Full Text of SB2438 96th General Assembly
SB2438 96TH GENERAL ASSEMBLY
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96TH GENERAL ASSEMBLY
State of Illinois
2009 and 2010 SB2438
Introduced 3/19/2009, by Sen. Jacqueline Y. Collins SYNOPSIS AS INTRODUCED: |
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Amends the Code of Civil Procedure by adding an Article that may be cited as the Mortgage Foreclosure Prevention Law of 2009. Provides that an eligible borrower has a right to defer a judicial sale for a specified period by providing an affidavit to the foreclosing lender. When the deferment period ends or the deferment is lost, a lender may schedule a sale by publishing a specified newspaper notice and serving a copy on those on the premises, 4 weeks before the sale. Provides a formula to set the borrower's monthly payment. Provides that a borrower loses the right to deferment if he or she ceases to reside on the premises. Provides for mortgage foreclosure counselors. Provides that a foreclosing lender and a borrower must negotiate in good faith. Provides that a borrower may dispute a deferment cancellation through arbitration. Provides that lenders shall send to borrowers a mandated notice about deferment. Provides that a lender who acts in bad faith or recklessly in violation of these provisions is liable to a person injured for actual damages, statutory damages up to $25,000, punitive damages, costs, and attorney's fees. Makes other changes. Effective 7 days after becoming law.
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| HOUSING AFFORDABILITY IMPACT NOTE ACT MAY APPLY | |
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A BILL FOR
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SB2438 |
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LRB096 09625 AJO 19786 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 adding | 5 |
| Part 18 to Article XV as follows: | 6 |
| (735 ILCS 5/Art. XV Pt. 18 heading new)
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| ARTICLE XV Pt. 18. Foreclosure Prevention | 8 |
| (735 ILCS 5/15-1801 new)
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| Sec. 15-1801. Part title. This Part may be cited as the | 10 |
| Mortgage Foreclosure Prevention Law of 2009. | 11 |
| (735 ILCS 5/15-1805 new)
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| Sec. 15-1805. Definitions. In this Part: | 13 |
| "Part" means the Mortgage Foreclosure Prevention Law of | 14 |
| 2009. | 15 |
| "Deferment payment" means the monthly amount that is due to | 16 |
| the foreclosing lender by an eligible foreclosed borrower under | 17 |
| Section 15-1820 to maintain the right to deferment. | 18 |
| "Deferment period" means the period that begins on the | 19 |
| effective date of the effective date of this amendatory Act of | 20 |
| the 96th General Assembly and expires one year following the | 21 |
| effective date of the this amendatory Act of the 96th General |
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LRB096 09625 AJO 19786 b |
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| Assembly. | 2 |
| "Deferment right" means the relief provided to an eligible | 3 |
| foreclosed borrower in Section 15-1810. | 4 |
| "Eligible foreclosed loan" means a residential mortgage | 5 |
| loan for which a foreclosing lender has scheduled a judicial | 6 |
| sale under this Article or schedules a judicial sale during the | 7 |
| deferment period if it is a subprime loan or a loan with | 8 |
| negative amortization for which the required minimum payment of | 9 |
| principal and interest increased after the date the loan was | 10 |
| originated. An eligible foreclosed loan does not include a loan | 11 |
| originated by a State or federally chartered bank, savings | 12 |
| bank, or credit union, or an organization majority owned by one | 13 |
| or more credit unions. | 14 |
| "Eligible foreclosed borrower" means a borrower who: | 15 |
| (1) is a mortgagor under an eligible foreclosed loan; | 16 |
| (2) resides at the mortgaged property and intends to | 17 |
| reside at the mortgaged property at least until the end of | 18 |
| the deferment period; | 19 |
| (3) has a household adjusted gross income of less than | 20 |
| $250,000 per year according to the borrower's most recent | 21 |
| federal income tax return, provided that if the borrower | 22 |
| was not required to file a federal income tax return, the | 23 |
| borrower must qualify by providing the return that the | 24 |
| borrower would have filed if required; and | 25 |
| (4) is a legal United States resident. A borrower does | 26 |
| not reside at the property unless the property has been the |
