Bill Text: IL SB0735 | 2015-2016 | 99th General Assembly | Engrossed
NOTE: There are more recent revisions of this legislation. Read Latest Draft
Bill Title: Amends the Mortgage Foreclosure Article of the Code of Civil Procedure. In provisions outlining under which circumstances the court is not required to appoint a special representative for a deceased mortgagor for the purpose of defending the action, adds situations where there is a: (i) beneficiary under a transfer on death instrument; (ii) person or entity that was conveyed title to the property by the deceased mortgagor prior to death; (iii) person or entity that was conveyed title to the property under the administration of the deceased's estate; or (iv) trust that was conveyed title to the property.
Spectrum: Partisan Bill (Democrat 3-0)
Status: (Passed) 2015-07-10 - Public Act . . . . . . . . . 99-0024 [SB0735 Detail]
Download: Illinois-2015-SB0735-Engrossed.html
Bill Title: Amends the Mortgage Foreclosure Article of the Code of Civil Procedure. In provisions outlining under which circumstances the court is not required to appoint a special representative for a deceased mortgagor for the purpose of defending the action, adds situations where there is a: (i) beneficiary under a transfer on death instrument; (ii) person or entity that was conveyed title to the property by the deceased mortgagor prior to death; (iii) person or entity that was conveyed title to the property under the administration of the deceased's estate; or (iv) trust that was conveyed title to the property.
Spectrum: Partisan Bill (Democrat 3-0)
Status: (Passed) 2015-07-10 - Public Act . . . . . . . . . 99-0024 [SB0735 Detail]
Download: Illinois-2015-SB0735-Engrossed.html
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1 | AN ACT concerning civil law.
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2 | Be it enacted by the People of the State of Illinois,
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3 | represented in the General Assembly:
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4 | Section 5. The Code of Civil Procedure is amended by | ||||||
5 | changing Section 15-1501 as follows:
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6 | (735 ILCS 5/15-1501) (from Ch. 110, par. 15-1501)
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7 | Sec. 15-1501. Parties.
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8 | (a) Necessary Parties. For the purposes of
Section 2-405 of | ||||||
9 | the Code of Civil Procedure, only (i) the mortgagor and (ii)
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10 | other
persons (but not guarantors)
who owe payment of | ||||||
11 | indebtedness or the performance of other
obligations secured by | ||||||
12 | the mortgage and against whom personal liability is
asserted | ||||||
13 | shall be necessary parties defendant in
a foreclosure. The | ||||||
14 | court may proceed to adjudicate their respective
interests, but | ||||||
15 | any disposition of the mortgaged real estate shall be
subject | ||||||
16 | to (i) the interests of all other persons not made a party or | ||||||
17 | (ii)
interests in the mortgaged real estate not otherwise | ||||||
18 | barred or
terminated in the foreclosure.
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19 | (b) Permissible Parties. Any party may join as a party any | ||||||
20 | other
person, although such person is not a necessary party, | ||||||
21 | including, without
limitation, the following:
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22 | (1) All persons having a possessory interest in the | ||||||
23 | mortgaged real estate;
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1 | (2) A mortgagor's spouse who has waived the right of | ||||||
2 | homestead;
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3 | (3) A trustee holding an interest in the mortgaged real | ||||||
4 | estate or a
beneficiary of such trust;
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5 | (4) The owner or holder of a note secured by a trust | ||||||
6 | deed;
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7 | (5) Guarantors, provided that in a foreclosure any such | ||||||
8 | guarantor also
may be joined as a party in a separate count | ||||||
9 | in an action on such guarantor's guaranty;
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10 | (6) The State of Illinois or any political subdivision | ||||||
11 | thereof, where a
foreclosure involves real estate upon | ||||||
12 | which the State or such subdivision
has an interest or | ||||||
13 | claim for lien, in which case "An Act in relation to
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14 | immunity for the State of Illinois", approved December 10,
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15 | 1971, as amended, shall not be effective;
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16 | (7) The United States of America or any agency or | ||||||
17 | department thereof
where a foreclosure involves real | ||||||
18 | estate upon which the United States of
America or such | ||||||
19 | agency or department has an interest or a claim for lien;
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20 | (8) Any assignee of leases or rents relating to the | ||||||
21 | mortgaged real estate;
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22 | (9) Any person who may have a lien under the Mechanic's | ||||||
23 | Lien Act; and
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24 | (10) Any other mortgagee or claimant.
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25 | (c) Unknown Owners. Any unknown owner may be made a party | ||||||
26 | in accordance
with Section 2-413 of the Code of Civil |
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1 | Procedure.
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2 | (d) Right to Become Party. Any person who has or claims an | ||||||
3 | interest in
real estate which is the subject of a foreclosure | ||||||
4 | or an interest in any
debt secured by the mortgage shall have | ||||||
5 | an unconditional
right to appear and become a party in such | ||||||
6 | foreclosure in accordance with
subsection (e) of Section | ||||||
7 | 15-1501, provided, that neither such
appearance by a lessee
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8 | whose interest in the real estate is subordinate to the | ||||||
9 | interest being
foreclosed, nor the act of making such lessee a | ||||||
10 | party,
shall result in the termination of the lessee's lease | ||||||
11 | unless the
termination of the lease or lessee's interest in the | ||||||
12 | mortgaged real estate is
specifically
ordered by the court in | ||||||
13 | the judgment of foreclosure.
