Full Text of HB2832 98th General Assembly
HB2832sam002 98TH GENERAL ASSEMBLY | Sen. Ira I. Silverstein Filed: 5/17/2013
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| 1 | | AMENDMENT TO HOUSE BILL 2832
| 2 | | AMENDMENT NO. ______. Amend House Bill 2832, AS AMENDED, by | 3 | | replacing everything after the enacting clause with the | 4 | | following:
| 5 | | "Section 5. The Counties Code is amended by adding Section | 6 | | 3-5010.5 as follows: | 7 | | (55 ILCS 5/3-5010.5 new) | 8 | | Sec. 3-5010.5. Fraud referral and review. | 9 | | (a) Legislative findings. The General Assembly finds that | 10 | | property fraud, including fraudulent filings intended to cloud | 11 | | or fraudulently transfer title to property by recording false | 12 | | or altered documents and deeds, is a rapidly growing problem | 13 | | throughout the State. In order to combat the increase in the | 14 | | number of these filings, a recorder may establish a process to | 15 | | review and refer documents suspected to be fraudulent. | 16 | | (b) Definitions. The terms "recording" and "filing" are |
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| 1 | | used interchangeably in this Section. | 2 | | (c) Establishment and use of a fraud referral and review | 3 | | process. A recorder who establishes a fraud referral and review | 4 | | process under the provisions of this Section may use it to | 5 | | review deeds and instruments and refer any of them to an | 6 | | administrative law judge for review pursuant to subsection (g) | 7 | | of this Section that cause the recorder to reasonably believe | 8 | | that the filing may be fraudulent, unlawfully altered, or | 9 | | intended to unlawfully cloud or transfer the title of any real | 10 | | property. The recorder may enter into an intergovernmental | 11 | | agreement with local law enforcement officials for the purposes | 12 | | of this referral and review. A recorder may request that the | 13 | | Secretary of the Department of Financial and Professional | 14 | | Regulation assist in reviewing possible fraudulent filings. | 15 | | Upon request, the Secretary, or his or her designee, shall | 16 | | assist in identifying the validity of filings. The recorder | 17 | | shall notify the Secretary when a document suspected to be | 18 | | fraudulent is discovered. | 19 | | In counties with a population of less than 3 million, a | 20 | | recorder shall provide public notice 90 days before the | 21 | | establishment of the fraud referral and review process. The | 22 | | notice shall include a statement of the recorder's intent to | 23 | | create a fraud referral and review process and shall be | 24 | | published in a newspaper of general circulation in the county | 25 | | and, if feasible, posted on the recorder's website and at the | 26 | | recorder's office or offices. |
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| 1 | | In determining whether to refer a document to an | 2 | | administrative law judge for review, a recorder may take into | 3 | | consideration any of the following factors: | 4 | | (1) whether the owner of the property or his or her | 5 | | designated representative has reported to the recorder | 6 | | that another individual is attempting or has attempted to | 7 | | record a fraudulent deed or other instrument upon the | 8 | | property; | 9 | | (2) whether a law enforcement official has contacted | 10 | | the recorder indicating that he or she has probable cause | 11 | | to suspect title or recording fraud; | 12 | | (3) whether the filer's name has a copyright attached | 13 | | to it or the property owner's name has nonstandard | 14 | | punctuation attached to it; | 15 | | (4) whether the documents assert fines that do not | 16 | | exist or have no basis under current law or that require | 17 | | payment in gold or silver; | 18 | | (5) whether the documents are maritime liens, or liens | 19 | | under the Federal Maritime Lien Act or the Preferred Ship | 20 | | Mortgage Act, or not authorized by the United States Coast | 21 | | Guard; | 22 | | (6) whether the documents are land patents not | 23 | | authorized and certified by the United States Department of | 24 | | the Interior Bureau of Land Management; | 25 | | (7) whether the documents are representing that the | 26 | | subject of the lien is releasing itself from a lien held by |
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| 1 | | another entity, with no apparent cooperation or | 2 | | authorization provided by the lienholder; | 3 | | (8) whether the documents are protesting or disputing a | 4 | | foreclosure proceeding that are not filed within the | 5 | | foreclosure suit and with the court presiding over the | 6 | | matter; | 7 | | (9) whether the documents are Uniform Commercial Code | 8 | | filings referencing birth certificates or other private | 9 | | records that are not in compliance with Section 9-501 of | 10 | | the Uniform Commercial Code; | 11 | | (10) whether the documents are re-recording deeds to | 12 | | re-notarize or attach notary certification if prior | 13 | | notarization already appears unaltered on the document of | 14 | | record; | 15 | | (11) whether the documents are asserting diplomatic | 16 | | credentials or immunity, non-United States citizenship, or | 17 | | independence from the laws of the United States; | 18 | | (12) whether the documents are claims that a bank | 19 | | cannot hold title after a foreclosure; | 20 | | (13) whether the documents are deeds not properly | 21 | | signed by the last legal owner of record or his or her
| 22 | | court appointed representative or attorney-in-fact under a | 23 | | power of attorney; | 24 | | (14) whether the documents are manipulated or altered | 25 | | federal or State legal or court forms that release a lien; | 26 | | (15) whether a document is not related to a valid |
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| 1 | | existing or potential adverse transaction, existing lien, | 2 | | or judgment of a court of competent jurisdiction; | 3 | | (16) a document that is not related to a valid existing | 4 | | or potential commercial or financial transaction, existing | 5 | | agricultural or other lien, or judgment of a court of | 6 | | competent jurisdiction; | 7 | | (17) whether the document is filed with the intent to | 8 | | harass or defraud the person identified in the record or | 9 | | any other person; | 10 | | (18) whether the document is filed with the intent to | 11 | | harass or defraud any member of a governmental office, | 12 | | including, but not limited to, the recorder's office, local | 13 | | government offices, the State of Illinois, or the Federal | 14 | | government; and | 15 | | (19) whether the documents are previous court | 16 | | determinations, including a previous determination by a | 17 | | court of competent jurisdiction that a particular document | 18 | | is fraudulent, invalid, or forged. | 19 | | (d) Determinations. If a recorder determines, after review | 20 | | by legal staff and counsel, that a deed or instrument that is | 21 | | recorded in the grantor's index or the grantee's index may be | 22 | | fraudulent, unlawfully altered, or intended to unlawfully | 23 | | cloud or transfer the title of any real property, he or she | 24 | | shall refer the deed or instrument to an administrative law | 25 | | judge for review pursuant to subsection (g) of this Section. | 26 | | The recorder shall record a Notice of Referral in the grantor's |
