Full Text of HB5735 96th General Assembly
HB5735 96TH GENERAL ASSEMBLY
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96TH GENERAL ASSEMBLY
State of Illinois
2009 and 2010 HB5735
Introduced 2/9/2010, by Rep. Deborah L. Graham SYNOPSIS AS INTRODUCED: |
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735 ILCS 5/15-1205.5 new |
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735 ILCS 5/15-1504 |
from Ch. 110, par. 15-1504 |
735 ILCS 5/15-1506 |
from Ch. 110, par. 15-1506 |
735 ILCS 5/15-1508 |
from Ch. 110, par. 15-1508 |
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Amends the Mortgage Foreclosure Article of the Code of Civil Procedure. Defines "loss mitigation" as a program or mechanism designed to maximize the opportunity for a mortgagor to retain ownership of the mortgaged real estate and cure delinquencies on his or her mortgage or for a mortgagor and mortgagee to mitigate losses that would result from foreclosure by using alternatives to foreclosure. Provides that a foreclosure complaint shall include a statement as to loss mitigation. Provides that a judgment of foreclosure shall include a finding by the court that the mortgagee has complied with applicable loss mitigation requirements or there are no applicable loss mitigation requirements, and provides that if the court finds that the mortgagee has not complied with applicable loss mitigation requirements, the court shall stay the matter until the court determines that the mortgagee has complied with those requirements. Adds failure by the mortgagee to fulfill applicable loss mitigation requirements as a condition under which the court shall not enter an order confirming a judicial sale.
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A BILL FOR
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HB5735 |
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LRB096 17949 AJO 33317 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 15-1504, 15-1506, and 15-1508 and by adding | 6 |
| Section 15-1205.5 as follows: | 7 |
| (735 ILCS 5/15-1205.5 new) | 8 |
| Sec. 15-1205.5. Loss mitigation. "Loss mitigation" means a | 9 |
| program or mechanism designed to maximize the opportunity for a | 10 |
| mortgagor to retain ownership of the mortgaged real estate and | 11 |
| cure delinquencies on his or her mortgage or for a mortgagor | 12 |
| and mortgagee to mitigate losses that would result from | 13 |
| foreclosure by using alternatives to foreclosure. These | 14 |
| mechanisms include, but are not limited to, loan modification, | 15 |
| forbearance, partial claim, pre-foreclosure sale, and deed in | 16 |
| lieu of foreclosure.
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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 | 20 |
| substantially the following form:
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| (1) Plaintiff files this complaint to foreclose the | 22 |
| mortgage (or other
conveyance in the nature of a mortgage) |
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| (hereinafter called "mortgage")
hereinafter described and | 2 |
| joins the following person as defendants: (here
insert | 3 |
| names of all defendants).
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| (2) Attached as Exhibit "A" is a copy of the mortgage | 5 |
| 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 | 8 |
| mortgage, trust deed or
other instrument in the nature | 9 |
| 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 | 15 |
| and page number or document number)
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| (G) Interest subject to the mortgage: (here insert | 17 |
| whether fee simple,
estate for years, undivided | 18 |
| interest, etc.)
