Rep. Daniel J. Burke
Filed: 4/17/2007
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1 | AMENDMENT TO HOUSE BILL 1478
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2 | AMENDMENT NO. ______. Amend House Bill 1478 by replacing | ||||||
3 | everything after the enacting clause with the following:
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4 | "Section 5. The Residential Mortgage License Act of 1987 is | ||||||
5 | amended by adding Sections 4-15, 4-16, 5-6, 5-7, 5-8, 5-9, | ||||||
6 | 5-10, 5-11, 5-12, 5-13, 5-14, 5-15, 5-16, and 5-17 as follows: | ||||||
7 | (205 ILCS 635/4-15 new)
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8 | Sec. 4-15. Enforcement under the Consumer Fraud and | ||||||
9 | Deceptive Business Practices Act. The Attorney General may | ||||||
10 | enforce any violation of Section 5-6, 5-7, 5-8, 5-9, 5-10, | ||||||
11 | 5-11, 5-12, 5-13, 5-14, 5-15, or 5-16 of this Act as an | ||||||
12 | unlawful practice under the Consumer Fraud and Deceptive | ||||||
13 | Business Practices Act. | ||||||
14 | (205 ILCS 635/4-16 new)
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15 | Sec. 4-16. Private right of action. A borrower injured by a |
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1 | violation of the standards, duties, prohibitions, or | ||||||
2 | requirements of Sections 5-6, 5-7, 5-8, 5-9, 5-10, 5-11, 5-12, | ||||||
3 | 5-13, 5-14, 5-15, and 5-16 of this Act shall have a private | ||||||
4 | right of action. The remedies and rights provided for in this | ||||||
5 | Act are not exclusive, but cumulative, and all other applicable | ||||||
6 | claims are specifically preserved. | ||||||
7 | (205 ILCS 635/5-6 new)
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8 | Sec. 5-6. Verification of borrower's ability to repay. | ||||||
9 | (a) No lender or loan broker may make, provide, or arrange | ||||||
10 | for a residential mortgage loan without verifying the | ||||||
11 | borrower's reasonable ability to pay the principal and interest | ||||||
12 | on the loan, real estate taxes, homeowner's insurance, | ||||||
13 | assessments, and mortgage insurance premiums, if applicable. | ||||||
14 | For residential mortgage loans in which the interest rate | ||||||
15 | may vary, the reasonable ability to pay the principal and | ||||||
16 | interest on the loan shall be determined based on a fully | ||||||
17 | indexed rate, which rate shall be calculated by using the index | ||||||
18 | rate prevailing at the time of origination of the loan plus the | ||||||
19 | margin that will apply when calculating the adjustable rate | ||||||
20 | under the terms of the loan, assuming a fully amortizing | ||||||
21 | repayment schedule based on the term of the loan. | ||||||
22 | For loans that allow for negative amortization, the | ||||||
23 | principal amount of the loan shall be calculated by including | ||||||
24 | the maximum amount the principal balance may increase due to | ||||||
25 | negative amortization under the terms of the loan. |
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1 | (b) For all residential mortgage loans, the borrower's | ||||||
2 | income and financial resources must be verified by tax returns, | ||||||
3 | payroll receipts, bank records, or other similarly reliable | ||||||
4 | documents. A statement by the borrower to the broker or lender | ||||||
5 | of the borrower's income and resources is not sufficient to | ||||||
6 | establish the existence of the income or resources when | ||||||
7 | verifying the reasonable ability to pay. | ||||||
8 | (c) This Section does not apply to exempt persons or | ||||||
9 | entities as defined in subsection (d) of Section 1-4 of this | ||||||
10 | Act, except for those listed in item (v) of subdivision (1) of | ||||||
11 | subsection (d) of Section 1-4 of this Act and their employees, | ||||||
12 | notwithstanding item (1.5) of subsection (d) of Section 1-4 of | ||||||
13 | this Act. | ||||||
14 | (205 ILCS 635/5-7 new)
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15 | Sec. 5-7. Broker fiduciary duty. Any person, partnership, | ||||||
16 | association, corporation, or limited liability company engaged | ||||||
17 | in conduct described in subsection (o) of Section 1-4 of this | ||||||
18 | Act shall be considered to have created a fiduciary | ||||||
19 | relationship with the borrower in all cases and shall comply | ||||||
20 | with the duties imposed upon fiduciaries by statute or common | ||||||
21 | law. This Section does not apply to exempt persons or entities | ||||||
22 | as defined in subsection (d) of Section 1-4 of this Act, except | ||||||
23 | for those listed in item (v) of subdivision (1) of subsection | ||||||
24 | (d) of Section 1-4 of this Act and their employees, | ||||||
25 | notwithstanding item (1.5) of subsection (d) of Section 1-4 of |
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1 | this Act. | ||||||
2 | (205 ILCS 635/5-8 new)
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3 | Sec. 5-8. Prepayment penalties prohibited. No lender, or | ||||||
4 | person, partnership, association, corporation, or other entity | ||||||
5 | who engages in the business of originating residential mortgage | ||||||
6 | loans shall enter into a mortgage loan that contains a | ||||||
7 | provision requiring or permitting the imposition of a penalty, | ||||||
8 | fee, premium, or other charge in the event the residential | ||||||
9 | mortgage loan is prepaid in whole or in part. | ||||||
10 | (205 ILCS 635/5-9 new)
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11 | Sec. 5-9. Notice of change in loan terms. | ||||||
12 | (a) No lender or loan broker may fail to do either of the | ||||||
13 | following: | ||||||
14 | (1) Provide timely notice to the borrower of any | ||||||
15 | material change in the terms of the residential mortgage | ||||||
16 | loan. For purposes of this Section, a material change means | ||||||
17 | any of the following: | ||||||
18 | (A) A change in the type of loan being offered, | ||||||
19 | such as a fixed or variable rate loan or a loan with a | ||||||
20 | balloon payment. | ||||||
21 | (B) A change in the term of the loan, as reflected | ||||||
22 | in the number of monthly payments due before a final | ||||||
23 | payment is scheduled to be made. | ||||||
24 | (C) A change in the interest rate of more than |
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1 | 0.15%, or an equivalent increase in the amount of | ||||||
2 | discount points charged. | ||||||
3 | (D) A change in the regular monthly payment of | ||||||
4 | principal and interest of more than 5%. | ||||||
5 | (E) A change regarding the escrow of taxes or | ||||||
6 | insurance. | ||||||
7 | (F) A change regarding the payment of private | ||||||
8 | mortgage insurance. | ||||||
9 | (2) Timely inform the borrower if any fees payable by | ||||||
10 | the borrower to the lender or broker increase by more than | ||||||
11 | 10% or $100, whichever is greater. | ||||||
12 | (b) The disclosures required by this Section shall be | ||||||
13 | deemed timely if the lender or broker provides the borrower | ||||||
14 | with the revised information not later than 24 hours after the | ||||||
15 | change occurs or 24 hours before the residential mortgage loan | ||||||
16 | is closed, whichever is earlier. | ||||||
17 | (c) If an increase in the total amount of the fee to be | ||||||
18 | paid by the borrower to the lender or broker is not disclosed | ||||||
19 | in accordance with this Section, the lender or broker, whoever | ||||||
20 | received the increased fee, shall refund to the borrower the | ||||||
21 | amount by which the fee was increased. If the fee is financed | ||||||
22 | into the residential mortgage loan, the lender or broker shall | ||||||
23 | also refund to the borrower the interest that would accrue over | ||||||
24 | the term of the loan on that excess amount. | ||||||
25 | (d) This Section does not apply to exempt persons or | ||||||
26 | entities as defined in subsection (d) of Section 1-4 of this |
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1 | Act, except for those listed in item (v) of subdivision (1) of | ||||||
2 | subsection (d) of Section 1-4 of this Act and their employees, | ||||||
3 | notwithstanding item (1.5) of subsection (d) of Section 1-4 of | ||||||
4 | this Act. | ||||||
5 | (205 ILCS 635/5-10 new)
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6 | Sec. 5-10. Comparable monthly payment quotes. Any lender or | ||||||
7 | broker, when informing a borrower of the anticipated or actual | ||||||
