Full Text of HB5001 97th General Assembly
HB5001ham001 97TH GENERAL ASSEMBLY | Rep. Elaine Nekritz Filed: 3/1/2012
| | 09700HB5001ham001 | | LRB097 17635 AJO 66902 a |
|
| 1 | | AMENDMENT TO HOUSE BILL 5001
| 2 | | AMENDMENT NO. ______. Amend House Bill 5001 by replacing | 3 | | everything after the enacting clause with the following:
| 4 | | "Section 5. The Code of Civil Procedure is amended by | 5 | | changing Sections 15-1503 and 15-1508 as follows:
| 6 | | (735 ILCS 5/15-1503) (from Ch. 110, par. 15-1503)
| 7 | | Sec. 15-1503. Notice of Foreclosure. | 8 | | (a) A notice of foreclosure, whether
the foreclosure is | 9 | | initiated by complaint or
counterclaim, made in accordance with | 10 | | this Section and recorded in the
county in which the mortgaged | 11 | | real estate is located shall be constructive
notice of the | 12 | | pendency of the foreclosure to every person claiming an
| 13 | | interest in or lien on the mortgaged real estate, whose | 14 | | interest or lien
has not been recorded prior to the recording | 15 | | of such notice of foreclosure.
Such notice of foreclosure must | 16 | | be executed by any party or any party's
attorney and shall |
| | | 09700HB5001ham001 | - 2 - | LRB097 17635 AJO 66902 a |
|
| 1 | | include (i) the names of all plaintiffs and the case
number, | 2 | | (ii) the court in which the action was brought, (iii) the names | 3 | | of
title holders of record, (iv) a legal description of the | 4 | | real estate
sufficient to identify it with reasonable | 5 | | certainty, (v) a common address
or description of the location | 6 | | of the real estate and (vi) identification
of the mortgage | 7 | | sought to be foreclosed. An incorrect common address or
| 8 | | description of the location, or an immaterial error in the | 9 | | identification
of a plaintiff or title holder of record, shall | 10 | | not invalidate the lis
pendens effect of the notice under this | 11 | | Section.
A notice which complies with this Section shall be | 12 | | deemed to comply with
Section 2-1901 of the Code of Civil
| 13 | | Procedure and shall have the same effect as a notice filed | 14 | | pursuant to
that Section; however, a notice which complies with | 15 | | Section 2-1901 shall
not be constructive notice unless it also | 16 | | complies with the requirements of
this Section.
| 17 | | (b) With respect to residential real estate, a copy of the | 18 | | notice of foreclosure described in subsection (a) of Section | 19 | | 15-1503 shall be sent by first class mail, postage prepaid, to | 20 | | the municipality within the boundary of which the mortgaged | 21 | | real estate is located, or to the county within the boundary of | 22 | | which the mortgaged real estate is located if the mortgaged | 23 | | real estate is located in an unincorporated territory. A | 24 | | municipality or county must clearly publish on its website a | 25 | | single address to which such notice shall be sent. If a | 26 | | municipality or county does not maintain a website, then the |
| | | 09700HB5001ham001 | - 3 - | LRB097 17635 AJO 66902 a |
|
| 1 | | municipality or county must publicly post in its main office a | 2 | | single address to which such notice shall be sent. In the event | 3 | | that a municipality or county has not complied with the | 4 | | publication requirement in this subsection (b), then the copy | 5 | | of the such notice to the municipality or county shall be sent | 6 | | by first class mail, postage prepaid, to the chairperson of the | 7 | | county board or county clerk in the case of a county, to the | 8 | | mayor or city clerk in the case of a city, to the president of | 9 | | the board of trustees or village clerk in the case of a | 10 | | village, or to the president or town clerk in the case of a | 11 | | town provided pursuant to Section 2-211 of the Code of Civil | 12 | | Procedure . Additionally, if the real estate is located in a | 13 | | city with a population of more than 2,000,000, regardless of | 14 | | whether that city has complied with the publication requirement | 15 | | in this subsection (b), the party must, within 10 days after | 16 | | filing the complaint or counterclaim: (i) send by first class | 17 | | mail, postage prepaid, a copy of the notice of foreclosure to | 18 | | the alderman for the ward in which the real estate is located | 19 | | and (ii) file an affidavit with the court attesting to the fact | 20 | | that the notice was sent to the alderman for the ward in which | 21 | | the real estate is located. The failure to send a copy of the | 22 | | notice to the alderman for the ward in which the real estate is | 23 | | located or to file an affidavit as required results in the | 24 | | dismissal without prejudice of the complaint or counterclaim on | 25 | | a motion of a party or the court. If, after the complaint or | 26 | | counterclaim has been dismissed without prejudice, the party |
| | | 09700HB5001ham001 | - 4 - | LRB097 17635 AJO 66902 a |
|
| 1 | | refiles the complaint or counterclaim, then the party must | 2 | | again meet the requirements that the party send by first class | 3 | | mail, postage prepaid, the notice to the alderman for the ward | 4 | | in which the real estate is located and file an affidavit | 5 | | attesting to the fact that the notice was sent. | 6 | | (Source: P.A. 96-856, eff. 3-1-10.)
