Bill Text: IL SB2432 | 2017-2018 | 100th General Assembly | Chaptered
Bill Title: Amends the Code of Civil Procedure. Provides that a summons that otherwise complies with Supreme Court Rules and is properly served is not invalidated and the court's jurisdiction is not affected by an error in format. Provides that a summons is not defective if the named defendant is listed on a document attached to the summons. Provides that the changes to the Code of Civil Procedure are declarative of existing law set forth by the Illinois Supreme Court in Fleshner v. Copeland, 13 Ill.2d 72 (1958). Amends the Mortgage Rescue Fraud Act. Provides that it is a violation for a distressed property consultant to, among other things, enter into, enforce, or act upon any agreement with a foreclosure defendant, whether the foreclosure is completed or otherwise, if the agreement provides for a division of proceeds between the foreclosure defendant and the distressed property consultant derived from litigation related to the foreclosure. Effective immediately.
Spectrum: Bipartisan Bill
Status: (Passed) 2018-08-23 - Public Act . . . . . . . . . 100-1048 [SB2432 Detail]
Download: Illinois-2017-SB2432-Chaptered.html
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Public Act 100-1048 | ||||
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AN ACT concerning civil law.
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Be it enacted by the People of the State of Illinois,
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represented in the General Assembly:
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Section 5. The Code of Civil Procedure is amended by | ||||
changing Sections 2-201, 2-1401, 13-107, and 13-109 and by | ||||
adding Sections 13-107.1 and 13-109.1 as follows:
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(735 ILCS 5/2-201) (from Ch. 110, par. 2-201)
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Sec. 2-201. Commencement of actions - Forms of process. | ||||
(a) Every action, unless otherwise expressly provided by | ||||
statute,
shall be commenced by the filing of a complaint. The | ||||
clerk shall issue
summons upon request of the plaintiff. The | ||||
form and substance of the
summons, and of all other process, | ||||
and the issuance of alias process,
and the service of copies of | ||||
pleadings shall be according to
rules.
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(b) One or more duplicate original summonses may be issued, | ||||
marked
"First Duplicate," "Second Duplicate," etc., as the case | ||||
may be,
whenever it will facilitate the service of summons in | ||||
any one or more
counties, including the county of venue. | ||||
(c) A court's jurisdiction is not affected by a technical | ||||
error in format of a summons if the summons has been issued by | ||||
a clerk of the court, the person or entity to be served is | ||||
identified as a defendant on the summons, and the summons is | ||||
properly served. This subsection is declarative of existing |
law.
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(Source: P.A. 82-280 .)
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(735 ILCS 5/2-1401) (from Ch. 110, par. 2-1401)
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Sec. 2-1401. Relief from judgments.
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(a) Relief from final orders and judgments, after 30 days | ||
from the
entry thereof, may be had upon petition as provided in | ||
this Section.
Writs of error coram nobis and coram vobis, bills | ||
of review and bills
in the nature of bills of review are | ||
abolished. All relief heretofore
obtainable and the grounds for | ||
such relief heretofore available,
whether by any of the | ||
foregoing remedies or otherwise, shall be
available in every | ||
case, by proceedings hereunder, regardless of the
nature of the | ||
order or judgment from which relief is sought or of the
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proceedings in which it was entered. Except as provided in the | ||
Illinois Parentage Act of 2015, there shall be no distinction
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between actions and other proceedings, statutory or otherwise, | ||
as to
availability of relief, grounds for relief or the relief | ||
obtainable.
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(b) The petition must be filed in the same proceeding in | ||
which the
order or judgment was entered but is not a | ||
continuation thereof. The
petition must be supported by | ||
affidavit or other appropriate showing as
to matters not of | ||
record. A petition to reopen a foreclosure proceeding must | ||
include as parties to the petition, but is not limited to, all | ||
parties in the original action in addition to the current |
record title holders of the property, current occupants, and | ||
any individual or entity that had a recorded interest in the | ||
property before the filing of the petition. All parties to the | ||
petition shall be notified
as provided by rule.
