Judiciary I - Civil Law Committee
Filed: 3/12/2008
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1 | AMENDMENT TO HOUSE BILL 838
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2 | AMENDMENT NO. ______. Amend House Bill 838 by replacing | ||||||
3 | everything after the enacting clause with the following:
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4 | "Section 5. The Code of Civil Procedure is amended by | ||||||
5 | changing Sections 15-1504 and 15-1510 and by adding Sections | ||||||
6 | 15-1504.5 and 15-1505.5 as follows:
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7 | (735 ILCS 5/15-1504) (from Ch. 110, par. 15-1504)
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8 | Sec. 15-1504. Pleadings and service.
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9 | (a) Form of Complaint. A copy of the mortgage and note | ||||||
10 | secured thereby must be attached to the foreclosure complaint. | ||||||
11 | If any note required to be attached to a complaint filed | ||||||
12 | pursuant to this subsection (a) of Section 15-1504 of this Code | ||||||
13 | cannot be located for filing as an exhibit after due diligence | ||||||
14 | by the moving party of such a complaint, the moving party must | ||||||
15 | file an affidavit stating the following: | ||||||
16 | (i) All the holders of the note; |
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1 | (ii) The time each note holder held the note identified | ||||||
2 | by the day, month, and year; and | ||||||
3 | (iii) The reasonable efforts made by the moving party | ||||||
4 | to obtain the note. | ||||||
5 | A foreclosure complaint
may be in substantially the | ||||||
6 | following form:
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7 | (1) Plaintiff files this complaint to foreclose the | ||||||
8 | mortgage (or other
conveyance in the nature of a mortgage) | ||||||
9 | (hereinafter called "mortgage")
hereinafter described and | ||||||
10 | joins the following person as defendants: (here
insert | ||||||
11 | names of all defendants).
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12 | (2) Attached as Exhibit "A" is a copy of the mortgage | ||||||
13 | and as Exhibit "B"
is a copy of the note secured thereby.
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14 | (3) Information concerning mortgage:
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15 | (A) Nature of instrument: (here insert whether a | ||||||
16 | mortgage, trust deed or
other instrument in the nature | ||||||
17 | of a mortgage, etc.)
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18 | (B) Date of mortgage:
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19 | (C) Name of mortgagor:
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20 | (D) Name of mortgagee:
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21 | (E) Date and place of recording:
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22 | (F) Identification of recording: (here insert book | ||||||
23 | and page number or document number)
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24 | (G) Interest subject to the mortgage: (here insert | ||||||
25 | whether fee simple,
estate for years, undivided | ||||||
26 | interest, etc.)
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1 | (H) Amount of original indebtedness, including | ||||||
2 | subsequent advances made
under the mortgage:
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3 | (I) Both the legal description of the mortgaged | ||||||
4 | real estate and the
common address or other information | ||||||
5 | sufficient to identify it with reasonable certainty:
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6 | (J) Statement as to defaults, including, but not | ||||||
7 | necessarily
limited to, date of default, current | ||||||
8 | unpaid principal balance, per diem
interest accruing, | ||||||
9 | and any further information concerning the default:
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10 | (K) Name of present owner of the real estate:
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11 | (L) Names of other persons who are joined as | ||||||
12 | defendants and whose
interest in or lien on the | ||||||
13 | mortgaged real estate is sought to be terminated:
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14 | (M) Names of defendants claimed to be personally | ||||||
15 | liable
for deficiency, if any:
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16 | (N) The real party in interest which Capacity in | ||||||
17 | which plaintiff brings this foreclosure (here indicate
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18 | whether plaintiff is the legal holder of the | ||||||
19 | indebtedness, a pledgee, an
agent, the trustee under a | ||||||
20 | trust deed or otherwise, as appropriate):
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21 | (O) Facts in support of redemption period shorter | ||||||
22 | than
the longer of (i) 7 months from the date the | ||||||
23 | mortgagor or, if more than
one, all the mortgagors (I) | ||||||
24 | have been served with summons or by publication
or (II) | ||||||
25 | have otherwise submitted to the jurisdiction of the | ||||||
26 | court, or (ii)
3 months from the entry of the judgment |
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1 | of foreclosure, if sought (here
indicate whether based | ||||||
2 | upon the real estate not being residential,
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3 | abandonment, or real estate value less than 90%
of | ||||||
4 | amount owed, etc.):
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5 | (P) Statement that the right of redemption has been | ||||||
6 | waived by all
owners of redemption, if applicable:
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7 | (Q) Facts in support of request for attorneys' fees | ||||||
8 | and of costs and
expenses, if applicable:
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9 | (R) Facts in support of a request for appointment | ||||||
10 | of mortgagee in
possession or for appointment of | ||||||
11 | receiver, and identity of such receiver, if
sought:
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12 | (S) Offer to mortgagor in accordance with Section | ||||||
13 | 15-1402 to accept
title to the real estate in | ||||||
14 | satisfaction of all indebtedness and
obligations | ||||||
15 | secured by the mortgage without judicial sale, if | ||||||
16 | sought:
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17 | (T) Name or names of defendants whose right to
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18 | possess the mortgaged real estate, after the | ||||||
19 | confirmation of a foreclosure
sale, is
sought to be | ||||||
20 | terminated and, if not elsewhere stated, the facts in | ||||||
21 | support
thereof:
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22 | REQUEST FOR RELIEF
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23 | Plaintiff requests:
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24 | (i) A judgment of foreclosure and sale.
