| |||||||||||||||||||||||||
| |||||||||||||||||||||||||
| |||||||||||||||||||||||||
| |||||||||||||||||||||||||
| |||||||||||||||||||||||||
1 | AN ACT concerning civil law.
| ||||||||||||||||||||||||
2 | Be it enacted by the People of the State of Illinois,
| ||||||||||||||||||||||||
3 | represented in the General Assembly:
| ||||||||||||||||||||||||
4 | Section 5. The Code of Civil Procedure is amended by | ||||||||||||||||||||||||
5 | changing Sections 15-1504 and by adding Sections 15-1502.7 and | ||||||||||||||||||||||||
6 | 15-1504.2 as follows: | ||||||||||||||||||||||||
7 | (735 ILCS 5/15-1502.7 new) | ||||||||||||||||||||||||
8 | Sec. 15-1502.7. Mandatory foreclosure mediation. | ||||||||||||||||||||||||
9 | (a) As used in this Section: | ||||||||||||||||||||||||
10 | "Approved counseling agency" means a housing counseling | ||||||||||||||||||||||||
11 | agency approved by the U.S. Department of Housing and Urban | ||||||||||||||||||||||||
12 | Development. | ||||||||||||||||||||||||
13 | "Approved counselor" or "counselor" means a counselor | ||||||||||||||||||||||||
14 | employed by an approved counseling agency. | ||||||||||||||||||||||||
15 | "Court-appointed mediator" or "mediator" means an attorney | ||||||||||||||||||||||||
16 | who is appointed by the chief judge of the circuit in which the | ||||||||||||||||||||||||
17 | attorney will serve as a mediator pursuant to this Section. | ||||||||||||||||||||||||
18 | "Delinquent" means past due with respect to a payment on a | ||||||||||||||||||||||||
19 | mortgage loan which is secured by a mortgage on residential | ||||||||||||||||||||||||
20 | real estate. | ||||||||||||||||||||||||
21 | "Final mortgage modification plan" or "final plan" | ||||||||||||||||||||||||
22 | includes all documents necessary to give effect to the mortgage | ||||||||||||||||||||||||
23 | modification plan, which have been properly executed by the |
| |||||||
| |||||||
1 | appropriate parties, and which are in a form which, if | ||||||
2 | appropriate, may be recorded in the recorder's office. | ||||||
3 | "Mandatory foreclosure mediation" means an in-person | ||||||
4 | mediation conducted by a court-appointed mediator that must be | ||||||
5 | attended by the mortgagee, any servicer acting for the | ||||||
6 | mortgagee, the mortgagor, and an approved counselor. | ||||||
7 | "Mortgage modification plan" or "plan" means a plan | ||||||
8 | developed through the mandatory mediation process that | ||||||
9 | involves the good faith efforts of the mortgagor, the | ||||||
10 | mortgagee, the servicer, if any, an approved counselor, and the | ||||||
11 | mediator, and which when agreed to by the mortgagor and the | ||||||
12 | mortgagee will enable the mortgagor to stay current on his or | ||||||
13 | her existing or modified mortgage payments for the foreseeable | ||||||
14 | future when taking into account the mortgagor's income and | ||||||
15 | existing and foreseeable debts. A mortgage modification plan | ||||||
16 | may include, but is not limited to: (1) a temporary suspension | ||||||
17 | of payments; (2) a lengthened loan term; (3) a lowered or | ||||||
18 | frozen interest rate; (4) a modification of escrow payments; | ||||||
19 | (5) a change in the entity acting as the loan servicer; (6) a | ||||||
20 | modification or change in the insurance coverages applicable to | ||||||
21 | the mortgage loan or the residential real estate; (7) a | ||||||
22 | principal write down; (8) a repayment plan to pay the existing | ||||||
23 | loan in full; (9) deferred payments; or (10) refinancing into a | ||||||
24 | new affordable loan, which may include adjustable rates if | ||||||
25 | there are reasonable future adjustments that are suitable for | ||||||
26 | the mortgagor. |
| |||||||
| |||||||
1 | "Servicer" means any entity or organization that services a | ||||||
2 | mortgage loan by collecting and accounting for the mortgagor's | ||||||
3 | monthly mortgage payments which may include the principal and | ||||||
4 | interest loan payment, homeowner's insurance premium for the | ||||||
5 | property, principal mortgage insurance premium, real estate | ||||||
6 | taxes, and other escrow payments or charges. | ||||||
7 | (b) The chief judge of each circuit shall appoint a | ||||||
8 | sufficient number of licensed attorneys as court-appointed | ||||||
9 | mediators to meet the need for mediators for mandatory | ||||||
10 | foreclosure mediation in the circuit. The chief judge of each | ||||||
11 | circuit shall only appoint as a mediator an attorney licensed | ||||||
12 | in Illinois who practices or who is employed in the circuit and | ||||||
13 | who has experience or training as a mediator or who has | ||||||
14 | experience in bankruptcy law, real estate law, or banking law. | ||||||
15 | The chief judge of each circuit shall create, and update as | ||||||
16 | appropriate, the list of mediators and supply the list to the | ||||||
17 | circuit clerk. Each chief judge, directly or through a | ||||||
18 | designated judge or court administrator, shall supervise and | ||||||
19 | approve the hours spent by each mediator on each mediation and | ||||||
20 | approve the payment to each mediator according to fee and | ||||||
21 | charge schedules adopted by the chief judge. | ||||||
22 | (c) Notwithstanding any provision in this Section to the | ||||||
23 | contrary, a mortgagor who is delinquent by more than 45 days | ||||||
24 | may file with the circuit clerk for the county in which the | ||||||
25 | mortgagor's residential real estate is located a petition for | ||||||
26 | mandatory foreclosure mediation that includes substantially |
| |||||||
| |||||||
1 | the following information about the mortgagor's residential | ||||||
2 | real estate: | ||||||
3 | (1) Mortgagor or homeowner. Name, mailing address, | ||||||
