Full Text of HB0838 95th General Assembly
HB0838eng 95TH GENERAL ASSEMBLY
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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 15-1510 and by adding Sections 15-1504.5 and | 6 |
| 15-1505.5 as follows: | 7 |
| (735 ILCS 5/15-1504.5 new)
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| Sec. 15-1504.5. Homeowner notice to be attached to summons. | 9 |
| For all residential foreclosure actions filed, the plaintiff | 10 |
| must attach a Homeowner Notice to the summons. The Homeowner | 11 |
| Notice must be in at least 12 point type and in English and | 12 |
| Spanish. The Spanish translation shall be prepared by the | 13 |
| Attorney General and posted on the Attorney General's website. | 14 |
| A notice that includes the Attorney General's Spanish | 15 |
| translation in substantially similar form shall be deemed to | 16 |
| comply with the Spanish notice requirement in this Section. The | 17 |
| Notice must be in substantially the following form: | 18 |
| IMPORTANT INFORMATION FOR HOMEOWNERS IN FORECLOSURE | 19 |
| 1. POSSESSION: The lawful occupants of a home have the | 20 |
| right to live in the home until a judge enters an order for | 21 |
| possession. |
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| 2. OWNERSHIP: You continue to own your home until the | 2 |
| court rules otherwise. | 3 |
| 3. REINSTATEMENT: As the homeowner you have the right | 4 |
| to bring the mortgage current within 90 days after you | 5 |
| receive the summons. | 6 |
| 4. REDEMPTION: As the homeowner you have the right to | 7 |
| sell your home, refinance, or pay off the loan during the | 8 |
| redemption period. | 9 |
| 5. SURPLUS: As the homeowner you have the right to | 10 |
| petition the court for any excess money that results from a | 11 |
| foreclosure sale of your home. | 12 |
| 6. WORKOUT OPTIONS: The mortgage company does not want | 13 |
| to foreclose on your home if there is any way to avoid it. | 14 |
| Call your mortgage company [insert name of the homeowner's | 15 |
| current mortgage servicer in bold and 14 point type] or its | 16 |
| attorneys to find out the alternatives to foreclosure. | 17 |
| 7. PAYOFF AMOUNT: You have the right to obtain a | 18 |
| written statement of the amount necessary to pay off your | 19 |
| loan. Your mortgage company (identified above) must | 20 |
| provide you this statement within 10 business days of | 21 |
| receiving your request, provided that your request is in | 22 |
| writing and includes your name, the address of the | 23 |
| property, and the mortgage account or loan number. Your | 24 |
| first payoff statement will be free. | 25 |
| 8. GET ADVICE: This information is not exhaustive and | 26 |
| does not replace the advice of a professional. You may have |
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| other options. Get professional advice from a lawyer or | 2 |
| certified housing counselor about your rights and options | 3 |
| to avoid foreclosure. | 4 |
| 9. LAWYER: If you do not have a lawyer, you may be able | 5 |
| to find assistance by contacting the Illinois State Bar | 6 |
| Association or a legal aid organization that provides free | 7 |
| legal assistance. | 8 |
| 10. PROCEED WITH CAUTION: You may be contacted by | 9 |
| people offering to help you avoid foreclosure. Before | 10 |
| entering into any transaction with persons offering to help | 11 |
| you, please contact a lawyer, government official, or | 12 |
| housing counselor for advice. | 13 |
| (735 ILCS 5/15-1505.5 new)
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| Sec. 15-1505.5. Payoff demands. | 15 |
| (a) In a foreclosure action subject to this Article, on the | 16 |
| written demand of a mortgagor or the mortgagor's authorized | 17 |
| agent (which shall include the mortgagor's name, the mortgaged | 18 |
| property's address, and the mortgage account or loan number), a | 19 |
| mortgagee or the mortgagee's authorized agent shall prepare and | 20 |
| deliver an accurate statement of the total outstanding balance | 21 |
| of the mortgagor's obligation that would be required to satisfy | 22 |
| the obligation in full as of the date of preparation ("payoff | 23 |
| demand statement") to the mortgagor or the mortgagor's | 24 |
| authorized agent who has requested it within 10 business days | 25 |
| after receipt of the demand. For purposes of this Section, a |
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| payoff demand statement is accurate if prepared in good faith | 2 |
| based on the records of the mortgagee or the mortgagee's agent. | 3 |
| (b) The payoff demand statement shall include the | 4 |
| following: | 5 |
| (1) The information necessary to calculate the payoff | 6 |
| amount on a per diem basis for the lesser of a period of 30 | 7 |
