Full Text of HB6951 96th General Assembly
HB6951 96TH GENERAL ASSEMBLY |
| | 96TH GENERAL ASSEMBLY
State of Illinois
2009 and 2010 HB6951 Introduced , by Rep. Marlow H. Colvin SYNOPSIS AS INTRODUCED: |
| 735 ILCS 5/15-1502.10 new | | 735 ILCS 5/15-1504 | from Ch. 110, par. 15-1504 | 735 ILCS 5/15-1506 | from Ch. 110, par. 15-1506 |
|
Amends the Code of Civil Procedure. Provides that as a condition precedent to initiating foreclosure on residential real estate, a plaintiff shall comply with the requirements of any applicable federal, State, local, or contractual loss mitigation program, and if no program results in a modification of the mortgage, the plaintiff shall review the mortgage under the other programs utilized by the plaintiff. Provides that each affidavit filed in a foreclosure proceeding must include a detailed description of the affiant's claimed personal knowledge. Provides that if a note that is required to be attached to the foreclosure complaint is missing, the moving party must file a detailed affidavit about the efforts to locate the note and the note's terms and riders. Provides that each foreclosure complaint shall include a loss mitigation affidavit describing what steps, in any, were taken by the plaintiff to assess the mortgage loan's eligibility for modification under designated federal programs. Provides that a foreclosure judgment shall include a finding by the court that the plaintiff complied with applicable federal, State, or local loss mitigation requirements, or that there are no such applicable requirements. Provides that if the plaintiff has not complied with such a program that the proceedings shall be stayed until the court determines that the plaintiff has complied.
Effective immediately.
|
| |
| | A BILL FOR |
|
| | | HB6951 | | LRB096 24381 AJO 44009 b |
|
| 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 adding | 5 | | Section 15-1502.10 and changing Sections 15-1504 and 15-1506 as | 6 | | follows: | 7 | | (735 ILCS 5/15-1502.10 new) | 8 | | Sec. 15-1502.10. Condition precedent to foreclosure on | 9 | | residential real estate. | 10 | | (a) This Section applies only to a foreclosure of property | 11 | | that is residential real estate. | 12 | | (b) As a condition precedent to initiating foreclosure | 13 | | pursuant to this Section, the plaintiff shall (i) comply with | 14 | | the requirements of any federal, State, local, or contractual | 15 | | loss mitigation programs that apply to the subject mortgage, | 16 | | including, but not limited to, those requirements pertaining to | 17 | | the federal Home Affordable Modification Program of the Making | 18 | | Home Affordable initiative of the Secretary of the Treasury, | 19 | | authorized under the Emergency Economic Stabilization Act of | 20 | | 2008 (Public Law 110-343) (HAMP); and (ii) if no federal, | 21 | | State, local, or contractual loss mitigation program applies to | 22 | | the subject mortgage, or if review under applicable federal, | 23 | | State, local, or contractual loss mitigation programs fails to |
| | | HB6951 | - 2 - | LRB096 24381 AJO 44009 b |
|
| 1 | | result in a modification of the subject mortgage, review the | 2 | | subject mortgage for a loan modification under every other loss | 3 | | mitigation program utilized by plaintiff.
| 4 | | (735 ILCS 5/15-1504) (from Ch. 110, par. 15-1504)
| 5 | | Sec. 15-1504. Pleadings and service.
