Full Text of SB1602 98th General Assembly
SB1602sam001 98TH GENERAL ASSEMBLY | Sen. Jacqueline Y. Collins Filed: 2/28/2013
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| 1 | | AMENDMENT TO SENATE BILL 1602
| 2 | | AMENDMENT NO. ______. Amend Senate Bill 1602 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 9-121, 9-205, 9-207, 15-1202.5, 15-1506, | 6 | | 15-1508, 15-1508.5, 15-1701, 15-1703, and 15-1704 and by adding | 7 | | Section 9-207.5 as follows: | 8 | | (735 ILCS 5/9-121) | 9 | | Sec. 9-121. Sealing of court file. | 10 | | (a) Definition. As used in this Section, "court file"
means | 11 | | the court file created when a forcible entry and detainer
| 12 | | action is filed with the court. | 13 | | (b) Discretionary sealing of court file. The court may
| 14 | | order that a court file in a forcible entry and detainer action
| 15 | | be placed under seal if the court finds that the plaintiff's
| 16 | | action is sufficiently without a basis in fact or law, which
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| 1 | | may include a lack of jurisdiction, that placing the court file
| 2 | | under seal is clearly in the interests of justice, and that
| 3 | | those interests are not outweighed by the public's interest in
| 4 | | knowing about the record. | 5 | | (c) Mandatory sealing of court file. The court file | 6 | | relating to a forcible entry and detainer action brought | 7 | | against a tenant under Section 9-207.5 of this Code or as set | 8 | | forth in subdivision (h)(5) of Section 15-1701 of this Code | 9 | | shall be placed under seal who would have lawful possession of | 10 | | the premises but for the foreclosure on the property shall be | 11 | | sealed pursuant to Section 15-1701 .
| 12 | | (Source: P.A. 96-1131, eff. 7-20-10.)
| 13 | | (735 ILCS 5/9-205) (from Ch. 110, par. 9-205)
| 14 | | Sec. 9-205. Notice to terminate tenancy from year to year. | 15 | | Except as
provided in Section 9-206 and Section 9-207.5 of this | 16 | | Act, in all cases of tenancy
from year to year, 60 days' | 17 | | notice, in writing, shall be sufficient to
terminate the | 18 | | tenancy at the end of the year. The notice may be given at
any | 19 | | time within 4 months preceding the last 60 days of the year.
| 20 | | (Source: P.A. 82-280.)
| 21 | | (735 ILCS 5/9-207) (from Ch. 110, par. 9-207)
| 22 | | Sec. 9-207. Notice to terminate tenancy for less than a | 23 | | year. | 24 | | (a) Except as provided in Section 9-207.5 of this Code, in |
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| 1 | | In all
cases of tenancy from week to week, where the tenant
| 2 | | holds over without special agreement, the landlord may | 3 | | terminate the
tenancy by 7 days' notice, in writing, and may | 4 | | maintain an action
for forcible entry and detainer or | 5 | | ejectment.
| 6 | | (b) Except as provided in Section 9-207.5 of this Code, in | 7 | | In all cases of tenancy for any term less than one year, other | 8 | | than
tenancy from week to week, where the tenant holds over | 9 | | without special
agreement, the landlord may terminate the | 10 | | tenancy by 30 days'
notice, in writing, and may maintain an | 11 | | action for forcible entry and
detainer or ejectment.
| 12 | | (Source: P.A. 82-280.)
| 13 | | (735 ILCS 5/9-207.5 new) | 14 | | Sec. 9-207.5. Termination of tenancies after foreclosure. | 15 | | In the case of a foreclosure under Article 15 of this Code, the | 16 | | landlord may terminate a tenancy established prior to the | 17 | | confirmation of sale under Section 15-1508 of this Code only | 18 | | (i) at the end of the term of the lease agreement by 90 days' | 19 | | written notice issued not earlier than 90 days prior to the end | 20 | | of the term of the lease; or (ii) in the case of a month to | 21 | | month or week to week tenancy, by 90 days' written notice. | 22 | | Nothing in this Section shall abrogate the rights of a landlord | 23 | | to terminate a tenancy under Sections 9-118, 9-119, 9-120, | 24 | | 9-209, or 9-210 of this Code. |
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| 1 | | (735 ILCS 5/15-1202.5)
| 2 | | Sec. 15-1202.5. Dwelling unit. For the purposes of Sections | 3 | | 15-1506, 15-1508, 15-1508.5, 15-1701, 15-1703, and 15-1704 | 4 | | only, "dwelling unit" means a room or suite of rooms providing | 5 | | complete, independent living facilities for at least one | 6 | | person, including permanent provisions for sanitation, | 7 | | cooking, eating, sleeping, and other activities routinely | 8 | | associated with daily life.
| 9 | | (Source: P.A. 96-111, eff. 10-29-09; 97-575, eff. 8-26-11.)
| 10 | | (735 ILCS 5/15-1506) (from Ch. 110, par. 15-1506)
| 11 | | Sec. 15-1506. Judgment. | 12 | | (a) Evidence. In the trial of a foreclosure, the evidence | 13 | | to support the
allegations of the complaint shall be taken in | 14 | | open court, except:
| 15 | | (1) where an allegation of fact in the complaint is not | 16 | | denied by a
party's verified answer or verified | 17 | | counterclaim, or where a party pursuant
to subsection (b) | 18 | | of Section 2-610 of the Code of Civil Procedure states,
or | 19 | | is deemed to have stated, in
its pleading that it has no | 20 | | knowledge
of such allegation sufficient to form a belief | 21 | | and attaches the required
affidavit, a sworn verification | 22 | | of the complaint or a separate affidavit
setting forth such | 23 | | fact is sufficient evidence thereof against such party
and | 24 | | no further evidence of such fact shall be required; and
| 25 | | (2) where all the allegations of fact in the complaint |
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| 1 | | have been proved
by verification of the complaint or | 2 | | affidavit, the court upon motion
supported by an affidavit | 3 | | stating the amount which is due the mortgagee,
shall enter | 4 | | a judgment of foreclosure as requested in the complaint.
| 5 | | (b) Instruments. In all cases the evidence of the | 6 | | indebtedness and the
mortgage foreclosed shall be exhibited to | 7 | | the court and appropriately
marked, and copies thereof shall be | 8 | | filed with the court.
| 9 | | (c) Summary and Default Judgments. Nothing in this Section | 10 | | 15-1506
shall prevent a party from obtaining a summary or | 11 | | default judgment
authorized by Article II of the Code of Civil | 12 | | Procedure.
| 13 | | (d) Notice of Entry of Default. When any judgment in a | 14 | | foreclosure is
entered by default, notice of such judgment | 15 | | shall be given in accordance
with Section 2-1302 of the Code of | 16 | | Civil Procedure.
| 17 | | (e) Matters Required in Judgment. A judgment of foreclosure | 18 | | shall
include the last date for redemption and all rulings of | 19 | | the court entered
with respect to each request for relief set | 20 | | forth in the complaint. The
omission of the date for redemption | 21 | | shall not extend the time for
redemption or impair the validity | 22 | | of the judgment.
