SB1674 98TH GENERAL ASSEMBLY

LRB098 08582 HEP 38699 b

98TH GENERAL ASSEMBLY
State of Illinois
2013 and 2014
SB1674

Introduced 2/13/2013, by Sen. Jacqueline Y. Collins - John G. Mulroe

SYNOPSIS AS INTRODUCED:

See Index

Amends the Illinois Housing Development Act. Adds a cross reference to the Code of Civil Procedure in a Section concerning the Abandoned Residential Property Municipality Relief Program. Amends the Code of Civil Procedure. Provides that 2% of certain fees collected shall be retained by the clerk of court for deposit into the Circuit Court Clerk Operation and Administrative Fund to defray administrative expenses. Replaces provisions concerning the imposition of additional fees with language providing that until January 1, 2018, with respect to residential real estate, at the time of the filing of a foreclosure complaint, the plaintiff or plaintiff's representative shall: file a statement that states which additional fee is due; or comply with other process established by the court for a plaintiff to certify which additional fee is due. Provides that if a plaintiff fails to provide the clerk of the court with a true and correct statement of the additional fee due, and the mortgagor reimburses the plaintiff for any erroneous additional fee that was paid by the plaintiff to the clerk of the court, the mortgagor may seek a refund of any overpayment of the fee in an amount that does not exceed the difference between the higher additional fee paid and the actual fee due. Provides that the mortgagor must petition the judge in the foreclosure action for the award of any fee overpayment, and the award shall be determined by the judge and paid by the clerk of the court out of the Circuit Court Clerk Operation and Administrative Fund. Provides that the refund is the mortgagor's sole remedy and a mortgagor has no private right of action against the plaintiff or plaintiff's representatives if the additional fee paid by the plaintiff is erroneous. Provides that certain motions for an expedited judgment and sale shall be heard by the court no later than 21 (instead of 15) days after the period to answer the foreclosure complaint has expired, or, if a motion for an expedited judgment and sale is filed after the period to answer the foreclosure complaint has expired, no later than 21 (instead of 15) days after the motion is filed. Effective June 1, 2013.

A BILL FOR

AN ACT concerning civil law.

Be it enacted by the People of the State of Illinois, represented in the General Assembly:

Section 5. The Illinois Housing Development Act is amended by changing Section 7.31 as follows:

(20 ILCS 3805/7.31)

Sec. 7.31. Abandoned Residential Property Municipality Relief Program.

(a) The Authority shall establish and administer an Abandoned Residential Property Municipality Relief Program. The Authority shall use moneys in the Abandoned Residential Property Municipality Relief Fund, and any other funds appropriated for this purpose, to make grants to municipalities and to counties to assist with costs incurred by the municipality or county for: cutting of neglected weeds or grass, trimming of trees or bushes, and removal of nuisance bushes or trees; extermination of pests or prevention of the ingress of pests; removal of garbage, debris, and graffiti; boarding up, closing off, or locking windows or entrances or otherwise making the interior of a building inaccessible to the general public; surrounding part or all of an abandoned residential property's underlying parcel with a fence or wall or otherwise making part or all of the abandoned residential property's underlying parcel inaccessible to the general public; demolition of abandoned residential property; and repair or rehabilitation of abandoned residential property, as approved by the Authority under the Program. For purposes of this subsection (a), "pests" has the meaning ascribed to that term in subsection (c) of Section 11-20-8 of the Illinois Municipal Code. The Authority shall promulgate rules for the administration, operation, and maintenance of the Program and may adopt emergency rules as soon as practicable to begin implementation of the Program.

(b) Subject to appropriation, the Authority shall make grants from the Abandoned Residential Property Municipality Relief Fund derived from fees paid as specified in paragraph (1) of subsection (a-5) of Section 15-1504.1 and subsection (a) of Section 15-1507.1 of the Code of Civil Procedure as follows:

(1) 30% of the moneys in the Fund shall be used to make grants to municipalities other than the City of Chicago in Cook County and to Cook County;

(2) 25% of the moneys in the Fund shall be used to make grants to the City of Chicago;

(3) 30% of the moneys in the Fund shall be used to make grants to municipalities in DuPage, Kane, Lake, McHenry and Will Counties, and to those counties; and

(4) 15% of the moneys in the Fund shall be used to make grants to municipalities in Illinois in counties other than Cook, DuPage, Kane, Lake, McHenry, and Will Counties, and to counties other than Cook, DuPage, Kane, Lake, McHenry, and Will Counties. Grants distributed to the municipalities and counties identified in this paragraph (4) shall be based (i) proportionately on the amount of fees paid to the respective clerks of the courts within these counties and (ii) on any other factors that the Authority deems appropriate.