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LRB096 09625 AJO 19786 b |
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| borrower's primary residence for 6 months prior to the date | 2 |
| of the affidavit of deferment. | 3 |
| "Foreclosing lender" means the mortgagee who is | 4 |
| foreclosing the mortgage of an eligible foreclosed borrower. | 5 |
| "Fully indexed rate" equals the index rate prevailing at | 6 |
| the time a residential mortgage loan is originated, plus the | 7 |
| margin that will apply after the expiration of an introductory | 8 |
| interest rate. | 9 |
| "Mortgage foreclosure counselor" means an individual who | 10 |
| provides mortgage foreclosure counseling on behalf of a | 11 |
| nonprofit or government agency. | 12 |
| "Negative amortization" occurs when the borrower's | 13 |
| compliance with any repayment option offered pursuant to the | 14 |
| terms of the residential mortgage loan is insufficient to | 15 |
| satisfy the interest accruing on the loan, resulting in an | 16 |
| increase in the loan balance. Negative amortization does not | 17 |
| occur when a residential mortgage loan is originated, | 18 |
| subsidized, or guaranteed by or through a State, local | 19 |
| government, or nonprofit organization, and bears one or more of | 20 |
| the following nonstandard payment terms that substantially | 21 |
| benefit the borrower: payments vary with income; payments of | 22 |
| principal and interest are deferred until the maturity date of | 23 |
| the loan or the sale of the residence; principal or interest is | 24 |
| forgivable under specified conditions; or where no interest or | 25 |
| an annual interest rate of 2% or less is charged in connection | 26 |
| with the loan. |
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LRB096 09625 AJO 19786 b |
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| "Residential mortgage loan" means a loan secured primarily | 2 |
| by either: (1) a mortgage on residential real property; or (2) | 3 |
| certificates of stock or other evidence of ownership interest | 4 |
| in and proprietary lease from corporations, partnerships, or | 5 |
| other forms of business organizations formed for the purpose of | 6 |
| cooperative ownership of residential real property. | 7 |
| "Residential mortgage servicer" or "servicer" means a | 8 |
| person who engages in the activity of servicing a residential | 9 |
| mortgage. | 10 |
| "Residential real property" or "residential real estate" | 11 |
| means real property improved or intended to be improved by a | 12 |
| structure designed principally for the occupancy of from one to | 13 |
| 4 families, whether or not the owner occupies the real | 14 |
| property. | 15 |
| "Secretary" means the Secretary of the Department of | 16 |
| Financial and Professional Regulation. | 17 |
| "Subprime loan" means, in the case of an adjustable rate | 18 |
| loan secured by a first lien on a dwelling that can increase in | 19 |
| interest rate but not decrease in interest rate below the fully | 20 |
| indexed rate at the time of origination, a loan for which the | 21 |
| annual percentage rate (APR) is greater than 2 percentage | 22 |
| points above the yield on United States Treasury securities | 23 |
| having comparable periods of maturity, as of the 15th day of | 24 |
| the preceding month if the rate is set between the first and | 25 |
| the 14th day of the month and as of the 15th day of the current | 26 |
| month if the rate is set on or after the 15th day. |
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LRB096 09625 AJO 19786 b |
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| For all other loans secured by a first lien on a dwelling, | 2 |
| the term means a loan for which the APR is greater than 3 | 3 |
| percentage points above the yield on United States Treasury | 4 |
| securities having comparable periods of maturity, as of the | 5 |
| 15th day of the preceding month if the rate is set between the | 6 |
| first and the 14th day of the month and as of the 15th day of | 7 |
| the current month if the rate is set on or after the 15th day. | 8 |
| For loans secured by a subordinate lien on a dwelling, the | 9 |
| term means a loan for which the APR is greater than 5 | 10 |
| percentage points above the yield on United States Treasury | 11 |
| securities having comparable periods of maturity, as of the | 12 |
| 15th day of the preceding month if the rate is set between the | 13 |
| first and the 14th day of the month and as of the 15th day of | 14 |
| the current month if the rate is set on or after the 15th day. | 15 |
| For purposes of this Section, the annual percentage rate | 16 |
| has the meaning given in title 12, Code of Federal Regulations, | 17 |
