Bill Text: IL HB5735 | 2009-2010 | 96th General Assembly | Enrolled
Bill Title: Amends the Mortgage Foreclosure Article of the Code of Civil Procedure. Defines "loss mitigation" as a program or mechanism designed to maximize the opportunity for a mortgagor to retain ownership of the mortgaged real estate and cure delinquencies on his or her mortgage or for a mortgagor and mortgagee to mitigate losses that would result from foreclosure by using alternatives to foreclosure. Provides that a foreclosure complaint shall include a statement as to loss mitigation. Provides that a judgment of foreclosure shall include a finding by the court that the mortgagee has complied with applicable loss mitigation requirements or there are no applicable loss mitigation requirements, and provides that if the court finds that the mortgagee has not complied with applicable loss mitigation requirements, the court shall stay the matter until the court determines that the mortgagee has complied with those requirements. Adds failure by the mortgagee to fulfill applicable loss mitigation requirements as a condition under which the court shall not enter an order confirming a judicial sale.
Spectrum: Partisan Bill (Democrat 12-0)
Status: (Passed) 2010-07-23 - Public Act . . . . . . . . . 96-1245 [HB5735 Detail]
Download: Illinois-2009-HB5735-Enrolled.html
|
|||||||
| |||||||
| |||||||
1 | AN ACT concerning civil law.
| ||||||
2 | Be it enacted by the People of the State of Illinois,
| ||||||
3 | represented in the General Assembly:
| ||||||
4 | Section 5. The Code of Civil Procedure is amended by | ||||||
5 | changing Section 15-1508 as follows:
| ||||||
6 | (735 ILCS 5/15-1508) (from Ch. 110, par. 15-1508) | ||||||
7 | Sec. 15-1508. Report of Sale and Confirmation of Sale. | ||||||
8 | (a) Report. The person conducting the sale shall promptly | ||||||
9 | make a report to
the court, which report shall include a copy | ||||||
10 | of all receipts and, if any,
certificate of sale. | ||||||
11 | (b) Hearing. Upon motion and notice in accordance with | ||||||
12 | court rules
applicable to motions generally, which motion shall | ||||||
13 | not be made prior to
sale, the court shall conduct a hearing to
| ||||||
14 | confirm the sale. Unless the court finds that (i) a notice | ||||||
15 | required in
accordance with subsection (c) of Section 15-1507 | ||||||
16 | was not given, (ii) the
terms of sale were unconscionable, | ||||||
17 | (iii) the sale was conducted
fraudulently or (iv) that justice | ||||||
18 | was otherwise not done, the court shall
then enter an order | ||||||
19 | confirming the sale. The confirmation order shall include a | ||||||
20 | name, address, and telephone number of the holder of the | ||||||
21 | certificate of sale or deed issued pursuant to that certificate | ||||||
22 | or, if no certificate or deed was issued, the purchaser, whom a | ||||||
23 | municipality or county may contact with concerns about the real |
| |||||||
| |||||||
1 | estate. The confirmation order may
also: | ||||||
2 | (1) approve the mortgagee's fees and costs arising | ||||||
3 | between the entry of
the judgment of foreclosure and the | ||||||
4 | confirmation hearing, those costs and
fees to be allowable | ||||||
5 | to the same extent as provided in the note and mortgage
and | ||||||
6 | in Section 15-1504; | ||||||
7 | (2) provide for a personal judgment against any party | ||||||
8 | for a deficiency;
and | ||||||
9 | (3) determine the priority of the judgments of parties | ||||||
10 | who deferred proving
the priority pursuant to subsection | ||||||
11 | (h) of Section 15-1506, but
the court shall not
defer | ||||||
12 | confirming the sale pending the determination of such | ||||||
13 | priority. | ||||||
14 | (b-5) Notice with respect to residential real estate. With | ||||||
15 | respect to residential real estate, the notice required under | ||||||
16 | subsection (b) of this Section shall be sent to the mortgagor | ||||||
17 | even if the mortgagor has previously been held in default. In | ||||||
18 | the event the mortgagor has filed an appearance, the notice | ||||||
19 | shall be sent to the address indicated on the appearance. In | ||||||
20 | all other cases, the notice shall be sent to the mortgagor at | ||||||
