Full Text of HB2005 96th General Assembly
HB2005ham001 96TH GENERAL ASSEMBLY
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Rep. André M. Thapedi
Filed: 3/18/2009
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LRB096 05442 AJO 23919 a |
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| AMENDMENT TO HOUSE BILL 2005
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| AMENDMENT NO. ______. Amend House Bill 2005 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 15-1507 and 15-1508 as follows:
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| (735 ILCS 5/15-1507) (from Ch. 110, par. 15-1507)
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| Sec. 15-1507. Judicial Sale.
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| (a) In General. Except as provided in
Sections 15-1402 and | 9 |
| 15-1403, upon entry of a judgment of foreclosure, the
real | 10 |
| estate which is the subject of the judgment shall be sold at a
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| judicial sale in accordance with this Section 15-1507.
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| (b) Sale Procedures. Upon expiration of the reinstatement | 13 |
| period and
the redemption period in accordance with subsection | 14 |
| (b) or (c) of Section
15-1603 or upon the entry of a judgment | 15 |
| of foreclosure after the waiver of
all rights of redemption, | 16 |
| except as provided in subsection (g) of Section
15-1506, the |
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| real estate shall be sold at a sale as provided in this
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| Article, on such terms and conditions as shall be specified by | 3 |
| the court in
the judgment of foreclosure. A sale may be | 4 |
| conducted by any judge or sheriff.
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| (c) Notice of Sale. The mortgagee, or such other party | 6 |
| designated by the
court, in a foreclosure under this Article | 7 |
| shall give public notice of the
sale as follows:
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| (1) The notice of sale shall include at least the | 9 |
| following information,
but an immaterial error in the | 10 |
| information shall not invalidate the legal
effect of the | 11 |
| notice:
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| (A) the name, address and telephone number of the | 13 |
| person to contact for
information regarding the real | 14 |
| estate;
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| (B) the common address and other common | 16 |
| description (other than legal
description), if any, of | 17 |
| the real estate;
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| (C) a legal description of the real estate | 19 |
| sufficient to identify it with
reasonable certainty;
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| (D) a description of the improvements on the real | 21 |
| estate;
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| (E) the times specified in the judgment, if any, | 23 |
| when the real estate
may be inspected prior to sale;
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| (F) the time and place of the sale;
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| (G) the terms of the sale;
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| (H) the case title, case number and the court in |
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| which
the foreclosure was filed;
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| (H-1) in the case of a condominium unit to which | 3 |
| subsection (g) of Section 9 of the Condominium Property | 4 |
| Act applies, the statement required by subdivision | 5 |
| (g)(5) of Section 9 of the Condominium Property Act; | 6 |
| and
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| (I) such other information ordered by the Court.
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| (2) The notice of sale shall be published at least 3 | 9 |
| consecutive
calendar weeks (Sunday through Saturday), once | 10 |
| in each week, the first such
notice to be published not | 11 |
| more than 45 days prior to the sale, the last
such notice | 12 |
| to be published not less than 7 days prior to the sale, by:
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| (i) (A) advertisements in a newspaper circulated to the | 14 |
| general public
in the county in which the real estate is | 15 |
| located, in the section of that
newspaper where legal | 16 |
| notices are commonly placed and (B) separate
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| advertisements in the section of such a newspaper, which | 18 |
| (except in
counties with a population in excess of | 19 |
| 3,000,000) may be the same
newspaper, in which real estate | 20 |
| other than real estate being sold as part of
legal | 21 |
| proceedings is commonly advertised to the general public; | 22 |
| provided,
that the separate advertisements in the real | 23 |
| estate section need not
include a legal description and | 24 |
| that where both advertisements could be
published in the | 25 |
| same newspaper and that newspaper does not have separate
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| legal notices and real estate advertisement sections, a |
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| single
advertisement with the legal description shall be | 2 |
| sufficient; and
(ii) such other publications as may be | 3 |
| further ordered by the court.
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| (3) The party who gives notice of public sale in | 5 |
| accordance with
subsection (c) of Section 15-1507 shall | 6 |
| also give notice to all parties in
the action who have | 7 |
| appeared and have not theretofore been found by the
court | 8 |
| to be in default for failure to plead. Such notice shall be | 9 |
| given in
the manner provided in the applicable rules of | 10 |
| court for service as set forth in Sections 2-203, 2-203.1, | 11 |
| 2-204, 2-205, or 2-205.1 of the Code of Civil Procedure, as | 12 |
| is appropriate, of papers
other than process and complaint, | 13 |
| not more than 45 days nor less
than 7
days prior to the day | 14 |
| of sale. After notice is given as required in this
Section | 15 |
| a copy thereof shall be filed in the office of the clerk of | 16 |
| the
court entering the judgment, together with a | 17 |
| certificate of counsel or
other proof that notice has been | 18 |
| served in compliance with this Section.