(Source: P.A. 96-1419, eff. 10-1-10; 97-1164, eff. 6-1-13.)

Section 10. The Code of Civil Procedure is amended by changing Sections 15-1504.1, 15-1505.8, and 15-1507.1 as follows:

(735 ILCS 5/15-1504.1)

Sec. 15-1504.1. Filing fee for Foreclosure Prevention Program Fund and Abandoned Residential Property Municipality Relief Fund.

(a) Fee paid by all plaintiffs with respect to residential real estate. With respect to residential real estate, at the time of the filing of a foreclosure complaint, the plaintiff shall pay to the clerk of the court in which the foreclosure complaint is filed a fee of $50 for deposit into the Foreclosure Prevention Program Fund, a special fund created in the State treasury. The clerk shall remit the fee collected pursuant to this subsection (a) to the State Treasurer to be expended for the purposes set forth in Section 7.30 of the Illinois Housing Development Act. All fees paid by plaintiffs to the clerk of the court as provided in this subsection (a) shall be disbursed within 60 days after receipt by the clerk of the court as follows: (i) 98% to the State Treasurer for deposit into the Foreclosure Prevention Program Fund, and (ii) 2% to the clerk of the court to be retained by the clerk for deposit into the Circuit Court Clerk Operation and Administrative Fund to defray for administrative expenses related to implementation of this subsection (a). Notwithstanding any other law to the contrary, the Foreclosure Prevention Program Fund is not subject to sweeps, administrative charge-backs, or any other fiscal maneuver that would in any way transfer any amounts from the Foreclosure Prevention Program Fund into any other fund of the State.

(a-5) Additional fee paid by plaintiffs with respect to residential real estate.

(1) Until January 1, 2018, with respect to residential real estate, at the time of the filing of a foreclosure complaint and in addition to the fee set forth in subsection (a) of this Section, the plaintiff shall pay to the clerk of the court in which the foreclosure complaint is filed a fee for the Foreclosure Prevention Program Fund and the Abandoned Residential Property Municipality Relief Fund as follows:

(A) The fee shall be $500 if:

(i) the plaintiff, together with its affiliates, has filed a sufficient number of foreclosure complaints so as to be included in the first tier foreclosure filing category and is filing the complaint on its own behalf as the holder of the indebtedness; or

(ii) the plaintiff, together with its affiliates, has filed a sufficient number of foreclosure complaints so as to be included in the first tier foreclosure filing category and is filing the complaint on behalf of a mortgagee that, together with its affiliates, has filed a sufficient number of foreclosure complaints so as to be included in the first tier foreclosure filing category; or

(iii) the plaintiff is not a depository institution and is filing the complaint on behalf of a mortgagee that, together with its affiliates, has filed a sufficient number of foreclosure complaints so as to be included in the first tier foreclosure filing category.

(B) The fee shall be $250 if:

(i) the plaintiff, together with its affiliates, has filed a sufficient number of foreclosure complaints so as to be included in the second tier foreclosure filing category and is filing the complaint on its own behalf as the holder of the indebtedness; or

(ii) the plaintiff, together with its affiliates, has filed a sufficient number of foreclosure complaints so as to be included in the first or second tier foreclosure filing category and is filing the complaint on behalf of a mortgagee that, together with its affiliates, has filed a sufficient number of foreclosure complaints so as to be included in the second tier foreclosure filing category; or

(iii) the plaintiff, together with its affiliates, has filed a sufficient number of foreclosure complaints so as to be included in the second tier foreclosure filing category and is filing the complaint on behalf of a mortgagee that, together with its affiliates, has filed a sufficient number of foreclosure complaints so as to be included in the first tier foreclosure filing category; or

(iv) the plaintiff is not a depository institution and is filing the complaint on behalf of a mortgagee that, together with its affiliates, has filed a sufficient number of foreclosure complaints so as to be included in the second tier foreclosure filing category.

