Full Text of HB2483 96th General Assembly
HB2483 96TH GENERAL ASSEMBLY
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96TH GENERAL ASSEMBLY
State of Illinois
2009 and 2010 HB2483
Introduced 2/20/2009, by Rep. Mike Fortner SYNOPSIS AS INTRODUCED: |
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735 ILCS 5/15-1701 |
from Ch. 110, par. 15-1701 |
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Amends the Code of Civil Procedure. Provides that no mortgagee-in-possession, receiver or holder of a certificate of sale or deed, or purchaser who fails to file a supplemental petition for possession during the pendency of a mortgage foreclosure shall file a forcible entry and detainer action against a tenant or subtenant (instead of tenant) of the mortgaged real estate until 90 days after a notice of intent to file such action that identifies the tenant or subtenant and the premises (instead of notice of intent to file such action) has been properly served upon the tenant or subtenant and the county housing authority, but if the county has not formed a county housing authority, then upon the county clerk (instead of has been properly served upon the tenant).
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A BILL FOR
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HB2483 |
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LRB096 08537 AJO 18658 b |
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| AN ACT concerning civil law.
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| Be it enacted by the People of the State of Illinois,
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| represented in the General Assembly:
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| Section 5. The Code of Civil Procedure is amended by | 5 |
| changing Section 15-1701 as follows:
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| (735 ILCS 5/15-1701) (from Ch. 110, par. 15-1701)
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| Sec. 15-1701. Right to possession.
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| (a) General. The provisions of
this Article shall govern | 9 |
| the right to possession of the mortgaged real
estate during | 10 |
| foreclosure. Possession under this Article includes physical
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| possession of the mortgaged real estate to the same extent to | 12 |
| which the
mortgagor, absent the foreclosure, would have been | 13 |
| entitled to physical
possession. For the purposes of Part 17, | 14 |
| real estate is residential real estate
only if it is | 15 |
| residential real estate at the time the foreclosure is | 16 |
| commenced.
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| (b) Pre-Judgment. Prior to the entry of a judgment of | 18 |
| foreclosure:
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| (1) In the case of residential real estate, the | 20 |
| mortgagor shall be
entitled to possession of the real | 21 |
| estate except if (i) the mortgagee shall
object and show | 22 |
| good cause, (ii) the mortgagee is so authorized by the | 23 |
| terms of
the mortgage or other written instrument, and |
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| (iii) the court is satisfied that
there is a reasonable | 2 |
| probability that the mortgagee will prevail on a final
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| hearing of the cause, the court shall upon request place | 4 |
| the mortgagee in
possession. If the residential real estate | 5 |
| consists of more than one dwelling
unit, then for the | 6 |
| purpose of this Part residential real estate shall mean | 7 |
| only
that dwelling unit or units occupied by persons | 8 |
| described in clauses (i), (ii)
and (iii) of Section | 9 |
| 15-1219.
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| (2) In all other cases, if (i) the mortgagee is so | 11 |
| authorized by the
terms of the mortgage or other written | 12 |
| instrument, and (ii) the court is
satisfied that there is a | 13 |
| reasonable probability that the mortgagee will
prevail on a | 14 |
| final hearing of the cause, the mortgagee shall
upon | 15 |
| request be placed in possession of the real estate, except | 16 |
| that if the
mortgagor shall object and show good cause, the | 17 |
| court shall allow the
mortgagor to remain in possession.
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| (c) Judgment Through 30 Days After Sale Confirmation. After | 19 |
| the entry
of a judgment of foreclosure and through the 30th day | 20 |
| after a foreclosure
sale is confirmed:
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| (1) Subsection (b) of Section 15-1701 shall be | 22 |
| applicable, regardless of
the provisions of the mortgage or | 23 |
| other instrument, except that after a
sale pursuant to the | 24 |
| judgment the holder of the certificate of sale
(or, if | 25 |
| none, the purchaser at the sale) shall have the mortgagee's | 26 |
| right to be
placed in possession, with all rights and |
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| duties of a mortgagee in possession
under this Article.