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(b-5) A movant may present a meritorious claim under this | ||
Section if the allegations in the petition establish each of | ||
the following by a preponderance of the evidence: | ||
(1) the movant was convicted of a forcible felony; | ||
(2) the movant's participation in the offense was | ||
related to him or her previously having been a victim of | ||
domestic violence as perpetrated by an intimate partner; | ||
(3) no evidence of domestic violence against the movant | ||
was presented at the movant's sentencing hearing; | ||
(4) the movant was unaware of the mitigating nature of | ||
the evidence of the domestic violence at the time of | ||
sentencing and could not have learned of its significance | ||
sooner through diligence; and | ||
(5) the new evidence of domestic violence against the | ||
movant is material and noncumulative to other evidence | ||
offered at the sentencing hearing, and is of such a | ||
conclusive character that it would likely change the | ||
sentence imposed by the original trial court. | ||
Nothing in this subsection (b-5) shall prevent a movant | ||
from applying for any other relief under this Section or any | ||
other law otherwise available to him or her. | ||
As used in this subsection (b-5): |
"Domestic violence" means abuse as defined in Section | ||
103
of the Illinois Domestic Violence Act of 1986. | ||
"Forcible felony" has the meaning ascribed to the term | ||
in
Section 2-8 of the Criminal Code of 2012. | ||
"Intimate partner" means a spouse or former spouse, | ||
persons
who have or allegedly have had a child in common, | ||
or persons who
have or have had a dating or engagement | ||
relationship. | ||
(c) Except as provided in Section 20b of the Adoption Act | ||
and Section
2-32 of the Juvenile Court Act of 1987 or in a | ||
petition based
upon Section 116-3 of the Code of Criminal | ||
Procedure of 1963, the petition
must be filed not later than 2 | ||
years after the entry of the order or judgment.
Time during | ||
which the person seeking relief is under legal disability or
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duress or the ground for relief is fraudulently concealed shall | ||
be excluded
in computing the period of 2 years.
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(d) The filing of a petition under this Section does not | ||
affect the
order or judgment, or suspend its operation.
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(e) Unless lack of jurisdiction affirmatively appears from | ||
the
record proper, the vacation or modification of an order or | ||
judgment
pursuant to the provisions of this Section does not | ||
affect the right,
title or interest in or to any real or | ||
personal property of any person,
not a party to the original | ||
action, acquired for value after the entry
of the order or | ||
judgment but before the filing of the petition, nor
affect any | ||
right of any person not a party to the original action under
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any certificate of sale issued before the filing of the | ||
petition,
pursuant to a sale based on the order or judgment. | ||
When a petition is filed pursuant to this Section to reopen a | ||
foreclosure proceeding, notwithstanding the provisions of | ||
Section 15-1701 of this Code, the purchaser or successor | ||
purchaser of real property subject to a foreclosure sale who | ||
was not a party to the mortgage foreclosure proceedings is | ||
entitled to remain in possession of the property until the | ||
foreclosure action is defeated or the previously foreclosed | ||
defendant redeems from the foreclosure sale if the purchaser | ||
has been in possession of the property for more than 6 months.
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(f) Nothing contained in this Section affects any existing | ||
right to
relief from a void order or judgment, or to employ any | ||
existing method
to procure that relief.
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(Source: P.A. 99-85, eff. 1-1-16; 99-384, eff. 1-1-16; 99-642, | ||
eff. 7-28-16.)
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(735 ILCS 5/13-107) (from Ch. 110, par. 13-107)
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Sec. 13-107. Seven years with possession and record title. | ||
Except as provided in Section 13-107.1, actions Actions brought
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for the recovery of any lands, tenements or
hereditaments of | ||
which any person may be possessed by actual residence
thereon | ||
for 7 successive years, having a connected title, deductible of
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record, from this State or the United States, or from any | ||
public officer
or other person authorized by the laws of this | ||
State to sell such land
for the non-payment of taxes, or from |
any sheriff, marshal, or other
person authorized to sell such | ||
land for the enforcement of a judgment or
under any order or
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judgment of any court shall be brought within 7 years next | ||
after
possession is taken, but when the possessor
acquires such | ||
title after taking such possession, the limitation shall
begin | ||
to run from the time of acquiring title.
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(Source: P.A. 82-280.)
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(735 ILCS 5/13-107.1 new) | ||
Sec. 13-107.1. Two years with possession and record title | ||
derived from a judicial foreclosure sale. | ||
(a) Actions brought for the recovery of any lands, | ||
tenements, or hereditaments of which any person may be | ||
possessed for 2 successive years, having a connected title, | ||
deductible of record, as a purchaser at a judicial foreclosure | ||
sale, other than a mortgagee, who takes possession pursuant to | ||
a court order under the Illinois Mortgage Foreclosure Law, or a | ||
purchaser who acquires title from a mortgagee or a purchaser at | ||
a judicial foreclosure sale who received title and took | ||
possession pursuant to a court order, shall be brought within 2 | ||
years after possession is taken. When the purchaser acquires | ||
title and has taken possession, the limitation shall begin to | ||
run from the date a mortgagee or a purchaser at a judicial | ||
foreclosure sale takes possession pursuant to a court order | ||
under the Illinois Mortgage Foreclosure Law or Article IX of | ||
this Code. The vacation or modification, pursuant to the |
provisions of Section 2-1401, of an order or judgment entered | ||
in the judicial foreclosure does not affect the limitation in | ||
this Section. | ||
(b) This Section applies to actions filed on or after 180 | ||
days after the effective date of this amendatory Act of the | ||
100th General Assembly.
