Illinois General Assembly - Full Text of SB2432
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Full Text of SB2432  100th General Assembly


Sen. John G. Mulroe

Filed: 4/13/2018





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2    AMENDMENT NO. ______. Amend Senate Bill 2432 by replacing
3everything after the enacting clause with the following:
4    "Section 5. The Code of Civil Procedure is amended by
5changing Sections 2-201, 2-1401, 13-107, and 13-109 and by
6adding Sections 13-107.1 and 13-109.1 as follows:
7    (735 ILCS 5/2-201)  (from Ch. 110, par. 2-201)
8    Sec. 2-201. Commencement of actions - Forms of process.
9    (a) Every action, unless otherwise expressly provided by
10statute, shall be commenced by the filing of a complaint. The
11clerk shall issue summons upon request of the plaintiff. The
12form and substance of the summons, and of all other process,
13and the issuance of alias process, and the service of copies of
14pleadings shall be according to rules.
15    (b) One or more duplicate original summonses may be issued,
16marked "First Duplicate," "Second Duplicate," etc., as the case



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1may be, whenever it will facilitate the service of summons in
2any one or more counties, including the county of venue.
3    (c) A court's jurisdiction is not affected by a technical
4error in format of a summons if the summons has been issued by
5a clerk of the court, the person or entity to be served is
6identified as a defendant on the summons, and the summons is
7properly served. This subsection is declarative of existing
9(Source: P.A. 82-280.)
10    (735 ILCS 5/2-1401)  (from Ch. 110, par. 2-1401)
11    Sec. 2-1401. Relief from judgments.
12    (a) Relief from final orders and judgments, after 30 days
13from the entry thereof, may be had upon petition as provided in
14this Section. Writs of error coram nobis and coram vobis, bills
15of review and bills in the nature of bills of review are
16abolished. All relief heretofore obtainable and the grounds for
17such relief heretofore available, whether by any of the
18foregoing remedies or otherwise, shall be available in every
19case, by proceedings hereunder, regardless of the nature of the
20order or judgment from which relief is sought or of the
21proceedings in which it was entered. Except as provided in the
22Illinois Parentage Act of 2015, there shall be no distinction
23between actions and other proceedings, statutory or otherwise,
24as to availability of relief, grounds for relief or the relief



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1    (b) The petition must be filed in the same proceeding in
2which the order or judgment was entered but is not a
3continuation thereof. The petition must be supported by
4affidavit or other appropriate showing as to matters not of
5record. A petition to reopen a foreclosure proceeding must
6include as parties to the petition, but is not limited to, all
7parties in the original action in addition to the current
8record title holders of the property, current occupants, and
9any individual or entity that had a recorded interest in the
10property before the filing of the petition. All parties to the
11petition shall be notified as provided by rule.
12    (b-5) A movant may present a meritorious claim under this
13Section if the allegations in the petition establish each of
14the following by a preponderance of the evidence:
15        (1) the movant was convicted of a forcible felony;
16        (2) the movant's participation in the offense was
17    related to him or her previously having been a victim of
18    domestic violence as perpetrated by an intimate partner;
19        (3) no evidence of domestic violence against the movant
20    was presented at the movant's sentencing hearing;
21        (4) the movant was unaware of the mitigating nature of
22    the evidence of the domestic violence at the time of
23    sentencing and could not have learned of its significance
24    sooner through diligence; and
25        (5) the new evidence of domestic violence against the
26    movant is material and noncumulative to other evidence



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1    offered at the sentencing hearing, and is of such a
2    conclusive character that it would likely change the
3    sentence imposed by the original trial court.
4    Nothing in this subsection (b-5) shall prevent a movant
5from applying for any other relief under this Section or any
6other law otherwise available to him or her.
7    As used in this subsection (b-5):
8        "Domestic violence" means abuse as defined in Section
9    103 of the Illinois Domestic Violence Act of 1986.
10        "Forcible felony" has the meaning ascribed to the term
11    in Section 2-8 of the Criminal Code of 2012.
12        "Intimate partner" means a spouse or former spouse,
13    persons who have or allegedly have had a child in common,
14    or persons who have or have had a dating or engagement
15    relationship.
16    (c) Except as provided in Section 20b of the Adoption Act
17and Section 2-32 of the Juvenile Court Act of 1987 or in a
18petition based upon Section 116-3 of the Code of Criminal
19Procedure of 1963, the petition must be filed not later than 2
20years after the entry of the order or judgment. Time during
21which the person seeking relief is under legal disability or
22duress or the ground for relief is fraudulently concealed shall
23be excluded in computing the period of 2 years.
24    (d) The filing of a petition under this Section does not
25affect the order or judgment, or suspend its operation.
26    (e) Unless lack of jurisdiction affirmatively appears from



