Full Text of SB2064 95th General Assembly
SB2064 95TH GENERAL ASSEMBLY
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95TH GENERAL ASSEMBLY
State of Illinois
2007 and 2008 SB2064
Introduced 2/7/2008, by Sen. M. Maggie Crotty SYNOPSIS AS INTRODUCED: |
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735 ILCS 5/9-104 |
from Ch. 110, par. 9-104 |
735 ILCS 5/9-104.1 |
from Ch. 110, par. 9-104.1 |
735 ILCS 5/9-104.2 |
from Ch. 110, par. 9-104.2 |
735 ILCS 5/9-211 |
from Ch. 110, par. 9-211 |
735 ILCS 5/15-1503 |
from Ch. 110, par. 15-1503 |
735 ILCS 5/15-1504 |
from Ch. 110, par. 15-1504 |
735 ILCS 5/15-1506 |
from Ch. 110, par. 15-1506 |
735 ILCS 5/15-1507 |
from Ch. 110, par. 15-1507 |
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Amends the Code of Civil Procedure. Provides that in counties with a population of 3 million or more, the demand for possession or for rent required in a forcible entry and detainer action, and the notice of foreclosure, foreclosure complaint, and notice of judicial sale in mortgage foreclosure proceedings, shall state the name and date of birth of each known occupant of the premises and the name of each known occupant who has a disability. Provides that a judgment of foreclosure may include special matters including, but not limited to, in counties with a population of 3 million or more, whether any known occupant is age 14 or younger, age 65 or older, or disabled. Effective immediately.
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A BILL FOR
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SB2064 |
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LRB095 19013 AJO 45186 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 Sections 9-104, 9-104.1, 9-104.2, 9-211, 15-1503, | 6 |
| 15-1504, 15-1506, and 15-1507 as follows:
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| (735 ILCS 5/9-104) (from Ch. 110, par. 9-104)
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| Sec. 9-104. Demand - Notice - Return. The demand required | 9 |
| by Section
9-102 of this Act may be made by delivering a copy
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| thereof to the tenant, or by leaving such a copy with some | 11 |
| person of the
age of 13 years or upwards, residing on, or being | 12 |
| in charge of, the premises;
or in case no one is in the actual | 13 |
| possession of the premises, then by
posting the same on the | 14 |
| premises; or if those in possession are unknown
occupants who | 15 |
| are not parties to any written lease, rental agreement, or | 16 |
| right
to possession agreement for the premises, then by | 17 |
| delivering a copy of the
notice, directed to "unknown | 18 |
| occupants", to the occupant or by leaving a copy
of the notice | 19 |
| with some person of the age of 13 years or upwards
occupying | 20 |
| the premises, or by posting a copy of the notice on the | 21 |
| premises
directed to "unknown occupants". When such demand is | 22 |
| made by
an officer authorized to serve process, his or her | 23 |
| return is prima facie
evidence of the facts therein stated, and |
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| if such demand is made by any
person not an officer, the return | 2 |
| may be sworn to by the person serving
the same, and is then | 3 |
| prima facie evidence of the facts therein
stated. The demand | 4 |
| for possession may be in the following form:
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| To ....
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| I hereby demand immediate possession of the following | 7 |
| described
premises: (describing the same.)
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| The demand shall be signed by the person claiming such | 9 |
| possession,
his or her agent, or attorney.
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| In counties with a population of 3,000,000 or more, the | 11 |
| demand required by Section 9-102 of this Act shall state the | 12 |
| name and date of birth of each known occupant of the premises | 13 |
| and the name of each known occupant who has a disability, as | 14 |
| defined by Section 10 of the Disabilities Services Act of 2003. | 15 |
| (Source: P.A. 92-823, eff. 8-21-02 .)
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| (735 ILCS 5/9-104.1) (from Ch. 110, par. 9-104.1)
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| Sec. 9-104.1. Demand; Notice; Return; Condominium and | 18 |
| Contract
Purchasers.
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| (a) In case there is a contract for the purchase of such | 20 |
| lands
or tenements or in case of condominium property, the | 21 |
| demand shall give the
purchaser under such contract, or to the | 22 |
| condominium unit owner, as the
case may be, at least 30 days to | 23 |
| satisfy the terms of the demand before an
action is filed. In | 24 |
| case of a condominium unit, the demand shall set forth
the | 25 |
| amount claimed which must be paid within the time prescribed in |
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| the
demand and the time period or periods when the amounts were | 2 |
| originally due,
unless the demand is for compliance with | 3 |
| Section 18(n) of the Condominium
Property Act, in which case | 4 |
| the demand shall set forth the nature of the
lease and | 5 |
| memorandum of lease or the leasing requirement not satisfied.
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| The amount claimed shall include regular or special | 7 |
| assessments, late
charges or interest for delinquent | 8 |
| assessments, and attorneys' fees claimed
for services incurred | 9 |
| prior to the demand. Attorneys' fees claimed by
condominium | 10 |
| associations in the demand shall be subject to review by the
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| courts in any forcible entry and detainer proceeding under | 12 |
| subsection (b) of Section 9-111
of this Act.
The demand shall | 13 |
| be signed by the person claiming such possession, his or
her | 14 |
| agent, or attorney.
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| (b) In the case of a condominium unit, the demand is not | 16 |
| invalidated by
partial payment of amounts due if the payments | 17 |
| do not, at the end of the
notice period, total the amounts | 18 |
| demanded in the notice for common
expenses, unpaid fines, | 19 |
| interest, late charges, reasonable attorney fees
incurred | 20 |
| prior to the initiation of any court action and costs of
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| collection. The person claiming possession, or his or her agent | 22 |
| or
attorney, may, however, agree in writing to withdraw the | 23 |
| demand in exchange
for receiving partial payment. To prevent | 24 |
| invalidation, the notice must
prominently state:
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| "Only FULL PAYMENT of all amounts demanded in this notice | 26 |
| will invalidate
the demand, unless the person claiming |
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| possession, or his or her agent or
attorney, agrees in writing | 2 |
| to withdraw the demand in exchange for
receiving partial | 3 |
| payment."
