Bill Text: IL HB3335 | 2011-2012 | 97th General Assembly | Amended
Bill Title: Amends the Code of Civil Procedure. Provides that the mortgagee, judgment creditor, or other lien holder shall furnish the confirmation order to the last-known insurer of a residential building in writing by first-class mail after the mortgagee, judgment creditor, or lien holder becomes the mortgagee-in-possession. Provides that the failure to send or receive a copy of the order does not affect the rights of the mortgagee or purchaser or affect the foreclosure proceedings. Makes other changes. Effective January 1, 2012.
Spectrum: Partisan Bill (Democrat 5-0)
Status: (Failed) 2013-01-08 - Session Sine Die [HB3335 Detail]
Download: Illinois-2011-HB3335-Amended.html
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1 | AMENDMENT TO HOUSE BILL 3335
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2 | AMENDMENT NO. ______. Amend House Bill 3335 by replacing | ||||||
3 | everything after the enacting clause with the following:
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4 | "Section 5. The Code of Civil Procedure is amended by | ||||||
5 | changing Sections 15-1503 and 15-1508 as follows:
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6 | (735 ILCS 5/15-1503) (from Ch. 110, par. 15-1503)
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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
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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
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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
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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.
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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 the copy | ||||||
5 | of the such notice to the municipality or county shall be sent | ||||||
6 | by first class mail to the chairperson of the county board or | ||||||
7 | county clerk in the case of a county, to the mayor or city | ||||||
8 | clerk in the case of a city and in the case of a city with a | ||||||
9 | population of more than 2,000,000 also to the alderman for the | ||||||
10 | ward in which the property is located, to the president of the | ||||||
11 | board of trustees or village clerk in the case of a village, or | ||||||
12 | to the president or town clerk in the case of a town provided | ||||||
13 | pursuant to Section 2-211 of the Code of Civil Procedure . | ||||||
14 | Failure to send or receive a copy of the notice shall not | ||||||
15 | impair or abrogate in any way the rights of the mortgagee or | ||||||
16 | affect the status of the foreclosure proceedings. | ||||||
17 | (Source: P.A. 96-856, eff. 3-1-10.)
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18 | (735 ILCS 5/15-1508) (from Ch. 110, par. 15-1508) | ||||||
19 | Sec. 15-1508. Report of Sale and Confirmation of Sale. | ||||||
20 | (a) Report. The person conducting the sale shall promptly | ||||||
21 | make a report to
the court, which report shall include a copy | ||||||
22 | of all receipts and, if any,
certificate of sale. | ||||||
23 | (b) Hearing. Upon motion and notice in accordance with | ||||||
24 | court rules
applicable to motions generally, which motion shall | ||||||
25 | not be made prior to
sale, the court shall conduct a hearing to
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1 | confirm the sale. Unless the court finds that (i) a notice | ||||||
2 | required in
accordance with subsection (c) of Section 15-1507 | ||||||
3 | was not given, (ii) the
terms of sale were unconscionable, | ||||||
4 | (iii) the sale was conducted
fraudulently , or (iv) that justice | ||||||
5 | was otherwise not done, the court shall
then enter an order | ||||||
6 | confirming the sale. The confirmation order shall include a | ||||||
7 | name, address, and telephone number of the holder of the | ||||||
8 | certificate of sale or deed issued pursuant to that certificate | ||||||
9 | or, if no certificate or deed was issued, the purchaser, whom a | ||||||
10 | municipality or county may contact with concerns about the real | ||||||
11 | estate. The confirmation order may
also: | ||||||
12 | (1) approve the mortgagee's fees and costs arising | ||||||
13 | between the entry of
the judgment of foreclosure and the | ||||||
14 | confirmation hearing, those costs and
fees to be allowable | ||||||
15 | to the same extent as provided in the note and mortgage
and | ||||||
16 | in Section 15-1504; | ||||||
17 | (2) provide for a personal judgment against any party | ||||||
18 | for a deficiency;
and | ||||||
19 | (3) determine the priority of the judgments of parties | ||||||
20 | who deferred proving
the priority pursuant to subsection | ||||||
21 | (h) of Section 15-1506, but
the court shall not
defer | ||||||
22 | confirming the sale pending the determination of such | ||||||
23 | priority. | ||||||
24 | (b-5) Notice with respect to residential real estate. With | ||||||
25 | respect to residential real estate, the notice required under | ||||||
26 | subsection (b) of this Section shall be sent to the mortgagor |
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1 | even if the mortgagor has previously been held in default. In | ||||||
