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1 | AN ACT concerning civil law.
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2 | Be it enacted by the People of the State of Illinois,
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3 | represented in the General Assembly:
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4 | Section 5. The Code of Civil Procedure is amended by adding | |||||||||||||||||||||
5 | Section 15-1502.5 and by changing Section 15-1504 as follows: | |||||||||||||||||||||
6 | (735 ILCS 5/15-1502.5 new)
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7 | Sec. 15-1502.5. Pre-foreclosure counseling. | |||||||||||||||||||||
8 | (a) Prior to commencing a foreclosure action, the plaintiff | |||||||||||||||||||||
9 | must exercise due diligence to make contact with the mortgagor | |||||||||||||||||||||
10 | by written notice sent by certified mail, return receipt | |||||||||||||||||||||
11 | requested. The notice must state that the mortgage is scheduled | |||||||||||||||||||||
12 | to be foreclosed in the near future, that an in-person meeting | |||||||||||||||||||||
13 | is available to the mortgagor and the manner in which the | |||||||||||||||||||||
14 | meeting may be scheduled, and that at the meeting the mortgagor | |||||||||||||||||||||
15 | will be advised of any available options for restructuring or | |||||||||||||||||||||
16 | refinancing the mortgage loan. The notice shall also contain a | |||||||||||||||||||||
17 | list of credit counselors certified by the federal Department | |||||||||||||||||||||
18 | of Housing and Urban development who are available to assist | |||||||||||||||||||||
19 | the mortgagor. The foreclosure action may not be commenced | |||||||||||||||||||||
20 | until at least 30 days after the date of the in-person meeting | |||||||||||||||||||||
21 | or 30 days after the notice was served if no meeting was | |||||||||||||||||||||
22 | requested by the mortgagor.
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1 | (735 ILCS 5/15-1504) (from Ch. 110, par. 15-1504)
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2 | Sec. 15-1504. Pleadings and service.
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3 | (a) Form of Complaint. A foreclosure complaint
may be in | ||||||
4 | substantially the following form:
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5 | (1) Plaintiff files this complaint to foreclose the | ||||||
6 | mortgage (or other
conveyance in the nature of a mortgage) | ||||||
7 | (hereinafter called "mortgage")
hereinafter described and | ||||||
8 | joins the following person as defendants: (here
insert | ||||||
9 | names of all defendants).
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10 | (2) Attached as Exhibit "A" is a copy of the mortgage | ||||||
11 | and as Exhibit "B"
is a copy of the note secured thereby.
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12 | (3) Information concerning mortgage:
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13 | (A) Nature of instrument: (here insert whether a | ||||||
14 | mortgage, trust deed or
other instrument in the nature | ||||||
15 | of a mortgage, etc.)
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16 | (B) Date of mortgage:
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17 | (C) Name of mortgagor:
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18 | (D) Name of mortgagee:
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19 | (E) Date and place of recording:
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20 | (F) Identification of recording: (here insert book | ||||||
21 | and page number or document number)
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22 | (G) Interest subject to the mortgage: (here insert | ||||||
23 | whether fee simple,
estate for years, undivided | ||||||
24 | interest, etc.)
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25 | (H) Amount of original indebtedness, including | ||||||
26 | subsequent advances made
under the mortgage:
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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:
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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:
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8 | (K) Name of present owner of the real estate:
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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:
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12 | (M) Names of defendants claimed to be personally | ||||||
13 | liable
for deficiency, if any:
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14 | (N) Capacity in which plaintiff brings this | ||||||
15 | foreclosure (here indicate
whether plaintiff is the | ||||||
16 | legal holder of the indebtedness, a pledgee, an
agent, | ||||||
17 | the trustee under a trust deed or otherwise, as | ||||||
18 | appropriate):
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19 | (O) Facts in support of redemption period shorter | ||||||
20 | than
the longer of (i) 7 months from the date the | ||||||
21 | mortgagor or, if more than
one, all the mortgagors (I) | ||||||
22 | have been served with summons or by publication
or (II) | ||||||
23 | have otherwise submitted to the jurisdiction of the | ||||||
24 | court, or (ii)
3 months from the entry of the judgment | ||||||
25 | of foreclosure, if sought (here
indicate whether based | ||||||
26 | upon the real estate not being residential,
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1 | abandonment, or real estate value less than 90%
of | ||||||
2 | amount owed, etc.):
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3 | (P) Statement that the right of redemption has been | ||||||
4 | waived by all
owners of redemption, if applicable:
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5 | (Q) Facts in support of request for attorneys' fees | ||||||
6 | and of costs and
expenses, if applicable:
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7 | (R) Facts in support of a request for appointment | ||||||
8 | of mortgagee in
possession or for appointment of | ||||||
9 | receiver, and identity of such receiver, if
sought:
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10 | (S) Offer to mortgagor in accordance with Section | ||||||
11 | 15-1402 to accept
title to the real estate in | ||||||
12 | satisfaction of all indebtedness and
obligations | ||||||
13 | secured by the mortgage without judicial sale, if | ||||||
14 | sought:
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15 | (T) Name or names of defendants whose right to
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16 | possess the mortgaged real estate, after the | ||||||
17 | confirmation of a foreclosure
sale, is
sought to be | ||||||
18 | terminated and, if not elsewhere stated, the facts in | ||||||
19 | support
thereof:
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20 | REQUEST FOR RELIEF
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21 | Plaintiff requests:
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22 | (i) A judgment of foreclosure and sale.