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(735 ILCS 5/13-109) (from Ch. 110, par. 13-109)
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Sec. 13-109. Payment of taxes with color of title. Except | ||
as provided in Section 13-109.1, every Every person in the
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actual possession of lands or tenements, under claim and color | ||
of title, made
in good faith, and who for 7 successive years | ||
continues in such possession, and
also, during such time, pays | ||
all taxes legally assessed on such lands or
tenements, shall be | ||
held and adjudged to be the legal owner of such lands or
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tenements, to the extent and according to the purport of his or | ||
her paper
title. All persons holding under such possession, by | ||
purchase, legacy or
descent, before such 7 years have expired, | ||
and who continue such possession,
and continue to pay the taxes | ||
as above set forth so as to complete the
possession and payment | ||
of taxes for the term above set forth, are entitled to
the | ||
benefit of this Section.
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(Source: P.A. 88-45.)
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(735 ILCS 5/13-109.1 new) | ||
Sec. 13-109.1. Payment of taxes with color of title derived |
from judicial foreclosure. Every person in the actual | ||
possession of lands or tenements, under claim and color of | ||
title, as a purchaser at a judicial foreclosure sale, other | ||
than a mortgagee, who takes possession pursuant to a court | ||
order under the Illinois Mortgage Foreclosure Law, or a | ||
purchaser who acquires title from a mortgagee or a purchaser at | ||
a judicial foreclosure sale who received title and took | ||
possession pursuant to such a court order, and who for 2 | ||
successive years continues in possession, and also, during such | ||
time, pays all taxes legally assessed on the lands or | ||
tenements, shall be held and adjudged to be the legal owner of | ||
the lands or tenements, to the extent and according to the | ||
purport of his or her paper title. All persons holding under | ||
such possession, by purchase, legacy, or descent, before such 2 | ||
years have expired, and who continue possession, and continue | ||
to pay the taxes as above set forth so as to complete the | ||
possession and payment of taxes for the term above set forth, | ||
are entitled to the benefit of this Section. The vacation or | ||
modification, pursuant to the provisions of Section 2-1401, of | ||
an order or judgment entered in the judicial foreclosure does | ||
not affect the limitation in this Section. | ||
This Section applies to actions filed on or after 180 days | ||
after the effective date of this amendatory Act of the 100th | ||
General Assembly.
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Section 10. The Mortgage Rescue Fraud Act is amended by |
changing Section 50 as follows:
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(765 ILCS 940/50)
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Sec. 50. Violations.
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(a) It is a violation for a distressed property consultant | ||
to:
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(1) claim, demand, charge, collect, or receive any | ||
compensation until after the distressed property | ||
consultant has fully performed each service the distressed | ||
property consultant contracted to perform or represented | ||
he or she would perform; | ||
(2) claim, demand, charge, collect, or receive any fee, | ||
interest, or any other compensation that does not comport | ||
with Section 70; | ||
(3) take a wage assignment, a lien of any type on real | ||
or personal property, or other security to secure the | ||
payment of compensation. Any such security is void and | ||
unenforceable; | ||
(4) receive any consideration from any third party in | ||
connection with services rendered to an owner unless the | ||
consideration is first fully disclosed to the owner; | ||
(5) acquire any interest, directly or indirectly, or by | ||
means of a subsidiary or affiliate in a distressed property | ||
from an owner with whom the distressed property consultant | ||
has contracted; | ||
(6) take any power of attorney from an owner for any |
purpose, except to inspect documents as provided by law; or
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(7) induce or attempt to induce an owner to enter a | ||
contract that does not comply in all respects with Sections | ||
10 and 15 of this Act ; or . | ||
(8) enter into, enforce, or act upon any agreement with | ||
a foreclosure defendant, whether the foreclosure is | ||
completed or otherwise, if the agreement provides for a | ||
division of proceeds between the foreclosure defendant and | ||
the distressed property consultant derived from litigation | ||
related to the foreclosure. | ||
(b) A distressed property purchaser, in the course of a | ||
distressed property conveyance, shall not: | ||
(1) enter into, or attempt to enter into, a distressed | ||
property conveyance unless the distressed property | ||
purchaser verifies and can demonstrate that the owner of | ||
the distressed property has a reasonable ability to pay for | ||
the subsequent conveyance of an interest back to the owner | ||
of the distressed property and to make monthly or any other | ||
required payments due prior to that time; | ||
(2) fail to make a payment to the owner of the | ||
distressed property at the time the title is conveyed so | ||
that the owner of the distressed property has received | ||
consideration in an amount of at least 82% of the | ||
property's fair market value, or, in the alternative, fail | ||