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| (c) The demand set forth in subsection (a) of this Section | 5 |
| shall be
served either personally upon such purchaser or | 6 |
| condominium unit owner or
by sending the demand thereof by | 7 |
| registered or certified mail with return
receipt requested to | 8 |
| the last known address of such purchaser or condominium
unit | 9 |
| owner or in case no one is in the actual possession of the | 10 |
| premises,
then by posting the same on the premises. When such | 11 |
| demand is made by an
officer authorized to serve process, his | 12 |
| or her return is prima facie
evidence of the facts therein | 13 |
| stated and if such demand is made by any
person not an officer, | 14 |
| the return may be sworn to by the person serving the
same, and | 15 |
| is then prima facie evidence of the facts therein stated.
To be | 16 |
| effective service under this Section, a demand sent by | 17 |
| certified or
registered mail to the last known address need not | 18 |
| be received by the
purchaser or condominium unit owner.
No
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| other demand shall be required as a prerequisite to filing an | 20 |
| action under
paragraph (7) of subsection (a) of Section 9-102 | 21 |
| of this Act.
Service of the demand by registered or certified | 22 |
| mail shall be deemed
effective upon deposit in the United | 23 |
| States mail with proper postage prepaid
and addressed as | 24 |
| provided in this subsection.
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| (d) In counties with a population of 3,000,000 or more, the | 26 |
| demand set forth in subsection (a) of this Section shall state |
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| the name and date of birth of each known occupant of the | 2 |
| premises and the name of each known occupant who has a | 3 |
| disability, as defined by Section 10 of the Disabilities | 4 |
| Services Act of 2003. | 5 |
| (Source: P.A. 90-496, eff. 8-18-97.)
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| (735 ILCS 5/9-104.2) (from Ch. 110, par. 9-104.2)
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| Sec. 9-104.2. Demand - Notice - Termination of Lease and | 8 |
| Possession of a
Condominium.
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| (a) Unless the Board of Managers is seeking to
terminate | 10 |
| the right of possession of a tenant or other occupant of a unit
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| under
an existing lease or other arrangement with the owner
of | 12 |
| a unit, no demand nor summons need be served upon the tenant or | 13 |
| other
occupant in connection
with an action brought under | 14 |
| paragraph (7) of subsection (a) of Section
9-102 of this | 15 |
| Article.
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| (a-5) The Board of Managers may seek to terminate
the right | 17 |
| of possession of a tenant or other occupant of a unit under an
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| existing lease or other arrangement between the tenant or other | 19 |
| occupant and
the defaulting owner of a unit, either within the | 20 |
| same action against the unit
owner under paragraph (7) of | 21 |
| subsection (a) of Section 9-102 of this Article or
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| independently thereafter under other paragraphs of that | 23 |
| subsection. If a
tenant or other occupant of a unit is joined | 24 |
| within
the same action against the defaulting unit owner under | 25 |
| paragraph (7),
only the unit owner and not the tenant or other |
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| occupant
need to be served with 30 days prior written notice as
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| provided in this Article.
The tenant or other occupant may be | 3 |
| joined as additional defendants at the
time the suit is filed
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| or at any time thereafter prior to execution of judgment for | 5 |
| possession by
filing, with or without prior leave of the court, | 6 |
| an amended complaint and
summons for trial. If the complaint | 7 |
| alleges that the unit is occupied or may
be occupied by persons | 8 |
| other than or in addition to the unit owner of record,
that the | 9 |
| identities of the persons are concealed and unknown, they may | 10 |
| be named
and joined as defendant "Unknown Occupants". Summons | 11 |
| may be served on the
defendant "Unknown Occupants" by the | 12 |
| sheriff or court appointed process server
by leaving a copy at | 13 |
| the unit with any person residing at the unit of the age
of
13 | 14 |
| years or greater, and if the summons is returned without | 15 |
| service stating
that service cannot be obtained, constructive | 16 |
| service may be obtained pursuant
to Section 9-107 of this Code | 17 |
| with notice mailed to "Unknown Occupants" at the
address of the | 18 |
| unit. If prior to execution of judgment for possession the
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| identity of a defendant or defendants served in this manner is | 20 |
| discovered, his
or her name or names
and the record may be | 21 |
| corrected upon hearing pursuant to notice of motion
served upon | 22 |
| the identified defendant or defendants at the unit in the | 23 |
| manner
provided by
court rule for service of notice of motion.
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| If however an action under paragraph (7) was brought
against | 25 |
| the defaulting unit owner only, and after obtaining judgment | 26 |
| for
possession and expiration of the stay on enforcement the |
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| Board of Managers
elects not to accept a tenant or occupant in | 2 |
| possession as its own and to
commence a separate action, | 3 |
| written
notice of the judgment against the unit owner and | 4 |
| demand to quit the premises
shall be served on the tenant or | 5 |
| other occupant in the manner provided under
Section 9-211 at
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| least 10 days prior to bringing suit to recover possession from | 7 |
| the tenant or
other occupant.
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| (b) If a judgment for possession is granted to the Board of | 9 |
| Managers under
Section 9-111, any interest of the unit owner to | 10 |
| receive rents under any
lease arrangement shall
be deemed | 11 |
| assigned to the Board of Managers until such time as the | 12 |
| judgment is
vacated.
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| (c) If a judgment for possession is entered, the Board of | 14 |
| Managers may
obtain from the clerk of the court an | 15 |
| informational certificate notifying any
tenants
not parties to | 16 |
| the proceeding of the assignment of the unit owner's interest
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| in the lease arrangement to the Board of Managers
as a result | 18 |
| of the entry of the judgment for possession and stating that
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| any rent hereinafter due the unit owner or his agent under the | 20 |
| lease
arrangement should be paid to the Board of Managers until | 21 |
| further order of
court. If the tenant pays his rent to the | 22 |
| association pursuant to the
entry of such a judgement for | 23 |
| possession, the unit owner may not sue said
tenant for any such | 24 |
| amounts the tenant pays the association.
