Full Text of HB6253 93rd General Assembly
HB6253ham001 93RD GENERAL ASSEMBLY
|
Rep. Sidney H. Mathias
Filed: 3/31/2004
|
|
09300HB6253ham001 |
|
LRB093 14596 AMC 49505 a |
|
| 1 |
| AMENDMENT TO HOUSE BILL 6253
| 2 |
| AMENDMENT NO. ______. Amend House Bill 6253 by replacing | 3 |
| everything after the enacting clause with the following:
| 4 |
| "Section 5. The Mortgage Act is amended by changing | 5 |
| Sections 2 and 4 as follows:
| 6 |
| (765 ILCS 905/2) (from Ch. 95, par. 52)
| 7 |
| Sec. 2. Release; manner.
| 8 |
| (a) Every mortgagee of real property, his assignee of | 9 |
| record, or other
legal
representative, having received full | 10 |
| satisfaction and payment of all such
sum or sums of money as | 11 |
| are really due to him from the mortgagor, and every
trustee, or | 12 |
| his successor in trust, in a deed of trust in the nature of a
| 13 |
| mortgage, the notes, bonds or other indebtedness secured | 14 |
| thereby having
been fully paid before September 7, 1973, shall, | 15 |
| at the request of the
mortgagor, or grantor
in a deed of trust | 16 |
| in the nature of a mortgage, his heirs, legal
representatives | 17 |
| or assigns, in case such mortgage or trust deed has been
| 18 |
| recorded or registered, make, execute and deliver to the | 19 |
| mortgagor or grantor
in a deed
of trust in the nature of a | 20 |
| mortgage, his heirs, legal representatives or
assigns, an | 21 |
| instrument in writing executed in conformity with the
| 22 |
| provisions of this section releasing such mortgage or deed of | 23 |
| trust in the
nature of a mortgage, which release shall be | 24 |
| entitled to be recorded or
registered and
the recorder or |
|
|
|
09300HB6253ham001 |
- 2 - |
LRB093 14596 AMC 49505 a |
|
| 1 |
| registrar upon receipt of such a release and the payment of the
| 2 |
| recording fee therefor shall record or register the same.
| 3 |
| Mortgages of real property and deeds of trust in the nature | 4 |
| of a
mortgage shall be released of record only in the manner | 5 |
| provided herein
or as provided in the Mortgage Certificate of | 6 |
| Release Act; however,
nothing contained in this Act shall in | 7 |
| any manner affect the
validity of any release of a mortgage or | 8 |
| deed of trust made prior to
January 1, 1952 on the margin of | 9 |
| the record.
| 10 |
| Except in the case of a mortgage that is required to be | 11 |
| released under the
Mortgage Certificate of
Release Act, every | 12 |
| mortgagee of real
property, his assignee of record, or other | 13 |
| legal representative, having
received full satisfaction and | 14 |
| payment of all such sum or sums of money as
are really due to | 15 |
| him from the mortgagor, and every trustee, or his
successor in | 16 |
| trust, in a deed of trust in the nature of a mortgage, the
| 17 |
| notes, bonds or other indebtedness secured thereby having been | 18 |
| fully paid
after September 7, 1973, shall make, execute and | 19 |
| deliver to the mortgagor
or grantor in a
deed of trust in the | 20 |
| nature of a mortgage, his heirs, legal representatives
or | 21 |
| assigns, an instrument in writing releasing such mortgage or | 22 |
| deed of
trust in the nature of a mortgage or shall deliver that | 23 |
| release to the
recorder or registrar for recording or | 24 |
| registering. If the release
is delivered
to the mortgagor or
| 25 |
| grantor, it must have imprinted on its face in bold letters at | 26 |
| least 1/4
inch in height the following: "FOR THE PROTECTION OF | 27 |
| THE OWNER, THIS
RELEASE SHALL BE FILED WITH THE RECORDER OR THE | 28 |
| REGISTRAR OF
TITLES IN WHOSE OFFICE THE
MORTGAGE OR DEED OF | 29 |
| TRUST WAS FILED". The recorder, or registrar, upon
receipt of | 30 |
| such a
release and the payment of the recording or registration | 31 |
| fee, shall record
or register the release. A certificate of | 32 |
| release issued and recorded by a
title insurance company or its | 33 |
| duly appointed agent pursuant to the Mortgage
Certificate of | 34 |
| Release Act shall satisfy the requirements of this Section 2. A |
|
|
|
09300HB6253ham001 |
- 3 - |
LRB093 14596 AMC 49505 a |
|
| 1 |
| mortgagee or trustee in a deed of trust in the nature of a | 2 |
| mortgage, its assignee of record, or other legal | 3 |
| representative, may include a reasonable fee in its payoff | 4 |
| statement for delivering a release as required by this Section | 5 |
| or for obtaining verification from a title insurance company | 6 |
| that the title insurance company has satisfied the requirements | 7 |
| of the Mortgage Certificate of Release Act. | 8 |
| (b) A release, in substantially the following form, that is | 9 |
| delivered as required by this Section by a mortgagee or trustee | 10 |
| in a deed of trust in the nature of a mortgage, its assignee of | 11 |
| record, or other legal representative, shall be sufficient if | 12 |
| it includes the following: | 13 |
| (i) the names of the mortgagors; | 14 |
| (ii) the name of the original mortgagee; | 15 |
| (iii) the name of the mortgage servicer (if any); | 16 |
| (iv) the volume and page or document number of the | 17 |
| mortgage recording; | 18 |
| (v) an identification of the property described in the | 19 |
| mortgage by Permanent Index Number and common address; and | 20 |
| (vi) a statement to the effect that the mortgage has | 21 |
| been paid in accordance with its terms.
