Bill Text: IL HB2483 | 2009-2010 | 96th General Assembly | Introduced

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Bill Title: Amends the Code of Civil Procedure. Provides that no mortgagee-in-possession, receiver or holder of a certificate of sale or deed, or purchaser who fails to file a supplemental petition for possession during the pendency of a mortgage foreclosure shall file a forcible entry and detainer action against a tenant or subtenant (instead of tenant) of the mortgaged real estate until 90 days after a notice of intent to file such action that identifies the tenant or subtenant and the premises (instead of notice of intent to file such action) has been properly served upon the tenant or subtenant and the county housing authority, but if the county has not formed a county housing authority, then upon the county clerk (instead of has been properly served upon the tenant).

Sponsorship: Partisan Bill (Republican 1)

Status: (Introduced - Dead) 2009-03-13 - Rule 19(a) / Re-referred to Rules Committee [HB2483 Detail]

Download: Illinois-2009-HB2483-Introduced.html

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96TH GENERAL ASSEMBLY State of Illinois 2009 and 2010 HB2483 Introduced 2/20/2009, by Rep. Mike Fortner SYNOPSIS AS INTRODUCED:
735 ILCS 5/15-1701 from Ch. 110, par. 15-1701
Amends the Code of Civil Procedure. Provides that no mortgagee-in-possession, receiver or holder of a certificate of sale or deed, or purchaser who fails to file a supplemental petition for possession during the pendency of a mortgage foreclosure shall file a forcible entry and detainer action against a tenant or subtenant (instead of tenant) of the mortgaged real estate until 90 days after a notice of intent to file such action that identifies the tenant or subtenant and the premises (instead of notice of intent to file such action) has been properly served upon the tenant or subtenant and the county housing authority, but if the county has not formed a county housing authority, then upon the county clerk (instead of has been properly served upon the tenant).
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A BILL FOR
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AN ACT concerning civil law.
Be it enacted by the People of the State of Illinois,
represented in the General Assembly:
Section 5. The Code of Civil Procedure is amended by
changing Section 15-1701 as follows:
(735 ILCS 5/15-1701) (from Ch. 110, par. 15-1701)
Sec. 15-1701. Right to possession.
(a) General. The provisions of this Article shall govern
the right to possession of the mortgaged real estate during
foreclosure. Possession under this Article includes physical
possession of the mortgaged real estate to the same extent to
which the mortgagor, absent the foreclosure, would have been
entitled to physical possession. For the purposes of Part 17,
real estate is residential real estate only if it is
residential real estate at the time the foreclosure is
commenced.
(b) Pre-Judgment. Prior to the entry of a judgment of
foreclosure:
(1) In the case of residential real estate, the
mortgagor shall be entitled to possession of the real
estate except if (i) the mortgagee shall object and show
good cause, (ii) the mortgagee is so authorized by the
terms of the mortgage or other written instrument, and

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(iii) the court is satisfied that there is a reasonable
probability that the mortgagee will prevail on a final
hearing of the cause, the court shall upon request place
the mortgagee in possession. If the residential real estate
consists of more than one dwelling unit, then for the
purpose of this Part residential real estate shall mean
only that dwelling unit or units occupied by persons
described in clauses (i), (ii) and (iii) of Section
15-1219.
(2) In all other cases, if (i) the mortgagee is so
authorized by the terms of the mortgage or other written
instrument, and (ii) the court is satisfied that there is a
reasonable probability that the mortgagee will prevail on a
final hearing of the cause, the mortgagee shall upon
request be placed in possession of the real estate, except
that if the mortgagor shall object and show good cause, the
court shall allow the mortgagor to remain in possession.
(c) Judgment Through 30 Days After Sale Confirmation. After
the entry of a judgment of foreclosure and through the 30th day
after a foreclosure sale is confirmed:
(1) Subsection (b) of Section 15-1701 shall be
applicable, regardless of the provisions of the mortgage or
other instrument, except that after a sale pursuant to the
judgment the holder of the certificate of sale (or, if
none, the purchaser at the sale) shall have the mortgagee's
right to be placed in possession, with all rights and

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duties of a mortgagee in possession under this Article.
(2) Notwithstanding paragraph (1) of subsection (b)
and paragraph (1) of subsection (c) of Section 15-1701,
upon request of the mortgagee, a mortgagor of residential
real estate shall not be allowed to remain in possession
between the expiration of the redemption period and through
the 30th day after sale confirmation unless (i) the
mortgagor pays to the mortgagee or such holder or
purchaser, whichever is applicable, monthly the lesser of
the interest due under the mortgage calculated at the
mortgage rate of interest applicable as if no default had
occurred or the fair rental value of the real estate, or
(ii) the mortgagor otherwise shows good cause. Any amounts
paid by the mortgagor pursuant to this subsection shall be
credited against the amounts due from the mortgagor.
(d) After 30 Days After Sale Confirmation. The holder of
the certificate of sale or deed issued pursuant to that
certificate or, if no certificate or deed was issued, the
purchaser, except to the extent the holder or purchaser may
consent otherwise, shall be entitled to possession of the
mortgaged real estate, as of the date 30 days after the order
confirming the sale is entered, against those parties to the
foreclosure whose interests the court has ordered terminated,
without further notice to any party, further order of the
court, or resort to proceedings under any other statute other
than this Article. This right to possession shall be limited by

