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Rep. Daniel J. Burke
Filed: 4/17/2007
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09500HB1478ham001 |
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LRB095 06755 MJR 34978 a |
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| AMENDMENT TO HOUSE BILL 1478
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| AMENDMENT NO. ______. Amend House Bill 1478 by replacing |
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| everything after the enacting clause with the following:
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| "Section 5. The Residential Mortgage License Act of 1987 is |
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| amended by adding Sections 4-15, 4-16, 5-6, 5-7, 5-8, 5-9, |
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| 5-10, 5-11, 5-12, 5-13, 5-14, 5-15, 5-16, and 5-17 as follows: |
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| (205 ILCS 635/4-15 new)
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| Sec. 4-15. Enforcement under the Consumer Fraud and |
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| Deceptive Business Practices Act. The Attorney General may |
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| enforce any violation of Section 5-6, 5-7, 5-8, 5-9, 5-10, |
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| 5-11, 5-12, 5-13, 5-14, 5-15, or 5-16 of this Act as an |
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| unlawful practice under the Consumer Fraud and Deceptive |
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| Business Practices Act. |
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| (205 ILCS 635/4-16 new)
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| Sec. 4-16. Private right of action. A borrower injured by a |
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| violation of the standards, duties, prohibitions, or |
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| requirements of Sections 5-6, 5-7, 5-8, 5-9, 5-10, 5-11, 5-12, |
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| 5-13, 5-14, 5-15, and 5-16 of this Act shall have a private |
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| right of action. The remedies and rights provided for in this |
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| Act are not exclusive, but cumulative, and all other applicable |
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| claims are specifically preserved. |
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| (205 ILCS 635/5-6 new)
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| Sec. 5-6. Verification of borrower's ability to repay. |
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| (a) No lender or loan broker may make, provide, or arrange |
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| for a residential mortgage loan without verifying the |
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| borrower's reasonable ability to pay the principal and interest |
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| on the loan, real estate taxes, homeowner's insurance, |
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| assessments, and mortgage insurance premiums, if applicable. |
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| For residential mortgage loans in which the interest rate |
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| may vary, the reasonable ability to pay the principal and |
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| interest on the loan shall be determined based on a fully |
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| indexed rate, which rate shall be calculated by using the index |
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| rate prevailing at the time of origination of the loan plus the |
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| margin that will apply when calculating the adjustable rate |
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| under the terms of the loan, assuming a fully amortizing |
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| repayment schedule based on the term of the loan. |
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| For loans that allow for negative amortization, the |
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| principal amount of the loan shall be calculated by including |
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| the maximum amount the principal balance may increase due to |
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| negative amortization under the terms of the loan. |
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| (b) For all residential mortgage loans, the borrower's |
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| income and financial resources must be verified by tax returns, |
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| payroll receipts, bank records, or other similarly reliable |
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| documents. A statement by the borrower to the broker or lender |
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| of the borrower's income and resources is not sufficient to |
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| establish the existence of the income or resources when |
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| verifying the reasonable ability to pay. |
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| (c) This Section does not apply to exempt persons or |
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| entities as defined in subsection (d) of Section 1-4 of this |
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| Act, except for those listed in item (v) of subdivision (1) of |
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| subsection (d) of Section 1-4 of this Act and their employees, |
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| notwithstanding item (1.5) of subsection (d) of Section 1-4 of |
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| this Act. |
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| (205 ILCS 635/5-7 new)
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| Sec. 5-7. Broker fiduciary duty. Any person, partnership, |
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| association, corporation, or limited liability company engaged |
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| in conduct described in subsection (o) of Section 1-4 of this |
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| Act shall be considered to have created a fiduciary |
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| relationship with the borrower in all cases and shall comply |
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| with the duties imposed upon fiduciaries by statute or common |
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| law. This Section does not apply to exempt persons or entities |
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| as defined in subsection (d) of Section 1-4 of this Act, except |
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| for those listed in item (v) of subdivision (1) of subsection |
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| (d) of Section 1-4 of this Act and their employees, |
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| notwithstanding item (1.5) of subsection (d) of Section 1-4 of |
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| this Act. |
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| (205 ILCS 635/5-8 new)
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| Sec. 5-8. Prepayment penalties prohibited. No lender, or |
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| person, partnership, association, corporation, or other entity |
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| who engages in the business of originating residential mortgage |
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| loans shall enter into a mortgage loan that contains a |
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| provision requiring or permitting the imposition of a penalty, |
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| fee, premium, or other charge in the event the residential |
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| mortgage loan is prepaid in whole or in part. |
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| (205 ILCS 635/5-9 new)
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| Sec. 5-9. Notice of change in loan terms. |
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| (a) No lender or loan broker may fail to do either of the |
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| following: |
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| (1) Provide timely notice to the borrower of any |
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| material change in the terms of the residential mortgage |
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| loan. For purposes of this Section, a material change means |
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| any of the following: |
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| (A) A change in the type of loan being offered, |
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| such as a fixed or variable rate loan or a loan with a |
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| balloon payment. |
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| (B) A change in the term of the loan, as reflected |
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| in the number of monthly payments due before a final |
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| payment is scheduled to be made. |
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| (C) A change in the interest rate of more than |
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| 0.15%, or an equivalent increase in the amount of |
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| discount points charged. |
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| (D) A change in the regular monthly payment of |
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| principal and interest of more than 5%. |
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| (E) A change regarding the escrow of taxes or |
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| insurance. |
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| (F) A change regarding the payment of private |
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| mortgage insurance. |
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| (2) Timely inform the borrower if any fees payable by |
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| the borrower to the lender or broker increase by more than |
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| 10% or $100, whichever is greater. |
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| (b) The disclosures required by this Section shall be |
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| deemed timely if the lender or broker provides the borrower |
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| with the revised information not later than 24 hours after the |
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| change occurs or 24 hours before the residential mortgage loan |
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| is closed, whichever is earlier. |
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| (c) If an increase in the total amount of the fee to be |
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| paid by the borrower to the lender or broker is not disclosed |
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| in accordance with this Section, the lender or broker, whoever |
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| received the increased fee, shall refund to the borrower the |
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| amount by which the fee was increased. If the fee is financed |
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| into the residential mortgage loan, the lender or broker shall |
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| also refund to the borrower the interest that would accrue over |
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| the term of the loan on that excess amount. |
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| (d) This Section does not apply to exempt persons or |
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| entities as defined in subsection (d) of Section 1-4 of this |
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| Act, except for those listed in item (v) of subdivision (1) of |
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| subsection (d) of Section 1-4 of this Act and their employees, |
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| notwithstanding item (1.5) of subsection (d) of Section 1-4 of |
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| this Act. |
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| (205 ILCS 635/5-10 new)
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| Sec. 5-10. Comparable monthly payment quotes. Any lender or |
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| broker, when informing a borrower of the anticipated or actual |
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| periodic payment amount for a first lien residential mortgage |
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| loan orally or in writing, must inform the borrower that an |
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| additional amount will be due for taxes and insurance and, if |
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| known, disclose to the borrower the amount of the anticipated |
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| or actual periodic escrow payments. Compliance with federal |
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| laws requiring disclosure of a periodic payment amount |
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| constitutes compliance with this Section, but only for purposes |
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| of the particular disclosure required under federal law. This |
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| Section does not apply to exempt persons or entities as defined |
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| in subsection (d) of Section 1-4 of this Act, except for those |
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| listed in item (v) of subdivision (1) of subsection (d) of |
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| Section 1-4 of this Act and their employees, notwithstanding |
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| item (1.5) of subsection (d) of Section 1-4 of this Act. |
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| (205 ILCS 635/5-11 new)
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| Sec. 5-11. Requirement to provide borrower with a copy of |
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| all appraisals. Lenders must provide to the borrower a complete |
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| copy of any appraisal, including any appraisal generated using |
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| the Automated Valuation Model, obtained by the lender or loan |
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| broker for use in underwriting the residential mortgage loan |
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| not less than 14 days before the residential mortgage loan is |
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| closed. This Section does not apply to exempt persons or |
