Bill Text: IL HB5001 | 2011-2012 | 97th General Assembly | Amended

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Bill Title: Amends provisions of the Code of Civil Procedure requiring a copy of a notice of foreclosure of residential real estate or a copy of a confirmation order after a confirmation of sale of residential real estate following a foreclosure to be sent by a party seeking foreclosure to the municipality or county where the mortgaged real estate is located and to the known insurers. Provides that if the municipality or county has not posted an address to which the notice of foreclosure or copy of a confirmation order must be sent, the notice of foreclosure or copy of a confirmation order must be sent to the chairperson of the county board or county clerk, mayor or city clerk, president of the board of trustees or village clerk, or president or town clerk (rather than sent in accordance with specified provisions of the Code). If the real estate is located in a city with a population of more than 2,000,000, also requires a notice of foreclosure or copy of a confirmation order to be sent to the city clerk, requires an affidavit attesting that the notice of foreclosure or copy of a confirmation order was sent, requires the city clerk to send a copy of a notice of foreclosure to the alderman for the ward in which the real estate is located, provides for dismissal of a complaint or counterclaim without prejudice if the requirements regarding a notice of foreclosure are not met, and adds notice requirements when a party refiles the complaint or counterclaim after a dismissal. Makes other changes.

Spectrum: Partisan Bill (Democrat 1-0)

Status: (Failed) 2013-01-08 - Session Sine Die [HB5001 Detail]

Download: Illinois-2011-HB5001-Amended.html

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Rep. Elaine Nekritz

Filed: 3/8/2012

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AMENDMENT TO HOUSE BILL 5001
AMENDMENT NO. ______. Amend House Bill 5001 by replacing
everything after the enacting clause with the following:
"Section 5. The Code of Civil Procedure is amended by
changing Sections 15-1503 and 15-1508 as follows:
(735 ILCS 5/15-1503) (from Ch. 110, par. 15-1503)
Sec. 15-1503. Notice of Foreclosure.
(a) A notice of foreclosure, whether the foreclosure is
initiated by complaint or counterclaim, made in accordance with
this Section and recorded in the county in which the mortgaged
real estate is located shall be constructive notice of the
pendency of the foreclosure to every person claiming an
interest in or lien on the mortgaged real estate, whose
interest or lien has not been recorded prior to the recording
of such notice of foreclosure. Such notice of foreclosure must
be executed by any party or any party's attorney and shall

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include (i) the names of all plaintiffs and the case number,
(ii) the court in which the action was brought, (iii) the names
of title holders of record, (iv) a legal description of the
real estate sufficient to identify it with reasonable
certainty, (v) a common address or description of the location
of the real estate and (vi) identification of the mortgage
sought to be foreclosed. An incorrect common address or
description of the location, or an immaterial error in the
identification of a plaintiff or title holder of record, shall
not invalidate the lis pendens effect of the notice under this
Section. A notice which complies with this Section shall be
deemed to comply with Section 2-1901 of the Code of Civil
Procedure and shall have the same effect as a notice filed
pursuant to that Section; however, a notice which complies with
Section 2-1901 shall not be constructive notice unless it also
complies with the requirements of this Section.
(b) With respect to residential real estate, a copy of the
notice of foreclosure described in subsection (a) of Section
15-1503 shall be sent by first class mail, postage prepaid, to
the municipality within the boundary of which the mortgaged
real estate is located, or to the county within the boundary of
which the mortgaged real estate is located if the mortgaged
real estate is located in an unincorporated territory. A
municipality or county must clearly publish on its website a
single address to which such notice shall be sent. If a
municipality or county does not maintain a website, then the

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municipality or county must publicly post in its main office a
single address to which such notice shall be sent. In the event
that a municipality or county has not complied with the
publication requirement in this subsection (b), then the copy
of the such notice to the municipality or county shall be sent
by first class mail, postage prepaid, to the chairperson of the
county board or county clerk in the case of a county, to the
mayor or city clerk in the case of a city, to the president of
the board of trustees or village clerk in the case of a
village, or to the president or town clerk in the case of a
town provided pursuant to Section 2-211 of the Code of Civil
Procedure. Additionally, if the real estate is located in a
city with a population of more than 2,000,000, regardless of
whether that city has complied with the publication requirement
in this subsection (b), the party must, within 10 days after
filing the complaint or counterclaim: (i) send by first class
mail, postage prepaid, a copy of the notice of foreclosure to
the alderman for the ward in which the real estate is located
and (ii) file an affidavit with the court attesting to the fact
that the notice was sent to the alderman for the ward in which
the real estate is located. The failure to send a copy of the
notice to the alderman or to file an affidavit as required
results in the dismissal without prejudice of the complaint or
counterclaim on a motion of a party or the court. If, after the
complaint or counterclaim has been dismissed without
prejudice, the party refiles the complaint or counterclaim,