4 | telephone
number, fax number, and email address, if | ||||||
5 | applicable, of each person who is a mortgagor. | ||||||
6 | (2) Bank or lender. Name, mailing address, contact | ||||||
7 | person, telephone number, fax number, and
email address, if | ||||||
8 | applicable, of each entity that is a mortgagee. | ||||||
9 | (3) Servicer, if any. Name, mailing address, contact | ||||||
10 | person, telephone number, fax number, and
email address, if | ||||||
11 | applicable, of each servicer that acts on behalf of a | ||||||
12 | mortgagee. | ||||||
13 | (4) Loan or account number. The name on the mortgage | ||||||
14 | loan account and the account number
for the mortgage loan | ||||||
15 | serviced by the mortgagee or the servicer. | ||||||
16 | (5) Property description. The street address of the | ||||||
17 | mortgaged residential real
estate. Also include, if | ||||||
18 | available, the legal description of the property. | ||||||
19 | (6) Loan document. Attach a copy of any document that | ||||||
20 | the mortgagor has received
from the mortgagee or the | ||||||
21 | servicer concerning the mortgage loan (for verification of | ||||||
22 | some of the information requested in
items (1) through | ||||||
23 | (5)). | ||||||
24 | (7) Loan delinquency. A statement by the mortgagor that | ||||||
25 | the mortgage loan is
delinquent by 45 days or more. | ||||||
26 | (8) Accurate statements. The mortgagor shall swear or |
| |||||||
| |||||||
1 | affirm that the information contained in the petition is | ||||||
2 | true and accurate to the best of the mortgagor's knowledge. | ||||||
3 | (9) Signature. The signature of the mortgagor (or the | ||||||
4 | signature of at least one
mortgagor if there is more than | ||||||
5 | one mortgagor). | ||||||
6 | The clerk, upon receipt of the mortgagor's petition, shall send | ||||||
7 | by U.S. mail a copy of the mortgagor's petition to each | ||||||
8 | mortgagee or servicer identified by the mortgagor in the | ||||||
9 | petition. | ||||||
10 | (d) Except for mortgages secured by residential real estate | ||||||
11 | in which any mortgagor has filed for relief under the United | ||||||
12 | States Bankruptcy Code, if a mortgage secured by residential | ||||||
13 | real estate becomes delinquent by more than 60 days and the | ||||||
14 | mortgagee has determined that it intends to file a complaint to | ||||||
15 | foreclose the mortgage, the mortgagee shall file a mandatory | ||||||
16 | foreclosure mediation notice with the circuit clerk for the | ||||||
17 | county in which the residential real estate is located and the | ||||||
18 | mortgagee shall also send by first class mail to the mortgagor | ||||||
19 | a copy of the notice. The mandatory foreclosure mediation | ||||||
20 | notice shall be substantially in the form described in | ||||||
21 | subsection (e) and shall communicate that the mortgagee intends | ||||||
22 | to file a complaint to foreclose the mortgage, but that the | ||||||
23 | mortgagee is required to participate in good faith in mandatory | ||||||
24 | foreclosure mediation with the mortgagor. Notwithstanding | ||||||
25 | anything to the contrary in this Section, nothing shall | ||||||
26 | preclude the mortgagor and mortgagee from communicating with |
| |||||||
| |||||||
1 | each other during the initial 60 days of delinquency or | ||||||
2 | reaching agreement on a mortgage modification plan, or both. | ||||||
3 | (e) The notice required in subsection (d) shall include the | ||||||
4 | information described in items (1) through (5) of subsection | ||||||
5 | (c), shall state the date on which the notice was mailed, shall | ||||||
6 | be headed in bold 14-point type "MANDATORY FORECLOSURE | ||||||
7 | MEDIATION NOTICE", and shall state the following in 14-point | ||||||
8 | type: | ||||||
9 | "YOUR LOAN IS MORE THAN 60 DAYS PAST DUE. YOUR LOAN MAY BE | ||||||
10 | PAST DUE BECAUSE OF FINANCIAL PROBLEMS. ILLINOIS LAW PROVIDES | ||||||
11 | YOU WITH PROTECTION AND INFORMATION BEFORE YOU LOSE YOUR | ||||||
12 | RESIDENCE IN COURT THROUGH A FORECLOSURE CASE. IF A RESOLUTION | ||||||
13 | CANNOT BE AGREED UPON BY YOU AND US, WITH THE HELP OF THE | ||||||
14 | MEDIATOR AND COUNSELOR, WE INTEND TO FILE A FORECLOSURE CASE IN | ||||||
15 | COURT. | ||||||
16 | THERE WILL BE A MEDIATION MEETING INVOLVING YOU,
AN | ||||||
17 | APPROVED HOUSING COUNSELOR, US (THE LENDER), AND A | ||||||
18 | COURT-APPOINTED
MEDIATOR. THE MEDIATOR WILL BE THERE TO HELP | ||||||
19 | ALL OF US DETERMINE IF WE CAN FIND A SOLUTION TO THE PROBLEMS
| ||||||
20 | WITH THE LOAN AND KEEP YOUR LOAN AND PROPERTY FROM BECOMING A | ||||||
21 | FORECLOSURE CASE IN COURT. | ||||||
22 | THE PURPOSE OF THE MEDIATION MEETING IS FOR ALL OF US TO | ||||||
23 | MAKE GOOD-FAITH EFFORTS AT
RESOLVING YOUR LOAN WITHOUT
A | ||||||
24 | FORECLOSURE. THIS MAY INCLUDE CHANGES IN THE TERMS OF YOUR LOAN | ||||||
25 | THAT MAKE THE LOAN MORE
AFFORDABLE FOR YOU. THE LAW REQUIRES US | ||||||
26 | TO ATTEND AND TO COOPERATE IN THESE MEETINGS. WE REQUEST THAT |
| |||||||
| |||||||
1 | YOU ALSO COOPERATE. THIS PART OF THE LAW WAS CREATED TO HELP | ||||||
2 | HOMEOWNERS. IF YOU REFUSE TO GO TO THE MEDIATION MEETING OR | ||||||
3 | COOPERATE, THEN IT IS ALMOST CERTAIN THAT THERE WILL BE A | ||||||
4 | FORECLOSURE CASE FILED AGAINST YOU AND YOUR PROPERTY IN COURT." | ||||||
5 | The copy of the notice sent to the mortgagor, the mediator, and | ||||||
6 | the counselor, shall also list the name, telephone number, fax | ||||||
7 | number, mailing address, and email address of the | ||||||
8 | court-appointed mediator and of the court-appointed counselor. | ||||||
9 | No language, other than language substantially similar to the | ||||||
10 | language prescribed in this subsection (e), shall be included | ||||||
11 | in the notice. | ||||||