| 7 | | (735 ILCS 5/15-1508) (from Ch. 110, par. 15-1508) | 8 | | Sec. 15-1508. Report of Sale and Confirmation of Sale. | 9 | | (a) Report. The person conducting the sale shall promptly | 10 | | make a report to
the court, which report shall include a copy | 11 | | of all receipts and, if any,
certificate of sale. | 12 | | (b) Hearing. Upon motion and notice in accordance with | 13 | | court rules
applicable to motions generally, which motion shall | 14 | | not be made prior to
sale, the court shall conduct a hearing to
| 15 | | confirm the sale. Unless the court finds that (i) a notice | 16 | | required in
accordance with subsection (c) of Section 15-1507 | 17 | | or a notice to an alderman required in accordance with | 18 | | subsection (b) of Section 15-1503 was not given, (ii) the
terms | 19 | | of sale were unconscionable, (iii) the sale was conducted
| 20 | | fraudulently, or (iv) justice was otherwise not done, the court | 21 | | shall
then enter an order confirming the sale. The confirmation | 22 | | order shall include a name, address, and telephone number of | 23 | | the holder of the certificate of sale or deed issued pursuant | 24 | | to that certificate or, if no certificate or deed was issued, | 25 | | the purchaser, whom a municipality or county may contact with |
| | | 09700HB5001ham001 | - 5 - | LRB097 17635 AJO 66902 a |
|
| 1 | | concerns about the real estate. The confirmation order may
| 2 | | also: | 3 | | (1) approve the mortgagee's fees and costs arising | 4 | | between the entry of
the judgment of foreclosure and the | 5 | | confirmation hearing, those costs and
fees to be allowable | 6 | | to the same extent as provided in the note and mortgage
and | 7 | | in Section 15-1504; | 8 | | (2) provide for a personal judgment against any party | 9 | | for a deficiency;
and | 10 | | (3) determine the priority of the judgments of parties | 11 | | who deferred proving
the priority pursuant to subsection | 12 | | (h) of Section 15-1506, but
the court shall not
defer | 13 | | confirming the sale pending the determination of such | 14 | | priority. | 15 | | (b-5) Notice with respect to residential real estate. With | 16 | | respect to residential real estate, the notice required under | 17 | | subsection (b) of this Section shall be sent to the mortgagor | 18 | | even if the mortgagor has previously been held in default. In | 19 | | the event the mortgagor has filed an appearance, the notice | 20 | | shall be sent to the address indicated on the appearance. In | 21 | | all other cases, the notice shall be sent to the mortgagor at | 22 | | the common address of the foreclosed property. The notice shall | 23 | | be sent by first class mail. Unless the right to possession has | 24 | | been previously terminated by the court, the notice shall | 25 | | include the following language in 12-point boldface | 26 | | capitalized type: |
| | | 09700HB5001ham001 | - 6 - | LRB097 17635 AJO 66902 a |
|
| 1 | | IF YOU ARE THE MORTGAGOR (HOMEOWNER), YOU HAVE THE RIGHT TO | 2 | | REMAIN IN POSSESSION FOR 30 DAYS AFTER ENTRY OF AN ORDER OF | 3 | | POSSESSION, IN ACCORDANCE WITH SECTION 15-1701(c) OF THE | 4 | | ILLINOIS MORTGAGE FORECLOSURE LAW. | 5 | | (b-10) Notice of confirmation order sent to municipality or | 6 | | county. With respect to residential real estate, a A copy of | 7 | | the confirmation order required under subsection (b) shall be | 8 | | sent by first class mail, postage prepaid, to the municipality | 9 | | in which the foreclosed property is located, or to the county | 10 | | within the boundary of which the foreclosed property is located | 11 | | if the foreclosed property is located in an unincorporated | 12 | | territory. A municipality or county must clearly publish on its | 13 | | website a single address to which such order notice shall be | 14 | | sent. If a municipality or county does not maintain a website, | 15 | | then the municipality or county must publicly post in its main | 16 | | office a single address to which such order notice shall be | 17 | | sent. In the event that a municipality or county has not | 18 | | complied with the publication requirement in this subsection | 19 | | (b-10), then the copy of the order such notice to the | 20 | | municipality or county shall be sent by first class mail, | 21 | | postage prepaid, to the chairperson of the county board or | 22 | | county clerk in the case of a county, to the mayor or city | 23 | | clerk in the case of a city, to the president of the board of | 24 | | trustees or village clerk in the case of a village, or to the | 25 | | president or town clerk in the case of a town provided pursuant | 26 | | to Section 2-211 of the Code of Civil Procedure . Additionally, |