8 | periodic payment amount for a first lien residential mortgage | ||||||
9 | loan orally or in writing, must inform the borrower that an | ||||||
10 | additional amount will be due for taxes and insurance and, if | ||||||
11 | known, disclose to the borrower the amount of the anticipated | ||||||
12 | or actual periodic escrow payments. Compliance with federal | ||||||
13 | laws requiring disclosure of a periodic payment amount | ||||||
14 | constitutes compliance with this Section, but only for purposes | ||||||
15 | of the particular disclosure required under federal law. This | ||||||
16 | Section does not apply to exempt persons or entities as defined | ||||||
17 | in subsection (d) of Section 1-4 of this Act, except for those | ||||||
18 | listed in item (v) of subdivision (1) of subsection (d) of | ||||||
19 | Section 1-4 of this Act and their employees, notwithstanding | ||||||
20 | item (1.5) of subsection (d) of Section 1-4 of this Act. | ||||||
21 | (205 ILCS 635/5-11 new)
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22 | Sec. 5-11. Requirement to provide borrower with a copy of | ||||||
23 | all appraisals. Lenders must provide to the borrower a complete | ||||||
24 | copy of any appraisal, including any appraisal generated using |
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1 | the Automated Valuation Model, obtained by the lender or loan | ||||||
2 | broker for use in underwriting the residential mortgage loan | ||||||
3 | not less than 14 days before the residential mortgage loan is | ||||||
4 | closed. This Section does not apply to exempt persons or | ||||||
5 | entities as defined in subsection (d) of Section 1-4 of this | ||||||
6 | Act, except for those listed in item (v) of subdivision (1) of | ||||||
7 | subsection (d) of Section 1-4 of this Act and their employees, | ||||||
8 | notwithstanding item (1.5) of subsection (d) of Section 1-4 of | ||||||
9 | this Act. | ||||||
10 | (205 ILCS 635/5-12 new)
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11 | Sec. 5-12. Prohibition on verbal promise to refinance on | ||||||
12 | more favorable terms. No lender or loan broker shall, in order | ||||||
13 | to induce a borrower to close a residential mortgage loan, | ||||||
14 | represent to the borrower that the lender or broker promises or | ||||||
15 | will be able to refinance the loan at a later date with more | ||||||
16 | favorable terms, unless the representation is set forth in | ||||||
17 | writing, states that the lender or broker is contractually | ||||||
18 | bound to refinance the loan at a later date, specifies the more | ||||||
19 | favorable terms, and is initialed by the borrower. This Section | ||||||
20 | does not apply to exempt persons or entities as defined in | ||||||
21 | subsection (d) of Section 1-4 of this Act, except for those | ||||||
22 | listed in item (v) of subdivision (1) of subsection (d) of | ||||||
23 | Section 1-4 of this Act and their employees, notwithstanding | ||||||
24 | item (1.5) of subsection (d) of Section 1-4 of this Act. |
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1 | (205 ILCS 635/5-13 new)
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2 | Sec. 5-13. Cap on delinquency charges allowed. A lender or | ||||||
3 | any person, partnership, association, corporation, or limited | ||||||
4 | liability company engaged in servicing may not collect, in the | ||||||
5 | case of any residential mortgage loan providing for the payment | ||||||
6 | thereof in 2 or more periodic installments, (i) for any loan | ||||||
7 | installment in default, more than one delinquency charge on | ||||||
8 | such loan installment regardless of the period during which it | ||||||
9 | remains in default or (ii) any delinquency charge for any | ||||||
10 | payment timely received by the lender or person engaged in | ||||||
11 | servicing under a written extension or deferral agreement. | ||||||
12 | (205 ILCS 635/5-14 new)
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13 | Sec. 5-14. Prohibition on equity stripping and loan | ||||||
14 | flipping. No loan broker may engage in equity stripping or loan | ||||||
15 | flipping, as those terms are defined in the Illinois Fairness | ||||||
16 | in Lending Act. | ||||||
17 | (205 ILCS 635/5-15 new)
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18 | Sec. 5-15. Prohibition on financing certain insurance | ||||||
19 | premiums. No lender may make, provide, or arrange for a | ||||||
20 | residential mortgage loan that finances, directly or | ||||||
21 | indirectly, any credit life, credit disability, or credit | ||||||
22 | unemployment insurance or any other life or health insurance | ||||||
23 | premiums; however, insurance premiums calculated and paid on a | ||||||
24 | monthly basis shall not be considered to be financed by the |
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1 | lender. | ||||||
2 | (205 ILCS 635/5-16 new)
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3 | Sec. 5-16. Prohibition on encouraging default. A lender or | ||||||
4 | broker or any person, partnership, association, corporation, | ||||||
5 | or limited liability company engaged in servicing may not | ||||||
6 | recommend or encourage default or the failure to make timely | ||||||
7 | payments on an existing residential mortgage loan or other debt | ||||||
8 | prior to and in connection with the closing or planned closing | ||||||
9 | of a residential mortgage loan that refinances all or any | ||||||
10 | portion of the existing loan or debt. This Section does not | ||||||
11 | apply to exempt persons or entities as defined in subsection | ||||||
12 | (d) of Section 1-4 of this Act, except for those listed in item | ||||||
13 | (v) of subdivision (1) of subsection (d) of Section 1-4 of this | ||||||
14 | Act and their employees, notwithstanding item (1.5) of | ||||||
15 | subsection (d) of Section 1-4 of this Act. | ||||||
16 | (205 ILCS 635/5-17 new)
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17 | Sec. 5-17. Severability. If any provision of this Act or | ||||||
18 | its application to any person or circumstance is held invalid, | ||||||
19 | the invalidity of that provision or application does not affect | ||||||
20 | other provisions or applications of this Act that can be given | ||||||
21 | effect without the invalid provision or application.
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22 | Section 10. The Code of Civil Procedure is amended by | ||||||
23 | changing Sections 2-606, 15-1504, 15-1507, 15-1508, 15-1510, |
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1 | and 15-1604 and by adding Sections 15-1224, 15-1500, 15-1502.5, | ||||||
2 | 15-1503.5, 15-1513, and 15-1514 as follows:
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3 | (735 ILCS 5/2-606) (from Ch. 110, par. 2-606)
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4 | Sec. 2-606. Exhibits. | ||||||
5 | (a) If a claim or defense is founded upon a written | ||||||
6 | instrument, a copy
thereof, or of so much of the same as is | ||||||
7 | relevant, must be attached to
the pleading as an exhibit or | ||||||
8 | recited therein, unless the pleader
attaches to his or her | ||||||
9 | pleading an affidavit stating facts showing that the
instrument | ||||||
10 | is not accessible to him or her. In pleading any written | ||||||
11 | instrument
a copy thereof may be attached to the pleading as an | ||||||
12 | exhibit. In either
case the exhibit constitutes a part of the | ||||||
13 | pleading for all purposes.
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14 | (b) If any note is required to be attached to a complaint | ||||||
15 | filed pursuant to subsection (a) of Section 15-1504 of this | ||||||
16 | Code, the affidavit filed by the pleader must state the | ||||||
17 | following: | ||||||
18 | (1) all the holders of the note; | ||||||
19 | (2) the time each note holder held the note identified | ||||||
20 | by the day, month, and year; and | ||||||
21 | (3) the reasonable efforts of the pleader to contact | ||||||
22 | the note holder, which shall at minimum include the name of | ||||||
23 | the representative, phone number, and address of each note | ||||||
24 | holder; the date each was contacted by the pleader to | ||||||
25 | ascertain whether the note holder was in possession of the |
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1 | note; and the reason provided by the representative that | ||||||
2 | explains why the note cannot be located.
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3 | (Source: P.A. 82-280.)