| 6 | | (a) Foundational requirements for affidavits. Every | 7 | | affidavit filed in a foreclosure proceeding shall include a | 8 | | detailed description of the basis of the affiant's claimed | 9 | | personal knowledge of the facts set forth in the affidavit, | 10 | | including: | 11 | | (1) a statement of which specific data systems the | 12 | | affiant queried in preparing the affidavit, if the affiant | 13 | | queried data systems in preparing the affidavit; | 14 | | (2) a detailed factual statement of the basis of the | 15 | | affiant's belief that each data system identified | 16 | | contained accurate information; and | 17 | | (3) if applicable, a detailed description of the basis | 18 | | of the affiant's statement that the attached mortgage and | 19 | | note are true and correct. | 20 | | (b) Lost note affidavit. A copy of the mortgage and note | 21 | | secured thereby shall be attached to the foreclosure complaint. | 22 | | If any note required to be attached to a complaint filed | 23 | | pursuant to this subsection (b) cannot be located for filing as | 24 | | an exhibit, the moving party shall file an affidavit stating | 25 | | the following: |
| | | HB6951 | - 3 - | LRB096 24381 AJO 44009 b |
|
| 1 | | (1) the reasonable efforts made by the moving party to | 2 | | obtain the note; and | 3 | | (2) a description of the terms of the note and any | 4 | | riders attached thereto, including: | 5 | | (A) date of execution; | 6 | | (B) parties; | 7 | | (C) amount; | 8 | | (D) interest rate and, if applicable, the margin | 9 | | used to calculate the interest rate and the initial | 10 | | date of reset; | 11 | | (E) if applicable, the existence of a prepayment | 12 | | penalty; and | 13 | | (F) if applicable, the existence of a balloon | 14 | | payment. | 15 | | Nothing in this subsection (b) shall be construed in | 16 | | derogation of the parties' rights established under Section | 17 | | 3-309 of the Uniform Commercial Code or any similar rights | 18 | | established under Illinois law. | 19 | | (c) Loss mitigation affidavit. Every foreclosure complaint | 20 | | shall include, as an attachment, an affidavit stating: | 21 | | (1) Which federal, State, local, or contractual loss | 22 | | mitigation programs apply to the subject mortgage. | 23 | | (2) If applicable, that plaintiff has reviewed the | 24 | | mortgage loan for modification under the Home Affordable | 25 | | Modification Program of the Making Home Affordable | 26 | | initiative of the Secretary of the Treasury, authorized |
| | | HB6951 | - 4 - | LRB096 24381 AJO 44009 b |
|
| 1 | | under the Emergency Economic Stabilization Act of 2008 | 2 | | (Public Law 110-343) (HAMP), the results of that review | 3 | | (including all borrower-related and mortgage-related input | 4 | | data used in any net present value analyses and any other | 5 | | information required to be provided to the mortgagor under | 6 | | the supplemental directives and other guidelines for | 7 | | HAMP), a record of all HAMP-related communications with the | 8 | | borrower, written or verbal, and, if applicable, the | 9 | | reasons that plaintiff's review resulted in a denial of a | 10 | | HAMP modification, including, as an attachment, a copy of | 11 | | the written Non-Approval Notice provided to the mortgagor, | 12 | | as required by U.S. Department of Treasury Supplemental | 13 | | Directive 09-08. | 14 | | (3) If applicable, that plaintiff has not reviewed the | 15 | | mortgage loan for a HAMP modification, including the | 16 | | reasons that plaintiff did not conduct the review. | 17 | | (4) That plaintiff has complied with the requirements | 18 | | of any other federal, State, local, or contractual loss | 19 | | mitigation programs that apply to the subject mortgage and | 20 | | the results of any analysis conducted under those programs. | 21 | | (5) That plaintiff has complied with the requirements | 22 | | of Section 15-1502.5, the results of those efforts, and, if | 23 | | applicable, the reasons that plaintiff's efforts did not | 24 | | result in an agreed sustainable loan workout plan. | 25 | | (6) A detailed description of all additional loss | 26 | | mitigation efforts made by plaintiff and the results |
| | | HB6951 | - 5 - | LRB096 24381 AJO 44009 b |
|
| 1 | | thereof, including efforts to avoid foreclosure through a | 2 | | non-HAMP loan modification program, short sale, deed in | 3 | | lieu of foreclosure, or other alternative that is intended | 4 | | to simplify the mortgagor's relinquishment of ownership of | 5 | | the property, and, if applicable, an explanation for the | 6 | | denial of a loan modification or other loss mitigation. | 7 | | (d) (a) Form of Complaint. A foreclosure complaint
may be | 8 | | in substantially the following form:
| 9 | | (1) Plaintiff files this complaint to foreclose the | 10 | | mortgage (or other
conveyance in the nature of a mortgage) | 11 | | (hereinafter called "mortgage")
hereinafter described and | 12 | | joins the following person as defendants: (here
insert | 13 | | names of all defendants).