Upon service of the | 25 |
| certificate on the tenant in the manner provided by
Section | 26 |
| 9-211 of this Code, the tenant shall be obligated to pay the |
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| rent under
the lease arrangement to the Board of Managers as it | 2 |
| becomes due. If the
tenant thereafter fails and refuses to pay | 3 |
| the rent, the Board of Managers may
bring an action for | 4 |
| possession after making a demand for rent in accordance
with | 5 |
| Section 9-209 of this Code.
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| (c-5) In an action against the unit owner and lessee to | 7 |
| evict a lessee for
failure of the lessor/owner of the | 8 |
| condominium unit to comply with the leasing
requirements | 9 |
| prescribed by subsection (n) of Section 18 of the Condominium
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| Property Act or by
the declaration, bylaws, and rules and | 11 |
| regulations of the condominium, or
against a lessee for any | 12 |
| other breach by the lessee of any covenants, rules,
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| regulations, or bylaws of the condominium, the demand shall | 14 |
| give the lessee at
least 10 days to quit and vacate the unit. | 15 |
| The notice shall be substantially
in the following form:
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| "TO A.B. You are hereby notified that in consequence of | 17 |
| (here insert
lessor-owner name) failure to comply with the | 18 |
| leasing requirements prescribed
by Section 18(n) of the | 19 |
| Condominium Property Act or by the declaration, bylaws,
and | 20 |
| rules and regulations of the condominium, or your default | 21 |
| of any covenants,
rules, regulations or bylaws of the | 22 |
| condominium, in (here insert the character
of the default) | 23 |
| of the premises now occupied by you, being (here described | 24 |
| the
premises) the Board of Managers of (here describe the | 25 |
| condominium) Association
elects to terminate your lease, | 26 |
| and you are hereby notified to quit and vacate
same within |
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| 10 days of this date.".
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| The demand shall be signed by the Board of Managers, its | 3 |
| agent, or attorney
and shall be served either personally upon | 4 |
| the lessee with a copy to the unit
owner or by sending the | 5 |
| demand thereof by registered or certified mail with
return | 6 |
| receipt requested to the unit occupied by the lessee and to the | 7 |
| last
known address of the unit owner, and no other demand of | 8 |
| termination of such
tenancy shall be required. To be effective | 9 |
| service under this Section, a
demand sent by certified mail, | 10 |
| return receipt requested, to the unit occupied
by the lessee | 11 |
| and to the last known address of the unit owner need not be
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| received by the lessee or condominium unit owner.
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| (d) Nothing in this Section 9-104.2 is intended to confer | 14 |
| upon a Board of
Managers any greater authority with respect to | 15 |
| possession of a unit after a
judgment than was previously | 16 |
| established by this Act.
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| (e) In counties with a population of 3,000,000 or more, the | 18 |
| demand set forth in subsection (c-5) of this Section shall | 19 |
| state the name and date of birth of each known occupant of the | 20 |
| premises and the name of each known occupant who has a | 21 |
| disability, as defined by Section 10 of the Disabilities | 22 |
| Services Act of 2003. | 23 |
| (Source: P.A. 90-496, eff. 8-18-97; 91-196, eff. 7-20-99.)
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| (735 ILCS 5/9-211) (from Ch. 110, par. 9-211)
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| Sec. 9-211. Service of demand or notice. Any demand may be |
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| made or notice
served by delivering a
written or printed, or | 2 |
| partly written and printed, copy thereof to the
tenant, or by | 3 |
| leaving the same with some person of the age
of 13
years or | 4 |
| upwards, residing on or in possession of the premises; or by | 5 |
| sending a
copy of the notice to the tenant by certified or | 6 |
| registered mail, with
a returned receipt from the addressee; | 7 |
| and in case no one is in the
actual possession of the premises, | 8 |
| then by posting the same on the
premises.
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| In counties with a population of 3,000,000 or more, the | 10 |
| demand shall state the name and date of birth of each known | 11 |
| occupant of the premises and the name of each known occupant | 12 |
| who has a disability, as defined by Section 10 of the | 13 |
| Disabilities Services Act of 2003. | 14 |
| (Source: P.A. 83-355.)
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| (735 ILCS 5/15-1503) (from Ch. 110, par. 15-1503)
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| Sec. 15-1503. Notice of Foreclosure. A notice of | 17 |
| foreclosure, whether
the foreclosure is initiated by complaint | 18 |
| or
counterclaim, made in accordance with this Section and | 19 |
| recorded in the
county in which the mortgaged real estate is | 20 |
| located shall be constructive
notice of the pendency of the | 21 |
| foreclosure to every person claiming an
interest in or lien on | 22 |
| the mortgaged real estate, whose interest or lien
has not been | 23 |
| recorded prior to the recording of such notice of foreclosure.
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| Such notice of foreclosure must be executed by any party or any | 25 |
| party's
attorney and shall include (i) the names of all |
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| plaintiffs and the case
number, (ii) the court in which the | 2 |
| action was brought, (iii) the names of
title holders of record, | 3 |
| (iv) a legal description of the real estate
sufficient to | 4 |
| identify it with reasonable certainty, (v) a common address
or | 5 |
| description of the location of the real estate , and (vi) | 6 |
| identification
of the mortgage sought to be foreclosed , and | 7 |
| (vii) in counties with a population of 3,000,000 or more, the | 8 |
| name and date of birth of each known occupant of the real | 9 |
| estate and the name of each known occupant who has a | 10 |
| disability, as defined by Section 10 of the Disabilities | 11 |
| Services Act of 2003 . An incorrect common address or
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| description of the location, or an immaterial error in the | 13 |
| identification
of a plaintiff or title holder of record, shall | 14 |
| not invalidate the lis
pendens effect of the notice under this | 15 |
| Section.
A notice which complies with this Section shall be | 16 |
| deemed to comply with
Section 2-1901 of the Code of Civil
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| Procedure and shall have the same effect as a notice filed | 18 |
| pursuant to
that Section; however, a notice which complies with | 19 |
| Section 2-1901 shall
not be constructive notice unless it also | 20 |
| complies with the requirements of
this Section.
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| (Source: P.A. 86-974.)
