HB5055 Enrolled LRB096 17806 AJO 33174 b

1     AN ACT concerning civil law.
 
2     Be it enacted by the People of the State of Illinois,
3 represented in the General Assembly:
 
4     Section 5. The Code of Civil Procedure is amended by
5 changing Sections 15-1503, 15-1506, 15-1507, and 15-1508 as
6 follows:
 
7     (735 ILCS 5/15-1503)  (from Ch. 110, par. 15-1503)
8     Sec. 15-1503. Notice of Foreclosure.
9     (a) A notice of foreclosure, whether the foreclosure is
10 initiated by complaint or counterclaim, made in accordance with
11 this Section and recorded in the county in which the mortgaged
12 real estate is located shall be constructive notice of the
13 pendency of the foreclosure to every person claiming an
14 interest in or lien on the mortgaged real estate, whose
15 interest or lien has not been recorded prior to the recording
16 of such notice of foreclosure. Such notice of foreclosure must
17 be executed by any party or any party's attorney and shall
18 include (i) the names of all plaintiffs and the case number,
19 (ii) the court in which the action was brought, (iii) the names
20 of title holders of record, (iv) a legal description of the
21 real estate sufficient to identify it with reasonable
22 certainty, (v) a common address or description of the location
23 of the real estate and (vi) identification of the mortgage

 

 

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1 sought to be foreclosed. An incorrect common address or
2 description of the location, or an immaterial error in the
3 identification of a plaintiff or title holder of record, shall
4 not invalidate the lis pendens effect of the notice under this
5 Section. A notice which complies with this Section shall be
6 deemed to comply with Section 2-1901 of the Code of Civil
7 Procedure and shall have the same effect as a notice filed
8 pursuant to that Section; however, a notice which complies with
9 Section 2-1901 shall not be constructive notice unless it also
10 complies with the requirements of this Section.
11     (b) With respect to residential real estate, a copy of the
12 notice of foreclosure described in subsection (a) of Section
13 15-1503 shall be sent by first class mail, postage prepaid, to
14 the municipality within the boundary of which the mortgaged
15 real estate is located, or to the county within the boundary of
16 which the mortgaged real estate is located if the mortgaged
17 real estate is located in an unincorporated territory. A
18 municipality or county must clearly publish on its website a
19 single address to which such notice shall be sent. If a
20 municipality or county does not maintain a website, then the
21 municipality or county must publicly post in its main office a
22 single address to which such notice shall be sent. In the event
23 that a municipality or county has not complied with the
24 publication requirement in this subsection (b), then such
25 notice to the municipality or county shall be sent by first
26 class mail to the chairperson of the county board or county

 

 

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1 clerk in the case of a county, to the mayor or city clerk in the
2 case of a city, to the president of the board of trustees or
3 village clerk in the case of a village, or to the supervisor or
4 town clerk in the case of a town provided pursuant to Section
5 2-211 of the Code of Civil Procedure.
6 (Source: P.A. 96-856, eff. 3-1-10.)
 
7     (735 ILCS 5/15-1506)  (from Ch. 110, par. 15-1506)
8     Sec. 15-1506. Judgment. (a) Evidence. In the trial of a
9 foreclosure, the evidence to support the allegations of the
10 complaint shall be taken in open court, except:
11     (1) where an allegation of fact in the complaint is not
12 denied by a party's verified answer or verified counterclaim,
13 or where a party pursuant to subsection (b) of Section 2-610 of
14 the Code of Civil Procedure states, or is deemed to have
15 stated, in its pleading that it has no knowledge of such
16 allegation sufficient to form a belief and attaches the
17 required affidavit, a sworn verification of the complaint or a
18 separate affidavit setting forth such fact is sufficient
19 evidence thereof against such party and no further evidence of
20 such fact shall be required; and
21     (2) where all the allegations of fact in the complaint have
22 been proved by verification of the complaint or affidavit, the
23 court upon motion supported by an affidavit stating the amount
24 which is due the mortgagee, shall enter a judgment of
25 foreclosure as requested in the complaint.