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| (2) Notwithstanding paragraph (1) of subsection (b) | 3 |
| and paragraph (1) of
subsection (c) of Section 15-1701, | 4 |
| upon request of the mortgagee, a mortgagor
of residential | 5 |
| real estate shall not be allowed to remain in possession | 6 |
| between
the expiration of the redemption period and through | 7 |
| the 30th day after sale
confirmation unless (i) the | 8 |
| mortgagor pays to the mortgagee or such holder or
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| purchaser, whichever is applicable, monthly the lesser of | 10 |
| the interest due
under the mortgage calculated at the | 11 |
| mortgage rate of interest applicable as if
no default had | 12 |
| occurred or the fair rental value of the real estate, or | 13 |
| (ii)
the mortgagor otherwise shows good cause. Any amounts | 14 |
| paid by the mortgagor
pursuant to this subsection shall be | 15 |
| credited against the amounts due from the
mortgagor.
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| (d) After 30 Days After Sale Confirmation. The holder of
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| the certificate of sale or deed issued pursuant to that | 18 |
| certificate or, if
no certificate or deed was issued, the | 19 |
| purchaser, except to the extent the
holder or purchaser may | 20 |
| consent otherwise, shall be entitled to possession of
the | 21 |
| mortgaged real estate, as of the date 30 days after the order | 22 |
| confirming
the sale is entered, against those parties to the | 23 |
| foreclosure whose interests
the court has ordered terminated, | 24 |
| without further notice to any party, further
order of the | 25 |
| court, or resort to proceedings under any other statute other | 26 |
| than
this Article.
This right to possession shall be limited by |
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| the provisions
governing entering and enforcing orders of | 2 |
| possession under subsection (g) of
Section
15-1508.
If the | 3 |
| holder or purchaser determines that there are occupants
of the | 4 |
| mortgaged real estate who have not been made parties to the | 5 |
| foreclosure
and had their interests terminated therein, the | 6 |
| holder or purchaser may bring a
proceeding under subsection (h) | 7 |
| of this Section or under Article 9 of this Code
to terminate | 8 |
| the rights of possession of any such occupants. The holder or
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| purchaser shall not be entitled to proceed against any such | 10 |
| occupant under
Article 9 of this Code until after 30 days after | 11 |
| the order confirming the sale
is entered.
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| (e) Termination of Leases. A lease of all or any part of | 13 |
| the mortgaged
real estate shall not be terminated automatically | 14 |
| solely by virtue of the entry
into possession by (i) a | 15 |
| mortgagee or receiver prior to the entry of an order
confirming | 16 |
| the sale, (ii) the holder of the certificate of sale, (iii) the
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| holder of the deed issued pursuant to that certificate, or (iv) | 18 |
| if no
certificate or deed was issued, the purchaser at the | 19 |
| sale.
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| (f) Other Statutes; Instruments. The provisions of this | 21 |
| Article
providing for possession of mortgaged real estate shall | 22 |
| supersede any other
inconsistent statutory provisions. In | 23 |
| particular, and without limitation,
whenever a receiver is | 24 |
| sought to be appointed in any action in which a
foreclosure is | 25 |
| also pending, a receiver shall be appointed only in
accordance | 26 |
| with this Article. Except as may be authorized by this Article,
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| no mortgage or other instrument may modify or supersede the | 2 |
| provisions of this
Article.
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| (g) Certain Leases. Leases of the mortgaged real estate | 4 |
| entered into by
a mortgagee in possession or a receiver and | 5 |
| approved by the court in a
foreclosure shall be binding on all | 6 |
| parties, including the mortgagor after
redemption, the | 7 |
| purchaser at a sale pursuant to a judgment of foreclosure
and | 8 |
| any person acquiring an interest in the mortgaged real estate | 9 |
| after
entry of a judgment of foreclosure in accordance with | 10 |
| Sections 15-1402 and
15-1403.
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| (h) Proceedings Against Certain Occupants.