(C) The fee shall be $50 if:

(i) the plaintiff, together with its affiliates, has filed a sufficient number of foreclosure complaints so as to be included in the third tier foreclosure filing category and is filing the complaint on its own behalf as the holder of the indebtedness; or

(ii) the plaintiff, together with its affiliates, has filed a sufficient number of foreclosure complaints so as to be included in the first, second, or third tier foreclosure filing category and is filing the complaint on behalf of a mortgagee that, together with its affiliates, has filed a sufficient number of foreclosure complaints so as to be included in the third tier foreclosure filing category; or

(iii) the plaintiff, together with its affiliates, has filed a sufficient number of foreclosure complaints so as to be included in the third tier foreclosure filing category and is filing the complaint on behalf of a mortgagee that, together with its affiliates, has filed a sufficient number of foreclosure complaints so as to be included in the first tier foreclosure filing category; or

(iv) the plaintiff, together with its affiliates, has filed a sufficient number of foreclosure complaints so as to be included in the third tier foreclosure filing category and is filing the complaint on behalf of a mortgagee that, together with its affiliates, has filed a sufficient number of foreclosure complaints so as to be included in the second tier foreclosure filing category; or

(v) the plaintiff is not a depository institution and is filing the complaint on behalf of a mortgagee that, together with its affiliates, has filed a sufficient number of foreclosure complaints so as to be included in the third tier foreclosure filing category.

(2) The clerk shall remit the fee collected pursuant to paragraph (1) of this subsection (a-5) to the State Treasurer to be expended for the purposes set forth in Sections 7.30 and 7.31 of the Illinois Housing Development Act and for administrative expenses. All fees paid by plaintiffs to the clerk of the court as provided in paragraph (1) shall be disbursed within 60 days after receipt by the clerk of the court as follows:

(A) 28% to the State Treasurer for deposit into the Foreclosure Prevention Program Fund;

(B) 70% to the State Treasurer for deposit into the Abandoned Residential Property Municipality Relief Fund; and

(C) 2% to the clerk of the court to be retained by the clerk for deposit into the Circuit Court Clerk Operation and Administrative Fund to defray for administrative expenses related to implementation of this subsection (a-5).

(3) Until January 1, 2018, with respect to residential real estate, at the time of the filing of a foreclosure complaint, the plaintiff or plaintiff's representative shall:

(A) file a statement that states which additional fee is due under paragraph (1) of subsection (a-5); or

(B) comply with other process established by the court for a plaintiff to certify which additional fee is due under paragraph (1) of subsection (a-5).

(3) To determine whether a plaintiff is subject to the fee as set forth in paragraph (1) of this subsection (a-5), a person, including the clerk of the court, may rely on:

(A) a verified statement filed by the plaintiff at the time of filing the foreclosure complaint that states whether the plaintiff has an obligation to pay an additional fee as set forth in subsection (a-5) and if so whether the fee is due under subparagraph (A), (B), or (C) of paragraph (1) of subsection (a-5); or

(B) such other processes established by the clerk of the court for plaintiffs to certify their eligibility for the exemption from the additional fee set forth in subsection (a-5).

(4) If a plaintiff fails to provide the clerk of the court with a true and correct statement of the additional fee due under paragraph (1) of subsection (a-5), and the mortgagor reimburses the plaintiff for any erroneous additional fee that was paid by the plaintiff to the clerk of the court, the mortgagor may seek a refund of any overpayment of the fee in an amount that shall not exceed the difference between the higher additional fee paid under paragraph (1) of this subsection (a-5) and the actual fee due thereunder. The mortgagor must petition the judge within the foreclosure action for the award of any fee overpayment pursuant to this paragraph (4) of subsection (a-5), and the award shall be determined by the judge and paid by the clerk of the court out of the Circuit Court Clerk Operation and Administrative Fund. This refund shall be the mortgagor's sole remedy and a mortgagor shall have no private right of action against the plaintiff or plaintiff's representatives if the additional fee paid by the plaintiff was erroneous.

