Full Text of SB2539 101st General Assembly
SB2539sam001 101ST GENERAL ASSEMBLY | Sen. Michael E. Hastings Filed: 3/4/2020
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| 1 | | AMENDMENT TO SENATE BILL 2539
| 2 | | AMENDMENT NO. ______. Amend Senate Bill 2539 by replacing | 3 | | everything after the enacting clause with the following:
| 4 | | "Section 5. The Code of Civil Procedure is amended by | 5 | | changing Section 15-1508 as follows: | 6 | | (735 ILCS 5/15-1508) (from Ch. 110, par. 15-1508) | 7 | | Sec. 15-1508. Report of sale and confirmation of sale. | 8 | | (a) Report. The person conducting the sale shall promptly | 9 | | make a report to
the court, which report shall include a copy | 10 | | of all receipts and, if any,
certificate of sale. | 11 | | (b) Hearing. Upon motion and notice in accordance with | 12 | | court rules
applicable to motions generally, which motion shall | 13 | | not be made prior to
sale, the court shall conduct a hearing to
| 14 | | confirm the sale. Unless the court finds that (i) a notice | 15 | | required in
accordance with subsection (c) of Section 15-1507 | 16 | | was not given, (ii) the
terms of sale were unconscionable, |
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| 1 | | (iii) the sale was conducted
fraudulently, or (iv) justice was | 2 | | otherwise not done, the court shall
then enter an order | 3 | | confirming the sale. The confirmation order shall include a | 4 | | name, address, and telephone number of the holder of the | 5 | | certificate of sale or deed issued pursuant to that certificate | 6 | | or, if no certificate or deed was issued, the purchaser, whom a | 7 | | municipality or county may contact with concerns about the real | 8 | | estate. The confirmation order may
also: | 9 | | (1) approve the mortgagee's fees and costs (i) arising | 10 | | between the entry of
the judgment of foreclosure and the | 11 | | confirmation hearing, and (ii) incurred on or after the | 12 | | date of execution of an affidavit under subsection (a) of | 13 | | Section 15-1506 and prior to the judgment but not included | 14 | | in the judgment, those costs and
fees to be allowable to | 15 | | the same extent as provided in the note and mortgage
and in | 16 | | Section 15-1504; | 17 | | (2) provide for a personal judgment against any party | 18 | | for a deficiency;
and | 19 | | (3) determine the priority of the judgments of parties | 20 | | who deferred proving
the priority pursuant to subsection | 21 | | (h) of Section 15-1506, but
the court shall not
defer | 22 | | confirming the sale pending the determination of such | 23 | | priority. | 24 | | (b-3) Hearing to confirm sale of abandoned residential | 25 | | property. Upon motion and notice by first-class mail to the | 26 | | last known address of the mortgagor, which motion shall be made |
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| 1 | | prior to the sale and heard by the court at the earliest | 2 | | practicable time after conclusion of the sale, and upon the | 3 | | posting at the property address of the notice required by | 4 | | paragraph (2) of subsection (l) of Section 15-1505.8, the court | 5 | | shall enter an order confirming the sale of the abandoned | 6 | | residential property, unless the court finds that a reason set | 7 | | forth in items (i) through (iv) of subsection (b) of this | 8 | | Section exists for not approving the sale, or an order is | 9 | | entered pursuant to subsection (h) of Section 15-1505.8. The | 10 | | confirmation order also may address the matters identified in | 11 | | items (1) through (3) of subsection (b) of this Section. The | 12 | | notice required under subsection (b-5) of this Section shall | 13 | | not be required. | 14 | | (b-5) Notice with respect to residential real estate. With | 15 | | respect to residential real estate, the notice required under | 16 | | subsection (b) of this Section shall be sent to the mortgagor | 17 | | even if the mortgagor has previously been held in default. In | 18 | | the event the mortgagor has filed an appearance, the notice | 19 | | shall be sent to the address indicated on the appearance. In | 20 | | all other cases, the notice shall be sent to the mortgagor at | 21 | | the common address of the foreclosed property. The notice shall | 22 | | be sent by first class mail. Unless the right to possession has | 23 | | been previously terminated by the court, the notice shall | 24 | | include the following language in 12-point boldface | 25 | | capitalized type: | 26 | | IF YOU ARE THE MORTGAGOR (HOMEOWNER), YOU HAVE THE RIGHT TO |
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| 1 | | REMAIN IN POSSESSION FOR 30 DAYS AFTER ENTRY OF AN ORDER OF | 2 | | POSSESSION, IN ACCORDANCE WITH SECTION 15-1701(c) OF THE | 3 | | ILLINOIS MORTGAGE FORECLOSURE LAW. | 4 | | (b-10) Notice of confirmation order sent to municipality or | 5 | | county. A copy of the confirmation order required under | 6 | | subsection (b) shall be sent to the municipality in which the | 7 | | foreclosed property is located, or to the county within the | 8 | | boundary of which the foreclosed property is located if the | 9 | | foreclosed property is located in an unincorporated territory. | 10 | | A municipality or county must clearly publish on its website a | 11 | | single address to which a copy of the order shall be sent. If a | 12 | | municipality or county does not maintain a website, then the | 13 | | municipality or county must publicly post in its main office a | 14 | | single address to which a copy of the order shall be sent. In | 15 | | the event that a municipality or county has not complied with | 16 | | the publication requirement in this subsection (b-10), then a | 17 | | copy of the order shall be sent by first class mail, postage | 18 | | prepaid, to the chairperson of the county board or county clerk | 19 | | in the case of a county, to the mayor or city clerk in the case | 20 | | of a city, to the president of the board of trustees or village | 21 | | clerk in the case of a village, or to the president or town | 22 | | clerk in the case of a town. | 23 | | (b-15) Notice of confirmation order sent to known insurers. | 24 | | With respect to residential real estate, the party filing the | 25 | | complaint shall send a copy of the confirmation order required | 26 | | under subsection (b) by first class mail, postage prepaid, to |