12 | (f) The mailing of the petition required by subsection (c) | ||||||
13 | and the mailing of the notice required under subsection (e) | ||||||
14 | means depositing or causing to be deposited into the United | ||||||
15 | States mail an envelope with first-class postage prepaid that | ||||||
16 | contains the document to be delivered. The envelopes, as | ||||||
17 | applicable, shall be addressed as follows: (i) to the mortgagor | ||||||
18 | at the common address of the residential real estate securing | ||||||
19 | the mortgage; and (ii) to the mortgagee or the servicer to the | ||||||
20 | address for that entity stated in the petition. | ||||||
21 | (g) Upon the filing of a petition for mandatory mediation | ||||||
22 | by a mortgagee or the filing of a mandatory foreclosure | ||||||
23 | mediation notice by a mortgagor, the mortgagee shall freeze the | ||||||
24 | mortgagor's account. From the date of the filing of a petition | ||||||
25 | for mandatory mediation or the filing of a mandatory | ||||||
26 | foreclosure mediation notice, any obligation on the mortgagor |
| |||||||
| |||||||
1 | to pay to the mortgagee or its agent or employee any | ||||||
2 | installment on the mortgage loan or to pay any type of | ||||||
3 | additional charge, fee, or penalty of any type is stayed, | ||||||
4 | without bond or further notice, until a final mortgage | ||||||
5 | modification plan is reached or the mediator's written report | ||||||
6 | is filed with the clerk and at that time the stay is lifted and | ||||||
7 | the balance owed by the mortgagor as of the time of the | ||||||
8 | freezing of the mortgagor's account shall again be due, | ||||||
9 | however, neither the mortgagee or the servicer may assess, post | ||||||
10 | to the account, or collect in any manner any charge, fee, or | ||||||
11 | penalty of any type for the period between the initial filing | ||||||
12 | and the end of the stay. | ||||||
13 | (h) Upon the filing of a mortgagor's petition for mandatory | ||||||
14 | foreclosure or a mortgagee's mandatory foreclosure mediation | ||||||
15 | notice, the circuit clerk shall randomly assign to the | ||||||
16 | mediation involving the subject residential real estate a | ||||||
17 | mediator from the list of court-appointed mediators received | ||||||
18 | from the chief judge of the circuit. So as to avoid conflicts | ||||||
19 | of interest, each court-appointed mediator shall, upon | ||||||
20 | appointment, notify the clerk of the name of any person or | ||||||
21 | entity that employs the attorney or that the attorney | ||||||
22 | represents that is a mortgagor, mortgagee, or servicer on a | ||||||
23 | mortgage on real property that is located in the circuit. The | ||||||
24 | clerk shall not assign a matter for mediation to a mediator if | ||||||
25 | the mediator has identified as an employer or as a client, any | ||||||
26 | person or entity which is a mortgagor, mortgagee, or servicer |
| |||||||
| |||||||
1 | in the matter to be mediated. Nothing in this subsection shall | ||||||
2 | limit a mediator from declining to mediate a matter for any | ||||||
3 | other legitimate or ethical reason as soon as practicable; if a | ||||||
4 | mediator declines to serve as a mediator in a mediation, the | ||||||
5 | mediator shall promptly notify the clerk so that another | ||||||
6 | mediator may be assigned to the mediation. The clerk shall | ||||||
7 | also, at the time of the assignment of the mediator, assign to | ||||||
8 | that mediation a counselor from an approved counseling agency | ||||||
9 | from a list submitted by the chief judge from names submitted | ||||||
10 | to the chief judge by approved counseling agencies that offer | ||||||
11 | services in that circuit. A counselor shall decline to serve in | ||||||
12 | the mediation if there would be a conflict of interest for the | ||||||
13 | counselor to do so. Nothing in this subsection shall limit a | ||||||
14 | counselor from declining to serve in a mediation for any | ||||||
15 | legitimate or ethical reason as soon as practicable; if a | ||||||
16 | counselor declines to serve as a counselor in a mediation, the | ||||||
17 | counselor shall promptly notify the clerk so that another | ||||||
18 | counselor may be assigned to the mediation. | ||||||
19 | (i) The court-appointed mediator must convene a mediation | ||||||
20 | session with all participants within 45 days after the date of | ||||||
21 | the mediator's appointment and notify the mortgagor, the | ||||||
22 | mortgagee, any servicer, and the counselor of the location, | ||||||
23 | date, and period of time established for the mediation. Upon | ||||||
24 | receipt of the notice of the mediation, the counselor shall | ||||||
25 | notify the mortgagor of the information and documents that the | ||||||
26 | mortgagor must supply to the counselor. The mortgagor must |
| |||||||
| |||||||
1 | supply all requested information and documents to the counselor | ||||||
2 | at least 72 hours prior to the scheduled mediation session, | ||||||
3 | except for good cause shown. The number of mediation meetings, | ||||||
4 | not to exceed 3 meetings, and the time and location of each | ||||||
5 | meeting shall be set by the mediator. The mediation shall | ||||||
6 | conclude with a final mortgage modification plan or a | ||||||
7 | mediator's report that concludes that there is no just reason | ||||||
8 | for the mortgagee not to initiate foreclosure proceedings. | ||||||
9 | However, if the mediation has not concluded within 90 days | ||||||
10 | after the date of the mediator's appointment with either a | ||||||
11 | final mortgage modification plan or a mediator's written report | ||||||
12 | concluding that there is no just reason for the mortgagee not | ||||||
13 | to initiate foreclosure proceedings, then the mortgagee shall | ||||||