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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 foreclosure complaint
may be in | 25 |
| substantially the following form:
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| (1) Plaintiff files this complaint to foreclose the | 2 |
| mortgage (or other
conveyance in the nature of a mortgage) | 3 |
| (hereinafter called "mortgage")
hereinafter described and | 4 |
| joins the following person as defendants: (here
insert | 5 |
| names of all defendants).
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| (2) Attached as Exhibit "A" is a copy of the mortgage | 7 |
| 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 | 10 |
| mortgage, trust deed or
other instrument in the nature | 11 |
| 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 | 17 |
| and page number or document number)
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| (G) Interest subject to the mortgage: (here insert | 19 |
| whether fee simple,
estate for years, undivided | 20 |
| interest, etc.)
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| (H) Amount of original indebtedness, including | 22 |
| subsequent advances made
under the mortgage:
| 23 |
| (I) Both the legal description of the mortgaged | 24 |
| real estate and the
common address or other information | 25 |
| sufficient to identify it with reasonable certainty:
| 26 |
| (J) Statement as to defaults, including, but not |
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| necessarily
limited to, date of default, current | 2 |
| unpaid principal balance, per diem
interest accruing, | 3 |
| 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 | 6 |
| defendants and whose
interest in or lien on the | 7 |
| mortgaged real estate is sought to be terminated:
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| (M) Names of defendants claimed to be personally | 9 |
| liable
for deficiency, if any:
| 10 |
| (N) Capacity in which plaintiff brings this | 11 |
| foreclosure (here indicate
whether plaintiff is the | 12 |
| legal holder of the indebtedness, a pledgee, an
agent, | 13 |
| the trustee under a trust deed or otherwise, as | 14 |
| appropriate):
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| (O) Facts in support of redemption period shorter | 16 |
| than
the longer of (i) 7 months from the date the | 17 |
| mortgagor or, if more than
one, all the mortgagors (I) | 18 |
| have been served with summons or by publication
or (II) | 19 |
| have otherwise submitted to the jurisdiction of the | 20 |
| court, or (ii)
3 months from the entry of the judgment | 21 |
| of foreclosure, if sought (here
indicate whether based | 22 |
| upon the real estate not being residential,
| 23 |
| abandonment, or real estate value less than 90%
of | 24 |
| amount owed, etc.):
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| (P) Statement that the right of redemption has been | 26 |
| waived by all
owners of redemption, if applicable:
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| (Q) Facts in support of request for attorneys' fees | 2 |
| and of costs and
expenses, if applicable:
| 3 |
| (R) Facts in support of a request for appointment | 4 |
| of mortgagee in
possession or for appointment of | 5 |
| receiver, and identity of such receiver, if
sought:
| 6 |
| (S) Offer to mortgagor in accordance with Section | 7 |
| 15-1402 to accept
title to the real estate in | 8 |
| satisfaction of all indebtedness and
obligations | 9 |
| secured by the mortgage without judicial sale, if | 10 |
| sought:
| 11 |
| (T) Name or names of defendants whose right to
| 12 |
| possess the mortgaged real estate, after the | 13 |
| confirmation of a foreclosure
sale, is
sought to be | 14 |
| terminated and, if not elsewhere stated, the facts in | 15 |
| support
thereof:
| 16 |
| (U) In counties with a population of 3,000,000 or | 17 |
| more, the name and date of birth of each known occupant | 18 |
| of the mortgaged real estate and the name of each known | 19 |
| occupant who has a disability, as defined by Section 10 | 20 |
| of the Disabilities Services Act of 2003:
| 21 |
| REQUEST FOR RELIEF
| 22 |
| Plaintiff requests:
| 23 |
| (i) A judgment of foreclosure and sale.
| 24 |
| (ii) An order granting a shortened redemption period, | 25 |
| 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 | 4 |
| appointing a receiver,
if sought.
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| (vi) A judgment for attorneys' fees, costs and | 6 |
| expenses, if sought.
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| (b) Required Information. A foreclosure complaint need | 8 |
| contain only such
statements and requests called for by the | 9 |
| form set forth in subsection (a) of
Section
15-1504 as may be | 10 |
| appropriate for the relief sought. Such complaint may
be filed | 11 |
| as a counterclaim, may be joined with other counts or may | 12 |
| include
in the same count additional matters or a request for | 13 |
| any additional
relief permitted by Article
II of the Code of | 14 |
| Civil Procedure.
| 15 |
| (c) Allegations. The statements contained in a complaint in | 16 |
| the form
set forth in subsection (a) of Section 15-1504 are | 17 |
| deemed and construed to include
allegations as follows:
| 18 |
| (1) on the date indicated the obligor of the | 19 |
| indebtedness or other
obligations secured by the mortgage | 20 |
| was justly indebted in the amount of
the indicated original | 21 |
| indebtedness to the original mortgagee or payee of
the | 22 |
| mortgage note;
| 23 |
| (2) that the exhibits attached are true and correct | 24 |
| copies of the
mortgage and note and are incorporated and | 25 |
| made a part of the complaint by
express reference;
| 26 |
| (3) that the mortgagor was at the date indicated an |
|
|
|
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LRB095 19013 AJO 45186 b |
|
| 1 |
| owner of the
interest in the real estate described in the | 2 |
| complaint and that as of that
date made, executed and | 3 |
| delivered the mortgage as security for the note or
other | 4 |
