Full Text of SB3067 96th General Assembly
SB3067sam001 96TH GENERAL ASSEMBLY | Sen. Jacqueline Y. Collins Filed: 11/29/2010
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| 1 | | AMENDMENT TO SENATE BILL 3067
| 2 | | AMENDMENT NO. ______. Amend Senate Bill 3067 by replacing | 3 | | everything after the enacting clause with the following:
| 4 | | "Section 5. The Code of Civil Procedure is amended by | 5 | | adding Section 15-1502.10 and changing Sections 15-1504 and | 6 | | 15-1506 as follows: | 7 | | (735 ILCS 5/15-1502.10 new) | 8 | | Sec. 15-1502.10. Condition precedent to foreclosure on | 9 | | residential real estate. | 10 | | (a) This Section applies only to a foreclosure of property | 11 | | that is residential real estate. | 12 | | (b) As a condition precedent to initiating foreclosure | 13 | | pursuant to this Section, the plaintiff shall (i) comply with | 14 | | the requirements of any federal, State, local, or contractual | 15 | | loss mitigation programs that apply to the subject mortgage, | 16 | | including, but not limited to, those requirements pertaining to |
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| 1 | | the federal Home Affordable Modification Program of the Making | 2 | | Home Affordable initiative of the Secretary of the Treasury, | 3 | | authorized under the Emergency Economic Stabilization Act of | 4 | | 2008 (Public Law 110-343) (HAMP); and (ii) if no federal, | 5 | | State, local, or contractual loss mitigation program applies to | 6 | | the subject mortgage, or if review under applicable federal, | 7 | | State, local, or contractual loss mitigation programs fails to | 8 | | result in a modification of the subject mortgage, review the | 9 | | subject mortgage for a loan modification under every other loss | 10 | | mitigation program utilized by plaintiff.
| 11 | | (735 ILCS 5/15-1504) (from Ch. 110, par. 15-1504)
| 12 | | Sec. 15-1504. Pleadings and service.
| 13 | | (a) Foundational requirements for affidavits. Every | 14 | | affidavit filed in a foreclosure proceeding shall include a | 15 | | detailed description of the basis of the affiant's claimed | 16 | | personal knowledge of the facts set forth in the affidavit, | 17 | | including: | 18 | | (1) a statement of which specific data systems the | 19 | | affiant queried in preparing the affidavit, if the affiant | 20 | | queried data systems in preparing the affidavit; | 21 | | (2) a detailed factual statement of the basis of the | 22 | | affiant's belief that each data system identified | 23 | | contained accurate information; and | 24 | | (3) if applicable, a detailed description of the basis | 25 | | of the affiant's statement that the attached mortgage and |
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| 1 | | note are true and correct. | 2 | | (b) Lost note affidavit. A copy of the mortgage and note | 3 | | secured thereby shall be attached to the foreclosure complaint. | 4 | | If any note required to be attached to a complaint filed | 5 | | pursuant to this subsection (b) cannot be located for filing as | 6 | | an exhibit, the moving party shall file an affidavit stating | 7 | | the following: | 8 | | (1) the reasonable efforts made by the moving party to | 9 | | obtain the note; and | 10 | | (2) a description of the terms of the note and any | 11 | | riders attached thereto, including: | 12 | | (A) date of execution; | 13 | | (B) parties; | 14 | | (C) amount; | 15 | | (D) interest rate and, if applicable, the margin | 16 | | used to calculate the interest rate and the initial | 17 | | date of reset; | 18 | | (E) if applicable, the existence of a prepayment | 19 | | penalty; and | 20 | | (F) if applicable, the existence of a balloon | 21 | | payment. | 22 | | Nothing in this subsection (b) shall be construed in | 23 | | derogation of the parties' rights established under Section | 24 | | 3-309 of the Uniform Commercial Code or any similar rights | 25 | | established under Illinois law. | 26 | | (c) Loss mitigation affidavit. Every foreclosure complaint |