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1the record proper, the vacation or modification of an order or
2judgment pursuant to the provisions of this Section does not
3affect the right, title or interest in or to any real or
4personal property of any person, not a party to the original
5action, acquired for value after the entry of the order or
6judgment but before the filing of the petition, nor affect any
7right of any person not a party to the original action under
8any certificate of sale issued before the filing of the
9petition, pursuant to a sale based on the order or judgment.
10When a petition is filed pursuant to this Section to reopen a
11foreclosure proceeding, notwithstanding the provisions of
12Section 15-1701 of this Code, the purchaser or successor
13purchaser of real property subject to a foreclosure sale who
14was not a party to the mortgage foreclosure proceedings is
15entitled to remain in possession of the property until the
16foreclosure action is defeated or the previously foreclosed
17defendant redeems from the foreclosure sale if the purchaser
18has been in possession of the property for more than 6 months.
19    (f) Nothing contained in this Section affects any existing
20right to relief from a void order or judgment, or to employ any
21existing method to procure that relief.
22(Source: P.A. 99-85, eff. 1-1-16; 99-384, eff. 1-1-16; 99-642,
23eff. 7-28-16.)
24    (735 ILCS 5/13-107)  (from Ch. 110, par. 13-107)
25    Sec. 13-107. Seven years with possession and record title.



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1Except as provided in Section 13-107.1, actions Actions brought
2for the recovery of any lands, tenements or hereditaments of
3which any person may be possessed by actual residence thereon
4for 7 successive years, having a connected title, deductible of
5record, from this State or the United States, or from any
6public officer or other person authorized by the laws of this
7State to sell such land for the non-payment of taxes, or from
8any sheriff, marshal, or other person authorized to sell such
9land for the enforcement of a judgment or under any order or
10judgment of any court shall be brought within 7 years next
11after possession is taken, but when the possessor acquires such
12title after taking such possession, the limitation shall begin
13to run from the time of acquiring title.
14(Source: P.A. 82-280.)
15    (735 ILCS 5/13-107.1 new)
16    Sec. 13-107.1. Two years with possession and record title
17derived from a judicial foreclosure sale.
18    (a) Actions brought for the recovery of any lands,
19tenements, or hereditaments of which any person may be
20possessed for 2 successive years, having a connected title,
21deductible of record, as a purchaser at a judicial foreclosure
22sale, other than a mortgagee, who takes possession pursuant to
23a court order under the Illinois Mortgage Foreclosure Law, or a
24purchaser who acquires title from a mortgagee or a purchaser at
25a judicial foreclosure sale who received title and took



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1possession pursuant to a court order, shall be brought within 2
2years after possession is taken. When the purchaser acquires
3title and has taken possession, the limitation shall begin to
4run from the date a mortgagee or a purchaser at a judicial
5foreclosure sale takes possession pursuant to a court order
6under the Illinois Mortgage Foreclosure Law or Article IX of
7this Code. The vacation or modification, pursuant to the
8provisions of Section 2-1401, of an order or judgment entered
9in the judicial foreclosure does not affect the limitation in
10this Section.
11    (b) This Section applies to actions filed on or after 180
12days after the effective date of this amendatory Act of the
13100th General Assembly.
14    (735 ILCS 5/13-109)  (from Ch. 110, par. 13-109)
15    Sec. 13-109. Payment of taxes with color of title. Except
16as provided in Section 13-109.1, every Every person in the
17actual possession of lands or tenements, under claim and color
18of title, made in good faith, and who for 7 successive years
19continues in such possession, and also, during such time, pays
20all taxes legally assessed on such lands or tenements, shall be
21held and adjudged to be the legal owner of such lands or
22tenements, to the extent and according to the purport of his or
23her paper title. All persons holding under such possession, by
24purchase, legacy or descent, before such 7 years have expired,
25and who continue such possession, and continue to pay the taxes



