Full Text of HB5055 96th General Assembly
HB5055sam002 96TH GENERAL ASSEMBLY
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Sen. A. J. Wilhelmi
Filed: 4/29/2010
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| AMENDMENT TO HOUSE BILL 5055
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| AMENDMENT NO. ______. Amend House Bill 5055, AS AMENDED, | 3 |
| with reference to page and line numbers of Senate Amendment No. | 4 |
| 1, on page 1, by replacing line 5 with the following:
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| "changing Sections 15-1503, 15-1506, 15-1507, and 15-1508 as | 6 |
| follows:
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| (735 ILCS 5/15-1503) (from Ch. 110, par. 15-1503) | 8 |
| Sec. 15-1503. Notice of Foreclosure. | 9 |
| (a) A notice of foreclosure, whether
the foreclosure is | 10 |
| initiated by complaint or
counterclaim, made in accordance with | 11 |
| this Section and recorded in the
county in which the mortgaged | 12 |
| real estate is located shall be constructive
notice of the | 13 |
| pendency of the foreclosure to every person claiming an
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| interest in or lien on the mortgaged real estate, whose | 15 |
| interest or lien
has not been recorded prior to the recording | 16 |
| of such notice of foreclosure.
Such notice of foreclosure must |
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| be executed by any party or any party's
attorney and shall | 2 |
| include (i) the names of all plaintiffs and the case
number, | 3 |
| (ii) the court in which the action was brought, (iii) the names | 4 |
| of
title holders of record, (iv) a legal description of the | 5 |
| real estate
sufficient to identify it with reasonable | 6 |
| certainty, (v) a common address
or description of the location | 7 |
| of the real estate and (vi) identification
of the mortgage | 8 |
| sought to be foreclosed. An incorrect common address or
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| description of the location, or an immaterial error in the | 10 |
| identification
of a plaintiff or title holder of record, shall | 11 |
| not invalidate the lis
pendens effect of the notice under this | 12 |
| Section.
A notice which complies with this Section shall be | 13 |
| 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 | 15 |
| pursuant to
that Section; however, a notice which complies with | 16 |
| Section 2-1901 shall
not be constructive notice unless it also | 17 |
| complies with the requirements of
this Section. | 18 |
| (b) With respect to residential real estate, a copy of the | 19 |
| notice of foreclosure described in subsection (a) of Section | 20 |
| 15-1503 shall be sent by first class mail, postage prepaid, to | 21 |
| the municipality within the boundary of which the mortgaged | 22 |
| real estate is located, or to the county within the boundary of | 23 |
| which the mortgaged real estate is located if the mortgaged | 24 |
| real estate is located in an unincorporated territory. A | 25 |
| municipality or county must clearly publish on its website a | 26 |
| single address to which such notice shall be sent. If a |
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| municipality or county does not maintain a website, then the | 2 |
| municipality or county must publicly post in its main office a | 3 |
| single address to which such notice shall be sent. In the event | 4 |
| that a municipality or county has not complied with the | 5 |
| publication requirement in this subsection (b), then such | 6 |
| notice to the municipality or county shall be sent by first | 7 |
| class mail to the chairperson of the county board or county | 8 |
| clerk in the case of a county, to the mayor or city clerk in the | 9 |
| case of a city, to the president of the board of trustees or | 10 |
| village clerk in the case of a village, or to the supervisor or | 11 |
| town clerk in the case of a town provided pursuant to Section | 12 |
| 2-211 of the Code of Civil Procedure . | 13 |
| (Source: P.A. 96-856, eff. 3-1-10.)"; and | 14 |
| on page 10, immediately below line 23, by inserting the | 15 |
| following:
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| "(735 ILCS 5/15-1508) (from Ch. 110, par. 15-1508) | 17 |
| Sec. 15-1508. Report of Sale and Confirmation of Sale. | 18 |
| (a) Report. The person conducting the sale shall promptly | 19 |
| make a report to
the court, which report shall include a copy | 20 |
| of all receipts and, if any,
certificate of sale. | 21 |
| (b) Hearing. Upon motion and notice in accordance with | 22 |
| court rules
applicable to motions generally, which motion shall | 23 |
| 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 |
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| required in
accordance with subsection (c) of Section 15-1507 | 2 |
| was not given, (ii) the
terms of sale were unconscionable, | 3 |
| (iii) the sale was conducted
