Full Text of HB0838 95th General Assembly
HB0838ham001 95TH GENERAL ASSEMBLY
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Judiciary I - Civil Law Committee
Filed: 3/12/2008
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09500HB0838ham001 |
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LRB095 08932 AJO 47975 a |
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| AMENDMENT TO HOUSE BILL 838
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| AMENDMENT NO. ______. Amend House Bill 838 by replacing | 3 |
| everything after the enacting clause with the following:
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| "Section 5. The Code of Civil Procedure is amended by | 5 |
| changing Sections 15-1504 and 15-1510 and by adding Sections | 6 |
| 15-1504.5 and 15-1505.5 as follows:
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| (735 ILCS 5/15-1504) (from Ch. 110, par. 15-1504)
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| Sec. 15-1504. Pleadings and service.
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| (a) Form of Complaint. A copy of the mortgage and note | 10 |
| secured thereby must be attached to the foreclosure complaint. | 11 |
| If any note required to be attached to a complaint filed | 12 |
| pursuant to this subsection (a) of Section 15-1504 of this Code | 13 |
| cannot be located for filing as an exhibit after due diligence | 14 |
| by the moving party of such a complaint, the moving party must | 15 |
| file an affidavit stating the following: | 16 |
| (i) All the holders of the note; |
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| (ii) The time each note holder held the note identified | 2 |
| by the day, month, and year; and | 3 |
| (iii) The reasonable efforts made by the moving party | 4 |
| to obtain the note. | 5 |
| A foreclosure complaint
may be in substantially the | 6 |
| following form:
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| (1) Plaintiff files this complaint to foreclose the | 8 |
| mortgage (or other
conveyance in the nature of a mortgage) | 9 |
| (hereinafter called "mortgage")
hereinafter described and | 10 |
| joins the following person as defendants: (here
insert | 11 |
| names of all defendants).
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| (2) Attached as Exhibit "A" is a copy of the mortgage | 13 |
| and as Exhibit "B"
is a copy of the note secured thereby.
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| (3) Information concerning mortgage:
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| (A) Nature of instrument: (here insert whether a | 16 |
| mortgage, trust deed or
other instrument in the nature | 17 |
| of a mortgage, etc.)
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| (B) Date of mortgage:
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| (C) Name of mortgagor:
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| (D) Name of mortgagee:
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| (E) Date and place of recording:
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| (F) Identification of recording: (here insert book | 23 |
| and page number or document number)
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| (G) Interest subject to the mortgage: (here insert | 25 |
| whether fee simple,
estate for years, undivided | 26 |
| interest, etc.)
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| (H) Amount of original indebtedness, including | 2 |
| subsequent advances made
under the mortgage:
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| (I) Both the legal description of the mortgaged | 4 |
| real estate and the
common address or other information | 5 |
| sufficient to identify it with reasonable certainty:
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| (J) Statement as to defaults, including, but not | 7 |
| necessarily
limited to, date of default, current | 8 |
| unpaid principal balance, per diem
interest accruing, | 9 |
| and any further information concerning the default:
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| (K) Name of present owner of the real estate:
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| (L) Names of other persons who are joined as | 12 |
| defendants and whose
interest in or lien on the | 13 |
| mortgaged real estate is sought to be terminated:
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| (M) Names of defendants claimed to be personally | 15 |
| liable
for deficiency, if any:
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| (N) The real party in interest which Capacity in | 17 |
| which plaintiff brings this foreclosure (here indicate
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| whether plaintiff is the legal holder of the | 19 |
| indebtedness, a pledgee, an
agent, the trustee under a | 20 |
| trust deed or otherwise, as appropriate):
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| (O) Facts in support of redemption period shorter | 22 |
| than
the longer of (i) 7 months from the date the | 23 |
| mortgagor or, if more than
one, all the mortgagors (I) | 24 |
| have been served with summons or by publication
or (II) | 25 |
| have otherwise submitted to the jurisdiction of the | 26 |
| court, or (ii)
3 months from the entry of the judgment |
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| of foreclosure, if sought (here
indicate whether based | 2 |
| upon the real estate not being residential,