| 14 | | (2) Attached as Exhibit "A" is a copy of the mortgage | 15 | | and as Exhibit "B"
is a copy of the note secured thereby.
| 16 | | (3) Information concerning mortgage:
| 17 | | (A) Nature of instrument: (here insert whether a | 18 | | mortgage, trust deed or
other instrument in the nature | 19 | | of a mortgage, etc.)
| 20 | | (B) Date of mortgage:
| 21 | | (C) Name of mortgagor:
| 22 | | (D) Name of current mortgagee , and, if different, | 23 | | name of original mortgagee :
| 24 | | (E) Date and place of recording:
| 25 | | (F) Identification of recording: (here insert book | 26 | | and page number or document number)
|
| | | HB6951 | - 6 - | LRB096 24381 AJO 44009 b |
|
| 1 | | (G) Interest subject to the mortgage: (here insert | 2 | | whether fee simple,
estate for years, undivided | 3 | | interest, etc.)
| 4 | | (H) Amount of original indebtedness, including an | 5 | | itemization of subsequent advances , fees, or | 6 | | additional charges, including force-placed insurance, | 7 | | made
under the mortgage stating the purpose, payee, | 8 | | amount, and date of each :
| 9 | | (I) Both the legal description of the mortgaged | 10 | | real estate and the
common address or other information | 11 | | sufficient to identify it with reasonable certainty:
| 12 | | (J) Statement as to defaults, including, but not | 13 | | necessarily
limited to, date of default, current | 14 | | unpaid principal balance, per diem
interest accruing, | 15 | | and any further information concerning the default:
| 16 | | (K) Each and every borrower payment made in the | 17 | | last 36 months, including amount and date, whether such | 18 | | payment was accepted or returned to the mortgagor, and | 19 | | how the payment was applied to the borrower's account | 20 | | (e.g., applied to principal or interest, or placed in | 21 | | suspense account):
| 22 | | (L) (K) Name of present owner of the real estate:
| 23 | | (M) (L) Names of other persons who are joined as | 24 | | defendants and whose
interest in or lien on the | 25 | | mortgaged real estate is sought to be terminated:
| 26 | | (N) (M) Names of defendants claimed to be |
| | | HB6951 | - 7 - | LRB096 24381 AJO 44009 b |
|
| 1 | | personally liable
for deficiency, if any:
| 2 | | (O) (N) Capacity in which plaintiff brings this | 3 | | foreclosure (here indicate
whether plaintiff is the | 4 | | legal holder of the indebtedness, a pledgee, an
agent, | 5 | | the trustee under a trust deed or otherwise, as | 6 | | appropriate) ; attached as Exhibit "C" are copies of all | 7 | | documents, including endorsements, assignments, or | 8 | | transfers, that demonstrate that plaintiff is legally | 9 | | entitled to bring the foreclosure :
| 10 | | (P) (O) Facts in support of redemption period | 11 | | shorter than
the longer of (i) 7 months from the date | 12 | | the mortgagor or, if more than
one, all the mortgagors | 13 | | (I) have been served with summons or by publication
or | 14 | | (II) have otherwise submitted to the jurisdiction of | 15 | | the court, or (ii)
3 months from the entry of the | 16 | | judgment of foreclosure, if sought (here
indicate | 17 | | whether based upon the real estate not being | 18 | | residential,
abandonment, or real estate value less | 19 | | than 90%
of amount owed, etc.):
| 20 | | (Q) (P) Statement that the right of redemption has | 21 | | been waived by all
owners of redemption, if applicable:
| 22 | | (R) (Q) Facts in support of request for attorneys' | 23 | | fees and of costs and
expenses, if applicable:
| 24 | | (S) (R) Facts in support of a request for | 25 | | appointment of mortgagee in
possession or for | 26 | | appointment of receiver, and identity of such |
| | | HB6951 | - 8 - | LRB096 24381 AJO 44009 b |
|
| 1 | | receiver, if
sought:
| 2 | | (T) (S) Offer to mortgagor in accordance with | 3 | | Section 15-1402 to accept
title to the real estate in | 4 | | satisfaction of all indebtedness and
obligations | 5 | | secured by the mortgage without judicial sale, if | 6 | | sought:
| 7 | | (U) (T) Name or names of defendants whose right to
| 8 | | possess the mortgaged real estate, after the | 9 | | confirmation of a foreclosure
sale, is
sought to be | 10 | | terminated and, if not elsewhere stated, the facts in | 11 | | support
thereof:
| 12 | | (V) Attached as Exhibit "D" is the Lost Mitigation | 13 | | Affidavit, as required by subsection (c) of this | 14 | | Section.
