Full Text of SB1879 95th General Assembly
SB1879ham001 95TH GENERAL ASSEMBLY
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Judiciary I - Civil Law Committee
Adopted in House Comm. on May 20, 2008
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| AMENDMENT TO SENATE BILL 1879
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| AMENDMENT NO. ______. Amend Senate Bill 1879 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 15-1510 and by adding Sections 15-1504.5 and | 6 |
| 15-1505.5 as follows: | 7 |
| (735 ILCS 5/15-1504.5 new)
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| Sec. 15-1504.5. Homeowner notice to be attached to summons. | 9 |
| For all residential foreclosure actions filed, the plaintiff | 10 |
| must attach a Homeowner Notice to the summons. The Homeowner | 11 |
| Notice must be in at least 12 point type and in English and | 12 |
| Spanish. The Spanish translation shall be prepared by the | 13 |
| Attorney General and posted on the Attorney General's website. | 14 |
| A notice that includes the Attorney General's Spanish | 15 |
| translation in substantially similar form shall be deemed to | 16 |
| comply with the Spanish notice requirement in this Section. The |
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| Notice must be in substantially the following form: | 2 |
| IMPORTANT INFORMATION FOR HOMEOWNERS IN FORECLOSURE | 3 |
| 1. POSSESSION: The lawful occupants of a home have the | 4 |
| right to live in the home until a judge enters an order for | 5 |
| possession. | 6 |
| 2. OWNERSHIP: You continue to own your home until the | 7 |
| court rules otherwise. | 8 |
| 3. REINSTATEMENT: As the homeowner you have the right | 9 |
| to bring the mortgage current within 90 days after you | 10 |
| receive the summons. | 11 |
| 4. REDEMPTION: As the homeowner you have the right to | 12 |
| sell your home, refinance, or pay off the loan during the | 13 |
| redemption period. | 14 |
| 5. SURPLUS: As the homeowner you have the right to | 15 |
| petition the court for any excess money that results from a | 16 |
| foreclosure sale of your home. | 17 |
| 6. WORKOUT OPTIONS: The mortgage company does not want | 18 |
| to foreclose on your home if there is any way to avoid it. | 19 |
| Call your mortgage company [insert name of the homeowner's | 20 |
| current mortgage servicer in bold and 14 point type] or its | 21 |
| attorneys to find out the alternatives to foreclosure. | 22 |
| 7. PAYOFF AMOUNT: You have the right to obtain a | 23 |
| written statement of the amount necessary to pay off your | 24 |
| loan. Your mortgage company (identified above) must |
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| provide you this statement within 10 business days of | 2 |
| receiving your request, provided that your request is in | 3 |
| writing and includes your name, the address of the | 4 |
| property, and the mortgage account or loan number. Your | 5 |
| first payoff statement will be free. | 6 |
| 8. GET ADVICE: This information is not exhaustive and | 7 |
| does not replace the advice of a professional. You may have | 8 |
| other options. Get professional advice from a lawyer or | 9 |
| certified housing counselor about your rights and options | 10 |
| to avoid foreclosure. | 11 |
| 9. LAWYER: If you do not have a lawyer, you may be able | 12 |
| to find assistance by contacting the Illinois State Bar | 13 |
| Association or a legal aid organization that provides free | 14 |
| legal assistance. | 15 |
| 10. PROCEED WITH CAUTION: You may be contacted by | 16 |
| people offering to help you avoid foreclosure. Before | 17 |
| entering into any transaction with persons offering to help | 18 |
| you, please contact a lawyer, government official, or | 19 |
| housing counselor for advice. | 20 |
| (735 ILCS 5/15-1505.5 new)
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| Sec. 15-1505.5. Payoff demands. | 22 |
| (a) In a foreclosure action subject to this Article, on the | 23 |
| written demand of a mortgagor or the mortgagor's authorized | 24 |
| agent (which shall include the mortgagor's name, the mortgaged | 25 |
| property's address, and the mortgage account or loan number), a |