21 | the common address of the foreclosed property. The notice shall | ||||||
22 | be sent by first class mail. Unless the right to possession has | ||||||
23 | been previously terminated by the court, the notice shall | ||||||
24 | include the following language in 12-point boldface | ||||||
25 | capitalized type: | ||||||
26 | IF YOU ARE THE MORTGAGOR (HOMEOWNER), YOU HAVE THE RIGHT TO |
| |||||||
| |||||||
1 | REMAIN IN POSSESSION FOR 30 DAYS AFTER ENTRY OF AN ORDER OF | ||||||
2 | POSSESSION, IN ACCORDANCE WITH SECTION 15-1701(c) OF THE | ||||||
3 | ILLINOIS MORTGAGE FORECLOSURE LAW. | ||||||
4 | (b-10) Notice of confirmation order sent to municipality or | ||||||
5 | county. A copy of the confirmation order required under | ||||||
6 | subsection (b) shall be sent to the municipality in which the | ||||||
7 | foreclosed property is located, or to the county within the | ||||||
8 | boundary of which the foreclosed property is located if the | ||||||
9 | foreclosed property is located in an unincorporated territory. | ||||||
10 | A municipality or county must clearly publish on its website a | ||||||
11 | single address to which such notice shall be sent. If a | ||||||
12 | municipality or county does not maintain a website, then the | ||||||
13 | municipality or county must publicly post in its main office a | ||||||
14 | single address to which such notice shall be sent. In the event | ||||||
15 | that a municipality or county has not complied with the | ||||||
16 | publication requirement in this subsection (b-10), then such | ||||||
17 | notice to the municipality or county shall be provided pursuant | ||||||
18 | to Section 2-211 of the Code of Civil Procedure. | ||||||
19 | (c) Failure to Give Notice. If any sale is held without | ||||||
20 | compliance with
subsection (c) of Section 15-1507 of this | ||||||
21 | Article, any party entitled to
the notice provided for in | ||||||
22 | paragraph (3) of that subsection
(c) who was not so notified | ||||||
23 | may, by motion supported by affidavit
made prior to | ||||||
24 | confirmation of such sale, ask the court which entered the
| ||||||
25 | judgment to set aside the sale. Any such party shall guarantee | ||||||
26 | or secure by bond a bid equal to the successful bid at the |
| |||||||
| |||||||
1 | prior sale, unless the party seeking to set aside the sale is | ||||||
2 | the mortgagor, the real estate sold at the sale is residential | ||||||
3 | real estate, and the mortgagor occupies the residential real | ||||||
4 | estate at the time the motion is filed. In that event, no | ||||||
5 | guarantee or bond shall be required of the mortgagor. Any
| ||||||
6 | subsequent sale is subject to the same notice requirement as | ||||||
7 | the original sale. | ||||||
8 | (d) Validity of Sale. Except as provided in subsection (c) | ||||||
9 | of Section
15-1508, no sale under this Article shall be held | ||||||
10 | invalid or be set aside
because of any defect in the notice | ||||||
11 | thereof or in the publication of the
same, or in the | ||||||
12 | proceedings of the officer conducting the sale, except upon
| ||||||
13 | good cause shown in a hearing pursuant to subsection (b) of | ||||||
14 | Section
15-1508. At any time after a sale has occurred, any | ||||||
15 | party entitled to
notice under paragraph (3) of subsection (c) | ||||||
16 | of Section 15-1507 may recover
from the mortgagee any damages | ||||||
17 | caused by the mortgagee's failure to comply
with such paragraph | ||||||
18 | (3). Any party who recovers damages in a judicial
proceeding | ||||||
19 | brought under this subsection may also recover from the
| ||||||
20 | mortgagee the reasonable expenses of litigation, including | ||||||
21 | reasonable attorney's fees. | ||||||
22 | (d-5) Making Home Affordable Program. The court that | ||||||
23 | entered the judgment shall set aside a sale held pursuant to | ||||||
24 | Section 15-1507, upon motion of the mortgagor at any time prior | ||||||
25 | to the confirmation of the sale, if the mortgagor proves by a | ||||||
26 | preponderance of the evidence that (i) the mortgagor has |
| |||||||
| |||||||
1 | applied for assistance under the Making Home Affordable Program | ||||||
2 | established by the United States Department of the Treasury | ||||||