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4 | (735 ILCS 5/15-1224 new)
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5 | Sec. 15-1224. Servicer. "Servicer" means any individual or | ||||||
6 | entity that collects or remits or has the right or obligation | ||||||
7 | to collect or remit for any lender, noteowner, noteholder, or | ||||||
8 | itself payments, interest, principal, and trust items (such as | ||||||
9 | hazard insurance and taxes on a residential real estate loan) | ||||||
10 | in accordance with the terms of the residential real estate | ||||||
11 | loan; and includes loan payment follow-up, delinquency loan | ||||||
12 | follow-up, loan analysis, and any notifications to the borrower | ||||||
13 | that are necessary to enable the borrower to keep the loan | ||||||
14 | current and in good standing. | ||||||
15 | (735 ILCS 5/15-1500 new)
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16 | Sec. 15-1500. Purpose. Both the mortgagee and the servicer | ||||||
17 | of a residential real estate loan owe a duty of good faith and | ||||||
18 | fair dealing to the mortgagor in all dealings related to the | ||||||
19 | residential real estate loan. This duty includes, but is not | ||||||
20 | limited to, an obligation to avoid foreclosure on a residential | ||||||
21 | real estate, unless there is no other reasonable mechanism to | ||||||
22 | collect on the loan secured by the mortgage. For the purposes | ||||||
23 | of this Article, the servicer is the agent of the lender. |
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1 | (735 ILCS 5/15-1502.5 new)
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2 | Sec. 15-1502.5. Pre-foreclosure right to cure residential | ||||||
3 | real estate mortgage default. | ||||||
4 | (a) A mortgagor shall have the right to a pre-foreclosure | ||||||
5 | cure of a residential real estate loan default. A mortgagor | ||||||
6 | shall not be required to pay any charge, fee, or penalty | ||||||
7 | attributable to the exercise of the right to cure a default as | ||||||
8 | provided for in this Section. The mortgagor's payment of all | ||||||
9 | amounts past due for principal, interest, escrow, and late | ||||||
10 | charges, as specifically permitted in the residential real | ||||||
11 | estate loan and under this Article, shall cure a default. | ||||||
12 | (b) A mortgagee or servicer must send a written notice of | ||||||
13 | the pre-foreclosure right to cure, which includes the | ||||||
14 | information listed in subsection (c) of this Section, to the | ||||||
15 | mortgagor at least 30 days prior to accelerating a loan or | ||||||
16 | filing a complaint for judicial foreclosure, whichever comes | ||||||
17 | first. | ||||||
18 | (c) The notice shall clearly and conspicuously state to the | ||||||
19 | mortgagor all of the following: | ||||||
20 | (1) The name and address of the mortgagee or servicer. | ||||||
21 | (2) The nature of the default claimed on the | ||||||
22 | residential real estate loan and the mortgagor's right to | ||||||
23 | cure the default. | ||||||
24 | (3) The sum of money required to cure the default. If | ||||||
25 | the amount necessary to cure the default will change during | ||||||
26 | the pre-foreclosure right to cure period due to the |
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1 | application of a daily interest rate or the addition of | ||||||
2 | late fees as allowed by this Article, the notice shall | ||||||
3 | contain an accounting that provides sufficient information | ||||||
4 | to enable the mortgagor to calculate the amount at any | ||||||
5 | point during the 30-day period. | ||||||
6 | (4) The name, address, and telephone number of the | ||||||
7 | mortgagee or servicer whom the mortgagor may contact to | ||||||
8 | request this assistance, a repayment plan, forbearance, | ||||||
9 | loan modification, or another workout tool, if available. | ||||||
10 | (5) The name and telephone number of a representative | ||||||
11 | of the mortgagee or servicer whom the mortgagor may contact | ||||||
12 | if the mortgagor disagrees with the assertion that a | ||||||
13 | default has occurred or with the calculation of the amount | ||||||
14 | required to cure the default. | ||||||
15 | (6) The name, address, and phone number of a person to | ||||||
16 | whom the payment or tender curing the default may be made. | ||||||
17 | (7) The mortgagee or servicer may take steps to | ||||||
18 | accelerate the loan or terminate the mortgagor's ownership | ||||||
19 | in the property by commencing a foreclosure suit in a court | ||||||
20 | of competent jurisdiction if the mortgagor does not cure | ||||||
21 | the default. | ||||||
22 | (8) Upon expiration of the pre-foreclosure right to | ||||||
23 | cure period, the mortgagor shall still have the right to | ||||||
24 | cure the default if the mortgagee or servicer commences a | ||||||
25 | foreclosure action pursuant to Section 15-1602, 15-1603, | ||||||
26 | or 15-1604 of this Code, but the mortgagor may be |
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1 | responsible for the mortgagee's or servicer's court costs | ||||||
2 | and reasonable attorney's fees, as determined by a court of | ||||||
3 | competent jurisdiction. | ||||||
4 | (9) The right, if any, of the mortgagor to transfer the | ||||||
5 | real estate to another person subject to the security | ||||||
6 | interest and that the transferee may have the right to cure | ||||||
7 | the default as provided in this Section or Article, subject | ||||||
8 | to the mortgage documents. | ||||||
9 | (10) The mortgagor is advised to seek counsel from an | ||||||
10 | attorney of the mortgagor's own choosing concerning the | ||||||
11 | mortgagor's residential real estate mortgage default. The | ||||||
12 | mortgagor may be able to find assistance at, among others, | ||||||
13 | the United States Department of Housing and Urban | ||||||
14 | Development, the Legal Assistance Foundation of | ||||||
15 | Metropolitan Chicago, the Land of Lincoln Legal Assistance | ||||||
16 | Foundation, Prairie State Legal Services, the Illinois | ||||||
17 | State Bar Association, or a county bar association by | ||||||
18 | visiting the entity's website or calling its telephone | ||||||
19 | number. | ||||||
20 | (11) Even if the mortgagor does not participate in the | ||||||
21 | judicial proceeding, a judgment may still be entered | ||||||
22 | against the residential real estate. | ||||||
23 | (d) The notice required by this Section shall be in writing | ||||||
24 | or sent to the mortgagor's last known address by both first | ||||||
25 | class mail and registered or certified mail, return receipt | ||||||
26 | requested. The notice must also be sent by registered or |
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1 | certified mail, return receipt requested, to the address of the | ||||||
2 | property that is the subject of the residential real estate | ||||||
3 | mortgage, if different from the mortgagor's last known address. | ||||||
4 | The notice is deemed to have been effectuated on the date the | ||||||
5 | notice is mailed to the mortgagor. | ||||||
6 | (e) The notice required to be provided pursuant to this | ||||||
7 | Section is not required if the mortgagor has voluntarily | ||||||
8 | surrendered the property that is the subject of the residential | ||||||
9 | real estate mortgage. | ||||||
10 | (f) The duty of the mortgagee or servicer under this | ||||||
11 | Section to serve notice of the pre-foreclosure right to cure is | ||||||
12 | independent of any other duty to give notice under the common | ||||||
13 | law, principles of equity, State or federal statute, or a rule | ||||||
14 | of court and of any other right or remedy the mortgagor may | ||||||
15 | have as a result of the failure to give such notice. | ||||||
16 | (g) If a default is cured prior to the filing of a notice | ||||||
17 | of foreclosure pursuant to Section 15-1505 of this Code or the | ||||||
18 | initiation of any action to foreclose or to seize or transfer | ||||||
19 | residential real estate as allowed under this Article, the | ||||||
20 | mortgagee or servicer may not file a notice of foreclosure or | ||||||
21 | institute the foreclosure proceeding or other action for that | ||||||
22 | default. If a default is cured after the filing of notice of | ||||||
23 | foreclosure or initiation of any action to foreclose, the | ||||||
24 | mortgagee or servicer shall take such steps as are necessary to | ||||||
25 | terminate the foreclosure proceeding or other action. |
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1 | (735 ILCS 5/15-1503.5 new)
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2 | Sec. 15-1503.5. Payoff demands. | ||||||
3 | (a) For purposes of this Section: | ||||||
4 | "Deliver" or "delivery" means depositing or causing to be | ||||||
5 | deposited into the United States mail an envelope with postage | ||||||
6 | prepaid that contains a copy of the documents to be delivered | ||||||
7 | and that is addressed to the person whose name and address are | ||||||
8 | provided in the payoff demand. Delivery includes transmitting | ||||||
9 | those documents by telefacsimile machine to the person. | ||||||
10 | Delivery includes transmitting those documents electronically | ||||||
11 | if the payoff demand specifically requests and authorizes that | ||||||
12 | the documents be transmitted in electronic form. | ||||||
13 | "Payoff demand" means a written demand for a payoff demand | ||||||
14 | statement made by a mortgagor. | ||||||
15 | "Payoff demand statement" means a written statement that is | ||||||
16 | prepared in response to a written demand made by a mortgagor | ||||||
17 | that sets forth the amounts required by the mortgagee or | ||||||
18 | servicer to fully satisfy all of the obligations secured by the | ||||||
19 | loan that is the subject of the demand. | ||||||
20 | (b) On the written demand of a mortgagor, a mortgagee or | ||||||
21 | servicer shall prepare and deliver a payoff demand statement to | ||||||
22 | the person who has requested it within 5 business days after | ||||||
23 | receipt of the demand. | ||||||
24 | (c) The payoff demand statement shall provide the amounts | ||||||
25 | required to cure the default as of the date of preparation and | ||||||
26 | shall include the information reasonably necessary to |
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1 | calculate the payoff amount on a per diem basis. | ||||||
2 | (d) The mortgagor may rely on a payoff demand statement for | ||||||
3 | the purpose of establishing the amount necessary to pay the | ||||||
4 | obligation in full and obtain a release of the mortgage or deed | ||||||
5 | of trust that secures the obligation through and including the | ||||||
6 | time set forth in the payoff demand statement. | ||||||
7 | (e) Any sums that were due the mortgagor and that were not | ||||||
8 | included in the payoff demand statement or in any amended | ||||||
9 | statement constitute an unsecured obligation of the obligor and | ||||||
10 | are recoverable by the mortgagor pursuant to the terms of the | ||||||
11 | note and as otherwise provided by law. | ||||||
12 | (f) A mortgagee or servicer who fails to prepare and | ||||||
13 | deliver a payoff demand statement for 6 or more business days | ||||||
14 | after receipt of a written demand is liable to the mortgagor | ||||||
15 | for all damages sustained for failure to deliver the statement. | ||||||
16 | (g) Each failure of the mortgagee or servicer to prepare | ||||||
17 | and deliver the payoff demand statement when required to do so | ||||||
18 | pursuant to this Section constitutes a separate cause of | ||||||
19 | action. A judgment that awards a mortgagor a forfeiture or | ||||||
20 | damages or both for any failure to prepare and deliver a payoff | ||||||
21 | demand statement bars recovery of any other damages or | ||||||
22 | forfeiture for any other failure to prepare and deliver a | ||||||
23 | statement with respect to the same obligation, if the other | ||||||
24 | demand for the statement was made within 6 months before or | ||||||
25 | after the demand was made that resulted in the award. | ||||||
26 | (h) If the mortgagee or servicer has more than one branch, |
| |||||||
| |||||||
1 | office, or other place of business, the payoff demand statement | ||||||
2 | shall be made to the branch or office address provided in the | ||||||
3 | payment billing notice or payment book. Unless the payoff | ||||||
4 | demand statement provides otherwise, the statement is deemed to | ||||||
5 | apply only to the unpaid balance of the single obligation that | ||||||
6 | is named in the demand and that is secured by the mortgage or | ||||||
7 | deed of trust that is payable at the address that is provided | ||||||
8 | in the payment billing notice or payment book. | ||||||
9 | (i) The demand for and preparation and delivery of a payoff | ||||||
10 | demand statement pursuant to this Section does not change any | ||||||
11 | date or time period that is prescribed in the note or that is | ||||||
12 | otherwise provided by law. | ||||||
13 | (j) The mortgage or servicer may assess a fee of no more | ||||||
14 | than $1.50 for furnishing each payoff demand statement. This is | ||||||
15 | conclusively presumed to be reasonable.