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| abandonment, or real estate value less than 90%
of | 4 |
| amount owed, etc.):
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| (P) Statement that the right of redemption has been | 6 |
| waived by all
owners of redemption, if applicable:
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| (Q) Facts in support of request for attorneys' fees | 8 |
| and of costs and
expenses, if applicable:
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| (R) Facts in support of a request for appointment | 10 |
| of mortgagee in
possession or for appointment of | 11 |
| receiver, and identity of such receiver, if
sought:
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| (S) Offer to mortgagor in accordance with Section | 13 |
| 15-1402 to accept
title to the real estate in | 14 |
| satisfaction of all indebtedness and
obligations | 15 |
| secured by the mortgage without judicial sale, if | 16 |
| sought:
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| (T) Name or names of defendants whose right to
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| possess the mortgaged real estate, after the | 19 |
| confirmation of a foreclosure
sale, is
sought to be | 20 |
| terminated and, if not elsewhere stated, the facts in | 21 |
| support
thereof:
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| REQUEST FOR RELIEF
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| Plaintiff requests:
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| (i) A judgment of foreclosure and sale.
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| (ii) An order granting a shortened redemption period, |
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| if sought.
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| (iii) A personal judgment for a deficiency, if sought.
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| (iv) An order granting possession, if sought.
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| (v) An order placing the mortgagee in possession or | 5 |
| appointing a receiver,
if sought.
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| (vi) A judgment for attorneys' fees, costs and | 7 |
| expenses, if sought.
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| (b) Required Information. A foreclosure complaint need | 9 |
| contain only such
statements and requests called for by the | 10 |
| form set forth in subsection (a) of
Section
15-1504 as may be | 11 |
| appropriate for the relief sought. Such complaint may
be filed | 12 |
| as a counterclaim, may be joined with other counts or may | 13 |
| include
in the same count additional matters or a request for | 14 |
| any additional
relief permitted by Article
II of the Code of | 15 |
| Civil Procedure.
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| (c) Allegations. The statements contained in a complaint in | 17 |
| the form
set forth in subsection (a) of Section 15-1504 are | 18 |
| deemed and construed to include
allegations as follows:
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| (1) on the date indicated the obligor of the | 20 |
| indebtedness or other
obligations secured by the mortgage | 21 |
| was justly indebted in the amount of
the indicated original | 22 |
| indebtedness to the original mortgagee or payee of
the | 23 |
| mortgage note;
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| (2) that the exhibits attached are true and correct | 25 |
| copies of the
mortgage and note and are incorporated and | 26 |
| made a part of the complaint by
express reference;
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| (3) that the mortgagor was at the date indicated an | 2 |
| owner of the
interest in the real estate described in the | 3 |
| complaint and that as of that
date made, executed and | 4 |
| delivered the mortgage as security for the note or
other | 5 |
| obligations;
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| (4) that the mortgage was recorded in the county in | 7 |
| which the mortgaged
real estate is located, on the date | 8 |
| indicated, in the book and page or as
the document number | 9 |
| indicated;
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| (5) that defaults occurred as indicated;
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| (6) that at the time of the filing of the complaint the | 12 |
| persons named as
present owners are the owners of the | 13 |
| indicated interests in and to the real
estate described;
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| (7) that the mortgage constitutes a valid, prior and | 15 |
| paramount lien upon
the indicated interest in the mortgaged | 16 |
| real estate, which lien is prior and
superior to the right, | 17 |
| title, interest, claim or lien of all parties and
nonrecord | 18 |
| claimants whose interests in the mortgaged real estate are
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| sought to be terminated;
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| (8) that by reason of the defaults alleged, if the | 21 |
| indebtedness has not
matured by its terms, the same has | 22 |
| become due by the exercise, by the
plaintiff or other | 23 |
| persons having such power, of a right or power to
declare | 24 |
| immediately due and payable the whole of all indebtedness | 25 |
| secured
by the mortgage;
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| (9) that any and all notices of default or election to |