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| entities as defined in subsection (d) of Section 1-4 of this |
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| Act, except for those listed in item (v) of subdivision (1) of |
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| subsection (d) of Section 1-4 of this Act and their employees, |
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| notwithstanding item (1.5) of subsection (d) of Section 1-4 of |
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| this Act. |
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| (205 ILCS 635/5-12 new)
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| Sec. 5-12. Prohibition on verbal promise to refinance on |
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| more favorable terms. No lender or loan broker shall, in order |
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| to induce a borrower to close a residential mortgage loan, |
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| represent to the borrower that the lender or broker promises or |
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| will be able to refinance the loan at a later date with more |
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| favorable terms, unless the representation is set forth in |
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| writing, states that the lender or broker is contractually |
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| bound to refinance the loan at a later date, specifies the more |
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| favorable terms, and is initialed by the borrower. This Section |
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| does not apply to exempt persons or entities as defined in |
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| subsection (d) of Section 1-4 of this Act, except for those |
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| listed in item (v) of subdivision (1) of subsection (d) of |
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| Section 1-4 of this Act and their employees, notwithstanding |
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| item (1.5) of subsection (d) of Section 1-4 of this Act. |
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| (205 ILCS 635/5-13 new)
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| Sec. 5-13. Cap on delinquency charges allowed. A lender or |
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| any person, partnership, association, corporation, or limited |
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| liability company engaged in servicing may not collect, in the |
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| case of any residential mortgage loan providing for the payment |
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| thereof in 2 or more periodic installments, (i) for any loan |
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| installment in default, more than one delinquency charge on |
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| such loan installment regardless of the period during which it |
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| remains in default or (ii) any delinquency charge for any |
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| payment timely received by the lender or person engaged in |
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| servicing under a written extension or deferral agreement. |
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| (205 ILCS 635/5-14 new)
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| Sec. 5-14. Prohibition on equity stripping and loan |
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| flipping. No loan broker may engage in equity stripping or loan |
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| flipping, as those terms are defined in the Illinois Fairness |
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| in Lending Act. |
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| (205 ILCS 635/5-15 new)
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| Sec. 5-15. Prohibition on financing certain insurance |
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| premiums. No lender may make, provide, or arrange for a |
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| residential mortgage loan that finances, directly or |
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| indirectly, any credit life, credit disability, or credit |
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| unemployment insurance or any other life or health insurance |
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| premiums; however, insurance premiums calculated and paid on a |
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| monthly basis shall not be considered to be financed by the |
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| lender. |
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| (205 ILCS 635/5-16 new)
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| Sec. 5-16. Prohibition on encouraging default. A lender or |
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| broker or any person, partnership, association, corporation, |
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| or limited liability company engaged in servicing may not |
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| recommend or encourage default or the failure to make timely |
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| payments on an existing residential mortgage loan or other debt |
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| prior to and in connection with the closing or planned closing |
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| of a residential mortgage loan that refinances all or any |
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| portion of the existing loan or debt. This Section does not |
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| apply to exempt persons or entities as defined in subsection |
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| (d) of Section 1-4 of this Act, except for those listed in item |
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| (v) of subdivision (1) of subsection (d) of Section 1-4 of this |
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| Act and their employees, notwithstanding item (1.5) of |
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| subsection (d) of Section 1-4 of this Act. |
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| (205 ILCS 635/5-17 new)
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| Sec. 5-17. Severability. If any provision of this Act or |
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| its application to any person or circumstance is held invalid, |
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| the invalidity of that provision or application does not affect |
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| other provisions or applications of this Act that can be given |
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| effect without the invalid provision or application.
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| Section 10. The Code of Civil Procedure is amended by |
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| changing Sections 2-606, 15-1504, 15-1507, 15-1508, 15-1510, |
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| and 15-1604 and by adding Sections 15-1224, 15-1500, 15-1502.5, |
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| 15-1503.5, 15-1513, and 15-1514 as follows:
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| (735 ILCS 5/2-606) (from Ch. 110, par. 2-606)
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| Sec. 2-606. Exhibits. |
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| (a) If a claim or defense is founded upon a written |
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| instrument, a copy
thereof, or of so much of the same as is |
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| relevant, must be attached to
the pleading as an exhibit or |
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| recited therein, unless the pleader
attaches to his or her |
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| pleading an affidavit stating facts showing that the
instrument |
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| is not accessible to him or her. In pleading any written |
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| instrument
a copy thereof may be attached to the pleading as an |
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| exhibit. In either
case the exhibit constitutes a part of the |
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| pleading for all purposes.
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| (b) If any note is required to be attached to a complaint |
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| filed pursuant to subsection (a) of Section 15-1504 of this |
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| Code, the affidavit filed by the pleader must state the |
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| following: |
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| (1) all the holders of the note; |
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| (2) the time each note holder held the note identified |
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| by the day, month, and year; and |
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| (3) the reasonable efforts of the pleader to contact |
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| the note holder, which shall at minimum include the name of |
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| the representative, phone number, and address of each note |
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| holder; the date each was contacted by the pleader to |
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| ascertain whether the note holder was in possession of the |
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| note; and the reason provided by the representative that |
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| explains why the note cannot be located.
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| (Source: P.A. 82-280.)
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| (735 ILCS 5/15-1224 new)
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| Sec. 15-1224. Servicer. "Servicer" means any individual or |
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| entity that collects or remits or has the right or obligation |
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| to collect or remit for any lender, noteowner, noteholder, or |
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| itself payments, interest, principal, and trust items (such as |
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| hazard insurance and taxes on a residential real estate loan) |
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| in accordance with the terms of the residential real estate |
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| loan; and includes loan payment follow-up, delinquency loan |
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| follow-up, loan analysis, and any notifications to the borrower |
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| that are necessary to enable the borrower to keep the loan |
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| current and in good standing. |
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| (735 ILCS 5/15-1500 new)
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| Sec. 15-1500. Purpose. Both the mortgagee and the servicer |
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| of a residential real estate loan owe a duty of good faith and |
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| fair dealing to the mortgagor in all dealings related to the |
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| residential real estate loan. This duty includes, but is not |
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| limited to, an obligation to avoid foreclosure on a residential |
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| real estate, unless there is no other reasonable mechanism to |
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| collect on the loan secured by the mortgage. For the purposes |
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| of this Article, the servicer is the agent of the lender. |
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| (735 ILCS 5/15-1502.5 new)
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| Sec. 15-1502.5. Pre-foreclosure right to cure residential |
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| real estate mortgage default. |
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| (a) A mortgagor shall have the right to a pre-foreclosure |
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| cure of a residential real estate loan default. A mortgagor |
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| shall not be required to pay any charge, fee, or penalty |
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| attributable to the exercise of the right to cure a default as |
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| provided for in this Section. The mortgagor's payment of all |
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| amounts past due for principal, interest, escrow, and late |
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| charges, as specifically permitted in the residential real |
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| estate loan and under this Article, shall cure a default. |
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| (b) A mortgagee or servicer must send a written notice of |
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| the pre-foreclosure right to cure, which includes the |
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| information listed in subsection (c) of this Section, to the |
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| mortgagor at least 30 days prior to accelerating a loan or |
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| filing a complaint for judicial foreclosure, whichever comes |
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| first. |
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| (c) The notice shall clearly and conspicuously state to the |
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| mortgagor all of the following: |
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| (1) The name and address of the mortgagee or servicer. |
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| (2) The nature of the default claimed on the |
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| residential real estate loan and the mortgagor's right to |
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| cure the default. |
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| (3) The sum of money required to cure the default. If |
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| the amount necessary to cure the default will change during |
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| the pre-foreclosure right to cure period due to the |
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| application of a daily interest rate or the addition of |
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| late fees as allowed by this Article, the notice shall |
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| contain an accounting that provides sufficient information |