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| mortgagee or the mortgagee's authorized agent shall prepare and | 2 |
| deliver an accurate statement of the total outstanding balance | 3 |
| of the mortgagor's obligation that would be required to satisfy | 4 |
| the obligation in full as of the date of preparation ("payoff | 5 |
| demand statement") to the mortgagor or the mortgagor's | 6 |
| authorized agent who has requested it within 10 business days | 7 |
| after receipt of the demand. For purposes of this Section, a | 8 |
| payoff demand statement is accurate if prepared in good faith | 9 |
| based on the records of the mortgagee or the mortgagee's agent. | 10 |
| (b) The payoff demand statement shall include the | 11 |
| following: | 12 |
| (1) The information necessary to calculate the payoff | 13 |
| amount on a per diem basis for the lesser of a period of 30 | 14 |
| days or until the date scheduled for judicial sale; | 15 |
| (2) Estimated charges (stated as such) that the | 16 |
| mortgagee reasonably believes may be incurred within 30 | 17 |
| days from the date of preparation of the payoff demand | 18 |
| statement; and | 19 |
| (3) The loan number for the obligation to be paid, the | 20 |
| address of the mortgagee, the telephone number of the | 21 |
| mortgagee and, if a banking organization or corporation, | 22 |
| the name of the department, if applicable, and its | 23 |
| telephone number and facsimile phone number. | 24 |
| (c) A mortgagee or mortgagee's agent who willfully fails to | 25 |
| prepare and deliver an accurate payoff demand statement within | 26 |
| 10 business days after receipt of a written demand is liable to |
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| the mortgagor for actual damages sustained for failure to | 2 |
| deliver the statement. The mortgagee or mortgagee's agent is | 3 |
| liable to the mortgagor for $500 if no actual damages are | 4 |
| sustained. For purposes of this subsection, "willfully" means a | 5 |
| failure to comply with this Section without just cause or | 6 |
| excuse or mitigating circumstances. | 7 |
| (d) The mortgagor must petition the judge within the | 8 |
| foreclosure action for the award of any damages pursuant to | 9 |
| this Section, which award shall be determined by the judge. | 10 |
| (e) Unless the payoff demand statement provides otherwise, | 11 |
| the statement is deemed to apply only to the unpaid balance of | 12 |
| the single obligation that is named in the demand and that is | 13 |
| secured by the mortgage or deed of trust identified in the | 14 |
| payoff demand statement. | 15 |
| (f) The demand for and preparation and delivery of a payoff | 16 |
| demand statement pursuant to this Section does not change any | 17 |
| date or time period that is prescribed in the note or that is | 18 |
| otherwise provided by law. Failure to comply with any provision | 19 |
| of this Section does not change any of the rights of the | 20 |
| parties as set forth in the note, mortgage, or applicable law. | 21 |
| (g) The mortgagee or mortgagee's agent shall furnish the | 22 |
| first payoff demand statement at no cost to the mortgagor. | 23 |
| (h) For the purposes of this Section, unless the context | 24 |
| otherwise requires, "deliver" or "delivery" means depositing | 25 |
| or causing to be deposited into the United States mail an | 26 |
| envelope with postage prepaid that contains a copy of the |
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| documents to be delivered and that is addressed to the person | 2 |
| whose name and address are provided in the payoff demand. | 3 |
| "Delivery" may also include transmitting those documents by | 4 |
| telephone facsimile to the person or electronically if the | 5 |
| payoff demand specifically requests and authorizes that the | 6 |
| documents be transmitted in electronic form. | 7 |
| (i) The mortgagee or mortgagee's agent is not required to | 8 |
| comply with the payoff demand statement procedure set forth in | 9 |
| this Section when responding to a notice of intent to redeem | 10 |
| issued under Section 15-1603(e).