| ||||||
16 | (735 ILCS 5/15-1504) (from Ch. 110, par. 15-1504)
| ||||||
17 | Sec. 15-1504. Pleadings and service.
| ||||||
18 | (a) Form of Complaint. A foreclosure complaint
may be in | ||||||
19 | substantially the following form:
| ||||||
20 | (1) Plaintiff files this complaint to foreclose the | ||||||
21 | mortgage (or other
conveyance in the nature of a mortgage) | ||||||
22 | (hereinafter called "mortgage")
hereinafter described and | ||||||
23 | joins the following person as defendants: (here
insert | ||||||
24 | names of all defendants).
| ||||||
25 | (2) The following exhibits and documents shall be |
| |||||||
| |||||||
1 | attached to the complaint: | ||||||
2 | (A) a copy of the mortgage (Exhibit "A"); | ||||||
3 | (B) a copy of the note secured by the mortgage | ||||||
4 | (Exhibit "B"); | ||||||
5 | (C) the HUD 1 Settlement Statement reflecting the | ||||||
6 | closing transaction for the loan secured by the | ||||||
7 | property (Exhibit "C"); | ||||||
8 | (D) a statement that identifies all prior holders | ||||||
9 | of the note and the time each note holder held the note | ||||||
10 | identified by the day, month, and year (Exhibit "D"); | ||||||
11 | (E) a statement that identifies current and all the | ||||||
12 | prior servicers of the note and the time each servicer | ||||||
13 | served the note identified by the day, month, and year | ||||||
14 | (Exhibit "E"); and | ||||||
15 | (F) a statement that documents all debits and | ||||||
16 | credits to the mortgage account during the period of | ||||||
17 | time, including, but not limited to, the application | ||||||
18 | and disbursement of all payments received from or for | ||||||
19 | the benefit of the mortgagor (Exhibit "F"). This | ||||||
20 | statement shall also include an index of all digital or | ||||||
21 | numerical codes associated with the loan history along | ||||||
22 | with all definitions associated with each such code so | ||||||
23 | as to make the history legible and understandable. The | ||||||
24 | statement shall itemize the amount and basis for the | ||||||
25 | following fees: | ||||||
26 | (i) the past due scheduled principal payments; |
| |||||||
| |||||||
1 | (ii) the interest due; | ||||||
2 | (iii) past due taxes; | ||||||
3 | (iv) hazard insurance; | ||||||
4 | (v) inspection fees; | ||||||
5 | (vi) mortgage insurance premiums; | ||||||
6 | (vii) late fees; | ||||||
7 | (viii) homeowners' association dues or | ||||||
8 | assessments; and | ||||||
9 | (ix) filing fees.
Attached as Exhibit "A" is a | ||||||
10 | copy of the mortgage and as Exhibit "B"
is a copy | ||||||
11 | of the note secured thereby.
| ||||||
12 | (3) Information concerning mortgage:
| ||||||
13 | (A) Nature of instrument: (here insert whether a | ||||||
14 | mortgage, trust deed or
other instrument in the nature | ||||||
15 | of a mortgage, etc.)
| ||||||
16 | (B) Date of mortgage:
| ||||||
17 | (C) Name of mortgagor:
| ||||||
18 | (D) Name of mortgagee:
| ||||||
19 | (E) Date and place of recording:
| ||||||
20 | (F) Identification of recording: (here insert book | ||||||
21 | and page number or document number)
| ||||||
22 | (G) Interest subject to the mortgage: (here insert | ||||||
23 | whether fee simple,
estate for years, undivided | ||||||
24 | interest, etc.)
| ||||||
25 | (H) Amount of original indebtedness, including | ||||||
26 | subsequent advances made
under the mortgage:
|
| |||||||
| |||||||
1 | (I) Both the legal description of the mortgaged | ||||||
2 | real estate and the
common address or other information | ||||||
3 | sufficient to identify it with reasonable certainty:
| ||||||
4 | (J) Statement as to defaults, including, but not | ||||||
5 | necessarily
limited to, date of default, current | ||||||
6 | unpaid principal balance, per diem
interest accruing, | ||||||
7 | and any further information concerning the default:
| ||||||
8 | (K) Name of present owner of the real estate:
| ||||||
9 | (L) Names of other persons who are joined as | ||||||
10 | defendants and whose
interest in or lien on the | ||||||
11 | mortgaged real estate is sought to be terminated:
| ||||||
12 | (M) Names of defendants claimed to be personally | ||||||
13 | liable
for deficiency, if any:
| ||||||
14 | (M) The specific capacity
(N) Capacity in which | ||||||
15 | plaintiff brings this foreclosure (here indicate
| ||||||
16 | whether plaintiff is the legal holder of the | ||||||
17 | indebtedness, a pledgee, an
agent, the trustee under a | ||||||
18 | trust deed or otherwise, as appropriate):
| ||||||
19 | (N)
(O) Facts in support of redemption period | ||||||
20 | shorter than
the longer of (i) 7 months from the date | ||||||
21 | the mortgagor or, if more than
one, all the mortgagors | ||||||
22 | (I) have been served with summons or by publication
or | ||||||
23 | (II) have otherwise submitted to the jurisdiction of | ||||||
24 | the court, or (ii)
3 months from the entry of the | ||||||
25 | judgment of foreclosure, if sought (here
indicate | ||||||
26 | whether based upon the real estate not being |
| |||||||
| |||||||
1 | residential,
abandonment, or real estate value less | ||||||
2 | than 90%
of amount owed, etc.):
| ||||||
3 | (O)
(P) Statement that the right of redemption has | ||||||
4 | been waived by all
owners of redemption, if applicable:
| ||||||
5 | (P)
(Q) Facts in support of request for attorneys' | ||||||
6 | fees and of costs and
expenses, if applicable:
| ||||||
7 | (Q)
(R) Facts in support of a request for | ||||||
8 | appointment of mortgagee in
possession or for | ||||||
9 | appointment of receiver, and identity of such | ||||||
10 | receiver, if
sought:
| ||||||
11 | (R)
(S) Offer to mortgagor in accordance with | ||||||
12 | Section 15-1402 to accept
title to the real estate in | ||||||
13 | satisfaction of all indebtedness and
obligations | ||||||
14 | secured by the mortgage without judicial sale, if | ||||||
15 | sought:
| ||||||
16 | (S)
(T) Name or names of defendants whose right to
| ||||||
17 | possess the mortgaged real estate, after the | ||||||
18 | confirmation of a foreclosure
sale, is
sought to be | ||||||
19 | terminated and, if not elsewhere stated, the facts in | ||||||
20 | support
thereof:
| ||||||
21 | REQUEST FOR RELIEF
| ||||||
22 | Plaintiff requests:
| ||||||
23 | (i) A judgment of foreclosure and sale.
| ||||||
24 | (ii) An order granting a shortened redemption period, | ||||||
25 | if sought.
|
| |||||||
| |||||||
1 | (iii) A personal judgment for a deficiency, if sought.
| ||||||
2 | (iv) An order granting possession, if sought.
| ||||||
3 | (v) An order placing the mortgagee in possession or | ||||||
4 | appointing a receiver,
if sought.
| ||||||
5 | (vi) A judgment for attorneys' fees, costs and | ||||||
6 | expenses, if sought.
| ||||||
7 | (a-5) Facts. Compliance with Section 15-1502.5 of this Code | ||||||
8 | shall be set forth with facts stated in the complaint filed | ||||||
9 | pursuant to this Section. If the mortgagee in any complaint | ||||||
10 | seeking foreclosure of a residential real estate mortgage | ||||||
11 | alleges that the property subject to the residential real | ||||||
12 | estate mortgage has been abandoned or voluntarily surrendered, | ||||||
13 | the mortgagee shall plead the specific facts upon which this | ||||||
14 | allegation is based.
| ||||||
15 | (b) Required Information. A foreclosure complaint need | ||||||
16 | contain only such
statements and requests called for by the | ||||||
17 | form set forth in subsection (a) of
Section
15-1504 as may be | ||||||
18 | appropriate for the relief sought. Such complaint may
be filed | ||||||
19 | as a counterclaim, may be joined with other counts or may | ||||||
20 | include
in the same count additional matters or a request for | ||||||
21 | any additional
relief permitted by Article
II of the Code of | ||||||
22 | Civil Procedure.