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25 | (ii) An order granting a shortened redemption period, |
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1 | if sought.
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2 | (iii) A personal judgment for a deficiency, if sought.
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3 | (iv) An order granting possession, if sought.
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4 | (v) An order placing the mortgagee in possession or | ||||||
5 | appointing a receiver,
if sought.
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6 | (vi) A judgment for attorneys' fees, costs and | ||||||
7 | expenses, if sought.
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8 | (b) Required Information. A foreclosure complaint need | ||||||
9 | contain only such
statements and requests called for by the | ||||||
10 | form set forth in subsection (a) of
Section
15-1504 as may be | ||||||
11 | appropriate for the relief sought. Such complaint may
be filed | ||||||
12 | as a counterclaim, may be joined with other counts or may | ||||||
13 | include
in the same count additional matters or a request for | ||||||
14 | any additional
relief permitted by Article
II of the Code of | ||||||
15 | Civil Procedure.
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16 | (c) Allegations. The statements contained in a complaint in | ||||||
17 | the form
set forth in subsection (a) of Section 15-1504 are | ||||||
18 | deemed and construed to include
allegations as follows:
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19 | (1) on the date indicated the obligor of the | ||||||
20 | indebtedness or other
obligations secured by the mortgage | ||||||
21 | was justly indebted in the amount of
the indicated original | ||||||
22 | indebtedness to the original mortgagee or payee of
the | ||||||
23 | mortgage note;
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24 | (2) that the exhibits attached are true and correct | ||||||
25 | copies of the
mortgage and note and are incorporated and | ||||||
26 | made a part of the complaint by
express reference;
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1 | (3) that the mortgagor was at the date indicated an | ||||||
2 | owner of the
interest in the real estate described in the | ||||||
3 | complaint and that as of that
date made, executed and | ||||||
4 | delivered the mortgage as security for the note or
other | ||||||
5 | obligations;
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6 | (4) that the mortgage was recorded in the county in | ||||||
7 | which the mortgaged
real estate is located, on the date | ||||||
8 | indicated, in the book and page or as
the document number | ||||||
9 | indicated;
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10 | (5) that defaults occurred as indicated;
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11 | (6) that at the time of the filing of the complaint the | ||||||
12 | persons named as
present owners are the owners of the | ||||||
13 | indicated interests in and to the real
estate described;
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14 | (7) that the mortgage constitutes a valid, prior and | ||||||
15 | paramount lien upon
the indicated interest in the mortgaged | ||||||
16 | real estate, which lien is prior and
superior to the right, | ||||||
17 | title, interest, claim or lien of all parties and
nonrecord | ||||||
18 | claimants whose interests in the mortgaged real estate are
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19 | sought to be terminated;
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20 | (8) that by reason of the defaults alleged, if the | ||||||
21 | indebtedness has not
matured by its terms, the same has | ||||||
22 | become due by the exercise, by the
plaintiff or other | ||||||
23 | persons having such power, of a right or power to
declare | ||||||
24 | immediately due and payable the whole of all indebtedness | ||||||
25 | secured
by the mortgage;
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26 | (9) that any and all notices of default or election to |
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1 | declare the
indebtedness due and payable or other notices | ||||||
2 | required to be given have
been duly and properly given;
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3 | (10) that any and all periods of grace or other period | ||||||
4 | of time allowed
for the performance of the covenants or | ||||||
5 | conditions claimed to be breached
or for the curing of any | ||||||
6 | breaches have expired;
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7 | (11) that the amounts indicated in the statement
in the | ||||||
8 | complaint are correctly stated and
if such statement | ||||||
9 | indicates any advances made or to be made by the
plaintiff | ||||||
10 | or owner of the mortgage indebtedness, that such advances | ||||||