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| declare the
indebtedness due and payable or other notices | 2 |
| required to be given have
been duly and properly given;
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| (10) that any and all periods of grace or other period | 4 |
| of time allowed
for the performance of the covenants or | 5 |
| conditions claimed to be breached
or for the curing of any | 6 |
| breaches have expired;
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| (11) that the amounts indicated in the statement
in the | 8 |
| complaint are correctly stated and
if such statement | 9 |
| indicates any advances made or to be made by the
plaintiff | 10 |
| or owner of the mortgage indebtedness, that such advances | 11 |
| were,
in fact, made or will be
required to be made, and | 12 |
| under and by virtue of the mortgage the same
constitute | 13 |
| additional indebtedness secured by the mortgage; and
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| (12) that, upon confirmation of the sale, the holder of | 15 |
| the certificate
of sale or deed issued pursuant to that | 16 |
| certificate or, if no certificate or
deed was issued, the | 17 |
| purchaser at the sale will be entitled to full possession
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| of the mortgaged real estate against the parties
named in | 19 |
| clause (T) of
paragraph (3) of subsection (a) of Section | 20 |
| 15-1504 or elsewhere to the same
effect;
the omission of | 21 |
| any
party indicates that plaintiff will not seek a | 22 |
| possessory order in the order
confirming sale unless the | 23 |
| request is subsequently made under subsection (h) of
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| Section 15-1701 or by separate action under Article 9 of | 25 |
| this Code.
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| (d) Request for Fees and Costs. A statement in the |
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| complaint that
plaintiff seeks the inclusion of attorneys' fees | 2 |
| and of costs and expenses
shall be deemed and construed to | 3 |
| include allegations that:
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| (1) plaintiff has been compelled to employ and retain | 5 |
| attorneys to
prepare and file the complaint and to | 6 |
| represent and advise the plaintiff in
the foreclosure of | 7 |
| the mortgage and the plaintiff will thereby become
liable | 8 |
| for the usual, reasonable and customary fees of the | 9 |
| attorneys in
that behalf;
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| (2) that the plaintiff has been compelled to advance or | 11 |
| will be
compelled to advance, various sums of money in | 12 |
| payment of costs, fees,
expenses and disbursements | 13 |
| incurred in connection with the foreclosure,
including, | 14 |
| without limiting the generality of the foregoing, filing | 15 |
| fees,
stenographer's fees, witness fees, costs of | 16 |
| publication, costs of procuring
and preparing documentary | 17 |
| evidence and costs of procuring
abstracts of title, Torrens | 18 |
| certificates, foreclosure minutes and a title
insurance | 19 |
| policy;
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| (3) that under the terms of the mortgage, all such | 21 |
| advances, costs,
attorneys' fees and other fees, expenses | 22 |
| and disbursements are made a lien
upon the mortgaged real | 23 |
| estate and the plaintiff is entitled to recover all
such | 24 |
| advances, costs, attorneys' fees, expenses and | 25 |
| disbursements, together
with interest on all advances at | 26 |
| the rate provided in the mortgage, or, if
no rate is |
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| provided therein, at the statutory judgment rate, from the
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| date on which such advances are made;
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| (4) that in order to protect the lien of the mortgage, | 4 |
| it may become
necessary for plaintiff to pay taxes and | 5 |
| assessments which have been or may
be levied upon the | 6 |
| mortgaged real estate;
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| (5) that in order to protect and preserve the mortgaged | 8 |
| real estate, it
may also become necessary for the plaintiff | 9 |
| to pay liability (protecting
mortgagor and mortgagee), | 10 |
| fire and other hazard
insurance premiums on the mortgaged | 11 |
| real estate, make such repairs
to the mortgaged real
estate | 12 |
| as may reasonably be deemed necessary for the proper | 13 |
| preservation
thereof, advance for costs to inspect the | 14 |
| mortgaged real estate or to
appraise it, or both, and | 15 |
| advance for premiums for pre-existing private or
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| governmental mortgage insurance to the extent required | 17 |
| after a foreclosure
is commenced in order to keep such | 18 |
| insurance in force; and
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| (6) that under the terms of the mortgage, any money so | 20 |
| paid or expended
will become an additional indebtedness | 21 |
| secured by the mortgage and will bear
interest from the | 22 |
| date such monies are advanced at the rate provided in the
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| mortgage, or, if no rate is provided, at the
statutory | 24 |
| judgment rate.