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| 1 | | shall include, as an attachment, an affidavit stating: | 2 | | (1) Which federal, State, local, or contractual loss | 3 | | mitigation programs apply to the subject mortgage. | 4 | | (2) If applicable, that plaintiff has reviewed the | 5 | | mortgage loan for modification under the Home Affordable | 6 | | Modification Program of the Making Home Affordable | 7 | | initiative of the Secretary of the Treasury, authorized | 8 | | under the Emergency Economic Stabilization Act of 2008 | 9 | | (Public Law 110-343) (HAMP), the results of that review | 10 | | (including all borrower-related and mortgage-related input | 11 | | data used in any net present value analyses and any other | 12 | | information required to be provided to the mortgagor under | 13 | | the supplemental directives and other guidelines for | 14 | | HAMP), a record of all HAMP-related communications with the | 15 | | borrower, written or verbal, and, if applicable, the | 16 | | reasons that plaintiff's review resulted in a denial of a | 17 | | HAMP modification, including, as an attachment, a copy of | 18 | | the written Non-Approval Notice provided to the mortgagor, | 19 | | as required by U.S. Department of Treasury Supplemental | 20 | | Directive 09-08. | 21 | | (3) If applicable, that plaintiff has not reviewed the | 22 | | mortgage loan for a HAMP modification, including the | 23 | | reasons that plaintiff did not conduct the review. | 24 | | (4) That plaintiff has complied with the requirements | 25 | | of any other federal, State, local, or contractual loss | 26 | | mitigation programs that apply to the subject mortgage and |
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| 1 | | the results of any analysis conducted under those programs. | 2 | | (5) That plaintiff has complied with the requirements | 3 | | of Section 15-1502.5, the results of those efforts, and, if | 4 | | applicable, the reasons that plaintiff's efforts did not | 5 | | result in an agreed sustainable loan workout plan. | 6 | | (6) A detailed description of all additional loss | 7 | | mitigation efforts made by plaintiff and the results | 8 | | thereof, including efforts to avoid foreclosure through a | 9 | | non-HAMP loan modification program, short sale, deed in | 10 | | lieu of foreclosure, or other alternative that is intended | 11 | | to simplify the mortgagor's relinquishment of ownership of | 12 | | the property, and, if applicable, an explanation for the | 13 | | denial of a loan modification or other loss mitigation. | 14 | | (d) (a) Form of Complaint. A foreclosure complaint
may be | 15 | | in substantially the following form:
| 16 | | (1) Plaintiff files this complaint to foreclose the | 17 | | mortgage (or other
conveyance in the nature of a mortgage) | 18 | | (hereinafter called "mortgage")
hereinafter described and | 19 | | joins the following person as defendants: (here
insert | 20 | | names of all defendants).
| 21 | | (2) Attached as Exhibit "A" is a copy of the mortgage | 22 | | and as Exhibit "B"
is a copy of the note secured thereby.
| 23 | | (3) Information concerning mortgage:
| 24 | | (A) Nature of instrument: (here insert whether a | 25 | | mortgage, trust deed or
other instrument in the nature | 26 | | of a mortgage, etc.)
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| 1 | | (B) Date of mortgage:
| 2 | | (C) Name of mortgagor:
| 3 | | (D) Name of current mortgagee , and, if different, | 4 | | name of original mortgagee :
| 5 | | (E) Date and place of recording:
| 6 | | (F) Identification of recording: (here insert book | 7 | | and page number or document number)
| 8 | | (G) Interest subject to the mortgage: (here insert | 9 | | whether fee simple,
estate for years, undivided | 10 | | interest, etc.)