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| (735 ILCS 5/15-1510) (from Ch. 110, par. 15-1510)
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| Sec. 15-1510. Attorney's Fees and Costs by Written | 13 |
| Agreement . | 14 |
| (a) The court may award reasonable attorney's fees and | 15 |
| costs to the defendant who prevails in a motion, an affirmative | 16 |
| defense or counterclaim, or in the foreclosure action. A | 17 |
| defendant who exercises the defendant's right of reinstatement | 18 |
| or redemption shall not be considered a prevailing party for | 19 |
| purposes of this Section. Nothing in this subsection shall | 20 |
| abrogate contractual terms in the mortgage or other written | 21 |
| agreement between the mortgagor and the mortgagee or rights as | 22 |
| otherwise provided in this Article which allow the mortgagee to | 23 |
| recover attorney's fees and costs under subsection (b). | 24 |
| (b) Attorneys' fees and other costs incurred in connection | 25 |
| with the
preparation, filing or prosecution of the foreclosure |
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| suit shall be
recoverable in a foreclosure only to the extent
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| specifically set forth in the mortgage or other written | 3 |
| agreement between
the mortgagor and the mortgagee or as | 4 |
| otherwise provided in this Article.
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| (Source: P.A. 86-974.)
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| Section 10. The Illinois Human Rights Act is amended by | 7 |
| changing Section 10-104 as follows: | 8 |
| (775 ILCS 5/10-104) | 9 |
| Sec. 10-104. Circuit Court Actions by the Illinois Attorney | 10 |
| General. | 11 |
| (A) Standing, venue, limitations on actions, preliminary | 12 |
| investigations, notice, and Assurance of Voluntary Compliance. | 13 |
| (1) Whenever the Illinois Attorney General has | 14 |
| reasonable cause to believe that any person or group of | 15 |
| persons is engaged in a pattern and practice of | 16 |
| discrimination prohibited by this Act, the Illinois | 17 |
| Attorney General may commence a civil action in the name of | 18 |
| the People of the State, as parens patriae on behalf of | 19 |
| persons within the State to enforce the provisions of this | 20 |
| Act in any appropriate circuit court. Venue for this civil | 21 |
| action shall be determined under Section 8-111(B)(6). Such | 22 |
| actions shall be commenced no later than 2 years after the | 23 |
| occurrence or the termination of an alleged civil rights | 24 |
| violation or the breach of a conciliation agreement or |
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| Assurance of Voluntary Compliance entered into under this | 2 |
| Act, whichever occurs last, to obtain relief with respect | 3 |
| to the alleged civil rights violation or breach. | 4 |
| (2) Prior to initiating a civil action, the Attorney | 5 |
| General shall conduct a preliminary investigation to | 6 |
| determine whether there is reasonable cause to believe that | 7 |
| any person or group of persons is engaged in a pattern and | 8 |
| practice of discrimination declared unlawful by this Act | 9 |
| and whether the dispute can be resolved without litigation. | 10 |
| In conducting this investigation, the Attorney General | 11 |
| may: | 12 |
| (a) require the individual or entity to file a | 13 |
| statement or report in writing under oath or otherwise, | 14 |
| as to all information the Attorney General may consider | 15 |
| necessary; | 16 |
| (b) examine under oath any person alleged to have | 17 |
| participated in or with knowledge of the alleged | 18 |
| pattern and practice violation; or | 19 |
| (c) issue subpoenas or conduct hearings in aid of | 20 |
| any investigation. | 21 |
| (3) Service by the Attorney General of any notice | 22 |
| requiring a person to file a statement or report, or of a | 23 |
| subpoena upon any person, shall be made: | 24 |
| (a) personally by delivery of a duly executed copy | 25 |
| thereof to the person to be served or, if a person is | 26 |
| not a natural person, in the manner provided in the |
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| Code of Civil Procedure when a complaint is filed; or | 2 |
| (b) by mailing by certified mail a duly executed | 3 |
| copy thereof to the person to be served at his or her | 4 |
| last known abode or principal place of business within | 5 |
| this State. | 6 |
| (4) In lieu of a civil action, the individual or entity | 7 |
| alleged to have engaged in a pattern or practice of | 8 |
| discrimination deemed violative of this Act may enter into | 9 |
| an Assurance of Voluntary Compliance with respect to the | 10 |
| alleged pattern or practice violation. | 11 |
| (5) The Illinois Attorney General may commence a civil | 12 |
| action under this subsection (A) whether or not a charge | 13 |
| has been filed under Sections 7A-102 or 7B-102 and without | 14 |
| regard to the status of any charge, however, if the | 15 |
| Department or local agency has obtained a conciliation or | 16 |
| settlement agreement or if the parties have entered into an | 17 |
| Assurance of Voluntary Compliance no action may be filed | 18 |
