093_HB1401

 
                                     LRB093 06304 LCB 07738 b

 1        AN ACT concerning foreclosure.

 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 15-1504 as follows:

 6        (735 ILCS 5/15-1504) (from Ch. 110, par. 15-1504)
 7        Sec. 15-1504.  Pleadings and service.
 8        (a)  Form  of  Complaint.  A foreclosure complaint may be
 9    in substantially the following form:
10             (1)  Plaintiff files this complaint to foreclose the
11        mortgage  (or  other  conveyance  in  the  nature  of   a
12        mortgage)  (hereinafter  called  "mortgage")  hereinafter
13        described  and  joins the following person as defendants:
14        (here insert names of all defendants).
15             (2)  Attached as  Exhibit  "A"  is  a  copy  of  the
16        mortgage and as Exhibit "B" is a copy of the note secured
17        thereby.
18             (3)  Information concerning mortgage:
19                  (A)  Nature of instrument: (here insert whether
20             a  mortgage,  trust  deed or other instrument in the
21             nature of a mortgage, etc.)
22                  (B)  Date of mortgage:
23                  (C)  Name of mortgagor:
24                  (D)  Name of mortgagee:
25                  (E)  Date and place of recording:
26                  (F)  Identification of recording: (here  insert
27             book and page number or document number)
28                  (G)  Interest  subject  to the mortgage:  (here
29             insert  whether  fee  simple,  estate   for   years,
30             undivided interest, etc.)
31                  (H)  Amount of original indebtedness, including
 
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 1             subsequent advances made under the mortgage:
 2                  (I)  Both   the   legal   description   of  the
 3             mortgaged real estate  and  the  common  address  or
 4             other  information  sufficient  to  identify it with
 5             reasonable certainty:
 6                  (J)  Statement as to defaults,  including,  but
 7             not necessarily limited to, date of default, current
 8             unpaid   principal   balance,   per   diem  interest
 9             accruing, and any further information concerning the
10             default:
11                  (K)  Name of present owner of the real estate:
12                  (L)  Names of other persons who are  joined  as
13             defendants  and  whose  interest  in  or lien on the
14             mortgaged real estate is sought to be terminated:
15                  (M)  Names  of   defendants   claimed   to   be
16             personally liable for deficiency, if any:
17                  (N)  Capacity  in  which  plaintiff brings this
18             foreclosure (here indicate whether plaintiff is  the
19             legal  holder  of  the  indebtedness,  a pledgee, an
20             agent, the trustee under a trust deed or  otherwise,
21             as appropriate):
22                  (O)  Facts  in  support  of  redemption  period
23             shorter  than  the  longer  of (i) 7 months from the
24             date the mortgagor or, if more  than  one,  all  the
25             mortgagors  (I)  have been served with summons or by
26             publication or (II) have otherwise submitted to  the
27             jurisdiction of the court, or (ii) 3 months from the
28             entry  of  the  judgment  of  foreclosure, if sought
29             (here indicate whether based upon  the  real  estate
30             not  being  residential, abandonment, or real estate
31             value less than 90% of amount owed, etc.):
32                  (P)  Statement that the right of redemption has
33             been  waived  by  all  owners  of   redemption,   if
34             applicable:
 
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 1                  (Q)  Facts in support of request for attorneys'
 2             fees and of costs and expenses, if applicable:
 3                  (R)  Facts   in   support   of  a  request  for
 4             appointment  of  mortgagee  in  possession  or   for
 5             appointment   of  receiver,  and  identity  of  such
 6             receiver, if sought:
 7                  (S)  Offer  to  mortgagor  in  accordance  with
 8             Section 15-1402 to accept title to the  real  estate
 9             in  satisfaction of all indebtedness and obligations
10             secured by the mortgage without  judicial  sale,  if
11             sought:
12                  (T)  Name or names of defendants whose right to
13             possess   the   mortgaged  real  estate,  after  the
14             confirmation of a foreclosure sale, is sought to  be
15             terminated  and,  if not elsewhere stated, the facts
16             in support thereof:

17                         REQUEST FOR RELIEF
18        Plaintiff requests:
19             (i)  A judgment of foreclosure and sale.
20             (ii)  An  order  granting  a  shortened   redemption
21        period, if sought.
22             (iii)  A  personal  judgment  for  a  deficiency, if
23        sought.
24             (iv)  An order granting possession, if sought.
25             (v)  An order placing the mortgagee in possession or
26        appointing a receiver, if sought.
27             (vi)  A judgment  for  attorneys'  fees,  costs  and
28        expenses, if sought.
29                  (U)  The  name of the original lender providing
30             financing to the borrower.
31                  (V)  The  name  of  the  residential   mortgage
32             licensee  under  the  Residential Mortgage Licensing
33             Act of 1987 receiving compensation relating  to  the
34             financing  by  the  mortgagor  and  the  name of the
 
                            -4-      LRB093 06304 LCB 07738 b
 1             residential mortgage  licensee's  loan  officer  who
 2             signed  the  mortgage  loan application on behalf of
 3             the residential mortgage licensee.
 4                  (W)  The name of the real estate appraiser  who
 5             provided the appraisal on which the financing by the
 6             mortgagor  was  based  or  the name of the appraisal
 7             company if an electronic appraisal was submitted  to
 8             the original lender or residential mortgage licensee
 9             in regard to the financing.
10        (b)  Required  Information.  A foreclosure complaint need
11    contain only such statements and requests called for  by  the
12    form set forth in subsection (a) of Section 15-1504 as may be
13    appropriate  for  the  relief  sought.  Such complaint may be
14    filed as a counterclaim, may be joined with other  counts  or
15    may include in the same count additional matters or a request
16    for any additional relief permitted by Article II of the Code
17    of Civil Procedure.
18        (c)  Allegations.    The   statements   contained   in  a
19    complaint in the form set forth in subsection (a) of  Section
20    15-1504  are  deemed  and construed to include allegations as
21    follows:
22             (1)  on  the  date  indicated  the  obligor  of  the
23        indebtedness or other obligations secured by the mortgage
24        was justly  indebted  in  the  amount  of  the  indicated
25        original  indebtedness to the original mortgagee or payee
26        of the mortgage note;
27             (2)  that the exhibits attached are true and correct
28        copies of the mortgage and note and are incorporated  and
29        made a part of the complaint by express reference;
30             (3)  that the mortgagor was at the date indicated an
31        owner of the interest in the real estate described in the
32        complaint  and  that  as  of that date made, executed and
33        delivered the mortgage as security for the note or  other
34        obligations;
 
                            -5-      LRB093 06304 LCB 07738 b
 1             (4)  that the mortgage was recorded in the county in
 2        which  the  mortgaged real estate is located, on the date
 3        indicated, in the book and page or as the document number
 4        indicated;
 5             (5)  that defaults occurred as indicated;
 6             (6)  that at the time of the filing of the complaint
 7        the persons named as present owners are the owners of the
 8        indicated interests in and to the real estate described;
 9             (7)  that the mortgage constitutes  a  valid,  prior
10        and  paramount  lien  upon  the indicated interest in the
11        mortgaged real estate, which lien is prior  and  superior
12        to  the  right,  title,  interest,  claim  or lien of all
13        parties and nonrecord claimants whose  interests  in  the
14        mortgaged real estate are sought to be terminated;
15             (8)  that  by reason of the defaults alleged, if the
16        indebtedness has not matured by its terms, the  same  has
17        become  due  by  the  exercise, by the plaintiff or other
18        persons having such power, of a right or power to declare
19        immediately due and payable the whole of all indebtedness
20        secured by the mortgage;
21             (9)  that any and all notices of default or election
22        to declare the indebtedness  due  and  payable  or  other
23        notices  required to be given have been duly and properly
24        given;
25             (10)  that any and all periods  of  grace  or  other
26        period  of  time  allowed  for  the  performance  of  the
27        covenants or conditions claimed to be breached or for the
28        curing of any breaches have expired;
29             (11)  that the amounts indicated in the statement in
30        the  complaint are correctly stated and if such statement
31        indicates  any  advances  made  or  to  be  made  by  the
32        plaintiff or owner of  the  mortgage  indebtedness,  that
33        such  advances were, in fact, made or will be required to
34        be made, and under and by virtue of the mortgage the same
 