11 | were,
in fact, made or will be
required to be made, and | ||||||
12 | under and by virtue of the mortgage the same
constitute | ||||||
13 | additional indebtedness secured by the mortgage; and
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14 | (12) that, upon confirmation of the sale, the holder of | ||||||
15 | the certificate
of sale or deed issued pursuant to that | ||||||
16 | certificate or, if no certificate or
deed was issued, the | ||||||
17 | purchaser at the sale will be entitled to full possession
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18 | of the mortgaged real estate against the parties
named in | ||||||
19 | clause (T) of
paragraph (3) of subsection (a) of Section | ||||||
20 | 15-1504 or elsewhere to the same
effect;
the omission of | ||||||
21 | any
party indicates that plaintiff will not seek a | ||||||
22 | possessory order in the order
confirming sale unless the | ||||||
23 | request is subsequently made under subsection (h) of
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24 | Section 15-1701 or by separate action under Article 9 of | ||||||
25 | this Code.
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26 | (d) Request for Fees and Costs. A statement in the |
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1 | complaint that
plaintiff seeks the inclusion of attorneys' fees | ||||||
2 | and of costs and expenses
shall be deemed and construed to | ||||||
3 | include allegations that:
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4 | (1) plaintiff has been compelled to employ and retain | ||||||
5 | attorneys to
prepare and file the complaint and to | ||||||
6 | represent and advise the plaintiff in
the foreclosure of | ||||||
7 | the mortgage and the plaintiff will thereby become
liable | ||||||
8 | for the usual, reasonable and customary fees of the | ||||||
9 | attorneys in
that behalf;
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10 | (2) that the plaintiff has been compelled to advance or | ||||||
11 | will be
compelled to advance, various sums of money in | ||||||
12 | payment of costs, fees,
expenses and disbursements | ||||||
13 | incurred in connection with the foreclosure,
including, | ||||||
14 | without limiting the generality of the foregoing, filing | ||||||
15 | fees,
stenographer's fees, witness fees, costs of | ||||||
16 | publication, costs of procuring
and preparing documentary | ||||||
17 | evidence and costs of procuring
abstracts of title, Torrens | ||||||
18 | certificates, foreclosure minutes and a title
insurance | ||||||
19 | policy;
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20 | (3) that under the terms of the mortgage, all such | ||||||
21 | advances, costs,
attorneys' fees and other fees, expenses | ||||||
22 | and disbursements are made a lien
upon the mortgaged real | ||||||
23 | estate and the plaintiff is entitled to recover all
such | ||||||
24 | advances, costs, attorneys' fees, expenses and | ||||||
25 | disbursements, together
with interest on all advances at | ||||||
26 | the rate provided in the mortgage, or, if
no rate is |
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1 | provided therein, at the statutory judgment rate, from the
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2 | date on which such advances are made;
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3 | (4) that in order to protect the lien of the mortgage, | ||||||
4 | it may become
necessary for plaintiff to pay taxes and | ||||||
5 | assessments which have been or may
be levied upon the | ||||||
6 | mortgaged real estate;
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7 | (5) that in order to protect and preserve the mortgaged | ||||||
8 | real estate, it
may also become necessary for the plaintiff | ||||||
9 | to pay liability (protecting
mortgagor and mortgagee), | ||||||
10 | fire and other hazard
insurance premiums on the mortgaged | ||||||
11 | real estate, make such repairs
to the mortgaged real
estate | ||||||
12 | as may reasonably be deemed necessary for the proper | ||||||
13 | preservation
thereof, advance for costs to inspect the | ||||||
14 | mortgaged real estate or to
appraise it, or both, and | ||||||
15 | advance for premiums for pre-existing private or
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16 | governmental mortgage insurance to the extent required | ||||||
17 | after a foreclosure
is commenced in order to keep such | ||||||
18 | insurance in force; and
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19 | (6) that under the terms of the mortgage, any money so | ||||||
20 | paid or expended
will become an additional indebtedness | ||||||
21 | secured by the mortgage and will bear
interest from the | ||||||
22 | date such monies are advanced at the rate provided in the
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23 | mortgage, or, if no rate is provided, at the
statutory | ||||||
24 | judgment rate.