14 | be assessed a fine of $25 per day for each day that passes | ||||||
15 | until there is a final plan or the mediator issues a written | ||||||
16 | report that concludes that there is no just reason for the | ||||||
17 | mortgagee not to initiate foreclosure proceedings. A mortgagee | ||||||
18 | with any daily fine due in conjunction with the mediation shall | ||||||
19 | pay to the clerk the amount due for the prior month by the | ||||||
20 | fifth day of each month. The clerk shall remit the fine to the | ||||||
21 | State Treasurer as provided in this Section to be expended for | ||||||
22 | the purposes set forth in this Act. All fines paid by a | ||||||
23 | mortgagee to the clerk of the court as provided in this Section | ||||||
24 | shall be disbursed within 60 days after receipt by the clerk of | ||||||
25 | the court as follows: (i) 98% to the State Treasurer for | ||||||
26 | deposit into the Mandatory Foreclosure Mediation Fund, and (ii) |
| |||||||
| |||||||
1 | 2% to the clerk of the court for administrative expenses | ||||||
2 | related to implementation of this Section. | ||||||
3 | (j) Except in the circumstance in which a mortgagor has | ||||||
4 | filed a petition for relief under the United States Bankruptcy | ||||||
5 | Code, no mortgagee shall file a complaint to foreclose a | ||||||
6 | mortgage secured by residential real estate without attaching | ||||||
7 | the required mediator's written report. | ||||||
8 | (k) Notwithstanding any other provision to the contrary, | ||||||
9 | with respect to a particular mortgage secured by residential | ||||||
10 | real estate, the procedures and forbearances described in this | ||||||
11 | Section apply only once per subject mortgage. | ||||||
12 | (l) No foreclosure action under Part 15 of Article XV of | ||||||
13 | this Code shall be instituted on a mortgage secured by | ||||||
14 | residential real estate before a mandatory foreclosure | ||||||
15 | mediation has been held and the court-appointed mediator who | ||||||
16 | presided over that mediation has issued a written report that: | ||||||
17 | (1) describes the mediation process as it involved the | ||||||
18 | mortgagee and the mortgagor; | ||||||
19 | (2) if applicable, describes a party's refusal to | ||||||
20 | attend any part of the mediation process or a party's | ||||||
21 | refusal to act in good faith in the mediation process; | ||||||
22 | (3) states that at least one mediation session was | ||||||
23 | conducted with all of the required participants (the | ||||||
24 | mortgagor, the mortgagee, the servicer (if applicable), a | ||||||
25 | counselor, and the mediator) present or the reason that | ||||||
26 | there was not at least one mediation session conducted; |
| |||||||
| |||||||
1 | (4) states each date on which a mediation session was | ||||||
2 | held by the mediator with all of the required participants | ||||||
3 | present; | ||||||
4 | (5) determines that, while at the mediation session, | ||||||
5 | the mortgagor and the mortgagee each had the authority to | ||||||
6 | make binding decisions in any discussions of any loan | ||||||
7 | modification or, if a party did not have binding | ||||||
8 | decision-making authority, why that party did not have that | ||||||
9 | authority; | ||||||
10 | (6) whether during the mediation process the counselor | ||||||
11 | with an approved counseling agency prepared an assessment | ||||||
12 | or report providing available loan work-out options for the | ||||||
13 | mortgagor and mortgagee, or, if not, why that assessment or | ||||||
14 | report was not prepared; | ||||||
15 | (7) states the mortgagor's income and expense | ||||||
16 | information, if available from the mortgagor; | ||||||
17 | (8) states the mortgagor's employment status, if | ||||||
18 | available from the mortgagor; | ||||||
19 | (9) states the mortgagor's qualifications for any | ||||||
20 | available governmental or private work-out program; | ||||||
21 | (10) if applicable, states the initial positions taken | ||||||
22 | by the mortgagee and the mortgagor in the mediation and | ||||||
23 | what changes during the mediation that each party made in | ||||||
24 | that party's initial position; | ||||||
25 | (11) explains the reasons that a final mortgage | ||||||
26 | modification plan was not able to be agreed to by the |
| |||||||
| |||||||
1 | mortgagee and the mortgagor; | ||||||
2 | (12) states whether, in the mediator's opinion, the | ||||||
3 | mortgagor and the mortgagee each participated in good faith | ||||||
4 | in the mediation; and | ||||||
5 | (13) determines, in light of all of the relevant | ||||||
6 | circumstances pertaining to the mortgagor, that in the | ||||||
7 | mediator's opinion the mortgagee acted in good faith and | ||||||
8 | that there is no just reason for the mortgagee not to file | ||||||
9 | foreclosure as to the mortgaged real estate. | ||||||
10 | (m) If mandatory foreclosure mediation results in an | ||||||
11 | agreement between the mortgagee and the mortgagor for a final | ||||||
12 | plan, then no legal action under Part 15 of Article XV of this | ||||||
13 | Code shall be instituted for as long as the final plan is | ||||||
14 | complied with by the mortgagor. | ||||||
15 | (n) After the mediation concludes, any modifications to the | ||||||
16 | final plan must be in writing and signed by the mortgagee and | ||||||
17 | the mortgagor. | ||||||
18 | (o) If the mortgagor fails to comply with the final plan, | ||||||
19 | then nothing in this Section shall be construed to impair the | ||||||
20 | legal rights of the mortgagee to enforce the contract. | ||||||
21 | (p) A counselor employed by a housing counseling agency or | ||||||
22 | the housing counseling agency that in good faith provides | ||||||
23 | counseling shall not be liable to a mortgagee or mortgagor for | ||||||