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| to enable the mortgagor to calculate the amount at any |
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| point during the 30-day period. |
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| (4) The name, address, and telephone number of the |
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| mortgagee or servicer whom the mortgagor may contact to |
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| request this assistance, a repayment plan, forbearance, |
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| loan modification, or another workout tool, if available. |
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| (5) The name and telephone number of a representative |
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| of the mortgagee or servicer whom the mortgagor may contact |
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| if the mortgagor disagrees with the assertion that a |
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| default has occurred or with the calculation of the amount |
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| required to cure the default. |
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| (6) The name, address, and phone number of a person to |
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| whom the payment or tender curing the default may be made. |
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| (7) The mortgagee or servicer may take steps to |
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| accelerate the loan or terminate the mortgagor's ownership |
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| in the property by commencing a foreclosure suit in a court |
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| of competent jurisdiction if the mortgagor does not cure |
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| the default. |
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| (8) Upon expiration of the pre-foreclosure right to |
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| cure period, the mortgagor shall still have the right to |
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| cure the default if the mortgagee or servicer commences a |
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| foreclosure action pursuant to Section 15-1602, 15-1603, |
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| or 15-1604 of this Code, but the mortgagor may be |
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| responsible for the mortgagee's or servicer's court costs |
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| and reasonable attorney's fees, as determined by a court of |
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| competent jurisdiction. |
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| (9) The right, if any, of the mortgagor to transfer the |
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| real estate to another person subject to the security |
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| interest and that the transferee may have the right to cure |
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| the default as provided in this Section or Article, subject |
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| to the mortgage documents. |
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| (10) The mortgagor is advised to seek counsel from an |
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| attorney of the mortgagor's own choosing concerning the |
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| mortgagor's residential real estate mortgage default. The |
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| mortgagor may be able to find assistance at, among others, |
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| the United States Department of Housing and Urban |
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| Development, the Legal Assistance Foundation of |
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| Metropolitan Chicago, the Land of Lincoln Legal Assistance |
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| Foundation, Prairie State Legal Services, the Illinois |
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| State Bar Association, or a county bar association by |
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| visiting the entity's website or calling its telephone |
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| number. |
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| (11) Even if the mortgagor does not participate in the |
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| judicial proceeding, a judgment may still be entered |
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| against the residential real estate. |
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| (d) The notice required by this Section shall be in writing |
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| or sent to the mortgagor's last known address by both first |
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| class mail and registered or certified mail, return receipt |
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| requested. The notice must also be sent by registered or |
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| certified mail, return receipt requested, to the address of the |
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| property that is the subject of the residential real estate |
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| mortgage, if different from the mortgagor's last known address. |
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| The notice is deemed to have been effectuated on the date the |
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| notice is mailed to the mortgagor. |
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| (e) The notice required to be provided pursuant to this |
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| Section is not required if the mortgagor has voluntarily |
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| surrendered the property that is the subject of the residential |
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| real estate mortgage. |
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| (f) The duty of the mortgagee or servicer under this |
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| Section to serve notice of the pre-foreclosure right to cure is |
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| independent of any other duty to give notice under the common |
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| law, principles of equity, State or federal statute, or a rule |
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| of court and of any other right or remedy the mortgagor may |
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| have as a result of the failure to give such notice. |
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| (g) If a default is cured prior to the filing of a notice |
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| of foreclosure pursuant to Section 15-1505 of this Code or the |
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| initiation of any action to foreclose or to seize or transfer |
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| residential real estate as allowed under this Article, the |
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| mortgagee or servicer may not file a notice of foreclosure or |
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| institute the foreclosure proceeding or other action for that |
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| default. If a default is cured after the filing of notice of |
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| foreclosure or initiation of any action to foreclose, the |
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| mortgagee or servicer shall take such steps as are necessary to |
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| terminate the foreclosure proceeding or other action. |
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| (735 ILCS 5/15-1503.5 new)
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| Sec. 15-1503.5. Payoff demands. |
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| (a) For purposes of this Section: |
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| "Deliver" or "delivery" means depositing or causing to be |
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| deposited into the United States mail an envelope with postage |
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| prepaid that contains a copy of the documents to be delivered |
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| and that is addressed to the person whose name and address are |
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| provided in the payoff demand. Delivery includes transmitting |
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| those documents by telefacsimile machine to the person. |
10 |
| Delivery includes transmitting those documents electronically |
11 |
| if the payoff demand specifically requests and authorizes that |
12 |
| the documents be transmitted in electronic form. |
13 |
| "Payoff demand" means a written demand for a payoff demand |
14 |
| statement made by a mortgagor. |
15 |
| "Payoff demand statement" means a written statement that is |
16 |
| prepared in response to a written demand made by a mortgagor |
17 |
| that sets forth the amounts required by the mortgagee or |
18 |
| servicer to fully satisfy all of the obligations secured by the |
19 |
| loan that is the subject of the demand. |
20 |
| (b) On the written demand of a mortgagor, a mortgagee or |
21 |
| servicer shall prepare and deliver a payoff demand statement to |
22 |
| the person who has requested it within 5 business days after |
23 |
| receipt of the demand. |
24 |
| (c) The payoff demand statement shall provide the amounts |
25 |
| required to cure the default as of the date of preparation and |
26 |
| shall include the information reasonably necessary to |
|
|
|
09500HB1478ham001 |
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LRB095 06755 MJR 34978 a |
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| calculate the payoff amount on a per diem basis. |
2 |
| (d) The mortgagor may rely on a payoff demand statement for |
3 |
| the purpose of establishing the amount necessary to pay the |
4 |
| obligation in full and obtain a release of the mortgage or deed |
5 |
| of trust that secures the obligation through and including the |
6 |
| time set forth in the payoff demand statement. |
7 |
| (e) Any sums that were due the mortgagor and that were not |
8 |
| included in the payoff demand statement or in any amended |
9 |
| statement constitute an unsecured obligation of the obligor and |
10 |
| are recoverable by the mortgagor pursuant to the terms of the |
11 |
| note and as otherwise provided by law. |
12 |
| (f) A mortgagee or servicer who fails to prepare and |
13 |
| deliver a payoff demand statement for 6 or more business days |
14 |
| after receipt of a written demand is liable to the mortgagor |
15 |
| for all damages sustained for failure to deliver the statement. |
16 |
| (g) Each failure of the mortgagee or servicer to prepare |
17 |
| and deliver the payoff demand statement when required to do so |
18 |
| pursuant to this Section constitutes a separate cause of |
19 |
| action. A judgment that awards a mortgagor a forfeiture or |
20 |
| damages or both for any failure to prepare and deliver a payoff |
21 |
| demand statement bars recovery of any other damages or |
22 |
| forfeiture for any other failure to prepare and deliver a |
23 |
| statement with respect to the same obligation, if the other |
24 |
| demand for the statement was made within 6 months before or |
25 |
| after the demand was made that resulted in the award. |
26 |
| (h) If the mortgagee or servicer has more than one branch, |
|
|
|
09500HB1478ham001 |
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LRB095 06755 MJR 34978 a |
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|
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| office, or other place of business, the payoff demand statement |
2 |
| shall be made to the branch or office address provided in the |
3 |
| payment billing notice or payment book. Unless the payoff |
4 |
| demand statement provides otherwise, the statement is deemed to |
5 |
| apply only to the unpaid balance of the single obligation that |
6 |
| is named in the demand and that is secured by the mortgage or |
7 |
| deed of trust that is payable at the address that is provided |
8 |
| in the payment billing notice or payment book. |
9 |
| (i) The demand for and preparation and delivery of a payoff |
10 |
| demand statement pursuant to this Section does not change any |
11 |
| date or time period that is prescribed in the note or that is |
12 |
| otherwise provided by law. |
13 |
| (j) The mortgage or servicer may assess a fee of no more |
14 |
| than $1.50 for furnishing each payoff demand statement. This is |
15 |
| conclusively presumed to be reasonable.
|
16 |
| (735 ILCS 5/15-1504) (from Ch. 110, par. 15-1504)
|
17 |
| Sec. 15-1504. Pleadings and service.
|
18 |
| (a) Form of Complaint. A foreclosure complaint
may be in |
19 |
| substantially the following form:
|
20 |
| (1) Plaintiff files this complaint to foreclose the |
21 |
| mortgage (or other
conveyance in the nature of a mortgage) |
22 |
| (hereinafter called "mortgage")
hereinafter described and |
23 |
| joins the following person as defendants: (here
insert |
24 |
| names of all defendants).
|
25 |
| (2) The following exhibits and documents shall be |
|
|
|
09500HB1478ham001 |
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LRB095 06755 MJR 34978 a |
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|
1 |
| attached to the complaint: |
2 |
| (A) a copy of the mortgage (Exhibit "A"); |
3 |
| (B) a copy of the note secured by the mortgage |
4 |
| (Exhibit "B"); |
5 |
| (C) the HUD 1 Settlement Statement reflecting the |
6 |
| closing transaction for the loan secured by the |
7 |
| property (Exhibit "C"); |
8 |
| (D) a statement that identifies all prior holders |
9 |
| of the note and the time each note holder held the note |
10 |
| identified by the day, month, and year (Exhibit "D"); |
11 |
| (E) a statement that identifies current and all the |
12 |
| prior servicers of the note and the time each servicer |
13 |
| served the note identified by the day, month, and year |
14 |
| (Exhibit "E"); and |
15 |
| (F) a statement that documents all debits and |
16 |
| credits to the mortgage account during the period of |
17 |
| time, including, but not limited to, the application |
18 |
| and disbursement of all payments received from or for |
19 |
| the benefit of the mortgagor (Exhibit "F"). This |
20 |
| statement shall also include an index of all digital or |
21 |
| numerical codes associated with the loan history along |
22 |
| with all definitions associated with each such code so |
23 |
| as to make the history legible and understandable. The |
24 |
| statement shall itemize the amount and basis for the |
25 |
| following fees: |
26 |
| (i) the past due scheduled principal payments; |
|
|
|
09500HB1478ham001 |
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LRB095 06755 MJR 34978 a |
|
|
1 |
| (ii) the interest due; |
2 |
| (iii) past due taxes; |
3 |
| (iv) hazard insurance; |
4 |
| (v) inspection fees; |
5 |
| (vi) mortgage insurance premiums; |
6 |
| (vii) late fees; |
7 |
| (viii) homeowners' association dues or |
8 |
| assessments; and |
9 |
| (ix) filing fees.