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| (1) The mortgagee-in-possession of the mortgaged real | 13 |
| estate under Section
15-1703, a receiver appointed under | 14 |
| Section 15-1704, a holder of the
certificate of sale or | 15 |
| deed, or the purchaser may, at any time during the
pendency | 16 |
| of the foreclosure and up to 90 days after the date of the | 17 |
| order
confirming the sale,
file a supplemental petition for | 18 |
| possession against a person not personally
named as a party
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| to the foreclosure. The supplemental petition for | 20 |
| possession shall name each such
occupant against whom | 21 |
| possession is sought and state the facts upon which the
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| claim for relief is premised.
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| (2) The petitioner shall serve upon each named occupant | 24 |
| the petition,
a notice of hearing on the petition, and, if | 25 |
| any, a copy of the certificate of
sale or deed. The | 26 |
| proceeding for the termination of such occupant's |
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| possessory
interest, including service of the notice of the | 2 |
| hearing and the petition,
shall in all respects comport | 3 |
| with the requirements of Article 9 of this Code,
except as | 4 |
| otherwise specified in this Section. The hearing shall be | 5 |
| no less
than 21 days from the date of service of the | 6 |
| notice.
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| (3) The supplemental petition shall be heard as part of | 8 |
| the foreclosure
proceeding and without the payment of | 9 |
| additional filing fees. An order for
possession obtained | 10 |
| under this Section shall name each occupant whose interest
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| has been terminated, shall recite that it is only effective | 12 |
| as to the occupant
so named and those holding under them, | 13 |
| and shall be enforceable for no more
than 90 days after its | 14 |
| entry, except that the 90-day period may be extended to
the | 15 |
| extent and in the manner provided in Section 9-117 of | 16 |
| Article 9 and except as provided in item (4) of this | 17 |
| subsection (h). | 18 |
| (4) In a case of foreclosure where the tenant is | 19 |
| current on his or her rent, or where timely written notice | 20 |
| of to whom and where the rent is to be paid has not been | 21 |
| provided to the tenant, or where the tenant has made | 22 |
| good-faith efforts to make rental payments in order to keep | 23 |
| current, any order of possession must allow the tenant to | 24 |
| retain possession of the property covered in his or her | 25 |
| rental agreement (i) for 120 days following the notice of | 26 |
| the hearing on the supplemental petition that has been |
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| properly served upon the tenant, or (ii) through the | 2 |
| duration of his or her lease, whichever is shorter. If the | 3 |
| tenant has been given timely written notice of to whom and | 4 |
| where the rent is to be paid, this item (4) shall only | 5 |
| apply if the tenant continues to pay his or her rent in | 6 |
| full during the 120-day period or has made good-faith | 7 |
| efforts to pay the rent in full during that period.
No | 8 |
| mortgagee-in-possession, receiver or holder of a | 9 |
| certificate of sale or deed, or purchaser who fails to file | 10 |
| a supplemental petition under this subsection during the | 11 |
| pendency of a mortgage foreclosure shall file a forcible | 12 |
| entry and detainer action against a tenant or subtenant of | 13 |
| the mortgaged real estate until 90 days after a notice of | 14 |
| intent to file such action that identifies the tenant or | 15 |
| subtenant and the premises has been properly served upon | 16 |
| the tenant or subtenant and the county housing authority, | 17 |
| but if the county has not formed a county housing | 18 |
| authority, then upon the county clerk . | 19 |
| (5) The court records relating to a supplemental | 20 |
| petition for possession filed under this subsection (h) | 21 |
| against a tenant who is entitled to notice under item (4) | 22 |
| of this subsection (h), or relating to a forcible entry and | 23 |
| detainer action brought against a tenant who would have | 24 |
| lawful possession of the premises but for the foreclosure | 25 |
| of a mortgage on the property, shall be ordered sealed and | 26 |
| shall not be disclosed to any person, other than a law |
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| enforcement officer or any other representative of a | 2 |
| governmental entity, except upon further order of the | 3 |
| court.
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| (Source: P.A. 95-262, eff. 1-1-08; 95-933, eff. 8-26-08.)
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