| part 226. | 18 |
| (735 ILCS 5/15-1810 new)
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| Sec. 15-1810. Right to foreclosure deferment. An eligible | 20 |
| foreclosed borrower has the right to defer a judicial sale | 21 |
| under this Article until the expiration of the deferment period | 22 |
| by providing an affidavit of deferment to the foreclosing | 23 |
| lender in accordance with Section 15-1815. A foreclosing lender | 24 |
| shall cancel a judicial sale if the eligible foreclosed | 25 |
| borrower has submitted to the foreclosing lender an affidavit |
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LRB096 09625 AJO 19786 b |
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| of deferment prior to or at the time of the judicial sale, | 2 |
| unless the lender has served a notice of denial in accordance | 3 |
| with Section 15-1825. A foreclosing lender shall also provide | 4 |
| written notice of receipt of an affidavit of deferment to all | 5 |
| parties with a recorded request for notice of mortgage | 6 |
| foreclosure under this Article or who are listed as a holder of | 7 |
| a security interest in the subject property in the affidavit of | 8 |
| deferment. A lender is not required to cancel a judicial sale | 9 |
| if a borrower has previously obtained a deferment under this | 10 |
| Part. Upon expiration of the deferment period or the loss of | 11 |
| the deferment, a foreclosing lender may schedule a deferred | 12 |
| judicial sale by publishing the notice of judicial sale once in | 13 |
| the newspaper in which the original advertisement was published | 14 |
| and by serving a copy of the notice of judicial sale in a like | 15 |
| manner as a summons in a civil action in the circuit court upon | 16 |
| the person in possession of the mortgaged premises, if the same | 17 |
| are actually occupied, at least 4 weeks prior to the sale. | 18 |
| (735 ILCS 5/15-1815 new)
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| Sec. 15-1815. Affidavit of deferment. | 20 |
| (a) Affidavit of deferment. The affidavit of deferment | 21 |
| shall state the
name of the eligible foreclosed borrower, the | 22 |
| address of the property in foreclosure, and
contain the | 23 |
| following statements: | 24 |
| "(1) I am the borrower on a mortgage loan on | 25 |
| residential property located at [address of property] |
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LRB096 09625 AJO 19786 b |
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| (hereinafter "subject property"). | 2 |
| (2) A judicial sale has been scheduled on the subject | 3 |
| property. | 4 |
| (3) I currently reside at the subject property. | 5 |
| (4) I have resided at the subject property as my | 6 |
| primary residence for 6 months
prior to the date of this | 7 |
| affidavit. | 8 |
| (5) If permitted to reside at the subject property, I | 9 |
| intend to reside at the subject
property until at least | 10 |
| [end of deferment period]. | 11 |
| (6) I have sought the assistance of a mortgage | 12 |
| foreclosure counselor and during the deferment I agree to | 13 |
| continue to use the assistance of a mortgage foreclosure | 14 |
| counselor to negotiate in good faith with the foreclosing | 15 |
| lender to modify the terms of the mortgage on the subject | 16 |
| property. | 17 |
| (7) I believe that the mortgage loan on the subject | 18 |
| property is either: | 19 |
| (i) a subprime loan; or | 20 |
| (ii) a loan with negative amortization for which | 21 |
| the required minimum payment has increased." | 22 |
| The affidavit shall be signed by at least one eligible | 23 |
| foreclosed borrower who is the
mortgagor of the residential | 24 |
| real property being foreclosed. The affidavit also shall be
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| signed by a mortgage foreclosure counselor solely to certify | 26 |
| that the borrower has sought
the assistance of the mortgage |
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LRB096 09625 AJO 19786 b |
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| foreclosure counselor. | 2 |
| (b) Service on foreclosing lender. An affidavit of | 3 |
| deferment shall be served by personal service, United States | 4 |
| mail, or other reliable delivery service to the address | 5 |
| provided in the notice of right to deferment or to the address | 6 |
| of the counsel for the mortgagee in the notice of foreclosure. | 7 |
| (c) Acknowledgment by foreclosing lender. Unless the | 8 |
| foreclosing lender has served a notice of denial under Section | 9 |
| 15-1825, the foreclosing lender shall, within 10 days after | 10 |
| receiving the affidavit of deferment, provide to the eligible | 11 |