Attached as Exhibit "A" is a |
10 |
| copy of the mortgage and as Exhibit "B"
is a copy |
11 |
| of the note secured thereby.
|
12 |
| (3) Information concerning mortgage:
|
13 |
| (A) Nature of instrument: (here insert whether a |
14 |
| mortgage, trust deed or
other instrument in the nature |
15 |
| of a mortgage, etc.)
|
16 |
| (B) Date of mortgage:
|
17 |
| (C) Name of mortgagor:
|
18 |
| (D) Name of mortgagee:
|
19 |
| (E) Date and place of recording:
|
20 |
| (F) Identification of recording: (here insert book |
21 |
| and page number or document number)
|
22 |
| (G) Interest subject to the mortgage: (here insert |
23 |
| whether fee simple,
estate for years, undivided |
24 |
| interest, etc.)
|
25 |
| (H) Amount of original indebtedness, including |
26 |
| subsequent advances made
under the mortgage:
|
|
|
|
09500HB1478ham001 |
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LRB095 06755 MJR 34978 a |
|
|
1 |
| (I) Both the legal description of the mortgaged |
2 |
| real estate and the
common address or other information |
3 |
| sufficient to identify it with reasonable certainty:
|
4 |
| (J) Statement as to defaults, including, but not |
5 |
| necessarily
limited to, date of default, current |
6 |
| unpaid principal balance, per diem
interest accruing, |
7 |
| and any further information concerning the default:
|
8 |
| (K) Name of present owner of the real estate:
|
9 |
| (L) Names of other persons who are joined as |
10 |
| defendants and whose
interest in or lien on the |
11 |
| mortgaged real estate is sought to be terminated:
|
12 |
| (M) Names of defendants claimed to be personally |
13 |
| liable
for deficiency, if any:
|
14 |
| (M) The specific capacity
(N) Capacity in which |
15 |
| plaintiff brings this foreclosure (here indicate
|
16 |
| whether plaintiff is the legal holder of the |
17 |
| indebtedness, a pledgee, an
agent, the trustee under a |
18 |
| trust deed or otherwise, as appropriate):
|
19 |
| (N)
(O) Facts in support of redemption period |
20 |
| shorter than
the longer of (i) 7 months from the date |
21 |
| the mortgagor or, if more than
one, all the mortgagors |
22 |
| (I) have been served with summons or by publication
or |
23 |
| (II) have otherwise submitted to the jurisdiction of |
24 |
| the court, or (ii)
3 months from the entry of the |
25 |
| judgment of foreclosure, if sought (here
indicate |
26 |
| whether based upon the real estate not being |
|
|
|
09500HB1478ham001 |
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LRB095 06755 MJR 34978 a |
|
|
1 |
| residential,
abandonment, or real estate value less |
2 |
| than 90%
of amount owed, etc.):
|
3 |
| (O)
(P) Statement that the right of redemption has |
4 |
| been waived by all
owners of redemption, if applicable:
|
5 |
| (P)
(Q) Facts in support of request for attorneys' |
6 |
| fees and of costs and
expenses, if applicable:
|
7 |
| (Q)
(R) Facts in support of a request for |
8 |
| appointment of mortgagee in
possession or for |
9 |
| appointment of receiver, and identity of such |
10 |
| receiver, if
sought:
|
11 |
| (R)
(S) Offer to mortgagor in accordance with |
12 |
| Section 15-1402 to accept
title to the real estate in |
13 |
| satisfaction of all indebtedness and
obligations |
14 |
| secured by the mortgage without judicial sale, if |
15 |
| sought:
|
16 |
| (S)
(T) Name or names of defendants whose right to
|
17 |
| possess the mortgaged real estate, after the |
18 |
| confirmation of a foreclosure
sale, is
sought to be |
19 |
| terminated and, if not elsewhere stated, the facts in |
20 |
| support
thereof:
|
21 |
| REQUEST FOR RELIEF
|
22 |
| Plaintiff requests:
|
23 |
| (i) A judgment of foreclosure and sale.
|
24 |
| (ii) An order granting a shortened redemption period, |
25 |
| if sought.
|
|
|
|
09500HB1478ham001 |
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LRB095 06755 MJR 34978 a |
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|
1 |
| (iii) A personal judgment for a deficiency, if sought.
|
2 |
| (iv) An order granting possession, if sought.
|
3 |
| (v) An order placing the mortgagee in possession or |
4 |
| appointing a receiver,
if sought.
|
5 |
| (vi) A judgment for attorneys' fees, costs and |
6 |
| expenses, if sought.
|
7 |
| (a-5) Facts. Compliance with Section 15-1502.5 of this Code |
8 |
| shall be set forth with facts stated in the complaint filed |
9 |
| pursuant to this Section. If the mortgagee in any complaint |
10 |
| seeking foreclosure of a residential real estate mortgage |
11 |
| alleges that the property subject to the residential real |
12 |
| estate mortgage has been abandoned or voluntarily surrendered, |
13 |
| the mortgagee shall plead the specific facts upon which this |
14 |
| allegation is based.
|
15 |
| (b) Required Information. A foreclosure complaint need |
16 |
| contain only such
statements and requests called for by the |
17 |
| form set forth in subsection (a) of
Section
15-1504 as may be |
18 |
| appropriate for the relief sought. Such complaint may
be filed |
19 |
| as a counterclaim, may be joined with other counts or may |
20 |
| include
in the same count additional matters or a request for |
21 |
| any additional
relief permitted by Article
II of the Code of |
22 |
| Civil Procedure.
|
23 |
| (c) Allegations. The statements contained in a complaint in |
24 |
| the form
set forth in subsection (a) of Section 15-1504 are |
25 |
| deemed and construed to include
allegations as follows:
|
|
|
|
09500HB1478ham001 |
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LRB095 06755 MJR 34978 a |
|
|
1 |
| (1) on the date indicated the obligor of the |
2 |
| indebtedness or other
obligations secured by the mortgage |
3 |
| was justly indebted in the amount of
the indicated original |
4 |
| indebtedness to the original mortgagee or payee of
the |
5 |
| mortgage note;
|
6 |
| (2) that the exhibits attached are true and correct |
7 |
| copies of the
mortgage and note and are incorporated and |
8 |
| made a part of the complaint by
express reference;
|
9 |
| (3) that the mortgagor was at the date indicated an |
10 |
| owner of the
interest in the real estate described in the |
11 |
| complaint and that as of that
date made, executed and |
12 |
| delivered the mortgage as security for the note or
other |
13 |
| obligations;
|
14 |
| (4) that the mortgage was recorded in the county in |
15 |
| which the mortgaged
real estate is located, on the date |
16 |
| indicated, in the book and page or as
the document number |
17 |
| indicated;
|
18 |
| (5) that defaults occurred as indicated;
|
19 |
| (6) that at the time of the filing of the complaint the |
20 |
| persons named as
present owners are the owners of the |
21 |
| indicated interests in and to the real
estate described;
|
22 |
| (7) that the mortgage constitutes a valid, prior and |
23 |
| paramount lien upon
the indicated interest in the mortgaged |
24 |
| real estate, which lien is prior and
superior to the right, |
25 |
| title, interest, claim or lien of all parties and
nonrecord |
26 |
| claimants whose interests in the mortgaged real estate are
|
|
|
|
09500HB1478ham001 |
- 25 - |
LRB095 06755 MJR 34978 a |
|
|
1 |
| sought to be terminated;
|
2 |
| (8) that by reason of the defaults alleged, if the |
3 |
| indebtedness has not
matured by its terms, the same has |
4 |
| become due by the exercise, by the
plaintiff or other |
5 |
| persons having such power, of a right or power to
declare |
6 |
| immediately due and payable the whole of all indebtedness |
7 |
| secured
by the mortgage;
|
8 |
| (9) that any and all notices of default or election to |
9 |
| declare the
indebtedness due and payable or other notices |
10 |
| required to be given have
been duly and properly given;
|
11 |
| (10) that any and all periods of grace or other period |
12 |
| of time allowed
for the performance of the covenants or |
13 |
| conditions claimed to be breached
or for the curing of any |
14 |
| breaches have expired;
|
15 |
| (11) that the amounts indicated in the statement
in the |
16 |
| complaint are correctly stated and
if such statement |
17 |
| indicates any advances made or to be made by the
plaintiff |
18 |
| or owner of the mortgage indebtedness, that such advances |
19 |
| were,
in fact, made or will be
required to be made, and |
20 |
| under and by virtue of the mortgage the same
constitute |
21 |
| additional indebtedness secured by the mortgage; and
|
22 |
| (12) that, upon confirmation of the sale, the holder of |
23 |
| the certificate
of sale or deed issued pursuant to that |
24 |
| certificate or, if no certificate or
deed was issued, the |
25 |
| purchaser at the sale will be entitled to full possession
|
26 |
| of the mortgaged real estate against the parties
named in |
|
|
|
09500HB1478ham001 |
- 26 - |
LRB095 06755 MJR 34978 a |
|
|
1 |
| clause (T) of
paragraph (3) of subsection (a) of Section |
2 |
| 15-1504 or elsewhere to the same
effect;
the omission of |
3 |
| any
party indicates that plaintiff will not seek a |
4 |
| possessory order in the order
confirming sale unless the |
5 |
| request is subsequently made under subsection (h) of
|
6 |
| Section 15-1701 or by separate action under Article 9 of |
7 |
| this Code.