| 22 |
| (Source: P.A. 92-765, eff. 8-6-02; 93-428, eff. 12-31-03.)
| 23 |
| (765 ILCS 905/4) (from Ch. 95, par. 54)
| 24 |
| Sec. 4. If any mortgagee or trustee, in a deed in the | 25 |
| nature of a mortgage, of
real property, or his executor or | 26 |
| administrator, heirs or assigns, or title insurance company | 27 |
| that is required to record a certificate of release pursuant to | 28 |
| the Mortgage Certificate of Release Act, knowing
the same to be | 29 |
| paid, shall not, within one month after the payment of the
debt | 30 |
| secured by such mortgage or trust deed, comply with the | 31 |
| requirements
of Section 2 of this Act or the Mortgage | 32 |
| Certificate of Release Act , he shall, for every such offense, | 33 |
| be liable for
and pay to the party aggrieved the sum of $200 |
|
|
|
09300HB6253ham001 |
- 4 - |
LRB093 14596 AMC 49505 a |
|
| 1 |
| which may be recovered by
the party aggrieved in a civil | 2 |
| action, together with reasonable attorney's
fees. In any such | 3 |
| action, introduction of a loan payment book or receipt
which | 4 |
| indicates that the obligation has been paid shall be sufficient
| 5 |
| evidence to raise a presumption that the obligation has been | 6 |
| paid. Upon a
finding for the party aggrieved, the court shall | 7 |
| order the mortgagee or
trustee, or his executor or | 8 |
| administrator, heirs or assigns, or title insurance company, to | 9 |
| make,
execute and deliver the release as provided in Section 2 | 10 |
| of this Act or the Mortgage Certificate of Release Act . The
| 11 |
| successor in interest to the mortgagee or trustee in a deed in | 12 |
| the nature
of a mortgage shall not be liable for the penalty | 13 |
| prescribed in this
Section if he complies with the requirements | 14 |
| of Section 2 of this Act
within one month after succeeding to | 15 |
| the interest.
| 16 |
| (Source: P.A. 78-587.)
| 17 |
| Section 10. The Mortgage Certificate of Release Act is | 18 |
| amended by changing Section 5, 10, 10.1, 25, 35, and 40 as | 19 |
| follows:
| 20 |
| (765 ILCS 935/5)
| 21 |
| Sec. 5. Definitions. As used in this Act:
| 22 |
| "Hold-harmless agreement" means a letter whereby a title | 23 |
| insurance company,
as defined in the Title Insurance Act, | 24 |
| agrees to indemnify another title
insurance company preparing | 25 |
| to insure a present transaction that the
indemnifying title | 26 |
| insurance company has previously insured over without
taking an | 27 |
| exception to its title insurance policy for matters remaining | 28 |
| of
record, such as a previously paid but unreleased mortgage. A | 29 |
| model form of a
hold-harmless agreement is set forth in Section | 30 |
| 70 of this Act.
| 31 |
| "Mortgage" means a mortgage or mortgage lien on an interest | 32 |
| in one-to-four
family residential real property
in this State |
|
|
|
09300HB6253ham001 |
- 5 - |
LRB093 14596 AMC 49505 a |
|
| 1 |
| given to secure a loan in the original principal amount of
less | 2 |
| than $500,000.