| obligations;
| 5 |
| (4) that the mortgage was recorded in the county in | 6 |
| which the mortgaged
real estate is located, on the date | 7 |
| indicated, in the book and page or as
the document number | 8 |
| indicated;
| 9 |
| (5) that defaults occurred as indicated;
| 10 |
| (6) that at the time of the filing of the complaint the | 11 |
| persons named as
present owners are the owners of the | 12 |
| indicated interests in and to the real
estate described;
| 13 |
| (7) that the mortgage constitutes a valid, prior and | 14 |
| paramount lien upon
the indicated interest in the mortgaged | 15 |
| real estate, which lien is prior and
superior to the right, | 16 |
| title, interest, claim or lien of all parties and
nonrecord | 17 |
| claimants whose interests in the mortgaged real estate are
| 18 |
| sought to be terminated;
| 19 |
| (8) that by reason of the defaults alleged, if the | 20 |
| indebtedness has not
matured by its terms, the same has | 21 |
| become due by the exercise, by the
plaintiff or other | 22 |
| persons having such power, of a right or power to
declare | 23 |
| immediately due and payable the whole of all indebtedness | 24 |
| secured
by the mortgage;
| 25 |
| (9) that any and all notices of default or election to | 26 |
| declare the
indebtedness due and payable or other notices |
|
|
|
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LRB095 19013 AJO 45186 b |
|
| 1 |
| required to be given have
been duly and properly given;
| 2 |
| (10) that any and all periods of grace or other period | 3 |
| of time allowed
for the performance of the covenants or | 4 |
| conditions claimed to be breached
or for the curing of any | 5 |
| breaches have expired;
| 6 |
| (11) that the amounts indicated in the statement
in the | 7 |
| complaint are correctly stated and
if such statement | 8 |
| indicates any advances made or to be made by the
plaintiff | 9 |
| or owner of the mortgage indebtedness, that such advances | 10 |
| were,
in fact, made or will be
required to be made, and | 11 |
| under and by virtue of the mortgage the same
constitute | 12 |
| additional indebtedness secured by the mortgage; and
| 13 |
| (12) that, upon confirmation of the sale, the holder of | 14 |
| the certificate
of sale or deed issued pursuant to that | 15 |
| certificate or, if no certificate or
deed was issued, the | 16 |
| purchaser at the sale will be entitled to full possession
| 17 |
| of the mortgaged real estate against the parties
named in | 18 |
| clause (T) of
paragraph (3) of subsection (a) of Section | 19 |
| 15-1504 or elsewhere to the same
effect;
the omission of | 20 |
| any
party indicates that plaintiff will not seek a | 21 |
| possessory order in the order
confirming sale unless the | 22 |
| request is subsequently made under subsection (h) of
| 23 |
| Section 15-1701 or by separate action under Article 9 of | 24 |
| this Code.
| 25 |
| (d) Request for Fees and Costs. A statement in the | 26 |
| complaint that
plaintiff seeks the inclusion of attorneys' fees |
|
|
|
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LRB095 19013 AJO 45186 b |
|
| 1 |
| and of costs and expenses
shall be deemed and construed to | 2 |
| include allegations that:
| 3 |
| (1) plaintiff has been compelled to employ and retain | 4 |
| attorneys to
prepare and file the complaint and to | 5 |
| represent and advise the plaintiff in
the foreclosure of | 6 |
| the mortgage and the plaintiff will thereby become
liable | 7 |
| for the usual, reasonable and customary fees of the | 8 |
| attorneys in
that behalf;
| 9 |
| (2) that the plaintiff has been compelled to advance or | 10 |
| will be
compelled to advance, various sums of money in | 11 |
| payment of costs, fees,
expenses and disbursements | 12 |
| incurred in connection with the foreclosure,
including, | 13 |
| without limiting the generality of the foregoing, filing | 14 |
| fees,
stenographer's fees, witness fees, costs of | 15 |
| publication, costs of procuring
and preparing documentary | 16 |
| evidence and costs of procuring
abstracts of title, Torrens | 17 |
| certificates, foreclosure minutes and a title
insurance | 18 |
| policy;
| 19 |
| (3) that under the terms of the mortgage, all such | 20 |
| advances, costs,
attorneys' fees and other fees, expenses | 21 |
| and disbursements are made a lien
upon the mortgaged real | 22 |
| estate and the plaintiff is entitled to recover all
such | 23 |
| advances, costs, attorneys' fees, expenses and | 24 |
| disbursements, together
with interest on all advances at | 25 |
| the rate provided in the mortgage, or, if
no rate is | 26 |
| provided therein, at the statutory judgment rate, from the
|
|
|
|
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LRB095 19013 AJO 45186 b |
|
| 1 |
| date on which such advances are made;
| 2 |
| (4) that in order to protect the lien of the mortgage, | 3 |
| it may become
necessary for plaintiff to pay taxes and | 4 |
| assessments which have been or may
be levied upon the | 5 |
| mortgaged real estate;
| 6 |
| (5) that in order to protect and preserve the mortgaged | 7 |
| real estate, it
may also become necessary for the plaintiff | 8 |
| to pay liability (protecting
mortgagor and mortgagee), | 9 |
| fire and other hazard
insurance premiums on the mortgaged | 10 |
| real estate, make such repairs
to the mortgaged real
estate | 11 |
| as may reasonably be deemed necessary for the proper | 12 |
| preservation
thereof, advance for costs to inspect the | 13 |
| mortgaged real estate or to
appraise it, or both, and | 14 |
| advance for premiums for pre-existing private or
| 15 |
| governmental mortgage insurance to the extent required | 16 |
| after a foreclosure
is commenced in order to keep such | 17 |
| insurance in force; and
| 18 |
| (6) that under the terms of the mortgage, any money so | 19 |
| paid or expended
will become an additional indebtedness | 20 |
| secured by the mortgage and will bear
interest from the | 21 |
| date such monies are advanced at the rate provided in the
| 22 |
| mortgage, or, if no rate is provided, at the
statutory | 23 |
| judgment rate.