| foreclosed borrower a written acknowledgment that it has | 12 |
| received the affidavit of deferment. The acknowledgment shall | 13 |
| state the following: | 14 |
| (1) that the judicial sale has been canceled; | 15 |
| (2) the deferment payment amount that is due by the | 16 |
| eligible foreclosed borrower; | 17 |
| (3) the date that the first deferment payment is due; | 18 |
| (4) the date that each subsequent deferment payment is | 19 |
| due; and | 20 |
| (5) the address to which the borrower should send the | 21 |
| deferment payment or
the payment delivery methods that are | 22 |
| acceptable to the foreclosing lender. | 23 |
| The acknowledgment shall be on a single sheet of paper, | 24 |
| shall use plain language, and
no other documents shall be | 25 |
| included with the acknowledgment. The bottom of the
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| acknowledgment shall include the following disclosure in bold, |
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SB2438 |
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LRB096 09625 AJO 19786 b |
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| 14-point type: | 2 |
| "The cancellation of the judicial sale on your property | 3 |
| is the result of a law passed
by the Illinois General | 4 |
| Assembly in 2009. You must make the monthly payment in full
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| by the due dates listed in this letter. If you do not make | 6 |
| the payments on time, we
will have the right to schedule a | 7 |
| judicial sale on your property." | 8 |
| (d) Charges prohibited. A foreclosing lender shall not | 9 |
| charge an eligible foreclosed borrower any amount other than | 10 |
| the deferment payment for exercising the deferment right. | 11 |
| (735 ILCS 5/15-1820 new)
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| Sec. 15-1820. Borrower payment and residency requirements. | 13 |
| (a) Borrower payment required. An eligible foreclosed | 14 |
| borrower who has a deferment right shall make monthly payments | 15 |
| to the foreclosing lender. The payment shall be made no later | 16 |
| than the 15th day of each month. The first payment is not due | 17 |
| until the 15th day of the month that is a minimum of 30 days | 18 |
| after the date that the foreclosing lender sends the | 19 |
| acknowledgment required by paragraph (c) of Section 15-1815. | 20 |
| (b) Amount of payment. For an eligible foreclosed borrower | 21 |
| with a subprime loan, the amount of payment shall be the lesser | 22 |
| of: (1) the monthly payment of principal and interest on the | 23 |
| date the loan was originated; or (2) 65% of the monthly payment
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| of principal and interest at the time the borrower defaulted | 25 |
| prior to foreclosure. For an
eligible foreclosed borrower with |
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LRB096 09625 AJO 19786 b |
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| a negative amortization loan that is not also a subprime
loan, | 2 |
| the amount of payment would be the minimum monthly payment on | 3 |
| the date the
loan was originated. | 4 |
| (c) Payment advice notice. The foreclosing lender shall | 5 |
| provide to the eligible foreclosed borrower monthly written | 6 |
| payment advice notices. The notice shall be sent by the first | 7 |
| day of each month until the expiration of the deferment period | 8 |
| or the loss of the deferment under paragraph (d). Each notice | 9 |
| shall state (1) the amount of payment owed from the eligible | 10 |
| foreclosed borrower; (2) the address to which the borrower | 11 |
| should send the deferment payment; and (3) the date that the | 12 |
| payment must be received to avoid loss of the deferment right | 13 |
| under paragraph (d). The payment advice notice shall be on a | 14 |
| single sheet of paper, shall use plain language, and no other | 15 |
| documents shall be included with the notice. The bottom of the | 16 |
| notice shall include the following disclosure in bold, 14-point | 17 |
| type: | 18 |
| "The deferment of the judicial sale on your property is | 19 |
| the result of a law passed by the Illinois General Assembly | 20 |
| in 2009. You must continue to make the monthly payment in | 21 |
| full by the 15th day of each month. If you do not make the | 22 |
| payments on time, we will have the right to schedule a | 23 |
| judicial sale on your property. The deferment period will | 24 |
| end on (last day of deferment period). By the end of the | 25 |
| deferment period, you will need to pay the entire amount | 26 |
| that has been deferred plus other costs allowed by law in |