Trust deeds are not included.
| 3 |
| "Mortgagee" means either: (i) the grantee of a mortgage; or | 4 |
| (ii) if a
mortgage has been assigned of record, the last person | 5 |
| to whom the mortgage has
been assigned of record.
| 6 |
| "Mortgage servicer" means the last person to whom a | 7 |
| mortgagor or the
mortgagor's successor in interest has been | 8 |
| instructed by a mortgagee to send
payments on a loan secured by | 9 |
| a mortgage. A person
transmitting a payoff
statement is the | 10 |
| mortgage servicer for the mortgage described in the payoff
| 11 |
| statement.
| 12 |
| "Mortgagor" means the grantor of a mortgage.
| 13 |
| "Payoff statement" means a written statement issued by | 14 |
| mortgagee or its mortgage servicer that includes a statement | 15 |
| of:
for the amount of the (i) the amount of the unpaid balance
| 16 |
| of a loan secured by a mortgage as of a specified payoff date , | 17 |
| including the principal, interest, and any other
charges , fees | 18 |
| and costs due under or secured by the mortgage; (ii) any | 19 |
| additional charges, fees and costs as may be recited therein | 20 |
| including, but not limited to, fees for preparation of a | 21 |
| release, charges for delivering a release, late fees, facsimile | 22 |
| charges, and other miscellaneous charges;
and (ii)
(iii)
| 23 |
| interest on a per diem
day
basis for the unpaid balance after | 24 |
| the specified payoff date; (iv) the place where payment must be | 25 |
| made; and (v) any limitation as to the authorized method of | 26 |
| payment or other qualifications for satisfaction of the amount | 27 |
| due under or secured by the mortgage .
| 28 |
| "Record" means to deliver the certificate of release for | 29 |
| recording with the
county recorder.
| 30 |
| "Title insurance" has the same meaning ascribed to it as in | 31 |
| Section 3 of the Title Insurance Act.
| 32 |
| "Title insurance agent" has the same meaning ascribed to it | 33 |
| as in Section 3
of the Title Insurance Act.
| 34 |
| "Title insurance company" has the same meaning ascribed to |
|
|
|
09300HB6253ham001 |
- 6 - |
LRB093 14596 AMC 49505 a |
|
| 1 |
| it as in
Section 3 of the Title Insurance Act.
| 2 |
| (Source: P.A. 92-765, eff. 8-6-02; 93-428, eff. 12-31-03.)
| 3 |
| (765 ILCS 935/10)
| 4 |
| Sec. 10. Certificate of release; mortgage presently being | 5 |
| paid off. Receipt of payment pursuant
to
the lender's
written | 6 |
| payoff statement shall constitute authority to record a | 7 |
| certificate of
release. | 8 |
| (a) A title insurance company or its duly appointed title | 9 |
| insurance agent shall execute and deliver for recording a | 10 |
| certificate of release pursuant to this Act when: | 11 |
| (1) the title insurance company is issuing title | 12 |
| insurance in a transaction in which a mortgage to be | 13 |
| released is presently being paid off by the title insurance | 14 |
| company; | 15 |
| (2) the mortgagee or the mortgage servicer has issued a | 16 |
| payoff statement; and | 17 |
| (3) the mortgagee or the mortgage servicer has received | 18 |
| payment in full of the balance needed to satisfy the | 19 |
| obligations secured by the mortgage and set forth in the | 20 |
| payoff statement. | 21 |
| (b)
A certificate of release shall be delivered for | 22 |
| recording to the
recorder
of each county in which the mortgage | 23 |
| is recorded, together with the other
documents from the new | 24 |
| transaction, including a deed or new mortgage, or
both by the | 25 |
| title insurance company or its duly appointed title insurance
| 26 |
| agent.
| 27 |
| (c) The title insurance company or its duly appointed title | 28 |
| insurance agent shall furnish written notification of the | 29 |
| execution and delivery for recording of the certificate of | 30 |
| release to the mortgagee or mortgage servicer. The notification | 31 |
| shall be included in the transmittal letter or form sent to the | 32 |
| mortgagee or mortgage servicer with the payment, or as | 33 |
| otherwise directed by the mortgagee or mortgage servicing |
|
|
|
09300HB6253ham001 |
- 7 - |
LRB093 14596 AMC 49505 a |
|
| 1 |
| agent. In the case of a payoff by a wire transfer or other | 2 |
| electronic means, a separate notification shall be sent.
| 3 |
| (Source: P.A. 92-765, eff. 8-6-02; 93-428, eff. 12-31-03.)
