Full Text of HB5224 96th General Assembly
HB5224sam002 96TH GENERAL ASSEMBLY | Sen. A. J. Wilhelmi Filed: 11/29/2010
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| 1 | | AMENDMENT TO HOUSE BILL 5224
| 2 | | AMENDMENT NO. ______. Amend House Bill 5224 by replacing | 3 | | everything after the enacting clause with the following:
| 4 | | "Section 5. The Code of Civil Procedure is amended by | 5 | | changing Sections 15-1503 and 15-1508 as follows: | 6 | | (735 ILCS 5/15-1503) (from Ch. 110, par. 15-1503) | 7 | | Sec. 15-1503. Notice of Foreclosure. | 8 | | (a) A notice of foreclosure, whether
the foreclosure is | 9 | | initiated by complaint or
counterclaim, made in accordance with | 10 | | this Section and recorded in the
county in which the mortgaged | 11 | | real estate is located shall be constructive
notice of the | 12 | | pendency of the foreclosure to every person claiming an
| 13 | | interest in or lien on the mortgaged real estate, whose | 14 | | interest or lien
has not been recorded prior to the recording | 15 | | of such notice of foreclosure.
Such notice of foreclosure must | 16 | | be executed by any party or any party's
attorney and shall |
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| 1 | | include (i) the names of all plaintiffs and the case
number, | 2 | | (ii) the court in which the action was brought, (iii) the names | 3 | | of
title holders of record, (iv) a legal description of the | 4 | | real estate
sufficient to identify it with reasonable | 5 | | certainty, (v) a common address
or description of the location | 6 | | of the real estate and (vi) identification
of the mortgage | 7 | | sought to be foreclosed. An incorrect common address or
| 8 | | description of the location, or an immaterial error in the | 9 | | identification
of a plaintiff or title holder of record, shall | 10 | | not invalidate the lis
pendens effect of the notice under this | 11 | | Section.
A notice which complies with this Section shall be | 12 | | deemed to comply with
Section 2-1901 of the Code of Civil
| 13 | | Procedure and shall have the same effect as a notice filed | 14 | | pursuant to
that Section; however, a notice which complies with | 15 | | Section 2-1901 shall
not be constructive notice unless it also | 16 | | complies with the requirements of
this Section. | 17 | | (b) With respect to residential real estate, a copy of the | 18 | | notice of foreclosure described in subsection (a) of Section | 19 | | 15-1503 shall be sent by first class mail, postage prepaid, to | 20 | | the municipality within the boundary of which the mortgaged | 21 | | real estate is located, or to the county within the boundary of | 22 | | which the mortgaged real estate is located if the mortgaged | 23 | | real estate is located in an unincorporated territory. A | 24 | | municipality or county must clearly publish on its website a | 25 | | single address to which such notice shall be sent. If a | 26 | | municipality or county does not maintain a website, then the |
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| 1 | | municipality or county must publicly post in its main office a | 2 | | single address to which such notice shall be sent. In the event | 3 | | that a municipality or county has not complied with the | 4 | | publication requirement in this subsection (b), then such | 5 | | notice to the municipality or county shall be sent by first | 6 | | class mail to the chairperson of the county board or county | 7 | | clerk in the case of a county, to the mayor or city clerk in the | 8 | | case of a city, to the president of the board of trustees or | 9 | | village clerk in the case of a village, or to the supervisor or | 10 | | town clerk in the case of a town provided pursuant to Section | 11 | | 2-211 of the Code of Civil Procedure . | 12 | | (Source: P.A. 96-856, eff. 3-1-10.) | 13 | | (735 ILCS 5/15-1508) (from Ch. 110, par. 15-1508) | 14 | | Sec. 15-1508. Report of Sale and Confirmation of Sale. | 15 | | (a) Report. The person conducting the sale shall promptly | 16 | | make a report to
the court, which report shall include a copy | 17 | | of all receipts and, if any,
certificate of sale. | 18 | | (b) Hearing. Upon motion and notice in accordance with | 19 | | court rules
applicable to motions generally, which motion shall | 20 | | not be made prior to
sale, the court shall conduct a hearing to
| 21 | | confirm the sale. Unless the court finds that (i) a notice | 22 | | required in
accordance with subsection (c) of Section 15-1507 | 23 | | was not given, (ii) the
terms of sale were unconscionable, | 24 | | (iii) the sale was conducted
fraudulently or (iv) that justice | 25 | | was otherwise not done, the court shall
then enter an order |
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| 1 | | confirming the sale. The confirmation order shall include a | 2 | | name, address, and telephone number of the holder of the | 3 | | certificate of sale or deed issued pursuant to that certificate | 4 | | or, if no certificate or deed was issued, the purchaser, whom a | 5 | | municipality or county may contact with concerns about the real | 6 | | estate. The confirmation order may