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25 | (e) Request for Foreclosure. The request for foreclosure is | ||||||
26 | deemed and
construed to mean that the plaintiff requests that:
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1 | (1) an accounting may be taken under the direction of | ||||||
2 | the court of the
amounts due and owing to the plaintiff;
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3 | (2) that the defendants be ordered to pay to the | ||||||
4 | plaintiff before
expiration of any redemption period (or, | ||||||
5 | if no redemption period, before a
short date fixed by the | ||||||
6 | court) whatever sums may appear to be due upon the taking
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7 | of such account,
together with attorneys' fees and costs of | ||||||
8 | the proceedings (to the extent
provided in the mortgage or | ||||||
9 | by law);
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10 | (3) that in default of such payment in accordance with | ||||||
11 | the judgment, the
mortgaged real estate be sold as directed | ||||||
12 | by the court, to satisfy the
amount due to the plaintiff as | ||||||
13 | set forth in the judgment, together with the
interest | ||||||
14 | thereon at the statutory judgment rate from the date of the | ||||||
15 | judgment;
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16 | (4) that in the event the plaintiff is a purchaser of | ||||||
17 | the mortgaged real
estate at such sale, the plaintiff may | ||||||
18 | offset against the purchase price of
such real estate the | ||||||
19 | amounts due under the judgment of foreclosure and
order | ||||||
20 | confirming the sale;
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21 | (5) that in the event of such sale and the failure of | ||||||
22 | any person entitled
thereto to redeem prior to such sale | ||||||
23 | pursuant to this Article, the
defendants made parties to | ||||||
24 | the foreclosure in accordance with this Article,
and all | ||||||
25 | nonrecord claimants given notice of the foreclosure in | ||||||
26 | accordance
with this Article, and all persons claiming by, |
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1 | through or under them, and
each and any and all of them, | ||||||
2 | may be forever barred and foreclosed of any
right, title, | ||||||
3 | interest, claim, lien, or right to redeem in and to the
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4 | mortgaged real estate; and
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5 | (6) that if no redemption is made prior to such sale, a | ||||||
6 | deed may be
issued to the purchaser thereat according to | ||||||
7 | law and such purchaser be let
into possession of the | ||||||
8 | mortgaged real estate in accordance with Part 17 of this | ||||||
9 | Article.
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10 | (f) Request for Deficiency Judgment. A request for a | ||||||
11 | personal judgment
for a deficiency in a foreclosure complaint | ||||||
12 | if the sale of the mortgaged
real estate fails to produce a | ||||||
13 | sufficient amount to pay the amount found
due, the plaintiff | ||||||
14 | may have a personal judgment against any party in the
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15 | foreclosure indicated as being personally liable therefor and | ||||||
16 | the enforcement
thereof be had as provided by law.
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17 | (g) Request for Possession or Receiver. A request for | ||||||
18 | possession or appointment
of a receiver has the meaning as | ||||||
19 | stated in subsection (b) of Section 15-1706.
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20 | (h) Answers by Parties. Any party
may assert its interest | ||||||
21 | by counterclaim and such counterclaim may at the
option of that | ||||||
22 | party stand in lieu of answer to the complaint for
foreclosure | ||||||
23 | and all counter complaints previously or thereafter filed
in | ||||||
24 | the foreclosure. Any such counterclaim shall be deemed to | ||||||
25 | constitute a
statement that the counter claimant does not have | ||||||
26 | sufficient knowledge to
form a belief as to the truth or |
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1 | falsity of the
allegations of the complaint and all other | ||||||
2 | counterclaims, except
to the extent that the counterclaim | ||||||
3 | admits or specifically denies such
allegations.
