Rep. Marlow H. Colvin
Filed: 4/16/2008
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1 | AMENDMENT TO HOUSE BILL 838
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2 | AMENDMENT NO. ______. Amend House Bill 838, AS AMENDED, by | ||||||
3 | replacing everything after the enacting clause with the | ||||||
4 | following:
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5 | "Section 5. The Code of Civil Procedure is amended by | ||||||
6 | changing Section 15-1510 and by adding Sections 15-1504.5 and | ||||||
7 | 15-1505.5 as follows: | ||||||
8 | (735 ILCS 5/15-1504.5 new)
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9 | Sec. 15-1504.5. Homeowner notice to be attached to summons. | ||||||
10 | For all residential foreclosure actions filed, the plaintiff | ||||||
11 | must attach a Homeowner Notice to the summons. The Homeowner | ||||||
12 | Notice must be in at least 12 point type and in English and | ||||||
13 | Spanish. The Notice must be in substantially the following | ||||||
14 | form: | ||||||
15 | IMPORTANT INFORMATION FOR HOMEOWNERS IN FORECLOSURE |
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1 | 1. POSSESSION: The lawful occupants of a home have the | ||||||
2 | right to live in the home until a judge enters an order for | ||||||
3 | possession. | ||||||
4 | 2. OWNERSHIP: You continue to own your home until the | ||||||
5 | court rules otherwise. | ||||||
6 | 3. REINSTATEMENT: As the homeowner you have the right | ||||||
7 | to bring the mortgage current within 90 days after you | ||||||
8 | receive the summons. | ||||||
9 | 4. REDEMPTION: As the homeowner you have the right to | ||||||
10 | sell your home, refinance, or pay off the loan during the | ||||||
11 | redemption period. | ||||||
12 | 5. SURPLUS: As the homeowner you have the right to | ||||||
13 | petition the court for any excess money that results from a | ||||||
14 | foreclosure sale of your home. | ||||||
15 | 6. WORKOUT OPTIONS: The mortgage company does not want | ||||||
16 | to foreclose on your home if there is any way to avoid it. | ||||||
17 | Call your mortgage company [insert name of the homeowner's | ||||||
18 | current mortgage servicer in bold and 14 point type] or its | ||||||
19 | attorneys to find out the alternatives to foreclosure. | ||||||
20 | 7. GET ADVICE: This information is not exhaustive and | ||||||
21 | does not replace the advice of a professional. You may have | ||||||
22 | other options. Get professional advice from a lawyer or | ||||||
23 | certified housing counselor about your rights and options | ||||||
24 | to avoid foreclosure. | ||||||
25 | 8. LAWYER: If you do not have a lawyer, you may be able |
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1 | to find assistance by contacting the Illinois State Bar | ||||||
2 | Association or a legal aid organization that provides free | ||||||
3 | legal assistance. | ||||||
4 | 9. PROCEED WITH CAUTION: You may be contacted by people | ||||||
5 | offering to help you avoid foreclosure. Before entering | ||||||
6 | into any transaction with persons offering to help you, | ||||||
7 | please contact a lawyer, government official, or housing | ||||||
8 | counselor for advice. | ||||||
9 | (735 ILCS 5/15-1505.5 new)
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10 | Sec. 15-1505.5. Payoff demands. | ||||||
11 | (a) In a foreclosure action subject to this Article, on the | ||||||
12 | written demand of a mortgagor or the mortgagor's authorized | ||||||
13 | agent, a mortgagee or the mortgagee's authorized agent shall | ||||||
14 | prepare and deliver an accurate statement of the total | ||||||
15 | outstanding balance of the mortgagor's obligation that would be | ||||||
16 | required to satisfy the obligation in full as of the date of | ||||||
17 | preparation ("payoff demand statement") to the mortgagor or the | ||||||
18 | mortgagor's authorized agent who has requested it within 10 | ||||||
19 | business days after receipt of the demand. For purposes of this | ||||||
20 | Section, a payoff demand statement is accurate if prepared in | ||||||
21 | good faith based on the records of the mortgagee or the | ||||||
22 | mortgagee's agent. | ||||||
23 | (b) The payoff demand statement shall include the | ||||||
24 | following: | ||||||
25 | (1) The information necessary to calculate the payoff |
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1 | amount on a per diem basis for a period of 30 days; | ||||||
2 | (2) Estimated charges (stated as such) that the | ||||||