also: | 7 | | (1) approve the mortgagee's fees and costs arising | 8 | | between the entry of
the judgment of foreclosure and the | 9 | | confirmation hearing, those costs and
fees to be allowable | 10 | | to the same extent as provided in the note and mortgage
and | 11 | | in Section 15-1504; | 12 | | (2) provide for a personal judgment against any party | 13 | | for a deficiency;
and | 14 | | (3) determine the priority of the judgments of parties | 15 | | who deferred proving
the priority pursuant to subsection | 16 | | (h) of Section 15-1506, but
the court shall not
defer | 17 | | confirming the sale pending the determination of such | 18 | | priority. | 19 | | (b-5) Notice with respect to residential real estate. With | 20 | | respect to residential real estate, the notice required under | 21 | | subsection (b) of this Section shall be sent to the mortgagor | 22 | | even if the mortgagor has previously been held in default. In | 23 | | the event the mortgagor has filed an appearance, the notice | 24 | | shall be sent to the address indicated on the appearance. In | 25 | | all other cases, the notice shall be sent to the mortgagor at | 26 | | the common address of the foreclosed property. The notice shall |
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| 1 | | be sent by first class mail. Unless the right to possession has | 2 | | been previously terminated by the court, the notice shall | 3 | | include the following language in 12-point boldface | 4 | | capitalized type: | 5 | | IF YOU ARE THE MORTGAGOR (HOMEOWNER), YOU HAVE THE RIGHT TO | 6 | | REMAIN IN POSSESSION FOR 30 DAYS AFTER ENTRY OF AN ORDER OF | 7 | | POSSESSION, IN ACCORDANCE WITH SECTION 15-1701(c) OF THE | 8 | | ILLINOIS MORTGAGE FORECLOSURE LAW. | 9 | | (b-10) Notice of confirmation order sent to municipality or | 10 | | county. With respect to residential real estate, a A copy of | 11 | | the confirmation order required under subsection (b) shall be | 12 | | sent by first class mail, postage prepaid, to the municipality | 13 | | in which the foreclosed property is located, or to the county | 14 | | within the boundary of which the foreclosed property is located | 15 | | if the foreclosed property is located in an unincorporated | 16 | | territory. A municipality or county must clearly publish on its | 17 | | website a single address to which such order notice shall be | 18 | | sent. If a municipality or county does not maintain a website, | 19 | | then the municipality or county must publicly post in its main | 20 | | office a single address to which such order notice shall be | 21 | | sent. In the event that a municipality or county has not | 22 | | complied with the publication requirement in this subsection | 23 | | (b-10), then such order notice to the municipality or county | 24 | | shall be sent by first class mail to the chairperson of the | 25 | | county board or county clerk in the case of a county, to the | 26 | | mayor or city clerk in the case of a city, to the president of |
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| 1 | | the board of trustees or village clerk in the case of a | 2 | | village, or to the supervisor or town clerk in the case of a | 3 | | town provided pursuant to Section 2-211 of the Code of Civil | 4 | | Procedure . | 5 | | (b-15) Notice of confirmation order sent to known insurers. | 6 | | With respect to residential real estate, a copy of the | 7 | | confirmation order required under subsection (b) shall be sent | 8 | | by first class mail, postage prepaid, to the last-known | 9 | | property insurer of the foreclosed property. Failure to send or | 10 | | receive a copy of the order shall not impair or abrogate in any | 11 | | way the rights of the mortgagee or purchaser or affect the | 12 | | status of the foreclosure proceedings. | 13 | | (c) Failure to Give Notice. If any sale is held without | 14 | | compliance with
subsection (c) of Section 15-1507 of this | 15 | | Article, any party entitled to
the notice provided for in | 16 | | paragraph (3) of that subsection
(c) who was not so notified | 17 | | may, by motion supported by affidavit
made prior to | 18 | | confirmation of such sale, ask the court which entered the
| 19 | | judgment to set aside the sale. Any such party shall guarantee | 20 | | or secure by bond a bid equal to the successful bid at the | 21 | | prior sale, unless the party seeking to set aside the sale is | 22 | | the mortgagor, the real estate sold at the sale is residential | 23 | | real estate, and the mortgagor occupies the residential real | 24 | | estate at the time the motion is filed. In that event, no | 25 | | guarantee or bond shall be required of the mortgagor. Any
| 26 | | subsequent sale is subject to the same notice requirement as |
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| 1 | | the original sale. | 2 | | (d) Validity of Sale. Except as provided in subsection (c) | 3 | | of Section
15-1508, no sale under this Article shall be held | 4 | | invalid or be set aside
because of any defect in the notice | 5 | | thereof or in the publication of the
same, or in the | 6 | | proceedings of the officer conducting the sale, except upon
| 7 | | good cause shown in a hearing pursuant to subsection (b) of | 8 | | Section