24 | civil damages, except for willful or wanton misconduct on the | ||||||
25 | part of the counselor in providing the counseling. | ||||||
26 | (q) There shall be no waiver of any provision of this |
| |||||||
| |||||||
1 | Section. | ||||||
2 | (r) It is the General Assembly's intent that compliance | ||||||
3 | with this Section shall not prejudice a mortgagee in ratings of | ||||||
4 | its bad debt collection or calculation standards or policies. | ||||||
5 | (s) This Section shall not apply, or shall cease to apply, | ||||||
6 | to residential real estate that is not occupied as a principal | ||||||
7 | residence by the mortgagor.
| ||||||
8 | (735 ILCS 5/15-1504) (from Ch. 110, par. 15-1504)
| ||||||
9 | Sec. 15-1504. Pleadings and service.
| ||||||
10 | (a) Form of Complaint. A foreclosure complaint
may be in | ||||||
11 | substantially the following form:
| ||||||
12 | (1) Plaintiff files this complaint to foreclose the | ||||||
13 | mortgage (or other
conveyance in the nature of a mortgage) | ||||||
14 | (hereinafter called "mortgage")
hereinafter described and | ||||||
15 | joins the following person as defendants: (here
insert | ||||||
16 | names of all defendants).
| ||||||
17 | (2) Attached as Exhibit "A" is a copy of the mortgage | ||||||
18 | and as Exhibit "B"
is a copy of the note secured thereby.
| ||||||
19 | (3) Information concerning mortgage:
| ||||||
20 | (A) Nature of instrument: (here insert whether a | ||||||
21 | mortgage, trust deed or
other instrument in the nature | ||||||
22 | of a mortgage, etc.)
| ||||||
23 | (B) Date of mortgage:
| ||||||
24 | (C) Name of mortgagor:
| ||||||
25 | (D) Name of mortgagee:
|
| |||||||
| |||||||
1 | (E) Date and place of recording:
| ||||||
2 | (F) Identification of recording: (here insert book | ||||||
3 | and page number or document number)
| ||||||
4 | (G) Interest subject to the mortgage: (here insert | ||||||
5 | whether fee simple,
estate for years, undivided | ||||||
6 | interest, etc.)
| ||||||
7 | (H) Amount of original indebtedness, including | ||||||
8 | subsequent advances made
under the mortgage:
| ||||||
9 | (I) Both the legal description of the mortgaged | ||||||
10 | real estate and the
common address or other information | ||||||
11 | sufficient to identify it with reasonable certainty:
| ||||||
12 | (J) Statement as to defaults, including, but not | ||||||
13 | necessarily
limited to, date of default, current | ||||||
14 | unpaid principal balance, per diem
interest accruing, | ||||||
15 | and any further information concerning the default:
| ||||||
16 | (K) Name of present owner of the real estate:
| ||||||
17 | (L) Names of other persons who are joined as | ||||||
18 | defendants and whose
interest in or lien on the | ||||||
19 | mortgaged real estate is sought to be terminated:
| ||||||
20 | (M) Names of defendants claimed to be personally | ||||||
21 | liable
for deficiency, if any:
| ||||||
22 | (N) Capacity in which plaintiff brings this | ||||||
23 | foreclosure (here indicate
whether plaintiff is the | ||||||
24 | legal holder of the indebtedness, a pledgee, an
agent, | ||||||
25 | the trustee under a trust deed or otherwise, as | ||||||
26 | appropriate):
|
| |||||||
| |||||||
1 | (O) Facts in support of redemption period shorter | ||||||
2 | than
the longer of (i) 7 months from the date the | ||||||
3 | mortgagor or, if more than
one, all the mortgagors (I) | ||||||
4 | have been served with summons or by publication
or (II) | ||||||
5 | have otherwise submitted to the jurisdiction of the | ||||||
6 | court, or (ii)
3 months from the entry of the judgment | ||||||
7 | of foreclosure, if sought (here
indicate whether based | ||||||
8 | upon the real estate not being residential,
| ||||||
9 | abandonment, or real estate value less than 90%
of | ||||||
10 | amount owed, etc.):
| ||||||
11 | (P) Statement that the right of redemption has been | ||||||
12 | waived by all
owners of redemption, if applicable:
| ||||||
13 | (Q) Facts in support of request for attorneys' fees | ||||||
14 | and of costs and
expenses, if applicable:
| ||||||
15 | (R) Facts in support of a request for appointment | ||||||
16 | of mortgagee in
possession or for appointment of | ||||||
17 | receiver, and identity of such receiver, if
sought:
| ||||||
18 | (S) Offer to mortgagor in accordance with Section | ||||||
19 | 15-1402 to accept
title to the real estate in | ||||||
20 | satisfaction of all indebtedness and
obligations | ||||||
21 | secured by the mortgage without judicial sale, if | ||||||
22 | sought:
| ||||||
23 | (T) Name or names of defendants whose right to
| ||||||
24 | possess the mortgaged real estate, after the | ||||||
25 | confirmation of a foreclosure
sale, is
sought to be | ||||||
26 | terminated and, if not elsewhere stated, the facts in |
| |||||||
| |||||||
1 | support
thereof:
| ||||||
2 | (4) (Applies only to a complaint for foreclosure of | ||||||
3 | residential real estate.) Attached as Exhibit C is the | ||||||
4 | mandatory foreclosure mediation report from the | ||||||
5 | court-appointed mediator concerning the mandatory | ||||||
6 | mediation which was conducted pursuant to Section | ||||||
7 | 15-1502.7 and which, in conjunction with the other matters | ||||||
8 | required by subsection (l) of Section 15-1502.7: explains | ||||||
9 | the reasons that a loan modification was not able to be | ||||||
10 | agreed to by the plaintiff and the defendant mortgagor; | ||||||
11 | concludes that, in the mediator's opinion, the mortgagee | ||||||
12 | participated in good faith in the mediation; and determines | ||||||
13 | that, in light of all of the relevant circumstances | ||||||
14 | pertaining to the mortgagor, in the mediator's opinion, | ||||||
15 | there is no just reason for the plaintiff not to file | ||||||
16 | foreclosure as to the mortgaged real estate.