| 15 | | REQUEST FOR RELIEF
| 16 | | Plaintiff requests:
| 17 | | (i) A judgment of foreclosure and sale.
| 18 | | (ii) An order granting a shortened redemption period, | 19 | | if sought.
| 20 | | (iii) A personal judgment for a deficiency, if sought.
| 21 | | (iv) An order granting possession, if sought.
| 22 | | (v) An order placing the mortgagee in possession or | 23 | | appointing a receiver,
if sought.
| 24 | | (vi) A judgment for attorneys' fees, costs and | 25 | | expenses, if sought.
|
| | | HB6951 | - 9 - | LRB096 24381 AJO 44009 b |
|
| 1 | | (e) (b) Required Information. A foreclosure complaint need | 2 | | contain only such
statements and requests called for by the | 3 | | form set forth in subsection (a) of
Section
15-1504 as may be | 4 | | appropriate for the relief sought. Such complaint may
be filed | 5 | | as a counterclaim, may be joined with other counts or may | 6 | | include
in the same count additional matters or a request for | 7 | | any additional
relief permitted by Article
II of the Code of | 8 | | Civil Procedure.
| 9 | | (f) (c) Allegations. The statements contained in a | 10 | | complaint in the form
set forth in subsection (a) of Section | 11 | | 15-1504 are deemed and construed to include
allegations as | 12 | | follows:
| 13 | | (1) on the date indicated the obligor of the | 14 | | indebtedness or other
obligations secured by the mortgage | 15 | | was justly indebted in the amount of
the indicated original | 16 | | indebtedness to the original mortgagee or payee of
the | 17 | | mortgage note;
| 18 | | (2) that the exhibits attached are true and correct | 19 | | copies of the
mortgage and note and are incorporated and | 20 | | made a part of the complaint by
express reference;
| 21 | | (3) that the mortgagor was at the date indicated an | 22 | | owner of the
interest in the real estate described in the | 23 | | complaint and that as of that
date made, executed and | 24 | | delivered the mortgage as security for the note or
other | 25 | | obligations;
| 26 | | (4) that the mortgage was recorded in the county in |
| | | HB6951 | - 10 - | LRB096 24381 AJO 44009 b |
|
| 1 | | which the mortgaged
real estate is located, on the date | 2 | | indicated, in the book and page or as
the document number | 3 | | indicated;
| 4 | | (5) that defaults occurred as indicated;
| 5 | | (6) that at the time of the filing of the complaint the | 6 | | persons named as
present owners are the owners of the | 7 | | indicated interests in and to the real
estate described;
| 8 | | (7) that the mortgage constitutes a valid, prior and | 9 | | paramount lien upon
the indicated interest in the mortgaged | 10 | | real estate, which lien is prior and
superior to the right, | 11 | | title, interest, claim or lien of all parties and
nonrecord | 12 | | claimants whose interests in the mortgaged real estate are
| 13 | | sought to be terminated;
| 14 | | (8) that by reason of the defaults alleged, if the | 15 | | indebtedness has not
matured by its terms, the same has | 16 | | become due by the exercise, by the
plaintiff or other | 17 | | persons having such power, of a right or power to
declare | 18 | | immediately due and payable the whole of all indebtedness | 19 | | secured
by the mortgage;
| 20 | | (9) that any and all notices of default or election to | 21 | | declare the
indebtedness due and payable or other notices | 22 | | required to be given have
been duly and properly given;
| 23 | | (10) that any and all periods of grace or other period | 24 | | of time allowed
for the performance of the covenants or | 25 | | conditions claimed to be breached
or for the curing of any | 26 | | breaches have expired;
|
| | | HB6951 | - 11 - | LRB096 24381 AJO 44009 b |
|
| 1 | | (11) that the amounts indicated in the statement
in the | 2 | | complaint are correctly stated and
if such statement | 3 | | indicates any advances made or to be made by the
plaintiff | 4 | | or owner of the mortgage indebtedness, that such advances | 5 | | were,
in fact, made or will be