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| (4) The party who gives notice of public sale in | 20 |
| accordance with
subsection (c) of Section 15-1507 shall | 21 |
| again give notice in accordance
with that Section of any | 22 |
| adjourned sale; provided, however, that if the
adjourned | 23 |
| sale is to occur less than 60 days after the last scheduled | 24 |
| sale,
notice of any adjourned sale need not be given | 25 |
| pursuant to this
Section. In the event of adjournment, the
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| person conducting the sale shall, upon adjournment, |
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| announce the date, time
and place upon which the adjourned | 2 |
| sale shall be held. Notwithstanding any
language to the | 3 |
| contrary, for any adjourned sale that is to be conducted
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| more than 60 days after the date on which it was to first | 5 |
| be held, the
party giving notice of such sale shall again | 6 |
| give notice in accordance with
this Section.
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| (5) Notice of the sale may be given prior to the | 8 |
| expiration of any
reinstatement period or redemption | 9 |
| period.
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| (6) No other notice by publication or posting shall be | 11 |
| necessary unless
required by order or rule of the court.
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| (7) The person named in the notice of sale to be | 13 |
| contacted for
information about the real estate may, but | 14 |
| shall not be required, to
provide additional information | 15 |
| other than that set forth in the notice of sale.
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| (d) Election of Property. If the real estate which is the | 17 |
| subject of a
judgment of foreclosure is susceptible of | 18 |
| division, the court may order it to be sold
as necessary to | 19 |
| satisfy the judgment. The court shall determine which real
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| estate shall be sold, and the court may determine the order in | 21 |
| which
separate tracts may be sold.
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| (e) Receipt upon Sale.
Upon and at the sale
of mortgaged | 23 |
| real estate, the person conducting the sale shall give to
the | 24 |
| purchaser a receipt of sale. The receipt shall describe the | 25 |
| real
estate purchased and shall show the amount bid, the amount | 26 |
| paid, the
total amount paid to
date and the amount still to be |
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| paid therefor. An
additional receipt shall be given at the time | 2 |
| of each subsequent
payment.
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| (f) Certificate of Sale. Upon
payment in full of the amount | 4 |
| bid, the person conducting
the sale shall issue, in duplicate, | 5 |
| and give to the purchaser a Certificate
of Sale. The | 6 |
| Certificate of Sale shall be in a recordable form, describe
the | 7 |
| real estate purchased, indicate the date and place of sale and | 8 |
| show the
amount paid therefor. The Certificate of Sale shall | 9 |
| further indicate that
it is subject to confirmation by the | 10 |
| court. The duplicate certificate may
be recorded in accordance | 11 |
| with Section 12-121. The Certificate of Sale
shall be freely | 12 |
| assignable by endorsement thereon.
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| (g) Interest after Sale. Any bid at sale shall be deemed to | 14 |
| include,
without the necessity of a court order, interest at | 15 |
| the statutory judgment
rate on any unpaid portion of the sale | 16 |
| price from the date of sale to the
date of payment.
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| (Source: P.A. 94-1049, eff. 1-1-07.)
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| (735 ILCS 5/15-1508) (from Ch. 110, par. 15-1508)
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| Sec. 15-1508. Report of Sale and Confirmation of Sale.
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| (a) Report. The person conducting the sale shall promptly | 21 |
| make a report to
the court, which report shall include a copy | 22 |
| of all receipts and, if any,
certificate of sale.
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| (b) Hearing. Upon motion and notice in accordance with | 24 |
| court rules
applicable to motions generally, which motion shall | 25 |
| not be made prior to
sale, the court shall conduct a hearing to
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| confirm the sale. Unless the court finds that (i) a notice | 2 |
| required in
accordance with subsection (c) of Section 15-1507 | 3 |
| was not given, (ii) the
terms of sale were unconscionable, | 4 |
| (iii) the sale was conducted
fraudulently or (iv) that justice | 5 |
| was otherwise not done, the court shall
then enter an order | 6 |
| confirming the sale. The confirmation order may
also:
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| (1) approve the mortgagee's fees and costs arising | 8 |
| between the entry of
the judgment of foreclosure and the | 9 |
| confirmation hearing, those costs and
fees to be allowable | 10 |
| to the same extent as provided in the note and mortgage
and | 11 |
| in Section 15-1504;
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| (2) provide for a personal judgment against any party | 13 |
| for a deficiency;
and
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| (3) determine the priority of the judgments of parties | 15 |
| who deferred proving
the priority pursuant to subsection | 16 |
| (h) of Section 15-1506, but
the court shall not
defer | 17 |
| confirming the sale pending the determination of such | 18 |
| priority.
