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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, | ||||||
3 | represented in the General Assembly:
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4 | Section 5. The Code of Civil Procedure is amended by | ||||||
5 | changing Section 15-1701 as follows:
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6 | (735 ILCS 5/15-1701) (from Ch. 110, par. 15-1701)
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7 | Sec. 15-1701. Right to possession.
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8 | (a) General. The provisions of
this Article shall govern | ||||||
9 | the right to possession of the mortgaged real
estate during | ||||||
10 | foreclosure. Possession under this Article includes physical
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11 | possession of the mortgaged real estate to the same extent to | ||||||
12 | which the
mortgagor, absent the foreclosure, would have been | ||||||
13 | entitled to physical
possession. For the purposes of Part 17, | ||||||
14 | real estate is residential real estate
only if it is | ||||||
15 | residential real estate at the time the foreclosure is | ||||||
16 | commenced.
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17 | (b) Pre-Judgment. Prior to the entry of a judgment of | ||||||
18 | foreclosure:
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19 | (1) In the case of residential real estate, the | ||||||
20 | mortgagor shall be
entitled to possession of the real | ||||||
21 | estate except if (i) the mortgagee shall
object and show | ||||||
22 | good cause, (ii) the mortgagee is so authorized by the | ||||||
23 | terms of
the mortgage or other written instrument, and |
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1 | (iii) the court is satisfied that
there is a reasonable | ||||||
2 | probability that the mortgagee will prevail on a final
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3 | hearing of the cause, the court shall upon request place | ||||||
4 | the mortgagee in
possession. If the residential real estate | ||||||
5 | consists of more than one dwelling
unit, then for the | ||||||
6 | purpose of this Part residential real estate shall mean | ||||||
7 | only
that dwelling unit or units occupied by persons | ||||||
8 | described in clauses (i), (ii)
and (iii) of Section | ||||||
9 | 15-1219.
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10 | (2) In all other cases, if (i) the mortgagee is so | ||||||
11 | authorized by the
terms of the mortgage or other written | ||||||
12 | instrument, and (ii) the court is
satisfied that there is a | ||||||
13 | reasonable probability that the mortgagee will
prevail on a | ||||||
14 | final hearing of the cause, the mortgagee shall
upon | ||||||
15 | request be placed in possession of the real estate, except | ||||||
16 | that if the
mortgagor shall object and show good cause, the | ||||||
17 | court shall allow the
mortgagor to remain in possession.
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18 | (c) Judgment Through 30 Days After Sale Confirmation. After | ||||||
19 | the entry
of a judgment of foreclosure and through the 30th day | ||||||
20 | after a foreclosure
sale is confirmed:
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21 | (1) Subsection (b) of Section 15-1701 shall be | ||||||
22 | applicable, regardless of
the provisions of the mortgage or | ||||||
23 | other instrument, except that after a
sale pursuant to the | ||||||
24 | judgment the holder of the certificate of sale
(or, if | ||||||
25 | none, the purchaser at the sale) shall have the mortgagee's | ||||||
26 | right to be
placed in possession, with all rights and |
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1 | duties of a mortgagee in possession
under this Article.
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2 | (2) Notwithstanding paragraph (1) of subsection (b) | ||||||
3 | and paragraph (1) of
subsection (c) of Section 15-1701, | ||||||
4 | upon request of the mortgagee, a mortgagor
of residential | ||||||
5 | real estate shall not be allowed to remain in possession | ||||||
6 | between
the expiration of the redemption period and through | ||||||
7 | the 30th day after sale
confirmation unless (i) the | ||||||
8 | mortgagor pays to the mortgagee or such holder or
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9 | purchaser, whichever is applicable, monthly the lesser of | ||||||
10 | the interest due
under the mortgage calculated at the | ||||||
11 | mortgage rate of interest applicable as if
no default had | ||||||
12 | occurred or the fair rental value of the real estate, or | ||||||
13 | (ii)
the mortgagor otherwise shows good cause. Any amounts | ||||||
14 | paid by the mortgagor
pursuant to this subsection shall be | ||||||
15 | credited against the amounts due from the
mortgagor.