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| 1 | | index or the grantee's index identifying the document, | 2 | | corresponding document number in question, and the date of | 3 | | referral. The recorder shall also notify the parties set forth | 4 | | in subsection (e) of this Section. The recorder may, at his or | 5 | | her discretion, notify law enforcement officials regarding a | 6 | | filing determined to be fraudulent, unlawfully altered, or | 7 | | intended to unlawfully cloud or transfer the title of any real | 8 | | property. | 9 | | (e) Notice. The recorder shall use county property tax | 10 | | records to identify and provide notice to the last owner of | 11 | | record by telephone, if available, and certified mail both | 12 | | when: (1) a deed or instrument has been referred for review and | 13 | | determination; and (2) a final determination has been made | 14 | | regarding the deed or instrument. Notice, by mail, shall also | 15 | | be sent to the physical address of the property associated with | 16 | | the deed or instrument. | 17 | | (f) Administrative decision. The recorder's decision to | 18 | | add a Notice of Referral and refer a document for review is a | 19 | | final administrative decision that is subject to review by the | 20 | | circuit court of the county where the real property is located | 21 | | under the Administrative Review Law. The standard of review by | 22 | | the circuit court shall be de novo. | 23 | | (g) Referral and review process. Prior to referral, the | 24 | | recorder shall notify the last owner of record of the document | 25 | | or documents suspected to be fraudulent. The person, entity, or | 26 | | legal representative thereof shall confirm in writing his or |
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| 1 | | her belief that a document or documents are suspected to be | 2 | | fraudulent and may request that the recorder refer the case for | 3 | | review. Upon request, the recorder shall bring a case to its | 4 | | county department of administrative hearings and, within 10 | 5 | | business days after receipt, an administrative law judge shall | 6 | | schedule a hearing to occur no later than 30 days after | 7 | | receiving the referral. The referral and case shall clearly | 8 | | identify the person, persons, or entity believed to be the last | 9 | | true owner of record as the petitioner. Notice of the hearing | 10 | | shall be provided by the administrative law judge to the filer, | 11 | | or the party represented by the filer, of the suspected | 12 | | fraudulent document, the legal representative of the recorder | 13 | | of deeds who referred the case, and the last owner of record, | 14 | | as identified in the referral. | 15 | | If clear and convincing evidence shows the document in | 16 | | question to be fraudulent, the administrative law judge shall | 17 | | rule the document to be fraudulent and forward the judgment to | 18 | | all the parties identified in this subsection. Upon receiving | 19 | | notice of the judgment of fraud, the recorder shall, within 5 | 20 | | business days, record a new document that includes a copy of | 21 | | the judgment in front of the Notice of Referral that shall | 22 | | clearly state that the document in question has been found to | 23 | | be fraudulent and shall not be considered to affect the chain | 24 | | of title of the property in any way. | 25 | | If the administrative law judge finds the document to be | 26 | | legitimate, the recorder shall, within 5 business days after |
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| 1 | | receiving notice, record a copy of the judgment. | 2 | | A decision by an administrative law judge shall not | 3 | | preclude a State's attorney or sheriff from proceeding with a | 4 | | criminal investigation or criminal charges. If a county does | 5 | | not have an administrative law judge that specializes in public | 6 | | records, one shall be appointed within 3 months after the | 7 | | effective date of this amendatory Act of the 98th General | 8 | | Assembly, or the original case shall be forwarded to the proper | 9 | | circuit court with jurisdiction. | 10 | | Nothing in this Section precludes a private right of action | 11 | | by any party with an interest in the property affected by the | 12 | | review and referral, or the filer of the document or documents | 13 | | suspected to be fraudulent. Nothing in this Section requires a | 14 | | person or entity who may have had a fraudulent document or | 15 | | encumbrance filed against his or her property to use the fraud | 16 | | review and referral process or administrative review created by | 17 | | this Section. | 18 | | (h) Fees. The recorder shall retain any filing fees | 19 | | associated with filing a deed or instrument that is determined | 20 | | to be fraudulent, unlawfully altered, or intended to unlawfully | 21 | | cloud or transfer the title of any real property under this | 22 | | Section. | 23 | | (i) Liability. Neither a recorder nor any of his or her | 24 | | employees or agents shall be subject to personal liability by | 25 | | reason of any error or omission in the performance of any duty | 26 | | under this Section, except in case of willful or wanton |
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| 1 | | conduct. Neither the recorder nor any of his or her employees | 2 | | shall incur liability for the referral or review, or failure to | 3 | | refer or review, a document or instrument under this Section. | 4 | | (j) Applicability. This Section applies only to filings | 5 | | provided to the recorder on and after the effective date of | 6 | | this amendatory Act of the 98th General Assembly. | 7 | | (k) This Section is repealed June 1, 2018.
| 8 | | Section 99. Effective date. This Act takes effect upon | 9 | | becoming law.".
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