| 23 | | (f) Special Matters in Judgment. Without limiting the | 24 | | general
authority and powers of the court, special matters may | 25 | | be included in the
judgment of foreclosure if sought by a party | 26 | | in the complaint or by separate
motion. Such matters may |
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| 1 | | include, without limitation:
| 2 | | (1) a manner of sale other than public auction;
| 3 | | (2) a sale by sealed bid;
| 4 | | (3) an official or other person who shall be the | 5 | | officer to
conduct the sale other than the one customarily | 6 | | designated by the court;
| 7 | | (4) provisions for non-exclusive broker listings or | 8 | | designating a duly
licensed real estate broker nominated by | 9 | | one of the parties to exclusively
list the real estate for | 10 | | sale;
| 11 | | (5) the fees or commissions to be paid out of the sale | 12 | | proceeds to the
listing or other duly licensed broker, if | 13 | | any, who shall have procured the accepted bid;
| 14 | | (6) the fees to be paid out of the sale proceeds to an | 15 | | auctioneer, if
any, who shall have been authorized to | 16 | | conduct a public auction sale;
| 17 | | (7) whether and in what manner and with what content | 18 | | signs shall be
posted on the real estate;
| 19 | | (8) a particular time and place at which such bids | 20 | | shall be received;
| 21 | | (9) a particular newspaper or newspapers in which | 22 | | notice of
sale shall be published;
| 23 | | (10) the format for the advertising of such sale,
| 24 | | including the size, content
and format of such advertising, | 25 | | and additional advertising of such sale;
| 26 | | (11) matters or exceptions to which title in the real |
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| 1 | | estate may be subject
at the sale;
| 2 | | (12) a requirement that title insurance in a specified | 3 | | form be provided
to a purchaser at the sale, and who shall | 4 | | pay for such insurance;
| 5 | | (13) whether and to what extent bids with mortgage or | 6 | | other
contingencies will be allowed;
| 7 | | (14) such other matters as approved by the court to | 8 | | ensure sale of the
real estate for the most commercially | 9 | | favorable price for the type of real
estate involved.
| 10 | | (g) Agreement of the Parties. If all of the parties agree | 11 | | in writing on
the minimum price and that the real estate may be | 12 | | sold to the first person
who offers in writing to purchase the | 13 | | real estate for such price, and on
such other commercially | 14 | | reasonable terms and conditions as the parties may
agree, then | 15 | | the court shall order the real estate to be sold on such terms,
| 16 | | subject to confirmation of the sale in accordance with Section | 17 | | 15-1508.
| 18 | | (h) Postponement of Proving Priority. With the approval of | 19 | | the court
prior to the entry of the judgment of foreclosure, a | 20 | | party claiming an
interest in the proceeds of the sale of the | 21 | | mortgaged real estate may defer
proving the priority of such | 22 | | interest until the hearing to confirm the sale.
| 23 | | (i) Effect of Judgment and Lien.
| 24 | | (1) Upon the entry of the judgment of foreclosure, all | 25 | | rights of a party
in the foreclosure against the mortgagor | 26 | | provided for in the judgment of foreclosure
or this Article |
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| 1 | | shall be secured by a lien on the mortgaged
real estate, | 2 | | which lien shall have the same priority as the claim to
| 3 | | which the judgment relates and shall be terminated upon | 4 | | confirmation of a judicial
sale in accordance with this | 5 | | Article.
| 6 | | (2) Upon the entry of the judgment of foreclosure, the | 7 | | rights in the
real estate subject to the judgment of | 8 | | foreclosure of (i) all persons made
a party in the | 9 | | foreclosure and (ii) all nonrecord claimants given notice | 10 | | in
accordance with paragraph (2) of subsection (c) of | 11 | | Section 15-1502, shall
be solely as provided for in
the | 12 | | judgment of foreclosure and in this Article.
| 13 | | (3) Entry of a judgment of foreclosure does not | 14 | | terminate or otherwise affect the rights or interest of any | 15 | | occupant of a dwelling unit who has a lease or tenancy | 16 | | resulting from an arm's length transaction and who is not | 17 | | the mortgagor, whether or not the occupant has been made a | 18 | | party in the foreclosure. | 19 | | (Source: P.A. 85-907.)
| 20 | | (735 ILCS 5/15-1508) (from Ch. 110, par. 15-1508) | 21 | | Sec. 15-1508. Report of Sale and Confirmation of Sale. | 22 | | (a) Report. The person conducting the sale shall promptly | 23 | | make a report to
the court, which report shall include a copy | 24 | | of all receipts and, if any,
certificate of sale. | 25 | | (b) Hearing. Upon motion and notice in accordance with |
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| 1 | | court rules
applicable to motions generally, which motion shall | 2 | | not be made prior to
sale, the court shall conduct a hearing to
| 3 | | confirm the sale. Unless the court finds that (i) a notice | 4 | | required in
accordance with subsection (c) of Section 15-1507 | 5 | | was not given, (ii) the
terms of sale were unconscionable, | 6 | | (iii) the sale was conducted
fraudulently, or (iv) justice was | 7 | | otherwise not done, the court shall
then enter an order | 8 | | confirming the sale. The confirmation order shall include a | 9 | | name, address, and telephone number of the holder of the | 10 | | certificate of sale or deed issued pursuant to that certificate | 11 | | or, if no certificate or deed was issued, the purchaser, whom a | 12 | | municipality or county may contact with concerns about the real | 13 | | estate. The confirmation order may
also: | 14 | | (1) approve the mortgagee's fees and costs arising | 15 | | between the entry of
the judgment of foreclosure and the | 16 | | confirmation hearing, those costs and
fees to be allowable | 17 | | to the same extent as provided in the note and mortgage
and | 18 | | in Section 15-1504; | 19 | | (2) provide for a personal judgment against any party | 20 | | for a deficiency;
and | 21 | | (3) determine the priority of the judgments of parties | 22 | | who deferred proving
the priority pursuant to subsection | 23 | | (h) of Section 15-1506, but
the court shall not
defer | 24 | | confirming the sale pending the determination of such | 25 | | priority. | 26 | | (b-5) Notice with respect to residential real estate. With |
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| 1 | | respect to residential real estate, the notice required under | 2 | | subsection (b) of this Section shall be sent to the mortgagor | 3 | | even if the mortgagor has previously been held in default. In | 4 | | the event the mortgagor has filed an appearance, the notice | 5 | | shall be sent to the address indicated on the appearance. In | 6 | | all other cases, the notice shall be sent to the mortgagor at | 7 | | the common address of the foreclosed property. The notice shall | 8 | | be sent by first class mail. Unless the right to possession has | 9 | | been previously terminated by the court, the notice shall | 10 | | include the following language in 12-point boldface | 11 | | capitalized type: | 12 | | IF YOU ARE THE MORTGAGOR (HOMEOWNER), YOU HAVE THE RIGHT TO | 13 | | REMAIN IN POSSESSION FOR 30 DAYS AFTER ENTRY OF AN ORDER OF | 14 | | POSSESSION, IN ACCORDANCE WITH SECTION 15-1701(c) OF THE | 15 | | ILLINOIS MORTGAGE FORECLOSURE LAW. | 16 | | (b-10) Notice of confirmation order sent to municipality or | 17 | | county. A copy of the confirmation order required under | 18 | | subsection (b) shall be sent to the municipality in which the | 19 | | foreclosed property is located, or to the county within the | 20 | | boundary of which the foreclosed property is located if the | 21 | | foreclosed property is located in an unincorporated territory. | 22 | | A municipality or county must clearly publish on its website a | 23 | | single address to which such notice shall be sent. If a | 24 | | municipality or county does not maintain a website, then the | 25 | | municipality or county must publicly post in its main office a | 26 | | single address to which such notice shall be sent. In the event |
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| 1 | | that a municipality or county has not complied with the | 2 | | publication requirement in this subsection (b-10), then such | 3 | | notice to the municipality or county shall be provided pursuant | 4 | | to Section 2-211 of the Code of Civil Procedure. | 5 | | (c) Failure to Give Notice. If any sale is held without | 6 | | compliance with
subsection (c) of Section 15-1507 of this | 7 | | Article, any party entitled to
the notice provided for in | 8 | | paragraph (3) of that subsection
(c) who was not so notified | 9 | | may, by motion supported by affidavit
made prior to | 10 | | confirmation of such sale, ask the court which entered the