| 11 | | (H) Amount of original indebtedness, including an | 12 | | itemization of subsequent advances , fees, or | 13 | | additional charges, including force-placed insurance, | 14 | | made
under the mortgage stating the purpose, payee, | 15 | | amount, and date of each :
| 16 | | (I) Both the legal description of the mortgaged | 17 | | real estate and the
common address or other information | 18 | | sufficient to identify it with reasonable certainty:
| 19 | | (J) Statement as to defaults, including, but not | 20 | | necessarily
limited to, date of default, current | 21 | | unpaid principal balance, per diem
interest accruing, | 22 | | and any further information concerning the default:
| 23 | | (K) Each and every borrower payment made in the | 24 | | last 36 months, including amount and date, whether such | 25 | | payment was accepted or returned to the mortgagor, and | 26 | | how the payment was applied to the borrower's account |
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| 1 | | (e.g., applied to principal or interest, or placed in | 2 | | suspense account):
| 3 | | (L) (K) Name of present owner of the real estate:
| 4 | | (M) (L) Names of other persons who are joined as | 5 | | defendants and whose
interest in or lien on the | 6 | | mortgaged real estate is sought to be terminated:
| 7 | | (N) (M) Names of defendants claimed to be | 8 | | personally liable
for deficiency, if any:
| 9 | | (O) (N) Capacity in which plaintiff brings this | 10 | | foreclosure (here indicate
whether plaintiff is the | 11 | | legal holder of the indebtedness, a pledgee, an
agent, | 12 | | the trustee under a trust deed or otherwise, as | 13 | | appropriate) ; attached as Exhibit "C" are copies of all | 14 | | documents, including endorsements, assignments, or | 15 | | transfers, that demonstrate that plaintiff is legally | 16 | | entitled to bring the foreclosure :
| 17 | | (P) (O) Facts in support of redemption period | 18 | | shorter than
the longer of (i) 7 months from the date | 19 | | the mortgagor or, if more than
one, all the mortgagors | 20 | | (I) have been served with summons or by publication
or | 21 | | (II) have otherwise submitted to the jurisdiction of | 22 | | the court, or (ii)
3 months from the entry of the | 23 | | judgment of foreclosure, if sought (here
indicate | 24 | | whether based upon the real estate not being | 25 | | residential,
abandonment, or real estate value less | 26 | | than 90%
of amount owed, etc.):
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| 1 | | (Q) (P) Statement that the right of redemption has | 2 | | been waived by all
owners of redemption, if applicable:
| 3 | | (R) (Q) Facts in support of request for attorneys' | 4 | | fees and of costs and
expenses, if applicable:
| 5 | | (S) (R) Facts in support of a request for | 6 | | appointment of mortgagee in
possession or for | 7 | | appointment of receiver, and identity of such | 8 | | receiver, if
sought:
| 9 | | (T) (S) Offer to mortgagor in accordance with | 10 | | Section 15-1402 to accept
title to the real estate in | 11 | | satisfaction of all indebtedness and
obligations | 12 | | secured by the mortgage without judicial sale, if | 13 | | sought:
| 14 | | (U) (T) Name or names of defendants whose right to
| 15 | | possess the mortgaged real estate, after the | 16 | | confirmation of a foreclosure
sale, is
sought to be | 17 | | terminated and, if not elsewhere stated, the facts in | 18 | | support
thereof:
| 19 | | (V) Attached as Exhibit "D" is the Lost Mitigation | 20 | | Affidavit, as required by subsection (c) of this | 21 | | Section.
| 22 | | REQUEST FOR RELIEF
| 23 | | Plaintiff requests:
| 24 | | (i) A judgment of foreclosure and sale.
| 25 | | (ii) An order granting a shortened redemption period, |
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| 1 | | if sought.
| 2 | | (iii) A personal judgment for a deficiency, if sought.
| 3 | | (iv) An order granting possession, if sought.
| 4 | | (v) An order placing the mortgagee in possession or | 5 | | appointing a receiver,
if sought.
| 6 | | (vi) A judgment for attorneys' fees, costs and | 7 | | expenses, if sought.
| 8 | | (e) (b) Required Information. A foreclosure complaint need | 9 | | contain only such
statements and requests called for by the | 10 | | form set forth in subsection (a) of
Section
15-1504 as may be | 11 | | appropriate for the relief sought. Such complaint may
be filed | 12 | | as a counterclaim, may be joined with other counts or may | 13 | | include
in the same count additional matters or a request for | 14 | | any additional
relief permitted by Article
II of the Code of | 15 | | Civil Procedure.