 

 

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1     (b) Instruments. In all cases the evidence of the
2 indebtedness and the mortgage foreclosed shall be exhibited to
3 the court and appropriately marked, and copies thereof shall be
4 filed with the court.
5     (c) Summary and Default Judgments. Nothing in this Section
6 15-1506 shall prevent a party from obtaining a summary or
7 default judgment authorized by Article II of the Code of Civil
8 Procedure.
9     (d) Notice of Entry of Default. When any judgment in a
10 foreclosure is entered by default, notice of such judgment
11 shall be given in accordance with Section 2-1302 of the Code of
12 Civil Procedure.
13     (e) Matters Required in Judgment. A judgment of foreclosure
14 shall include the last date for redemption and all rulings of
15 the court entered with respect to each request for relief set
16 forth in the complaint. The omission of the date for redemption
17 shall not extend the time for redemption or impair the validity
18 of the judgment.
19     (f) Special Matters in Judgment. Without limiting the
20 general authority and powers of the court, special matters may
21 be included in the judgment of foreclosure if sought by a party
22 in the complaint or by separate motion brought by a party. Such
23 matters may include, without limitation:
24     (1) a manner of sale other than public auction;
25     (2) a sale by sealed bid;
26     (3) the an official or other person who shall be the

 

 

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1 officer to conduct the sale other than the one customarily
2 designated by the court;
3     (4) provisions for non-exclusive broker listings or
4 designating a duly licensed real estate broker nominated by one
5 of the parties to exclusively list the real estate for sale;
6     (5) the fees or commissions to be paid out of the sale
7 proceeds to the listing or other duly licensed broker, if any,
8 who shall have procured the accepted bid;
9     (6) the fees to be paid out of the sale proceeds to an
10 auctioneer, if any, who shall have been authorized to conduct a
11 public auction sale;
12     (7) whether and in what manner and with what content signs
13 shall be posted on the real estate;
14     (8) a particular time and place at which such bids shall be
15 received;
16     (9) a particular newspaper or newspapers in which notice of
17 sale shall be published;
18     (10) the format for the advertising of such sale, including
19 the size, content and format of such advertising, and
20 additional advertising of such sale;
21     (11) matters or exceptions to which title in the real
22 estate may be subject at the sale;
23     (12) a requirement that title insurance in a specified form
24 be provided to a purchaser at the sale, and who shall pay for
25 such insurance;
26     (13) whether and to what extent bids with mortgage or other

 

 

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1 contingencies will be allowed;
2     (14) such other matters as approved by the court to ensure
3 sale of the real estate for the most commercially favorable
4 price for the type of real estate involved.
5     (g) Agreement of the Parties. If all of the parties agree
6 in writing on the minimum price and that the real estate may be
7 sold to the first person who offers in writing to purchase the
8 real estate for such price, and on such other commercially
9 reasonable terms and conditions as the parties may agree, then
10 the court shall order the real estate to be sold on such terms,
11 subject to confirmation of the sale in accordance with Section
12 15-1508.
13     (h) Postponement of Proving Priority. With the approval of
14 the court prior to the entry of the judgment of foreclosure, a
15 party claiming an interest in the proceeds of the sale of the
16 mortgaged real estate may defer proving the priority of such
17 interest until the hearing to confirm the sale.
18     (i) Effect of Judgment and Lien. (1) Upon the entry of the
19 judgment of foreclosure, all rights of a party in the
20 foreclosure against the mortgagor provided for in the judgment
21 of foreclosure or this Article shall be secured by a lien on
22 the mortgaged real estate, which lien shall have the same
23 priority as the claim to which the judgment relates and shall
24 be terminated upon confirmation of a judicial sale in
25 accordance with this Article.
26     (2) Upon the entry of the judgment of foreclosure, the

 

 

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1 rights in the real estate subject to the judgment of
2 foreclosure of (i) all persons made a party in the foreclosure
3 and (ii) all nonrecord claimants given notice in accordance
4 with paragraph (2) of subsection (c) of Section 15-1502, shall
5 be solely as provided for in the judgment of foreclosure and in
6 this Article.
7 (Source: P.A. 85-907.)
 
8     (735 ILCS 5/15-1507)  (from Ch. 110, par. 15-1507)
9     Sec. 15-1507. Judicial Sale.
10     (a) In General. Except as provided in Sections 15-1402 and
11 15-1403, upon entry of a judgment of foreclosure, the real
12 estate which is the subject of the judgment shall be sold at a
13 judicial sale in accordance with this Section 15-1507.
14     (b) Sale Procedures. Upon expiration of the reinstatement
15 period and the redemption period in accordance with subsection
16 (b) or (c) of Section 15-1603 or upon the entry of a judgment
17 of foreclosure after the waiver of all rights of redemption,
18 except as provided in subsection (g) of Section 15-1506, the
19 real estate shall be sold at a sale as provided in this
20 Article, on such terms and conditions as shall be specified by
21 the court in the judgment of foreclosure. In the absence of an
22 appointment made pursuant to a motion under subsection (f) of
23 Section 15-1506, the person conducting the sale shall be chosen
24 by the plaintiff and shall be (i) any person who had been
25 appointed pursuant to Section 15-1506 by any circuit court in