| | | 09700HB5001ham001 | - 7 - | LRB097 17635 AJO 66902 a |
|
| 1 | | if the real estate is located in a city with a population of | 2 | | more than 2,000,000, regardless of whether that city has | 3 | | complied with the publication requirement in this subsection | 4 | | (b-10), the party filing the complaint or counterclaim must, | 5 | | within 10 days after the entry of the confirmation order: (i) | 6 | | send by first class mail, postage prepaid, a copy of the | 7 | | confirmation order to the alderman for the ward in which the | 8 | | real estate is located and (ii) file an affidavit attesting to | 9 | | the fact that a copy of the confirmation order was sent to the | 10 | | alderman for the ward in which the real estate is located. | 11 | | (b-15) Notice of confirmation order sent to known insurers. | 12 | | With respect to residential real estate, the party filing the | 13 | | complaint shall send a copy of the confirmation order required | 14 | | under subsection (b) by first class mail, postage prepaid, to | 15 | | the last-known property insurer of the foreclosed property. | 16 | | Failure to send or receive a copy of the order shall not impair | 17 | | or abrogate in any way the rights of the mortgagee or purchaser | 18 | | or affect the status of the foreclosure proceedings. | 19 | | (c) Failure to Give Notice. If any sale is held without | 20 | | compliance with
subsection (c) of Section 15-1507 of this | 21 | | Article, any party entitled to
the notice provided for in | 22 | | paragraph (3) of that subsection
(c) who was not so notified | 23 | | may, by motion supported by affidavit
made prior to | 24 | | confirmation of such sale, ask the court which entered the
| 25 | | judgment to set aside the sale. Any such party shall guarantee | 26 | | or secure by bond a bid equal to the successful bid at the |
| | | 09700HB5001ham001 | - 8 - | LRB097 17635 AJO 66902 a |
|
| 1 | | prior sale, unless the party seeking to set aside the sale is | 2 | | the mortgagor, the real estate sold at the sale is residential | 3 | | real estate, and the mortgagor occupies the residential real | 4 | | estate at the time the motion is filed. In that event, no | 5 | | guarantee or bond shall be required of the mortgagor. Any
| 6 | | subsequent sale is subject to the same notice requirement as | 7 | | the original sale. | 8 | | (d) Validity of Sale. Except as provided in subsection (c) | 9 | | of Section
15-1508, no sale under this Article shall be held | 10 | | invalid or be set aside
because of any defect in the notice | 11 | | thereof or in the publication of the
same, or in the | 12 | | proceedings of the officer conducting the sale, except upon
| 13 | | good cause shown in a hearing pursuant to subsection (b) of | 14 | | Section
15-1508. At any time after a sale has occurred, any | 15 | | party entitled to
notice under paragraph (3) of subsection (c) | 16 | | of Section 15-1507 may recover
from the mortgagee any damages | 17 | | caused by the mortgagee's failure to comply
with such paragraph | 18 | | (3). Any party who recovers damages in a judicial
proceeding | 19 | | brought under this subsection may also recover from the
| 20 | | mortgagee the reasonable expenses of litigation, including | 21 | | reasonable attorney's fees. | 22 | | (d-5) Making Home Affordable Program. The court that | 23 | | entered the judgment shall set aside a sale held pursuant to | 24 | | Section 15-1507, upon motion of the mortgagor at any time prior | 25 | | to the confirmation of the sale, if the mortgagor proves by a | 26 | | preponderance of the evidence that (i) the mortgagor has |
| | | 09700HB5001ham001 | - 9 - | LRB097 17635 AJO 66902 a |
|
| 1 | | applied for assistance under the Making Home Affordable Program | 2 | | established by the United States Department of the Treasury | 3 | | pursuant to the Emergency Economic Stabilization Act of 2008, | 4 | | as amended by the American Recovery and Reinvestment Act of | 5 | | 2009, and (ii) the mortgaged real estate was sold in material | 6 | | violation of the program's requirements for proceeding to a | 7 | | judicial sale. The provisions of this subsection (d-5), except | 8 | | for this sentence, shall become inoperative on January 1, 2013 | 9 | | for all actions filed under this Article after December 31, | 10 | | 2012, in which the mortgagor did not apply for assistance under | 11 | | the Making Home Affordable Program on or before December 31, | 12 | | 2012. | 13 | | (e) Deficiency Judgment. In any order confirming a sale | 14 | | pursuant to the