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| (H) Amount of original indebtedness, including | 20 |
| subsequent advances made
under the mortgage:
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| (I) Both the legal description of the mortgaged | 22 |
| real estate and the
common address or other information | 23 |
| sufficient to identify it with reasonable certainty:
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| (J) Statement as to defaults, including, but not | 25 |
| necessarily
limited to, date of default, current | 26 |
| unpaid principal balance, per diem
interest accruing, |
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| 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 | 4 |
| defendants and whose
interest in or lien on the | 5 |
| mortgaged real estate is sought to be terminated:
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| (M) Names of defendants claimed to be personally | 7 |
| liable
for deficiency, if any:
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| (N) Capacity in which plaintiff brings this | 9 |
| foreclosure (here indicate
whether plaintiff is the | 10 |
| legal holder of the indebtedness, a pledgee, an
agent, | 11 |
| the trustee under a trust deed or otherwise, as | 12 |
| appropriate):
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| (O) Statement as to loss mitigation that: (i) | 14 |
| identifies which federal, State, or local loss mitigation | 15 |
| requirements, including, but not limited to, those | 16 |
| pertaining to Federal Housing Administration-insured and | 17 |
| Veterans Administration-insured mortgage loans and those | 18 |
| pertaining to the federal Making Home Affordable program, | 19 |
| apply to the subject mortgage and sets forth specific facts | 20 |
| demonstrating mortgagee's compliance with such | 21 |
| requirements; or (ii) affirms that no loss mitigation | 22 |
| requirements apply to the subject mortgage:
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| (P) (O) Facts in support of redemption period | 24 |
| shorter than
the longer of (i) 7 months from the date | 25 |
| the mortgagor or, if more than
one, all the mortgagors | 26 |
| (I) have been served with summons or by publication
or |
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| (II) have otherwise submitted to the jurisdiction of | 2 |
| the court, or (ii)
3 months from the entry of the | 3 |
| judgment of foreclosure, if sought (here
indicate | 4 |
| whether based upon the real estate not being | 5 |
| residential,
abandonment, or real estate value less | 6 |
| than 90%
of amount owed, etc.):
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| (Q) (P) Statement that the right of redemption has | 8 |
| been waived by all
owners of redemption, if applicable:
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| (R) (Q) Facts in support of request for attorneys' | 10 |
| fees and of costs and
expenses, if applicable:
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| (S) (R) Facts in support of a request for | 12 |
| appointment of mortgagee in
possession or for | 13 |
| appointment of receiver, and identity of such | 14 |
| receiver, if
sought:
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| (T) (S) Offer to mortgagor in accordance with | 16 |
| Section 15-1402 to accept
title to the real estate in | 17 |
| satisfaction of all indebtedness and
obligations | 18 |
| secured by the mortgage without judicial sale, if | 19 |
| sought:
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| (U) (T) Name or names of defendants whose right to
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| possess the mortgaged real estate, after the | 22 |
| confirmation of a foreclosure
sale, is
sought to be | 23 |
| terminated and, if not elsewhere stated, the facts in | 24 |
| 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, | 4 |
| 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 | 8 |
| appointing a receiver,
if sought.
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| (vi) A judgment for attorneys' fees, costs and | 10 |
| expenses, if sought.
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| (b) Required Information. A foreclosure complaint need | 12 |
| contain only such
statements and requests called for by the | 13 |
| form set forth in subsection (a) of
Section
15-1504 as may be | 14 |
| appropriate for the relief sought. Such complaint may
be filed | 15 |
| as a counterclaim, may be joined with other counts or may | 16 |
| include
in the same count additional matters or a request for | 17 |
| any additional
relief permitted by Article
II of the Code of | 18 |
| Civil Procedure.
