Full Text of HB5055 96th General Assembly
HB5055sam001 96TH GENERAL ASSEMBLY
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Sen. A. J. Wilhelmi
Filed: 4/23/2010
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LRB096 17806 AJO 39307 a |
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| AMENDMENT TO HOUSE BILL 5055
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| AMENDMENT NO. ______. Amend House Bill 5055 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 Sections 15-1506 and 15-1507 as follows: | 6 |
| (735 ILCS 5/15-1506) (from Ch. 110, par. 15-1506) | 7 |
| Sec. 15-1506. Judgment. (a) Evidence. In the trial of a | 8 |
| foreclosure, the evidence to support the
allegations of the | 9 |
| complaint shall be taken in open court, except: | 10 |
| (1) where an allegation of fact in the complaint is not | 11 |
| denied by a
party's verified answer or verified counterclaim, | 12 |
| or where a party pursuant
to subsection (b) of Section 2-610 of | 13 |
| the Code of Civil Procedure states,
or is deemed to have | 14 |
| stated, in
its pleading that it has no knowledge
of such | 15 |
| allegation sufficient to form a belief and attaches the | 16 |
| required
affidavit, a sworn verification of the complaint or a |
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| separate affidavit
setting forth such fact is sufficient | 2 |
| evidence thereof against such party
and no further evidence of | 3 |
| such fact shall be required; and | 4 |
| (2) where all the allegations of fact in the complaint have | 5 |
| been proved
by verification of the complaint or affidavit, the | 6 |
| court upon motion
supported by an affidavit stating the amount | 7 |
| which is due the mortgagee,
shall enter a judgment of | 8 |
| foreclosure as requested in the complaint. | 9 |
| (b) Instruments. In all cases the evidence of the | 10 |
| indebtedness and the
mortgage foreclosed shall be exhibited to | 11 |
| the court and appropriately
marked, and copies thereof shall be | 12 |
| filed with the court. | 13 |
| (c) Summary and Default Judgments. Nothing in this Section | 14 |
| 15-1506
shall prevent a party from obtaining a summary or | 15 |
| default judgment
authorized by Article II of the Code of Civil | 16 |
| Procedure. | 17 |
| (d) Notice of Entry of Default. When any judgment in a | 18 |
| foreclosure is
entered by default, notice of such judgment | 19 |
| shall be given in accordance
with Section 2-1302 of the Code of | 20 |
| Civil Procedure. | 21 |
| (e) Matters Required in Judgment. A judgment of foreclosure | 22 |
| shall
include the last date for redemption and all rulings of | 23 |
| the court entered
with respect to each request for relief set | 24 |
| forth in the complaint. The
omission of the date for redemption | 25 |
| shall not extend the time for
redemption or impair the validity | 26 |
| of the judgment. |
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| (f) Special Matters in Judgment. Without limiting the | 2 |
| general
authority and powers of the court, special matters may | 3 |
| be included in the
judgment of foreclosure if sought by a party | 4 |
| in the complaint or by separate
motion brought by a party . Such | 5 |
| matters may include, without limitation: | 6 |
| (1) a manner of sale other than public auction; | 7 |
| (2) a sale by sealed bid; | 8 |
| (3) the an official or other person who shall be the | 9 |
| officer to
conduct the sale other than the one customarily | 10 |
| designated by the court ; | 11 |
| (4) provisions for non-exclusive broker listings or | 12 |
| designating a duly
licensed real estate broker nominated by one | 13 |
| of the parties to exclusively
list the real estate for sale; | 14 |
| (5) the fees or commissions to be paid out of the sale | 15 |
| proceeds to the
listing or other duly licensed broker, if any, | 16 |
| who shall have procured the accepted bid; | 17 |
| (6) the fees to be paid out of the sale proceeds to an | 18 |
| auctioneer, if
any, who shall have been authorized to conduct a | 19 |
| public auction sale; | 20 |
| (7) whether and in what manner and with what content signs | 21 |
| shall be
posted on the real estate; | 22 |
| (8) a particular time and place at which such bids shall be | 23 |
| received; | 24 |
| (9) a particular newspaper or newspapers in which notice of
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| sale shall be published; | 26 |
| (10) the format for the advertising of such sale,
including |
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| the size, content
and format of such advertising, and | 2 |
| additional advertising of such sale; | 3 |
| (11) matters or exceptions to which title in the real | 4 |
| estate may be subject
at the sale; | 5 |
| (12) a requirement that title insurance in a specified form | 6 |
| be provided
to a purchaser at the sale, and who shall pay for | 7 |
| such insurance; | 8 |
| (13) whether and to what extent bids with mortgage or other
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| contingencies will be allowed; | 10 |
| (14) such other matters as approved by the court to ensure | 11 |
| sale of the
real estate for the most commercially favorable | 12 |
| price for the type of real
estate involved. | 13 |
| (g) Agreement of the Parties. If all of the parties agree | 14 |
| in writing on
the minimum price and that the real estate may be | 15 |
| sold to the first person
who offers in writing to purchase the | 16 |
| real estate for such price, and on
such other commercially | 17 |
| reasonable terms and conditions as the parties may
agree, then | 18 |
| the court shall order the real estate to be sold on such terms,
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| subject to confirmation of the sale in accordance with Section | 20 |
| 15-1508. | 21 |
| (h) Postponement of Proving Priority. With the approval of | 22 |
| the court
prior to the entry of the judgment of foreclosure, a | 23 |
| party claiming an
interest in the proceeds of the sale of the | 24 |
| mortgaged real estate may defer
proving the priority of such | 25 |
| interest until the hearing to confirm the sale. | 26 |
| (i) Effect of Judgment and Lien.
