Full Text of HB4195 95th General Assembly
HB4195ham001 95TH GENERAL ASSEMBLY
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Executive Committee
Filed: 3/12/2008
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09500HB4195ham001 |
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LRB095 15086 AJO 48257 a |
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| AMENDMENT TO HOUSE BILL 4195
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| AMENDMENT NO. ______. Amend House Bill 4195 by replacing | 3 |
| everything after the enacting clause with the following:
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| "Section 5. The Code of Civil Procedure is amended by | 5 |
| changing Section 15-1508 as follows:
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| (735 ILCS 5/15-1508) (from Ch. 110, par. 15-1508)
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| Sec. 15-1508. Report of Sale and Confirmation of Sale.
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| (a) Report. The person conducting the sale shall promptly | 9 |
| make a report to
the court, which report shall include a copy | 10 |
| of all receipts and, if any,
certificate of sale.
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| (b) Hearing. Upon motion and notice in accordance with | 12 |
| court rules
applicable to motions generally, which motion shall | 13 |
| not be made prior to
sale, the court shall conduct a hearing to
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| confirm the sale. Unless the court finds that (i) a notice | 15 |
| required in
accordance with subsection (c) of Section 15-1507 | 16 |
| was not given, (ii) the
terms of sale were unconscionable, |
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| (iii) the sale was conducted
fraudulently or (iv) that justice | 2 |
| was otherwise not done, the court shall
then enter an order | 3 |
| confirming the sale. The confirmation order may
also:
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| (1) approve the mortgagee's fees and costs arising | 5 |
| between the entry of
the judgment of foreclosure and the | 6 |
| confirmation hearing, those costs and
fees to be allowable | 7 |
| to the same extent as provided in the note and mortgage
and | 8 |
| in Section 15-1504;
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| (2) provide for a personal judgment against any party | 10 |
| for a deficiency;
and
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| (3) determine the priority of the judgments of parties | 12 |
| who deferred proving
the priority pursuant to subsection | 13 |
| (h) of Section 15-1506, but
the court shall not
defer | 14 |
| confirming the sale pending the determination of such | 15 |
| priority.
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| (b-5) Notice with respect to residential real estate. With | 17 |
| respect to residential real estate, the notice required under | 18 |
| subsection (b) of this Section shall be sent to the mortgagor | 19 |
| even if the mortgagor has previously been held in default. In | 20 |
| the event the mortgagor has filed an appearance, the notice | 21 |
| shall be sent to the address indicated on the appearance. In | 22 |
| all other cases, the notice shall be sent to the mortgagor at | 23 |
| the common address of the foreclosed property. The notice shall | 24 |
| be sent by first class mail. Unless the right to possession has | 25 |
| been previously terminated by the court, the notice shall | 26 |
| include the following language in 12-point boldface |
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LRB095 15086 AJO 48257 a |
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| capitalized type: | 2 |
| IF YOU ARE THE MORTGAGOR (HOMEOWNER), YOU HAVE THE RIGHT TO | 3 |
| REMAIN IN POSSESSION FOR 30 DAYS AFTER ENTRY OF AN ORDER OF | 4 |
| POSSESSION, IN ACCORDANCE WITH SECTION 15-1701(c) OF THE | 5 |
| ILLINOIS MORTGAGE FORECLOSURE LAW. | 6 |
| (c) Failure to Give Notice. If any sale is held without | 7 |
| compliance with
subsection (c) of Section 15-1507 of this | 8 |
| Article, any party entitled to
the notice provided for in | 9 |
| paragraph (3) of that subsection
(c) who was not so notified | 10 |
| may, by motion supported by affidavit
made prior to | 11 |
| confirmation of such sale, ask the court which entered the
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| judgment to set aside the sale, provided that such party shall | 13 |
| guarantee or
secure by bond a bid equal to the successful bid | 14 |
| at the prior sale. Any
subsequent sale is subject to the same | 15 |
| notice requirement as the original sale.