| days or until the date scheduled for judicial sale; | 8 |
| (2) Estimated charges (stated as such) that the | 9 |
| mortgagee reasonably believes may be incurred within 30 | 10 |
| days from the date of preparation of the payoff demand | 11 |
| statement; and | 12 |
| (3) The loan number for the obligation to be paid, the | 13 |
| address of the mortgagee, the telephone number of the | 14 |
| mortgagee and, if a banking organization or corporation, | 15 |
| the name of the department, if applicable, and its | 16 |
| telephone number and facsimile phone number. | 17 |
| (c) A mortgagee or mortgagee's agent who willfully fails to | 18 |
| prepare and deliver an accurate payoff demand statement within | 19 |
| 10 business days after receipt of a written demand is liable to | 20 |
| the mortgagor for actual damages sustained for failure to | 21 |
| deliver the statement. The mortgagee or mortgagee's agent is | 22 |
| liable to the mortgagor for $500 if no actual damages are | 23 |
| sustained. For purposes of this subsection, "willfully" means a | 24 |
| failure to comply with this Section without just cause or | 25 |
| excuse or mitigating circumstances. | 26 |
| (d) The mortgagor must petition the judge within the |
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| foreclosure action for the award of any damages pursuant to | 2 |
| this Section, which award shall be determined by the judge. | 3 |
| (e) Unless the payoff demand statement provides otherwise, | 4 |
| the statement is deemed to apply only to the unpaid balance of | 5 |
| the single obligation that is named in the demand and that is | 6 |
| secured by the mortgage or deed of trust identified in the | 7 |
| payoff demand statement. | 8 |
| (f) The demand for and preparation and delivery of a payoff | 9 |
| demand statement pursuant to this Section does not change any | 10 |
| date or time period that is prescribed in the note or that is | 11 |
| otherwise provided by law. Failure to comply with any provision | 12 |
| of this Section does not change any of the rights of the | 13 |
| parties as set forth in the note, mortgage, or applicable law. | 14 |
| (g) The mortgagee or mortgagee's agent shall furnish the | 15 |
| first payoff demand statement at no cost to the mortgagor. | 16 |
| (h) For the purposes of this Section, unless the context | 17 |
| otherwise requires, "deliver" or "delivery" means depositing | 18 |
| or causing to be deposited into the United States mail an | 19 |
| envelope with postage prepaid that contains a copy of the | 20 |
| documents to be delivered and that is addressed to the person | 21 |
| whose name and address are provided in the payoff demand. | 22 |
| "Delivery" may also include transmitting those documents by | 23 |
| telephone facsimile to the person or electronically if the | 24 |
| payoff demand specifically requests and authorizes that the | 25 |
| documents be transmitted in electronic form. | 26 |
| (i) The mortgagee or mortgagee's agent is not required to |
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| comply with the payoff demand statement procedure set forth in | 2 |
| this Section when responding to a notice of intent to redeem | 3 |
| issued under Section 15-1603(e).
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| (735 ILCS 5/15-1510) (from Ch. 110, par. 15-1510)
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| Sec. 15-1510. Attorney's Fees and Costs by Written | 6 |
| Agreement . | 7 |
| (a) The court may award reasonable attorney's fees and | 8 |
| costs to the defendant who prevails in a motion, an affirmative | 9 |
| defense or counterclaim, or in the foreclosure action. A | 10 |
| defendant who exercises the defendant's right of reinstatement | 11 |
| or redemption shall not be considered a prevailing party for | 12 |
| purposes of this Section. Nothing in this subsection shall | 13 |
| abrogate contractual terms in the mortgage or other written | 14 |
| agreement between the mortgagor and the mortgagee or rights as | 15 |
| otherwise provided in this Article which allow the mortgagee to | 16 |
| recover attorney's fees and costs under subsection (b). | 17 |
| (b) Attorneys' fees and other costs incurred in connection | 18 |
| with the
preparation, filing or prosecution of the foreclosure | 19 |
| suit shall be
recoverable in a foreclosure only to the extent
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| specifically set forth in the mortgage or other written | 21 |
| agreement between
the mortgagor and the mortgagee or as | 22 |
| otherwise provided in this Article.
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| (Source: P.A. 86-974.)
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| Section 99. Effective date. This Act takes effect January | 25 |
| 1, 2009. |
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