fraudulently or (iv) that justice | 4 |
| was otherwise not done, the court shall
then enter an order | 5 |
| confirming the sale. The confirmation order shall include a | 6 |
| name, address, and telephone number of the holder of the | 7 |
| certificate of sale or deed issued pursuant to that certificate | 8 |
| or, if no certificate or deed was issued, the purchaser, whom a | 9 |
| municipality or county may contact with concerns about the real | 10 |
| estate. The confirmation order may
also: | 11 |
| (1) approve the mortgagee's fees and costs arising | 12 |
| between the entry of
the judgment of foreclosure and the | 13 |
| confirmation hearing, those costs and
fees to be allowable | 14 |
| to the same extent as provided in the note and mortgage
and | 15 |
| in Section 15-1504; | 16 |
| (2) provide for a personal judgment against any party | 17 |
| for a deficiency;
and | 18 |
| (3) determine the priority of the judgments of parties | 19 |
| who deferred proving
the priority pursuant to subsection | 20 |
| (h) of Section 15-1506, but
the court shall not
defer | 21 |
| confirming the sale pending the determination of such | 22 |
| priority. | 23 |
| (b-5) Notice with respect to residential real estate. With | 24 |
| respect to residential real estate, the notice required under | 25 |
| subsection (b) of this Section shall be sent to the mortgagor | 26 |
| even if the mortgagor has previously been held in default. In |
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| the event the mortgagor has filed an appearance, the notice | 2 |
| shall be sent to the address indicated on the appearance. In | 3 |
| all other cases, the notice shall be sent to the mortgagor at | 4 |
| the common address of the foreclosed property. The notice shall | 5 |
| be sent by first class mail. Unless the right to possession has | 6 |
| been previously terminated by the court, the notice shall | 7 |
| include the following language in 12-point boldface | 8 |
| capitalized type: | 9 |
| IF YOU ARE THE MORTGAGOR (HOMEOWNER), YOU HAVE THE RIGHT TO | 10 |
| REMAIN IN POSSESSION FOR 30 DAYS AFTER ENTRY OF AN ORDER OF | 11 |
| POSSESSION, IN ACCORDANCE WITH SECTION 15-1701(c) OF THE | 12 |
| ILLINOIS MORTGAGE FORECLOSURE LAW. | 13 |
| (b-10) Notice of confirmation order sent to municipality or | 14 |
| county. With respect to residential real estate, a A copy of | 15 |
| the confirmation order required under subsection (b) shall be | 16 |
| sent by first class mail, postage prepaid, to the municipality | 17 |
| in which the foreclosed property is located, or to the county | 18 |
| within the boundary of which the foreclosed property is located | 19 |
| if the foreclosed property is located in an unincorporated | 20 |
| territory. A municipality or county must clearly publish on its | 21 |
| website a single address to which such order notice shall be | 22 |
| sent. If a municipality or county does not maintain a website, | 23 |
| then the municipality or county must publicly post in its main | 24 |
| office a single address to which such order notice shall be | 25 |
| sent. In the event that a municipality or county has not | 26 |
| complied with the publication requirement in this subsection |
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| (b-10), then such order notice to the municipality or county | 2 |
| shall be sent by first class mail to the chairperson of the | 3 |
| county board or county clerk in the case of a county, to the | 4 |
| mayor or city clerk in the case of a city, to the president of | 5 |
| the board of trustees or village clerk in the case of a | 6 |
| village, or to the supervisor or town clerk in the case of a | 7 |
| town provided pursuant to Section 2-211 of the Code of Civil | 8 |
| Procedure . | 9 |
| (b-15) Notice of confirmation order sent to known insurers. | 10 |
| With respect to residential real estate, a copy of the | 11 |
| confirmation order required under subsection (b) shall be sent | 12 |
| by first class mail, postage prepaid, to the last-known | 13 |
| property insurer of the foreclosed property. Failure to send or | 14 |
| receive a copy of the order shall not impair or abrogate in any | 15 |
| way the rights of the mortgagee or purchaser or affect the | 16 |
| status of the foreclosure proceedings. | 17 |
| (c) Failure to Give Notice. If any sale is held without | 18 |
| compliance with
subsection (c) of Section 15-1507 of this | 19 |
| Article, any party entitled to
the notice provided for in | 20 |
| paragraph (3) of that subsection
(c) who was not so notified | 21 |
| may, by motion supported by affidavit
made prior to | 22 |
| confirmation of such sale, ask the court which entered the
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| judgment to set aside the sale. Any such party shall guarantee | 24 |
| or secure by bond a bid equal to the successful bid at the | 25 |
| prior sale, unless the party seeking to set aside the sale is | 26 |