| 24 |
| (e) Request for Foreclosure. The request for foreclosure is | 25 |
| deemed and
construed to mean that the plaintiff requests that:
| 26 |
| (1) an accounting may be taken under the direction of |
|
|
|
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LRB095 19013 AJO 45186 b |
|
| 1 |
| the court of the
amounts due and owing to the plaintiff;
| 2 |
| (2) that the defendants be ordered to pay to the | 3 |
| plaintiff before
expiration of any redemption period (or, | 4 |
| if no redemption period, before a
short date fixed by the | 5 |
| court) whatever sums may appear to be due upon the taking
| 6 |
| of such account,
together with attorneys' fees and costs of | 7 |
| the proceedings (to the extent
provided in the mortgage or | 8 |
| by law);
| 9 |
| (3) that in default of such payment in accordance with | 10 |
| the judgment, the
mortgaged real estate be sold as directed | 11 |
| by the court, to satisfy the
amount due to the plaintiff as | 12 |
| set forth in the judgment, together with the
interest | 13 |
| thereon at the statutory judgment rate from the date of the | 14 |
| judgment;
| 15 |
| (4) that in the event the plaintiff is a purchaser of | 16 |
| the mortgaged real
estate at such sale, the plaintiff may | 17 |
| offset against the purchase price of
such real estate the | 18 |
| amounts due under the judgment of foreclosure and
order | 19 |
| confirming the sale;
| 20 |
| (5) that in the event of such sale and the failure of | 21 |
| any person entitled
thereto to redeem prior to such sale | 22 |
| pursuant to this Article, the
defendants made parties to | 23 |
| the foreclosure in accordance with this Article,
and all | 24 |
| nonrecord claimants given notice of the foreclosure in | 25 |
| accordance
with this Article, and all persons claiming by, | 26 |
| through or under them, and
each and any and all of them, |
|
|
|
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LRB095 19013 AJO 45186 b |
|
| 1 |
| may be forever barred and foreclosed of any
right, title, | 2 |
| interest, claim, lien, or right to redeem in and to the
| 3 |
| mortgaged real estate; and
| 4 |
| (6) that if no redemption is made prior to such sale, a | 5 |
| deed may be
issued to the purchaser thereat according to | 6 |
| law and such purchaser be let
into possession of the | 7 |
| mortgaged real estate in accordance with Part 17 of this | 8 |
| Article.
| 9 |
| (f) Request for Deficiency Judgment. A request for a | 10 |
| personal judgment
for a deficiency in a foreclosure complaint | 11 |
| if the sale of the mortgaged
real estate fails to produce a | 12 |
| sufficient amount to pay the amount found
due, the plaintiff | 13 |
| may have a personal judgment against any party in the
| 14 |
| foreclosure indicated as being personally liable therefor and | 15 |
| the enforcement
thereof be had as provided by law.
| 16 |
| (g) Request for Possession or Receiver. A request for | 17 |
| possession or appointment
of a receiver has the meaning as | 18 |
| stated in subsection (b) of Section 15-1706.
| 19 |
| (h) Answers by Parties. Any party
may assert its interest | 20 |
| by counterclaim and such counterclaim may at the
option of that | 21 |
| party stand in lieu of answer to the complaint for
foreclosure | 22 |
| and all counter complaints previously or thereafter filed
in | 23 |
| the foreclosure. Any such counterclaim shall be deemed to | 24 |
| constitute a
statement that the counter claimant does not have | 25 |
| sufficient knowledge to
form a belief as to the truth or | 26 |
| falsity of the
allegations of the complaint and all other |
|
|
|
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LRB095 19013 AJO 45186 b |
|
| 1 |
| counterclaims, except
to the extent that the counterclaim | 2 |
| admits or specifically denies such
allegations.
| 3 |
| (Source: P.A. 91-357, eff. 7-29-99.)
| 4 |
| (735 ILCS 5/15-1506) (from Ch. 110, par. 15-1506)
| 5 |
| Sec. 15-1506. Judgment. (a) Evidence. In the trial of a | 6 |
| foreclosure, the evidence to support the
allegations of the | 7 |
| complaint shall be taken in open court, except:
| 8 |
| (1) where an allegation of fact in the complaint is not | 9 |
| denied by a
party's verified answer or verified counterclaim, | 10 |
| or where a party pursuant
to subsection (b) of Section 2-610 of | 11 |
| the Code of Civil Procedure states,
or is deemed to have | 12 |
| stated, in
its pleading that it has no knowledge
of such | 13 |
| allegation sufficient to form a belief and attaches the | 14 |
| required
affidavit, a sworn verification of the complaint or a | 15 |
| separate affidavit
setting forth such fact is sufficient | 16 |
| evidence thereof against such party
and no further evidence of | 17 |
| such fact shall be required; and
| 18 |
| (2) where all the allegations of fact in the complaint have | 19 |
| been proved
by verification of the complaint or affidavit, the | 20 |
| court upon motion
supported by an affidavit stating the amount | 21 |
| which is due the mortgagee,
shall enter a judgment of | 22 |
| foreclosure as requested in the complaint.
| 23 |
| (b) Instruments. In all cases the evidence of the | 24 |
| indebtedness and the
mortgage foreclosed shall be exhibited to | 25 |
| the court and appropriately
marked, and copies thereof shall be |
|
|
|
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LRB095 19013 AJO 45186 b |
|
| 1 |
| filed with the court.
| 2 |
| (c) Summary and Default Judgments. Nothing in this Section | 3 |
| 15-1506
shall prevent a party from obtaining a summary or | 4 |
| default judgment
authorized by Article II of the Code of Civil | 5 |
| Procedure.
| 6 |
| (d) Notice of Entry of Default. When any judgment in a | 7 |
| foreclosure is
entered by default, notice of such judgment | 8 |
| shall be given in accordance
with Section 2-1302 of the Code of | 9 |
| Civil Procedure.
| 10 |
| (e) Matters Required in Judgment. A judgment of foreclosure | 11 |
| shall
include the last date for redemption and all rulings of | 12 |
| the court entered
with respect to each request for relief set | 13 |
| forth in the complaint. The
omission of the date for redemption | 14 |
| shall not extend the time for
redemption or impair the validity | 15 |
| of the judgment.