| 16 | | (f) (c) Allegations. The statements contained in a | 17 | | complaint in the form
set forth in subsection (a) of Section | 18 | | 15-1504 are deemed and construed to include
allegations as | 19 | | follows:
| 20 | | (1) on the date indicated the obligor of the | 21 | | indebtedness or other
obligations secured by the mortgage | 22 | | was justly indebted in the amount of
the indicated original | 23 | | indebtedness to the original mortgagee or payee of
the | 24 | | mortgage note;
| 25 | | (2) that the exhibits attached are true and correct | 26 | | copies of the
mortgage and note and are incorporated and |
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| 1 | | made a part of the complaint by
express reference;
| 2 | | (3) that the mortgagor was at the date indicated an | 3 | | owner of the
interest in the real estate described in the | 4 | | complaint and that as of that
date made, executed and | 5 | | delivered the mortgage as security for the note or
other | 6 | | obligations;
| 7 | | (4) that the mortgage was recorded in the county in | 8 | | which the mortgaged
real estate is located, on the date | 9 | | indicated, in the book and page or as
the document number | 10 | | indicated;
| 11 | | (5) that defaults occurred as indicated;
| 12 | | (6) that at the time of the filing of the complaint the | 13 | | persons named as
present owners are the owners of the | 14 | | indicated interests in and to the real
estate described;
| 15 | | (7) that the mortgage constitutes a valid, prior and | 16 | | paramount lien upon
the indicated interest in the mortgaged | 17 | | real estate, which lien is prior and
superior to the right, | 18 | | title, interest, claim or lien of all parties and
nonrecord | 19 | | claimants whose interests in the mortgaged real estate are
| 20 | | sought to be terminated;
| 21 | | (8) that by reason of the defaults alleged, if the | 22 | | indebtedness has not
matured by its terms, the same has | 23 | | become due by the exercise, by the
plaintiff or other | 24 | | persons having such power, of a right or power to
declare | 25 | | immediately due and payable the whole of all indebtedness | 26 | | secured
by the mortgage;
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| 1 | | (9) that any and all notices of default or election to | 2 | | declare the
indebtedness due and payable or other notices | 3 | | required to be given have
been duly and properly given;
| 4 | | (10) that any and all periods of grace or other period | 5 | | of time allowed
for the performance of the covenants or | 6 | | conditions claimed to be breached
or for the curing of any | 7 | | breaches have expired;
| 8 | | (11) that the amounts indicated in the statement
in the | 9 | | complaint are correctly stated and
if such statement | 10 | | indicates any advances made or to be made by the
plaintiff | 11 | | or owner of the mortgage indebtedness, that such advances | 12 | | were,
in fact, made or will be
required to be made, and | 13 | | under and by virtue of the mortgage the same
constitute | 14 | | additional indebtedness secured by the mortgage; and
| 15 | | (12) that, upon confirmation of the sale, the holder of | 16 | | the certificate
of sale or deed issued pursuant to that | 17 | | certificate or, if no certificate or
deed was issued, the | 18 | | purchaser at the sale will be entitled to full possession
| 19 | | of the mortgaged real estate against the parties
named in | 20 | | clause (T) of
paragraph (3) of subsection (a) of Section | 21 | | 15-1504 or elsewhere to the same
effect;
the omission of | 22 | | any
party indicates that plaintiff will not seek a | 23 | | possessory order in the order
confirming sale unless the | 24 | | request is subsequently made under subsection (h) of
| 25 | | Section 15-1701 or by separate action under Article 9 of | 26 | | this Code.