| ||||||
23 | (c) Allegations. The statements contained in a complaint in | ||||||
24 | the form
set forth in subsection (a) of Section 15-1504 are | ||||||
25 | deemed and construed to include
allegations as follows:
|
| |||||||
| |||||||
1 | (1) on the date indicated the obligor of the | ||||||
2 | indebtedness or other
obligations secured by the mortgage | ||||||
3 | was justly indebted in the amount of
the indicated original | ||||||
4 | indebtedness to the original mortgagee or payee of
the | ||||||
5 | mortgage note;
| ||||||
6 | (2) that the exhibits attached are true and correct | ||||||
7 | copies of the
mortgage and note and are incorporated and | ||||||
8 | made a part of the complaint by
express reference;
| ||||||
9 | (3) that the mortgagor was at the date indicated an | ||||||
10 | owner of the
interest in the real estate described in the | ||||||
11 | complaint and that as of that
date made, executed and | ||||||
12 | delivered the mortgage as security for the note or
other | ||||||
13 | obligations;
| ||||||
14 | (4) that the mortgage was recorded in the county in | ||||||
15 | which the mortgaged
real estate is located, on the date | ||||||
16 | indicated, in the book and page or as
the document number | ||||||
17 | indicated;
| ||||||
18 | (5) that defaults occurred as indicated;
| ||||||
19 | (6) that at the time of the filing of the complaint the | ||||||
20 | persons named as
present owners are the owners of the | ||||||
21 | indicated interests in and to the real
estate described;
| ||||||
22 | (7) that the mortgage constitutes a valid, prior and | ||||||
23 | paramount lien upon
the indicated interest in the mortgaged | ||||||
24 | real estate, which lien is prior and
superior to the right, | ||||||
25 | title, interest, claim or lien of all parties and
nonrecord | ||||||
26 | claimants whose interests in the mortgaged real estate are
|
| |||||||
| |||||||
1 | sought to be terminated;
| ||||||
2 | (8) that by reason of the defaults alleged, if the | ||||||
3 | indebtedness has not
matured by its terms, the same has | ||||||
4 | become due by the exercise, by the
plaintiff or other | ||||||
5 | persons having such power, of a right or power to
declare | ||||||
6 | immediately due and payable the whole of all indebtedness | ||||||
7 | secured
by the mortgage;
| ||||||
8 | (9) that any and all notices of default or election to | ||||||
9 | declare the
indebtedness due and payable or other notices | ||||||
10 | required to be given have
been duly and properly given;
| ||||||
11 | (10) that any and all periods of grace or other period | ||||||
12 | of time allowed
for the performance of the covenants or | ||||||
13 | conditions claimed to be breached
or for the curing of any | ||||||
14 | breaches have expired;
| ||||||
15 | (11) that the amounts indicated in the statement
in the | ||||||
16 | complaint are correctly stated and
if such statement | ||||||
17 | indicates any advances made or to be made by the
plaintiff | ||||||
18 | or owner of the mortgage indebtedness, that such advances | ||||||
19 | were,
in fact, made or will be
required to be made, and | ||||||
20 | under and by virtue of the mortgage the same
constitute | ||||||
21 | additional indebtedness secured by the mortgage; and
| ||||||
22 | (12) that, upon confirmation of the sale, the holder of | ||||||
23 | the certificate
of sale or deed issued pursuant to that | ||||||
24 | certificate or, if no certificate or
deed was issued, the | ||||||
25 | purchaser at the sale will be entitled to full possession
| ||||||
26 | of the mortgaged real estate against the parties
named in |
| |||||||
| |||||||
1 | clause (T) of
paragraph (3) of subsection (a) of Section | ||||||
2 | 15-1504 or elsewhere to the same
effect;
the omission of | ||||||
3 | any
party indicates that plaintiff will not seek a | ||||||
4 | possessory order in the order
confirming sale unless the | ||||||
5 | request is subsequently made under subsection (h) of
| ||||||
6 | Section 15-1701 or by separate action under Article 9 of | ||||||
7 | this Code.
| ||||||
8 | (d) Request for Fees and Costs. A statement in the | ||||||
9 | complaint that
plaintiff seeks the inclusion of attorneys' fees | ||||||
10 | and of costs and expenses
shall be deemed and construed to | ||||||
11 | include allegations that:
| ||||||
12 | (1) plaintiff has been compelled to employ and retain | ||||||
13 | attorneys to
prepare and file the complaint and to | ||||||
14 | represent and advise the plaintiff in
the foreclosure of | ||||||
15 | the mortgage and the plaintiff will thereby become
liable | ||||||
16 | for the usual, reasonable and customary fees of the | ||||||
17 | attorneys in
that behalf;
| ||||||
18 | (2) that the plaintiff has been compelled to advance or | ||||||
19 | will be
compelled to advance, various sums of money in | ||||||
20 | payment of costs, fees,
expenses and disbursements | ||||||
21 | incurred in connection with the foreclosure,
including, | ||||||
22 | without limiting the generality of the foregoing, filing | ||||||
23 | fees,
stenographer's fees, witness fees, costs of | ||||||
24 | publication, costs of procuring
and preparing documentary | ||||||
25 | evidence and costs of procuring
abstracts of title, Torrens | ||||||
26 | certificates, foreclosure minutes and a title
insurance |
| |||||||
| |||||||
1 | policy;
| ||||||
2 | (3) that under the terms of the mortgage, all such | ||||||
3 | advances, costs,
attorneys' fees and other fees, expenses | ||||||
4 | and disbursements are made a lien
upon the mortgaged real | ||||||
5 | estate and the plaintiff is entitled to recover all
such | ||||||
6 | advances, costs, attorneys' fees, expenses and | ||||||
7 | disbursements, together
with interest on all advances at | ||||||
8 | the rate provided in the mortgage, or, if
no rate is | ||||||
9 | provided therein, at the statutory judgment rate, from the
| ||||||
10 | date on which such advances are made;
| ||||||
11 | (4) that in order to protect the lien of the mortgage, | ||||||
12 | it may become
necessary for plaintiff to pay taxes and | ||||||
13 | assessments which have been or may
be levied upon the | ||||||
14 | mortgaged real estate;
| ||||||
15 | (5) that in order to protect and preserve the mortgaged | ||||||
16 | real estate, it
may also become necessary for the plaintiff | ||||||
17 | to pay liability (protecting
mortgagor and mortgagee), | ||||||
18 | fire and other hazard
insurance premiums on the mortgaged | ||||||
19 | real estate, make such repairs
to the mortgaged real
estate | ||||||
20 | as may reasonably be deemed necessary for the proper | ||||||
21 | preservation
thereof, advance for costs to inspect the | ||||||
22 | mortgaged real estate or to
appraise it, or both, and | ||||||
23 | advance for premiums for pre-existing private or
| ||||||
24 | governmental mortgage insurance to the extent required | ||||||
25 | after a foreclosure
is commenced in order to keep such | ||||||
26 | insurance in force; and
|
| |||||||
| |||||||
1 | (6) that under the terms of the mortgage, any money so | ||||||
2 | paid or expended
will become an additional indebtedness | ||||||
3 | secured by the mortgage and will bear
interest from the | ||||||
4 | date such monies are advanced at the rate provided in the
| ||||||
5 | mortgage, or, if no rate is provided, at the
statutory | ||||||
6 | judgment rate.
| ||||||
7 | (e) Request for Foreclosure. The request for foreclosure is | ||||||
8 | deemed and
construed to mean that the plaintiff requests that:
| ||||||
9 | (1) an accounting may be taken under the direction of | ||||||
10 | the court of the
amounts due and owing to the plaintiff;
| ||||||
11 | (2) that the defendants be ordered to pay to the | ||||||
12 | plaintiff before
expiration of any redemption period (or, | ||||||
13 | if no redemption period, before a
short date fixed by the | ||||||
14 | court) whatever sums may appear to be due upon the taking
| ||||||
15 | of such account,
together with attorneys' fees and costs of | ||||||
16 | the proceedings (to the extent
provided in the mortgage or | ||||||
17 | by law);
| ||||||
18 | (3) that in default of such payment in accordance with | ||||||
19 | the judgment, the
mortgaged real estate be sold as directed | ||||||
20 | by the court, to satisfy the
amount due to the plaintiff as | ||||||
21 | set forth in the judgment, together with the
interest | ||||||
22 | thereon at the statutory judgment rate from the date of the | ||||||
23 | judgment;
| ||||||
24 | (4) that in the event the plaintiff is a purchaser of | ||||||
25 | the mortgaged real
estate at such sale, the plaintiff may | ||||||
26 | offset against the purchase price of
such real estate the |
| |||||||
| |||||||
1 | amounts due under the judgment of foreclosure and
order | ||||||
2 | confirming the sale;
| ||||||
3 | (5) that in the event of such sale and the failure of | ||||||
4 | any person entitled
thereto to redeem prior to such sale | ||||||
5 | pursuant to this Article, the
defendants made parties to | ||||||
6 | the foreclosure in accordance with this Article,
and all | ||||||
7 | nonrecord claimants given notice of the foreclosure in | ||||||
8 | accordance
with this Article, and all persons claiming by, | ||||||
9 | through or under them, and
each and any and all of them, | ||||||
10 | may be forever barred and foreclosed of any
right, title, | ||||||
11 | interest, claim, lien, or right to redeem in and to the
| ||||||
12 | mortgaged real estate; and
| ||||||
13 | (6) that if no redemption is made prior to such sale, a | ||||||
14 | deed may be
issued to the purchaser thereat according to | ||||||
15 | law and such purchaser be let
into possession of the | ||||||
16 | mortgaged real estate in accordance with Part 17 of this | ||||||
17 | Article.
| ||||||
18 | (f) Request for Deficiency Judgment. A request for a | ||||||
19 | personal judgment
for a deficiency in a foreclosure complaint | ||||||
20 | if the sale of the mortgaged
real estate fails to produce a | ||||||
21 | sufficient amount to pay the amount found
due, the plaintiff | ||||||
22 | may have a personal judgment against any party in the
| ||||||
23 | foreclosure indicated as being personally liable therefor and | ||||||
24 | the enforcement
thereof be had as provided by law.