(1) Upon the entry of the |
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| judgment of foreclosure, all rights of a party
in the | 2 |
| foreclosure against the mortgagor provided for in the judgment | 3 |
| of foreclosure
or this Article shall be secured by a lien on | 4 |
| the mortgaged
real estate, which lien shall have the same | 5 |
| priority as the claim to
which the judgment relates and shall | 6 |
| be terminated upon confirmation of a judicial
sale in | 7 |
| accordance with this Article. | 8 |
| (2) Upon the entry of the judgment of foreclosure, the | 9 |
| rights in the
real estate subject to the judgment of | 10 |
| foreclosure of (i) all persons made
a party in the foreclosure | 11 |
| and (ii) all nonrecord claimants given notice in
accordance | 12 |
| with paragraph (2) of subsection (c) of Section 15-1502, shall
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| be solely as provided for in
the judgment of foreclosure and in | 14 |
| this Article. | 15 |
| (Source: P.A. 85-907.) | 16 |
| (735 ILCS 5/15-1507) (from Ch. 110, par. 15-1507) | 17 |
| Sec. 15-1507. Judicial Sale. | 18 |
| (a) In General. Except as provided in
Sections 15-1402 and | 19 |
| 15-1403, upon entry of a judgment of foreclosure, the
real | 20 |
| estate which is the subject of the judgment shall be sold at a
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| judicial sale in accordance with this Section 15-1507. | 22 |
| (b) Sale Procedures. Upon expiration of the reinstatement | 23 |
| period and
the redemption period in accordance with subsection | 24 |
| (b) or (c) of Section
15-1603 or upon the entry of a judgment | 25 |
| of foreclosure after the waiver of
all rights of redemption, |
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| except as provided in subsection (g) of Section
15-1506, the | 2 |
| real estate shall be sold at a sale as provided in this
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| Article, on such terms and conditions as shall be specified by | 4 |
| the court in
the judgment of foreclosure. In the absence of an | 5 |
| appointment made pursuant to a motion under subsection (f) of | 6 |
| Section 15-1506, the person conducting the sale shall be chosen | 7 |
| by the plaintiff and shall be (i) any person who had been | 8 |
| appointed pursuant to Section 15-1506 by any circuit court in | 9 |
| any matter prior to the effective date of this amendatory Act | 10 |
| of the 96th General Assembly, (ii) any judge, or (iii) the | 11 |
| sheriff of the county in which the real estate is located. A | 12 |
| sale may be conducted by any judge or sheriff. | 13 |
| (c) Notice of Sale. The mortgagee, or such other party | 14 |
| designated by the
court, in a foreclosure under this Article | 15 |
| shall give public notice of the
sale as follows: | 16 |
| (1) The notice of sale shall include at least the | 17 |
| following information,
but an immaterial error in the | 18 |
| information shall not invalidate the legal
effect of the | 19 |
| notice: | 20 |
| (A) the name, address and telephone number of the | 21 |
| person to contact for
information regarding the real | 22 |
| estate; | 23 |
| (B) the common address and other common | 24 |
| description (other than legal
description), if any, of | 25 |
| the real estate; | 26 |
| (C) a legal description of the real estate |
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| sufficient to identify it with
reasonable certainty; | 2 |
| (D) a description of the improvements on the real | 3 |
| estate; | 4 |
| (E) the times specified in the judgment, if any, | 5 |
| when the real estate
may be inspected prior to sale; | 6 |
| (F) the time and place of the sale; | 7 |
| (G) the terms of the sale; | 8 |
| (H) the case title, case number and the court in | 9 |
| which
the foreclosure was filed; | 10 |
| (H-1) in the case of a condominium unit to which | 11 |
| subsection (g) of Section 9 of the Condominium Property | 12 |
| Act applies, the statement required by subdivision | 13 |
| (g)(5) of Section 9 of the Condominium Property Act; | 14 |
| and
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| (I) such other information ordered by the Court. | 16 |
| (2) The notice of sale shall be published at least 3 | 17 |
| consecutive
calendar weeks (Sunday through Saturday), once | 18 |
| in each week, the first such
notice to be published not | 19 |
| more than 45 days prior to the sale, the last
such notice | 20 |
| to be published not less than 7 days prior to the sale, by:
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| (i) (A) advertisements in a newspaper circulated to the | 22 |
| general public
in the county in which the real estate is | 23 |
| located, in the section of that
newspaper where legal | 24 |
| notices are commonly placed and (B) separate
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| advertisements in the section of such a newspaper, which | 26 |
| (except in
counties with a population in excess of |
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| 3,000,000) may be the same
newspaper, in which real estate | 2 |