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| (e) Request for Foreclosure. The request for foreclosure is | 26 |
| deemed and
construed to mean that the plaintiff requests that:
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| (1) an accounting may be taken under the direction of | 2 |
| the court of the
amounts due and owing to the plaintiff;
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| (2) that the defendants be ordered to pay to the | 4 |
| plaintiff before
expiration of any redemption period (or, | 5 |
| if no redemption period, before a
short date fixed by the | 6 |
| court) whatever sums may appear to be due upon the taking
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| of such account,
together with attorneys' fees and costs of | 8 |
| the proceedings (to the extent
provided in the mortgage or | 9 |
| by law);
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| (3) that in default of such payment in accordance with | 11 |
| the judgment, the
mortgaged real estate be sold as directed | 12 |
| by the court, to satisfy the
amount due to the plaintiff as | 13 |
| set forth in the judgment, together with the
interest | 14 |
| thereon at the statutory judgment rate from the date of the | 15 |
| judgment;
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| (4) that in the event the plaintiff is a purchaser of | 17 |
| the mortgaged real
estate at such sale, the plaintiff may | 18 |
| offset against the purchase price of
such real estate the | 19 |
| amounts due under the judgment of foreclosure and
order | 20 |
| confirming the sale;
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| (5) that in the event of such sale and the failure of | 22 |
| any person entitled
thereto to redeem prior to such sale | 23 |
| pursuant to this Article, the
defendants made parties to | 24 |
| the foreclosure in accordance with this Article,
and all | 25 |
| nonrecord claimants given notice of the foreclosure in | 26 |
| accordance
with this Article, and all persons claiming by, |
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| through or under them, and
each and any and all of them, | 2 |
| may be forever barred and foreclosed of any
right, title, | 3 |
| interest, claim, lien, or right to redeem in and to the
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| mortgaged real estate; and
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| (6) that if no redemption is made prior to such sale, a | 6 |
| deed may be
issued to the purchaser thereat according to | 7 |
| law and such purchaser be let
into possession of the | 8 |
| mortgaged real estate in accordance with Part 17 of this | 9 |
| Article.
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| (f) Request for Deficiency Judgment. A request for a | 11 |
| personal judgment
for a deficiency in a foreclosure complaint | 12 |
| if the sale of the mortgaged
real estate fails to produce a | 13 |
| sufficient amount to pay the amount found
due, the plaintiff | 14 |
| may have a personal judgment against any party in the
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| foreclosure indicated as being personally liable therefor and | 16 |
| the enforcement
thereof be had as provided by law.
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| (g) Request for Possession or Receiver. A request for | 18 |
| possession or appointment
of a receiver has the meaning as | 19 |
| stated in subsection (b) of Section 15-1706.
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| (h) Answers by Parties. Any party
may assert its interest | 21 |
| by counterclaim and such counterclaim may at the
option of that | 22 |
| party stand in lieu of answer to the complaint for
foreclosure | 23 |
| and all counter complaints previously or thereafter filed
in | 24 |
| the foreclosure. Any such counterclaim shall be deemed to | 25 |
| constitute a
statement that the counter claimant does not have | 26 |
| sufficient knowledge to
form a belief as to the truth or |
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| falsity of the
allegations of the complaint and all other | 2 |
| counterclaims, except
to the extent that the counterclaim | 3 |
| admits or specifically denies such
allegations.