| under this subsection (A) with respect to the alleged civil | 19 |
| rights violation practice that forms the basis for the | 20 |
| complaint except for the purpose of enforcing the terms of | 21 |
| the conciliation or settlement agreement or the terms of | 22 |
| the Assurance of Voluntary Compliance. | 23 |
| (6) If any person fails or refuses to file any | 24 |
| statement or report, or obey any subpoena, issued pursuant | 25 |
| to subdivision (A)(2) of this Section, the Attorney General | 26 |
| will be deemed to have met the requirement of conducting a |
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| preliminary investigation and may proceed to initiate a | 2 |
| civil action pursuant to subdivision (A)(1) of this | 3 |
| Section. | 4 |
| (B) Relief which may be granted. | 5 |
| (1) In any civil action brought pursuant to subsection | 6 |
| (A) of this Section, the Attorney General may obtain as a | 7 |
| remedy, equitable relief (including any permanent or | 8 |
| preliminary injunction, temporary restraining order, or | 9 |
| other order, including an order enjoining the defendant | 10 |
| from engaging in such civil rights violation or ordering | 11 |
| any action as may be appropriate). In addition, the | 12 |
| Attorney General may request and the Court may impose a | 13 |
| civil penalty to vindicate the public interest: | 14 |
| (a) for violations of Article 3 and Article 4 in an | 15 |
| amount not exceeding $25,000 per violation, and in the | 16 |
| case of violations of all other Articles in an amount | 17 |
| not exceeding $10,000 if the defendant has not been | 18 |
| adjudged to have committed any prior civil rights | 19 |
| violations under the provision of the Act that is the | 20 |
| basis of the complaint; | 21 |
| (b) for violations of Article 3 and Article 4 in an | 22 |
| amount not exceeding $50,000 per violation, and in the | 23 |
| case of violations of all other Articles in an amount | 24 |
| not exceeding $25,000 if the defendant has been | 25 |
| adjudged to have committed one other civil rights | 26 |
| violation under the provision of the Act within 5 years |
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| of the occurrence of the civil rights violation that is | 2 |
| the basis of the complaint; and | 3 |
| (c) for violations of Article 3 and Article 4 in an | 4 |
| amount not exceeding $75,000 per violation, and in the | 5 |
| case of violations of all other Articles in an amount | 6 |
| not exceeding $50,000 if the defendant has been | 7 |
| adjudged to have committed 2 or more civil rights | 8 |
| violations under the provision of the Act within 5 | 9 |
| years of the occurrence of the civil rights violation | 10 |
| that is the basis of the complaint. | 11 |
| (2) A civil penalty imposed under subdivision (B)(1) of | 12 |
| this Section shall be deposited into the Attorney General | 13 |
| Court Ordered and Voluntary Compliance Payment Projects | 14 |
| Fund, which is a special fund in the State Treasury. Moneys | 15 |
| in the Fund shall be used, subject to appropriation, for | 16 |
| the performance of any function pertaining to the exercise | 17 |
| of the duties of the Attorney General including but not | 18 |
| limited to enforcement of any law of this State and | 19 |
| conducting public education programs; however, any moneys | 20 |
| in the Fund that are required by the court or by an | 21 |
| agreement to be used for a particular purpose shall be used | 22 |
| for that purpose. | 23 |
| (3) Aggrieved parties seeking actual damages must | 24 |
| follow the procedure set out in Sections 7A-102 or 7B-102 | 25 |
| for filing a charge. | 26 |
| (4) Notwithstanding any other rulemaking authority |
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| that may exist, neither the Governor nor any agency or | 2 |
| agency head under the jurisdiction of the Governor has any | 3 |
| authority to make or promulgate rules to implement or | 4 |
| enforce the provisions of this amendatory Act of the 95th | 5 |
| General Assembly. If, however, the Governor believes that | 6 |
| rules are necessary to implement or enforce the provisions | 7 |
| of this amendatory Act of the 95th General Assembly, the | 8 |
| Governor may suggest rules to the General Assembly by | 9 |
| filing them with the Clerk of the House and the Secretary | 10 |
| of the Senate and by requesting that the General Assembly | 11 |
| authorize such rulemaking by law, enact those suggested | 12 |
| rules into law, or take any other appropriate action in the | 13 |
| General Assembly's discretion. Nothing contained in this | 14 |
| amendatory Act of the 95th General Assembly shall be | 15 |
| interpreted to grant rulemaking authority under any other | 16 |
| Illinois statute where such authority is not otherwise | 17 |
| explicitly given. For the purposes of this amendatory Act | 18 |
| of the 95th General Assembly, "rules" is given the meaning | 19 |
| contained in Section 1-70 of the Illinois Administrative | 20 |
| Procedure Act, and "agency" and "agency head" are given the | 21 |
| meanings contained in Sections 1-20 and 1-25 of the | 22 |
| Illinois Administrative Procedure Act to the extent that | 23 |
| such definitions apply to agencies or agency heads under | 24 |
| the jurisdiction of the Governor.
