Full Text of SB2432 100th General Assembly
SB2432 100TH GENERAL ASSEMBLY |
| | 100TH GENERAL ASSEMBLY
State of Illinois
2017 and 2018 SB2432 Introduced 1/30/2018, by Sen. John G. Mulroe SYNOPSIS AS INTRODUCED: |
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735 ILCS 5/2-201 | from Ch. 110, par. 2-201 |
765 ILCS 940/50 | |
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Amends the Code of Civil Procedure. Provides that a summons that otherwise complies with Supreme Court Rules and is properly served is not invalidated and the court's jurisdiction is not affected by an error in format. Provides that a summons is not defective if the named defendant is listed on a document attached to the summons. Provides that the changes to the Code of Civil Procedure are declarative of existing law set forth by the Illinois Supreme Court in Fleshner v. Copeland, 13 Ill.2d 72 (1958). Amends the Mortgage Rescue Fraud Act. Provides that it is a violation for a distressed property consultant to, among other things, enter into, enforce, or act upon any agreement with a foreclosure defendant, whether the foreclosure is completed or otherwise, if the agreement provides for a division of proceeds between the foreclosure defendant and the distressed property consultant derived from litigation related to the foreclosure. Effective immediately.
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| | A BILL FOR |
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| 1 | | AN ACT concerning civil law.
| 2 | | Be it enacted by the People of the State of Illinois,
| 3 | | represented in the General Assembly:
| 4 | | Section 5. The Code of Civil Procedure is amended by | 5 | | changing Section 2-201 as follows:
| 6 | | (735 ILCS 5/2-201) (from Ch. 110, par. 2-201)
| 7 | | Sec. 2-201. Commencement of actions - Forms of process. | 8 | | (a) Every action, unless otherwise expressly provided by | 9 | | statute,
shall be commenced by the filing of a complaint. The | 10 | | clerk shall issue
summons upon request of the plaintiff. The | 11 | | form and substance of the
summons, and of all other process, | 12 | | and the issuance of alias process,
and the service of copies of | 13 | | pleadings shall be according to
rules.
| 14 | | (b) One or more duplicate original summonses may be issued, | 15 | | marked
"First Duplicate," "Second Duplicate," etc., as the case | 16 | | may be,
whenever it will facilitate the service of summons in | 17 | | any one or more
counties, including the county of venue. | 18 | | (c) A summons that otherwise complies with Supreme Court | 19 | | Rules and is properly served is not invalidated and the court's | 20 | | jurisdiction is not affected by an error in format. A summons | 21 | | is not defective if the named defendant is listed on a document | 22 | | attached to the summons. This subsection is declarative of | 23 | | existing law set forth by the Illinois Supreme Court in |
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| 1 | | Fleshner v. Copeland, 13 Ill.2d 72 (1958).
| 2 | | (Source: P.A. 82-280 .)
| 3 | | Section 10. The Mortgage Rescue Fraud Act is amended by | 4 | | changing Section 50 as follows: | 5 | | (765 ILCS 940/50)
| 6 | | Sec. 50. Violations.
| 7 | | (a) It is a violation for a distressed property consultant | 8 | | to:
| 9 | | (1) claim, demand, charge, collect, or receive any | 10 | | compensation until after the distressed property | 11 | | consultant has fully performed each service the distressed | 12 | | property consultant contracted to perform or represented | 13 | | he or she would perform; | 14 | | (2) claim, demand, charge, collect, or receive any fee, | 15 | | interest, or any other compensation that does not comport | 16 | | with Section 70; | 17 | | (3) take a wage assignment, a lien of any type on real | 18 | | or personal property, or other security to secure the | 19 | | payment of compensation. Any such security is void and | 20 | | unenforceable; | 21 | | (4) receive any consideration from any third party in | 22 | | connection with services rendered to an owner unless the | 23 | | consideration is first fully disclosed to the owner; | 24 | | (5) acquire any interest, directly or indirectly, or by |
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| 1 | | means of a subsidiary or affiliate in a distressed property | 2 | | from an owner with whom the distressed property consultant | 3 | | has contracted; | 4 | | (6) take any power of attorney from an owner for any | 5 | | purpose, except to inspect documents as provided by law; or
| 6 | | (7) induce or attempt to induce an owner to enter a | 7 | | contract that does not comply in all respects with Sections | 8 | | 10 and 15 of this Act ; or . | 9 | | (8) enter into, enforce, or act upon any agreement with | 10 | | a foreclosure defendant, whether the foreclosure is | 11 | | completed or otherwise, if the agreement provides for a | 12 | | division of proceeds between the foreclosure defendant and | 13 | | the distressed property consultant derived from litigation | 14 | | related to the foreclosure. | 15 | |
(b) A distressed property purchaser, in the course of a | 16 | | distressed property conveyance, shall not: | 17 | | (1) enter into, or attempt to enter into, a distressed | 18 | | property conveyance unless the distressed property | 19 | | purchaser verifies and can demonstrate that the owner of | 20 | | the distressed property has a reasonable ability to pay for | 21 | | the subsequent conveyance of an interest back to the owner | 22 | | of the distressed property and to make monthly or any other | 23 | | required payments due prior to that time; | 24 | | (2) fail to make a payment to the owner of the | 25 | | distressed property at the time the title is conveyed so | 26 | | that the owner of the distressed property has received |