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| (c) Allegations. The statements contained in a complaint in | 20 |
| the form
set forth in subsection (a) of Section 15-1504 are | 21 |
| deemed and construed to include
allegations as follows:
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| (1) on the date indicated the obligor of the | 23 |
| indebtedness or other
obligations secured by the mortgage | 24 |
| was justly indebted in the amount of
the indicated original | 25 |
| indebtedness to the original mortgagee or payee of
the | 26 |
| mortgage note;
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| (2) that the exhibits attached are true and correct | 2 |
| copies of the
mortgage and note and are incorporated and | 3 |
| made a part of the complaint by
express reference;
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| (3) that the mortgagor was at the date indicated an | 5 |
| owner of the
interest in the real estate described in the | 6 |
| complaint and that as of that
date made, executed and | 7 |
| delivered the mortgage as security for the note or
other | 8 |
| obligations;
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| (4) that the mortgage was recorded in the county in | 10 |
| which the mortgaged
real estate is located, on the date | 11 |
| indicated, in the book and page or as
the document number | 12 |
| 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 | 15 |
| persons named as
present owners are the owners of the | 16 |
| indicated interests in and to the real
estate described;
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| (7) that the mortgage constitutes a valid, prior and | 18 |
| paramount lien upon
the indicated interest in the mortgaged | 19 |
| real estate, which lien is prior and
superior to the right, | 20 |
| title, interest, claim or lien of all parties and
nonrecord | 21 |
| 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 | 24 |
| indebtedness has not
matured by its terms, the same has | 25 |
| become due by the exercise, by the
plaintiff or other | 26 |
| persons having such power, of a right or power to
declare |
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| immediately due and payable the whole of all indebtedness | 2 |
| secured
by the mortgage;
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| (9) that any and all notices of default or election to | 4 |
| declare the
indebtedness due and payable or other notices | 5 |
| 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 | 7 |
| of time allowed
for the performance of the covenants or | 8 |
| conditions claimed to be breached
or for the curing of any | 9 |
| breaches have expired;
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| (11) that the amounts indicated in the statement
in the | 11 |
| complaint are correctly stated and
if such statement | 12 |
| indicates any advances made or to be made by the
plaintiff | 13 |
| or owner of the mortgage indebtedness, that such advances | 14 |
| were,
in fact, made or will be
required to be made, and | 15 |
| under and by virtue of the mortgage the same
constitute | 16 |
| additional indebtedness secured by the mortgage; and
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| (12) that, upon confirmation of the sale, the holder of | 18 |
| the certificate
of sale or deed issued pursuant to that | 19 |
| certificate or, if no certificate or
deed was issued, the | 20 |
| purchaser at the sale will be entitled to full possession
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| of the mortgaged real estate against the parties
named in | 22 |
| clause (U) (T) of
paragraph (3) of subsection (a) of | 23 |
| Section 15-1504 or elsewhere to the same
effect;
the | 24 |
| omission of any
party indicates that plaintiff will not | 25 |
| seek a possessory order in the order
confirming sale unless | 26 |
| the request is subsequently made under subsection (h) of
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| Section 15-1701 or by separate action under Article 9 of | 2 |
| this Code.
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| (d) Request for Fees and Costs. A statement in the | 4 |
| complaint that
plaintiff seeks the inclusion of attorneys' fees | 5 |
| and of costs and expenses
shall be deemed and construed to | 6 |
| include allegations that:
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| (1) plaintiff has been compelled to employ and retain | 8 |
| attorneys to
prepare and file the complaint and to | 9 |
| represent and advise the plaintiff in
the foreclosure of | 10 |
| the mortgage and the plaintiff will thereby become
liable | 11 |
| for the usual, reasonable and customary fees of the | 12 |
| attorneys in
that behalf;
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| (2) that the plaintiff has been compelled to advance or | 14 |
| will be
compelled to advance, various sums of money in | 15 |
| payment of costs, fees,
expenses and disbursements | 16 |
| incurred in connection with the foreclosure,
including, | 17 |
| without limiting the generality of the foregoing, filing | 18 |
| fees,
stenographer's fees, witness fees, costs of | 19 |
| publication, costs of procuring
and preparing documentary | 20 |
| evidence and costs of procuring
abstracts of title, Torrens | 21 |
| certificates, foreclosure minutes and a title
insurance | 22 |
| policy;
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| (3) that under the terms of the mortgage, all such | 24 |
| advances, costs,
attorneys' fees and other fees, expenses | 25 |
| and disbursements are made a lien
upon the mortgaged real | 26 |
| estate and the plaintiff is entitled to recover all
such |
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| advances, costs, attorneys' fees, expenses and | 2 |
| disbursements, together
with interest on all advances at | 3 |
| the rate provided in the mortgage, or, if
no rate is | 4 |
| 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, | 7 |
| it may become
necessary for plaintiff to pay taxes and | 8 |
| assessments which have been or may
be levied upon the | 9 |
| mortgaged real estate;
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| (5) that in order to protect and preserve the mortgaged | 11 |
| real estate, it
may also become necessary for the plaintiff | 12 |
| to pay liability (protecting
mortgagor and mortgagee), | 13 |
| fire and other hazard
insurance premiums on the mortgaged | 14 |
| real estate, make such repairs
to the mortgaged real
estate | 15 |
| as may reasonably be deemed necessary for the proper | 16 |
| preservation
thereof, advance for costs to inspect the | 17 |
| mortgaged real estate or to
appraise it, or both, and | 18 |
| advance for premiums for pre-existing private or
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| governmental mortgage insurance to the extent required | 20 |
| after a foreclosure
is commenced in order to keep such | 21 |
| insurance in force; and
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| (6) that under the terms of the mortgage, any money so | 23 |
| paid or expended
will become an additional indebtedness | 24 |
| secured by the mortgage and will bear
interest from the | 25 |
| 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 |
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| judgment rate.