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| (Source: P.A. 93-1017, eff. 8-24-04.) |
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| Section 15. The Illinois Fairness in Lending Act is amended | 2 |
| by changing Section 3 as follows:
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| (815 ILCS 120/3) (from Ch. 17, par. 853)
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| Sec. 3. No financial institution, in connection with or in | 5 |
| contemplation
of any loan to any person, may:
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| (a) Deny or vary the terms of a loan on the basis that a | 7 |
| specific parcel
of real estate offered as security is located | 8 |
| in a specific geographical area.
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| (b) Deny or vary the terms of a loan without having | 10 |
| considered all of
the regular and dependable income of each | 11 |
| person who would be liable for
repayment of the loan.
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| (c) Deny or vary the terms of a loan on the sole basis of | 13 |
| the childbearing
capacity of an applicant or an applicant's | 14 |
| spouse.
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| (c-5) Deny or vary the terms of a loan on the basis of the | 16 |
| borrower's race, gender, disability, or national origin. | 17 |
| (d) Utilize lending standards that have no economic basis | 18 |
| and which are
discriminatory in effect.
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| (e) Engage in equity stripping or loan flipping. | 20 |
| (f) Notwithstanding any other rulemaking authority that | 21 |
| may exist, neither the Governor nor any agency or agency head | 22 |
| under the jurisdiction of the Governor has any authority to | 23 |
| make or promulgate rules to implement or enforce the provisions | 24 |
| of this amendatory Act of the 95th General Assembly. If, | 25 |
| however, the Governor believes that rules are necessary to |
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| implement or enforce the provisions of this amendatory Act of | 2 |
| the 95th General Assembly, the Governor may suggest rules to | 3 |
| the General Assembly by filing them with the Clerk of the House | 4 |
| and the Secretary of the Senate and by requesting that the | 5 |
| General Assembly authorize such rulemaking by law, enact those | 6 |
| suggested rules into law, or take any other appropriate action | 7 |
| in the General Assembly's discretion. Nothing contained in this | 8 |
| amendatory Act of the 95th General Assembly shall be | 9 |
| interpreted to grant rulemaking authority under any other | 10 |
| Illinois statute where such authority is not otherwise | 11 |
| explicitly given. For the purposes of this amendatory Act of | 12 |
| the 95th General Assembly, "rules" is given the meaning | 13 |
| contained in Section 1-70 of the Illinois Administrative | 14 |
| Procedure Act, and "agency" and "agency head" are given the | 15 |
| meanings contained in Sections 1-20 and 1-25 of the Illinois | 16 |
| Administrative Procedure Act to the extent that such | 17 |
| definitions apply to agencies or agency heads under the | 18 |
| jurisdiction of the Governor.
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| (Source: P.A. 93-561, eff. 1-1-04.)
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| Section 99. Effective date. This Act takes effect upon | 21 |
| becoming law, except Section 5 takes effect January 1, 2009.".
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