2 | the event the mortgagor has filed an appearance, the notice | ||||||
3 | shall be sent to the address indicated on the appearance. In | ||||||
4 | all other cases, the notice shall be sent to the mortgagor at | ||||||
5 | the common address of the foreclosed property. The notice shall | ||||||
6 | be sent by first class mail. Unless the right to possession has | ||||||
7 | been previously terminated by the court, the notice shall | ||||||
8 | include the following language in 12-point boldface | ||||||
9 | capitalized type: | ||||||
10 | IF YOU ARE THE MORTGAGOR (HOMEOWNER), YOU HAVE THE RIGHT TO | ||||||
11 | REMAIN IN POSSESSION FOR 30 DAYS AFTER ENTRY OF AN ORDER OF | ||||||
12 | POSSESSION, IN ACCORDANCE WITH SECTION 15-1701(c) OF THE | ||||||
13 | ILLINOIS MORTGAGE FORECLOSURE LAW. | ||||||
14 | (b-10) Notice of confirmation order sent to municipality or | ||||||
15 | county. With respect to residential real estate, a A copy of | ||||||
16 | the confirmation order required under subsection (b) shall be | ||||||
17 | sent by first class mail, postage prepaid, to the municipality | ||||||
18 | in which the foreclosed property is located, or to the county | ||||||
19 | within the boundary of which the foreclosed property is located | ||||||
20 | if the foreclosed property is located in an unincorporated | ||||||
21 | territory. A municipality or county must clearly publish on its | ||||||
22 | website a single address to which such order notice shall be | ||||||
23 | sent. If a municipality or county does not maintain a website, | ||||||
24 | then the municipality or county must publicly post in its main | ||||||
25 | office a single address to which such order notice shall be | ||||||
26 | sent. In the event that a municipality or county has not |
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1 | complied with the publication requirement in this subsection | ||||||
2 | (b-10), then the copy of the order such notice to the | ||||||
3 | municipality or county shall be sent by first class mail to the | ||||||
4 | chairperson of the county board or county clerk in the case of | ||||||
5 | a county, to the mayor or city clerk in the case of a city and | ||||||
6 | in the case of a city with a population of more than 2,000,000 | ||||||
7 | also to the alderman for the ward in which the property is | ||||||
8 | located, to the president of the board of trustees or village | ||||||
9 | clerk in the case of a village, or to the president or town | ||||||
10 | clerk in the case of a town provided pursuant to Section 2-211 | ||||||
11 | of the Code of Civil Procedure . Failure to send or receive a | ||||||
12 | copy of the order shall not impair or abrogate in any way the | ||||||
13 | rights of the mortgagee or purchaser or affect the status of | ||||||
14 | the foreclosure proceedings. | ||||||
15 | (b-15) Notice of confirmation order sent to known insurers. | ||||||
16 | With respect to residential real estate, a copy of the | ||||||
17 | confirmation order required under subsection (b) shall be sent | ||||||
18 | by first class mail, postage prepaid, to the last-known | ||||||
19 | property insurer of the foreclosed property. Failure to send or | ||||||
20 | receive a copy of the order shall not impair or abrogate in any | ||||||
21 | way the rights of the mortgagee or purchaser or affect the | ||||||
22 | status of the foreclosure proceedings. | ||||||
23 | (c) Failure to Give Notice. If any sale is held without | ||||||
24 | compliance with
subsection (c) of Section 15-1507 of this | ||||||
25 | Article, any party entitled to
the notice provided for in | ||||||
26 | paragraph (3) of that subsection
(c) who was not so notified |
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1 | may, by motion supported by affidavit
made prior to | ||||||
2 | confirmation of such sale, ask the court which entered the
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3 | judgment to set aside the sale. Any such party shall guarantee | ||||||
4 | or secure by bond a bid equal to the successful bid at the | ||||||
5 | prior sale, unless the party seeking to set aside the sale is | ||||||
6 | the mortgagor, the real estate sold at the sale is residential | ||||||
7 | real estate, and the mortgagor occupies the residential real | ||||||
8 | estate at the time the motion is filed. In that event, no | ||||||
9 | guarantee or bond shall be required of the mortgagor. Any
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10 | subsequent sale is subject to the same notice requirement as | ||||||
11 | the original sale. | ||||||
12 | (d) Validity of Sale. Except as provided in subsection (c) | ||||||
13 | of Section
15-1508, no sale under this Article shall be held | ||||||
14 | invalid or be set aside
because of any defect in the notice | ||||||
15 | thereof or in the publication of the
same, or in the | ||||||
16 | proceedings of the officer conducting the sale, except upon
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17 | good cause shown in a hearing pursuant to subsection (b) of | ||||||
18 | Section
15-1508. At any time after a sale has occurred, any | ||||||
19 | party entitled to
notice under paragraph (3) of subsection (c) | ||||||
20 | of Section 15-1507 may recover
from the mortgagee any damages | ||||||
21 | caused by the mortgagee's failure to comply
with such paragraph | ||||||