| ||||||
17 | REQUEST FOR RELIEF
| ||||||
18 | Plaintiff requests:
| ||||||
19 | (i) A judgment of foreclosure and sale.
| ||||||
20 | (ii) An order granting a shortened redemption period, | ||||||
21 | if sought.
| ||||||
22 | (iii) A personal judgment for a deficiency, if sought.
| ||||||
23 | (iv) An order granting possession, if sought.
| ||||||
24 | (v) An order placing the mortgagee in possession or | ||||||
25 | appointing a receiver,
if sought.
|
| |||||||
| |||||||
1 | (vi) A judgment for attorneys' fees, costs and | ||||||
2 | expenses, if sought.
| ||||||
3 | (b) Required Information. A foreclosure complaint need | ||||||
4 | contain only such
statements and requests called for by the | ||||||
5 | form set forth in subsection (a) of
Section
15-1504 as may be | ||||||
6 | appropriate for the relief sought. Such complaint may
be filed | ||||||
7 | as a counterclaim, may be joined with other counts or may | ||||||
8 | include
in the same count additional matters or a request for | ||||||
9 | any additional
relief permitted by Article
II of the Code of | ||||||
10 | Civil Procedure.
| ||||||
11 | (c) Allegations. The statements contained in a complaint in | ||||||
12 | the form
set forth in subsection (a) of Section 15-1504 are | ||||||
13 | deemed and construed to include
allegations as follows:
| ||||||
14 | (1) on the date indicated the obligor of the | ||||||
15 | indebtedness or other
obligations secured by the mortgage | ||||||
16 | was justly indebted in the amount of
the indicated original | ||||||
17 | indebtedness to the original mortgagee or payee of
the | ||||||
18 | mortgage note;
| ||||||
19 | (2) that the exhibits attached are true and correct | ||||||
20 | copies of the
mortgage and note and are incorporated and | ||||||
21 | made a part of the complaint by
express reference;
| ||||||
22 | (3) that the mortgagor was at the date indicated an | ||||||
23 | owner of the
interest in the real estate described in the | ||||||
24 | complaint and that as of that
date made, executed and | ||||||
25 | delivered the mortgage as security for the note or
other | ||||||
26 | obligations;
|
| |||||||
| |||||||
1 | (4) that the mortgage was recorded in the county in | ||||||
2 | which the mortgaged
real estate is located, on the date | ||||||
3 | indicated, in the book and page or as
the document number | ||||||
4 | indicated;
| ||||||
5 | (5) that defaults occurred as indicated;
| ||||||
6 | (6) that at the time of the filing of the complaint the | ||||||
7 | persons named as
present owners are the owners of the | ||||||
8 | indicated interests in and to the real
estate described;
| ||||||
9 | (7) that the mortgage constitutes a valid, prior and | ||||||
10 | paramount lien upon
the indicated interest in the mortgaged | ||||||
11 | real estate, which lien is prior and
superior to the right, | ||||||
12 | title, interest, claim or lien of all parties and
nonrecord | ||||||
13 | claimants whose interests in the mortgaged real estate are
| ||||||
14 | sought to be terminated;
| ||||||
15 | (8) that by reason of the defaults alleged, if the | ||||||
16 | indebtedness has not
matured by its terms, the same has | ||||||
17 | become due by the exercise, by the
plaintiff or other | ||||||
18 | persons having such power, of a right or power to
declare | ||||||
19 | immediately due and payable the whole of all indebtedness | ||||||
20 | secured
by the mortgage;
| ||||||
21 | (9) that any and all notices of default or election to | ||||||
22 | declare the
indebtedness due and payable or other notices | ||||||
23 | required to be given have
been duly and properly given;
| ||||||
24 | (10) that any and all periods of grace or other period | ||||||
25 | of time allowed
for the performance of the covenants or | ||||||
26 | conditions claimed to be breached
or for the curing of any |
| |||||||
| |||||||
1 | breaches have expired;
| ||||||
2 | (11) that the amounts indicated in the statement
in the | ||||||
3 | complaint are correctly stated and
if such statement | ||||||
4 | indicates any advances made or to be made by the
plaintiff | ||||||
5 | or owner of the mortgage indebtedness, that such advances | ||||||
6 | were,
in fact, made or will be
required to be made, and | ||||||
7 | under and by virtue of the mortgage the same
constitute | ||||||
8 | additional indebtedness secured by the mortgage; and
| ||||||
9 | (12) that, upon confirmation of the sale, the holder of | ||||||
10 | the certificate
of sale or deed issued pursuant to that | ||||||
11 | certificate or, if no certificate or
deed was issued, the | ||||||
12 | purchaser at the sale will be entitled to full possession
| ||||||
13 | of the mortgaged real estate against the parties
named in | ||||||
14 | clause (T) of
paragraph (3) of subsection (a) of Section | ||||||
15 | 15-1504 or elsewhere to the same
effect;
the omission of | ||||||
16 | any
party indicates that plaintiff will not seek a | ||||||
17 | possessory order in the order
confirming sale unless the | ||||||
18 | request is subsequently made under subsection (h) of
| ||||||
19 | Section 15-1701 or by separate action under Article 9 of | ||||||
20 | this Code.