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23 | (ii) An order granting a shortened redemption period, | ||||||
24 | if sought.
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25 | (iii) A personal judgment for a deficiency, if sought.
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1 | (iv) An order granting possession, if sought.
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2 | (v) An order placing the mortgagee in possession or | ||||||
3 | appointing a receiver,
if sought.
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4 | (vi) A judgment for attorneys' fees, costs and | ||||||
5 | expenses, if sought.
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6 | (b) Required Information. A foreclosure complaint need | ||||||
7 | contain only such
statements and requests called for by the | ||||||
8 | form set forth in subsection (a) of
Section
15-1504 as may be | ||||||
9 | appropriate for the relief sought. Such complaint may
be filed | ||||||
10 | as a counterclaim, may be joined with other counts or may | ||||||
11 | include
in the same count additional matters or a request for | ||||||
12 | any additional
relief permitted by Article
II of the Code of | ||||||
13 | Civil Procedure.
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14 | (c) Allegations. The statements contained in a complaint in | ||||||
15 | the form
set forth in subsection (a) of Section 15-1504 are | ||||||
16 | deemed and construed to include
allegations as follows:
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17 | (1) on the date indicated the obligor of the | ||||||
18 | indebtedness or other
obligations secured by the mortgage | ||||||
19 | was justly indebted in the amount of
the indicated original | ||||||
20 | indebtedness to the original mortgagee or payee of
the | ||||||
21 | mortgage note;
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22 | (2) that the exhibits attached are true and correct | ||||||
23 | copies of the
mortgage and note and are incorporated and | ||||||
24 | made a part of the complaint by
express reference;
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25 | (3) that the mortgagor was at the date indicated an | ||||||
26 | owner of the
interest in the real estate described in the |
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1 | complaint and that as of that
date made, executed and | ||||||
2 | delivered the mortgage as security for the note or
other | ||||||
3 | obligations;
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4 | (4) that the mortgage was recorded in the county in | ||||||
5 | which the mortgaged
real estate is located, on the date | ||||||
6 | indicated, in the book and page or as
the document number | ||||||
7 | indicated;
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8 | (5) that defaults occurred as indicated;
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9 | (6) that at the time of the filing of the complaint the | ||||||
10 | persons named as
present owners are the owners of the | ||||||
11 | indicated interests in and to the real
estate described;
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12 | (7) that the mortgage constitutes a valid, prior and | ||||||
13 | paramount lien upon
the indicated interest in the mortgaged | ||||||
14 | real estate, which lien is prior and
superior to the right, | ||||||
15 | title, interest, claim or lien of all parties and
nonrecord | ||||||
16 | claimants whose interests in the mortgaged real estate are
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17 | sought to be terminated;
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18 | (8) that by reason of the defaults alleged, if the | ||||||
19 | indebtedness has not
matured by its terms, the same has | ||||||
20 | become due by the exercise, by the
plaintiff or other | ||||||
21 | persons having such power, of a right or power to
declare | ||||||
22 | immediately due and payable the whole of all indebtedness | ||||||
23 | secured
by the mortgage;
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24 | (9) that any and all notices of default or election to | ||||||
25 | declare the
indebtedness due and payable or other notices | ||||||
26 | required to be given have
been duly and properly given;
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1 | (10) that any and all periods of grace or other period | ||||||
2 | of time allowed
for the performance of the covenants or | ||||||
3 | conditions claimed to be breached
or for the curing of any | ||||||
4 | breaches have expired;
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5 | (11) that the amounts indicated in the statement
in the | ||||||
6 | complaint are correctly stated and
if such statement | ||||||
7 | indicates any advances made or to be made by the
plaintiff | ||||||
8 | or owner of the mortgage indebtedness, that such advances | ||||||