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4 | (Source: P.A. 91-357, eff. 7-29-99.)
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5 | (735 ILCS 5/15-1504.5 new) | ||||||
6 | Sec. 15-1504.5. Notice with complaint. For all residential | ||||||
7 | foreclosure actions filed, the plaintiff must attach a notice | ||||||
8 | to the summons and complaint that specifies to the defendant | ||||||
9 | mortgagor his or her statutory right to maintain homeownership | ||||||
10 | during the pendency of the foreclosure action. The notice must | ||||||
11 | be in substantially the following form: | ||||||
12 | a. As a homeowner, you have the following rights during the | ||||||
13 | foreclosure proceedings: | ||||||
14 | 1. POSSESSION: The lawful occupants may be able to live | ||||||
15 | in the house until a judge enters an order of eviction. | ||||||
16 | 2. OWNERSHIP: You may have the right to sell the house | ||||||
17 | or refinance the mortgage during the redemption period. | ||||||
18 | 3. REINSTATEMENT: You may have the right to bring the | ||||||
19 | mortgage current within 90 days after you receive this | ||||||
20 | Summons. | ||||||
21 | 4. REDEMPTION: You may have the right to pay off the | ||||||
22 | loan during the redemption period. | ||||||
23 | 5. SURPLUS: You have the right to petition for any | ||||||
24 | excess money that results from a foreclosure sale of the | ||||||
25 | house. |
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1 | 6. WORKOUT OPTIONS: The mortgage company does not want | ||||||
2 | to foreclosure the mortgage if there is any way to avoid | ||||||
3 | it. Call the mortgage company or its attorneys to find out | ||||||
4 | the alternatives to foreclosure. | ||||||
5 | 7. GET ADVICE: This information is not exhaustive and | ||||||
6 | does not replace the advice of a professional. You may have | ||||||
7 | other options. Get professional advice from a lawyer or | ||||||
8 | certified housing counselor about your rights and options | ||||||
9 | to avoid foreclosure. | ||||||
10 | 8. A LAWYER: If you do not have a lawyer, and are | ||||||
11 | unable to afford one, you may be able to find assistance by | ||||||
12 | contacting Illinois Legal Aid or the Illinois State Bar | ||||||
13 | Association. | ||||||
14 | 9. PROCEED WITH CAUTION: You may be contacted by people | ||||||
15 | offering to help you to avoid foreclosure. The Illinois | ||||||
16 | Mortgage Rescue Act provides you some protections in these | ||||||
17 | situations. Please follow these precautions: | ||||||
18 | a. Get legal advice before entering into any deal | ||||||
19 | involving your house. | ||||||
20 | b. Get legal advice before you pay money to any | ||||||
21 | person offering to help you avoid foreclosure. | ||||||
22 | c. Do not sign any papers you do not understand. | ||||||
23 | (735 ILCS 5/15-1505.5 new) | ||||||
24 | Sec. 15-1505.5. Payoff demands. | ||||||
25 | (a) On the written demand of a mortgagor or the mortgagor's |
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1 | authorized agent, a mortgagee or the mortgagee's authorized | ||||||
2 | agent shall prepare and deliver a payoff demand statement to | ||||||
3 | the mortgagor or the mortgagor's authorized agent who has | ||||||
4 | requested it within 5 business days after receipt of the | ||||||
5 | demand. | ||||||
6 | (b) The payoff demand statement shall provide the amounts | ||||||
7 | required as of the date of preparation and shall include the | ||||||
8 | information reasonably necessary to calculate the payoff | ||||||
9 | amount on a per diem basis for the time that the per diem | ||||||
10 | amount remains unchanged as provided in the note but not to | ||||||
11 | exceed 30 days. The payoff demand statement shall also include | ||||||
12 | the loan number for the obligation to be paid, the address of | ||||||
13 | the mortgagee, the telephone number of the mortgagee and, if a | ||||||
14 | banking organization or corporation, the name of the | ||||||
15 | department, and its telephone number and facsimile phone | ||||||
16 | number. | ||||||
17 | (c) The mortgagor or the mortgagor's authorized agent may | ||||||
18 | rely on a payoff demand statement for the purpose of | ||||||
19 | establishing the amount necessary to pay the obligation in full | ||||||
20 | and obtain a release of the mortgage or deed of trust that | ||||||
21 | secures the obligation through and including the time set forth | ||||||
22 | in the payoff demand statement. | ||||||
23 | (d) Any sums that were due the mortgagee or the mortgagee's | ||||||