| 16 |
| (f) Special Matters in Judgment. Without limiting the | 17 |
| general
authority and powers of the court, special matters may | 18 |
| be included in the
judgment of foreclosure if sought by a party | 19 |
| in the complaint or by separate
motion. Such matters may | 20 |
| include, without limitation:
| 21 |
| (1) a manner of sale other than public auction;
| 22 |
| (2) a sale by sealed bid;
| 23 |
| (3) an official or other person who shall be the officer to
| 24 |
| conduct the sale other than the one customarily designated by | 25 |
| the court;
| 26 |
| (4) provisions for non-exclusive broker listings or |
|
|
|
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LRB095 19013 AJO 45186 b |
|
| 1 |
| designating a duly
licensed real estate broker nominated by one | 2 |
| of the parties to exclusively
list the real estate for sale;
| 3 |
| (5) the fees or commissions to be paid out of the sale | 4 |
| proceeds to the
listing or other duly licensed broker, if any, | 5 |
| who shall have procured the accepted bid;
| 6 |
| (6) the fees to be paid out of the sale proceeds to an | 7 |
| auctioneer, if
any, who shall have been authorized to conduct a | 8 |
| public auction sale;
| 9 |
| (7) whether and in what manner and with what content signs | 10 |
| shall be
posted on the real estate;
| 11 |
| (8) a particular time and place at which such bids shall be | 12 |
| received;
| 13 |
| (9) a particular newspaper or newspapers in which notice of
| 14 |
| sale shall be published;
| 15 |
| (10) the format for the advertising of such sale,
including | 16 |
| the size, content
and format of such advertising, and | 17 |
| additional advertising of such sale;
| 18 |
| (11) matters or exceptions to which title in the real | 19 |
| estate may be subject
at the sale;
| 20 |
| (12) a requirement that title insurance in a specified form | 21 |
| be provided
to a purchaser at the sale, and who shall pay for | 22 |
| such insurance;
| 23 |
| (13) whether and to what extent bids with mortgage or other
| 24 |
| contingencies will be allowed;
| 25 |
| (14) such other matters as approved by the court to ensure | 26 |
| sale of the
real estate for the most commercially favorable |
|
|
|
SB2064 |
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LRB095 19013 AJO 45186 b |
|
| 1 |
| price for the type of real
estate involved ; and .
| 2 |
| (15) in counties with a population of 3,000,000 or more, | 3 |
| whether any known occupant is a person who is 14 years of age | 4 |
| or younger, or 65 years of age or older, or who is a person with | 5 |
| a disability, as defined by Section 10 of the Disabilities | 6 |
| Services Act of 2003. | 7 |
| (g) Agreement of the Parties. If all of the parties agree | 8 |
| in writing on
the minimum price and that the real estate may be | 9 |
| sold to the first person
who offers in writing to purchase the | 10 |
| real estate for such price, and on
such other commercially | 11 |
| reasonable terms and conditions as the parties may
agree, then | 12 |
| the court shall order the real estate to be sold on such terms,
| 13 |
| subject to confirmation of the sale in accordance with Section | 14 |
| 15-1508.
| 15 |
| (h) Postponement of Proving Priority. With the approval of | 16 |
| the court
prior to the entry of the judgment of foreclosure, a | 17 |
| party claiming an
interest in the proceeds of the sale of the | 18 |
| mortgaged real estate may defer
proving the priority of such | 19 |
| interest until the hearing to confirm the sale.
| 20 |
| (i) Effect of Judgment and Lien.
(1) Upon the entry of the | 21 |
| judgment of foreclosure, all rights of a party
in the | 22 |
| foreclosure against the mortgagor provided for in the judgment | 23 |
| of foreclosure
or this Article shall be secured by a lien on | 24 |
| the mortgaged
real estate, which lien shall have the same | 25 |
| priority as the claim to
which the judgment relates and shall | 26 |
| be terminated upon confirmation of a judicial
sale in |
|
|
|
SB2064 |
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LRB095 19013 AJO 45186 b |
|
| 1 |
| accordance with this Article.
| 2 |
| (2) Upon the entry of the judgment of foreclosure, the | 3 |
| rights in the
real estate subject to the judgment of | 4 |
| foreclosure of (i) all persons made
a party in the foreclosure | 5 |
| and (ii) all nonrecord claimants given notice in
accordance | 6 |
| with paragraph (2) of subsection (c) of Section 15-1502, shall
| 7 |
| be solely as provided for in
the judgment of foreclosure and in | 8 |
| this Article.
| 9 |
| (Source: P.A. 85-907.)
| 10 |
| (735 ILCS 5/15-1507) (from Ch. 110, par. 15-1507)
| 11 |
| Sec. 15-1507. Judicial Sale.
| 12 |
| (a) In General. Except as provided in
Sections 15-1402 and | 13 |
| 15-1403, upon entry of a judgment of foreclosure, the
real | 14 |
| estate which is the subject of the judgment shall be sold at a
| 15 |
| judicial sale in accordance with this Section 15-1507.
| 16 |
| (b) Sale Procedures. Upon expiration of the reinstatement | 17 |
| period and
the redemption period in accordance with subsection | 18 |
| (b) or (c) of Section
15-1603 or upon the entry of a judgment | 19 |
| of foreclosure after the waiver of
all rights of redemption, | 20 |
| except as provided in subsection (g) of Section
15-1506, the | 21 |
| real estate shall be sold at a sale as provided in this
| 22 |
| Article, on such terms and conditions as shall be specified by | 23 |
| the court in
the judgment of foreclosure. A sale may be | 24 |
| conducted by any judge or sheriff.
| 25 |
| (c) Notice of Sale. The mortgagee, or such other party |
|
|
|
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LRB095 19013 AJO 45186 b |
|
| 1 |
| designated by the
court, in a foreclosure under this Article | 2 |
| shall give public notice of the
sale as follows:
| 3 |
| (1) The notice of sale shall include at least the | 4 |
| following information,
but an immaterial error in the | 5 |
| information shall not invalidate the legal
effect of the | 6 |
| notice:
| 7 |
| (A) the name, address and telephone number of the | 8 |
| person to contact for
information regarding the real | 9 |
| estate;
| 10 |
| (B) the common address and other common | 11 |
| description (other than legal
description), if any, of | 12 |
| the real estate;
| 13 |
| (C) a legal description of the real estate | 14 |
| sufficient to identify it with
reasonable certainty;
| 15 |
| (D) a description of the improvements on the real | 16 |
| estate;
| 17 |
| (E) the times specified in the judgment, if any, | 18 |
| when the real estate
may be inspected prior to sale;
| 19 |
| (F) the time and place of the sale;
| 20 |
| (G) the terms of the sale;
| 21 |
| (H) the case title, case number and the court in | 22 |
| which
the foreclosure was filed;
| 23 |
| (H-1) in the case of a condominium unit to which | 24 |
| subsection (g) of Section 9 of the Condominium Property | 25 |
| Act applies, the statement required by subdivision | 26 |
| (g)(5) of Section 9 of the Condominium Property Act; |
|
|
|
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LRB095 19013 AJO 45186 b |
|
| 1 |
| and
| 2 |
| (I) such other information ordered by the Court ; | 3 |
| and .