| 11 | | judgment to set aside the sale. Any such party shall guarantee | 12 | | or secure by bond a bid equal to the successful bid at the | 13 | | prior sale, unless the party seeking to set aside the sale is | 14 | | the mortgagor, the real estate sold at the sale is residential | 15 | | real estate, and the mortgagor occupies the residential real | 16 | | estate at the time the motion is filed. In that event, no | 17 | | guarantee or bond shall be required of the mortgagor. Any
| 18 | | subsequent sale is subject to the same notice requirement as | 19 | | the original sale. | 20 | | (d) Validity of Sale. Except as provided in subsection (c) | 21 | | of Section
15-1508, no sale under this Article shall be held | 22 | | invalid or be set aside
because of any defect in the notice | 23 | | thereof or in the publication of the
same, or in the | 24 | | proceedings of the officer conducting the sale, except upon
| 25 | | good cause shown in a hearing pursuant to subsection (b) of | 26 | | Section
15-1508. At any time after a sale has occurred, any |
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| 1 | | party entitled to
notice under paragraph (3) of subsection (c) | 2 | | of Section 15-1507 may recover
from the mortgagee any damages | 3 | | caused by the mortgagee's failure to comply
with such paragraph | 4 | | (3). Any party who recovers damages in a judicial
proceeding | 5 | | brought under this subsection may also recover from the
| 6 | | mortgagee the reasonable expenses of litigation, including | 7 | | reasonable attorney's fees. | 8 | | (d-5) Making Home Affordable Program. The court that | 9 | | entered the judgment shall set aside a sale held pursuant to | 10 | | Section 15-1507, upon motion of the mortgagor at any time prior | 11 | | to the confirmation of the sale, if the mortgagor proves by a | 12 | | preponderance of the evidence that (i) the mortgagor has | 13 | | applied for assistance under the Making Home Affordable Program | 14 | | established by the United States Department of the Treasury | 15 | | pursuant to the Emergency Economic Stabilization Act of 2008, | 16 | | as amended by the American Recovery and Reinvestment Act of | 17 | | 2009, and (ii) the mortgaged real estate was sold in material | 18 | | violation of the program's requirements for proceeding to a | 19 | | judicial sale. The provisions of this subsection (d-5), except | 20 | | for this sentence, shall become inoperative on January 1, 2014 | 21 | | for all actions filed under this Article after December 31, | 22 | | 2013, in which the mortgagor did not apply for assistance under | 23 | | the Making Home Affordable Program on or before December 31, | 24 | | 2013. | 25 | | (e) Deficiency Judgment. In any order confirming a sale | 26 | | pursuant to the
judgment of foreclosure, the court shall also |
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| 1 | | enter a personal judgment
for deficiency against any party (i) | 2 | | if otherwise authorized and (ii) to
the extent requested in the | 3 | | complaint and proven upon presentation of the
report of sale in | 4 | | accordance with Section 15-1508. Except as otherwise provided
| 5 | | in this Article, a judgment may be entered for any balance of | 6 | | money that
may be found due to the plaintiff, over and above | 7 | | the proceeds of the sale
or sales, and enforcement may be had | 8 | | for the collection of such balance,
the same as when the | 9 | | judgment is solely for the payment of money. Such
judgment may | 10 | | be entered, or enforcement had,
only in cases where personal | 11 | | service has been had upon the
persons personally liable for the | 12 | | mortgage indebtedness, unless they have
entered their | 13 | | appearance in the foreclosure action. | 14 | | (f) Satisfaction. Upon confirmation of the sale, the
| 15 | | judgment stands satisfied to the extent of the sale price less | 16 | | expenses and
costs. If the order confirming the sale includes a | 17 | | deficiency judgment, the
judgment shall become a lien in the | 18 | | manner of any other
judgment for the payment of money. | 19 | | (g) The order confirming the sale shall include, | 20 | | notwithstanding any
previous orders awarding possession during | 21 | | the pendency of the foreclosure, an
award to the purchaser of | 22 | | possession of the mortgaged real estate, as of the
date 30 days | 23 | | after the entry of the order, against the
parties to the | 24 | | foreclosure whose interests have been terminated. | 25 | | An order of possession authorizing the removal of a person | 26 | | from possession
of the mortgaged real estate shall be entered |
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| 1 | | and enforced only against those
persons personally
named as | 2 | | individuals in the complaint or the petition under subsection | 3 | | (h)
of Section 15-1701 . However, no order of possession issued | 4 | | under this Section shall be entered against an occupant of a | 5 | | dwelling unit of the mortgaged real estate who has been | 6 | | personally named in the foreclosure if that occupant is not the | 7 | | mortgagor and has a lease or tenancy resulting from an arm's | 8 | | length transaction. An and in the order of possession and shall
| 9 | | not be entered and enforced against any person who is only | 10 | | generically
described as an
unknown owner or nonrecord claimant | 11 | | or by another generic designation in the
complaint. | 12 | | Notwithstanding the preceding paragraph, the failure to | 13 | | personally
name,
include, or seek an award of
possession of the | 14 | | mortgaged real estate against a person in the
confirmation | 15 | | order shall not abrogate any right that the purchaser may have | 16 | | to
possession of the mortgaged real estate and to maintain a | 17 | | proceeding against
that person for
possession under Article 9 | 18 | | of this Code or , if applicable, under subsection (h) of Section | 19 | | 15-1701;
and possession against a person
who (1) has not been | 20 | | personally named as a party to the
foreclosure and (2) has not | 21 | | been provided an opportunity to be heard in the
foreclosure | 22 | | proceeding may be sought only by maintaining a
proceeding under | 23 | | Article 9 of this
Code or , if applicable, under subsection (h) | 24 | | of Section 15-1701. | 25 | | (h) With respect to mortgaged real estate containing 5 or | 26 | | more dwelling units, the order confirming the sale shall also |
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| 1 | | provide that (i) the mortgagor shall transfer to the purchaser | 2 | | the security deposits, if any, that the mortgagor received to | 3 | | secure payment of rent or to compensate for damage to the | 4 | | mortgaged real estate from any current occupant of a dwelling | 5 | | unit of the mortgaged real estate, as well as any statutory | 6 | | interest that has not been paid to the occupant, and (ii) the | 7 | | mortgagor shall provide an accounting of the security deposits | 8 | | that are transferred, including the name and address of each | 9 | | occupant for whom the mortgagor holds the deposit and the | 10 | | amount of the deposit and any statutory interest. | 11 | | (Source: P.A. 96-265, eff. 8-11-09; 96-856, eff. 3-1-10; | 12 | | 96-1245, eff. 7-23-10; 97-333, eff. 8-12-11; 97-575, eff. | 13 | | 8-26-11; 97-1159, eff. 1-29-13.) | 14 | | (735 ILCS 5/15-1508.5) | 15 | | Sec. 15-1508.5. Notice by holder or purchaser to known | 16 | | occupants of dwelling units of mortgaged real estate. | 17 | | (a) The holder of the certificate of sale or deed issued | 18 | | pursuant to that certificate or, if no certificate or deed was | 19 | | issued, the purchaser, shall: | 20 | | (1) following the judicial sale under Section 15-1507, | 21 | | but no later than 21 days after the confirmation of sale | 22 | | under Section 15-1508, make a good faith effort to | 23 | | ascertain the identities and addresses of all occupants of | 24 | | dwelling units of the mortgaged real estate; and | 25 | | (2) following the order confirming sale under Section |
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| 1 | | 15-1508, but no later than 21 days after the order | 2 | | confirming sale, notify all known occupants of dwelling | 3 | | units of the mortgaged real estate that the holder or | 4 | | purchaser has acquired the mortgaged real estate. The | 5 | | notice shall be in writing and shall: | 6 | | (i) identify the occupant being served by the name | 7 | | known to the holder or purchaser; | 8 | | (ii) inform the occupant that the mortgaged real | 9 | | estate at which the dwelling unit is located is the | 10 | | subject of a foreclosure and that control of the | 11 | | mortgaged real estate has changed; | 12 | | (iii) provide the name, address, and telephone | 13 | | number of an individual or entity whom the occupants | 14 | | may contact with concerns about the mortgaged real | 15 | | estate or to request repairs of that property; | 16 | | (iv) include the following language, or language | 17 | | that is substantially similar:
"This is NOT a notice to | 18 | | vacate the premises. You may wish to contact a lawyer | 19 | | or your local legal aid or housing counseling agency to | 20 | | discuss any rights that you may have."; and | 21 | | (v) include the name of the case, the case number, | 22 | | and the court where the order confirming the sale has | 23 | | been entered ; and . | 24 | | (vi) provide instructions on the method of payment | 25 | | of future rent, if applicable. | 26 | | (b) The written notice required by subsection (a) of this |
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| 1 | | Section shall be served by delivering a copy thereof to the | 2 | | known occupant, or by leaving the same with some person of the | 3 | | age of 13 years or upwards who is residing on or in possession | 4 | | of the premises, or by sending a copy of the notice to the | 5 | | known occupant by first-class mail, addressed to the occupant | 6 | | by the name known to the holder or purchaser. | 7 | | (c) In the event that the holder or purchaser ascertains | 8 | | the identity and address of an occupant of a dwelling unit of | 9 | | the mortgaged real estate more than 21 days after the | 10 | | confirmation of sale under Section 15-1508, the holder or | 11 | | purchaser shall provide the notice required by subparagraph (2) | 12 | | of subsection (a) within 7 days of ascertaining the identity | 13 | | and address of the occupant. | 14 | | (d)(i) A holder or purchaser who fails to comply with | 15 | | subsections (a), (b), and (c) may not collect any rent due and | 16 | | owing from a known occupant, or terminate a known occupant's | 17 | | tenancy for non-payment of such rent, until the holder or | 18 | | purchaser has served the notice described in paragraph (2) of | 19 | | subsection (a) of this Section upon the known occupant. After | 20 | | providing such notice, the holder or purchaser may collect any | 21 | | and all rent accruing after service of the notice otherwise due | 22 | | and owing the holder or purchaser from the known occupant and | 23 | | may terminate the known occupant's tenancy for non-payment of | 24 | | such rent if the holder or purchaser otherwise has such right | 25 | | to terminate. | 26 | | (ii) An occupant who previously paid rent for the current |
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| 1 | | rental period to the mortgagor, or other entity with the | 2 | | authority to operate, manage, and conserve the mortgaged real | 3 | | estate at the time of payment, shall not be held liable for | 4 | | that rent by the holder or purchaser, and the occupant's | 5 | | tenancy shall not be terminated for non-payment of rent for | 6 | | that rental period. | 7 | | (e) Within 21 days of the confirmation of sale under | 8 | | Section 15-1508, the holder or purchaser shall post a written | 9 | | notice on the primary entrance of each dwelling unit subject to | 10 | | the foreclosure action. This notice shall: | 11 | | (i) inform occupant that the dwelling unit is the | 12 | | subject of a foreclosure action and that control of the | 13 | | mortgaged real estate has changed; | 14 | | (ii) include the following language: "This is NOT a | 15 | | notice to vacate the premises."; and | 16 | | (iii) provide the name, address, and telephone number | 17 | | of the individual or entity whom occupants may contact with | 18 | | concerns about the mortgaged real estate or to request | 19 | | repairs of the property ; and . | 20 | | (iv) provide instructions on the method of payment of | 21 | | future rent, if applicable. | 22 | | (f)(i) The provisions of subsection (d) of this Section | 23 | | shall be the exclusive remedy for the failure of a holder or | 24 | | purchaser to provide notice to a known occupant under this | 25 | | Section. | 26 | | (ii) This Section shall not abrogate any right that a |
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| 1 | | holder or purchaser may have to possession of the mortgaged | 2 | | real estate and to maintain a proceeding against an occupant of | 3 | | a dwelling unit for possession under Article 9 of this Code or | 4 | | subsection (h) of Section 15-1701. | 5 | | (iii) In the event that the holder or purchaser is a | 6 | | mortgagee in possession of the mortgaged real estate pursuant | 7 | | to Section 15-1703 at the time of the confirmation of sale and | 8 | | has complied with requirements of subsection (a-5) of Section | 9 | | 15-1703, the holder or purchaser is excused from the | 10 | | requirements of subsections (a) and (e) of this Section. | 11 | | (iv) A holder or purchaser is not required to provide the | 12 | | notice required by this Section to a mortgagor or party against | 13 | | whom an order of possession has been entered authorizing the | 14 | | removal of the mortgagor or party pursuant to subsection (g) of | 15 | | Section 15-1508.
| 16 | | (Source: P.A. 96-111, eff. 10-29-09.)
| 17 | | (735 ILCS 5/15-1701) (from Ch. 110, par. 15-1701)
| 18 | | Sec. 15-1701. Right to possession.
| 19 | | (a) General. The provisions of
this Article shall govern | 20 | | the right to possession of the mortgaged real
estate during | 21 | | foreclosure. Possession under this Article includes physical
| 22 | | possession of the mortgaged real estate to the same extent to | 23 | | which the
mortgagor, absent the foreclosure, would have been | 24 | | entitled to physical
possession. For the purposes of Part 17, | 25 | | real estate is residential real estate
only if it is |
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| 1 | | residential real estate at the time the foreclosure is | 2 | | commenced.
| 3 | | (b) Pre-Judgment. Prior to the entry of a judgment of | 4 | | foreclosure:
| 5 | | (1) In the case of residential real estate, the | 6 | | mortgagor shall be
entitled to possession of the real | 7 | | estate except if (i) the mortgagee shall
object and show | 8 | | good cause, (ii) the mortgagee is so authorized by the | 9 | | terms of
the mortgage or other written instrument, and | 10 | | (iii) the court is satisfied that
there is a reasonable | 11 | | probability that the mortgagee will prevail on a final
| 12 | | hearing of the cause, the court shall upon request place | 13 | | the mortgagee in
possession. If the residential real estate | 14 | | consists of more than one dwelling
unit, then for the | 15 | | purpose of this Part residential real estate shall mean | 16 | | only
that dwelling unit or units occupied by persons | 17 | | described in clauses (i), (ii)
and (iii) of Section | 18 | | 15-1219.
| 19 | | (2) In all other cases, if (i) the mortgagee is so | 20 | | authorized by the
terms of the mortgage or other written | 21 | | instrument, and (ii) the court is
satisfied that there is a | 22 | | reasonable probability that the mortgagee will
prevail on a | 23 | | final hearing of the cause, the mortgagee shall
upon | 24 | | request be placed in possession of the real estate, except | 25 | | that if the
mortgagor shall object and show good cause, the | 26 | | court shall allow the
mortgagor to remain in possession.
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| 1 | | (c) Judgment Through 30 Days After Sale Confirmation. After | 2 | | the entry
of a judgment of foreclosure and through the 30th day | 3 | | after a foreclosure
sale is confirmed:
| 4 | | (1) Subsection (b) of Section 15-1701 shall be | 5 | | applicable, regardless of
the provisions of the mortgage or | 6 | | other instrument, except that after a
sale pursuant to the | 7 | | judgment the holder of the certificate of sale
(or, if | 8 | | none, the purchaser at the sale) shall have the mortgagee's | 9 | | right to be
placed in possession, with all rights and | 10 | | duties of a mortgagee in possession
under this Article.
| 11 | | (2) Notwithstanding paragraph (1) of subsection (b) | 12 | | and paragraph (1) of
subsection (c) of Section 15-1701, | 13 | | upon request of the mortgagee, a mortgagor
of residential | 14 | | real estate shall not be allowed to remain in possession | 15 | | between
the expiration of the redemption period and through | 16 | | the 30th day after sale
confirmation unless (i) the | 17 | | mortgagor pays to the mortgagee or such holder or
| 18 | | purchaser, whichever is applicable, monthly the lesser of | 19 | | the interest due
under the mortgage calculated at the | 20 | | mortgage rate of interest applicable as if
no default had | 21 | | occurred or the fair rental value of the real estate, or | 22 | | (ii)
the mortgagor otherwise shows good cause. Any amounts | 23 | | paid by the mortgagor
pursuant to this subsection shall be | 24 | | credited against the amounts due from the
mortgagor.
| 25 | | (d) After 30 Days After Sale Confirmation. The holder of
| 26 | | the certificate of sale or deed issued pursuant to that |
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| 1 | | certificate or, if
no certificate or deed was issued, the | 2 | | purchaser, except to the extent the
holder or purchaser may | 3 | | consent otherwise, shall be entitled to possession of
the | 4 | | mortgaged real estate, as of the date 30 days after the order | 5 | | confirming
the sale is entered, against those parties to the | 6 | | foreclosure whose interests
the court has ordered terminated, | 7 | | without further notice to any party, further
order of the | 8 | | court, or resort to proceedings under any other statute other | 9 | | than
this Article.