24 | authorized agent that were not included in the payoff demand | ||||||
25 | statement or in any amended statement constitute an unsecured | ||||||
26 | obligation of the mortgagor pursuant to the terms of the note |
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1 | and are recoverable by the mortgagee or mortgagee's agent | ||||||
2 | pursuant to the terms of the note and as otherwise provided by | ||||||
3 | law. | ||||||
4 | (e) A mortgagee or mortgagee's agent who willfully fails to | ||||||
5 | prepare and deliver a payoff demand statement within 5 business | ||||||
6 | days after receipt of a written demand is liable to the | ||||||
7 | mortgagor for actual damages sustained for failure to deliver | ||||||
8 | the statement. The mortgagee or mortgagee's agent is liable to | ||||||
9 | the mortgagor for $500 if no actual damages are sustained. Each | ||||||
10 | failure of the mortgagee to prepare and deliver the payoff | ||||||
11 | demand statement when required to do so pursuant to this | ||||||
12 | Section constitutes a separate cause of action. For purposes of | ||||||
13 | this subsection, "willfully" means a failure to comply with | ||||||
14 | this Section without just cause or excuse. | ||||||
15 | (f) Unless the payoff demand statement provides otherwise, | ||||||
16 | the statement is deemed to apply only to the unpaid balance of | ||||||
17 | the single obligation that is named in the demand and that is | ||||||
18 | secured by the mortgage or deed of trust identified in the | ||||||
19 | payoff demand statement. | ||||||
20 | (g) The demand for and preparation and delivery of a payoff | ||||||
21 | demand statement pursuant to this Section does not change any | ||||||
22 | date or time period that is prescribed in the note or that is | ||||||
23 | otherwise provided by law. | ||||||
24 | (h) The mortgagee or mortgagee's agent may assess a fee of | ||||||
25 | no more than $10 for furnishing each payoff demand statement. | ||||||
26 | This is conclusively presumed to be reasonable. |
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1 | (i) For the purposes of this Section, unless the context | ||||||
2 | otherwise requires: | ||||||
3 | (1) "Deliver" or "delivery" means depositing or | ||||||
4 | causing to be deposited into the United States mail an | ||||||
5 | envelope with postage prepaid that contains a copy of the | ||||||
6 | documents to be delivered and that is addressed to the | ||||||
7 | person whose name and address are provided in the payoff | ||||||
8 | demand. Delivery may also include transmitting those | ||||||
9 | documents by telephone facsimile to the person or | ||||||
10 | electronically if the payoff demand specifically requests | ||||||
11 | and authorizes that the documents be transmitted in | ||||||
12 | electronic form. | ||||||
13 | (2) "Payoff demand" means a written demand for a payoff | ||||||
14 | demand statement made by the mortgagor or the mortgagor's | ||||||
15 | authorized agent. | ||||||
16 | (3) "Payoff demand statement" means a written | ||||||
17 | statement that is prepared in response to a written demand | ||||||
18 | made by a mortgagee or the mortgagee's authorized agent | ||||||
19 | that sets forth the amounts required by the beneficiary to | ||||||
20 | fully satisfy all of the obligations secured by the loan | ||||||
21 | that is the subject of the demand.
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22 | (735 ILCS 5/15-1510) (from Ch. 110, par. 15-1510)
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23 | Sec. 15-1510. Attorney's Fees and Costs by Written | ||||||
24 | Agreement. The court may award reasonable attorney's fees and | ||||||
25 | costs to the prevailing party in the foreclosure action. |
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1 | Attorneys' fees and other costs incurred in connection with the
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2 | preparation, filing or prosecution of the foreclosure suit | ||||||
3 | shall be
recoverable in a foreclosure only to the extent
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4 | specifically set forth in the mortgage or other written | ||||||
5 | agreement between
the mortgagor and the mortgagee or as | ||||||
6 | otherwise provided in this Article.
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7 | (Source: P.A. 86-974.)
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8 | Section 99. Effective date. This Act takes effect January | ||||||
9 | 1, 2009.".
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