| 4 |
| (J) in counties with a population of 3,000,000 or | 5 |
| more, the name and date of birth of each known occupant | 6 |
| of the mortgaged real estate and the name of each known | 7 |
| occupant with a disability, as defined by Section 10 of | 8 |
| the Disabilities Services Act of 2003.
| 9 |
| (2) The notice of sale shall be published at least 3 | 10 |
| consecutive
calendar weeks (Sunday through Saturday), once | 11 |
| in each week, the first such
notice to be published not | 12 |
| more than 45 days prior to the sale, the last
such notice | 13 |
| to be published not less than 7 days prior to the sale, by:
| 14 |
| (i) (A) advertisements in a newspaper circulated to the | 15 |
| general public
in the county in which the real estate is | 16 |
| located, in the section of that
newspaper where legal | 17 |
| notices are commonly placed and (B) separate
| 18 |
| advertisements in the section of such a newspaper, which | 19 |
| (except in
counties with a population in excess of | 20 |
| 3,000,000) may be the same
newspaper, in which real estate | 21 |
| other than real estate being sold as part of
legal | 22 |
| proceedings is commonly advertised to the general public; | 23 |
| provided,
that the separate advertisements in the real | 24 |
| estate section need not
include a legal description and | 25 |
| that where both advertisements could be
published in the | 26 |
| same newspaper and that newspaper does not have separate
|
|
|
|
SB2064 |
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LRB095 19013 AJO 45186 b |
|
| 1 |
| legal notices and real estate advertisement sections, a | 2 |
| single
advertisement with the legal description shall be | 3 |
| sufficient; and
(ii) such other publications as may be | 4 |
| further ordered by the court.
| 5 |
| (3) The party who gives notice of public sale in | 6 |
| accordance with
subsection (c) of Section 15-1507 shall | 7 |
| also give notice to all parties in
the action who have | 8 |
| appeared and have not theretofore been found by the
court | 9 |
| to be in default for failure to plead. Such notice shall be | 10 |
| given in
the manner provided in the applicable rules of | 11 |
| court for service of papers
other than process and | 12 |
| complaint, not more than 45 days nor less
than 7
days prior | 13 |
| to the day of sale. After notice is given as required in | 14 |
| this
Section a copy thereof shall be filed in the office of | 15 |
| the clerk of the
court entering the judgment, together with | 16 |
| a certificate of counsel or
other proof that notice has | 17 |
| been served in compliance with this Section.
| 18 |
| (4) The party who gives notice of public sale in | 19 |
| accordance with
subsection (c) of Section 15-1507 shall | 20 |
| again give notice in accordance
with that Section of any | 21 |
| adjourned sale; provided, however, that if the
adjourned | 22 |
| sale is to occur less than 60 days after the last scheduled | 23 |
| sale,
notice of any adjourned sale need not be given | 24 |
| pursuant to this
Section. In the event of adjournment, the
| 25 |
| person conducting the sale shall, upon adjournment, | 26 |
| announce the date, time
and place upon which the adjourned |
|
|
|
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LRB095 19013 AJO 45186 b |
|
| 1 |
| sale shall be held. Notwithstanding any
language to the | 2 |
| contrary, for any adjourned sale that is to be conducted
| 3 |
| more than 60 days after the date on which it was to first | 4 |
| be held, the
party giving notice of such sale shall again | 5 |
| give notice in accordance with
this Section.
| 6 |
| (5) Notice of the sale may be given prior to the | 7 |
| expiration of any
reinstatement period or redemption | 8 |
| period.
| 9 |
| (6) No other notice by publication or posting shall be | 10 |
| necessary unless
required by order or rule of the court.
| 11 |
| (7) The person named in the notice of sale to be | 12 |
| contacted for
information about the real estate may, but | 13 |
| shall not be required, to
provide additional information | 14 |
| other than that set forth in the notice of sale.
| 15 |
| (d) Election of Property. If the real estate which is the | 16 |
| subject of a
judgment of foreclosure is susceptible of | 17 |
| division, the court may order it to be sold
as necessary to | 18 |
| satisfy the judgment. The court shall determine which real
| 19 |
| estate shall be sold, and the court may determine the order in | 20 |
| which
separate tracts may be sold.
| 21 |
| (e) Receipt upon Sale.
Upon and at the sale
of mortgaged | 22 |
| real estate, the person conducting the sale shall give to
the | 23 |
| purchaser a receipt of sale. The receipt shall describe the | 24 |
| real
estate purchased and shall show the amount bid, the amount | 25 |
| paid, the
total amount paid to
date and the amount still to be | 26 |
| paid therefor. An
additional receipt shall be given at the time |
|
|
|
SB2064 |
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LRB095 19013 AJO 45186 b |
|
| 1 |
| of each subsequent
payment.
| 2 |
| (f) Certificate of Sale. Upon
payment in full of the amount | 3 |
| bid, the person conducting
the sale shall issue, in duplicate, | 4 |
| and give to the purchaser a Certificate
of Sale. The | 5 |
| Certificate of Sale shall be in a recordable form, describe
the | 6 |
| real estate purchased, indicate the date and place of sale and | 7 |
| show the
amount paid therefor. The Certificate of Sale shall | 8 |
| further indicate that
it is subject to confirmation by the | 9 |
| court. The duplicate certificate may
be recorded in accordance | 10 |
| with Section 12-121. The Certificate of Sale
shall be freely | 11 |
| assignable by endorsement thereon.
| 12 |
| (g) Interest after Sale. Any bid at sale shall be deemed to | 13 |
| include,
without the necessity of a court order, interest at | 14 |
| the statutory judgment
rate on any unpaid portion of the sale | 15 |
| price from the date of sale to the
date of payment.
| 16 |
| (Source: P.A. 94-1049, eff. 1-1-07.)
| 17 |
| Section 99. Effective date. This Act takes effect upon | 18 |
| becoming law.
|
|