required to be made, and | 6 | | under and by virtue of the mortgage the same
constitute | 7 | | additional indebtedness secured by the mortgage; and
| 8 | | (12) that, upon confirmation of the sale, the holder of | 9 | | the certificate
of sale or deed issued pursuant to that | 10 | | certificate or, if no certificate or
deed was issued, the | 11 | | purchaser at the sale will be entitled to full possession
| 12 | | of the mortgaged real estate against the parties
named in | 13 | | clause (T) of
paragraph (3) of subsection (a) of Section | 14 | | 15-1504 or elsewhere to the same
effect;
the omission of | 15 | | any
party indicates that plaintiff will not seek a | 16 | | possessory order in the order
confirming sale unless the | 17 | | request is subsequently made under subsection (h) of
| 18 | | Section 15-1701 or by separate action under Article 9 of | 19 | | this Code.
| 20 | | (g) (d) Request for Fees and Costs. A statement in the | 21 | | complaint that
plaintiff seeks the inclusion of attorneys' fees | 22 | | and of costs and expenses
shall be deemed and construed to | 23 | | include allegations that:
| 24 | | (1) plaintiff has been compelled to employ and retain | 25 | | attorneys to
prepare and file the complaint and to | 26 | | represent and advise the plaintiff in
the foreclosure of |
| | | HB6951 | - 12 - | LRB096 24381 AJO 44009 b |
|
| 1 | | the mortgage and the plaintiff will thereby become
liable | 2 | | for the usual, reasonable and customary fees of the | 3 | | attorneys in
that behalf;
| 4 | | (2) that the plaintiff has been compelled to advance or | 5 | | will be
compelled to advance, various sums of money in | 6 | | payment of costs, fees,
expenses and disbursements | 7 | | incurred in connection with the foreclosure,
including, | 8 | | without limiting the generality of the foregoing, filing | 9 | | fees,
stenographer's fees, witness fees, costs of | 10 | | publication, costs of procuring
and preparing documentary | 11 | | evidence and costs of procuring
abstracts of title, Torrens | 12 | | certificates, foreclosure minutes and a title
insurance | 13 | | policy;
| 14 | | (3) that under the terms of the mortgage, all such | 15 | | advances, costs,
attorneys' fees and other fees, expenses | 16 | | and disbursements are made a lien
upon the mortgaged real | 17 | | estate and the plaintiff is entitled to recover all
such | 18 | | advances, costs, attorneys' fees, expenses and | 19 | | disbursements, together
with interest on all advances at | 20 | | the rate provided in the mortgage, or, if
no rate is | 21 | | provided therein, at the statutory judgment rate, from the
| 22 | | date on which such advances are made;
| 23 | | (4) that in order to protect the lien of the mortgage, | 24 | | it may become
necessary for plaintiff to pay taxes and | 25 | | assessments which have been or may
be levied upon the | 26 | | mortgaged real estate;
|
| | | HB6951 | - 13 - | LRB096 24381 AJO 44009 b |
|
| 1 | | (5) that in order to protect and preserve the mortgaged | 2 | | real estate, it
may also become necessary for the plaintiff | 3 | | to pay liability (protecting
mortgagor and mortgagee), | 4 | | fire and other hazard
insurance premiums on the mortgaged | 5 | | real estate, make such repairs
to the mortgaged real
estate | 6 | | as may reasonably be deemed necessary for the proper | 7 | | preservation
thereof, advance for costs to inspect the | 8 | | mortgaged real estate or to
appraise it, or both, and | 9 | | advance for premiums for pre-existing private or
| 10 | | governmental mortgage insurance to the extent required | 11 | | after a foreclosure
is commenced in order to keep such | 12 | | insurance in force; and
| 13 | | (6) that under the terms of the mortgage, any money so | 14 | | paid or expended
will become an additional indebtedness | 15 | | secured by the mortgage and will bear
interest from the | 16 | | date such monies are advanced at the rate provided in the
| 17 | | mortgage, or, if no rate is provided, at the
statutory | 18 | | judgment rate.
