be disclosed to any person, other than a law enforcement officer or any other representative of a governmental entity, except upon further order of the court.

(i) Termination of bona fide leases. The holder of the certificate of sale, the holder of the deed issued pursuant to that certificate, or, if no certificate or deed was issued, the purchaser at the sale shall not terminate a bona fide lease of a dwelling unit in residential real estate in foreclosure except pursuant to Article IX of this Code.

(Source: P.A. 100-173, eff. 1-1-18.)

Section 10. The Consumer Fraud and Deceptive Business Practices Act is amended by changing Section 2Z as follows:

(815 ILCS 505/2Z) (from Ch. 121 1/2, par. 262Z)

Sec. 2Z. Violations of other Acts. Any person who knowingly violates the Automotive Repair Act, the Automotive Collision Repair Act, the Home Repair and Remodeling Act, the Dance Studio Act, the Physical Fitness Services Act, the Hearing Instrument Consumer Protection Act, the Illinois Union Label Act, the Installment Sales Contract Act, the Job Referral and Job Listing Services Consumer Protection Act, the Travel Promotion Consumer Protection Act, the Credit Services Organizations Act, the Automatic Telephone Dialers Act, the Pay-Per-Call Services Consumer Protection Act, the Telephone Solicitations Act, the Illinois Funeral or Burial Funds Act, the Cemetery Oversight Act, the Cemetery Care Act, the Safe and Hygienic Bed Act, the Illinois Pre-Need Cemetery Sales Act, the High Risk Home Loan Act, the Payday Loan Reform Act, the Mortgage Rescue Fraud Act, subsection (a) or (b) of Section 3-10 of the Cigarette Tax Act, subsection (a) or (b) of Section 3-10 of the Cigarette Use Tax Act, the Electronic Mail Act, the Internet Caller Identification Act, paragraph (6) of subsection (k) of Section 6-305 of the Illinois Vehicle Code, Section 11-1431, 18d-115, 18d-120, 18d-125, 18d-135, 18d-150, or 18d-153 of the Illinois Vehicle Code, Article 3 of the Residential Real Property Disclosure Act, the Automatic Contract Renewal Act, the Reverse Mortgage Act, Section 25 of the Youth Mental Health Protection Act, the Personal Information Protection Act, subsection (b) of Section 9-122 of the Code of Civil Procedure, or the Student Online Personal Protection Act commits an unlawful practice within the meaning of this Act.

(Source: P.A. 99-331, eff. 1-1-16; 99-411, eff. 1-1-16; 99-642, eff. 7-28-16; 100-315, eff. 8-24-17; 100-416, eff. 1-1-18; 100-863, eff. 8-14-18.)