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| (b-5) Notice with respect to residential real estate. With | 20 |
| respect to residential real estate, the notice required under | 21 |
| subsection (b) of this Section shall be sent to the mortgagor | 22 |
| even if the mortgagor has previously been held in default. In | 23 |
| the event the mortgagor has filed an appearance, the notice | 24 |
| shall be sent to the address indicated on the appearance. In | 25 |
| all other cases, the notice shall be sent to the mortgagor at | 26 |
| the common address of the foreclosed property. The notice shall |
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| be sent by first class mail. Unless the right to possession has | 2 |
| been previously terminated by the court, the notice shall | 3 |
| include the following language in 12-point boldface | 4 |
| capitalized type: | 5 |
| IF YOU ARE THE MORTGAGOR (HOMEOWNER), YOU HAVE THE RIGHT TO | 6 |
| REMAIN IN POSSESSION FOR 30 DAYS AFTER ENTRY OF AN ORDER OF | 7 |
| POSSESSION, IN ACCORDANCE WITH SECTION 15-1701(c) OF THE | 8 |
| ILLINOIS MORTGAGE FORECLOSURE LAW. | 9 |
| (c) Failure to Give Notice. If any sale is held without | 10 |
| compliance with
subsection (c) of Section 15-1507 of this | 11 |
| Article, any party entitled to
the notice provided for in | 12 |
| paragraph (3) of that subsection
(c) who was not so notified | 13 |
| may, by motion supported by affidavit
made prior to | 14 |
| confirmation of such sale, ask the court which entered the
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| judgment to set aside the sale , provided that such party shall | 16 |
| guarantee or
secure by bond a bid equal to the successful bid | 17 |
| at the prior sale . Any
subsequent sale is subject to the same | 18 |
| notice requirement as the original sale.
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| (d) Validity of Sale. Except as provided in subsection (c) | 20 |
| of Section
15-1508, no sale under this Article shall be held | 21 |
| invalid or be set aside
because of any defect in the notice | 22 |
| thereof or in the publication of the
same, or in the | 23 |
| proceedings of the officer conducting the sale, except upon
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| good cause shown in a hearing pursuant to subsection (b) of | 25 |
| Section
15-1508. At any time after a sale has occurred, any | 26 |
| party entitled to
notice under paragraph (3) of subsection (c) |
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| of Section 15-1507 may recover
from the mortgagee any damages | 2 |
| caused by the mortgagee's failure to comply
with such paragraph | 3 |
| (3). Any party who recovers damages in a judicial
proceeding | 4 |
| brought under this subsection may also recover from the
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| mortgagee the reasonable expenses of litigation, including | 6 |
| reasonable attorney's fees.
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| (e) Deficiency Judgment. In any order confirming a sale | 8 |
| pursuant to the
judgment of foreclosure, the court shall also | 9 |
| enter a personal judgment
for deficiency against any party (i) | 10 |
| if otherwise authorized and (ii) to
the extent requested in the | 11 |
| complaint and proven upon presentation of the
report of sale in | 12 |
| accordance with Section 15-1508. Except as otherwise provided
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| in this Article, a judgment may be entered for any balance of | 14 |
| money that
may be found due to the plaintiff, over and above | 15 |
| the proceeds of the sale
or sales, and enforcement may be had | 16 |
| for the collection of such balance,
the same as when the | 17 |
| judgment is solely for the payment of money. Such
judgment may | 18 |
| be entered, or enforcement had,
only in cases where personal | 19 |
| service has been had upon the
persons personally liable for the | 20 |
| mortgage indebtedness, unless they have
entered their | 21 |
| appearance in the foreclosure action.
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| (f) Satisfaction. Upon confirmation of the sale, the
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| judgment stands satisfied to the extent of the sale price less | 24 |
| expenses and
costs. If the order confirming the sale includes a | 25 |
| deficiency judgment, the
judgment shall become a lien in the | 26 |
| manner of any other
judgment for the payment of money.
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| (g) The order confirming the sale shall include, | 2 |
| notwithstanding any
previous orders awarding possession during | 3 |
| the pendency of the foreclosure, an
award to the purchaser of | 4 |
| possession of the mortgaged real estate, as of the
date 30 days | 5 |
| after the entry of the order, against the
parties to the | 6 |
| foreclosure whose interests have been terminated.
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| An order of possession authorizing the removal of a person | 8 |
| from possession
of the mortgaged real estate shall be entered | 9 |
| and enforced only against those
persons personally
named as | 10 |
| individuals in the complaint or the petition under subsection | 11 |
| (h)
of Section 15-1701 and in the order of possession and shall
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| not be entered and enforced against any person who is only | 13 |
| generically
described as an
unknown owner or nonrecord claimant | 14 |
| or by another generic designation in the
complaint.
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| Notwithstanding the preceding paragraph, the failure to | 16 |
| personally
name,
include, or seek an award of
possession of the | 17 |
| mortgaged real estate against a person in the
confirmation | 18 |
| order shall not abrogate any right that the purchaser may have | 19 |
| to
possession of the mortgaged real estate and to maintain a | 20 |
| proceeding against
that person for
possession under Article 9 | 21 |
| of this Code or subsection (h) of Section 15-1701;
and | 22 |
| possession against a person
who (1) has not been personally | 23 |
| named as a party to the
foreclosure and (2) has not been | 24 |
| provided an opportunity to be heard in the
foreclosure | 25 |
| proceeding may be sought only by maintaining a
proceeding under | 26 |
| Article 9 of this
Code or subsection (h) of Section 15-1701.
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| (Source: P.A. 95-826, eff. 8-14-08.)
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| Section 99. Effective date. This Act takes effect upon | 3 |
| becoming law.".
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