3 | pursuant to the Emergency Economic Stabilization Act of 2008, | ||||||
4 | as amended by the American Recovery and Reinvestment Act of | ||||||
5 | 2009, and (ii) the mortgaged real estate was sold in material | ||||||
6 | violation of the program's requirements for proceeding to a | ||||||
7 | judicial sale. The provisions of this subsection (d-5), except | ||||||
8 | for this sentence, shall become inoperative on January 1, 2013 | ||||||
9 | for all actions filed under this Article after December 31, | ||||||
10 | 2012, in which the mortgagor did not apply for assistance under | ||||||
11 | the Making Home Affordable Program on or before December 31, | ||||||
12 | 2012. | ||||||
13 | (e) Deficiency Judgment. In any order confirming a sale | ||||||
14 | pursuant to the
judgment of foreclosure, the court shall also | ||||||
15 | enter a personal judgment
for deficiency against any party (i) | ||||||
16 | if otherwise authorized and (ii) to
the extent requested in the | ||||||
17 | complaint and proven upon presentation of the
report of sale in | ||||||
18 | accordance with Section 15-1508. Except as otherwise provided
| ||||||
19 | in this Article, a judgment may be entered for any balance of | ||||||
20 | money that
may be found due to the plaintiff, over and above | ||||||
21 | the proceeds of the sale
or sales, and enforcement may be had | ||||||
22 | for the collection of such balance,
the same as when the | ||||||
23 | judgment is solely for the payment of money. Such
judgment may | ||||||
24 | be entered, or enforcement had,
only in cases where personal | ||||||
25 | service has been had upon the
persons personally liable for the | ||||||
26 | mortgage indebtedness, unless they have
entered their |
| |||||||
| |||||||
1 | appearance in the foreclosure action. | ||||||
2 | (f) Satisfaction. Upon confirmation of the sale, the
| ||||||
3 | judgment stands satisfied to the extent of the sale price less | ||||||
4 | expenses and
costs. If the order confirming the sale includes a | ||||||
5 | deficiency judgment, the
judgment shall become a lien in the | ||||||
6 | manner of any other
judgment for the payment of money. | ||||||
7 | (g) The order confirming the sale shall include, | ||||||
8 | notwithstanding any
previous orders awarding possession during | ||||||
9 | the pendency of the foreclosure, an
award to the purchaser of | ||||||
10 | possession of the mortgaged real estate, as of the
date 30 days | ||||||
11 | after the entry of the order, against the
parties to the | ||||||
12 | foreclosure whose interests have been terminated. | ||||||
13 | An order of possession authorizing the removal of a person | ||||||
14 | from possession
of the mortgaged real estate shall be entered | ||||||
15 | and enforced only against those
persons personally
named as | ||||||
16 | individuals in the complaint or the petition under subsection | ||||||
17 | (h)
of Section 15-1701 and in the order of possession and shall
| ||||||
18 | not be entered and enforced against any person who is only | ||||||
19 | generically
described as an
unknown owner or nonrecord claimant | ||||||
20 | or by another generic designation in the
complaint. | ||||||
21 | Notwithstanding the preceding paragraph, the failure to | ||||||
22 | personally
name,
include, or seek an award of
possession of the | ||||||
23 | mortgaged real estate against a person in the
confirmation | ||||||
24 | order shall not abrogate any right that the purchaser may have | ||||||
25 | to
possession of the mortgaged real estate and to maintain a | ||||||
26 | proceeding against
that person for
possession under Article 9 |
| |||||||
| |||||||
1 | of this Code or subsection (h) of Section 15-1701;
and | ||||||
2 | possession against a person
who (1) has not been personally | ||||||
3 | named as a party to the
foreclosure and (2) has not been | ||||||
4 | provided an opportunity to be heard in the
foreclosure | ||||||
5 | proceeding may be sought only by maintaining a
proceeding under | ||||||
6 | Article 9 of this
Code or subsection (h) of Section 15-1701. | ||||||
7 | (Source: P.A. 95-826, eff. 8-14-08; 96-265, eff. 8-11-09; | ||||||
8 | 96-856, eff. 3-1-10.)
| ||||||
9 | Section 99. Effective date. This Act takes effect upon | ||||||
10 | becoming law.
|