| ||||||
25 | (g) Request for Possession or Receiver. A request for | ||||||
26 | possession or appointment
of a receiver has the meaning as |
| |||||||
| |||||||
1 | stated in subsection (b) of Section 15-1706.
| ||||||
2 | (h) Answers by Parties. Any party
may assert its interest | ||||||
3 | by counterclaim and such counterclaim may at the
option of that | ||||||
4 | party stand in lieu of answer to the complaint for
foreclosure | ||||||
5 | and all counter complaints previously or thereafter filed
in | ||||||
6 | the foreclosure. Any such counterclaim shall be deemed to | ||||||
7 | constitute a
statement that the counter claimant does not have | ||||||
8 | sufficient knowledge to
form a belief as to the truth or | ||||||
9 | falsity of the
allegations of the complaint and all other | ||||||
10 | counterclaims, except
to the extent that the counterclaim | ||||||
11 | admits or specifically denies such
allegations.
| ||||||
12 | (Source: P.A. 91-357, eff. 7-29-99.)
| ||||||
13 | (735 ILCS 5/15-1507) (from Ch. 110, par. 15-1507)
| ||||||
14 | Sec. 15-1507. Judicial Sale.
| ||||||
15 | (a) In General. Except as provided in
Sections 15-1402 and | ||||||
16 | 15-1403, upon entry of a judgment of foreclosure, the
real | ||||||
17 | estate which is the subject of the judgment shall be sold at a
| ||||||
18 | judicial sale in accordance with this Section 15-1507.
| ||||||
19 | (b) Sale Procedures. Upon expiration of the reinstatement | ||||||
20 | period and
the redemption period in accordance with subsection | ||||||
21 | (b) or (c) of Section
15-1603 or upon the entry of a judgment | ||||||
22 | of foreclosure after the waiver of
all rights of redemption, | ||||||
23 | except as provided in subsection (g) of Section
15-1506, the | ||||||
24 | real estate shall be sold at a sale as provided in this
| ||||||
25 | Article, on such terms and conditions as shall be specified by |
| |||||||
| |||||||
1 | the court in
the judgment of foreclosure. A sale may be | ||||||
2 | conducted by any judge or sheriff.
| ||||||
3 | (c) Notice of Sale. The mortgagee, or such other party | ||||||
4 | designated by the
court, in a foreclosure under this Article | ||||||
5 | shall give public notice of the
sale as follows:
| ||||||
6 | (1) The notice of sale shall include at least the | ||||||
7 | following information,
but an immaterial error in the | ||||||
8 | information shall not invalidate the legal
effect of the | ||||||
9 | notice:
| ||||||
10 | (A) the name, address and telephone number of the | ||||||
11 | person to contact for
information regarding the real | ||||||
12 | estate;
| ||||||
13 | (B) the common address and other common | ||||||
14 | description (other than legal
description), if any, of | ||||||
15 | the real estate;
| ||||||
16 | (C) a legal description of the real estate | ||||||
17 | sufficient to identify it with
reasonable certainty;
| ||||||
18 | (D) a description of the improvements on the real | ||||||
19 | estate;
| ||||||
20 | (E) the times specified in the judgment, if any, | ||||||
21 | when the real estate
may be inspected prior to sale;
| ||||||
22 | (F) the time and place of the sale;
| ||||||
23 | (G) the terms of the sale;
| ||||||
24 | (H) the case title, case number and the court in | ||||||
25 | which
the foreclosure was filed;
| ||||||
26 | (H-1) in the case of a condominium unit to which |
| |||||||
| |||||||
1 | subsection (g) of Section 9 of the Condominium Property | ||||||
2 | Act applies, the statement required by subdivision | ||||||
3 | (g)(5) of Section 9 of the Condominium Property Act; | ||||||
4 | and
| ||||||
5 | (I) such other information ordered by the Court.
| ||||||
6 | (2) The notice of sale shall be published at least 3 | ||||||
7 | consecutive
calendar weeks (Sunday through Saturday), once | ||||||
8 | in each week, the first such
notice to be published not | ||||||
9 | more than 45 days prior to the sale, the last
such notice | ||||||
10 | to be published not less than 7 days prior to the sale, by:
| ||||||
11 | (i) (A) advertisements in a newspaper circulated to the | ||||||
12 | general public
in the county in which the real estate is | ||||||
13 | located, in the section of that
newspaper where legal | ||||||
14 | notices are commonly placed and (B) separate
| ||||||
15 | advertisements in the section of such a newspaper, which | ||||||
16 | (except in
counties with a population in excess of | ||||||
17 | 3,000,000) may be the same
newspaper, in which real estate | ||||||
18 | other than real estate being sold as part of
legal | ||||||
19 | proceedings is commonly advertised to the general public; | ||||||
20 | provided,
that the separate advertisements in the real | ||||||
21 | estate section need not
include a legal description and | ||||||
22 | that where both advertisements could be
published in the | ||||||
23 | same newspaper and that newspaper does not have separate
| ||||||
24 | legal notices and real estate advertisement sections, a | ||||||
25 | single
advertisement with the legal description shall be | ||||||
26 | sufficient; and
(ii) such other publications as may be |
| |||||||
| |||||||
1 | further ordered by the court.
| ||||||
2 | (3) The party who gives notice of public sale in | ||||||
3 | accordance with
subsection (c) of Section 15-1507 shall | ||||||
4 | also give notice to all parties in
the action who have been | ||||||
5 | served with a complaint pursuant to Section 15-1504 of this | ||||||
6 | Code
appeared and have not theretofore been found by the
| ||||||
7 | court to be in default for failure to plead . Such notice | ||||||
8 | shall be given in
the manner provided in the applicable | ||||||
9 | rules of court for service of papers
other than process and | ||||||
10 | complaint, not more than 45 days nor less
than 7
days prior | ||||||
11 | to the day of sale. After notice is given as required in | ||||||
12 | this
Section a copy thereof shall be filed in the office of | ||||||
13 | the clerk of the
court entering the judgment, together with | ||||||
14 | a certificate of counsel or
other proof that notice has | ||||||
15 | been served in compliance with this Section.
| ||||||
16 | (4) The party who gives notice of public sale in | ||||||
17 | accordance with
subsection (c) of Section 15-1507 shall | ||||||
18 | again give notice in accordance
with that Section of any | ||||||
19 | adjourned sale; provided, however, that if the
adjourned | ||||||
20 | sale is to occur less than 60 days after the last scheduled | ||||||
21 | sale,
notice of any adjourned sale need not be given | ||||||
22 | pursuant to this
Section. In the event of adjournment, the
| ||||||
23 | person conducting the sale shall, upon adjournment, | ||||||
24 | announce the date, time
and place upon which the adjourned | ||||||
25 | sale shall be held. Notwithstanding any
language to the | ||||||
26 | contrary, for any adjourned sale that is to be conducted
|
| |||||||
| |||||||
1 | more than 60 days after the date on which it was to first | ||||||
2 | be held, the
party giving notice of such sale shall again | ||||||
3 | give notice in accordance with
this Section.
| ||||||
4 | (5) Notice of the sale may be given prior to the | ||||||
5 | expiration of any
reinstatement period or redemption | ||||||
6 | period.
| ||||||
7 | (6) No other notice by publication or posting shall be | ||||||
8 | necessary unless
required by order or rule of the court.
| ||||||
9 | (7) The person named in the notice of sale to be | ||||||
10 | contacted for
information about the real estate may, but | ||||||
11 | shall not be required, to
provide additional information | ||||||
12 | other than that set forth in the notice of sale.
| ||||||
13 | (d) Election of Property. If the real estate which is the | ||||||
14 | subject of a
judgment of foreclosure is susceptible of | ||||||
15 | division, the court may order it to be sold
as necessary to | ||||||
16 | satisfy the judgment. The court shall determine which real
| ||||||
17 | estate shall be sold, and the court may determine the order in | ||||||
18 | which
separate tracts may be sold.
| ||||||
19 | (e) Receipt upon Sale.