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then the party must again comply with the requirements that the
party send by first class mail, postage prepaid, the notice to
the alderman for the ward in which the real estate is located
and file an affidavit attesting to the fact that the notice was
sent.
(Source: P.A. 96-856, eff. 3-1-10.)
(735 ILCS 5/15-1508) (from Ch. 110, par. 15-1508)
Sec. 15-1508. Report of Sale and Confirmation of Sale.
(a) Report. The person conducting the sale shall promptly
make a report to the court, which report shall include a copy
of all receipts and, if any, certificate of sale.
(b) Hearing. Upon motion and notice in accordance with
court rules applicable to motions generally, which motion shall
not be made prior to sale, the court shall conduct a hearing to
confirm the sale. Unless the court finds that (i) a notice
required in accordance with subsection (c) of Section 15-1507
or a notice to an alderman required in accordance with
subsection (b) of Section 15-1503 was not given, (ii) the terms
of sale were unconscionable, (iii) the sale was conducted
fraudulently, or (iv) justice was otherwise not done, the court
shall then enter an order confirming the sale. The confirmation
order shall include a name, address, and telephone number of
the holder of the certificate of sale or deed issued pursuant
to that certificate or, if no certificate or deed was issued,
the purchaser, whom a municipality or county may contact with

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concerns about the real estate. The confirmation order may
also:
(1) approve the mortgagee's fees and costs arising
between the entry of the judgment of foreclosure and the
confirmation hearing, those costs and fees to be allowable
to the same extent as provided in the note and mortgage and
in Section 15-1504;
(2) provide for a personal judgment against any party
for a deficiency; and
(3) determine the priority of the judgments of parties
who deferred proving the priority pursuant to subsection
(h) of Section 15-1506, but the court shall not defer
confirming the sale pending the determination of such
priority.
(b-5) Notice with respect to residential real estate. With
respect to residential real estate, the notice required under
subsection (b) of this Section shall be sent to the mortgagor
even if the mortgagor has previously been held in default. In
the event the mortgagor has filed an appearance, the notice
shall be sent to the address indicated on the appearance. In
all other cases, the notice shall be sent to the mortgagor at
the common address of the foreclosed property. The notice shall
be sent by first class mail. Unless the right to possession has
been previously terminated by the court, the notice shall
include the following language in 12-point boldface
capitalized type:

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IF YOU ARE THE MORTGAGOR (HOMEOWNER), YOU HAVE THE RIGHT TO
REMAIN IN POSSESSION FOR 30 DAYS AFTER ENTRY OF AN ORDER OF
POSSESSION, IN ACCORDANCE WITH SECTION 15-1701(c) OF THE
ILLINOIS MORTGAGE FORECLOSURE LAW.
(b-10) Notice of confirmation order sent to municipality or
county. With respect to residential real estate, a A copy of
the confirmation order required under subsection (b) shall be
sent by first class mail, postage prepaid, to the municipality
in which the foreclosed property is located, or to the county
within the boundary of which the foreclosed property is located
if the foreclosed property is located in an unincorporated
territory. A municipality or county must clearly publish on its
website a single address to which such order notice shall be
sent. If a municipality or county does not maintain a website,
then the municipality or county must publicly post in its main
office a single address to which such order notice shall be
sent. In the event that a municipality or county has not
complied with the publication requirement in this subsection
(b-10), then the copy of the order such notice to the
municipality or county shall be sent by first class mail,
postage prepaid, to the chairperson of the county board or
county clerk in the case of a county, to the mayor or city
clerk in the case of a city, to the president of the board of
trustees or village clerk in the case of a village, or to the
president or town clerk in the case of a town provided pursuant
to Section 2-211 of the Code of Civil Procedure. Additionally,

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if the real estate is located in a city with a population of
more than 2,000,000, regardless of whether that city has
complied with the publication requirement in this subsection
(b-10), the party filing the complaint or counterclaim must,
within 10 days after the entry of the confirmation order: (i)
send by first class mail, postage prepaid, a copy of the
confirmation order to the alderman for the ward in which the
real estate is located and (ii) file an affidavit attesting to
the fact that a copy of the confirmation order was sent to the
alderman for the ward in which the real estate is located.
(b-15) Notice of confirmation order sent to known insurers.
With respect to residential real estate, the party filing the
complaint shall send a copy of the confirmation order required
under subsection (b) by first class mail, postage prepaid, to
the last-known property insurer of the foreclosed property.
Failure to send or receive a copy of the order shall not impair
or abrogate in any way the rights of the mortgagee or purchaser
or affect the status of the foreclosure proceedings.
(c) Failure to Give Notice. If any sale is held without
compliance with subsection (c) of Section 15-1507 of this
Article, any party entitled to the notice provided for in
paragraph (3) of that subsection (c) who was not so notified
may, by motion supported by affidavit made prior to
confirmation of such sale, ask the court which entered the
judgment to set aside the sale. Any such party shall guarantee
or secure by bond a bid equal to the successful bid at the