to pay the owner of the distressed property no more than | ||
the costs necessary to extinguish all of the existing |
obligations on the distressed property, as set forth in | ||
subdivision (b)(10) of Section 45, provided that the | ||
owner's costs to repurchase the distressed property | ||
pursuant to the terms of the distressed property conveyance | ||
contract do not exceed 125% of the distressed property | ||
purchaser's costs to purchase the property. If an owner is | ||
unable to repurchase the property pursuant to the terms of | ||
the distressed property conveyance contract, the | ||
distressed property purchaser shall not fail to make a | ||
payment to the owner of the distressed property so that the | ||
owner of the distressed property has received | ||
consideration in an amount of at least 82% of the | ||
property's fair market value at the time of conveyance or | ||
at the expiration of the owner's option to repurchase. | ||
(3) enter into repurchase or lease terms as part of the | ||
subsequent conveyance that are unfair or commercially | ||
unreasonable, or engage in any other unfair conduct; | ||
(4) represent, directly or indirectly, that the | ||
distressed property purchaser is acting as an advisor or a | ||
consultant, or in any other manner represent that the | ||
distressed property purchaser is acting on behalf of the | ||
homeowner, or the distressed property purchaser is | ||
assisting the owner of the distressed property to "save the | ||
house", "buy time", or do anything couched in substantially | ||
similar language; | ||
(5) misrepresent the distressed property purchaser's |
status as to licensure or certification; | ||
(6) do any of the following until after the time during | ||
which the owner of a distressed property may cancel the | ||
transaction: | ||
(A) accept from the owner of the distressed | ||
property an execution of any instrument of conveyance | ||
of any interest in the distressed property; | ||
(B) induce the owner of the distressed property to | ||
execute an instrument of conveyance of any interest in | ||
the distressed property; or
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(C) record with the county recorder of deeds any | ||
document signed by the owner of the distressed | ||
property, including but not limited to any instrument | ||
of conveyance;
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(7) fail to reconvey title to the distressed property | ||
when the terms of the conveyance contract have been | ||
fulfilled; | ||
(8) induce the owner of the distressed property to | ||
execute a quit claim deed when entering into a distressed | ||
property conveyance; | ||
(9) enter into a distressed property conveyance where | ||
any party to the transaction is represented by power of | ||
attorney; | ||
(10) fail to extinguish all liens encumbering the | ||
distressed property, immediately following the conveyance | ||
of the distressed property, or fail to assume all liability |
with respect to the lien in foreclosure and prior liens | ||
that will not be extinguished by such foreclosure, which | ||
assumption shall be accomplished without violations of the | ||
terms and conditions of the lien being assumed. Nothing | ||
herein shall preclude a lender from enforcing any provision | ||
in a contract that is not otherwise prohibited by law; | ||
(11) fail to complete a distressed property conveyance | ||
before a notary in the offices of a title company licensed | ||
by the Department of Financial and Professional | ||
Regulation, before an agent of such a title company, a | ||
notary in the office of a bank, or a licensed attorney | ||
where the notary is employed; or | ||
(12) cause the property to be conveyed or encumbered | ||
without the knowledge or permission of the distressed | ||
property owner, or in any way frustrate the ability of the | ||
distressed property owner to complete the conveyance back | ||
to the distressed property owner. | ||
(c) There is a rebuttable presumption that an appraisal by | ||
a person licensed or certified by an agency of this State or | ||
the federal government is an accurate determination of the fair | ||
market value of the property. | ||
(d) "Consideration" in item (2) of subsection (b) means any | ||
payment or thing of value provided to the owner of the | ||
distressed property, including reasonable costs paid to | ||
independent third parties necessary to complete the distressed | ||
property conveyance or payment of money to satisfy a debt or |
legal obligation of the owner of the distressed property. | ||
"Consideration" shall not include amounts imputed as a | ||
downpayment or fee to the distressed property purchaser, or a | ||
person acting in participation with the distressed property | ||
purchaser. | ||
(e) An evaluation of "reasonable ability to pay" under | ||
subsection (b)(1) of this Section 50 shall include debt to | ||
income ratio, fair market value of the distressed property, and | ||
the distressed property owner's payment history. There is a | ||
rebuttable presumption that the distressed property purchaser | ||
has not verified reasonable payment ability if the distressed | ||
property purchaser has not obtained documents of assets, | ||
liabilities, and income, other than a statement by the owner of | ||
the distressed property.
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(Source: P.A. 94-822, eff. 1-1-07; 95-1047, eff. 4-6-09.)
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Section 97. Severability. The provisions of this Act are | ||
severable under Section 1.31 of the Statute on Statutes.
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Section 99. Effective date. This Act takes effect upon | ||
becoming law.
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