Upon and at the sale
of mortgaged | ||||||
20 | real estate, the person conducting the sale shall give to
the | ||||||
21 | purchaser a receipt of sale. The receipt shall describe the | ||||||
22 | real
estate purchased and shall show the amount bid, the amount | ||||||
23 | paid, the
total amount paid to
date and the amount still to be | ||||||
24 | paid therefor. An
additional receipt shall be given at the time | ||||||
25 | of each subsequent
payment.
| ||||||
26 | (f) Certificate of Sale. Upon
payment in full of the amount |
| |||||||
| |||||||
1 | bid, the person conducting
the sale shall issue, in duplicate, | ||||||
2 | and give to the purchaser a Certificate
of Sale. The | ||||||
3 | Certificate of Sale shall be in a recordable form, describe
the | ||||||
4 | real estate purchased, indicate the date and place of sale and | ||||||
5 | show the
amount paid therefor. The Certificate of Sale shall | ||||||
6 | further indicate that
it is subject to confirmation by the | ||||||
7 | court. The duplicate certificate may
be recorded in accordance | ||||||
8 | with Section 12-121. The Certificate of Sale
shall be freely | ||||||
9 | assignable by endorsement thereon.
| ||||||
10 | (g) Interest after Sale. Any bid at sale shall be deemed to | ||||||
11 | include,
without the necessity of a court order, interest at | ||||||
12 | the statutory judgment
rate on any unpaid portion of the sale | ||||||
13 | price from the date of sale to the
date of payment.
| ||||||
14 | (Source: P.A. 94-1049, eff. 1-1-07.)
| ||||||
15 | (735 ILCS 5/15-1508) (from Ch. 110, par. 15-1508)
| ||||||
16 | Sec. 15-1508. Report of Sale and Confirmation of Sale.
| ||||||
17 | (a) Report. The person conducting the sale shall promptly | ||||||
18 | make a report to
the court, which report shall include a copy | ||||||
19 | of all receipts and, if any,
certificate of sale.
| ||||||
20 | (b) Hearing. Upon motion and notice in accordance with | ||||||
21 | court rules
applicable to motions generally, which motion shall | ||||||
22 | not be made prior to
sale, the court shall conduct a hearing to
| ||||||
23 | confirm the sale. Unless the court finds that (i) a notice | ||||||
24 | required in
accordance with subsection (c) of Section 15-1507 | ||||||
25 | was not given, (ii) the
terms of sale were unconscionable, |
| |||||||
| |||||||
1 | (iii) the sale was conducted
fraudulently or (iv) that justice | ||||||
2 | was otherwise not done, the court shall
then enter an order | ||||||
3 | confirming the sale. The confirmation order may
also:
| ||||||
4 | (1) approve the mortgagee's fees and costs arising | ||||||
5 | between the entry of
the judgment of foreclosure and the | ||||||
6 | confirmation hearing, those costs and
fees to be allowable | ||||||
7 | to the same extent as provided in the note and mortgage
and | ||||||
8 | in Section 15-1504;
| ||||||
9 | (2) provide for a personal judgment against any party | ||||||
10 | for a deficiency;
and
| ||||||
11 | (3) determine the priority of the judgments of parties | ||||||
12 | who deferred proving
the priority pursuant to subsection | ||||||
13 | (h) of Section 15-1506, but
the court shall not
defer | ||||||
14 | confirming the sale pending the determination of such | ||||||
15 | priority.
| ||||||
16 | (c) Failure to Give Notice. If any sale is held without | ||||||
17 | compliance with
subsection (c) of Section 15-1507 of this | ||||||
18 | Article, any party entitled to
the notice provided for in | ||||||
19 | paragraph (3) of that subsection
(c) who was not so notified | ||||||
20 | may, by motion supported by affidavit
made prior to | ||||||
21 | confirmation of such sale, ask the court which entered the
| ||||||
22 | judgment to set aside the sale, provided that such party shall | ||||||
23 | guarantee or
secure by bond a bid equal to the successful bid | ||||||
24 | at the prior sale. Any
subsequent sale is subject to the same | ||||||
25 | notice requirement as the original sale.
| ||||||
26 | (d) Validity of Sale. Except as provided in subsection (c) |
| |||||||
| |||||||
1 | of Section
15-1508, no sale under this Article shall be held | ||||||
2 | invalid or be set aside
because of any defect in the notice | ||||||
3 | thereof or in the publication of the
same, or in the | ||||||
4 | proceedings of the officer conducting the sale, except upon
| ||||||
5 | good cause shown in a hearing pursuant to subsection (b) of | ||||||
6 | Section
15-1508. At any time after a sale has occurred, any | ||||||
7 | party entitled to
notice under paragraph (3) of subsection (c) | ||||||
8 | of Section 15-1507 may recover
from the mortgagee any damages | ||||||
9 | caused by the mortgagee's failure to comply
with such paragraph | ||||||
10 | (3). Any party who recovers damages in a judicial
proceeding | ||||||
11 | brought under this subsection may also recover from the
| ||||||
12 | mortgagee the reasonable expenses of litigation, including | ||||||
13 | reasonable attorney's fees.
| ||||||
14 | (e) Deficiency Judgment. In any order confirming a sale | ||||||
15 | pursuant to the
judgment of foreclosure, the court shall also | ||||||
16 | enter a personal judgment
for deficiency against any party (i) | ||||||
17 | if otherwise authorized and (ii) to
the extent requested in the | ||||||
18 | complaint and proven upon presentation of the
report of sale in | ||||||
19 | accordance with Section 15-1508. Except as otherwise provided
| ||||||
20 | in this Article, a judgment may be entered for any balance of | ||||||
21 | money that
may be found due to the plaintiff, over and above | ||||||
22 | the proceeds of the sale
or sales, and enforcement may be had | ||||||
23 | for the collection of such balance,
the same as when the | ||||||
24 | judgment is solely for the payment of money. Such
judgment may | ||||||
25 | be entered, or enforcement had,
only in cases where personal | ||||||
26 | service has been had upon the
persons personally liable for the |
| |||||||
| |||||||
1 | mortgage indebtedness, unless they have
entered their | ||||||
2 | appearance in the foreclosure action.
| ||||||
3 | (f) Satisfaction. Upon confirmation of the sale, the
| ||||||
4 | judgment stands satisfied to the extent of the sale price less | ||||||
5 | expenses and
costs. If the order confirming the sale includes a | ||||||
6 | deficiency judgment, the
judgment shall become a lien in the | ||||||
7 | manner of any other
judgment for the payment of money.
| ||||||
8 | (g) The order confirming the sale shall include, | ||||||
9 | notwithstanding any
previous orders awarding possession during | ||||||
10 | the pendency of the foreclosure, an
award to the purchaser of | ||||||
11 | possession of the mortgaged real estate, as of the
date 30 days | ||||||
12 | after the entry of the order, against the
parties to the | ||||||
13 | foreclosure whose interests have been terminated.
| ||||||
14 | An order of possession authorizing the removal of a person | ||||||
15 | from possession
of the mortgaged real estate shall be entered | ||||||
16 | and enforced only against those
persons personally
named as | ||||||
17 | individuals in the complaint or the petition under subsection | ||||||
18 | (h)
of Section 15-1701 and in the order of possession and shall
| ||||||
19 | not be entered and enforced against any person who is only | ||||||
20 | generically
described as an
unknown owner or nonrecord claimant | ||||||
21 | or by another generic designation in the
complaint.
| ||||||
22 | Notwithstanding the preceding paragraph, the failure to | ||||||
23 | personally
name,
include, or seek an award of
possession of the | ||||||
24 | mortgaged real estate against a person in the
confirmation | ||||||
25 | order shall not abrogate any right that the purchaser may have | ||||||
26 | to
possession of the mortgaged real estate and to maintain a |
| |||||||
| |||||||
1 | proceeding against
that person for
possession under Article 9 | ||||||
2 | of this Code or subsection (h) of Section 15-1701;
and | ||||||
3 | possession against a person
who (1) has not been personally | ||||||
4 | named as a party to the
foreclosure and (2) has not been | ||||||
5 | provided an opportunity to be heard in the
foreclosure | ||||||
6 | proceeding may be sought only by maintaining a
proceeding under | ||||||
7 | Article 9 of this
Code or subsection (h) of Section 15-1701.
| ||||||
8 | (Source: P.A. 88-265; 89-203, eff. 7-21-95.)
| ||||||
9 | (735 ILCS 5/15-1510) (from Ch. 110, par. 15-1510)
| ||||||
10 | Sec. 15-1510. Attorney's Fees and Costs by Written | ||||||
11 | Agreement.
| ||||||
12 | (a) Attorneys' fees and other costs incurred in connection | ||||||
13 | with the
preparation, filing or prosecution of the foreclosure | ||||||
14 | suit shall be
recoverable in a foreclosure only to the extent
| ||||||
15 | specifically set forth in the mortgage or other written | ||||||
16 | agreement between
the mortgagor and the mortgagee or as | ||||||
17 | otherwise provided in this Article. | ||||||
18 | (b) The mortgagor shall not be liable for any attorney's | ||||||
19 | fees or other costs attributable to providing the notice | ||||||
20 | required by Section 15-1502.5 of this Code. | ||||||
21 | (c) A court of competent jurisdiction may award reasonable | ||||||
22 | attorney's fees to the prevailing party.
| ||||||
23 | (Source: P.A. 86-974.)
| ||||||
24 | (735 ILCS 5/15-1513 new)
|
| |||||||
| |||||||
1 | Sec. 15-1513. Waiver. No mortgagee of a residential real | ||||||
2 | estate loan may waive any of the rights in Sections 15-1502.5, | ||||||
3 | 15-1504, 15-1506, 15-1507, or 15-1510 of this Code. | ||||||
4 | (735 ILCS 5/15-1514 new)
| ||||||
5 | Sec. 15-1514. Severability. If any provision of this | ||||||
6 | Article or its application to any person or circumstance is | ||||||
7 | held invalid, the invalidity of that provision or application | ||||||
8 | does not affect other provisions or applications of this | ||||||
9 | Article that can be given effect without the invalid provision | ||||||
10 | or application.
| ||||||
11 | (735 ILCS 5/15-1604) (from Ch. 110, par. 15-1604)
| ||||||
12 | Sec. 15-1604. Special Right to Redeem.