 

 

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1 any matter prior to the effective date of this amendatory Act
2 of the 96th General Assembly, (ii) any judge, or (iii) the
3 sheriff of the county in which the real estate is located. A
4 sale may be conducted by any judge or sheriff.
5     (c) Notice of Sale. The mortgagee, or such other party
6 designated by the court, in a foreclosure under this Article
7 shall give public notice of the sale as follows:
8         (1) The notice of sale shall include at least the
9     following information, but an immaterial error in the
10     information shall not invalidate the legal effect of the
11     notice:
12             (A) the name, address and telephone number of the
13         person to contact for information regarding the real
14         estate;
15             (B) the common address and other common
16         description (other than legal description), if any, of
17         the real estate;
18             (C) a legal description of the real estate
19         sufficient to identify it with reasonable certainty;
20             (D) a description of the improvements on the real
21         estate;
22             (E) the times specified in the judgment, if any,
23         when the real estate may be inspected prior to sale;
24             (F) the time and place of the sale;
25             (G) the terms of the sale;
26             (H) the case title, case number and the court in

 

 

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1         which the foreclosure was filed;
2             (H-1) in the case of a condominium unit to which
3         subsection (g) of Section 9 of the Condominium Property
4         Act applies, the statement required by subdivision
5         (g)(5) of Section 9 of the Condominium Property Act;
6         and
7             (I) such other information ordered by the Court.
8         (2) The notice of sale shall be published at least 3
9     consecutive calendar weeks (Sunday through Saturday), once
10     in each week, the first such notice to be published not
11     more than 45 days prior to the sale, the last such notice
12     to be published not less than 7 days prior to the sale, by:
13     (i) (A) advertisements in a newspaper circulated to the
14     general public in the county in which the real estate is
15     located, in the section of that newspaper where legal
16     notices are commonly placed and (B) separate
17     advertisements in the section of such a newspaper, which
18     (except in counties with a population in excess of
19     3,000,000) may be the same newspaper, in which real estate
20     other than real estate being sold as part of legal
21     proceedings is commonly advertised to the general public;
22     provided, that the separate advertisements in the real
23     estate section need not include a legal description and
24     that where both advertisements could be published in the
25     same newspaper and that newspaper does not have separate
26     legal notices and real estate advertisement sections, a

 

 

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1     single advertisement with the legal description shall be
2     sufficient; and (ii) such other publications as may be
3     further ordered by the court.
4         (3) The party who gives notice of public sale in
5     accordance with subsection (c) of Section 15-1507 shall
6     also give notice to all parties in the action who have
7     appeared and have not theretofore been found by the court
8     to be in default for failure to plead. Such notice shall be
9     given in the manner provided in the applicable rules of
10     court for service of papers other than process and
11     complaint, not more than 45 days nor less than 7 days prior
12     to the day of sale. After notice is given as required in
13     this Section a copy thereof shall be filed in the office of
14     the clerk of the court entering the judgment, together with
15     a certificate of counsel or other proof that notice has
16     been served in compliance with this Section.
17         (4) The party who gives notice of public sale in
18     accordance with subsection (c) of Section 15-1507 shall
19     again give notice in accordance with that Section of any
20     adjourned sale; provided, however, that if the adjourned
21     sale is to occur less than 60 days after the last scheduled
22     sale, notice of any adjourned sale need not be given
23     pursuant to this Section. In the event of adjournment, the
24     person conducting the sale shall, upon adjournment,
25     announce the date, time and place upon which the adjourned
26     sale shall be held. Notwithstanding any language to the

 

 

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1     contrary, for any adjourned sale that is to be conducted
2     more than 60 days after the date on which it was to first
3     be held, the party giving notice of such sale shall again
4     give notice in accordance with this Section.
5         (5) Notice of the sale may be given prior to the
6     expiration of any reinstatement period or redemption
7     period.
8         (6) No other notice by publication or posting shall be
9     necessary unless required by order or rule of the court.
10         (7) The person named in the notice of sale to be
11     contacted for information about the real estate may, but
12     shall not be required, to provide additional information
13     other than that set forth in the notice of sale.
14     (d) Election of Property. If the real estate which is the
15 subject of a judgment of foreclosure is susceptible of
16 division, the court may order it to be sold as necessary to
17 satisfy the judgment. The court shall determine which real
18 estate shall be sold, and the court may determine the order in
19 which separate tracts may be sold.
20     (e) Receipt upon Sale. Upon and at the sale of mortgaged
21 real estate, the person conducting the sale shall give to the
22 purchaser a receipt of sale. The receipt shall describe the
23 real estate purchased and shall show the amount bid, the amount
24 paid, the total amount paid to date and the amount still to be
25 paid therefor. An additional receipt shall be given at the time
26 of each subsequent payment.