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| (e) Request for Foreclosure. The request for foreclosure is | 3 |
| deemed and
construed to mean that the plaintiff requests that:
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| (1) an accounting may be taken under the direction of | 5 |
| 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 | 7 |
| plaintiff before
expiration of any redemption period (or, | 8 |
| if no redemption period, before a
short date fixed by the | 9 |
| 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 | 11 |
| the proceedings (to the extent
provided in the mortgage or | 12 |
| by law);
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| (3) that in default of such payment in accordance with | 14 |
| the judgment, the
mortgaged real estate be sold as directed | 15 |
| by the court, to satisfy the
amount due to the plaintiff as | 16 |
| set forth in the judgment, together with the
interest | 17 |
| thereon at the statutory judgment rate from the date of the | 18 |
| judgment;
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| (4) that in the event the plaintiff is a purchaser of | 20 |
| the mortgaged real
estate at such sale, the plaintiff may | 21 |
| offset against the purchase price of
such real estate the | 22 |
| amounts due under the judgment of foreclosure and
order | 23 |
| confirming the sale;
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| (5) that in the event of such sale and the failure of | 25 |
| any person entitled
thereto to redeem prior to such sale | 26 |
| pursuant to this Article, the
defendants made parties to |
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| the foreclosure in accordance with this Article,
and all | 2 |
| nonrecord claimants given notice of the foreclosure in | 3 |
| accordance
with this Article, and all persons claiming by, | 4 |
| through or under them, and
each and any and all of them, | 5 |
| may be forever barred and foreclosed of any
right, title, | 6 |
| 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 | 9 |
| deed may be
issued to the purchaser thereat according to | 10 |
| law and such purchaser be let
into possession of the | 11 |
| mortgaged real estate in accordance with Part 17 of this | 12 |
| Article.
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| (f) Request for Deficiency Judgment. A request for a | 14 |
| personal judgment
for a deficiency in a foreclosure complaint | 15 |
| if the sale of the mortgaged
real estate fails to produce a | 16 |
| sufficient amount to pay the amount found
due, the plaintiff | 17 |
| may have a personal judgment against any party in the
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| foreclosure indicated as being personally liable therefor and | 19 |
| the enforcement
thereof be had as provided by law.
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| (g) Request for Possession or Receiver. A request for | 21 |
| possession or appointment
of a receiver has the meaning as | 22 |
| stated in subsection (b) of Section 15-1706.