(5) This subsection (a-5) is inoperative on and after January 1, 2018.

(b) Not later than March 1 of each year, the clerk of the court shall submit to the Illinois Housing Development Authority a report of the funds collected and remitted pursuant to this Section during the preceding year.

(c) As used in this Section:

"Affiliate" means any company that controls, is controlled by, or is under common control with another company.

"Approved counseling agency" and "approved housing counseling" have the meanings ascribed to those terms in Section 7.30 of the Illinois Housing Development Act.

"Depository institution" means a bank, savings bank, savings and loan association, or credit union chartered, organized, or holding a certificate of authority to do business under the laws of this State, another state, or the United States.

"First tier foreclosure filing category" is a classification that only applies to a plaintiff that has filed 175 or more foreclosure complaints on residential real estate located in Illinois during the calendar year immediately preceding the date of the filing of the subject foreclosure complaint.

"Second tier foreclosure filing category" is a classification that only applies to a plaintiff that has filed at least 50, but no more than 174, foreclosure complaints on residential real estate located in Illinois during the calendar year immediately preceding the date of the filing of the subject foreclosure complaint.

"Third tier foreclosure filing category" is a classification that only applies to a plaintiff that has filed no more than 49 foreclosure complaints on residential real estate located in Illinois during the calendar year immediately preceding the date of the filing of the subject foreclosure complaint.

(d) In no instance shall the fee set forth in subsection (a-5) be assessed for any foreclosure complaint filed before the effective date of this amendatory Act of the 97th General Assembly.

(e) Notwithstanding any other law to the contrary, the Abandoned Residential Property Municipality Relief Fund is not subject to sweeps, administrative charge-backs, or any other fiscal maneuver that would in any way transfer any amounts from the Abandoned Residential Property Municipality Relief Fund into any other fund of the State.

(Source: P.A. 96-1419, eff. 10-1-10; 97-333, eff. 8-12-11; 97-1164, eff. 6-1-13.)

(735 ILCS 5/15-1505.8)

(This Section may contain text from a Public Act with a delayed effective date)

Sec. 15-1505.8. Expedited judgment and sale procedure for abandoned residential property.

(a) Upon motion and notice, the mortgagee may elect to utilize the expedited judgment and sale procedure for abandoned residential property stated in this Section to obtain a judgment of foreclosure pursuant to Section 15-1506. The motion to expedite the judgment and sale may be combined with or made part of the motion requesting a judgment of foreclosure. The notice of the motion to expedite the judgment and sale shall be sent by first-class mail to the last known address of the mortgagor, and the notice required by paragraph (1) of subsection (l) of this Section shall be posted at the property address.

(b) The motion requesting an expedited judgment of foreclosure and sale may be filed by the mortgagee at the time the foreclosure complaint is filed or any time thereafter, and shall set forth the facts demonstrating that the mortgaged real estate is abandoned residential real estate under Section 15-1200.5 and shall be supported by affidavit.

(c) If a motion for an expedited judgment and sale is filed at the time the foreclosure complaint is filed or before the period to answer the foreclosure complaint has expired, the motion shall be heard by the court no earlier than before the period to answer the foreclosure complaint has expired and no later than 21 15 days after the period to answer the foreclosure complaint has expired.

(d) If a motion for an expedited judgment and sale is filed after the period to answer the foreclosure complaint has expired, the motion shall be heard no later than 21 15 days after the motion is filed.

(e) The hearing shall be given priority by the court and shall be scheduled to be heard within the applicable time period set forth in subsection (c) or (d) of this Section.

(f) Subject to subsection (g), at the hearing on the motion requesting an expedited judgment and sale, if the court finds that the mortgaged real estate is abandoned residential property, the court shall grant the motion and immediately proceed to a trial of the foreclosure. A judgment of foreclosure under this Section shall include the matters identified in Section 15-1506.

(g) The court may not grant the motion requesting an expedited judgment and sale if the mortgagor, an unknown owner, or a lawful occupant appears in the action in any manner before or at the hearing and objects to a finding of abandonment.