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| 1 | | (g) (d) Request for Fees and Costs. A statement in the | 2 | | complaint that
plaintiff seeks the inclusion of attorneys' fees | 3 | | and of costs and expenses
shall be deemed and construed to | 4 | | include allegations that:
| 5 | | (1) plaintiff has been compelled to employ and retain | 6 | | attorneys to
prepare and file the complaint and to | 7 | | represent and advise the plaintiff in
the foreclosure of | 8 | | the mortgage and the plaintiff will thereby become
liable | 9 | | for the usual, reasonable and customary fees of the | 10 | | attorneys in
that behalf;
| 11 | | (2) that the plaintiff has been compelled to advance or | 12 | | will be
compelled to advance, various sums of money in | 13 | | payment of costs, fees,
expenses and disbursements | 14 | | incurred in connection with the foreclosure,
including, | 15 | | without limiting the generality of the foregoing, filing | 16 | | fees,
stenographer's fees, witness fees, costs of | 17 | | publication, costs of procuring
and preparing documentary | 18 | | evidence and costs of procuring
abstracts of title, Torrens | 19 | | certificates, foreclosure minutes and a title
insurance | 20 | | policy;
| 21 | | (3) that under the terms of the mortgage, all such | 22 | | advances, costs,
attorneys' fees and other fees, expenses | 23 | | and disbursements are made a lien
upon the mortgaged real | 24 | | estate and the plaintiff is entitled to recover all
such | 25 | | advances, costs, attorneys' fees, expenses and | 26 | | disbursements, together
with interest on all advances at |
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| 1 | | the rate provided in the mortgage, or, if
no rate is | 2 | | provided therein, at the statutory judgment rate, from the
| 3 | | date on which such advances are made;
| 4 | | (4) that in order to protect the lien of the mortgage, | 5 | | it may become
necessary for plaintiff to pay taxes and | 6 | | assessments which have been or may
be levied upon the | 7 | | mortgaged real estate;
| 8 | | (5) that in order to protect and preserve the mortgaged | 9 | | real estate, it
may also become necessary for the plaintiff | 10 | | to pay liability (protecting
mortgagor and mortgagee), | 11 | | fire and other hazard
insurance premiums on the mortgaged | 12 | | real estate, make such repairs
to the mortgaged real
estate | 13 | | as may reasonably be deemed necessary for the proper | 14 | | preservation
thereof, advance for costs to inspect the | 15 | | mortgaged real estate or to
appraise it, or both, and | 16 | | advance for premiums for pre-existing private or
| 17 | | governmental mortgage insurance to the extent required | 18 | | after a foreclosure
is commenced in order to keep such | 19 | | insurance in force; and
| 20 | | (6) that under the terms of the mortgage, any money so | 21 | | paid or expended
will become an additional indebtedness | 22 | | secured by the mortgage and will bear
interest from the | 23 | | date such monies are advanced at the rate provided in the
| 24 | | mortgage, or, if no rate is provided, at the
statutory | 25 | | judgment rate.
| 26 | | (h) (e) Request for Foreclosure. The request for |
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| 1 | | foreclosure is deemed and
construed to mean that the plaintiff | 2 | | requests that:
| 3 | | (1) an accounting may be taken under the direction of | 4 | | the court of the
amounts due and owing to the plaintiff;
| 5 | | (2) that the defendants be ordered to pay to the | 6 | | plaintiff before
expiration of any redemption period (or, | 7 | | if no redemption period, before a
short date fixed by the | 8 | | court) whatever sums may appear to be due upon the taking
| 9 | | of such account,
together with attorneys' fees and costs of | 10 | | the proceedings (to the extent
provided in the mortgage or | 11 | | by law);
| 12 | | (3) that in default of such payment in accordance with | 13 | | the judgment, the
mortgaged real estate be sold as directed | 14 | | by the court, to satisfy the
amount due to the plaintiff as | 15 | | set forth in the judgment, together with the
interest | 16 | | thereon at the statutory judgment rate from the date of the | 17 | | judgment;
| 18 | | (4) that in the event the plaintiff is a purchaser of | 19 | | the mortgaged real
estate at such sale, the plaintiff may | 20 | | offset against the purchase price of
such real estate the | 21 | | amounts due under the judgment of foreclosure and
order | 22 | | confirming the sale;
| 23 | | (5) that in the event of such sale and the failure of | 24 | | any person entitled
thereto to redeem prior to such sale | 25 | | pursuant to this Article, the
defendants made parties to | 26 | | the foreclosure in accordance with this Article,
and all |
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| 1 | | nonrecord claimants given notice of the foreclosure in | 2 | | accordance
with this Article, and all persons claiming by, | 3 | | through or under them, and
each and any and all of them, | 4 | | may be forever barred and foreclosed of any
right, title, | 5 | | interest, claim, lien, or right to redeem in and to the
| 6 | | mortgaged real estate; and
| 7 | | (6) that if no redemption is made prior to such sale, a | 8 | | deed may be
issued to the purchaser thereat according to | 9 | | law and such purchaser be let
into possession of the | 10 | | mortgaged real estate in accordance with Part 17 of this | 11 | | Article.