                            -6-      LRB093 06304 LCB 07738 b
 1        constitute  additional  indebtedness   secured   by   the
 2        mortgage; and
 3             (12)  that,  upon  confirmation  of  the  sale,  the
 4        holder of the certificate of sale or deed issued pursuant
 5        to  that  certificate  or,  if no certificate or deed was
 6        issued, the purchaser at the sale  will  be  entitled  to
 7        full  possession of the mortgaged real estate against the
 8        parties  named  in  clause  (T)  of  paragraph   (3)   of
 9        subsection  (a)  of  Section  15-1504 or elsewhere to the
10        same effect; the omission of  any  party  indicates  that
11        plaintiff  will  not seek a possessory order in the order
12        confirming sale unless the request is  subsequently  made
13        under  subsection  (h)  of Section 15-1701 or by separate
14        action under Article 9 of this Code.
15        (d)  Request for Fees and  Costs.   A  statement  in  the
16    complaint  that  plaintiff  seeks the inclusion of attorneys'
17    fees and of costs and expenses shall be deemed and  construed
18    to include allegations that:
19             (1)  plaintiff  has  been  compelled  to  employ and
20        retain attorneys to prepare and file the complaint and to
21        represent and advise the plaintiff in the foreclosure  of
22        the mortgage and the plaintiff will thereby become liable
23        for  the  usual,  reasonable  and  customary  fees of the
24        attorneys in that behalf;
25             (2)  that  the  plaintiff  has  been  compelled   to
26        advance  or will be compelled to advance, various sums of
27        money  in  payment   of   costs,   fees,   expenses   and
28        disbursements    incurred    in   connection   with   the
29        foreclosure, including, without limiting  the  generality
30        of  the  foregoing,  filing  fees,  stenographer's  fees,
31        witness  fees,  costs  of publication, costs of procuring
32        and preparing documentary evidence and costs of procuring
33        abstracts of  title,  Torrens  certificates,  foreclosure
34        minutes and a title insurance policy;
 
                            -7-      LRB093 06304 LCB 07738 b
 1             (3)  that  under the terms of the mortgage, all such
 2        advances, costs, attorneys' fees and other fees, expenses
 3        and disbursements are made a lien upon the mortgaged real
 4        estate and the plaintiff is entitled to recover all  such
 5        advances,    costs,   attorneys'   fees,   expenses   and
 6        disbursements, together with interest on all advances  at
 7        the  rate  provided  in  the  mortgage, or, if no rate is
 8        provided therein, at the statutory  judgment  rate,  from
 9        the date on which such advances are made;
10             (4)  that  in  order  to  protect  the  lien  of the
11        mortgage, it may become necessary for  plaintiff  to  pay
12        taxes  and  assessments  which have been or may be levied
13        upon the mortgaged real estate;
14             (5)  that in  order  to  protect  and  preserve  the
15        mortgaged  real  estate, it may also become necessary for
16        the plaintiff to pay liability (protecting mortgagor  and
17        mortgagee),  fire  and other hazard insurance premiums on
18        the mortgaged real  estate,  make  such  repairs  to  the
19        mortgaged   real  estate  as  may  reasonably  be  deemed
20        necessary for the proper  preservation  thereof,  advance
21        for  costs  to  inspect  the  mortgaged real estate or to
22        appraise it,  or  both,  and  advance  for  premiums  for
23        pre-existing  private  or governmental mortgage insurance
24        to the extent required after a foreclosure  is  commenced
25        in order to keep such insurance in force; and
26             (6)  that under the terms of the mortgage, any money
27        so   paid   or   expended   will   become  an  additional
28        indebtedness  secured  by  the  mortgage  and  will  bear
29        interest from the date such monies are  advanced  at  the
30        rate  provided  in  the  mortgage,  or,  if  no  rate  is
31        provided, at the statutory judgment rate.
32        (e)  Request    for   Foreclosure.    The   request   for
33    foreclosure  is  deemed  and  construed  to  mean  that   the
34    plaintiff requests that:
 