|
8 |
| (d) Request for Fees and Costs. A statement in the |
9 |
| complaint that
plaintiff seeks the inclusion of attorneys' fees |
10 |
| and of costs and expenses
shall be deemed and construed to |
11 |
| include allegations that:
|
12 |
| (1) plaintiff has been compelled to employ and retain |
13 |
| attorneys to
prepare and file the complaint and to |
14 |
| represent and advise the plaintiff in
the foreclosure of |
15 |
| the mortgage and the plaintiff will thereby become
liable |
16 |
| for the usual, reasonable and customary fees of the |
17 |
| attorneys in
that behalf;
|
18 |
| (2) that the plaintiff has been compelled to advance or |
19 |
| will be
compelled to advance, various sums of money in |
20 |
| payment of costs, fees,
expenses and disbursements |
21 |
| incurred in connection with the foreclosure,
including, |
22 |
| without limiting the generality of the foregoing, filing |
23 |
| fees,
stenographer's fees, witness fees, costs of |
24 |
| publication, costs of procuring
and preparing documentary |
25 |
| evidence and costs of procuring
abstracts of title, Torrens |
26 |
| certificates, foreclosure minutes and a title
insurance |
|
|
|
09500HB1478ham001 |
- 27 - |
LRB095 06755 MJR 34978 a |
|
|
1 |
| policy;
|
2 |
| (3) that under the terms of the mortgage, all such |
3 |
| advances, costs,
attorneys' fees and other fees, expenses |
4 |
| and disbursements are made a lien
upon the mortgaged real |
5 |
| estate and the plaintiff is entitled to recover all
such |
6 |
| advances, costs, attorneys' fees, expenses and |
7 |
| disbursements, together
with interest on all advances at |
8 |
| the rate provided in the mortgage, or, if
no rate is |
9 |
| provided therein, at the statutory judgment rate, from the
|
10 |
| date on which such advances are made;
|
11 |
| (4) that in order to protect the lien of the mortgage, |
12 |
| it may become
necessary for plaintiff to pay taxes and |
13 |
| assessments which have been or may
be levied upon the |
14 |
| mortgaged real estate;
|
15 |
| (5) that in order to protect and preserve the mortgaged |
16 |
| real estate, it
may also become necessary for the plaintiff |
17 |
| to pay liability (protecting
mortgagor and mortgagee), |
18 |
| fire and other hazard
insurance premiums on the mortgaged |
19 |
| real estate, make such repairs
to the mortgaged real
estate |
20 |
| as may reasonably be deemed necessary for the proper |
21 |
| preservation
thereof, advance for costs to inspect the |
22 |
| mortgaged real estate or to
appraise it, or both, and |
23 |
| advance for premiums for pre-existing private or
|
24 |
| governmental mortgage insurance to the extent required |
25 |
| after a foreclosure
is commenced in order to keep such |
26 |
| insurance in force; and
|
|
|
|
09500HB1478ham001 |
- 28 - |
LRB095 06755 MJR 34978 a |
|
|
1 |
| (6) that under the terms of the mortgage, any money so |
2 |
| paid or expended
will become an additional indebtedness |
3 |
| secured by the mortgage and will bear
interest from the |
4 |
| date such monies are advanced at the rate provided in the
|
5 |
| mortgage, or, if no rate is provided, at the
statutory |
6 |
| judgment rate.
|
7 |
| (e) Request for Foreclosure. The request for foreclosure is |
8 |
| deemed and
construed to mean that the plaintiff requests that:
|
9 |
| (1) an accounting may be taken under the direction of |
10 |
| the court of the
amounts due and owing to the plaintiff;
|
11 |
| (2) that the defendants be ordered to pay to the |
12 |
| plaintiff before
expiration of any redemption period (or, |
13 |
| if no redemption period, before a
short date fixed by the |
14 |
| court) whatever sums may appear to be due upon the taking
|
15 |
| of such account,
together with attorneys' fees and costs of |
16 |
| the proceedings (to the extent
provided in the mortgage or |
17 |
| by law);
|
18 |
| (3) that in default of such payment in accordance with |
19 |
| the judgment, the
mortgaged real estate be sold as directed |
20 |
| by the court, to satisfy the
amount due to the plaintiff as |
21 |
| set forth in the judgment, together with the
interest |
22 |
| thereon at the statutory judgment rate from the date of the |
23 |
| judgment;
|
24 |
| (4) that in the event the plaintiff is a purchaser of |
25 |
| the mortgaged real
estate at such sale, the plaintiff may |
26 |
| offset against the purchase price of
such real estate the |
|
|
|
09500HB1478ham001 |
- 29 - |
LRB095 06755 MJR 34978 a |
|
|
1 |
| amounts due under the judgment of foreclosure and
order |
2 |
| confirming the sale;
|
3 |
| (5) that in the event of such sale and the failure of |
4 |
| any person entitled
thereto to redeem prior to such sale |
5 |
| pursuant to this Article, the
defendants made parties to |
6 |
| the foreclosure in accordance with this Article,
and all |
7 |
| nonrecord claimants given notice of the foreclosure in |
8 |
| accordance
with this Article, and all persons claiming by, |
9 |
| through or under them, and
each and any and all of them, |
10 |
| may be forever barred and foreclosed of any
right, title, |
11 |
| interest, claim, lien, or right to redeem in and to the
|
12 |
| mortgaged real estate; and
|
13 |
| (6) that if no redemption is made prior to such sale, a |
14 |
| deed may be
issued to the purchaser thereat according to |
15 |
| law and such purchaser be let
into possession of the |
16 |
| mortgaged real estate in accordance with Part 17 of this |
17 |
| Article.
|
18 |
| (f) Request for Deficiency Judgment. A request for a |
19 |
| personal judgment
for a deficiency in a foreclosure complaint |
20 |
| if the sale of the mortgaged
real estate fails to produce a |
21 |
| sufficient amount to pay the amount found
due, the plaintiff |
22 |
| may have a personal judgment against any party in the
|
23 |
| foreclosure indicated as being personally liable therefor and |
24 |
| the enforcement
thereof be had as provided by law.
|
25 |
| (g) Request for Possession or Receiver. A request for |
26 |
| possession or appointment
of a receiver has the meaning as |
|
|
|
09500HB1478ham001 |
- 30 - |
LRB095 06755 MJR 34978 a |
|
|
1 |
| stated in subsection (b) of Section 15-1706.
|
2 |
| (h) Answers by Parties. Any party
may assert its interest |
3 |
| by counterclaim and such counterclaim may at the
option of that |
4 |
| party stand in lieu of answer to the complaint for
foreclosure |
5 |
| and all counter complaints previously or thereafter filed
in |
6 |
| the foreclosure. Any such counterclaim shall be deemed to |
7 |
| constitute a
statement that the counter claimant does not have |
8 |
| sufficient knowledge to
form a belief as to the truth or |
9 |
| falsity of the
allegations of the complaint and all other |
10 |
| counterclaims, except
to the extent that the counterclaim |
11 |
| admits or specifically denies such
allegations.
|
12 |
| (Source: P.A. 91-357, eff. 7-29-99.)
|
13 |
| (735 ILCS 5/15-1507) (from Ch. 110, par. 15-1507)
|
14 |
| Sec. 15-1507. Judicial Sale.