 

 

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1     (f) Certificate of Sale. Upon payment in full of the amount
2 bid, the person conducting the sale shall issue, in duplicate,
3 and give to the purchaser a Certificate of Sale. The
4 Certificate of Sale shall be in a recordable form, describe the
5 real estate purchased, indicate the date and place of sale and
6 show the amount paid therefor. The Certificate of Sale shall
7 further indicate that it is subject to confirmation by the
8 court. The duplicate certificate may be recorded in accordance
9 with Section 12-121. The Certificate of Sale shall be freely
10 assignable by endorsement thereon.
11     (g) Interest after Sale. Any bid at sale shall be deemed to
12 include, without the necessity of a court order, interest at
13 the statutory judgment rate on any unpaid portion of the sale
14 price from the date of sale to the date of payment.
15 (Source: P.A. 94-1049, eff. 1-1-07.)
 
16     (735 ILCS 5/15-1508)  (from Ch. 110, par. 15-1508)
17     Sec. 15-1508. Report of Sale and Confirmation of Sale.
18     (a) Report. The person conducting the sale shall promptly
19 make a report to the court, which report shall include a copy
20 of all receipts and, if any, certificate of sale.
21     (b) Hearing. Upon motion and notice in accordance with
22 court rules applicable to motions generally, which motion shall
23 not be made prior to sale, the court shall conduct a hearing to
24 confirm the sale. Unless the court finds that (i) a notice
25 required in accordance with subsection (c) of Section 15-1507

 

 

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1 was not given, (ii) the terms of sale were unconscionable,
2 (iii) the sale was conducted fraudulently or (iv) that justice
3 was otherwise not done, the court shall then enter an order
4 confirming the sale. The confirmation order shall include a
5 name, address, and telephone number of the holder of the
6 certificate of sale or deed issued pursuant to that certificate
7 or, if no certificate or deed was issued, the purchaser, whom a
8 municipality or county may contact with concerns about the real
9 estate. The confirmation order may also:
10         (1) approve the mortgagee's fees and costs arising
11     between the entry of the judgment of foreclosure and the
12     confirmation hearing, those costs and fees to be allowable
13     to the same extent as provided in the note and mortgage and
14     in Section 15-1504;
15         (2) provide for a personal judgment against any party
16     for a deficiency; and
17         (3) determine the priority of the judgments of parties
18     who deferred proving the priority pursuant to subsection
19     (h) of Section 15-1506, but the court shall not defer
20     confirming the sale pending the determination of such
21     priority.
22     (b-5) Notice with respect to residential real estate. With
23 respect to residential real estate, the notice required under
24 subsection (b) of this Section shall be sent to the mortgagor
25 even if the mortgagor has previously been held in default. In
26 the event the mortgagor has filed an appearance, the notice

 

 

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1 shall be sent to the address indicated on the appearance. In
2 all other cases, the notice shall be sent to the mortgagor at
3 the common address of the foreclosed property. The notice shall
4 be sent by first class mail. Unless the right to possession has
5 been previously terminated by the court, the notice shall
6 include the following language in 12-point boldface
7 capitalized type:
8
IF YOU ARE THE MORTGAGOR (HOMEOWNER), YOU HAVE THE RIGHT TO
9
REMAIN IN POSSESSION FOR 30 DAYS AFTER ENTRY OF AN ORDER OF
10
POSSESSION, IN ACCORDANCE WITH SECTION 15-1701(c) OF THE
11
ILLINOIS MORTGAGE FORECLOSURE LAW.
12     (b-10) Notice of confirmation order sent to municipality or
13 county. With respect to residential real estate, a A copy of
14 the confirmation order required under subsection (b) shall be
15 sent by first class mail, postage prepaid, to the municipality
16 in which the foreclosed property is located, or to the county
17 within the boundary of which the foreclosed property is located
18 if the foreclosed property is located in an unincorporated
19 territory. A municipality or county must clearly publish on its
20 website a single address to which such order notice shall be
21 sent. If a municipality or county does not maintain a website,
22 then the municipality or county must publicly post in its main
23 office a single address to which such order notice shall be
24 sent. In the event that a municipality or county has not
25 complied with the publication requirement in this subsection
26 (b-10), then such order notice to the municipality or county

 

 