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14 | (e) Time of Intervention.
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15 | (1) Of Right. A person not a party, other
than a | ||||||
16 | nonrecord claimant given notice in accordance with | ||||||
17 | paragraph (2) of
subsection (c) of Section 15-1502,
who has | ||||||
18 | or claims an interest in the mortgaged real estate may | ||||||
19 | appear and
become a party at any time prior to the entry of | ||||||
20 | judgment of foreclosure.
A nonrecord claimant given such | ||||||
21 | notice may appear and become a party at any
time prior to | ||||||
22 | the earlier of (i) the entry of a judgment of
foreclosure | ||||||
23 | or (ii) 30 days after such notice is given.
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24 | (2) In Court's Discretion. After the right to intervene | ||||||
25 | expires and prior
to the sale in accordance with the | ||||||
26 | judgment, the court may permit a person
who has or claims |
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1 | an interest in the mortgaged real estate to appear and
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2 | become a party on such terms as the court may deem just.
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3 | (3) Later Right. After the sale of the mortgaged real | ||||||
4 | estate in
accordance with a judgment of foreclosure and | ||||||
5 | prior to the entry of an
order confirming the sale, a | ||||||
6 | person who has or claims an interest in the
mortgaged real | ||||||
7 | estate, may appear and become a party, on such terms as the
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8 | court may deem
just, for the sole purpose of claiming an | ||||||
9 | interest in the proceeds of sale.
Any such party shall be | ||||||
10 | deemed a party from the commencement of the
foreclosure, | ||||||
11 | and the interest of such party in the real estate shall be
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12 | subject to all orders and judgments entered in the | ||||||
13 | foreclosure.
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14 | (4) Termination of Interest. Except as provided in | ||||||
15 | Section 15-1501(d),
the interest of any person who is | ||||||
16 | allowed to appear and become a party
shall be terminated, | ||||||
17 | and the interest of such party in the real estate
shall | ||||||
18 | attach to the proceeds of sale.
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19 | (f) Separate Actions. Any mortgagee or claimant, other than | ||||||
20 | the
mortgagee who commences a foreclosure, whose interest in | ||||||
21 | the mortgaged real
estate is recorded prior to the filing of a | ||||||
22 | notice of foreclosure in
accordance with this Article but who | ||||||
23 | is not made a party to such
foreclosure, shall not be barred | ||||||
24 | from filing a separate foreclosure (i) as
an intervening | ||||||
25 | defendant or counterclaimant in accordance with subsections
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26 | (d) and (e) of Section
15-1501 if a judgment of foreclosure has |
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1 | not been entered
in the original foreclosure or (ii) in a new | ||||||
2 | foreclosure subsequent to the
entry of a judgment of | ||||||
3 | foreclosure in the original foreclosure.
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4 | (g) Service on the State of Illinois. When making the State | ||||||
5 | of
Illinois a party to a foreclosure, summons may be served by | ||||||
6 | sending, by
registered or certified mail, a copy of the summons | ||||||
7 | and the complaint to
the Attorney General. The complaint shall | ||||||
8 | set forth with particularity the
nature of the interest or lien | ||||||
9 | of the State of Illinois. If such interest
or lien appears in a | ||||||
10 | recorded instrument, the complaint must state the
document | ||||||
11 | number of the instrument and the office wherein it was | ||||||
12 | recorded.
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13 | (h) Special Representatives. With respect to the property | ||||||
14 | that is the subject of the action, the The court is not | ||||||
15 | required to appoint a special representative for a deceased | ||||||
16 | mortgagor for the purpose of defending the action, if there is | ||||||
17 | a : | ||||||
18 | (1) living person , persons, or entity that holds a 100% | ||||||
19 | interest in the property that is the subject of the action , | ||||||
20 | by virtue of being the deceased mortgagor's surviving joint | ||||||
21 | tenant or surviving tenant by the entirety ; | ||||||
22 | (2) beneficiary under a transfer on death instrument | ||||||
23 | executed by the deceased mortgagor prior to death; | ||||||
24 | (3) person, persons, or entity that was conveyed title | ||||||
25 | to the property by the deceased mortgagor prior to death; | ||||||
26 | (4) person, persons, or entity that was conveyed title |
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1 | to the property from the deceased mortgagor's probate | ||||||
2 | estate by the administrator or executor; or | ||||||
3 | (5) trust that was conveyed title to the property by: | ||||||
4 | (A) the deceased mortgagor prior to death; or | ||||||
5 | (B) any other person, persons, or entity that is | ||||||
6 | identified in this subsection (h) as being exempt from | ||||||
7 | the requirement to appoint a special representative . | ||||||
8 | In no event may a deficiency judgment be sought or entered | ||||||
9 | in the foreclosure case pursuant to subsection (e) of Section | ||||||
10 | 15-1508 against a deceased mortgagor. | ||||||
11 | (Source: P.A. 98-514, eff. 11-19-13.)
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