This right to possession shall be limited by | 10 | | the provisions
governing entering and enforcing orders of | 11 | | possession under subsection (g) of
Section
15-1508.
If the | 12 | | holder or purchaser determines that there are occupants
of the | 13 | | mortgaged real estate who have not been made parties to the | 14 | | foreclosure
and had their interests terminated therein, the | 15 | | holder or purchaser may bring a
proceeding under subsection (h) | 16 | | of this Section , if applicable, or under Article 9 of this Code
| 17 | | to terminate the rights of possession of any such occupants. | 18 | | The holder or
purchaser shall not be entitled to proceed | 19 | | against any such occupant under
Article 9 of this Code until | 20 | | after 30 days after the order confirming the sale
is entered.
| 21 | | (e) Termination of Leases. A lease of all or any part of | 22 | | the mortgaged
real estate shall not be terminated automatically | 23 | | solely by virtue of the entry
into possession by (i) a | 24 | | mortgagee or receiver prior to the entry of an order
confirming | 25 | | the sale, (ii) the holder of the certificate of sale, (iii) the
| 26 | | holder of the deed issued pursuant to that certificate, or (iv) |
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| 1 | | if no
certificate or deed was issued, the purchaser at the | 2 | | sale.
| 3 | | (f) Other Statutes; Instruments. The provisions of this | 4 | | Article
providing for possession of mortgaged real estate shall | 5 | | supersede any other
inconsistent statutory provisions. In | 6 | | particular, and without limitation,
whenever a receiver is | 7 | | sought to be appointed in any action in which a
foreclosure is | 8 | | also pending, a receiver shall be appointed only in
accordance | 9 | | with this Article. Except as may be authorized by this Article,
| 10 | | no mortgage or other instrument may modify or supersede the | 11 | | provisions of this
Article.
| 12 | | (g) Certain Leases. Leases of the mortgaged real estate | 13 | | entered into by
a mortgagee in possession or a receiver and | 14 | | approved by the court in a
foreclosure shall be binding on all | 15 | | parties, including the mortgagor after
redemption, the | 16 | | purchaser at a sale pursuant to a judgment of foreclosure
and | 17 | | any person acquiring an interest in the mortgaged real estate | 18 | | after
entry of a judgment of foreclosure in accordance with | 19 | | Sections 15-1402 and
15-1403.
| 20 | | (h) Proceedings Against Certain Occupants.
| 21 | | (1) The mortgagee-in-possession of the mortgaged real | 22 | | estate under Section
15-1703, a receiver appointed under | 23 | | Section 15-1704, a holder of the
certificate of sale or | 24 | | deed, or the purchaser may, at any time during the
pendency | 25 | | of the foreclosure and up to 90 days after the date of the | 26 | | order
confirming the sale,
file a supplemental petition for |
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| 1 | | possession against a person not personally
named as a party
| 2 | | to the foreclosure. The supplemental petition for | 3 | | possession shall name each such
occupant against whom | 4 | | possession is sought and state the facts upon which the
| 5 | | claim for relief is premised. This subsection (h) does not | 6 | | apply to any occupant of a dwelling unit of the mortgaged | 7 | | real estate who has a lease or tenancy resulting from an | 8 | | arm's length transaction and who is not the mortgagor.
| 9 | | (2) The petitioner shall serve upon each named occupant | 10 | | the petition,
a notice of hearing on the petition, and, if | 11 | | any, a copy of the certificate of
sale or deed. The | 12 | | proceeding for the termination of such occupant's | 13 | | possessory
interest, including service of the notice of the | 14 | | hearing and the petition,
shall in all respects comport | 15 | | with the requirements of Article 9 of this Code,
except as | 16 | | otherwise specified in this Section. The hearing shall be | 17 | | no less
than 21 days from the date of service of the | 18 | | notice.
| 19 | | (3) The supplemental petition shall be heard as part of | 20 | | the foreclosure
proceeding and without the payment of | 21 | | additional filing fees. An order for
possession obtained | 22 | | under this Section shall name each occupant whose interest
| 23 | | has been terminated, shall recite that it is only effective | 24 | | as to the occupant
so named and those holding under them, | 25 | | and shall be enforceable for no more
than 120 days after | 26 | | its entry, except that the 120-day period may be extended |
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| 1 | | to
the extent and in the manner provided in Section 9-117 | 2 | | of Article 9 and except as provided in item (4) of this | 3 | | subsection (h). | 4 | | (4) In a case of foreclosure where the occupant is | 5 | | current on his or her rent, or where timely written notice | 6 | | of to whom and where the rent is to be paid has not been | 7 | | provided to the occupant, or where the occupant has made | 8 | | good-faith efforts to make rental payments in order to keep | 9 | | current, any order of possession must allow the occupant to | 10 | | retain possession of the property covered in his or her | 11 | | rental agreement (i) for 120 days following the notice of | 12 | | the hearing on the supplemental petition that has been | 13 | | properly served upon the occupant, or (ii) through the | 14 | | duration of his or her lease, whichever is shorter, | 15 | | provided that if the duration of his or her lease is less | 16 | | than 30 days from the date of the order, the order shall | 17 | | allow the occupant to retain possession for 30 days from | 18 | | the date of the order. A mortgagee in possession, receiver, | 19 | | holder of a certificate of sale or deed, or purchaser at | 20 | | the judicial sale, who asserts that the occupant is not | 21 | | current in rent, shall file an affidavit to that effect in | 22 | | the supplemental petition proceeding. If the occupant has | 23 | | been given timely written notice of to whom and where the | 24 | | rent is to be paid, this item (4) shall only apply if the | 25 | | occupant continues to pay his or her rent in full during | 26 | | the 120-day period or has made good-faith efforts to pay |
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| 1 | | the rent in full during that period.
No | 2 | | mortgagee-in-possession, receiver or holder of a | 3 | | certificate of sale or deed, or purchaser who fails to file | 4 | | a supplemental petition under this subsection during the | 5 | | pendency of a mortgage foreclosure shall file a forcible | 6 | | entry and detainer action against an occupant of the | 7 | | mortgaged real estate until 90 days after a notice of | 8 | | intent to file such action has been properly served upon | 9 | | the occupant. | 10 | | (5) The court records relating to a supplemental | 11 | | petition for possession filed under this subsection (h) | 12 | | against an occupant who is entitled to notice under item | 13 | | (4) of this subsection (h), or relating to a forcible entry | 14 | | and detainer action brought against an occupant who would | 15 | | have lawful possession of the premises but for the | 16 | | foreclosure of a mortgage on the property, shall be ordered | 17 | | sealed and shall not be disclosed to any person, other than | 18 | | a law enforcement officer or any other representative of a | 19 | | governmental entity, except upon further order of the | 20 | | court.