22 | (3). Any party who recovers damages in a judicial
proceeding | ||||||
23 | brought under this subsection may also recover from the
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24 | mortgagee the reasonable expenses of litigation, including | ||||||
25 | reasonable attorney's fees. | ||||||
26 | (d-5) Making Home Affordable Program. The court that |
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1 | entered the judgment shall set aside a sale held pursuant to | ||||||
2 | Section 15-1507, upon motion of the mortgagor at any time prior | ||||||
3 | to the confirmation of the sale, if the mortgagor proves by a | ||||||
4 | preponderance of the evidence that (i) the mortgagor has | ||||||
5 | applied for assistance under the Making Home Affordable Program | ||||||
6 | established by the United States Department of the Treasury | ||||||
7 | pursuant to the Emergency Economic Stabilization Act of 2008, | ||||||
8 | as amended by the American Recovery and Reinvestment Act of | ||||||
9 | 2009, and (ii) the mortgaged real estate was sold in material | ||||||
10 | violation of the program's requirements for proceeding to a | ||||||
11 | judicial sale. The provisions of this subsection (d-5), except | ||||||
12 | for this sentence, shall become inoperative on January 1, 2013 | ||||||
13 | for all actions filed under this Article after December 31, | ||||||
14 | 2012, in which the mortgagor did not apply for assistance under | ||||||
15 | the Making Home Affordable Program on or before December 31, | ||||||
16 | 2012. | ||||||
17 | (e) Deficiency Judgment. In any order confirming a sale | ||||||
18 | pursuant to the
judgment of foreclosure, the court shall also | ||||||
19 | enter a personal judgment
for deficiency against any party (i) | ||||||
20 | if otherwise authorized and (ii) to
the extent requested in the | ||||||
21 | complaint and proven upon presentation of the
report of sale in | ||||||
22 | accordance with Section 15-1508. Except as otherwise provided
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23 | in this Article, a judgment may be entered for any balance of | ||||||
24 | money that
may be found due to the plaintiff, over and above | ||||||
25 | the proceeds of the sale
or sales, and enforcement may be had | ||||||
26 | for the collection of such balance,
the same as when the |
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1 | judgment is solely for the payment of money. Such
judgment may | ||||||
2 | be entered, or enforcement had,
only in cases where personal | ||||||
3 | service has been had upon the
persons personally liable for the | ||||||
4 | mortgage indebtedness, unless they have
entered their | ||||||
5 | appearance in the foreclosure action. | ||||||
6 | (f) Satisfaction. Upon confirmation of the sale, the
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7 | judgment stands satisfied to the extent of the sale price less | ||||||
8 | expenses and
costs. If the order confirming the sale includes a | ||||||
9 | deficiency judgment, the
judgment shall become a lien in the | ||||||
10 | manner of any other
judgment for the payment of money. | ||||||
11 | (g) The order confirming the sale shall include, | ||||||
12 | notwithstanding any
previous orders awarding possession during | ||||||
13 | the pendency of the foreclosure, an
award to the purchaser of | ||||||
14 | possession of the mortgaged real estate, as of the
date 30 days | ||||||
15 | after the entry of the order, against the
parties to the | ||||||
16 | foreclosure whose interests have been terminated. | ||||||
17 | An order of possession authorizing the removal of a person | ||||||
18 | from possession
of the mortgaged real estate shall be entered | ||||||
19 | and enforced only against those
persons personally
named as | ||||||
20 | individuals in the complaint or the petition under subsection | ||||||
21 | (h)
of Section 15-1701 and in the order of possession and shall
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22 | not be entered and enforced against any person who is only | ||||||
23 | generically
described as an
unknown owner or nonrecord claimant | ||||||
24 | or by another generic designation in the
complaint. | ||||||
25 | Notwithstanding the preceding paragraph, the failure to | ||||||
26 | personally
name,
include, or seek an award of
possession of the |
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1 | mortgaged real estate against a person in the
confirmation | ||||||
2 | order shall not abrogate any right that the purchaser may have | ||||||
3 | to
possession of the mortgaged real estate and to maintain a | ||||||
4 | proceeding against
that person for
possession under Article 9 | ||||||
5 | of this Code or subsection (h) of Section 15-1701;
and | ||||||
6 | possession against a person
who (1) has not been personally | ||||||
7 | named as a party to the
foreclosure and (2) has not been | ||||||
8 | provided an opportunity to be heard in the
foreclosure | ||||||
9 | proceeding may be sought only by maintaining a
proceeding under | ||||||
10 | Article 9 of this
Code or subsection (h) of Section 15-1701. | ||||||
11 | (Source: P.A. 95-826, eff. 8-14-08; 96-265, eff. 8-11-09; | ||||||
12 | 96-856, eff. 3-1-10; 96-1245, eff. 7-23-10; revised | ||||||
13 | 9-16-10.)".
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