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| (d) Validity of Sale. Except as provided in subsection (c) | 17 |
| of Section
15-1508, no sale under this Article shall be held | 18 |
| invalid or be set aside
because of any defect in the notice | 19 |
| thereof or in the publication of the
same, or in the | 20 |
| proceedings of the officer conducting the sale, except upon
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| good cause shown in a hearing pursuant to subsection (b) of | 22 |
| Section
15-1508. At any time after a sale has occurred, any | 23 |
| party entitled to
notice under paragraph (3) of subsection (c) | 24 |
| of Section 15-1507 may recover
from the mortgagee any damages | 25 |
| caused by the mortgagee's failure to comply
with such paragraph | 26 |
| (3). Any party who recovers damages in a judicial
proceeding |
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| brought under this subsection may also recover from the
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| mortgagee the reasonable expenses of litigation, including | 3 |
| reasonable attorney's fees.
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| (e) Deficiency Judgment. In any order confirming a sale | 5 |
| pursuant to the
judgment of foreclosure, the court shall also | 6 |
| enter a personal judgment
for deficiency against any party (i) | 7 |
| if otherwise authorized and (ii) to
the extent requested in the | 8 |
| complaint and proven upon presentation of the
report of sale in | 9 |
| accordance with Section 15-1508. Except as otherwise provided
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| in this Article, a judgment may be entered for any balance of | 11 |
| money that
may be found due to the plaintiff, over and above | 12 |
| the proceeds of the sale
or sales, and enforcement may be had | 13 |
| for the collection of such balance,
the same as when the | 14 |
| judgment is solely for the payment of money. Such
judgment may | 15 |
| be entered, or enforcement had,
only in cases where personal | 16 |
| service has been had upon the
persons personally liable for the | 17 |
| mortgage indebtedness, unless they have
entered their | 18 |
| appearance in the foreclosure action.
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| (f) Satisfaction. Upon confirmation of the sale, the
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| judgment stands satisfied to the extent of the sale price less | 21 |
| expenses and
costs. If the order confirming the sale includes a | 22 |
| deficiency judgment, the
judgment shall become a lien in the | 23 |
| manner of any other
judgment for the payment of money.
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| (g) The order confirming the sale shall include, | 25 |
| notwithstanding any
previous orders awarding possession during | 26 |
| the pendency of the foreclosure, an
award to the purchaser of |
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| possession of the mortgaged real estate, as of the
date 30 days | 2 |
| after the entry of the order, against the
parties to the | 3 |
| foreclosure whose interests have been terminated.
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| An order of possession authorizing the removal of a person | 5 |
| from possession
of the mortgaged real estate shall be entered | 6 |
| and enforced only against those
persons personally
named as | 7 |
| individuals in the complaint or the petition under subsection | 8 |
| (h)
of Section 15-1701 and in the order of possession and shall
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| not be entered and enforced against any person who is only | 10 |
| generically
described as an
unknown owner or nonrecord claimant | 11 |
| or by another generic designation in the
complaint.
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| Notwithstanding the preceding paragraph, the failure to | 13 |
| personally
name,
include, or seek an award of
possession of the | 14 |
| mortgaged real estate against a person in the
confirmation | 15 |
| order shall not abrogate any right that the purchaser may have | 16 |
| to
possession of the mortgaged real estate and to maintain a | 17 |
| proceeding against
that person for
possession under Article 9 | 18 |
| of this Code or subsection (h) of Section 15-1701;
and | 19 |
| possession against a person
who (1) has not been personally | 20 |
| named as a party to the
foreclosure and (2) has not been | 21 |
| provided an opportunity to be heard in the
foreclosure | 22 |
| proceeding may be sought only by maintaining a
proceeding under | 23 |
| Article 9 of this
Code or subsection (h) of Section 15-1701.
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| (Source: P.A. 88-265; 89-203, eff. 7-21-95.)
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| Section 99. Effective date. This Act takes effect upon |
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| becoming law.".
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