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16 | (d) After 30 Days After Sale Confirmation. The holder of
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17 | the certificate of sale or deed issued pursuant to that | ||||||
18 | certificate or, if
no certificate or deed was issued, the | ||||||
19 | purchaser, except to the extent the
holder or purchaser may | ||||||
20 | consent otherwise, shall be entitled to possession of
the | ||||||
21 | mortgaged real estate, as of the date 30 days after the order | ||||||
22 | confirming
the sale is entered, against those parties to the | ||||||
23 | foreclosure whose interests
the court has ordered terminated, | ||||||
24 | without further notice to any party, further
order of the | ||||||
25 | court, or resort to proceedings under any other statute other | ||||||
26 | than
this Article.
This right to possession shall be limited by |
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1 | the provisions
governing entering and enforcing orders of | ||||||
2 | possession under subsection (g) of
Section
15-1508.
If the | ||||||
3 | holder or purchaser determines that there are occupants
of the | ||||||
4 | mortgaged real estate who have not been made parties to the | ||||||
5 | foreclosure
and had their interests terminated therein, the | ||||||
6 | holder or purchaser may bring a
proceeding under subsection (h) | ||||||
7 | of this Section or under Article 9 of this Code
to terminate | ||||||
8 | the rights of possession of any such occupants. The holder or
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9 | purchaser shall not be entitled to proceed against any such | ||||||
10 | occupant under
Article 9 of this Code until after 30 days after | ||||||
11 | the order confirming the sale
is entered.
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12 | (e) Termination of Leases. A lease of all or any part of | ||||||
13 | the mortgaged
real estate shall not be terminated automatically | ||||||
14 | solely by virtue of the entry
into possession by (i) a | ||||||
15 | mortgagee or receiver prior to the entry of an order
confirming | ||||||
16 | the sale, (ii) the holder of the certificate of sale, (iii) the
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17 | holder of the deed issued pursuant to that certificate, or (iv) | ||||||
18 | if no
certificate or deed was issued, the purchaser at the | ||||||
19 | sale.
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20 | (f) Other Statutes; Instruments. The provisions of this | ||||||
21 | Article
providing for possession of mortgaged real estate shall | ||||||
22 | supersede any other
inconsistent statutory provisions. In | ||||||
23 | particular, and without limitation,
whenever a receiver is | ||||||
24 | sought to be appointed in any action in which a
foreclosure is | ||||||
25 | also pending, a receiver shall be appointed only in
accordance | ||||||
26 | with this Article. Except as may be authorized by this Article,
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1 | no mortgage or other instrument may modify or supersede the | ||||||
2 | provisions of this
Article.
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3 | (g) Certain Leases. Leases of the mortgaged real estate | ||||||
4 | entered into by
a mortgagee in possession or a receiver and | ||||||
5 | approved by the court in a
foreclosure shall be binding on all | ||||||
6 | parties, including the mortgagor after
redemption, the | ||||||
7 | purchaser at a sale pursuant to a judgment of foreclosure
and | ||||||
8 | any person acquiring an interest in the mortgaged real estate | ||||||
9 | after
entry of a judgment of foreclosure in accordance with | ||||||
10 | Sections 15-1402 and
15-1403.
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11 | (h) Proceedings Against Certain Occupants.
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12 | (1) The mortgagee-in-possession of the mortgaged real | ||||||
13 | estate under Section
15-1703, a receiver appointed under | ||||||
14 | Section 15-1704, a holder of the
certificate of sale or | ||||||
15 | deed, or the purchaser may, at any time during the
pendency | ||||||
16 | of the foreclosure and up to 90 days after the date of the | ||||||
17 | order
confirming the sale,
file a supplemental petition for | ||||||
18 | possession against a person not personally
named as a party
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19 | to the foreclosure. The supplemental petition for | ||||||
20 | possession shall name each such
occupant against whom | ||||||
21 | possession is sought and state the facts upon which the
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22 | claim for relief is premised.