| 12 | | (i) (f) Request for Deficiency Judgment. A request for a | 13 | | personal judgment
for a deficiency in a foreclosure complaint | 14 | | if the sale of the mortgaged
real estate fails to produce a | 15 | | sufficient amount to pay the amount found
due, the plaintiff | 16 | | may have a personal judgment against any party in the
| 17 | | foreclosure indicated as being personally liable therefor and | 18 | | the enforcement
thereof be had as provided by law.
| 19 | | (j) (g) Request for Possession or Receiver. A request for | 20 | | possession or appointment
of a receiver has the meaning as | 21 | | stated in subsection (b) of Section 15-1706.
| 22 | | (k) (h) Answers by Parties. Any party
may assert its | 23 | | interest by counterclaim and such counterclaim may at the
| 24 | | option of that party stand in lieu of answer to the complaint | 25 | | for
foreclosure and all counter complaints previously or | 26 | | thereafter filed
in the foreclosure. Any such counterclaim |
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| 1 | | shall be deemed to constitute a
statement that the counter | 2 | | claimant does not have sufficient knowledge to
form a belief as | 3 | | to the truth or falsity of the
allegations of the complaint and | 4 | | all other counterclaims, except
to the extent that the | 5 | | counterclaim admits or specifically denies such
allegations.
| 6 | | (Source: P.A. 91-357, eff. 7-29-99.)
| 7 | | (735 ILCS 5/15-1506) (from Ch. 110, par. 15-1506)
| 8 | | Sec. 15-1506. Judgment. (a) Evidence. In the trial of a | 9 | | foreclosure, the evidence to support the
allegations of the | 10 | | complaint shall be taken in open court, except:
| 11 | | (1) where an allegation of fact in the complaint is not | 12 | | denied by a
party's verified answer or verified counterclaim, | 13 | | or where a party pursuant
to subsection (b) of Section 2-610 of | 14 | | the Code of Civil Procedure states,
or is deemed to have | 15 | | stated, in
its pleading that it has no knowledge
of such | 16 | | allegation sufficient to form a belief and attaches the | 17 | | required
affidavit, a sworn verification of the complaint or a | 18 | | separate affidavit
setting forth such fact is sufficient | 19 | | evidence thereof against such party
and no further evidence of | 20 | | such fact shall be required; and
| 21 | | (2) where all the allegations of fact in the complaint have | 22 | | been proved
by verification of the complaint or affidavit, the | 23 | | court upon motion
supported by an affidavit stating the amount | 24 | | which is due the mortgagee,
may shall enter a judgment of | 25 | | foreclosure as requested in the complaint.
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| 1 | | (b) Instruments. In all cases the evidence of the | 2 | | indebtedness and the
mortgage foreclosed shall be exhibited to | 3 | | the court and appropriately
marked, and copies thereof shall be | 4 | | filed with the court.
| 5 | | (c) Summary and Default Judgments. Nothing in this Section | 6 | | 15-1506
shall prevent a party from obtaining a summary or | 7 | | default judgment
authorized by Article II of the Code of Civil | 8 | | Procedure.
| 9 | | (d) Notice of Entry of Default. When any judgment in a | 10 | | foreclosure is
entered by default, notice of such judgment | 11 | | shall be given in accordance
with Section 2-1302 of the Code of | 12 | | Civil Procedure.
| 13 | | (e) Matters Required in Judgment. A judgment of foreclosure | 14 | | shall
include the last date for redemption and all rulings of | 15 | | the court entered
with respect to each request for relief set | 16 | | forth in the complaint. If the plaintiff in the action is not | 17 | | the original mortgagee, a judgment of foreclosure shall make | 18 | | specific findings of fact concerning the capacity in which the | 19 | | plaintiff brought the foreclosure action and a determination of | 20 | | whether this capacity legally entitles the plaintiff to bring | 21 | | the action. The judgment shall also include a finding by the | 22 | | court that: (i) the plaintiff has complied with any applicable | 23 | | federal, State, or local loss mitigation requirements; or (ii) | 24 | | there are no applicable federal, State, or local loss | 25 | | mitigation requirements. If the court determines that the | 26 | | plaintiff has not complied with applicable loss mitigation |
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| 1 | | requirements, the court shall stay the matter until the court | 2 | | determines that the plaintiff has complied with those | 3 | | requirements. The
omission of the date for redemption shall not | 4 | | extend the time for
redemption or impair the validity of the | 5 | | judgment.