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the provisions governing entering and enforcing orders of
possession under subsection (g) of Section 15-1508. If the
holder or purchaser determines that there are occupants of the
mortgaged real estate who have not been made parties to the
foreclosure and had their interests terminated therein, the
holder or purchaser may bring a proceeding under subsection (h)
of this Section or under Article 9 of this Code to terminate
the rights of possession of any such occupants. The holder or
purchaser shall not be entitled to proceed against any such
occupant under Article 9 of this Code until after 30 days after
the order confirming the sale is entered.
(e) Termination of Leases. A lease of all or any part of
the mortgaged real estate shall not be terminated automatically
solely by virtue of the entry into possession by (i) a
mortgagee or receiver prior to the entry of an order confirming
the sale, (ii) the holder of the certificate of sale, (iii) the
holder of the deed issued pursuant to that certificate, or (iv)
if no certificate or deed was issued, the purchaser at the
sale.
(f) Other Statutes; Instruments. The provisions of this
Article providing for possession of mortgaged real estate shall
supersede any other inconsistent statutory provisions. In
particular, and without limitation, whenever a receiver is
sought to be appointed in any action in which a foreclosure is
also pending, a receiver shall be appointed only in accordance
with this Article. Except as may be authorized by this Article,

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no mortgage or other instrument may modify or supersede the
provisions of this Article.
(g) Certain Leases. Leases of the mortgaged real estate
entered into by a mortgagee in possession or a receiver and
approved by the court in a foreclosure shall be binding on all
parties, including the mortgagor after redemption, the
purchaser at a sale pursuant to a judgment of foreclosure and
any person acquiring an interest in the mortgaged real estate
after entry of a judgment of foreclosure in accordance with
Sections 15-1402 and 15-1403.
(h) Proceedings Against Certain Occupants.
(1) The mortgagee-in-possession of the mortgaged real
estate under Section 15-1703, a receiver appointed under
Section 15-1704, a holder of the certificate of sale or
deed, or the purchaser may, at any time during the pendency
of the foreclosure and up to 90 days after the date of the
order confirming the sale, file a supplemental petition for
possession against a person not personally named as a party
to the foreclosure. The supplemental petition for
possession shall name each such occupant against whom
possession is sought and state the facts upon which the
claim for relief is premised.
(2) The petitioner shall serve upon each named occupant
the petition, a notice of hearing on the petition, and, if
any, a copy of the certificate of sale or deed. The
proceeding for the termination of such occupant's

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possessory interest, including service of the notice of the
hearing and the petition, shall in all respects comport
with the requirements of Article 9 of this Code, except as
otherwise specified in this Section. The hearing shall be
no less than 21 days from the date of service of the
notice.
(3) The supplemental petition shall be heard as part of
the foreclosure proceeding and without the payment of
additional filing fees. An order for possession obtained
under this Section shall name each occupant whose interest
has been terminated, shall recite that it is only effective
as to the occupant so named and those holding under them,
and shall be enforceable for no more than 90 days after its
entry, except that the 90-day period may be extended to the
extent and in the manner provided in Section 9-117 of
Article 9 and except as provided in item (4) of this
subsection (h).
(4) In a case of foreclosure where the tenant is
current on his or her rent, or where timely written notice
of to whom and where the rent is to be paid has not been
provided to the tenant, or where the tenant has made
good-faith efforts to make rental payments in order to keep
current, any order of possession must allow the tenant to
retain possession of the property covered in his or her
rental agreement (i) for 120 days following the notice of
the hearing on the supplemental petition that has been

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properly served upon the tenant, or (ii) through the
duration of his or her lease, whichever is shorter. If the
tenant has been given timely written notice of to whom and
where the rent is to be paid, this item (4) shall only
apply if the tenant continues to pay his or her rent in
full during the 120-day period or has made good-faith
efforts to pay the rent in full during that period. No
mortgagee-in-possession, receiver or holder of a
certificate of sale or deed, or purchaser who fails to file
a supplemental petition under this subsection during the
pendency of a mortgage foreclosure shall file a forcible
entry and detainer action against a tenant or subtenant of
the mortgaged real estate until 90 days after a notice of
intent to file such action that identifies the tenant or
subtenant and the premises has been properly served upon
the tenant or subtenant and the county housing authority,
but if the county has not formed a county housing
authority, then upon the county clerk.
(5) The court records relating to a supplemental
petition for possession filed under this subsection (h)
against a tenant who is entitled to notice under item (4)
of this subsection (h), or relating to a forcible entry and
detainer action brought against a tenant who would have
lawful possession of the premises but for the foreclosure
of a mortgage on the property, shall be ordered sealed and
shall not be disclosed to any person, other than a law

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enforcement officer or any other representative of a
governmental entity, except upon further order of the
court.
(Source: P.A. 95-262, eff. 1-1-08; 95-933, eff. 8-26-08.)