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| 1 | | the last known property insurer of the foreclosed property. | 2 | | Failure to send or receive a copy of the order shall not impair | 3 | | or abrogate in any way the rights of the mortgagee or purchaser | 4 | | or affect the status of the foreclosure proceedings. | 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) are | 20 | | operative and, except for this sentence, shall become | 21 | | inoperative on January 1, 2018 for all actions filed under this | 22 | | Article after December 31, 2017, in which the mortgagor did not | 23 | | apply for assistance under the Making Home Affordable Program | 24 | | on or before December 31, 2016. The changes to this subsection | 25 | | (d-5) by this amendatory Act of the 99th General Assembly apply | 26 | | to all cases pending and filed on or after the effective date |
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| 1 | | of this amendatory Act of the 99th General Assembly. | 2 | | (e) Deficiency Judgment. In any order confirming a sale | 3 | | pursuant to the
judgment of foreclosure, the court shall also | 4 | | enter a personal judgment
for deficiency against any party (i) | 5 | | if otherwise authorized and (ii) to
the extent requested in the | 6 | | complaint and proven upon presentation of the
report of sale in | 7 | | accordance with Section 15-1508. Except as otherwise provided
| 8 | | in this Article, a judgment may be entered for any balance of | 9 | | money that
may be found due to the plaintiff, over and above | 10 | | the proceeds of the sale
or sales, and enforcement may be had | 11 | | for the collection of such balance,
the same as when the | 12 | | judgment is solely for the payment of money. Such
judgment may | 13 | | be entered, or enforcement had,
only in cases where personal | 14 | | service has been had upon the
persons personally liable for the | 15 | | mortgage indebtedness, unless they have
entered their | 16 | | appearance in the foreclosure action. | 17 | | (f) Satisfaction. Upon confirmation of the sale, the
| 18 | | judgment stands satisfied to the extent of the sale price less | 19 | | expenses and
costs. If the order confirming the sale includes a | 20 | | deficiency judgment, the
judgment shall become a lien in the | 21 | | manner of any other
judgment for the payment of money. | 22 | | (g) The order confirming the sale shall include, | 23 | | notwithstanding any
previous orders awarding possession during | 24 | | the pendency of the foreclosure, an
award to the purchaser of | 25 | | possession of the mortgaged real estate, as of the
date 30 days | 26 | | after the entry of the order, against the
parties to the |
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| 1 | | foreclosure whose interests have been terminated. | 2 | | An eviction order authorizing the removal of a person from | 3 | | possession
of the mortgaged real estate shall be entered and | 4 | | enforced only against those
persons personally
named as | 5 | | individuals in the complaint or the petition under subsection | 6 | | (h)
of Section 15-1701. No eviction order issued under this | 7 | | Section shall be entered against a lessee with a bona fide | 8 | | lease of a dwelling unit in residential real estate in | 9 | | foreclosure, whether or not the lessee has been made a party in | 10 | | the foreclosure. An order shall
not be entered and enforced | 11 | | against any person who is only generically
described as an
| 12 | | unknown owner or nonrecord claimant or by another generic | 13 | | designation in the
complaint. | 14 | | Notwithstanding the preceding paragraph, the failure to | 15 | | personally
name,
include, or seek an eviction order against a | 16 | | person in the
confirmation order shall not abrogate any right | 17 | | that the purchaser may have to
possession of the mortgaged real | 18 | | estate and to maintain an eviction proceeding under Article IX | 19 | | of this Code or, if applicable, under subsection (h) of Section | 20 | | 15-1701;
and eviction of a person
who (1) has not been | 21 | | personally named as a party to the
foreclosure and (2) has not | 22 | | been provided an opportunity to be heard in the
foreclosure | 23 | | proceeding may be sought only by maintaining a
proceeding under | 24 | | Article IX of this
Code or, if applicable, under subsection (h) | 25 | | of Section 15-1701. | 26 | | (h) With respect to mortgaged real estate containing 5 or |
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| 1 | | more dwelling units, the order confirming the sale shall also | 2 | | provide that (i) the mortgagor shall transfer to the purchaser | 3 | | the security deposits, if any, that the mortgagor received to | 4 | | secure payment of rent or to compensate for damage to the | 5 | | mortgaged real estate from any current occupant of a dwelling | 6 | | unit of the mortgaged real estate, as well as any statutory | 7 | | interest that has not been paid to the occupant, and (ii) the | 8 | | mortgagor shall provide an accounting of the security deposits | 9 | | that are transferred, including the name and address of each | 10 | | occupant for whom the mortgagor holds the deposit and the | 11 | | amount of the deposit and any statutory interest. | 12 | | (Source: P.A. 99-640, eff. 7-28-16; 100-173, eff. 1-1-18 .)
| 13 | | Section 99. Effective date. This Act takes effect upon | 14 | | becoming law.".
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