| 19 | | (h) (e) Request for Foreclosure. The request for | 20 | | foreclosure is deemed and
construed to mean that the plaintiff | 21 | | requests that:
| 22 | | (1) an accounting may be taken under the direction of | 23 | | the court of the
amounts due and owing to the plaintiff;
| 24 | | (2) that the defendants be ordered to pay to the | 25 | | plaintiff before
expiration of any redemption period (or, | 26 | | if no redemption period, before a
short date fixed by the |
| | | HB6951 | - 14 - | LRB096 24381 AJO 44009 b |
|
| 1 | | court) whatever sums may appear to be due upon the taking
| 2 | | of such account,
together with attorneys' fees and costs of | 3 | | the proceedings (to the extent
provided in the mortgage or | 4 | | by law);
| 5 | | (3) that in default of such payment in accordance with | 6 | | the judgment, the
mortgaged real estate be sold as directed | 7 | | by the court, to satisfy the
amount due to the plaintiff as | 8 | | set forth in the judgment, together with the
interest | 9 | | thereon at the statutory judgment rate from the date of the | 10 | | judgment;
| 11 | | (4) that in the event the plaintiff is a purchaser of | 12 | | the mortgaged real
estate at such sale, the plaintiff may | 13 | | offset against the purchase price of
such real estate the | 14 | | amounts due under the judgment of foreclosure and
order | 15 | | confirming the sale;
| 16 | | (5) that in the event of such sale and the failure of | 17 | | any person entitled
thereto to redeem prior to such sale | 18 | | pursuant to this Article, the
defendants made parties to | 19 | | the foreclosure in accordance with this Article,
and all | 20 | | nonrecord claimants given notice of the foreclosure in | 21 | | accordance
with this Article, and all persons claiming by, | 22 | | through or under them, and
each and any and all of them, | 23 | | may be forever barred and foreclosed of any
right, title, | 24 | | interest, claim, lien, or right to redeem in and to the
| 25 | | mortgaged real estate; and
| 26 | | (6) that if no redemption is made prior to such sale, a |
| | | HB6951 | - 15 - | LRB096 24381 AJO 44009 b |
|
| 1 | | deed may be
issued to the purchaser thereat according to | 2 | | law and such purchaser be let
into possession of the | 3 | | mortgaged real estate in accordance with Part 17 of this | 4 | | Article.
| 5 | | (i) (f) Request for Deficiency Judgment. A request for a | 6 | | personal judgment
for a deficiency in a foreclosure complaint | 7 | | if the sale of the mortgaged
real estate fails to produce a | 8 | | sufficient amount to pay the amount found
due, the plaintiff | 9 | | may have a personal judgment against any party in the
| 10 | | foreclosure indicated as being personally liable therefor and | 11 | | the enforcement
thereof be had as provided by law.
| 12 | | (j) (g) Request for Possession or Receiver. A request for | 13 | | possession or appointment
of a receiver has the meaning as | 14 | | stated in subsection (b) of Section 15-1706.