| 21 | | (i) Occupants of Dwelling Units. | 22 | | (1) The holder of the certificate of sale, the holder | 23 | | of the deed issued pursuant to that certificate, or if no | 24 | | certificate or deed was issued, the purchaser at the sale | 25 | | shall: (i) assume the lease or tenancy of the mortgaged | 26 | | real estate resulting from an arm's length transaction |
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| 1 | | entered into prior to the confirmation of sale under | 2 | | Section 15-1508 of this Code; (ii) assume any federal, | 3 | | state, or local housing subsidy contract for the dwelling | 4 | | unit for the duration of the contract or the assumed lease, | 5 | | whichever is shorter; (iii) assume his or her interest in | 6 | | the mortgaged real estate subject to the rights of any | 7 | | occupant; and (iv) not terminate the occupancy or any | 8 | | occupant's tenancy except pursuant to Article 9 of this | 9 | | Code. | 10 | | (2) A receiver, mortgagee, or holder of the certificate | 11 | | of sale, the holder of the deed issued pursuant to that | 12 | | certificate, or if no certificate or deed was issued, the | 13 | | purchaser at the sale who offers any money or other | 14 | | valuable consideration to an occupant of a dwelling unit as | 15 | | an incentive to vacate the premises shall tender the offer | 16 | | in writing along with a notice in the manner set forth in | 17 | | paragraph (3) of this subsection (i). The offer shall: (i) | 18 | | offer an amount that is at least either 3 times the | 19 | | security deposit and interest that would be due to the | 20 | | occupant under State or local law upon the termination of | 21 | | the tenancy, or 3 months' rent, whichever is greater; (ii) | 22 | | not require an occupant to vacate the premises earlier than | 23 | | 14 days after acceptance of the offer; (iii) not require | 24 | | the occupant to perform any other obligation that is not | 25 | | already required under the law or any lease or tenancy in | 26 | | existence prior to the offer; (iv) not demand the waiver or |
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| 1 | | forfeiture of any other rights or remedies the occupant may | 2 | | have under the law; and (v) not misrepresent the occupant's | 3 | | right to continued possession of the dwelling unit. | 4 | | (3) A notice accompanying an offer tendered under | 5 | | paragraph (2) of this subsection shall be headed in bold | 6 | | 14-point type "CASH-FOR-KEYS OFFER", and shall state the | 7 | | following in 14-point type: "THIS IS AN OFFER FOR A | 8 | | MONETARY PAYMENT IN EXCHANGE FOR VACATING THE PREMISES. | 9 | | THIS IS NOT A DEMAND TO VACATE, AND YOU DO NOT HAVE TO | 10 | | ACCEPT THESE TERMS. You cannot be asked to vacate sooner | 11 | | than 14 days from the date you accept any offer, and you | 12 | | cannot be asked to do more than your lease or tenancy | 13 | | already requires. If you choose not to accept this offer, | 14 | | only a judge can end your lease or tenancy. You may wish to | 15 | | contact a lawyer or your local legal aid agency to discuss | 16 | | any rights that you may have." | 17 | | (4) A person whose rights have been violated under this | 18 | | subsection may bring an action seeking: (i) all equitable | 19 | | and legal relief, including punitive damages; (ii) an | 20 | | amount that is the equivalent of 3 months' rent at the | 21 | | subject property under any tenancy or lease that was | 22 | | entered into prior to the confirmation of sale in addition | 23 | | to $1000 per violation; and (iii) reasonable attorney's | 24 | | fees and costs. | 25 | | (5) This subsection does not apply to the mortgagor or | 26 | | other person whose possessory interest in the property is |
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| 1 | | terminated under Section 15-1508 of this Article. | 2 | | (6) Nothing in this subsection shall be interpreted to | 3 | | limit any code or ordinance of any unit of local government | 4 | | that provides greater or additional protections to | 5 | | occupants. | 6 | | (Source: P.A. 95-262, eff. 1-1-08; 95-933, eff. 8-26-08; 96-60, | 7 | | eff. 7-23-09; 96-111, eff. 10-29-09; 96-1000, eff. 7-2-10.)
| 8 | | (735 ILCS 5/15-1703) (from Ch. 110, par. 15-1703)
| 9 | | Sec. 15-1703. Mortgagee in Possession. | 10 | | (a) Powers and Duties. A mortgagee
placed in possession of | 11 | | the real estate pursuant to Section 15-1701 or Section
15-1702 | 12 | | shall have:
| 13 | | (1) such power and authority with respect to the real | 14 | | estate and other
property subject to the mortgage, | 15 | | including the right to receive the rents,
issues and | 16 | | profits thereof, as may have been conferred upon the | 17 | | mortgagee
by the terms of the mortgage or other written | 18 | | instrument authorizing the
taking of possession;
| 19 | | (2) all other rights and privileges of a mortgagee in | 20 | | possession under
law not inconsistent herewith; and
| 21 | | (3) the same powers, duties and liabilities as a | 22 | | receiver appointed for
the real estate in accordance with | 23 | | this Article. If an order placing a
mortgagee in possession | 24 | | is modified, revoked or set aside, the mortgagee
shall not | 25 | | be liable for any damages to the extent such damages arise
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| 1 | | solely out of the fact that the mortgagor was removed from | 2 | | possession or
that the mortgagee was placed in possession.
| 3 | | (a-5) Notice to occupants. | 4 | | (1) Following the order placing the mortgagee in | 5 | | possession of the mortgaged real estate, but no later than | 6 | | 21 days after the entry of such order, the mortgagee in | 7 | | possession shall make a good faith effort to ascertain the | 8 | | identities and addresses of all occupants of dwelling units | 9 | | of the mortgaged real estate. | 10 | | (2) Following the order placing the mortgagee in | 11 | | possession of the mortgaged real estate, but no later than | 12 | | 21 days after the entry of such order, the mortgagee in | 13 | | possession shall notify all known occupants of dwelling | 14 | | units of the mortgaged real estate that the mortgagee has | 15 | | taken possession of the mortgaged real estate. The notice | 16 | | shall be in writing and shall: | 17 | | (i) identify the occupant being served by the name | 18 | | known to the mortgagee in possession; | 19 | | (ii) inform the occupant that the mortgaged real | 20 | | estate at which the dwelling unit is located is the | 21 | | subject of a foreclosure action and that control of the | 22 | | mortgaged real estate has changed; | 23 | | (iii) provide the name, address, and telephone | 24 | | number of the individual or entity whom occupants may | 25 | | contact with concerns about the mortgaged real estate | 26 | | or to request repairs of that property; |
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| 1 | | (iv) include the following language, or language | 2 | | that is substantially similar: "This is NOT a notice to | 3 | | vacate the premises. You may wish to contact a lawyer | 4 | | or your local legal aid or housing counseling agency to | 5 | | discuss any rights that you may have."; and | 6 | | (v) include the name of the case, the case number, | 7 | | and the court where the foreclosure action is pending ; | 8 | | and . | 9 | | (vi) provide instructions on the method of payment | 10 | | of future rent, if applicable. | 11 | | (3) The written notice required by item (2) of this | 12 | | subsection (a-5) shall be served by delivering a copy | 13 | | thereof to the known occupant, or by leaving the same with | 14 | | some person of the age of 13 years or upwards, who is | 15 | | residing on or in possession of the premises; or by sending | 16 | | a copy of the notice to the known occupant by first-class | 17 | | mail, addressed to the occupant by the name known to the | 18 | | mortgagee in possession. | 19 | | (4) In the event that a mortgagee in possession | 20 | | ascertains the identity and address of an occupant of a | 21 | | dwelling unit of the mortgaged real estate more than 21 | 22 | | days after being placed in possession of the mortgaged real | 23 | | estate pursuant to Section 15-1703, the mortgagee in | 24 | | possession shall provide the notice required by item (2) of | 25 | | this subsection (a-5) within 7 days of ascertaining the | 26 | | identity and address of the occupant. |