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LRB096 09625 AJO 19786 b |
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| order to avoid a judicial sale." | 2 |
| (d) Borrower failure to pay. An eligible foreclosed | 3 |
| borrower who fails to make payments in the amount required and | 4 |
| by the date required under this Section shall lose the | 5 |
| deferment right. | 6 |
| (e) Borrower residency requirement. An eligible foreclosed | 7 |
| borrower loses the right to deferment if the borrower ceases to | 8 |
| reside at the mortgaged property during the deferment period. | 9 |
| (735 ILCS 5/15-1825 new)
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| Sec. 15-1825. Resolution of disputes; effect of deferral. | 11 |
| (a) Dispute as to eligible foreclosed loan status. If the | 12 |
| foreclosing lender determines after a reasonable investigation | 13 |
| and in good faith that the person submitting an affidavit of | 14 |
| deferment is not the mortgagor under an eligible foreclosed | 15 |
| loan, the foreclosing lender shall provide a notice of denial | 16 |
| of deferment to the person submitting the affidavit of | 17 |
| deferment and to all parties with a recorded request for notice | 18 |
| of mortgage foreclosure under this Article or who are listed as | 19 |
| a holder of a security interest in the subject property in the | 20 |
| affidavit of deferment. The foreclosing lender must send a | 21 |
| notice of denial by certified mail through the United States | 22 |
| mail within 10 business days after receiving the affidavit of | 23 |
| deferment. The notice is effective on mailing. The notice of | 24 |
| denial shall be on a single sheet of paper and no other | 25 |
| documents shall be included with the notice. The notice must |
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LRB096 09625 AJO 19786 b |
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| include an explanation, in plain language, of the reasons that | 2 |
| the loan is not an eligible foreclosed loan. The notice must | 3 |
| also inform the person who executed the affidavit of deferment | 4 |
| that the person has the right to apply to the court for an | 5 |
| order deferring the judicial sale. A copy of the notice also | 6 |
| must be sent by any means to the loan counselor who signed the | 7 |
| affidavit of deferment. | 8 |
| (b) Other disputes. For any other dispute about the | 9 |
| deferment right or other rights or requirements under this | 10 |
| Part, other than the arbitration of a dispute of good-faith | 11 |
| negotiation under Section 15-1830, a person can apply to the | 12 |
| circuit court in the county
where the property is located for | 13 |
| an order establishing the rights of the parties to the
dispute. | 14 |
| (c) Effect of deferral right. Nothing in this Part shall | 15 |
| alter contractual rights of the parties to the mortgage loan | 16 |
| other than providing the right to defer a judicial sale.
A bona | 17 |
| fide purchaser of an interest in real property mortgaged by an | 18 |
| eligible foreclosed
loan takes the interest in the real | 19 |
| property not subject to any claims of ownership by a
party | 20 |
| based on any rights under this Part. No act, agreement, or | 21 |
| deferment granted under
this Part alters the rights of other | 22 |
| parties or lenders with an interest in the subject property. An | 23 |
| order confirming a judicial sale is prima facie evidence of | 24 |
| compliance with this Part, provided that the eligible | 25 |
| foreclosed homeowner has the remedies for monetary relief under | 26 |
| Section 15-1840 for a reckless or bad faith violation of this |
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LRB096 09625 AJO 19786 b |
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| Part. | 2 |
| (d) Mortgage foreclosure counselors. A mortgage | 3 |
| foreclosure counselor, and
the person employing or paying the | 4 |
| mortgage foreclosure counselor, shall not be liable to
any | 5 |
| person for signing or failing to sign an affidavit of deferment | 6 |
| under this Part. | 7 |
| (735 ILCS 5/15-1830 new)
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| Sec. 15-1830. Right to revoke deferment following | 9 |
| good-faith negotiation. | 10 |
| (a) Cancellation of deferment. If the foreclosing lender | 11 |
| has negotiated
in good faith to modify the eligible foreclosed | 12 |
| loan, the foreclosing lender may send a
notice of deferment | 13 |
| cancellation to the eligible foreclosed borrower and, no less | 14 |
| than 30
days after sending the notice, publish a notice of | 15 |
| judicial sale in accord with Section
15-1810. The notice shall | 16 |