| ||||||
13 | (a) Circumstances. With
respect to residential real | ||||||
14 | estate, if (i) the purchaser at the sale was a
mortgagee who | ||||||
15 | was a party to the foreclosure or its nominee and (ii) the
sale | ||||||
16 | price was less than the amount specified in subsection (d) of | ||||||
17 | Section
15-1603, then, and only in such circumstances, an owner | ||||||
18 | of redemption as
specified in subsection (a) of Section 15-1603 | ||||||
19 | shall have a special right
to redeem, for a period ending 60
30
| ||||||
20 | days after the date the sale is
confirmed, by paying to the | ||||||
21 | mortgagee (i) the sale price, (ii) all additional
costs and | ||||||
22 | expenses incurred by the mortgagee set forth in the report of
| ||||||
23 | sale and confirmed by the court, and (iii) interest at the | ||||||
24 | statutory
judgment rate from the date the purchase price was |
| |||||||
| |||||||
1 | paid or credited as an offset.
| ||||||
2 | (b) Procedure. Upon receipt of such amount, the mortgagee | ||||||
3 | shall assign
to the redeeming owner of redemption its | ||||||
4 | certificate of
sale or its right to such certificate or to a | ||||||
5 | deed. The mortgagee shall
give to the redeeming owner of | ||||||
6 | redemption an executed duplicate of such
assignment, marked | ||||||
7 | "Duplicate", which duplicate the owner of redemption
shall file | ||||||
8 | with the court. If a deed has been issued to the mortgagee
or | ||||||
9 | its nominee, the holder of such deed, or such holder's | ||||||
10 | successor in
title, shall execute and deliver a deed conveying | ||||||
11 | the
mortgaged real estate to
the redeeming owner of redemption | ||||||
12 | subject only to those encumbrances that
would normally arise on | ||||||
13 | title if a redemption were made under Section
15-1603, | ||||||
14 | including a deficiency, if any, resulting from the foreclosure
| ||||||
15 | sale. Nothing contained herein shall affect the right to a | ||||||
16 | personal or in
rem deficiency judgment, and enforcement thereof | ||||||
17 | shall be allowed as provided
by law. Any deficiency judgment | ||||||
18 | shall retain the same priority on title as did
the mortgage | ||||||
19 | from which it arose. The mortgagee, its nominee or its
| ||||||
20 | successors in title shall not permit encumbrances on title | ||||||
21 | arising on or
after the date of the deed to the
mortgagee or | ||||||
22 | nominee caused by or relating
to the mortgagee or its nominee | ||||||
23 | or its successors in title.
| ||||||
24 | (Source: P.A. 86-974.)
| ||||||
25 | Section 15. The Interest Act is amended by changing Section |
| |||||||
| |||||||
1 | 4.1a as follows:
| ||||||
2 | (815 ILCS 205/4.1a) (from Ch. 17, par. 6406)
| ||||||
3 | Sec. 4.1a. Charges for and cost of the following items paid | ||||||
4 | or
incurred by any lender in connection with any loan shall not | ||||||
5 | be deemed
to be charges for or in connection with any loan of | ||||||
6 | money referred to in
Section 6 of this Act, or charges by the | ||||||
7 | lender as a consideration for
the loan referred to in this | ||||||
8 | Section:
| ||||||
9 | (a) hazard, mortgage or life insurance premiums, | ||||||
10 | survey, credit
report, title insurance, abstract and | ||||||
11 | attorneys' fees, recording
charges, escrow and appraisal | ||||||
12 | fees, and similar charges.
| ||||||
13 | (b) in the case of construction loans, in addition to | ||||||
14 | the matters
referred to in clause (a) above, the actual | ||||||
15 | cost incurred by the lender
for services for making | ||||||
16 | physical inspections, processing payouts,
examining and | ||||||
17 | reviewing contractors' and subcontractors' sworn
| ||||||
18 | statements and waivers of lien and the like.
| ||||||
19 | (c) in the case of any loan made pursuant to the | ||||||
20 | provisions of the
Emergency Home Purchase Assistance Act of | ||||||
21 | 1974 (Section 313 of the
National Housing Act, Chapter B of | ||||||
22 | Title 12 of the United States Code),
in addition to the | ||||||
23 | matters referred to in paragraphs (a) and (b) of this
| ||||||
24 | Section all charges required or allowed by the Government | ||||||
25 | National
Mortgage Association, whether designated as |
| |||||||
| |||||||
1 | processing fees, commitment
fees, loss reserve and | ||||||
2 | marketing fees, discounts, origination fees or
otherwise | ||||||
3 | designated.
| ||||||
4 | (d) in the case of a single payment loan, made for a | ||||||
5 | period of 6 months
or less, a regulated financial | ||||||
6 | institution or licensed lender may contract
for and receive | ||||||
7 | a maximum charge of $15 in lieu of interest. Such charge
| ||||||
8 | may be collected when the loan is made, but only one such | ||||||
9 | charge may be
contracted for, received, or collected for | ||||||
10 | any such loan, including any
extension or renewal thereof.
| ||||||
11 | (e) if the agreement governing the loan so provides, a | ||||||
12 | charge not to
exceed the rate permitted under Section 3-806 | ||||||
13 | of the Uniform Commercial
Code-Commercial Paper for any | ||||||
14 | check, draft or order for the payment of
money submitted in | ||||||
15 | accordance with said agreement which is unpaid or not
| ||||||
16 | honored by a bank or other depository institution.
| ||||||
17 | (f) if the agreement governing the loan so provides, | ||||||
18 | for each loan
installment in default for a period of not | ||||||
19 | less than 10 days, a charge in
an amount not in excess of | ||||||
20 | 5% of such loan installment. Only one
delinquency charge | ||||||
21 | may be collected on any such loan installment regardless
of | ||||||
22 | the period during which it remains in default. Payments | ||||||
23 | timely received
by the lender under a written extension or | ||||||
24 | deferral agreement shall not be
subject to any delinquency | ||||||
25 | charge. | ||||||
26 | Notwithstanding subdivisions (k) and (l) of subsection (1) |
| |||||||
| |||||||
1 | of Section 4 of this Act, the provisions of this Section apply | ||||||
2 | to any residential mortgage loan, as defined in Section 1-4 of | ||||||
3 | the Residential Mortgage License Act of 1987. | ||||||
4 | Notwithstanding subsections (k) and (l) of subsection (1) | ||||||
5 | of Section 4 of this Act, the borrower, in the case of any | ||||||
6 | nonexempt residential mortgage loan, as defined in Section 1-4 | ||||||
7 | of the Residential Mortgage License Act of 1987, shall have the | ||||||
8 | right to prepay the loan in whole or in part at any time | ||||||
9 | without paying any penalty, fee, premium, or other charge. | ||||||
10 | No lender shall make, provide, or arrange for a residential | ||||||
11 | mortgage loan, as that term is defined in Section 1-4 of the | ||||||
12 | Residential Mortgage License Act of 1987, that finances, | ||||||
13 | directly or indirectly, any credit life, credit disability, or | ||||||
14 | credit unemployment insurance or any other life or health | ||||||
15 | insurance premiums; however, insurance premiums calculated and | ||||||
16 | paid on a monthly basis shall not be considered to be financed | ||||||
17 | by the lender.
| ||||||
18 | Where there is a charge in addition to the stated rate of | ||||||
19 | interest
payable directly or indirectly by the borrower and | ||||||
20 | imposed directly or
indirectly by the lender as a consideration | ||||||
21 | for the loan, or for or in
connection with the loan of money, | ||||||
22 | whether paid or payable by the
borrower, the seller, or any | ||||||
23 | other person on behalf of the borrower to
the lender or to a | ||||||
24 | third party, or for or in connection with the loan of
money, | ||||||
25 | other than as hereinabove in this Section provided, whether
| ||||||
26 | denominated "points," "service charge," "discount," |
| |||||||
| |||||||
1 | "commission," or
otherwise, and without regard to declining | ||||||
2 | balances of principal which
would result from any required or | ||||||
3 | optional amortization of the principal
of the loan, the rate of | ||||||
4 | interest shall be calculated in the following
manner:
| ||||||
5 | The percentage of the principal amount of the loan | ||||||
6 | represented by all
of such charges shall first be computed, | ||||||
7 | which in the case of a loan
with an interest rate in excess of | ||||||
8 | 8% per annum secured by residential
real estate, other than | ||||||
9 | loans described in paragraphs (e) and (f) of
Section 4, shall | ||||||
10 | not exceed 3% of such principal amount. Said
percentage shall | ||||||
11 | then be divided by the number of years and fractions
thereof of | ||||||
12 | the period of the loan according to its stated maturity. The
| ||||||
13 | percentage thus obtained shall then be added to the percentage | ||||||
14 | of the
stated annual rate of interest.
| ||||||
15 | The borrower in the case of nonexempt loan shall have the | ||||||
16 | right to
prepay the loan in whole or in part at any time, but, | ||||||
17 | except as may
otherwise be provided by Section 4, the lender | ||||||
18 | may require payment of
not more than 6 months' advance interest | ||||||
19 | on that part of the aggregate
amount of all prepayments on a | ||||||
20 | loan in one year, which exceeds 20% of
the original principal | ||||||
21 | amount of the loan.
| ||||||
22 | (Source: P.A. 87-496 .)".
|