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| 1 | | (5)(i) A mortgagee in possession who fails to comply | 2 | | with items (1), (2), (3), and (4) of this subsection (a-5) | 3 | | may not collect any rent due and owing from a known | 4 | | occupant, or terminate a known occupant's tenancy for | 5 | | non-payment of such rent, until the mortgagee in possession | 6 | | has served the notice described in item (2) of this | 7 | | subsection (a-5) upon the known occupant. After providing | 8 | | such notice, the mortgagee in possession may collect any | 9 | | and all rent accruing after service of the notice otherwise | 10 | | due and owing the mortgagee in possession from the known | 11 | | occupant and may terminate the known occupant's tenancy for | 12 | | non-payment of such rent if the mortgagee in possession | 13 | | otherwise has such right to terminate. | 14 | | (ii) An occupant who previously paid rent for the | 15 | | current rental period to the mortgagor, or other entity | 16 | | with the authority to operate, manage, and conserve the | 17 | | mortgaged real estate at the time of payment, shall not be | 18 | | held liable for that rent by the mortgagee in possession, | 19 | | and the occupant's tenancy shall not be terminated for | 20 | | non-payment of rent for that rental period. | 21 | | (6) Within 21 days of the order placing the mortgagee | 22 | | in possession of the mortgaged real estate, the mortgagee | 23 | | in possession shall post a written notice on the primary | 24 | | entrance of each dwelling unit subject to the foreclosure | 25 | | action that informs the occupants that the mortgagee in | 26 | | possession is now operating and managing the mortgaged real |
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| 1 | | estate. This notice shall: | 2 | | (i) inform occupant that the dwelling unit is the | 3 | | subject of a foreclosure action and that control of the | 4 | | mortgaged real estate has changed; | 5 | | (ii) include the following language: "This is NOT a | 6 | | notice to vacate the premises."; and | 7 | | (iii) provide the name, address, and telephone | 8 | | number of the individual or entity whom occupants may | 9 | | contact with concerns about the mortgaged real estate | 10 | | or to request repairs of the property ; and . | 11 | | (iv) provide instructions on the method of payment | 12 | | of future rent, if applicable. | 13 | | (7)(i) The provisions of item (5) of this subsection | 14 | | (a-5) shall be the exclusive remedy for the failure of a | 15 | | mortgagee in possession to provide notice to a known | 16 | | occupant under this Section. | 17 | | (ii) This Section shall not abrogate any right that a | 18 | | mortgagee in possession may have to possession of the | 19 | | mortgaged real estate and to maintain a proceeding against | 20 | | an occupant of a dwelling unit for possession under Article | 21 | | 9 of this Code or subsection (h) of Section 15-1701. | 22 | | (b) Fees and Expenses. A mortgagee in possession shall not | 23 | | be entitled
to any fees for so acting, but shall be entitled to | 24 | | reimbursement for
reasonable costs, expenses and third party | 25 | | management fees incurred in
connection with such possession.
| 26 | | (Source: P.A. 96-111, eff. 10-29-09.)
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| 1 | | (735 ILCS 5/15-1704) (from Ch. 110, par. 15-1704)
| 2 | | Sec. 15-1704. Receivers. | 3 | | (a) Receiver. Notwithstanding the
provisions of | 4 | | subsections (b), (c) and (d) of Section 15-1701, and except
as | 5 | | provided in Section 15-1702, upon request of any party and a | 6 | | showing of
good cause, the court shall appoint a receiver for | 7 | | the mortgaged real estate.
| 8 | | (b) Powers. A receiver appointed pursuant to this Article | 9 | | shall have
possession of the mortgaged real estate and other | 10 | | property subject to the
mortgage during the foreclosure, shall | 11 | | have full power and authority to
operate, manage and conserve | 12 | | such property, and shall have all the usual
powers of receivers | 13 | | in like cases. Without limiting the foregoing, a
receiver shall | 14 | | have the power and authority to:
| 15 | | (1) secure tenants and execute leases for the real | 16 | | estate,
the duration and terms of which are
reasonable and | 17 | | customary for the type of use involved, and such leases
| 18 | | shall have the same priority as if made by the owner of the | 19 | | real estate;
but, unless approved by the Court, the | 20 | | receiver shall not
execute oil, gas or other mineral | 21 | | leases, or (even if otherwise allowed by
law) leases | 22 | | extending beyond the time of the receiver's possession;
| 23 | | provided, however, with respect to residential real estate | 24 | | leased by the
receiver, nothing in this Section shall | 25 | | affect the legal rights of any lessee
with respect to the |
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| 1 | | safety and habitability of the residential real estate;
| 2 | | (2) collect the rents, issues and profits from the | 3 | | mortgaged real estate;
| 4 | | (3) insure the mortgaged real estate against loss by | 5 | | fire or other casualty;
| 6 | | (4) employ counsel, custodians, janitors and other | 7 | | help; and
| 8 | | (5) pay taxes which may have been or may be levied | 9 | | against the mortgaged real estate.
| 10 | | (c) Duties. A receiver appointed pursuant to this Article | 11 | | must manage
the mortgaged real estate as would a prudent | 12 | | person, taking into account
the effect of the receiver's | 13 | | management on the interest of the mortgagor.
A receiver may, | 14 | | without an order of the court, delegate managerial
functions to | 15 | | a person in the business of managing real estate of the kind
| 16 | | involved who is financially responsible, not related to the | 17 | | mortgagee or
receiver and prudently selected. However, the | 18 | | receiver
shall remain responsible to the mortgagor or other
| 19 | | persons for the acts or omissions of such management agent. | 20 | | When fees are
paid to such a management agent, the receiver's | 21 | | fees may be adjusted to the
extent the court deems appropriate. | 22 | | In managing the mortgaged real estate
and other property | 23 | | subject to the mortgage,
a receiver or receiver's delegate, to | 24 | | the extent the receiver receives
sufficient receipts from the | 25 | | mortgaged real estate, such other property or
other sources, | 26 | | except to the extent ordered otherwise by the court:
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| 1 | | (1) shall maintain the existing casualty and liability | 2 | | insurance
required in accordance with the mortgage or | 3 | | applicable to the real estate
and other property subject to | 4 | | the mortgage at the time the receiver took possession;
| 5 | | (2) shall use reasonable efforts to maintain the real | 6 | | estate and other
property subject to the mortgage in at | 7 | | least as good condition as existed at
the time the receiver | 8 | | took possession, excepting reasonable wear and tear
and | 9 | | damage by any casualty;
| 10 | | (2.5) shall accept all rental payments from an occupant | 11 | | of the mortgaged property, and any payments from a third | 12 | | party or any rental assistance program in support of an | 13 | | occupant's housing; | 14 | | (3) shall apply receipts to payment of ordinary | 15 | | operating expenses,
including royalties, rents and other | 16 | | expenses of management;
| 17 | | (4) shall pay any shared or common expense assessments | 18 | | due to any
association of owners of interests in real | 19 | | estate to the extent that such
assessments are or may | 20 | | become a lien against the mortgaged real estate;
| 21 | | (5) may pay the amounts due under any mortgage if the | 22 | | mortgagee thereof
is not a party in the foreclosure;
| 23 | | (6) may carry such additional casualty and liability | 24 | | insurance as is
reasonably available and reasonable as to | 25 | | amounts and risks covered;
| 26 | | (7) may make other repairs and improvements necessary |
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| 1 | | to comply with
building, housing, and other similar codes | 2 | | or with existing contractual
obligations affecting the | 3 | | mortgaged real estate;
| 4 | | (8) may hold receipts as reserves reasonably required | 5 | | for the foregoing purposes; and
| 6 | | (9) may take such other actions as may be reasonably | 7 | | necessary to
conserve the mortgaged real estate and other | 8 | | property subject to the
mortgage, or as otherwise | 9 | | authorized by the court.
| 10 | | (d) Allocation of Receipts. Receipts received from | 11 | | operation of the
real estate and other property subject to the | 12 | | mortgage by the receiver
shall be applied in the following | 13 | | order of priority.