| be on a single sheet of paper and shall include the name and
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| contact information for an employee or representative of the | 18 |
| foreclosing lender. The
notice must include an explanation, in | 19 |
| plain language, of the reasons that the deferment
is being | 20 |
| canceled. The notice must prominently state the date the notice | 21 |
| is mailed to the
eligible foreclosed borrower and the bottom of | 22 |
| the notice shall include the following
disclosure in bold, | 23 |
| 14-point type: | 24 |
| "If you do not agree that we have negotiated in good | 25 |
| faith to modify your loan,
you may request that an |
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LRB096 09625 AJO 19786 b |
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| arbitrator be appointed to review your case. The arbitrator
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| will be a volunteer who will work at no cost to you. You | 3 |
| have until (insert date 30
days after date of notice) to | 4 |
| complete and mail the attached request for arbitration
form | 5 |
| to the address listed on the form. The State of Illinois | 6 |
| encourages you to
contact a mortgage foreclosure counselor | 7 |
| right away to discuss your options." | 8 |
| The foreclosing lender shall include a copy of the written | 9 |
| loan modification that the foreclosing lender offered as part | 10 |
| of a good-faith negotiation offer under paragraph (b). No | 11 |
| documents other than the written loan modification offer and | 12 |
| the arbitration request form required by paragraph (b) shall be | 13 |
| included with the notice. A copy of the notice also must be | 14 |
| sent by any means to the mortgage foreclosure counselor who | 15 |
| signed the affidavit of deferment. | 16 |
| (b) Arbitration of disputes. | 17 |
| (1) The eligible foreclosed borrower may dispute a | 18 |
| notice of deferment cancellation by sending to the | 19 |
| Secretary a request for arbitration form along with a copy | 20 |
| of the notice of deferment cancellation, including a copy | 21 |
| of the written loan modification that the foreclosing | 22 |
| lender asserts is a good-faith negotiation offer under this | 23 |
| paragraph (b). The request for arbitration must be | 24 |
| delivered or postmarked within 30 days after the date of | 25 |
| the notice of deferment cancellation. The deferment | 26 |
| continues pending resolution of the dispute. |
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LRB096 09625 AJO 19786 b |
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| (2) On receipt of a timely request for arbitration, the | 2 |
| Secretary shall appoint a
volunteer arbitrator to resolve | 3 |
| the dispute as to whether the foreclosing lender negotiated | 4 |
| with the eligible foreclosed borrower in good faith. The | 5 |
| Secretary may appoint any person the Secretary deems | 6 |
| qualified to act as a volunteer arbitrator. | 7 |
| (3) The volunteer arbitrator may request additional | 8 |
| documents or appearances
from either the foreclosing | 9 |
| lender or the eligible foreclosed borrower prior to making | 10 |
| a determination. The decision of the arbitrator is binding | 11 |
| on both the foreclosing lender and the eligible foreclosed | 12 |
| borrower. | 13 |
| (4) The appointed arbitrator shall act as a volunteer | 14 |
| and may not charge any person
for the arbitrator's services | 15 |
| or costs related to the arbitration. | 16 |
| (c) Good-faith negotiation by foreclosing lender. | 17 |
| (1) A foreclosing lender has not negotiated in good | 18 |
| faith unless it offers in writing to modify the terms of | 19 |
| repayment of the eligible foreclosed loan to permit the | 20 |
| eligible foreclosed borrower to make monthly payments that | 21 |
| the borrower would have had the reasonable ability to pay | 22 |
| as of the date the loan was originated or, if the | 23 |
| borrower's income and financial resources have increased | 24 |
| since the loan was originated, monthly payments that the | 25 |
| borrower has the current reasonable ability to pay. | 26 |
| (2) For purposes of this Section, "monthly payments" |
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LRB096 09625 AJO 19786 b |
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| includes principal, interest,
real estate taxes, | 2 |
| homeowner's insurance, assessments, and mortgage insurance | 3 |
| premiums, as applicable. | 4 |
| (3) For purposes of this Section, "reasonable ability | 5 |
| to pay" shall be determined
based on the following: | 6 |
| (A) the income and financial resources available | 7 |
| to the borrower at the time the loan was originated, | 8 |