| 15 | | (k) (h) Answers by Parties. Any party
may assert its | 16 | | interest by counterclaim and such counterclaim may at the
| 17 | | option of that party stand in lieu of answer to the complaint | 18 | | for
foreclosure and all counter complaints previously or | 19 | | thereafter filed
in the foreclosure. Any such counterclaim | 20 | | shall be deemed to constitute a
statement that the counter | 21 | | claimant does not have sufficient knowledge to
form a belief as | 22 | | to the truth or falsity of the
allegations of the complaint and | 23 | | all other counterclaims, except
to the extent that the | 24 | | counterclaim admits or specifically denies such
allegations.
| 25 | | (Source: P.A. 91-357, eff. 7-29-99.)
|
| | | HB6951 | - 16 - | LRB096 24381 AJO 44009 b |
|
| 1 | | (735 ILCS 5/15-1506) (from Ch. 110, par. 15-1506)
| 2 | | Sec. 15-1506. Judgment. (a) Evidence. In the trial of a | 3 | | foreclosure, the evidence to support the
allegations of the | 4 | | complaint shall be taken in open court, except:
| 5 | | (1) where an allegation of fact in the complaint is not | 6 | | denied by a
party's verified answer or verified counterclaim, | 7 | | or where a party pursuant
to subsection (b) of Section 2-610 of | 8 | | the Code of Civil Procedure states,
or is deemed to have | 9 | | stated, in
its pleading that it has no knowledge
of such | 10 | | allegation sufficient to form a belief and attaches the | 11 | | required
affidavit, a sworn verification of the complaint or a | 12 | | separate affidavit
setting forth such fact is sufficient | 13 | | evidence thereof against such party
and no further evidence of | 14 | | such fact shall be required; and
| 15 | | (2) where all the allegations of fact in the complaint have | 16 | | been proved
by verification of the complaint or affidavit, the | 17 | | court upon motion
supported by an affidavit stating the amount | 18 | | which is due the mortgagee,
may shall enter a judgment of | 19 | | foreclosure as requested in the complaint.
| 20 | | (b) Instruments. In all cases the evidence of the | 21 | | indebtedness and the
mortgage foreclosed shall be exhibited to | 22 | | the court and appropriately
marked, and copies thereof shall be | 23 | | filed with the court.
| 24 | | (c) Summary and Default Judgments. Nothing in this Section | 25 | | 15-1506
shall prevent a party from obtaining a summary or | 26 | | default judgment
authorized by Article II of the Code of Civil |
| | | HB6951 | - 17 - | LRB096 24381 AJO 44009 b |
|
| 1 | | Procedure.
| 2 | | (d) Notice of Entry of Default. When any judgment in a | 3 | | foreclosure is
entered by default, notice of such judgment | 4 | | shall be given in accordance
with Section 2-1302 of the Code of | 5 | | Civil Procedure.
| 6 | | (e) Matters Required in Judgment. A judgment of foreclosure | 7 | | shall
include the last date for redemption and all rulings of | 8 | | the court entered
with respect to each request for relief set | 9 | | forth in the complaint. If the plaintiff in the action is not | 10 | | the original mortgagee, a judgment of foreclosure shall make | 11 | | specific findings of fact concerning the capacity in which the | 12 | | plaintiff brought the foreclosure action and a determination of | 13 | | whether this capacity legally entitles the plaintiff to bring | 14 | | the action. The judgment shall also include a finding by the | 15 | | court that: (i) the plaintiff has complied with any applicable | 16 | | federal, State, or local loss mitigation requirements; or (ii) | 17 | | there are no applicable federal, State, or local loss | 18 | | mitigation requirements. If the court determines that the | 19 | | plaintiff has not complied with applicable loss mitigation | 20 | | requirements, the court shall stay the matter until the court | 21 | | determines that the plaintiff has complied with those | 22 | | requirements. The
omission of the date for redemption shall not | 23 | | extend the time for
redemption or impair the validity of the | 24 | | judgment.