3 | mortgagee reasonably believes may be incurred within 30 | ||||||
4 | days from the date of preparation of the payoff demand | ||||||
5 | statement; and | ||||||
6 | (3) The loan number for the obligation to be paid, the | ||||||
7 | address of the mortgagee, the telephone number of the | ||||||
8 | mortgagee and, if a banking organization or corporation, | ||||||
9 | the name of the department, if applicable, and its | ||||||
10 | telephone number and facsimile phone number. | ||||||
11 | (c) A mortgagee or mortgagee's agent who willfully fails to | ||||||
12 | prepare and deliver an accurate payoff demand statement within | ||||||
13 | 10 business days after receipt of a written demand is liable to | ||||||
14 | the mortgagor for actual damages sustained for failure to | ||||||
15 | deliver the statement. The mortgagee or mortgagee's agent is | ||||||
16 | liable to the mortgagor for $500 if no actual damages are | ||||||
17 | sustained. For purposes of this subsection, "willfully" means a | ||||||
18 | failure to comply with this Section without just cause or | ||||||
19 | excuse or mitigating circumstances. | ||||||
20 | (d) The mortgagor must petition the judge within the | ||||||
21 | foreclosure action for the award of any damages pursuant to | ||||||
22 | this Section, which award shall be determined by the judge. | ||||||
23 | (e) Unless the payoff demand statement provides otherwise, | ||||||
24 | the statement is deemed to apply only to the unpaid balance of | ||||||
25 | the single obligation that is named in the demand and that is | ||||||
26 | secured by the mortgage or deed of trust identified in the |
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1 | payoff demand statement. | ||||||
2 | (f) The demand for and preparation and delivery of a payoff | ||||||
3 | demand statement pursuant to this Section does not change any | ||||||
4 | date or time period that is prescribed in the note or that is | ||||||
5 | otherwise provided by law. Failure to comply with any provision | ||||||
6 | of this Section does not change any of the rights of the | ||||||
7 | parties as set forth in the note, mortgage or applicable law. | ||||||
8 | (g) The mortgagee or mortgagee's agent shall furnish the | ||||||
9 | first payoff demand statement at no cost to the mortgagor. | ||||||
10 | (h) For the purposes of this Section, unless the context | ||||||
11 | otherwise requires, "deliver" or "delivery" means depositing | ||||||
12 | or causing to be deposited into the United States mail an | ||||||
13 | envelope with postage prepaid that contains a copy of the | ||||||
14 | documents to be delivered and that is addressed to the person | ||||||
15 | whose name and address are provided in the payoff demand. | ||||||
16 | "Delivery" may also include transmitting those documents by | ||||||
17 | telephone facsimile to the person or electronically if the | ||||||
18 | payoff demand specifically requests and authorizes that the | ||||||
19 | documents be transmitted in electronic form.
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20 | (735 ILCS 5/15-1510) (from Ch. 110, par. 15-1510)
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21 | Sec. 15-1510. Attorney's Fees and Costs by Written | ||||||
22 | Agreement . | ||||||
23 | (a) The court may award reasonable attorney's fees and | ||||||
24 | costs to the defendant who prevails in a motion, including an | ||||||
25 | affirmative defense or counterclaim, or in the foreclosure |
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1 | action. Nothing in this subsection shall abrogate contractual | ||||||
2 | terms in the mortgage which allow the mortgagee to recover | ||||||
3 | attorney's fees and costs under subsection (b). | ||||||
4 | (b) Attorneys' fees and other costs incurred in connection | ||||||
5 | with the
preparation, filing or prosecution of the foreclosure | ||||||
6 | suit shall be
recoverable in a foreclosure only to the extent
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7 | specifically set forth in the mortgage or other written | ||||||
8 | agreement between
the mortgagor and the mortgagee or as | ||||||
9 | otherwise provided in this Article.
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10 | (Source: P.A. 86-974.)
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11 | Section 99. Effective date. This Act takes effect January | ||||||
12 | 1, 2009.".
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