|
15 |
| (a) In General. Except as provided in
Sections 15-1402 and |
16 |
| 15-1403, upon entry of a judgment of foreclosure, the
real |
17 |
| estate which is the subject of the judgment shall be sold at a
|
18 |
| judicial sale in accordance with this Section 15-1507.
|
19 |
| (b) Sale Procedures. Upon expiration of the reinstatement |
20 |
| period and
the redemption period in accordance with subsection |
21 |
| (b) or (c) of Section
15-1603 or upon the entry of a judgment |
22 |
| of foreclosure after the waiver of
all rights of redemption, |
23 |
| except as provided in subsection (g) of Section
15-1506, the |
24 |
| real estate shall be sold at a sale as provided in this
|
25 |
| Article, on such terms and conditions as shall be specified by |
|
|
|
09500HB1478ham001 |
- 31 - |
LRB095 06755 MJR 34978 a |
|
|
1 |
| the court in
the judgment of foreclosure. A sale may be |
2 |
| conducted by any judge or sheriff.
|
3 |
| (c) Notice of Sale. The mortgagee, or such other party |
4 |
| designated by the
court, in a foreclosure under this Article |
5 |
| shall give public notice of the
sale as follows:
|
6 |
| (1) The notice of sale shall include at least the |
7 |
| following information,
but an immaterial error in the |
8 |
| information shall not invalidate the legal
effect of the |
9 |
| notice:
|
10 |
| (A) the name, address and telephone number of the |
11 |
| person to contact for
information regarding the real |
12 |
| estate;
|
13 |
| (B) the common address and other common |
14 |
| description (other than legal
description), if any, of |
15 |
| the real estate;
|
16 |
| (C) a legal description of the real estate |
17 |
| sufficient to identify it with
reasonable certainty;
|
18 |
| (D) a description of the improvements on the real |
19 |
| estate;
|
20 |
| (E) the times specified in the judgment, if any, |
21 |
| when the real estate
may be inspected prior to sale;
|
22 |
| (F) the time and place of the sale;
|
23 |
| (G) the terms of the sale;
|
24 |
| (H) the case title, case number and the court in |
25 |
| which
the foreclosure was filed;
|
26 |
| (H-1) in the case of a condominium unit to which |
|
|
|
09500HB1478ham001 |
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LRB095 06755 MJR 34978 a |
|
|
1 |
| subsection (g) of Section 9 of the Condominium Property |
2 |
| Act applies, the statement required by subdivision |
3 |
| (g)(5) of Section 9 of the Condominium Property Act; |
4 |
| and
|
5 |
| (I) such other information ordered by the Court.
|
6 |
| (2) The notice of sale shall be published at least 3 |
7 |
| consecutive
calendar weeks (Sunday through Saturday), once |
8 |
| in each week, the first such
notice to be published not |
9 |
| more than 45 days prior to the sale, the last
such notice |
10 |
| to be published not less than 7 days prior to the sale, by:
|
11 |
| (i) (A) advertisements in a newspaper circulated to the |
12 |
| general public
in the county in which the real estate is |
13 |
| located, in the section of that
newspaper where legal |
14 |
| notices are commonly placed and (B) separate
|
15 |
| advertisements in the section of such a newspaper, which |
16 |
| (except in
counties with a population in excess of |
17 |
| 3,000,000) may be the same
newspaper, in which real estate |
18 |
| other than real estate being sold as part of
legal |
19 |
| proceedings is commonly advertised to the general public; |
20 |
| provided,
that the separate advertisements in the real |
21 |
| estate section need not
include a legal description and |
22 |
| that where both advertisements could be
published in the |
23 |
| same newspaper and that newspaper does not have separate
|
24 |
| legal notices and real estate advertisement sections, a |
25 |
| single
advertisement with the legal description shall be |
26 |
| sufficient; and
(ii) such other publications as may be |
|
|
|
09500HB1478ham001 |
- 33 - |
LRB095 06755 MJR 34978 a |
|
|
1 |
| further ordered by the court.
|
2 |
| (3) The party who gives notice of public sale in |
3 |
| accordance with
subsection (c) of Section 15-1507 shall |
4 |
| also give notice to all parties in
the action who have been |
5 |
| served with a complaint pursuant to Section 15-1504 of this |
6 |
| Code
appeared and have not theretofore been found by the
|
7 |
| court to be in default for failure to plead . Such notice |
8 |
| shall be given in
the manner provided in the applicable |
9 |
| rules of court for service of papers
other than process and |
10 |
| complaint, not more than 45 days nor less
than 7
days prior |
11 |
| to the day of sale. After notice is given as required in |
12 |
| this
Section a copy thereof shall be filed in the office of |
13 |
| the clerk of the
court entering the judgment, together with |
14 |
| a certificate of counsel or
other proof that notice has |
15 |
| been served in compliance with this Section.
|
16 |
| (4) The party who gives notice of public sale in |
17 |
| accordance with
subsection (c) of Section 15-1507 shall |
18 |
| again give notice in accordance
with that Section of any |
19 |
| adjourned sale; provided, however, that if the
adjourned |
20 |
| sale is to occur less than 60 days after the last scheduled |
21 |
| sale,
notice of any adjourned sale need not be given |
22 |
| pursuant to this
Section. In the event of adjournment, the
|
23 |
| person conducting the sale shall, upon adjournment, |
24 |
| announce the date, time
and place upon which the adjourned |
25 |
| sale shall be held. Notwithstanding any
language to the |
26 |
| contrary, for any adjourned sale that is to be conducted
|
|
|
|
09500HB1478ham001 |
- 34 - |
LRB095 06755 MJR 34978 a |
|
|
1 |
| more than 60 days after the date on which it was to first |
2 |
| be held, the
party giving notice of such sale shall again |
3 |
| give notice in accordance with
this Section.
|
4 |
| (5) Notice of the sale may be given prior to the |
5 |
| expiration of any
reinstatement period or redemption |
6 |
| period.
|
7 |
| (6) No other notice by publication or posting shall be |
8 |
| necessary unless
required by order or rule of the court.
|
9 |
| (7) The person named in the notice of sale to be |
10 |
| contacted for
information about the real estate may, but |
11 |
| shall not be required, to
provide additional information |
12 |
| other than that set forth in the notice of sale.
|
13 |
| (d) Election of Property. If the real estate which is the |
14 |
| subject of a
judgment of foreclosure is susceptible of |
15 |
| division, the court may order it to be sold
as necessary to |
16 |
| satisfy the judgment. The court shall determine which real
|
17 |
| estate shall be sold, and the court may determine the order in |
18 |
| which
separate tracts may be sold.
|
19 |
| (e) Receipt upon Sale.
Upon and at the sale
of mortgaged |
20 |
| real estate, the person conducting the sale shall give to
the |
21 |
| purchaser a receipt of sale. The receipt shall describe the |
22 |
| real
estate purchased and shall show the amount bid, the amount |
23 |
| paid, the
total amount paid to
date and the amount still to be |
24 |
| paid therefor. An
additional receipt shall be given at the time |
25 |
| of each subsequent
payment.
|
26 |
| (f) Certificate of Sale. Upon
payment in full of the amount |
|
|
|
09500HB1478ham001 |
- 35 - |
LRB095 06755 MJR 34978 a |
|
|
1 |
| bid, the person conducting
the sale shall issue, in duplicate, |
2 |
| and give to the purchaser a Certificate
of Sale. The |
3 |
| Certificate of Sale shall be in a recordable form, describe
the |
4 |
| real estate purchased, indicate the date and place of sale and |
5 |
| show the
amount paid therefor. The Certificate of Sale shall |
6 |
| further indicate that
it is subject to confirmation by the |
7 |
| court. The duplicate certificate may
be recorded in accordance |
8 |
| with Section 12-121. The Certificate of Sale
shall be freely |
9 |
| assignable by endorsement thereon.
|
10 |
| (g) Interest after Sale. Any bid at sale shall be deemed to |
11 |
| include,
without the necessity of a court order, interest at |
12 |
| the statutory judgment
rate on any unpaid portion of the sale |
13 |
| price from the date of sale to the
date of payment.
|
14 |
| (Source: P.A. 94-1049, eff. 1-1-07.)
|
15 |
| (735 ILCS 5/15-1508) (from Ch. 110, par. 15-1508)
|
16 |
| Sec. 15-1508. Report of Sale and Confirmation of Sale.
|
17 |
| (a) Report. The person conducting the sale shall promptly |
18 |
| make a report to
the court, which report shall include a copy |
19 |
| of all receipts and, if any,
certificate of sale.