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| 1 | | consideration in an amount of at least 82% of the | 2 | | property's fair market value, or, in the alternative, fail | 3 | | to pay the owner of the distressed property no more than | 4 | | the costs necessary to extinguish all of the existing | 5 | | obligations on the distressed property, as set forth in | 6 | | subdivision (b)(10) of Section 45, provided that the | 7 | | owner's costs to repurchase the distressed property | 8 | | pursuant to the terms of the distressed property conveyance | 9 | | contract do not exceed 125% of the distressed property | 10 | | purchaser's costs to purchase the property. If an owner is | 11 | | unable to repurchase the property pursuant to the terms of | 12 | | the distressed property conveyance contract, the | 13 | | distressed property purchaser shall not fail to make a | 14 | | payment to the owner of the distressed property so that the | 15 | | owner of the distressed property has received | 16 | | consideration in an amount of at least 82% of the | 17 | | property's fair market value at the time of conveyance or | 18 | | at the expiration of the owner's option to repurchase. | 19 | | (3) enter into repurchase or lease terms as part of the | 20 | | subsequent conveyance that are unfair or commercially | 21 | | unreasonable, or engage in any other unfair conduct; | 22 | | (4) represent, directly or indirectly, that the | 23 | | distressed property purchaser is acting as an advisor or a | 24 | | consultant, or in any other manner represent that the | 25 | | distressed property purchaser is acting on behalf of the | 26 | | homeowner, or the distressed property purchaser is |
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| 1 | | assisting the owner of the distressed property to "save the | 2 | | house", "buy time", or do anything couched in substantially | 3 | | similar language; | 4 | | (5) misrepresent the distressed property purchaser's | 5 | | status as to licensure or certification; | 6 | | (6) do any of the following until after the time during | 7 | | which the owner of a distressed property may cancel the | 8 | | transaction: | 9 | | (A) accept from the owner of the distressed | 10 | | property an execution of any instrument of conveyance | 11 | | of any interest in the distressed property; | 12 | | (B) induce the owner of the distressed property to | 13 | | execute an instrument of conveyance of any interest in | 14 | | the distressed property; or
| 15 | | (C) record with the county recorder of deeds any | 16 | | document signed by the owner of the distressed | 17 | | property, including but not limited to any instrument | 18 | | of conveyance;
| 19 | | (7) fail to reconvey title to the distressed property | 20 | | when the terms of the conveyance contract have been | 21 | | fulfilled; | 22 | | (8) induce the owner of the distressed property to | 23 | | execute a quit claim deed when entering into a distressed | 24 | | property conveyance; | 25 | | (9) enter into a distressed property conveyance where | 26 | | any party to the transaction is represented by power of |
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| 1 | | attorney; | 2 | | (10) fail to extinguish all liens encumbering the | 3 | | distressed property, immediately following the conveyance | 4 | | of the distressed property, or fail to assume all liability | 5 | | with respect to the lien in foreclosure and prior liens | 6 | | that will not be extinguished by such foreclosure, which | 7 | | assumption shall be accomplished without violations of the | 8 | | terms and conditions of the lien being assumed. Nothing | 9 | | herein shall preclude a lender from enforcing any provision | 10 | | in a contract that is not otherwise prohibited by law; | 11 | | (11) fail to complete a distressed property conveyance | 12 | | before a notary in the offices of a title company licensed | 13 | | by the Department of Financial and Professional | 14 | | Regulation, before an agent of such a title company, a | 15 | | notary in the office of a bank, or a licensed attorney | 16 | | where the notary is employed; or | 17 | | (12) cause the property to be conveyed or encumbered | 18 | | without the knowledge or permission of the distressed | 19 | | property owner, or in any way frustrate the ability of the | 20 | | distressed property owner to complete the conveyance back | 21 | | to the distressed property owner. | 22 | | (c) There is a rebuttable presumption that an appraisal by | 23 | | a person licensed or certified by an agency of this State or | 24 | | the federal government is an accurate determination of the fair | 25 | | market value of the property. | 26 | | (d) "Consideration" in item (2) of subsection (b) means any |
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| 1 | | payment or thing of value provided to the owner of the | 2 | | distressed property, including reasonable costs paid to | 3 | | independent third parties necessary to complete the distressed | 4 | | property conveyance or payment of money to satisfy a debt or | 5 | | legal obligation of the owner of the distressed property. | 6 | |
"Consideration" shall not include amounts imputed as a | 7 | | downpayment or fee to the distressed property purchaser, or a | 8 | | person acting in participation with the distressed property | 9 | | purchaser. | 10 | | (e) An evaluation of "reasonable ability to pay" under | 11 | | subsection (b)(1) of this Section 50 shall include debt to | 12 | | income ratio, fair market value of the distressed property, and | 13 | | the distressed property owner's payment history. There is a | 14 | | rebuttable presumption that the distressed property purchaser | 15 | | has not verified reasonable payment ability if the distressed | 16 | | property purchaser has not obtained documents of assets, | 17 | | liabilities, and income, other than a statement by the owner of | 18 | | the distressed property.
| 19 | | (Source: P.A. 94-822, eff. 1-1-07; 95-1047, eff. 4-6-09.)
| 20 | | Section 99. Effective date. This Act takes effect upon | 21 | | becoming law.
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