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| (h) Answers by Parties. Any party
may assert its interest | 24 |
| by counterclaim and such counterclaim may at the
option of that | 25 |
| party stand in lieu of answer to the complaint for
foreclosure | 26 |
| and all counter complaints previously or thereafter filed
in |
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| the foreclosure. Any such counterclaim shall be deemed to | 2 |
| constitute a
statement that the counter claimant does not have | 3 |
| sufficient knowledge to
form a belief as to the truth or | 4 |
| falsity of the
allegations of the complaint and all other | 5 |
| counterclaims, except
to the extent that the counterclaim | 6 |
| 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 5/15-1506) (from Ch. 110, par. 15-1506)
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| Sec. 15-1506. Judgment. (a) Evidence. In the trial of a | 10 |
| foreclosure, the evidence to support the
allegations of the | 11 |
| complaint shall be taken in open court, except:
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| (1) where an allegation of fact in the complaint is not | 13 |
| denied by a
party's verified answer or verified counterclaim, | 14 |
| or where a party pursuant
to subsection (b) of Section 2-610 of | 15 |
| the Code of Civil Procedure states,
or is deemed to have | 16 |
| stated, in
its pleading that it has no knowledge
of such | 17 |
| allegation sufficient to form a belief and attaches the | 18 |
| required
affidavit, a sworn verification of the complaint or a | 19 |
| separate affidavit
setting forth such fact is sufficient | 20 |
| evidence thereof against such party
and no further evidence of | 21 |
| such fact shall be required; and
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| (2) where all the allegations of fact in the complaint have | 23 |
| been proved
by verification of the complaint or affidavit, the | 24 |
| court upon motion
supported by an affidavit stating the amount | 25 |
| which is due the mortgagee,
shall enter a judgment of |
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| foreclosure as requested in the complaint.
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| (b) Instruments. In all cases the evidence of the | 3 |
| indebtedness and the
mortgage foreclosed shall be exhibited to | 4 |
| the court and appropriately
marked, and copies thereof shall be | 5 |
| filed with the court.
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| (c) Summary and Default Judgments. Nothing in this Section | 7 |
| 15-1506
shall prevent a party from obtaining a summary or | 8 |
| default judgment
authorized by Article II of the Code of Civil | 9 |
| Procedure.
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| (d) Notice of Entry of Default. When any judgment in a | 11 |
| foreclosure is
entered by default, notice of such judgment | 12 |
| shall be given in accordance
with Section 2-1302 of the Code of | 13 |
| Civil Procedure.
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| (e) Matters Required in Judgment. A judgment of foreclosure | 15 |
| shall
include the last date for redemption and all rulings of | 16 |
| the court entered
with respect to each request for relief set | 17 |
| forth in the complaint. The
omission of the date for redemption | 18 |
| shall not extend the time for
redemption or impair the validity | 19 |
| of the judgment. The judgment shall also include a finding by | 20 |
| the court that: (i) the mortgagee has complied with any | 21 |
| applicable federal, State, or local loss mitigation | 22 |
| requirements; or (ii) there are no applicable federal, State, | 23 |
| or local loss mitigation requirements. If the court determines | 24 |
| that the mortgagee has not complied with applicable loss | 25 |
| mitigation requirements, the court shall stay the matter until | 26 |
| the court determines that the mortgagee has complied with those |
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| requirements.
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| (f) Special Matters in Judgment. Without limiting the | 3 |
| general
authority and powers of the court, special matters may | 4 |
| be included in the
judgment of foreclosure if sought by a party | 5 |
| in the complaint or by separate
motion. Such matters may | 6 |
| include, without limitation:
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| (1) a manner of sale other than public auction;
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| (2) a sale by sealed bid;
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| (3) an official or other person who shall be the officer to
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| conduct the sale other than the one customarily designated by | 11 |
| the court;
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| (4) provisions for non-exclusive broker listings or | 13 |
| designating a duly
licensed real estate broker nominated by one | 14 |
| of the parties to exclusively
list the real estate for sale;
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| (5) the fees or commissions to be paid out of the sale | 16 |
| proceeds to the
listing or other duly licensed broker, if any, | 17 |
| who shall have procured the accepted bid;
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| (6) the fees to be paid out of the sale proceeds to an | 19 |
| auctioneer, if
any, who shall have been authorized to conduct a | 20 |
| public auction sale;
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| (7) whether and in what manner and with what content signs | 22 |
| shall be
posted on the real estate;
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| (8) a particular time and place at which such bids shall be | 24 |
| received;
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| (9) a particular newspaper or newspapers in which notice of
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| sale shall be published;
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| (10) the format for the advertising of such sale,
including | 2 |
| the size, content
and format of such advertising, and | 3 |
| additional advertising of such sale;
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| (11) matters or exceptions to which title in the real | 5 |
| estate may be subject
at the sale;
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| (12) a requirement that title insurance in a specified form | 7 |
| be provided
to a purchaser at the sale, and who shall pay for | 8 |
| such insurance;
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| (13) whether and to what extent bids with mortgage or other
| 10 |
| contingencies will be allowed;
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| (14) such other matters as approved by the court to ensure | 12 |
| sale of the
real estate for the most commercially favorable | 13 |
| price for the type of real
estate involved.