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1 shall be sent by first class mail to the chairperson of the
2 county board or county clerk in the case of a county, to the
3 mayor or city clerk in the case of a city, to the president of
4 the board of trustees or village clerk in the case of a
5 village, or to the supervisor or town clerk in the case of a
6 town provided pursuant to Section 2-211 of the Code of Civil
7 Procedure.
8     (b-15) Notice of confirmation order sent to known insurers.
9 With respect to residential real estate, a copy of the
10 confirmation order required under subsection (b) shall be sent
11 by first class mail, postage prepaid, to the last-known
12 property insurer of the foreclosed property. Failure to send or
13 receive a copy of the order shall not impair or abrogate in any
14 way the rights of the mortgagee or purchaser or affect the
15 status of the foreclosure proceedings.
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. Any such party shall guarantee
23 or secure by bond a bid equal to the successful bid at the
24 prior sale, unless the party seeking to set aside the sale is
25 the mortgagor, the real estate sold at the sale is residential
26 real estate, and the mortgagor occupies the residential real

 

 

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1 estate at the time the motion is filed. In that event, no
2 guarantee or bond shall be required of the mortgagor. Any
3 subsequent sale is subject to the same notice requirement as
4 the original sale.
5     (d) Validity of Sale. Except as provided in subsection (c)
6 of Section 15-1508, no sale under this Article shall be held
7 invalid or be set aside because of any defect in the notice
8 thereof or in the publication of the same, or in the
9 proceedings of the officer conducting the sale, except upon
10 good cause shown in a hearing pursuant to subsection (b) of
11 Section 15-1508. At any time after a sale has occurred, any
12 party entitled to notice under paragraph (3) of subsection (c)
13 of Section 15-1507 may recover from the mortgagee any damages
14 caused by the mortgagee's failure to comply with such paragraph
15 (3). Any party who recovers damages in a judicial proceeding
16 brought under this subsection may also recover from the
17 mortgagee the reasonable expenses of litigation, including
18 reasonable attorney's fees.
19     (e) Deficiency Judgment. In any order confirming a sale
20 pursuant to the judgment of foreclosure, the court shall also
21 enter a personal judgment for deficiency against any party (i)
22 if otherwise authorized and (ii) to the extent requested in the
23 complaint and proven upon presentation of the report of sale in
24 accordance with Section 15-1508. Except as otherwise provided
25 in this Article, a judgment may be entered for any balance of
26 money that may be found due to the plaintiff, over and above

 

 

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1 the proceeds of the sale or sales, and enforcement may be had
2 for the collection of such balance, the same as when the
3 judgment is solely for the payment of money. Such judgment may
4 be entered, or enforcement had, only in cases where personal
5 service has been had upon the persons personally liable for the
6 mortgage indebtedness, unless they have entered their
7 appearance in the foreclosure action.
8     (f) Satisfaction. Upon confirmation of the sale, the
9 judgment stands satisfied to the extent of the sale price less
10 expenses and costs. If the order confirming the sale includes a
11 deficiency judgment, the judgment shall become a lien in the
12 manner of any other judgment for the payment of money.
13     (g) The order confirming the sale shall include,
14 notwithstanding any previous orders awarding possession during
15 the pendency of the foreclosure, an award to the purchaser of
16 possession of the mortgaged real estate, as of the date 30 days
17 after the entry of the order, against the parties to the
18 foreclosure whose interests have been terminated.
19     An order of possession authorizing the removal of a person
20 from possession of the mortgaged real estate shall be entered
21 and enforced only against those persons personally named as
22 individuals in the complaint or the petition under subsection
23 (h) of Section 15-1701 and in the order of possession and shall
24 not be entered and enforced against any person who is only
25 generically described as an unknown owner or nonrecord claimant
26 or by another generic designation in the complaint.

 

 

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1     Notwithstanding the preceding paragraph, the failure to
2 personally name, include, or seek an award of possession of the
3 mortgaged real estate against a person in the confirmation
4 order shall not abrogate any right that the purchaser may have
5 to possession of the mortgaged real estate and to maintain a
6 proceeding against that person for possession under Article 9
7 of this Code or subsection (h) of Section 15-1701; and
8 possession against a person who (1) has not been personally
9 named as a party to the foreclosure and (2) has not been
10 provided an opportunity to be heard in the foreclosure
11 proceeding may be sought only by maintaining a proceeding under
12 Article 9 of this Code or subsection (h) of Section 15-1701.
13 (Source: P.A. 95-826, eff. 8-14-08; 96-265, eff. 8-11-09;
14 96-856, eff. 3-1-10.)
 
15     Section 99. Effective date. Sections 15-1506 and 15-1507
16 take effect upon becoming law.