15-1508. At any time after a sale has occurred, any | 9 | | party entitled to
notice under paragraph (3) of subsection (c) | 10 | | of Section 15-1507 may recover
from the mortgagee any damages | 11 | | caused by the mortgagee's failure to comply
with such paragraph | 12 | | (3). Any party who recovers damages in a judicial
proceeding | 13 | | brought under this subsection may also recover from the
| 14 | | mortgagee the reasonable expenses of litigation, including | 15 | | reasonable attorney's fees. | 16 | | (d-5) Making Home Affordable Program. The court that | 17 | | entered the judgment shall set aside a sale held pursuant to | 18 | | Section 15-1507, upon motion of the mortgagor at any time prior | 19 | | to the confirmation of the sale, if the mortgagor proves by a | 20 | | preponderance of the evidence that (i) the mortgagor has | 21 | | applied for assistance under the Making Home Affordable Program | 22 | | established by the United States Department of the Treasury | 23 | | pursuant to the Emergency Economic Stabilization Act of 2008, | 24 | | as amended by the American Recovery and Reinvestment Act of | 25 | | 2009, and (ii) the mortgaged real estate was sold in material | 26 | | violation of the program's requirements for proceeding to a |
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| 1 | | judicial sale. The provisions of this subsection (d-5), except | 2 | | for this sentence, shall become inoperative on January 1, 2013 | 3 | | for all actions filed under this Article after December 31, | 4 | | 2012, in which the mortgagor did not apply for assistance under | 5 | | the Making Home Affordable Program on or before December 31, | 6 | | 2012. | 7 | | (e) Deficiency Judgment. In any order confirming a sale | 8 | | pursuant to the
judgment of foreclosure, the court shall also | 9 | | enter a personal judgment
for deficiency against any party (i) | 10 | | if otherwise authorized and (ii) to
the extent requested in the | 11 | | complaint and proven upon presentation of the
report of sale in | 12 | | accordance with Section 15-1508. Except as otherwise provided
| 13 | | in this Article, a judgment may be entered for any balance of | 14 | | money that
may be found due to the plaintiff, over and above | 15 | | the proceeds of the sale
or sales, and enforcement may be had | 16 | | for the collection of such balance,
the same as when the | 17 | | judgment is solely for the payment of money. Such
judgment may | 18 | | be entered, or enforcement had,
only in cases where personal | 19 | | service has been had upon the
persons personally liable for the | 20 | | mortgage indebtedness, unless they have
entered their | 21 | | appearance in the foreclosure action. | 22 | | (f) Satisfaction. Upon confirmation of the sale, the
| 23 | | judgment stands satisfied to the extent of the sale price less | 24 | | expenses and
costs. If the order confirming the sale includes a | 25 | | deficiency judgment, the
judgment shall become a lien in the | 26 | | manner of any other
judgment for the payment of money. |
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| 1 | | (g) The order confirming the sale shall include, | 2 | | notwithstanding any
previous orders awarding possession during | 3 | | the pendency of the foreclosure, an
award to the purchaser of | 4 | | possession of the mortgaged real estate, as of the
date 30 days | 5 | | after the entry of the order, against the
parties to the | 6 | | foreclosure whose interests have been terminated. | 7 | | An order of possession authorizing the removal of a person | 8 | | from possession
of the mortgaged real estate shall be entered | 9 | | and enforced only against those
persons personally
named as | 10 | | individuals in the complaint or the petition under subsection | 11 | | (h)
of Section 15-1701 and in the order of possession and shall
| 12 | | not be entered and enforced against any person who is only | 13 | | generically
described as an
unknown owner or nonrecord claimant | 14 | | or by another generic designation in the
complaint. | 15 | | Notwithstanding the preceding paragraph, the failure to | 16 | | personally
name,
include, or seek an award of
possession of the | 17 | | mortgaged real estate against a person in the
confirmation | 18 | | order shall not abrogate any right that the purchaser may have | 19 | | to
possession of the mortgaged real estate and to maintain a | 20 | | proceeding against
that person for
possession under Article 9 | 21 | | of this Code or subsection (h) of Section 15-1701;
and | 22 | | possession against a person
who (1) has not been personally | 23 | | named as a party to the
foreclosure and (2) has not been | 24 | | provided an opportunity to be heard in the
foreclosure | 25 | | proceeding may be sought only by maintaining a
proceeding under | 26 | | Article 9 of this
Code or subsection (h) of Section 15-1701. |
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| 1 | | (Source: P.A. 95-826, eff. 8-14-08; 96-265, eff. 8-11-09; | 2 | | 96-856, eff. 3-1-10; 96-1245, eff. 7-23-10; revised 9-16-10.)
| 3 | | Section 99. Effective date. This Act takes effect July 1, | 4 | | 2011.".
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