|
20 |
| (b) Hearing. Upon motion and notice in accordance with |
21 |
| court rules
applicable to motions generally, which motion shall |
22 |
| not be made prior to
sale, the court shall conduct a hearing to
|
23 |
| confirm the sale. Unless the court finds that (i) a notice |
24 |
| required in
accordance with subsection (c) of Section 15-1507 |
25 |
| was not given, (ii) the
terms of sale were unconscionable, |
|
|
|
09500HB1478ham001 |
- 36 - |
LRB095 06755 MJR 34978 a |
|
|
1 |
| (iii) the sale was conducted
fraudulently or (iv) that justice |
2 |
| was otherwise not done, the court shall
then enter an order |
3 |
| confirming the sale. The confirmation order may
also:
|
4 |
| (1) approve the mortgagee's fees and costs arising |
5 |
| between the entry of
the judgment of foreclosure and the |
6 |
| confirmation hearing, those costs and
fees to be allowable |
7 |
| to the same extent as provided in the note and mortgage
and |
8 |
| in Section 15-1504;
|
9 |
| (2) provide for a personal judgment against any party |
10 |
| for a deficiency;
and
|
11 |
| (3) determine the priority of the judgments of parties |
12 |
| who deferred proving
the priority pursuant to subsection |
13 |
| (h) of Section 15-1506, but
the court shall not
defer |
14 |
| confirming the sale pending the determination of such |
15 |
| priority.
|
16 |
| (c) Failure to Give Notice. If any sale is held without |
17 |
| compliance with
subsection (c) of Section 15-1507 of this |
18 |
| Article, any party entitled to
the notice provided for in |
19 |
| paragraph (3) of that subsection
(c) who was not so notified |
20 |
| may, by motion supported by affidavit
made prior to |
21 |
| confirmation of such sale, ask the court which entered the
|
22 |
| judgment to set aside the sale, provided that such party shall |
23 |
| guarantee or
secure by bond a bid equal to the successful bid |
24 |
| at the prior sale. Any
subsequent sale is subject to the same |
25 |
| notice requirement as the original sale.
|
26 |
| (d) Validity of Sale. Except as provided in subsection (c) |
|
|
|
09500HB1478ham001 |
- 37 - |
LRB095 06755 MJR 34978 a |
|
|
1 |
| of Section
15-1508, no sale under this Article shall be held |
2 |
| invalid or be set aside
because of any defect in the notice |
3 |
| thereof or in the publication of the
same, or in the |
4 |
| proceedings of the officer conducting the sale, except upon
|
5 |
| good cause shown in a hearing pursuant to subsection (b) of |
6 |
| Section
15-1508. At any time after a sale has occurred, any |
7 |
| party entitled to
notice under paragraph (3) of subsection (c) |
8 |
| of Section 15-1507 may recover
from the mortgagee any damages |
9 |
| caused by the mortgagee's failure to comply
with such paragraph |
10 |
| (3). Any party who recovers damages in a judicial
proceeding |
11 |
| brought under this subsection may also recover from the
|
12 |
| mortgagee the reasonable expenses of litigation, including |
13 |
| reasonable attorney's fees.
|
14 |
| (e) Deficiency Judgment. In any order confirming a sale |
15 |
| pursuant to the
judgment of foreclosure, the court shall also |
16 |
| enter a personal judgment
for deficiency against any party (i) |
17 |
| if otherwise authorized and (ii) to
the extent requested in the |
18 |
| complaint and proven upon presentation of the
report of sale in |
19 |
| accordance with Section 15-1508. Except as otherwise provided
|
20 |
| in this Article, a judgment may be entered for any balance of |
21 |
| money that
may be found due to the plaintiff, over and above |
22 |
| the proceeds of the sale
or sales, and enforcement may be had |
23 |
| for the collection of such balance,
the same as when the |
24 |
| judgment is solely for the payment of money. Such
judgment may |
25 |
| be entered, or enforcement had,
only in cases where personal |
26 |
| service has been had upon the
persons personally liable for the |
|
|
|
09500HB1478ham001 |
- 38 - |
LRB095 06755 MJR 34978 a |
|
|
1 |
| mortgage indebtedness, unless they have
entered their |
2 |
| appearance in the foreclosure action.
|
3 |
| (f) Satisfaction. Upon confirmation of the sale, the
|
4 |
| judgment stands satisfied to the extent of the sale price less |
5 |
| expenses and
costs. If the order confirming the sale includes a |
6 |
| deficiency judgment, the
judgment shall become a lien in the |
7 |
| manner of any other
judgment for the payment of money.
|
8 |
| (g) The order confirming the sale shall include, |
9 |
| notwithstanding any
previous orders awarding possession during |
10 |
| the pendency of the foreclosure, an
award to the purchaser of |
11 |
| possession of the mortgaged real estate, as of the
date 30 days |
12 |
| after the entry of the order, against the
parties to the |
13 |
| foreclosure whose interests have been terminated.
|
14 |
| An order of possession authorizing the removal of a person |
15 |
| from possession
of the mortgaged real estate shall be entered |
16 |
| and enforced only against those
persons personally
named as |
17 |
| individuals in the complaint or the petition under subsection |
18 |
| (h)
of Section 15-1701 and in the order of possession and shall
|
19 |
| not be entered and enforced against any person who is only |
20 |
| generically
described as an
unknown owner or nonrecord claimant |
21 |
| or by another generic designation in the
complaint.
|
22 |
| Notwithstanding the preceding paragraph, the failure to |
23 |
| personally
name,
include, or seek an award of
possession of the |
24 |
| mortgaged real estate against a person in the
confirmation |
25 |
| order shall not abrogate any right that the purchaser may have |
26 |
| to
possession of the mortgaged real estate and to maintain a |
|
|
|
09500HB1478ham001 |
- 39 - |
LRB095 06755 MJR 34978 a |
|
|
1 |
| proceeding against
that person for
possession under Article 9 |
2 |
| of this Code or subsection (h) of Section 15-1701;
and |
3 |
| possession against a person
who (1) has not been personally |
4 |
| named as a party to the
foreclosure and (2) has not been |
5 |
| provided an opportunity to be heard in the
foreclosure |
6 |
| proceeding may be sought only by maintaining a
proceeding under |
7 |
| Article 9 of this
Code or subsection (h) of Section 15-1701.
|
8 |
| (Source: P.A. 88-265; 89-203, eff. 7-21-95.)
|
9 |
| (735 ILCS 5/15-1510) (from Ch. 110, par. 15-1510)
|
10 |
| Sec. 15-1510. Attorney's Fees and Costs by Written |
11 |
| Agreement.
|
12 |
| (a) Attorneys' fees and other costs incurred in connection |
13 |
| with the
preparation, filing or prosecution of the foreclosure |
14 |
| suit shall be
recoverable in a foreclosure only to the extent
|
15 |
| specifically set forth in the mortgage or other written |
16 |
| agreement between
the mortgagor and the mortgagee or as |
17 |
| otherwise provided in this Article. |
18 |
| (b) The mortgagor shall not be liable for any attorney's |
19 |
| fees or other costs attributable to providing the notice |
20 |
| required by Section 15-1502.5 of this Code. |
21 |
| (c) A court of competent jurisdiction may award reasonable |
22 |
| attorney's fees to the prevailing party.
|
23 |
| (Source: P.A. 86-974.)
|
24 |
| (735 ILCS 5/15-1513 new)
|
|
|
|
09500HB1478ham001 |
- 40 - |
LRB095 06755 MJR 34978 a |
|
|
1 |
| Sec. 15-1513. Waiver. No mortgagee of a residential real |
2 |
| estate loan may waive any of the rights in Sections 15-1502.5, |
3 |
| 15-1504, 15-1506, 15-1507, or 15-1510 of this Code. |
4 |
| (735 ILCS 5/15-1514 new)
|
5 |
| Sec. 15-1514. Severability. If any provision of this |
6 |
| Article or its application to any person or circumstance is |
7 |
| held invalid, the invalidity of that provision or application |
8 |
| does not affect other provisions or applications of this |
9 |
| Article that can be given effect without the invalid provision |
10 |
| or application.
|
11 |
| (735 ILCS 5/15-1604) (from Ch. 110, par. 15-1604)
|
12 |
| Sec. 15-1604. Special Right to Redeem.