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prior sale, unless the party seeking to set aside the sale is
the mortgagor, the real estate sold at the sale is residential
real estate, and the mortgagor occupies the residential real
estate at the time the motion is filed. In that event, no
guarantee or bond shall be required of the mortgagor. Any
subsequent sale is subject to the same notice requirement as
the original sale.
(d) Validity of Sale. Except as provided in subsection (c)
of Section 15-1508, no sale under this Article shall be held
invalid or be set aside because of any defect in the notice
thereof or in the publication of the same, or in the
proceedings of the officer conducting the sale, except upon
good cause shown in a hearing pursuant to subsection (b) of
Section 15-1508. At any time after a sale has occurred, any
party entitled to notice under paragraph (3) of subsection (c)
of Section 15-1507 may recover from the mortgagee any damages
caused by the mortgagee's failure to comply with such paragraph
(3). Any party who recovers damages in a judicial proceeding
brought under this subsection may also recover from the
mortgagee the reasonable expenses of litigation, including
reasonable attorney's fees.
(d-5) Making Home Affordable Program. The court that
entered the judgment shall set aside a sale held pursuant to
Section 15-1507, upon motion of the mortgagor at any time prior
to the confirmation of the sale, if the mortgagor proves by a
preponderance of the evidence that (i) the mortgagor has

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applied for assistance under the Making Home Affordable Program
established by the United States Department of the Treasury
pursuant to the Emergency Economic Stabilization Act of 2008,
as amended by the American Recovery and Reinvestment Act of
2009, and (ii) the mortgaged real estate was sold in material
violation of the program's requirements for proceeding to a
judicial sale. The provisions of this subsection (d-5), except
for this sentence, shall become inoperative on January 1, 2013
for all actions filed under this Article after December 31,
2012, in which the mortgagor did not apply for assistance under
the Making Home Affordable Program on or before December 31,
2012.
(e) Deficiency Judgment. In any order confirming a sale
pursuant to the judgment of foreclosure, the court shall also
enter a personal judgment for deficiency against any party (i)
if otherwise authorized and (ii) to the extent requested in the
complaint and proven upon presentation of the report of sale in
accordance with Section 15-1508. Except as otherwise provided
in this Article, a judgment may be entered for any balance of
money that may be found due to the plaintiff, over and above
the proceeds of the sale or sales, and enforcement may be had
for the collection of such balance, the same as when the
judgment is solely for the payment of money. Such judgment may
be entered, or enforcement had, only in cases where personal
service has been had upon the persons personally liable for the
mortgage indebtedness, unless they have entered their

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appearance in the foreclosure action.
(f) Satisfaction. Upon confirmation of the sale, the
judgment stands satisfied to the extent of the sale price less
expenses and costs. If the order confirming the sale includes a
deficiency judgment, the judgment shall become a lien in the
manner of any other judgment for the payment of money.
(g) The order confirming the sale shall include,
notwithstanding any previous orders awarding possession during
the pendency of the foreclosure, an award to the purchaser of
possession of the mortgaged real estate, as of the date 30 days
after the entry of the order, against the parties to the
foreclosure whose interests have been terminated.
An order of possession authorizing the removal of a person
from possession of the mortgaged real estate shall be entered
and enforced only against those persons personally named as
individuals in the complaint or the petition under subsection
(h) of Section 15-1701 and in the order of possession and shall
not be entered and enforced against any person who is only
generically described as an unknown owner or nonrecord claimant
or by another generic designation in the complaint.
Notwithstanding the preceding paragraph, the failure to
personally name, include, or seek an award of possession of the
mortgaged real estate against a person in the confirmation
order shall not abrogate any right that the purchaser may have
to possession of the mortgaged real estate and to maintain a
proceeding against that person for possession under Article 9

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of this Code or subsection (h) of Section 15-1701; and
possession against a person who (1) has not been personally
named as a party to the foreclosure and (2) has not been
provided an opportunity to be heard in the foreclosure
proceeding may be sought only by maintaining a proceeding under
Article 9 of this Code or subsection (h) of Section 15-1701.
(h) With respect to mortgaged real estate containing 5 or
more dwelling units, the order confirming the sale shall also
provide that (i) the mortgagor shall transfer to the purchaser
the security deposits, if any, that the mortgagor received to
secure payment of rent or to compensate for damage to the
mortgaged real estate from any current occupant of a dwelling
unit of the mortgaged real estate, as well as any statutory
interest that has not been paid to the occupant, and (ii) the
mortgagor shall provide an accounting of the security deposits
that are transferred, including the name and address of each
occupant for whom the mortgagor holds the deposit and the
amount of the deposit and any statutory interest.
(Source: P.A. 96-265, eff. 8-11-09; 96-856, eff. 3-1-10;
96-1245, eff. 7-23-10; 97-333, eff. 8-12-11; 97-575, eff.
8-26-11.)".