| 6 | | (f) Special Matters in Judgment. Without limiting the | 7 | | general
authority and powers of the court, special matters may | 8 | | be included in the
judgment of foreclosure if sought by a party | 9 | | in the complaint or by separate
motion. Such matters may | 10 | | include, without limitation:
| 11 | | (1) a manner of sale other than public auction;
| 12 | | (2) a sale by sealed bid;
| 13 | | (3) an official or other person who shall be the officer to
| 14 | | conduct the sale other than the one customarily designated by | 15 | | the court;
| 16 | | (4) provisions for non-exclusive broker listings or | 17 | | designating a duly
licensed real estate broker nominated by one | 18 | | of the parties to exclusively
list the real estate for sale;
| 19 | | (5) the fees or commissions to be paid out of the sale | 20 | | proceeds to the
listing or other duly licensed broker, if any, | 21 | | who shall have procured the accepted bid;
| 22 | | (6) the fees to be paid out of the sale proceeds to an | 23 | | auctioneer, if
any, who shall have been authorized to conduct a | 24 | | public auction sale;
| 25 | | (7) whether and in what manner and with what content signs | 26 | | shall be
posted on the real estate;
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| 1 | | (8) a particular time and place at which such bids shall be | 2 | | received;
| 3 | | (9) a particular newspaper or newspapers in which notice of
| 4 | | sale shall be published;
| 5 | | (10) the format for the advertising of such sale,
including | 6 | | the size, content
and format of such advertising, and | 7 | | additional advertising of such sale;
| 8 | | (11) matters or exceptions to which title in the real | 9 | | estate may be subject
at the sale;
| 10 | | (12) a requirement that title insurance in a specified form | 11 | | be provided
to a purchaser at the sale, and who shall pay for | 12 | | such insurance;
| 13 | | (13) whether and to what extent bids with mortgage or other
| 14 | | contingencies will be allowed;
| 15 | | (14) such other matters as approved by the court to ensure | 16 | | sale of the
real estate for the most commercially favorable | 17 | | price for the type of real
estate involved.
| 18 | | (g) Agreement of the Parties. If all of the parties agree | 19 | | in writing on
the minimum price and that the real estate may be | 20 | | sold to the first person
who offers in writing to purchase the | 21 | | real estate for such price, and on
such other commercially | 22 | | reasonable terms and conditions as the parties may
agree, then | 23 | | the court shall order the real estate to be sold on such terms,
| 24 | | subject to confirmation of the sale in accordance with Section | 25 | | 15-1508.
| 26 | | (h) Postponement of Proving Priority. With the approval of |
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| 1 | | the court
prior to the entry of the judgment of foreclosure, a | 2 | | party claiming an
interest in the proceeds of the sale of the | 3 | | mortgaged real estate may defer
proving the priority of such | 4 | | interest until the hearing to confirm the sale.
| 5 | | (i) Effect of Judgment and Lien.
(1) Upon the entry of the | 6 | | judgment of foreclosure, all rights of a party
in the | 7 | | foreclosure against the mortgagor provided for in the judgment | 8 | | of foreclosure
or this Article shall be secured by a lien on | 9 | | the mortgaged
real estate, which lien shall have the same | 10 | | priority as the claim to
which the judgment relates and shall | 11 | | be terminated upon confirmation of a judicial
sale in | 12 | | accordance with this Article.
| 13 | | (2) Upon the entry of the judgment of foreclosure, the | 14 | | rights in the
real estate subject to the judgment of | 15 | | foreclosure of (i) all persons made
a party in the foreclosure | 16 | | and (ii) all nonrecord claimants given notice in
accordance | 17 | | with paragraph (2) of subsection (c) of Section 15-1502, shall
| 18 | | be solely as provided for in
the judgment of foreclosure and in | 19 | | this Article.
| 20 | | (Source: P.A. 85-907.)
| 21 | | Section 99. Effective date. This Act takes effect upon | 22 | | becoming law.".
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