                            -8-      LRB093 06304 LCB 07738 b
 1             (1)  an  accounting may be taken under the direction
 2        of the  court  of  the  amounts  due  and  owing  to  the
 3        plaintiff;
 4             (2)  that  the  defendants  be ordered to pay to the
 5        plaintiff before expiration of any redemption period (or,
 6        if no redemption period, before a short date fixed by the
 7        court) whatever sums may appear to be due upon the taking
 8        of such account, together with attorneys' fees and  costs
 9        of  the  proceedings  (to  the  extent  provided  in  the
10        mortgage or by law);
11             (3)  that  in  default of such payment in accordance
12        with the judgment, the mortgaged real estate be  sold  as
13        directed  by  the court, to satisfy the amount due to the
14        plaintiff as set forth in the judgment, together with the
15        interest thereon at the statutory judgment rate from  the
16        date of the judgment;
17             (4)  that  in the event the plaintiff is a purchaser
18        of the mortgaged real estate at such sale, the  plaintiff
19        may offset against the purchase price of such real estate
20        the  amounts  due  under  the judgment of foreclosure and
21        order confirming the sale;
22             (5)  that in the event of such sale and the  failure
23        of  any  person  entitled thereto to redeem prior to such
24        sale  pursuant  to  this  Article,  the  defendants  made
25        parties  to  the  foreclosure  in  accordance  with  this
26        Article, and all nonrecord claimants given notice of  the
27        foreclosure  in  accordance  with  this  Article, and all
28        persons claiming by, through or under them, and each  and
29        any and all of them, may be forever barred and foreclosed
30        of  any  right, title, interest, claim, lien, or right to
31        redeem in and to the mortgaged real estate; and
32             (6)  that if no redemption is  made  prior  to  such
33        sale,  a  deed  may  be  issued  to the purchaser thereat
34        according  to  law  and  such  purchaser  be   let   into
 
                            -9-      LRB093 06304 LCB 07738 b
 1        possession  of  the  mortgaged  real estate in accordance
 2        with Part 17 of this Article.
 3        (f)  Request for Deficiency Judgment.  A  request  for  a
 4    personal judgment for a deficiency in a foreclosure complaint
 5    if  the  sale of the mortgaged real estate fails to produce a
 6    sufficient amount to pay the amount found due,  the plaintiff
 7    may have  a  personal  judgment  against  any  party  in  the
 8    foreclosure indicated as being personally liable therefor and
 9    the enforcement thereof be had as provided by law.
10        (g)  Request  for  Possession  or Receiver. A request for
11    possession or appointment of a receiver has  the  meaning  as
12    stated in subsection (b) of Section 15-1706.
13        (h)  Answers   by  Parties.  Any  party  may  assert  its
14    interest by counterclaim and such  counterclaim  may  at  the
15    option of that party stand in lieu of answer to the complaint
16    for  foreclosure  and  all  counter  complaints previously or
17    thereafter filed in the foreclosure.  Any  such  counterclaim
18    shall  be  deemed  to constitute a statement that the counter
19    claimant does not have sufficient knowledge to form a  belief
20    as  to  the  truth  or  falsity  of  the  allegations  of the
21    complaint and all other counterclaims, except to  the  extent
22    that  the  counterclaim  admits  or  specifically denies such
23    allegations.
24    (Source: P.A. 91-357, eff. 7-29-99.)