|
13 |
| (a) Circumstances. With
respect to residential real |
14 |
| estate, if (i) the purchaser at the sale was a
mortgagee who |
15 |
| was a party to the foreclosure or its nominee and (ii) the
sale |
16 |
| price was less than the amount specified in subsection (d) of |
17 |
| Section
15-1603, then, and only in such circumstances, an owner |
18 |
| of redemption as
specified in subsection (a) of Section 15-1603 |
19 |
| shall have a special right
to redeem, for a period ending 60
30
|
20 |
| days after the date the sale is
confirmed, by paying to the |
21 |
| mortgagee (i) the sale price, (ii) all additional
costs and |
22 |
| expenses incurred by the mortgagee set forth in the report of
|
23 |
| sale and confirmed by the court, and (iii) interest at the |
24 |
| statutory
judgment rate from the date the purchase price was |
|
|
|
09500HB1478ham001 |
- 41 - |
LRB095 06755 MJR 34978 a |
|
|
1 |
| paid or credited as an offset.
|
2 |
| (b) Procedure. Upon receipt of such amount, the mortgagee |
3 |
| shall assign
to the redeeming owner of redemption its |
4 |
| certificate of
sale or its right to such certificate or to a |
5 |
| deed. The mortgagee shall
give to the redeeming owner of |
6 |
| redemption an executed duplicate of such
assignment, marked |
7 |
| "Duplicate", which duplicate the owner of redemption
shall file |
8 |
| with the court. If a deed has been issued to the mortgagee
or |
9 |
| its nominee, the holder of such deed, or such holder's |
10 |
| successor in
title, shall execute and deliver a deed conveying |
11 |
| the
mortgaged real estate to
the redeeming owner of redemption |
12 |
| subject only to those encumbrances that
would normally arise on |
13 |
| title if a redemption were made under Section
15-1603, |
14 |
| including a deficiency, if any, resulting from the foreclosure
|
15 |
| sale. Nothing contained herein shall affect the right to a |
16 |
| personal or in
rem deficiency judgment, and enforcement thereof |
17 |
| shall be allowed as provided
by law. Any deficiency judgment |
18 |
| shall retain the same priority on title as did
the mortgage |
19 |
| from which it arose. The mortgagee, its nominee or its
|
20 |
| successors in title shall not permit encumbrances on title |
21 |
| arising on or
after the date of the deed to the
mortgagee or |
22 |
| nominee caused by or relating
to the mortgagee or its nominee |
23 |
| or its successors in title.
|
24 |
| (Source: P.A. 86-974.)
|
25 |
| Section 15. The Interest Act is amended by changing Section |
|
|
|
09500HB1478ham001 |
- 42 - |
LRB095 06755 MJR 34978 a |
|
|
1 |
| 4.1a as follows:
|
2 |
| (815 ILCS 205/4.1a) (from Ch. 17, par. 6406)
|
3 |
| Sec. 4.1a. Charges for and cost of the following items paid |
4 |
| or
incurred by any lender in connection with any loan shall not |
5 |
| be deemed
to be charges for or in connection with any loan of |
6 |
| money referred to in
Section 6 of this Act, or charges by the |
7 |
| lender as a consideration for
the loan referred to in this |
8 |
| Section:
|
9 |
| (a) hazard, mortgage or life insurance premiums, |
10 |
| survey, credit
report, title insurance, abstract and |
11 |
| attorneys' fees, recording
charges, escrow and appraisal |
12 |
| fees, and similar charges.
|
13 |
| (b) in the case of construction loans, in addition to |
14 |
| the matters
referred to in clause (a) above, the actual |
15 |
| cost incurred by the lender
for services for making |
16 |
| physical inspections, processing payouts,
examining and |
17 |
| reviewing contractors' and subcontractors' sworn
|
18 |
| statements and waivers of lien and the like.
|
19 |
| (c) in the case of any loan made pursuant to the |
20 |
| provisions of the
Emergency Home Purchase Assistance Act of |
21 |
| 1974 (Section 313 of the
National Housing Act, Chapter B of |
22 |
| Title 12 of the United States Code),
in addition to the |
23 |
| matters referred to in paragraphs (a) and (b) of this
|
24 |
| Section all charges required or allowed by the Government |
25 |
| National
Mortgage Association, whether designated as |
|
|
|
09500HB1478ham001 |
- 43 - |
LRB095 06755 MJR 34978 a |
|
|
1 |
| processing fees, commitment
fees, loss reserve and |
2 |
| marketing fees, discounts, origination fees or
otherwise |
3 |
| designated.
|
4 |
| (d) in the case of a single payment loan, made for a |
5 |
| period of 6 months
or less, a regulated financial |
6 |
| institution or licensed lender may contract
for and receive |
7 |
| a maximum charge of $15 in lieu of interest. Such charge
|
8 |
| may be collected when the loan is made, but only one such |
9 |
| charge may be
contracted for, received, or collected for |
10 |
| any such loan, including any
extension or renewal thereof.
|
11 |
| (e) if the agreement governing the loan so provides, a |
12 |
| charge not to
exceed the rate permitted under Section 3-806 |
13 |
| of the Uniform Commercial
Code-Commercial Paper for any |
14 |
| check, draft or order for the payment of
money submitted in |
15 |
| accordance with said agreement which is unpaid or not
|
16 |
| honored by a bank or other depository institution.
|
17 |
| (f) if the agreement governing the loan so provides, |
18 |
| for each loan
installment in default for a period of not |
19 |
| less than 10 days, a charge in
an amount not in excess of |
20 |
| 5% of such loan installment. Only one
delinquency charge |
21 |
| may be collected on any such loan installment regardless
of |
22 |
| the period during which it remains in default. Payments |
23 |
| timely received
by the lender under a written extension or |
24 |
| deferral agreement shall not be
subject to any delinquency |
25 |
| charge. |
26 |
| Notwithstanding subdivisions (k) and (l) of subsection (1) |
|
|
|
09500HB1478ham001 |
- 44 - |
LRB095 06755 MJR 34978 a |
|
|
1 |
| of Section 4 of this Act, the provisions of this Section apply |
2 |
| to any residential mortgage loan, as defined in Section 1-4 of |
3 |
| the Residential Mortgage License Act of 1987. |
4 |
| Notwithstanding subsections (k) and (l) of subsection (1) |
5 |
| of Section 4 of this Act, the borrower, in the case of any |
6 |
| nonexempt residential mortgage loan, as defined in Section 1-4 |
7 |
| of the Residential Mortgage License Act of 1987, shall have the |
8 |
| right to prepay the loan in whole or in part at any time |
9 |
| without paying any penalty, fee, premium, or other charge. |
10 |
| No lender shall make, provide, or arrange for a residential |
11 |
| mortgage loan, as that term is defined in Section 1-4 of the |
12 |
| Residential Mortgage License Act of 1987, that finances, |
13 |
| directly or indirectly, any credit life, credit disability, or |
14 |
| credit unemployment insurance or any other life or health |
15 |
| insurance premiums; however, insurance premiums calculated and |
16 |
| paid on a monthly basis shall not be considered to be financed |
17 |
| by the lender.
|
18 |
| Where there is a charge in addition to the stated rate of |
19 |
| interest
payable directly or indirectly by the borrower and |
20 |
| imposed directly or
indirectly by the lender as a consideration |
21 |
| for the loan, or for or in
connection with the loan of money, |
22 |
| whether paid or payable by the
borrower, the seller, or any |
23 |
| other person on behalf of the borrower to
the lender or to a |
24 |
| third party, or for or in connection with the loan of
money, |
25 |
| other than as hereinabove in this Section provided, whether
|
26 |
| denominated "points," "service charge," "discount," |
|
|
|
09500HB1478ham001 |
- 45 - |
LRB095 06755 MJR 34978 a |
|
|
1 |
| "commission," or
otherwise, and without regard to declining |
2 |
| balances of principal which
would result from any required or |
3 |
| optional amortization of the principal
of the loan, the rate of |
4 |
| interest shall be calculated in the following
manner:
|
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| The percentage of the principal amount of the loan |
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| represented by all
of such charges shall first be computed, |
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| which in the case of a loan
with an interest rate in excess of |
8 |
| 8% per annum secured by residential
real estate, other than |
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| loans described in paragraphs (e) and (f) of
Section 4, shall |
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| not exceed 3% of such principal amount. Said
percentage shall |
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| then be divided by the number of years and fractions
thereof of |
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| the period of the loan according to its stated maturity. The
|
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| percentage thus obtained shall then be added to the percentage |
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| of the
stated annual rate of interest.
|
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| The borrower in the case of nonexempt loan shall have the |
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| right to
prepay the loan in whole or in part at any time, but, |
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| except as may
otherwise be provided by Section 4, the lender |
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| may require payment of
not more than 6 months' advance interest |
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| on that part of the aggregate
amount of all prepayments on a |
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| loan in one year, which exceeds 20% of
the original principal |
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| amount of the loan.
|
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| (Source: P.A. 87-496 .)".
|