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1as above set forth so as to complete the possession and payment
2of taxes for the term above set forth, are entitled to the
3benefit of this Section.
4(Source: P.A. 88-45.)
5    (735 ILCS 5/13-109.1 new)
6    Sec. 13-109.1. Payment of taxes with color of title derived
7from judicial foreclosure. Every person in the actual
8possession of lands or tenements, under claim and color of
9title, as a purchaser at a judicial foreclosure sale, other
10than a mortgagee, who takes possession pursuant to a court
11order under the Illinois Mortgage Foreclosure Law, or a
12purchaser who acquires title from a mortgagee or a purchaser at
13a judicial foreclosure sale who received title and took
14possession pursuant to such a court order, and who for 2
15successive years continues in possession, and also, during such
16time, pays all taxes legally assessed on the lands or
17tenements, shall be held and adjudged to be the legal owner of
18the lands or tenements, to the extent and according to the
19purport of his or her paper title. All persons holding under
20such possession, by purchase, legacy, or descent, before such 2
21years have expired, and who continue possession, and continue
22to pay the taxes as above set forth so as to complete the
23possession and payment of taxes for the term above set forth,
24are entitled to the benefit of this Section. The vacation or
25modification, pursuant to the provisions of Section 2-1401, of



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1an order or judgment entered in the judicial foreclosure does
2not affect the limitation in this Section.
3    This Section applies to actions filed on or after 180 days
4after the effective date of this amendatory Act of the 100th
5General Assembly.
6    Section 10. The Mortgage Rescue Fraud Act is amended by
7changing Section 50 as follows:
8    (765 ILCS 940/50)
9    Sec. 50. Violations.
10    (a) It is a violation for a distressed property consultant
12        (1) claim, demand, charge, collect, or receive any
13    compensation until after the distressed property
14    consultant has fully performed each service the distressed
15    property consultant contracted to perform or represented
16    he or she would perform;
17        (2) claim, demand, charge, collect, or receive any fee,
18    interest, or any other compensation that does not comport
19    with Section 70;
20        (3) take a wage assignment, a lien of any type on real
21    or personal property, or other security to secure the
22    payment of compensation. Any such security is void and
23    unenforceable;
24        (4) receive any consideration from any third party in



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1    connection with services rendered to an owner unless the
2    consideration is first fully disclosed to the owner;
3        (5) acquire any interest, directly or indirectly, or by
4    means of a subsidiary or affiliate in a distressed property
5    from an owner with whom the distressed property consultant
6    has contracted;
7        (6) take any power of attorney from an owner for any
8    purpose, except to inspect documents as provided by law; or
9        (7) induce or attempt to induce an owner to enter a
10    contract that does not comply in all respects with Sections
11    10 and 15 of this Act; or .
12        (8) enter into, enforce, or act upon any agreement with
13    a foreclosure defendant, whether the foreclosure is
14    completed or otherwise, if the agreement provides for a
15    division of proceeds between the foreclosure defendant and
16    the distressed property consultant derived from litigation
17    related to the foreclosure.
18     (b) A distressed property purchaser, in the course of a
19distressed property conveyance, shall not:
20        (1) enter into, or attempt to enter into, a distressed
21    property conveyance unless the distressed property
22    purchaser verifies and can demonstrate that the owner of
23    the distressed property has a reasonable ability to pay for
24    the subsequent conveyance of an interest back to the owner
25    of the distressed property and to make monthly or any other
26    required payments due prior to that time;