| ||||||
21 | (d) Request for Fees and Costs. A statement in the | ||||||
22 | complaint that
plaintiff seeks the inclusion of attorneys' fees | ||||||
23 | and of costs and expenses
shall be deemed and construed to | ||||||
24 | include allegations that:
| ||||||
25 | (1) plaintiff has been compelled to employ and retain | ||||||
26 | attorneys to
prepare and file the complaint and to |
| |||||||
| |||||||
1 | represent and advise the plaintiff in
the foreclosure of | ||||||
2 | the mortgage and the plaintiff will thereby become
liable | ||||||
3 | for the usual, reasonable and customary fees of the | ||||||
4 | attorneys in
that behalf;
| ||||||
5 | (2) that the plaintiff has been compelled to advance or | ||||||
6 | will be
compelled to advance, various sums of money in | ||||||
7 | payment of costs, fees,
expenses and disbursements | ||||||
8 | incurred in connection with the foreclosure,
including, | ||||||
9 | without limiting the generality of the foregoing, filing | ||||||
10 | fees,
stenographer's fees, witness fees, costs of | ||||||
11 | publication, costs of procuring
and preparing documentary | ||||||
12 | evidence and costs of procuring
abstracts of title, Torrens | ||||||
13 | certificates, foreclosure minutes and a title
insurance | ||||||
14 | policy;
| ||||||
15 | (3) that under the terms of the mortgage, all such | ||||||
16 | advances, costs,
attorneys' fees and other fees, expenses | ||||||
17 | and disbursements are made a lien
upon the mortgaged real | ||||||
18 | estate and the plaintiff is entitled to recover all
such | ||||||
19 | advances, costs, attorneys' fees, expenses and | ||||||
20 | disbursements, together
with interest on all advances at | ||||||
21 | the rate provided in the mortgage, or, if
no rate is | ||||||
22 | provided therein, at the statutory judgment rate, from the
| ||||||
23 | date on which such advances are made;
| ||||||
24 | (4) that in order to protect the lien of the mortgage, | ||||||
25 | it may become
necessary for plaintiff to pay taxes and | ||||||
26 | assessments which have been or may
be levied upon the |
| |||||||
| |||||||
1 | mortgaged real estate;
| ||||||
2 | (5) that in order to protect and preserve the mortgaged | ||||||
3 | real estate, it
may also become necessary for the plaintiff | ||||||
4 | to pay liability (protecting
mortgagor and mortgagee), | ||||||
5 | fire and other hazard
insurance premiums on the mortgaged | ||||||
6 | real estate, make such repairs
to the mortgaged real
estate | ||||||
7 | as may reasonably be deemed necessary for the proper | ||||||
8 | preservation
thereof, advance for costs to inspect the | ||||||
9 | mortgaged real estate or to
appraise it, or both, and | ||||||
10 | advance for premiums for pre-existing private or
| ||||||
11 | governmental mortgage insurance to the extent required | ||||||
12 | after a foreclosure
is commenced in order to keep such | ||||||
13 | insurance in force; and
| ||||||
14 | (6) that under the terms of the mortgage, any money so | ||||||
15 | paid or expended
will become an additional indebtedness | ||||||
16 | secured by the mortgage and will bear
interest from the | ||||||
17 | date such monies are advanced at the rate provided in the
| ||||||
18 | mortgage, or, if no rate is provided, at the
statutory | ||||||
19 | judgment rate.
| ||||||
20 | (e) Request for Foreclosure. The request for foreclosure is | ||||||
21 | deemed and
construed to mean that the plaintiff requests that:
| ||||||
22 | (1) an accounting may be taken under the direction of | ||||||
23 | the court of the
amounts due and owing to the plaintiff;
| ||||||
24 | (2) that the defendants be ordered to pay to the | ||||||
25 | plaintiff before
expiration of any redemption period (or, | ||||||
26 | if no redemption period, before a
short date fixed by the |
| |||||||
| |||||||
1 | court) whatever sums may appear to be due upon the taking
| ||||||
2 | of such account,
together with attorneys' fees and costs of | ||||||
3 | the proceedings (to the extent
provided in the mortgage or | ||||||
4 | by law);
| ||||||
5 | (3) that in default of such payment in accordance with | ||||||
6 | the judgment, the
mortgaged real estate be sold as directed | ||||||
7 | by the court, to satisfy the
amount due to the plaintiff as | ||||||
8 | set forth in the judgment, together with the
interest | ||||||
9 | thereon at the statutory judgment rate from the date of the | ||||||
10 | judgment;
| ||||||
11 | (4) that in the event the plaintiff is a purchaser of | ||||||
12 | the mortgaged real
estate at such sale, the plaintiff may | ||||||
13 | offset against the purchase price of
such real estate the | ||||||
14 | amounts due under the judgment of foreclosure and
order | ||||||
15 | confirming the sale;
| ||||||
16 | (5) that in the event of such sale and the failure of | ||||||
17 | any person entitled
thereto to redeem prior to such sale | ||||||
18 | pursuant to this Article, the
defendants made parties to | ||||||
19 | the foreclosure in accordance with this Article,
and all | ||||||
20 | nonrecord claimants given notice of the foreclosure in | ||||||
21 | accordance
with this Article, and all persons claiming by, | ||||||
22 | through or under them, and
each and any and all of them, | ||||||
23 | may be forever barred and foreclosed of any
right, title, | ||||||
24 | interest, claim, lien, or right to redeem in and to the
| ||||||
25 | mortgaged real estate; and
| ||||||
26 | (6) that if no redemption is made prior to such sale, a |
| |||||||
| |||||||
1 | deed may be
issued to the purchaser thereat according to | ||||||
2 | law and such purchaser be let
into possession of the | ||||||
3 | mortgaged real estate in accordance with Part 17 of this | ||||||
4 | Article.