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23 | (2) The petitioner shall serve upon each named occupant | ||||||
24 | the petition,
a notice of hearing on the petition, and, if | ||||||
25 | any, a copy of the certificate of
sale or deed. The | ||||||
26 | proceeding for the termination of such occupant's |
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1 | possessory
interest, including service of the notice of the | ||||||
2 | hearing and the petition,
shall in all respects comport | ||||||
3 | with the requirements of Article 9 of this Code,
except as | ||||||
4 | otherwise specified in this Section. The hearing shall be | ||||||
5 | no less
than 21 days from the date of service of the | ||||||
6 | notice.
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7 | (3) The supplemental petition shall be heard as part of | ||||||
8 | the foreclosure
proceeding and without the payment of | ||||||
9 | additional filing fees. An order for
possession obtained | ||||||
10 | under this Section shall name each occupant whose interest
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11 | has been terminated, shall recite that it is only effective | ||||||
12 | as to the occupant
so named and those holding under them, | ||||||
13 | and shall be enforceable for no more
than 90 days after its | ||||||
14 | entry, except that the 90-day period may be extended to
the | ||||||
15 | extent and in the manner provided in Section 9-117 of | ||||||
16 | Article 9 and except as provided in item (4) of this | ||||||
17 | subsection (h). | ||||||
18 | (4) In a case of foreclosure where the tenant is | ||||||
19 | current on his or her rent , or where timely written notice | ||||||
20 | of to whom and where the rent is to be paid has not been | ||||||
21 | provided to the tenant, or where the tenant has made | ||||||
22 | good-faith efforts to make rental payments in order to keep | ||||||
23 | current , any order of possession must allow the tenant to | ||||||
24 | retain possession of the property covered in his or her | ||||||
25 | rental agreement (i) for 120 days following the notice of | ||||||
26 | the hearing on the supplemental petition that has been |
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1 | properly served upon the tenant, or (ii) through the | ||||||
2 | duration of his or her lease, whichever is shorter. If the | ||||||
3 | tenant has been given timely written notice of to whom and | ||||||
4 | where the rent is to be paid, this This item (4) shall only | ||||||
5 | apply if the tenant continues to pay his or her rent in | ||||||
6 | full during the 120-day period or has made good-faith | ||||||
7 | efforts to pay the rent in full during that period .
No | ||||||
8 | mortgagee-in-possession, receiver or holder of a | ||||||
9 | certificate of sale or deed, or purchaser who fails to file | ||||||
10 | a supplemental petition under this subsection during the | ||||||
11 | pendency of a mortgage foreclosure shall file a forcible | ||||||
12 | entry and detainer action against a tenant of the mortgaged | ||||||
13 | real estate until 90 days after a notice of intent to file | ||||||
14 | such action has been properly served upon the tenant. | ||||||
15 | (5) The court records relating to a supplemental | ||||||
16 | petition for possession filed under this subsection (h) | ||||||
17 | against a tenant who is entitled to notice under item (4) | ||||||
18 | of this subsection (h), or relating to a forcible entry and | ||||||
19 | detainer action brought against a tenant who would have | ||||||
20 | lawful possession of the premises but for the foreclosure | ||||||
21 | of a mortgage on the property, shall be ordered sealed and | ||||||
22 | shall not be disclosed to any person, other than a law | ||||||
23 | enforcement officer or any other representative of a | ||||||
24 | governmental entity, except upon further order of the | ||||||
25 | court.
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26 | (Source: P.A. 95-262, eff. 1-1-08.)
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1 | Section 99. Effective date. This Act takes effect upon | ||||||
2 | becoming law.
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