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| (Source: P.A. 91-357, eff. 7-29-99.)
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| (735 ILCS 5/15-1504.5 new) | 6 |
| Sec. 15-1504.5. Notice with complaint. For all residential | 7 |
| foreclosure actions filed, the plaintiff must attach a notice | 8 |
| to the summons and complaint that specifies to the defendant | 9 |
| mortgagor his or her statutory right to maintain homeownership | 10 |
| during the pendency of the foreclosure action. The notice must | 11 |
| be in substantially the following form: | 12 |
| a. As a homeowner, you have the following rights during the | 13 |
| foreclosure proceedings: | 14 |
| 1. POSSESSION: The lawful occupants may be able to live | 15 |
| in the house until a judge enters an order of eviction. | 16 |
| 2. OWNERSHIP: You may have the right to sell the house | 17 |
| or refinance the mortgage during the redemption period. | 18 |
| 3. REINSTATEMENT: You may have the right to bring the | 19 |
| mortgage current within 90 days after you receive this | 20 |
| Summons. | 21 |
| 4. REDEMPTION: You may have the right to pay off the | 22 |
| loan during the redemption period. | 23 |
| 5. SURPLUS: You have the right to petition for any | 24 |
| excess money that results from a foreclosure sale of the | 25 |
| house. |
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| 6. WORKOUT OPTIONS: The mortgage company does not want | 2 |
| to foreclosure the mortgage if there is any way to avoid | 3 |
| it. Call the mortgage company or its attorneys to find out | 4 |
| the alternatives to foreclosure. | 5 |
| 7. GET ADVICE: This information is not exhaustive and | 6 |
| does not replace the advice of a professional. You may have | 7 |
| other options. Get professional advice from a lawyer or | 8 |
| certified housing counselor about your rights and options | 9 |
| to avoid foreclosure. | 10 |
| 8. A LAWYER: If you do not have a lawyer, and are | 11 |
| unable to afford one, you may be able to find assistance by | 12 |
| contacting Illinois Legal Aid or the Illinois State Bar | 13 |
| Association. | 14 |
| 9. PROCEED WITH CAUTION: You may be contacted by people | 15 |
| offering to help you to avoid foreclosure. The Illinois | 16 |
| Mortgage Rescue Act provides you some protections in these | 17 |
| situations. Please follow these precautions: | 18 |
| a. Get legal advice before entering into any deal | 19 |
| involving your house. | 20 |
| b. Get legal advice before you pay money to any | 21 |
| person offering to help you avoid foreclosure. | 22 |
| c. Do not sign any papers you do not understand. | 23 |
| (735 ILCS 5/15-1505.5 new) | 24 |
| Sec. 15-1505.5. Payoff demands. | 25 |
| (a) On the written demand of a mortgagor or the mortgagor's |
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| authorized agent, a mortgagee or the mortgagee's authorized | 2 |
| agent shall prepare and deliver a payoff demand statement to | 3 |
| the mortgagor or the mortgagor's authorized agent who has | 4 |
| requested it within 5 business days after receipt of the | 5 |
| demand. | 6 |
| (b) The payoff demand statement shall provide the amounts | 7 |
| required as of the date of preparation and shall include the | 8 |
| information reasonably necessary to calculate the payoff | 9 |
| amount on a per diem basis for the time that the per diem | 10 |
| amount remains unchanged as provided in the note but not to | 11 |
| exceed 30 days. The payoff demand statement shall also include | 12 |
| the loan number for the obligation to be paid, the address of | 13 |
| the mortgagee, the telephone number of the mortgagee and, if a | 14 |
| banking organization or corporation, the name of the | 15 |
| department, and its telephone number and facsimile phone | 16 |
| number. | 17 |
| (c) The mortgagor or the mortgagor's authorized agent may | 18 |
| rely on a payoff demand statement for the purpose of | 19 |
| establishing the amount necessary to pay the obligation in full | 20 |
| and obtain a release of the mortgage or deed of trust that | 21 |
| secures the obligation through and including the time set forth | 22 |