| provided that tax returns, payroll receipts, bank | 9 |
| records, or other similarly reliable documents that | 10 |
| verify the borrower's income and financial resources | 11 |
| at the time of origination shall replace unverified | 12 |
| statements of income or financial resources contained | 13 |
| in the loan application, and the verified information | 14 |
| shall serve as the basis for computing the borrower's | 15 |
| reasonable ability to make monthly payments; or | 16 |
| (B) if the borrower's income and other financial | 17 |
| resources have increased since the loan was | 18 |
| originated, the borrower's current income and other | 19 |
| financial resources to the extent the information can | 20 |
| be verified by tax returns, payroll receipts, bank | 21 |
| records, or other similarly reliable documents. | 22 |
| (4) There is a presumption that the borrower has the | 23 |
| reasonable ability to pay if the monthly payments do not | 24 |
| exceed a combined debt-to-income ratio of 41% based on the | 25 |
| borrower's documented and verified monthly gross income, | 26 |
| provided the borrower has sufficient residual income as |
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SB2438 |
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LRB096 09625 AJO 19786 b |
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| defined in title 38, Code of Federal Regulations, Section | 2 |
| 36.4337(e). | 3 |
| (735 ILCS 5/15-1835 new)
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| Sec. 15-1835. Notice of right to deferment. | 5 |
| (a) Notice requirement; form and delivery of notice. Every | 6 |
| foreclosing lender shall send to each borrower who has an | 7 |
| eligible foreclosed loan a notice of right to deferment. The | 8 |
| notice of right to deferment shall be in the form of, and | 9 |
| subject to the delivery requirements specified in this Part. | 10 |
| The notice of right to deferment must also indicate an address | 11 |
| at which the foreclosing lender will accept service of an | 12 |
| affidavit of deferment under paragraph (b) of Section 15-1815. | 13 |
| No notice is required for a foreclosure commenced on or before | 14 |
| the effective date. | 15 |
| (b) Content. The notice required by this Section must | 16 |
| appear substantially as follows: | 17 |
| "Emergency Help For Homeowners in Foreclosure: | 18 |
| IMPORTANT: You are eligible to have the foreclosure of | 19 |
| your home stopped until at least (end of deferment period). | 20 |
| The State of Illinois recently passed a law that lets | 21 |
| homeowners stop a judicial sale. | 22 |
| To qualify, you must currently live at the home in | 23 |
| foreclosure and intend to live at the home until the end of | 24 |
| the deferment period.
You will also need to complete and | 25 |
| sign a special form (called an "affidavit") and
provide |
|
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| 1 |
| that affidavit to us at the following address: (insert | 2 |
| address in the State of
Illinois). | 3 |
| There are many government agencies and nonprofit | 4 |
| organizations that can help
you complete this affidavit. | 5 |
| For the name and telephone number of an
organization near | 6 |
| you, please call the Consumer Hotline of the Illinois | 7 |
| Department of Financial and Professional Regulation
at | 8 |
| (insert telephone number and Web site). The State does not | 9 |
| guarantee the advice of
these agencies. | 10 |
| Do not delay dealing with the foreclosure because your | 11 |
| options for foreclosure
deferment end with the judicial | 12 |
| sale." | 13 |
| (735 ILCS 5/15-1840 new)
| 14 |
| Sec. 15-1840. Bad faith or reckless violation. A | 15 |
| foreclosing lender who acts in bad faith or recklessly in | 16 |
| violation of Sections 15-1810 to 15-1835 shall be liable to a | 17 |
| person injured by the violation for actual damages, statutory | 18 |
| damages of up to $25,000, punitive damages in an amount | 19 |
| determined by the court, costs, and reasonable attorney's fees.
| 20 |
| Section 99. Effective date. This Act takes effect upon | 21 |
| becoming law.
|
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| 1 |
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INDEX
| 2 |
|
Statutes amended in order of appearance
|
| 3 |
| 735 ILCS 5/Art. XV Pt. 18 | 4 |
| heading new |
|
| 5 |
| 735 ILCS 5/15-1801 new |
|
| 6 |
| 735 ILCS 5/15-1805 new |
|
| 7 |
| 735 ILCS 5/15-1810 new |
|
| 8 |
| 735 ILCS 5/15-1815 new |
|
| 9 |
| 735 ILCS 5/15-1820 new |
|
| 10 |
| 735 ILCS 5/15-1825 new |
|
| 11 |
| 735 ILCS 5/15-1830 new |
|
| 12 |
| 735 ILCS 5/15-1835 new |
|
| 13 |
| 735 ILCS 5/15-1840 new |
|
| |
|