(h) The court shall vacate an order issued pursuant to subsection (f) of this Section if the mortgagor or a lawful occupant appears in the action at any time prior to the court issuing an order confirming the sale pursuant to subsection (b-3) of Section 15-1508 and presents evidence establishing to the satisfaction of the court that the mortgagor or lawful occupant has not abandoned the mortgaged real estate.

(i) The reinstatement period and redemption period for the abandoned residential property shall end in accordance with paragraph (4) of subsection (b) of Section 15-1603, and the abandoned residential property shall be sold at the earliest practicable time at a sale as provided in this Article.

(j) The mortgagee or its agent may enter, secure, and maintain abandoned residential property subject to subsection (e-5) of Section 21-3 of the Criminal Code of 2012.

(k) Personal property.

(1) Upon confirmation of the sale held pursuant to Section 15-1507, any personal property remaining in or upon the abandoned residential property shall be deemed to have been abandoned by the owner of such personal property and may be disposed of or donated by the holder of the certificate of sale (or, if none, by the purchaser at the sale). In the event of donation of any such personal property, the holder of the certificate of sale (or, if none, the purchaser at the sale) may transfer such donated property with a bill of sale. No mortgagee or its successors or assigns, holder of a certificate of sale, or purchaser at the sale shall be liable for any such disposal or donation of personal property.

(2) Notwithstanding paragraph (1) of this subsection (k), in the event a lawful occupant is in possession of the mortgaged real estate who has not been made a party to the foreclosure and had his or her interests terminated therein, any personal property of the lawful occupant shall not be deemed to have been abandoned, nor shall the rights of the lawful occupant to any personal property be affected.

(l) Notices to be posted at property address.

(1) The notice set out in this paragraph (1) of this subsection (l) shall be conspicuously posted at the property address at least 14 days before the hearing on the motion requesting an expedited judgment and sale and shall be in boldface, in at least 12 point type, and in substantially the following form:

"NOTICE TO ANY TENANT OR OTHER LAWFUL

OCCUPANT OF THIS PROPERTY

A lawsuit has been filed to foreclose on this property, and the party asking to foreclose on this property has asked a judge to find that THIS PROPERTY IS ABANDONED.

The judge will be holding a hearing to decide whether this property is ABANDONED.

IF YOU LAWFULLY OCCUPY ANY PART OF THIS PROPERTY, YOU MAY CHOOSE TO GO TO THIS HEARING and explain to the judge how you are a lawful occupant of this property.

If the judge is satisfied that you are a LAWFUL OCCUPANT of this property, the court will find that this property is NOT ABANDONED.

This hearing will be held in the courthouse at the following address, date, and time:

Court name:..................................................

Court address:...............................................

Court room number where hearing will be held:................

(There should be a person in this room called a CLERK who can help you. Make sure you know THIS PROPERTY'S ADDRESS.) Date of hearing:.............................................

Time of hearing:.............................................

MORE INFORMATION

Name of lawsuit:.............................................

Number of lawsuit:...........................................

Address of this property:....................................

IMPORTANT

This is NOT a notice to vacate the premises. You may wish to contact a lawyer or your local legal aid or housing counseling agency to discuss any rights that you may have.

WARNING

INTENTIONAL REMOVAL OF THIS NOTICE BEFORE THE DATE AND TIME STATED IN THIS NOTICE IS A CLASS B MISDEMEANOR, PUNISHABLE BY UP TO 180 DAYS IN JAIL AND A FINE OF UP TO $1500, UNDER ILLINOIS LAW. 720 ILCS 5/21-3(a).

NO TRESPASSING

KNOWINGLY ENTERING THIS PROPERTY WITHOUT LAWFUL AUTHORITY IS A CLASS B MISDEMEANOR, PUNISHABLE BY UP TO 180 DAYS IN JAIL AND A FINE OF UP TO $1500, UNDER ILLINOIS LAW. 720 ILCS 5/21-3(a).".

(2) The notice set out in this paragraph (2) of this subsection (l) shall be conspicuously posted at the property address at least 14 days before the hearing to confirm the sale of the abandoned residential property and shall be in boldface, in at least 12 point type, and in substantially the following form:

"NOTICE TO ANY TENANT OR OTHER LAWFUL

OCCUPANT OF THIS PROPERTY

A lawsuit has been filed to foreclose on this property, and the judge has found that THIS PROPERTY IS ABANDONED. As a result, THIS PROPERTY HAS BEEN OR WILL BE SOLD.