9 | were,
in fact, made or will be
required to be made, and | ||||||
10 | under and by virtue of the mortgage the same
constitute | ||||||
11 | additional indebtedness secured by the mortgage; and
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12 | (12) that, upon confirmation of the sale, the holder of | ||||||
13 | the certificate
of sale or deed issued pursuant to that | ||||||
14 | certificate or, if no certificate or
deed was issued, the | ||||||
15 | purchaser at the sale will be entitled to full possession
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16 | of the mortgaged real estate against the parties
named in | ||||||
17 | clause (T) of
paragraph (3) of subsection (a) of Section | ||||||
18 | 15-1504 or elsewhere to the same
effect;
the omission of | ||||||
19 | any
party indicates that plaintiff will not seek a | ||||||
20 | possessory order in the order
confirming sale unless the | ||||||
21 | request is subsequently made under subsection (h) of
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22 | Section 15-1701 or by separate action under Article 9 of | ||||||
23 | this Code.
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24 | (d) Request for Fees and Costs. A statement in the | ||||||
25 | complaint that
plaintiff seeks the inclusion of attorneys' fees | ||||||
26 | and of costs and expenses
shall be deemed and construed to |
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1 | include allegations that:
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2 | (1) plaintiff has been compelled to employ and retain | ||||||
3 | attorneys to
prepare and file the complaint and to | ||||||
4 | represent and advise the plaintiff in
the foreclosure of | ||||||
5 | the mortgage and the plaintiff will thereby become
liable | ||||||
6 | for the usual, reasonable and customary fees of the | ||||||
7 | attorneys in
that behalf;
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8 | (2) that the plaintiff has been compelled to advance or | ||||||
9 | will be
compelled to advance, various sums of money in | ||||||
10 | payment of costs, fees,
expenses and disbursements | ||||||
11 | incurred in connection with the foreclosure,
including, | ||||||
12 | without limiting the generality of the foregoing, filing | ||||||
13 | fees,
stenographer's fees, witness fees, costs of | ||||||
14 | publication, costs of procuring
and preparing documentary | ||||||
15 | evidence and costs of procuring
abstracts of title, Torrens | ||||||
16 | certificates, foreclosure minutes and a title
insurance | ||||||
17 | policy;
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18 | (3) that under the terms of the mortgage, all such | ||||||
19 | advances, costs,
attorneys' fees and other fees, expenses | ||||||
20 | and disbursements are made a lien
upon the mortgaged real | ||||||
21 | estate and the plaintiff is entitled to recover all
such | ||||||
22 | advances, costs, attorneys' fees, expenses and | ||||||
23 | disbursements, together
with interest on all advances at | ||||||
24 | the rate provided in the mortgage, or, if
no rate is | ||||||
25 | provided therein, at the statutory judgment rate, from the
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26 | date on which such advances are made;
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1 | (4) that in order to protect the lien of the mortgage, | ||||||
2 | it may become
necessary for plaintiff to pay taxes and | ||||||
3 | assessments which have been or may
be levied upon the | ||||||
4 | mortgaged real estate;
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5 | (5) that in order to protect and preserve the mortgaged | ||||||
6 | real estate, it
may also become necessary for the plaintiff | ||||||
7 | to pay liability (protecting
mortgagor and mortgagee), | ||||||
8 | fire and other hazard
insurance premiums on the mortgaged | ||||||
9 | real estate, make such repairs
to the mortgaged real
estate | ||||||
10 | as may reasonably be deemed necessary for the proper | ||||||
11 | preservation
thereof, advance for costs to inspect the | ||||||
12 | mortgaged real estate or to
appraise it, or both, and | ||||||
13 | advance for premiums for pre-existing private or
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14 | governmental mortgage insurance to the extent required | ||||||
15 | after a foreclosure
is commenced in order to keep such | ||||||
16 | insurance in force; and
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17 | (6) that under the terms of the mortgage, any money so | ||||||
18 | paid or expended
will become an additional indebtedness | ||||||
19 | secured by the mortgage and will bear
interest from the | ||||||
20 | date such monies are advanced at the rate provided in the
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21 | mortgage, or, if no rate is provided, at the
statutory | ||||||
22 | judgment rate.