| 4 |
| (765 ILCS 935/10.1)
| 5 |
| Sec. 10.1. Certificate of release; previously paid | 6 |
| mortgages. A title insurance company or its
duly appointed | 7 |
| title insurance agent may issue a mortgage certificate of
| 8 |
| release pursuant to this Act for a mortgage that appears in the | 9 |
| chain of title
prior to the mortgage presently being paid. The | 10 |
| title insurance company must
have proof of payment from its own | 11 |
| prior files that it paid the mortgage or
mortgages pursuant to | 12 |
| a payoff statement. Where another
title insurance company has | 13 |
| paid off an unreleased mortgage pursuant to a
payoff statement, | 14 |
| the title insurance company or its
duly appointed title | 15 |
| insurance agent in the current transaction may rely upon
the | 16 |
| hold-harmless letter of that prior title insurance company
to | 17 |
| issue a mortgage certificate of release. This grant of | 18 |
| authority
is subject to the condition that the issuer of the | 19 |
| mortgage certificate of
release does not have notice that the | 20 |
| lender opposes its release. A single
mortgage certificate of | 21 |
| release may include more than one mortgage, including
both | 22 |
| presently and previously paid mortgages.
| 23 |
| (Source: P.A. 93-428, eff. 12-31-03.)
| 24 |
| (765 ILCS 935/25)
| 25 |
| Sec. 25. Execution.
A certificate of release issued under | 26 |
| Sections 10 and 10.1
authorized by Section 15 must be executed | 27 |
| and
acknowledged as required by law, as in the case of a deed, | 28 |
| and may be executed
by an officer or a duly appointed agent of | 29 |
| a title insurance company. The
agent must be a
currently | 30 |
| registered title insurance agent of the title insurance | 31 |
| company.
| 32 |
| (Source: P.A. 92-765, eff. 8-6-02 .)
|
|
|
|
09300HB6253ham001 |
- 8 - |
LRB093 14596 AMC 49505 a |
|
| 1 |
| (765 ILCS 935/35)
| 2 |
| Sec. 35. Effect of recording certificate of release. For | 3 |
| purposes of releasing the lien of the mortgage, a certificate
| 4 |
| of release containing the information and statements provided | 5 |
| for in Section 20
and executed as provided in Section 25 is | 6 |
| prima facie evidence of the facts
contained therein, and upon | 7 |
| being recorded with the
recorder, shall constitute
a release of
| 8 |
| the lien of
the mortgage described in the certificate of | 9 |
| release.
The title insurance company or title insurance agent | 10 |
| recording the certificate
of release may use the recording fee | 11 |
| it may have collected for the
recording of a release or | 12 |
| satisfaction of the mortgage to effect the recording
of
the | 13 |
| certificate of release. The title insurance company or its duly | 14 |
| appointed title insurance agent may rely upon a payoff | 15 |
| statement to determine the amount that must be paid to the | 16 |
| mortgagee or mortgage servicer in order to execute and deliver | 17 |
| for recording a certificate of release if the title insurance | 18 |
| company or its duly appointed title insurance agent acts in | 19 |
| good faith and does not know or have reason to know the amount | 20 |
| is incorrect. The recording of the certificate of release does | 21 |
| not itself extinguish the liability of any person liable for | 22 |
| repayment of the obligations secured by the mortgage. The | 23 |
| mortgagee or mortgage servicer may recover any sums from the | 24 |
| mortgagor or any other person personally liable for the | 25 |
| performance of the obligations secured by the mortgage, even if | 26 |
| those sums were not included in the payoff statement prior to | 27 |
| payment of the obligation in full.
| 28 |
| (Source: P.A. 92-765, eff. 8-6-02; 93-428, eff. 12-31-03.)
| 29 |
| (765 ILCS 935/40)
| 30 |
| Sec. 40. Wrongful or erroneous certificate of release.
| 31 |
| Delivery for recording of a wrongful or erroneous certificate | 32 |
| of release by a
title insurance company or its
title insurance
|
|
|
|
09300HB6253ham001 |
- 9 - |
LRB093 14596 AMC 49505 a |
|
| 1 |
| agent shall not relieve the mortgagor or the
mortgagor's | 2 |
| successors or assignees from any personal liability on the loan | 3 |
| or
other obligations secured by the mortgage. In addition to | 4 |
| any other remedy
provided by law, a title insurance company
| 5 |
| executing and delivering for
or
recording a certificate of | 6 |
| release
under this Act , directly or by its duly appointed title | 7 |
| insurance agent, is liable to the
mortgagee for actual damages | 8 |
| sustained due to the recording of the certificate
of release.
| 9 |
| The prevailing party
in any action or proceeding seeking actual | 10 |
| damages due to
the recording of a certificate of release shall | 11 |
| be entitled
to the recovery of reasonable attorneys fees and | 12 |
| costs
incurred in that action or proceeding.
| 13 |
| (Source: P.A. 92-765, eff. 8-6-02; 93-428, eff. 12-31-03.)
| 14 |
| (765 ILCS 935/15 rep.)
| 15 |
| Section 15. The Mortgage Certificate of Release Act is | 16 |
| amended by repealing Section 15.
| 17 |
| Section 99. Effective date. This Act takes effect upon | 18 |
| becoming law.".
|
|