| 14 | | (1) to reimbursement of the receiver for all reasonable | 15 | | costs and
expenses incurred by the receiver or the | 16 | | receiver's delegates;
| 17 | | (2) to payment of insurance premiums authorized in | 18 | | paragraph (1) of
subsection (c) of Section 15-1704;
| 19 | | (3) to payment of the receiver's delegates of any | 20 | | reasonable management
fees for managing real estate of the | 21 | | type involved;
| 22 | | (4) to payment of receiver's fees allowed by the court;
| 23 | | (5) to payment of expenses authorized in paragraphs | 24 | | (2), (3) and (4) of
subsection (c) of Section 15-1704;
| 25 | | (6) to payment of amounts authorized in paragraph (5) | 26 | | of subsection (c)
of Section 15-1704;
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| 1 | | (7) to payment of expenses authorized in paragraphs (6) | 2 | | and (7) of
subsection (c) of Section 15-1704; and
| 3 | | (8) the balance, if any, shall be held or disbursed as | 4 | | ordered by the court.
| 5 | | (e) Non-Liability for Allocations. A receiver shall in no | 6 | | event be
liable to any person for the allocation of, or failure | 7 | | to allocate,
receipts to possible expenditures within the same | 8 | | priority category.
| 9 | | (f) Notice to occupants. | 10 | | (1) Following an order appointing a receiver pursuant | 11 | | to Section 15-1704, but no later than 21 days after the | 12 | | entry of such order, the appointed receiver shall make a | 13 | | good faith effort to ascertain the identities and addresses | 14 | | of all occupants of dwelling units of the mortgaged real | 15 | | estate. | 16 | | (2) Following an order appointing a receiver pursuant | 17 | | to Section 15-1704, but no later than 21 days after the | 18 | | entry of such order, the appointed receiver shall notify | 19 | | all known occupants of dwelling units of the mortgaged real | 20 | | estate that the receiver has been appointed receiver of the | 21 | | mortgaged real estate. Such notice shall be in writing and | 22 | | shall: | 23 | | (i) identify the occupant being served by the name | 24 | | known to the receiver; | 25 | | (ii) inform the occupant that the mortgaged real | 26 | | estate at which the dwelling unit is located is the |
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| 1 | | subject of a foreclosure action and that control of the | 2 | | mortgaged real estate has changed; | 3 | | (iii) provide the name, address, and telephone | 4 | | number of the individual or entity whom occupants may | 5 | | contact with concerns about the mortgaged real estate | 6 | | or to request repairs of that property; | 7 | | (iv) include the following language, or language | 8 | | that is substantially similar:
"This is NOT a notice to | 9 | | vacate the premises. You may wish to contact a lawyer | 10 | | or your local legal aid or housing counseling agency to | 11 | | discuss any rights that you may have."; and | 12 | | (v) include the name of the case, the case number, | 13 | | and the court where the foreclosure action is pending ; | 14 | | and . | 15 | | (vi) provide instructions on the method of payment | 16 | | of future rent, if applicable. | 17 | | (3) The written notice required by item (2) of this | 18 | | subsection (f) shall be served by delivering a copy thereof | 19 | | to the known occupant, or by leaving the same with some | 20 | | person of the age of 13 years or upwards, who is residing | 21 | | on or in possession of the premises; or by sending a copy | 22 | | of the notice to the known occupant by first-class mail, | 23 | | addressed to the occupant by the name known to the | 24 | | receiver. | 25 | | (4) In the event that a receiver ascertains the | 26 | | identity and address of an occupant of a dwelling unit of |
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| 1 | | the mortgaged real estate more than 21 days after | 2 | | appointment pursuant to Section 15-1704, the receiver | 3 | | shall provide the notice required by item (2) of this | 4 | | subsection (f) within 7 days of ascertaining the identity | 5 | | and address of the occupant. | 6 | | (5)(i) A receiver who fails to comply with items (1), | 7 | | (2), (3), and (4) of this subsection (f) may not collect | 8 | | any rent due and owing from a known occupant, or terminate | 9 | | a known occupant's tenancy for non-payment of such rent, | 10 | | until the receiver has served the notice described in item | 11 | | (2) of this subsection (f) upon the known occupant. After | 12 | | providing such notice, the receiver may collect any and all | 13 | | rent accruing after service of the notice otherwise due and | 14 | | owing the receiver from the known occupant and may | 15 | | terminate the known occupant's tenancy for non-payment of | 16 | | such rent if the receiver otherwise has such right to | 17 | | terminate. | 18 | | (ii) An occupant who previously paid rent for the | 19 | | current rental period to the mortgagor, or other entity | 20 | | with the authority to operate, manage, and conserve the | 21 | | mortgaged real estate at the time of payment, shall not be | 22 | | held liable for that rent by the receiver, and the | 23 | | occupant's tenancy shall not be terminated for non-payment | 24 | | of rent for that rental period. | 25 | | (6) Within 21 days of appointment, the receiver shall | 26 | | post a written notice on the primary entrance of each |
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| 1 | | dwelling unit subject to the foreclosure action that | 2 | | informs occupants that the receiver has been appointed to | 3 | | operate and manage the property. This notice shall: | 4 | | (i) inform occupant that the dwelling unit is the | 5 | | subject of a foreclosure action and that control of the | 6 | | mortgaged real estate has changed; | 7 | | (ii) include the following language: "This is NOT a | 8 | | notice to vacate the premises."; and | 9 | | (iii) provide the name, address, and telephone | 10 | | number of the individual or entity whom occupants may | 11 | | contact with concerns about the mortgaged real estate | 12 | | or to request repairs of the property ; and . | 13 | | (iv) provide instructions on the method of payment | 14 | | of future rent, if applicable. | 15 | | (7)(i) The provisions of item (5) of this subsection | 16 | | (f) shall be the exclusive remedy for the failure of a | 17 | | receiver to provide notice to a known occupant under this | 18 | | Section. | 19 | | (ii) This Section shall not abrogate any right that a | 20 | | receiver may have to possession of the mortgaged real | 21 | | estate and to maintain a proceeding against an occupant of | 22 | | a dwelling unit for possession under Article 9 of this Code | 23 | | or subsection (h) of Section 15-1701. | 24 | | (g) Increase of rents. Notwithstanding any other provision | 25 | | of this Article, a receiver shall not charge an occupant of the | 26 | | mortgaged real estate a rental amount above that which the |
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| 1 | | occupant had been paying for use and occupancy of the mortgaged | 2 | | real estate prior to the appointment of a receiver without | 3 | | leave of court. The court may allow an increase of rent if, | 4 | | upon motion by the receiver, the court finds by a preponderance | 5 | | of the evidence, that the increase of rent is necessary to | 6 | | operate, manage, and conserve the mortgaged real estate | 7 | | pursuant to this Section. A list of the current rents for each | 8 | | unit in the mortgaged real estate, and a list of the proposed | 9 | | rent increase for each of those units, must be attached to a | 10 | | motion for a rent increase under this subsection (g). All | 11 | | occupants of the mortgaged real estate who may be affected by | 12 | | the motion for a rent increase, if not otherwise entitled to | 13 | | notice, shall be notified in writing of the nature of the | 14 | | motion, the date and time of the motion, and the court where | 15 | | the motion will be heard. Such notice shall be by personal | 16 | | service or first-class mail. In the event that the receiver and | 17 | | an occupant of a dwelling unit agree to a rent increase for | 18 | | that dwelling unit, the receiver is excused from the | 19 | | requirements of this subsection (g) as to that dwelling unit. | 20 | | Nothing in this subsection (g) shall alter the terms of any | 21 | | lease agreement. | 22 | | (h) Removal. The court may remove a receiver upon a showing | 23 | | of good
cause, in which case a new receiver may be appointed in | 24 | | accordance with
subsection (b) of Section 15-1702 and | 25 | | subsection (a) of Section 15-1704.
| 26 | | (Source: P.A. 96-111, eff. 10-29-09.)
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| 1 | | Section 99. Effective date. This Act takes effect upon | 2 | | becoming law.".
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