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23 | (e) Request for Foreclosure. The request for foreclosure is | ||||||
24 | deemed and
construed to mean that the plaintiff requests that:
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25 | (1) an accounting may be taken under the direction of | ||||||
26 | the court of the
amounts due and owing to the plaintiff;
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1 | (2) that the defendants be ordered to pay to the | ||||||
2 | plaintiff before
expiration of any redemption period (or, | ||||||
3 | if no redemption period, before a
short date fixed by the | ||||||
4 | court) whatever sums may appear to be due upon the taking
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5 | of such account,
together with attorneys' fees and costs of | ||||||
6 | the proceedings (to the extent
provided in the mortgage or | ||||||
7 | by law);
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8 | (3) that in default of such payment in accordance with | ||||||
9 | the judgment, the
mortgaged real estate be sold as directed | ||||||
10 | by the court, to satisfy the
amount due to the plaintiff as | ||||||
11 | set forth in the judgment, together with the
interest | ||||||
12 | thereon at the statutory judgment rate from the date of the | ||||||
13 | judgment;
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14 | (4) that in the event the plaintiff is a purchaser of | ||||||
15 | the mortgaged real
estate at such sale, the plaintiff may | ||||||
16 | offset against the purchase price of
such real estate the | ||||||
17 | amounts due under the judgment of foreclosure and
order | ||||||
18 | confirming the sale;
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19 | (5) that in the event of such sale and the failure of | ||||||
20 | any person entitled
thereto to redeem prior to such sale | ||||||
21 | pursuant to this Article, the
defendants made parties to | ||||||
22 | the foreclosure in accordance with this Article,
and all | ||||||
23 | nonrecord claimants given notice of the foreclosure in | ||||||
24 | accordance
with this Article, and all persons claiming by, | ||||||
25 | through or under them, and
each and any and all of them, | ||||||
26 | may be forever barred and foreclosed of any
right, title, |
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1 | interest, claim, lien, or right to redeem in and to the
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2 | mortgaged real estate; and
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3 | (6) that if no redemption is made prior to such sale, a | ||||||
4 | deed may be
issued to the purchaser thereat according to | ||||||
5 | law and such purchaser be let
into possession of the | ||||||
6 | mortgaged real estate in accordance with Part 17 of this | ||||||
7 | Article.
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8 | (f) Request for Deficiency Judgment. A request for a | ||||||
9 | personal judgment
for a deficiency in a foreclosure complaint | ||||||
10 | if the sale of the mortgaged
real estate fails to produce a | ||||||
11 | sufficient amount to pay the amount found
due, the plaintiff | ||||||
12 | may have a personal judgment against any party in the
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13 | foreclosure indicated as being personally liable therefor and | ||||||
14 | the enforcement
thereof be had as provided by law.
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15 | (g) Request for Possession or Receiver. A request for | ||||||
16 | possession or appointment
of a receiver has the meaning as | ||||||
17 | stated in subsection (b) of Section 15-1706.
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18 | (h) Answers by Parties. Any party
may assert its interest | ||||||
19 | by counterclaim and such counterclaim may at the
option of that | ||||||
20 | party stand in lieu of answer to the complaint for
foreclosure | ||||||
21 | and all counter complaints previously or thereafter filed
in | ||||||
22 | the foreclosure. Any such counterclaim shall be deemed to | ||||||
23 | constitute a
statement that the counter claimant does not have | ||||||
24 | sufficient knowledge to
form a belief as to the truth or | ||||||
25 | falsity of the
allegations of the complaint and all other | ||||||
26 | counterclaims, except
to the extent that the counterclaim |
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1 | admits or specifically denies such
allegations.
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2 | (i) Pre-foreclosure meeting. Every foreclosure complaint | ||||||
3 | must be accompanied by a sworn affidavit of the plaintiff | ||||||
4 | stating that the plaintiff has complied with all the | ||||||
5 | requirements of Section 15-1502.5. Any complaint filed without | ||||||
6 | this affidavit is insufficient as a matter of law. | ||||||
7 | (Source: P.A. 91-357, eff. 7-29-99.)
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