SB3158sam001 101ST GENERAL ASSEMBLY

Sen. Jacqueline Y. Collins

Filed: 2/25/2020

10100SB3158sam001 LRB101 19850 LNS 70626 a

AMENDMENT TO SENATE BILL 3158

AMENDMENT NO. ______. Amend Senate Bill 3158 by replacing everything after the enacting clause with the following:

"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) The plaintiff shall attach an affidavit to the complaint in an eviction action. The affidavit shall be verified by the plaintiff and specify whether the court file qualifies for mandatory sealing under paragraph (5), (6), (7), or (8) of subsection (c) and whether the court file is exempt from sealing under subsection (f). If the plaintiff identifies the court file as not qualifying for mandatory sealing or as exempt from sealing, the affidavit shall include a statement that sets forth the reasoning and basis therefor.

If the plaintiff fails to comply with this subsection, the court shall order the sealing of the court file.

Nothing in this subsection imposes a duty upon the clerk of the circuit court to inspect an eviction action complaint for compliance with this subsection. Definition. As used in this Section, "court file" means the court file created when an eviction action is filed with the court.

(b) Discretionary sealing of court file. The court may, on its own motion or that of any party, order the sealing of that a court file in an eviction action, regardless of the final disposition of the action, be placed under seal if the court finds that:

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

(2) the defendant has a prima facie defense to the eviction action;

(3) the defendant is eligible for the benefits granted to a service member under Section 9-107.10;

(4) the defendant has established the grounds required to deny the plaintiff's motion to extend the period of enforcement for an eviction order under Section 9-117; or

(5) grounds exist that otherwise demonstrate that the interests of justice in sealing the court file outweigh the interests of the public in maintaining a public record of the case after considering the following:

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

(ii) the adverse effects on the defendant if the court file is accessible to the public;

(iii) any mitigating evidence concerning the basis for or disposition of the eviction action presented by the defendant, including whether the defendant had any defenses to the action or whether the tenancy was reinstated after disposition of the action; and

(iv) any evidence presented by the parties relevant to the court in balancing the interests of justice against the interests of the public in accordance with this paragraph , 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.

(c) Mandatory sealing of court file. The court shall order the sealing of the court file in an eviction action:

(1) upon dismissal of the plaintiff's claim for possession;

(2) upon entry of a written agreement by the parties to seal the court file;

(3) upon motion, if the court finds that the defendant in any eviction action maintained pursuant to Section 9-209 has fully satisfied the judgment for rent, or that the financial obligation owed to the plaintiff has been discharged or paid under Chapter 7 or 13 of Title 11 of the United States Code;

(4) if more than 3 years have elapsed since the filing of the eviction action, regardless of the disposition of the action;

(5) if the eviction action is maintained under Section 9-213 or pursuant to a predicate notice or demand for possession under Section 9-205, 9-207, or 9-207.5;

(6) if the plaintiff seeks to evict a tenant, lessee, or occupant as set forth in paragraph (6) of subsection (h) of Section 15-1701;

(7) if the eviction action is maintained under paragraph (7) of subsection (a) of Section 9-102 against a tenant, lessee, or occupant in accordance with subsection (a-5) of Section 9-104.2, or if the lessor or owner of the condominium unit failed to comply with the leasing requirements under subsection (n) of Section 18 of the Condominium Property Act or by the declaration, bylaws, rules, or regulations of the condominium in accordance with subsection (c-5) of Section 9-104.2; or

(8) if the complaint or the predicate notice or demand for possession upon which the plaintiff's action is based does not allege, or the court does not find, that the tenant or occupant materially breached the lease, or, if the property the plaintiff seeks possession of is subject to the Condominium Property Act, any violation by the tenant, occupant, or lessee of the covenants, rules, regulations, or bylaws of the condominium.

(d) For all eviction actions filed after the effective date of this amendatory Act of the 101st General Assembly in which the court has not entered an order that exempts the court file from sealing under subsection (f), the court shall automatically order, on or before January 1 and July 1 of each year, the sealing of all court files in accordance with paragraph (4) of subsection (c). Nothing in this subsection prevents the defendant in an eviction action filed prior to the effective date of this amendatory Act of the 101st General Assembly from filing a motion to seal his or her court file pursuant to subsection (b) or (c).

(e) At the earliest upon filing the complaint and no later than the return court date on the original summons issued with the complaint that commenced the action, the court shall examine the complaint, the affidavit attached pursuant to subsection (a), all matters apparent from the papers on file in the case, and any testimony or evidence offered by the defendant, and make a determination whether the court file is exempt from sealing under this Section, and if not, whether the court file qualifies for mandatory sealing under paragraph (5), (6), (7), or (8) of subsection (c).

The court shall enter an order that plainly states its determinations and its reasoning therefor.

Except as provided in subsection (f), the defendant in any eviction action, including an action filed before the effective date of this amendatory Act of the 101st General Assembly, may move to seal the court file, notwithstanding any waiver of the right to seal contained in any lease, contract, or other agreement.

The court shall grant the defendant's motion to seal if the plaintiff fails to timely respond to a written motion to seal or fails to appear at the time and date set for hearing of the motion to seal.

Upon determining that a court file qualifies for sealing under subsection (b) or (c), the court shall enter a separate order to seal the court file.

No finding of any issue of fact or law in connection with the sealing of the court file is a determination of the merits of the case or any aspect thereof. Neither the determination made by the court under this subsection nor any evidence offered by the parties in connection with the determination precludes the defendant from making any motion or defense that he or she might otherwise have made.

(f) A court file shall not be sealed under this Section if it pertains to an eviction action: (i) that is not a residential eviction action; or (ii) in which the property the plaintiff seeks possession of is subject to the Condominium Property Act and no tenant or occupant is named as a defendant in the action.

(g) Upon motion and order of the court, a court file sealed under this Section may be made accessible for scholarly, educational, journalistic, or governmental purposes only, balancing the interests of the parties and the public in nondisclosure with the interests of the requesting party. Identifying information of the parties shall remain sealed unless the court orders that release of such information is necessary to fulfill the purpose of the request. Nothing in this subsection shall permit the release of a sealed court file or the information contained therein for a commercial purpose 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.

(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) 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).

"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.

"Eviction record" means information in electronic or physical form consisting of identifiable descriptions and notations of notices, complaints, summons, motions, judgments, or any other court document that relates to an eviction action.

(b) If a person knows or has reasonable cause to know that the information is derived from a sealed eviction record, he or she shall not disseminate any information contained in a sealed eviction record.

(c) A consumer reporting agency, including a tenant background screening service, shall not disseminate an eviction record or information derived from an eviction record that pertains to an eviction action in which the court has not entered a final order or judgment in the action, or is sealed or impounded under Section 9-121 or otherwise made confidential by the court, or use such an action as a factor to determine any score, evaluation, or recommendation to be included in a consumer report pertaining to a defendant named in the 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 and final disposition for any 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 and from the calculation of any score or recommendation therein within 7 days of the 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.

(d) Any person who violates this Section is liable to the defendant named in the eviction action 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.

(e) This Section does not apply to a defendant who is the subject of the eviction record, his or her counsel, the court, the clerk of the circuit court, or the sheriff.

(f) Any waiver of the provisions of this Section is contrary to public policy and is void and unenforceable. Nothing in this Section shall be deemed to waive the rights or remedies of any consumer under any law, rule, or regulation.

(g) Nothing in this Section prohibits the dissemination of information regarding a judgment for rent for the sole purpose of enforcing such a judgment pursuant to Article XII.

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

(i) 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 is 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 (c) 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.)".