| in the payoff demand statement. | 23 |
| (d) Any sums that were due the mortgagee or the mortgagee's | 24 |
| authorized agent that were not included in the payoff demand | 25 |
| statement or in any amended statement constitute an unsecured | 26 |
| obligation of the mortgagor pursuant to the terms of the note |
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| and are recoverable by the mortgagee or mortgagee's agent | 2 |
| pursuant to the terms of the note and as otherwise provided by | 3 |
| law. | 4 |
| (e) A mortgagee or mortgagee's agent who willfully fails to | 5 |
| prepare and deliver a payoff demand statement within 5 business | 6 |
| days after receipt of a written demand is liable to the | 7 |
| mortgagor for actual damages sustained for failure to deliver | 8 |
| the statement. The mortgagee or mortgagee's agent is liable to | 9 |
| the mortgagor for $500 if no actual damages are sustained. Each | 10 |
| failure of the mortgagee to prepare and deliver the payoff | 11 |
| demand statement when required to do so pursuant to this | 12 |
| Section constitutes a separate cause of action. For purposes of | 13 |
| this subsection, "willfully" means a failure to comply with | 14 |
| this Section without just cause or excuse. | 15 |
| (f) Unless the payoff demand statement provides otherwise, | 16 |
| the statement is deemed to apply only to the unpaid balance of | 17 |
| the single obligation that is named in the demand and that is | 18 |
| secured by the mortgage or deed of trust identified in the | 19 |
| payoff demand statement. | 20 |
| (g) The demand for and preparation and delivery of a payoff | 21 |
| demand statement pursuant to this Section does not change any | 22 |
| date or time period that is prescribed in the note or that is | 23 |
| otherwise provided by law. | 24 |
| (h) The mortgagee or mortgagee's agent may assess a fee of | 25 |
| no more than $10 for furnishing each payoff demand statement. | 26 |
| This is conclusively presumed to be reasonable. |
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| (i) For the purposes of this Section, unless the context | 2 |
| otherwise requires: | 3 |
| (1) "Deliver" or "delivery" means depositing or | 4 |
| causing to be deposited into the United States mail an | 5 |
| envelope with postage prepaid that contains a copy of the | 6 |
| documents to be delivered and that is addressed to the | 7 |
| person whose name and address are provided in the payoff | 8 |
| demand. Delivery may also include transmitting those | 9 |
| documents by telephone facsimile to the person or | 10 |
| electronically if the payoff demand specifically requests | 11 |
| and authorizes that the documents be transmitted in | 12 |
| electronic form. | 13 |
| (2) "Payoff demand" means a written demand for a payoff | 14 |
| demand statement made by the mortgagor or the mortgagor's | 15 |
| authorized agent. | 16 |
| (3) "Payoff demand statement" means a written | 17 |
| statement that is prepared in response to a written demand | 18 |
| made by a mortgagee or the mortgagee's authorized agent | 19 |
| that sets forth the amounts required by the beneficiary to | 20 |
| fully satisfy all of the obligations secured by the loan | 21 |
| that is the subject of the demand.
| 22 |
| (735 ILCS 5/15-1510) (from Ch. 110, par. 15-1510)
| 23 |
| Sec. 15-1510. Attorney's Fees and Costs by Written | 24 |
| Agreement. The court may award reasonable attorney's fees and | 25 |
| costs to the prevailing party in the foreclosure action. |
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| Attorneys' fees and other costs incurred in connection with the
| 2 |
| preparation, filing or prosecution of the foreclosure suit | 3 |
| shall be
recoverable in a foreclosure only to the extent
| 4 |
| specifically set forth in the mortgage or other written | 5 |
| agreement between
the mortgagor and the mortgagee or as | 6 |
| otherwise provided in this Article.
| 7 |
| (Source: P.A. 86-974.)
| 8 |
| Section 99. Effective date. This Act takes effect January | 9 |
| 1, 2009.".
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