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1        (2) fail to make a payment to the owner of the
2    distressed property at the time the title is conveyed so
3    that the owner of the distressed property has received
4    consideration in an amount of at least 82% of the
5    property's fair market value, or, in the alternative, fail
6    to pay the owner of the distressed property no more than
7    the costs necessary to extinguish all of the existing
8    obligations on the distressed property, as set forth in
9    subdivision (b)(10) of Section 45, provided that the
10    owner's costs to repurchase the distressed property
11    pursuant to the terms of the distressed property conveyance
12    contract do not exceed 125% of the distressed property
13    purchaser's costs to purchase the property. If an owner is
14    unable to repurchase the property pursuant to the terms of
15    the distressed property conveyance contract, the
16    distressed property purchaser shall not fail to make a
17    payment to the owner of the distressed property so that the
18    owner of the distressed property has received
19    consideration in an amount of at least 82% of the
20    property's fair market value at the time of conveyance or
21    at the expiration of the owner's option to repurchase.
22        (3) enter into repurchase or lease terms as part of the
23    subsequent conveyance that are unfair or commercially
24    unreasonable, or engage in any other unfair conduct;
25        (4) represent, directly or indirectly, that the
26    distressed property purchaser is acting as an advisor or a



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1    consultant, or in any other manner represent that the
2    distressed property purchaser is acting on behalf of the
3    homeowner, or the distressed property purchaser is
4    assisting the owner of the distressed property to "save the
5    house", "buy time", or do anything couched in substantially
6    similar language;
7        (5) misrepresent the distressed property purchaser's
8    status as to licensure or certification;
9        (6) do any of the following until after the time during
10    which the owner of a distressed property may cancel the
11    transaction:
12            (A) accept from the owner of the distressed
13        property an execution of any instrument of conveyance
14        of any interest in the distressed property;
15            (B) induce the owner of the distressed property to
16        execute an instrument of conveyance of any interest in
17        the distressed property; or
18            (C) record with the county recorder of deeds any
19        document signed by the owner of the distressed
20        property, including but not limited to any instrument
21        of conveyance;
22        (7) fail to reconvey title to the distressed property
23    when the terms of the conveyance contract have been
24    fulfilled;
25        (8) induce the owner of the distressed property to
26    execute a quit claim deed when entering into a distressed



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1    property conveyance;
2        (9) enter into a distressed property conveyance where
3    any party to the transaction is represented by power of
4    attorney;
5        (10) fail to extinguish all liens encumbering the
6    distressed property, immediately following the conveyance
7    of the distressed property, or fail to assume all liability
8    with respect to the lien in foreclosure and prior liens
9    that will not be extinguished by such foreclosure, which
10    assumption shall be accomplished without violations of the
11    terms and conditions of the lien being assumed. Nothing
12    herein shall preclude a lender from enforcing any provision
13    in a contract that is not otherwise prohibited by law;
14        (11) fail to complete a distressed property conveyance
15    before a notary in the offices of a title company licensed
16    by the Department of Financial and Professional
17    Regulation, before an agent of such a title company, a
18    notary in the office of a bank, or a licensed attorney
19    where the notary is employed; or
20        (12) cause the property to be conveyed or encumbered
21    without the knowledge or permission of the distressed
22    property owner, or in any way frustrate the ability of the
23    distressed property owner to complete the conveyance back
24    to the distressed property owner.
25    (c) There is a rebuttable presumption that an appraisal by
26a person licensed or certified by an agency of this State or



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1the federal government is an accurate determination of the fair
2market value of the property.
3    (d) "Consideration" in item (2) of subsection (b) means any
4payment or thing of value provided to the owner of the
5distressed property, including reasonable costs paid to
6independent third parties necessary to complete the distressed
7property conveyance or payment of money to satisfy a debt or
8legal obligation of the owner of the distressed property.
9     "Consideration" shall not include amounts imputed as a
10downpayment or fee to the distressed property purchaser, or a
11person acting in participation with the distressed property
13    (e) An evaluation of "reasonable ability to pay" under
14subsection (b)(1) of this Section 50 shall include debt to
15income ratio, fair market value of the distressed property, and
16the distressed property owner's payment history. There is a
17rebuttable presumption that the distressed property purchaser
18has not verified reasonable payment ability if the distressed
19property purchaser has not obtained documents of assets,
20liabilities, and income, other than a statement by the owner of
21the distressed property.
22(Source: P.A. 94-822, eff. 1-1-07; 95-1047, eff. 4-6-09.)
23    Section 97. Severability. The provisions of this Act are
24severable under Section 1.31 of the Statute on Statutes.



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1    Section 99. Effective date. This Act takes effect upon
2becoming law.".