| ||||||
5 | (f) Request for Deficiency Judgment. A request for a | ||||||
6 | personal judgment
for a deficiency in a foreclosure complaint | ||||||
7 | if the sale of the mortgaged
real estate fails to produce a | ||||||
8 | sufficient amount to pay the amount found
due, the plaintiff | ||||||
9 | may have a personal judgment against any party in the
| ||||||
10 | foreclosure indicated as being personally liable therefor and | ||||||
11 | the enforcement
thereof be had as provided by law.
| ||||||
12 | (g) Request for Possession or Receiver. A request for | ||||||
13 | possession or appointment
of a receiver has the meaning as | ||||||
14 | stated in subsection (b) of Section 15-1706.
| ||||||
15 | (h) Answers by Parties. Any party
may assert its interest | ||||||
16 | by counterclaim and such counterclaim may at the
option of that | ||||||
17 | party stand in lieu of answer to the complaint for
foreclosure | ||||||
18 | and all counter complaints previously or thereafter filed
in | ||||||
19 | the foreclosure. Any such counterclaim shall be deemed to | ||||||
20 | constitute a
statement that the counter claimant does not have | ||||||
21 | sufficient knowledge to
form a belief as to the truth or | ||||||
22 | falsity of the
allegations of the complaint and all other | ||||||
23 | counterclaims, except
to the extent that the counterclaim | ||||||
24 | admits or specifically denies such
allegations.
| ||||||
25 | (Source: P.A. 91-357, eff. 7-29-99.)
|
| |||||||
| |||||||
1 | (735 ILCS 5/15-1504.2 new) | ||||||
2 | Sec. 15-1504.2. Filing fee for Mandatory Foreclosure | ||||||
3 | Mediation Fund. | ||||||
4 | (a) With respect to residential real estate, at the time of | ||||||
5 | the filing of a foreclosure complaint, the plaintiff shall pay | ||||||
6 | to the clerk of the court in which the foreclosure complaint is | ||||||
7 | filed a fee of $100 for deposit into the Mandatory Foreclosure | ||||||
8 | Mediation Fund, a special fund created in the State treasury. | ||||||
9 | The clerk shall remit the fee to the State Treasurer as | ||||||
10 | provided in this Section. Moneys in the Fund shall be expended | ||||||
11 | for mandatory foreclosure mediation under Section 15-1502.7 | ||||||
12 | and for expenses related to administration of mandatory | ||||||
13 | foreclosure mediation. The clerk shall report monthly to the | ||||||
14 | Administrative Office of the Illinois Courts, on forms | ||||||
15 | prescribed by the Administrative Office of the Illinois Courts, | ||||||
16 | the mandatory foreclosure mediation filing fees received and | ||||||
17 | the fines paid pursuant to subsection (i) of Section 15-1502.7. | ||||||
18 | All fees paid by plaintiffs to the clerk of the court as | ||||||
19 | provided in this Section shall be disbursed within 60 days | ||||||
20 | after receipt by the clerk of the court as follows: (i) 98% to | ||||||
21 | the State Treasurer for deposit into the Mandatory Foreclosure | ||||||
22 | Mediation Fund, and (ii) 2% to the clerk of the court for | ||||||
23 | administrative expenses related to implementation of this | ||||||
24 | Section and Section 15-1502.7. | ||||||
25 | (b) Not later than March 1 of each year, the Administrative | ||||||
26 | Office of the Illinois Courts shall submit to the General |
| ||||||||||||||||||||||||||||||||||||||||||||||
| ||||||||||||||||||||||||||||||||||||||||||||||
1 | Assembly a report of the funds collected and remitted pursuant | |||||||||||||||||||||||||||||||||||||||||||||
2 | to this Section during the preceding year.
| |||||||||||||||||||||||||||||||||||||||||||||
3 | Section 10. The State Finance Act is amended by adding | |||||||||||||||||||||||||||||||||||||||||||||
4 | Section 5.811 as follows: | |||||||||||||||||||||||||||||||||||||||||||||
5 | (30 ILCS 105/5.811 new) | |||||||||||||||||||||||||||||||||||||||||||||
6 | Sec. 5.811. The Mandatory Foreclosure Mediation Fund. | |||||||||||||||||||||||||||||||||||||||||||||
7 | Section 99. Effective date. This Act takes effect upon | |||||||||||||||||||||||||||||||||||||||||||||
8 | becoming law.
| |||||||||||||||||||||||||||||||||||||||||||||
| ||||||||||||||||||||||||||||||||||||||||||||||