| other than real estate being sold as part of
legal | 3 |
| proceedings is commonly advertised to the general public; | 4 |
| provided,
that the separate advertisements in the real | 5 |
| estate section need not
include a legal description and | 6 |
| that where both advertisements could be
published in the | 7 |
| same newspaper and that newspaper does not have separate
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| legal notices and real estate advertisement sections, a | 9 |
| single
advertisement with the legal description shall be | 10 |
| sufficient; and
(ii) such other publications as may be | 11 |
| further ordered by the court. | 12 |
| (3) The party who gives notice of public sale in | 13 |
| accordance with
subsection (c) of Section 15-1507 shall | 14 |
| also give notice to all parties in
the action who have | 15 |
| appeared and have not theretofore been found by the
court | 16 |
| to be in default for failure to plead. Such notice shall be | 17 |
| given in
the manner provided in the applicable rules of | 18 |
| court for service of papers
other than process and | 19 |
| complaint, not more than 45 days nor less
than 7
days prior | 20 |
| to the day of sale. After notice is given as required in | 21 |
| this
Section a copy thereof shall be filed in the office of | 22 |
| the clerk of the
court entering the judgment, together with | 23 |
| a certificate of counsel or
other proof that notice has | 24 |
| been served in compliance with this Section. | 25 |
| (4) The party who gives notice of public sale in | 26 |
| accordance with
subsection (c) of Section 15-1507 shall |
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| again give notice in accordance
with that Section of any | 2 |
| adjourned sale; provided, however, that if the
adjourned | 3 |
| sale is to occur less than 60 days after the last scheduled | 4 |
| sale,
notice of any adjourned sale need not be given | 5 |
| pursuant to this
Section. In the event of adjournment, the
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| person conducting the sale shall, upon adjournment, | 7 |
| announce the date, time
and place upon which the adjourned | 8 |
| sale shall be held. Notwithstanding any
language to the | 9 |
| contrary, for any adjourned sale that is to be conducted
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| more than 60 days after the date on which it was to first | 11 |
| be held, the
party giving notice of such sale shall again | 12 |
| give notice in accordance with
this Section. | 13 |
| (5) Notice of the sale may be given prior to the | 14 |
| expiration of any
reinstatement period or redemption | 15 |
| period. | 16 |
| (6) No other notice by publication or posting shall be | 17 |
| necessary unless
required by order or rule of the court. | 18 |
| (7) The person named in the notice of sale to be | 19 |
| contacted for
information about the real estate may, but | 20 |
| shall not be required, to
provide additional information | 21 |
| other than that set forth in the notice of sale. | 22 |
| (d) Election of Property. If the real estate which is the | 23 |
| subject of a
judgment of foreclosure is susceptible of | 24 |
| division, the court may order it to be sold
as necessary to | 25 |
| satisfy the judgment. The court shall determine which real
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| estate shall be sold, and the court may determine the order in |
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| which
separate tracts may be sold. | 2 |
| (e) Receipt upon Sale.
Upon and at the sale
of mortgaged | 3 |
| real estate, the person conducting the sale shall give to
the | 4 |
| purchaser a receipt of sale. The receipt shall describe the | 5 |
| real
estate purchased and shall show the amount bid, the amount | 6 |
| paid, the
total amount paid to
date and the amount still to be | 7 |
| paid therefor. An
additional receipt shall be given at the time | 8 |
| of each subsequent
payment. | 9 |
| (f) Certificate of Sale. Upon
payment in full of the amount | 10 |
| bid, the person conducting
the sale shall issue, in duplicate, | 11 |
| and give to the purchaser a Certificate
of Sale. The | 12 |
| Certificate of Sale shall be in a recordable form, describe
the | 13 |
| real estate purchased, indicate the date and place of sale and | 14 |
| show the
amount paid therefor. The Certificate of Sale shall | 15 |
| further indicate that
it is subject to confirmation by the | 16 |
| court. The duplicate certificate may
be recorded in accordance | 17 |
| with Section 12-121. The Certificate of Sale
shall be freely | 18 |
| assignable by endorsement thereon. | 19 |
| (g) Interest after Sale. Any bid at sale shall be deemed to | 20 |
| include,
without the necessity of a court order, interest at | 21 |
| the statutory judgment
rate on any unpaid portion of the sale | 22 |
| price from the date of sale to the
date of payment. | 23 |
| (Source: P.A. 94-1049, eff. 1-1-07.)
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| Section 99. Effective date. This Act takes effect upon | 25 |
| becoming law.".
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