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| (g) Agreement of the Parties. If all of the parties agree | 15 |
| in writing on
the minimum price and that the real estate may be | 16 |
| sold to the first person
who offers in writing to purchase the | 17 |
| real estate for such price, and on
such other commercially | 18 |
| reasonable terms and conditions as the parties may
agree, then | 19 |
| the court shall order the real estate to be sold on such terms,
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| subject to confirmation of the sale in accordance with Section | 21 |
| 15-1508.
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| (h) Postponement of Proving Priority. With the approval of | 23 |
| the court
prior to the entry of the judgment of foreclosure, a | 24 |
| party claiming an
interest in the proceeds of the sale of the | 25 |
| mortgaged real estate may defer
proving the priority of such | 26 |
| interest until the hearing to confirm the sale.
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| (i) Effect of Judgment and Lien.
(1) Upon the entry of the | 2 |
| judgment of foreclosure, all rights of a party
in the | 3 |
| foreclosure against the mortgagor provided for in the judgment | 4 |
| of foreclosure
or this Article shall be secured by a lien on | 5 |
| the mortgaged
real estate, which lien shall have the same | 6 |
| priority as the claim to
which the judgment relates and shall | 7 |
| be terminated upon confirmation of a judicial
sale in | 8 |
| accordance with this Article.
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| (2) Upon the entry of the judgment of foreclosure, the | 10 |
| rights in the
real estate subject to the judgment of | 11 |
| foreclosure of (i) all persons made
a party in the foreclosure | 12 |
| and (ii) all nonrecord claimants given notice in
accordance | 13 |
| with paragraph (2) of subsection (c) of Section 15-1502, shall
| 14 |
| be solely as provided for in
the judgment of foreclosure and in | 15 |
| this Article.
| 16 |
| (Source: P.A. 85-907.)
| 17 |
| (735 ILCS 5/15-1508) (from Ch. 110, par. 15-1508)
| 18 |
| Sec. 15-1508. Report of Sale and Confirmation of Sale.
| 19 |
| (a) Report. The person conducting the sale shall promptly | 20 |
| make a report to
the court, which report shall include a copy | 21 |
| of all receipts and, if any,
certificate of sale.
| 22 |
| (b) Hearing. Upon motion and notice in accordance with | 23 |
| court rules
applicable to motions generally, which motion shall | 24 |
| not be made prior to
sale, the court shall conduct a hearing to
| 25 |
| 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) the | 4 |
| mortgagee has not fulfilled applicable federal, State, or local | 5 |
| loss mitigation requirements, if applicable, or (v) that | 6 |
| justice was otherwise not done, the court shall
then enter an | 7 |
| order confirming the sale. The confirmation order shall include | 8 |
| a name, address, and telephone number of the holder of the | 9 |
| certificate of sale or deed issued pursuant to that certificate | 10 |
| or, if no certificate or deed was issued, the purchaser, whom a | 11 |
| municipality or county may contact with concerns about the real | 12 |
| estate. The confirmation order may
also:
| 13 |
| (1) approve the mortgagee's fees and costs arising | 14 |
| between the entry of
the judgment of foreclosure and the | 15 |
| confirmation hearing, those costs and
fees to be allowable | 16 |
| to the same extent as provided in the note and mortgage
and | 17 |
| in Section 15-1504;
| 18 |
| (2) provide for a personal judgment against any party | 19 |
| for a deficiency;
and
| 20 |
| (3) determine the priority of the judgments of parties | 21 |
| who deferred proving
the priority pursuant to subsection | 22 |
| (h) of Section 15-1506, but
the court shall not
defer | 23 |
| confirming the sale pending the determination of such | 24 |
| priority.