judgment of foreclosure, the court shall also | 15 | | enter a personal judgment
for deficiency against any party (i) | 16 | | if otherwise authorized and (ii) to
the extent requested in the | 17 | | complaint and proven upon presentation of the
report of sale in | 18 | | accordance with Section 15-1508. Except as otherwise provided
| 19 | | in this Article, a judgment may be entered for any balance of | 20 | | money that
may be found due to the plaintiff, over and above | 21 | | the proceeds of the sale
or sales, and enforcement may be had | 22 | | for the collection of such balance,
the same as when the | 23 | | judgment is solely for the payment of money. Such
judgment may | 24 | | be entered, or enforcement had,
only in cases where personal | 25 | | service has been had upon the
persons personally liable for the | 26 | | mortgage indebtedness, unless they have
entered their |
| | | 09700HB5001ham001 | - 10 - | LRB097 17635 AJO 66902 a |
|
| 1 | | appearance in the foreclosure action. | 2 | | (f) Satisfaction. Upon confirmation of the sale, the
| 3 | | judgment stands satisfied to the extent of the sale price less | 4 | | expenses and
costs. If the order confirming the sale includes a | 5 | | deficiency judgment, the
judgment shall become a lien in the | 6 | | manner of any other
judgment for the payment of money. | 7 | | (g) The order confirming the sale shall include, | 8 | | notwithstanding any
previous orders awarding possession during | 9 | | the pendency of the foreclosure, an
award to the purchaser of | 10 | | possession of the mortgaged real estate, as of the
date 30 days | 11 | | after the entry of the order, against the
parties to the | 12 | | foreclosure whose interests have been terminated. | 13 | | An order of possession authorizing the removal of a person | 14 | | from possession
of the mortgaged real estate shall be entered | 15 | | and enforced only against those
persons personally
named as | 16 | | individuals in the complaint or the petition under subsection | 17 | | (h)
of Section 15-1701 and in the order of possession and shall
| 18 | | not be entered and enforced against any person who is only | 19 | | generically
described as an
unknown owner or nonrecord claimant | 20 | | or by another generic designation in the
complaint. | 21 | | Notwithstanding the preceding paragraph, the failure to | 22 | | personally
name,
include, or seek an award of
possession of the | 23 | | mortgaged real estate against a person in the
confirmation | 24 | | order shall not abrogate any right that the purchaser may have | 25 | | to
possession of the mortgaged real estate and to maintain a | 26 | | proceeding against
that person for
possession under Article 9 |
| | | 09700HB5001ham001 | - 11 - | LRB097 17635 AJO 66902 a |
|
| 1 | | of this Code or subsection (h) of Section 15-1701;
and | 2 | | possession against a person
who (1) has not been personally | 3 | | named as a party to the
foreclosure and (2) has not been | 4 | | provided an opportunity to be heard in the
foreclosure | 5 | | proceeding may be sought only by maintaining a
proceeding under | 6 | | Article 9 of this
Code or subsection (h) of Section 15-1701. | 7 | | (h) With respect to mortgaged real estate containing 5 or | 8 | | more dwelling units, the order confirming the sale shall also | 9 | | provide that (i) the mortgagor shall transfer to the purchaser | 10 | | the security deposits, if any, that the mortgagor received to | 11 | | secure payment of rent or to compensate for damage to the | 12 | | mortgaged real estate from any current occupant of a dwelling | 13 | | unit of the mortgaged real estate, as well as any statutory | 14 | | interest that has not been paid to the occupant, and (ii) the | 15 | | mortgagor shall provide an accounting of the security deposits | 16 | | that are transferred, including the name and address of each | 17 | | occupant for whom the mortgagor holds the deposit and the | 18 | | amount of the deposit and any statutory interest. | 19 | | (Source: P.A. 96-265, eff. 8-11-09; 96-856, eff. 3-1-10; | 20 | | 96-1245, eff. 7-23-10; 97-333, eff. 8-12-11; 97-575, eff. | 21 | | 8-26-11.)".
|
|