| the mortgagor, the real estate sold at the sale is residential |
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| real estate, and the mortgagor occupies the residential real | 2 |
| estate at the time the motion is filed. In that event, no | 3 |
| guarantee or bond shall be required of the mortgagor. Any
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| subsequent sale is subject to the same notice requirement as | 5 |
| the original sale. | 6 |
| (d) Validity of Sale. Except as provided in subsection (c) | 7 |
| of Section
15-1508, no sale under this Article shall be held | 8 |
| invalid or be set aside
because of any defect in the notice | 9 |
| thereof or in the publication of the
same, or in the | 10 |
| proceedings of the officer conducting the sale, except upon
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| good cause shown in a hearing pursuant to subsection (b) of | 12 |
| Section
15-1508. At any time after a sale has occurred, any | 13 |
| party entitled to
notice under paragraph (3) of subsection (c) | 14 |
| of Section 15-1507 may recover
from the mortgagee any damages | 15 |
| caused by the mortgagee's failure to comply
with such paragraph | 16 |
| (3). Any party who recovers damages in a judicial
proceeding | 17 |
| brought under this subsection may also recover from the
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| mortgagee the reasonable expenses of litigation, including | 19 |
| reasonable attorney's fees. | 20 |
| (e) Deficiency Judgment. In any order confirming a sale | 21 |
| pursuant to the
judgment of foreclosure, the court shall also | 22 |
| enter a personal judgment
for deficiency against any party (i) | 23 |
| if otherwise authorized and (ii) to
the extent requested in the | 24 |
| complaint and proven upon presentation of the
report of sale in | 25 |
| 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 |
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| money that
may be found due to the plaintiff, over and above | 2 |
| the proceeds of the sale
or sales, and enforcement may be had | 3 |
| for the collection of such balance,
the same as when the | 4 |
| judgment is solely for the payment of money. Such
judgment may | 5 |
| be entered, or enforcement had,
only in cases where personal | 6 |
| service has been had upon the
persons personally liable for the | 7 |
| mortgage indebtedness, unless they have
entered their | 8 |
| appearance in the foreclosure action. | 9 |
| (f) Satisfaction. Upon confirmation of the sale, the
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| judgment stands satisfied to the extent of the sale price less | 11 |
| expenses and
costs. If the order confirming the sale includes a | 12 |
| deficiency judgment, the
judgment shall become a lien in the | 13 |
| manner of any other
judgment for the payment of money. | 14 |
| (g) The order confirming the sale shall include, | 15 |
| notwithstanding any
previous orders awarding possession during | 16 |
| the pendency of the foreclosure, an
award to the purchaser of | 17 |
| possession of the mortgaged real estate, as of the
date 30 days | 18 |
| after the entry of the order, against the
parties to the | 19 |
| foreclosure whose interests have been terminated. | 20 |
| An order of possession authorizing the removal of a person | 21 |
| from possession
of the mortgaged real estate shall be entered | 22 |
| and enforced only against those
persons personally
named as | 23 |
| individuals in the complaint or the petition under subsection | 24 |
| (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 | 26 |
| generically
described as an
unknown owner or nonrecord claimant |
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| or by another generic designation in the
complaint. | 2 |
| Notwithstanding the preceding paragraph, the failure to | 3 |
| personally
name,
include, or seek an award of
possession of the | 4 |
| mortgaged real estate against a person in the
confirmation | 5 |
| order shall not abrogate any right that the purchaser may have | 6 |
| to
possession of the mortgaged real estate and to maintain a | 7 |
| proceeding against
that person for
possession under Article 9 | 8 |
| of this Code or subsection (h) of Section 15-1701;
and | 9 |
| possession against a person
who (1) has not been personally | 10 |
| named as a party to the
foreclosure and (2) has not been | 11 |
| provided an opportunity to be heard in the
foreclosure | 12 |
| proceeding may be sought only by maintaining a
proceeding under | 13 |
| Article 9 of this
Code or subsection (h) of Section 15-1701. | 14 |
| (Source: P.A. 95-826, eff. 8-14-08; 96-265, eff. 8-11-09; | 15 |
| 96-856, eff. 3-1-10.)"; and | 16 |
| on page 10, line 24, by replacing "This Act takes" with the | 17 |
| following:
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| "Sections 15-1506 and 15-1507 take".
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