| 25 |
| (b-5) Notice with respect to residential real estate. With | 26 |
| respect to residential real estate, the notice required under |
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| subsection (b) of this Section shall be sent to the mortgagor | 2 |
| even if the mortgagor has previously been held in default. In | 3 |
| the event the mortgagor has filed an appearance, the notice | 4 |
| shall be sent to the address indicated on the appearance. In | 5 |
| all other cases, the notice shall be sent to the mortgagor at | 6 |
| the common address of the foreclosed property. The notice shall | 7 |
| be sent by first class mail. Unless the right to possession has | 8 |
| been previously terminated by the court, the notice shall | 9 |
| include the following language in 12-point boldface | 10 |
| capitalized type: | 11 |
| IF YOU ARE THE MORTGAGOR (HOMEOWNER), YOU HAVE THE RIGHT TO | 12 |
| REMAIN IN POSSESSION FOR 30 DAYS AFTER ENTRY OF AN ORDER OF | 13 |
| POSSESSION, IN ACCORDANCE WITH SECTION 15-1701(c) OF THE | 14 |
| ILLINOIS MORTGAGE FORECLOSURE LAW. | 15 |
| (b-10) Notice of confirmation order sent to municipality or | 16 |
| county. A copy of the confirmation order required under | 17 |
| subsection (b) shall be sent to the municipality in which the | 18 |
| foreclosed property is located, or to the county within the | 19 |
| boundary of which the foreclosed property is located if the | 20 |
| foreclosed property is located in an unincorporated territory. | 21 |
| A municipality or county must clearly publish on its website a | 22 |
| single address to which such notice shall be sent. If a | 23 |
| municipality or county does not maintain a website, then the | 24 |
| municipality or county must publicly post in its main office a | 25 |
| single address to which such notice shall be sent. In the event | 26 |
| that a municipality or county has not complied with the |
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| publication requirement in this subsection (b-10), then such | 2 |
| notice to the municipality or county shall be provided pursuant | 3 |
| to Section 2-211 of the Code of Civil Procedure. | 4 |
| (c) Failure to Give Notice. If any sale is held without | 5 |
| compliance with
subsection (c) of Section 15-1507 of this | 6 |
| Article, any party entitled to
the notice provided for in | 7 |
| paragraph (3) of that subsection
(c) who was not so notified | 8 |
| may, by motion supported by affidavit
made prior to | 9 |
| confirmation of such sale, ask the court which entered the
| 10 |
| judgment to set aside the sale. Any such party shall guarantee | 11 |
| or secure by bond a bid equal to the successful bid at the | 12 |
| prior sale, unless the party seeking to set aside the sale is | 13 |
| the mortgagor, the real estate sold at the sale is residential | 14 |
| real estate, and the mortgagor occupies the residential real | 15 |
| estate at the time the motion is filed. In that event, no | 16 |
| guarantee or bond shall be required of the mortgagor. Any
| 17 |
| subsequent sale is subject to the same notice requirement as | 18 |
| the original sale.
| 19 |
| (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
| 24 |
| 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
| 5 |
| mortgagee the reasonable expenses of litigation, including | 6 |
| reasonable attorney's fees.
| 7 |
| (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
| 13 |
| 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.
| 22 |
| (f) Satisfaction. Upon confirmation of the sale, the
| 23 |
| 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.
| 7 |
| 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
| 12 |
| 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.
| 15 |
| 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; 96-265, eff. 8-11-09; | 2 |
| 96-856, eff. 3-1-10.)
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