HOWEVER, there still must be a hearing for the judge to approve the sale. The judge will NOT APPROVE this sale if the judge finds that any person lawfully occupies any part of this property.

IF YOU LAWFULLY OCCUPY ANY PART OF THIS PROPERTY, YOU MAY CHOOSE TO GO TO THIS HEARING and explain to the judge how you are a lawful occupant of this property. You also may appear BEFORE this hearing and explain to the judge how you are a lawful occupant of this property.

If the judge is satisfied that you are a LAWFUL OCCUPANT of this property, the court will find that this property is NOT ABANDONED, and there will be no sale of the property at this time.

This hearing will be held in the courthouse at the following address, date, and time:

Court name:..................................................

Court address:...............................................

Court room number where hearing will be held:................

(There should be a person in this room called a CLERK who can help you. Make sure you know THIS PROPERTY'S ADDRESS.) Date of hearing:.............................................

Time of hearing:.............................................

MORE INFORMATION

Name of lawsuit:.............................................

Number of lawsuit:...........................................

Address of this property:....................................

IMPORTANT

This is NOT a notice to vacate the premises. You may wish to contact a lawyer or your local legal aid or housing counseling agency to discuss any rights that you may have.

WARNING

INTENTIONAL REMOVAL OF THIS NOTICE BEFORE THE DATE AND TIME STATED IN THIS NOTICE IS A CLASS B MISDEMEANOR, PUNISHABLE BY UP TO 180 DAYS IN JAIL AND A FINE OF UP TO $1500, UNDER ILLINOIS LAW. 720 ILCS 5/21-3(a).

NO TRESPASSING

KNOWINGLY ENTERING THIS PROPERTY WITHOUT LAWFUL AUTHORITY IS A CLASS B MISDEMEANOR, PUNISHABLE BY UP TO 180 DAYS IN JAIL AND A FINE OF UP TO $1500, UNDER ILLINOIS LAW. 720 ILCS 5/21-3(a)."

(Source: P.A. 97-1164, eff. 6-1-13.)

(735 ILCS 5/15-1507.1)

(Section scheduled to be repealed on March 2, 2016)

Sec. 15-1507.1. Judicial sale fee for Abandoned Residential Property Municipality Relief Fund.

(a) Upon and at the sale of residential real estate under Section 15-1507, the purchaser shall pay to the person conducting the sale pursuant to Section 15-1507 a fee for deposit into the Abandoned Residential Property Municipality Relief Fund, a special fund created in the State treasury. The fee shall be calculated at the rate of $1 for each $1,000 or fraction thereof of the amount paid by the purchaser to the person conducting the sale, as reflected in the receipt of sale issued to the purchaser, provided that in no event shall the fee exceed $300. No fee shall be paid by the mortgagee acquiring the residential real estate pursuant to its credit bid at the sale or by any mortgagee, judgment creditor, or other lienor acquiring the residential real estate whose rights in and to the residential real estate arose prior to the sale. Upon confirmation of the sale under Section 15-1508, the person conducting the sale shall remit the fee to the clerk of the court in which the foreclosure case is pending. The clerk shall remit the fee to the State Treasurer as provided in this Section, to be expended for the purposes set forth in Section 7.31 of the Illinois Housing Development Act.

(b) All fees paid by purchasers as provided in this Section shall be disbursed within 60 days after receipt by the clerk of the court as follows: (i) 98% to the State Treasurer for deposit into the Abandoned Residential Property Municipality Relief Fund, and (ii) 2% to the clerk of the court to be retained by the clerk for deposit into the Circuit Court Clerk Operation and Administrative Fund to defray for administrative expenses related to implementation of this Section.

(c) Not later than March 1 of each year, the clerk of the court shall submit to the Illinois Housing Development Authority a report of the funds collected and remitted during the preceding year pursuant to this Section.

(d) Subsections (a) and (b) of this Section shall become inoperative on January 1, 2016. This Section is repealed on March 2, 2016.

(Source: P.A. 96-1419, eff. 10-1-10.)

Section 99. Effective date. This Act takes effect June 1, 2013.