| 25 | | (f) Special Matters in Judgment. Without limiting the | 26 | | general
authority and powers of the court, special matters may |
| | | HB6951 | - 18 - | LRB096 24381 AJO 44009 b |
|
| 1 | | be included in the
judgment of foreclosure if sought by a party | 2 | | in the complaint or by separate
motion. Such matters may | 3 | | include, without limitation:
| 4 | | (1) a manner of sale other than public auction;
| 5 | | (2) a sale by sealed bid;
| 6 | | (3) an official or other person who shall be the officer to
| 7 | | conduct the sale other than the one customarily designated by | 8 | | the court;
| 9 | | (4) provisions for non-exclusive broker listings or | 10 | | designating a duly
licensed real estate broker nominated by one | 11 | | of the parties to exclusively
list the real estate for sale;
| 12 | | (5) the fees or commissions to be paid out of the sale | 13 | | proceeds to the
listing or other duly licensed broker, if any, | 14 | | who shall have procured the accepted bid;
| 15 | | (6) the fees to be paid out of the sale proceeds to an | 16 | | auctioneer, if
any, who shall have been authorized to conduct a | 17 | | public auction sale;
| 18 | | (7) whether and in what manner and with what content signs | 19 | | shall be
posted on the real estate;
| 20 | | (8) a particular time and place at which such bids shall be | 21 | | received;
| 22 | | (9) a particular newspaper or newspapers in which notice of
| 23 | | sale shall be published;
| 24 | | (10) the format for the advertising of such sale,
including | 25 | | the size, content
and format of such advertising, and | 26 | | additional advertising of such sale;
|
| | | HB6951 | - 19 - | LRB096 24381 AJO 44009 b |
|
| 1 | | (11) matters or exceptions to which title in the real | 2 | | estate may be subject
at the sale;
| 3 | | (12) a requirement that title insurance in a specified form | 4 | | be provided
to a purchaser at the sale, and who shall pay for | 5 | | such insurance;
| 6 | | (13) whether and to what extent bids with mortgage or other
| 7 | | contingencies will be allowed;
| 8 | | (14) such other matters as approved by the court to ensure | 9 | | sale of the
real estate for the most commercially favorable | 10 | | price for the type of real
estate involved.
| 11 | | (g) Agreement of the Parties. If all of the parties agree | 12 | | in writing on
the minimum price and that the real estate may be | 13 | | sold to the first person
who offers in writing to purchase the | 14 | | real estate for such price, and on
such other commercially | 15 | | reasonable terms and conditions as the parties may
agree, then | 16 | | the court shall order the real estate to be sold on such terms,
| 17 | | subject to confirmation of the sale in accordance with Section | 18 | | 15-1508.
| 19 | | (h) Postponement of Proving Priority. With the approval of | 20 | | the court
prior to the entry of the judgment of foreclosure, a | 21 | | party claiming an
interest in the proceeds of the sale of the | 22 | | mortgaged real estate may defer
proving the priority of such | 23 | | interest until the hearing to confirm the sale.
| 24 | | (i) Effect of Judgment and Lien.
(1) Upon the entry of the | 25 | | judgment of foreclosure, all rights of a party
in the | 26 | | foreclosure against the mortgagor provided for in the judgment |
| | | HB6951 | - 20 - | LRB096 24381 AJO 44009 b |
|
| 1 | | of foreclosure
or this Article shall be secured by a lien on | 2 | | the mortgaged
real estate, which lien shall have the same | 3 | | priority as the claim to
which the judgment relates and shall | 4 | | be terminated upon confirmation of a judicial
sale in | 5 | | accordance with this 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 foreclosure | 9 | | and (ii) all nonrecord claimants given notice in
accordance | 10 | | with paragraph (2) of subsection (c) of Section 15-1502, shall
| 11 | | be solely as provided for in
the judgment of foreclosure and in | 12 | | this Article.
| 13 | | (Source: P.A. 85-907.)
| 14 | | Section 99. Effective date. This Act takes effect upon | 15 | | becoming law.
|
|