Rep. Mary E. Flowers

Filed: 3/8/2013

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1 AMENDMENT TO HOUSE BILL 11

2 AMENDMENT NO. ______. Amend House Bill 11 as follows:

3 on page 3, by replacing line 14 with the following:

4 "changing Section 15-1508 and by adding Section 9-107.11 as

5 follows:"; and

6 on page 4, by replacing line 2 through line 24 with the

7 following:

8 "(735 ILCS 5/15-1508) (from Ch. 110, par. 15-1508)

9 Sec. 15-1508. Report of Sale and Confirmation of Sale.

10 (a) Report. The person conducting the sale shall promptly

11 make a report to the court, which report shall include a copy

12 of all receipts and, if any, certificate of sale.

13 (b) Hearing. Upon motion and notice in accordance with

14 court rules applicable to motions generally, which motion shall

15 not be made prior to sale, the court shall conduct a hearing to

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1 confirm the sale. Unless the court finds that (i) a notice

2 required in accordance with subsection (c) of Section 15-1507

3 was not given, (ii) the terms of sale were unconscionable,

4 (iii) the sale was conducted fraudulently, or (iv) justice was

5 otherwise not done, the court shall then enter an order

6 confirming the sale. The confirmation order shall include a

7 name, address, and telephone number of the holder of the

8 certificate of sale or deed issued pursuant to that certificate

9 or, if no certificate or deed was issued, the purchaser, whom a

10 municipality or county may contact with concerns about the real

11 estate. The confirmation order may also:

12 (1) approve the mortgagee's fees and costs arising

13 between the entry of the judgment of foreclosure and the

14 confirmation hearing, those costs and fees to be allowable

15 to the same extent as provided in the note and mortgage and

16 in Section 15-1504;

17 (2) provide for a personal judgment against any party

18 for a deficiency; and

19 (3) determine the priority of the judgments of parties

20 who deferred proving the priority pursuant to subsection

21 (h) of Section 15-1506, but the court shall not defer

22 confirming the sale pending the determination of such

23 priority.

24 (b-5) Notice with respect to residential real estate. With

25 respect to residential real estate, the notice required under

26 subsection (b) of this Section shall be sent to the mortgagor

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1 even if the mortgagor has previously been held in default. In

2 the event the mortgagor has filed an appearance, the notice

3 shall be sent to the address indicated on the appearance. In

4 all other cases, the notice shall be sent to the mortgagor at

5 the common address of the foreclosed property. The notice shall

6 be sent by first class mail. Unless the right to possession has

7 been previously terminated by the court, the notice shall

8 include the following language in 12-point boldface

9 capitalized type:

10 IF YOU ARE THE MORTGAGOR (HOMEOWNER), YOU HAVE THE RIGHT TO

11 REMAIN IN POSSESSION FOR 30 DAYS AFTER ENTRY OF AN ORDER OF

12 POSSESSION, IN ACCORDANCE WITH SECTION 15-1701(c) OF THE

13 ILLINOIS MORTGAGE FORECLOSURE LAW.

14 (b-10) Notice of confirmation order sent to municipality or

15 county. A copy of the confirmation order required under

16 subsection (b) shall be sent to the municipality in which the

17 foreclosed property is located, or to the county within the

18 boundary of which the foreclosed property is located if the

19 foreclosed property is located in an unincorporated territory.

20 A municipality or county must clearly publish on its website a

21 single address to which such notice shall be sent. If a

22 municipality or county does not maintain a website, then the

23 municipality or county must publicly post in its main office a

24 single address to which such notice shall be sent. In the event

25 that a municipality or county has not complied with the

26 publication requirement in this subsection (b-10), then such

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1 notice to the municipality or county shall be provided pursuant

2 to Section 2-211 of the Code of Civil Procedure.

3 (c) Failure to Give Notice. If any sale is held without

4 compliance with subsection (c) of Section 15-1507 of this

5 Article, any party entitled to the notice provided for in

6 paragraph (3) of that subsection (c) who was not so notified

7 may, by motion supported by affidavit made prior to

8 confirmation of such sale, ask the court which entered the

9 judgment to set aside the sale. Any such party shall guarantee

10 or secure by bond a bid equal to the successful bid at the

11 prior sale, unless the party seeking to set aside the sale is

12 the mortgagor, the real estate sold at the sale is residential

13 real estate, and the mortgagor occupies the residential real

14 estate at the time the motion is filed. In that event, no

15 guarantee or bond shall be required of the mortgagor. Any

16 subsequent sale is subject to the same notice requirement as

17 the original sale.

18 (d) Validity of Sale. Except as provided in subsection (c)

19 of Section 15-1508, no sale under this Article shall be held

20 invalid or be set aside because of any defect in the notice

21 thereof or in the publication of the same, or in the

22 proceedings of the officer conducting the sale, except upon

23 good cause shown in a hearing pursuant to subsection (b) of

24 Section 15-1508. At any time after a sale has occurred, any

25 party entitled to notice under paragraph (3) of subsection (c)

26 of Section 15-1507 may recover from the mortgagee any damages

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1 caused by the mortgagee's failure to comply with such paragraph

2 (3). Any party who recovers damages in a judicial proceeding

3 brought under this subsection may also recover from the

4 mortgagee the reasonable expenses of litigation, including

5 reasonable attorney's fees.

6 (d-5) Making Home Affordable Program. The court that

7 entered the judgment shall set aside a sale held pursuant to

8 Section 15-1507, upon motion of the mortgagor at any time prior

9 to the confirmation of the sale, if the mortgagor proves by a

10 preponderance of the evidence that (i) the mortgagor has

11 applied for assistance under the Making Home Affordable Program

12 established by the United States Department of the Treasury

13 pursuant to the Emergency Economic Stabilization Act of 2008,

14 as amended by the American Recovery and Reinvestment Act of

15 2009, and (ii) the mortgaged real estate was sold in material

16 violation of the program's requirements for proceeding to a

17 judicial sale. The provisions of this subsection (d-5), except

18 for this sentence, shall become inoperative on January 1, 2014

19 for all actions filed under this Article after December 31,

20 2013, in which the mortgagor did not apply for assistance under

21 the Making Home Affordable Program on or before December 31,

22 2013.

23 (d-10) Illinois Hardest Hit Program. The court that entered

24 the judgment shall set aside a sale held pursuant to Section

25 15-1507 of this Act, upon motion of the mortgagor at any time

26 prior to the confirmation of the sale, if the mortgagor proves

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1 by a preponderance of the evidence that (i) the mortgagor is

2 receiving assistance under the Illinois Hardest Hit Program as

3 created by 12 U.S.C. 5211 and 12 U.S.C. 5219, and administered

4 by the Illinois Housing Development Authority pursuant to the

5 Illinois Housing Development Act and (ii) the assistance

6 received under part (i) of this subsection has enabled the

7 mortgagor to reinstate the mortgage pursuant to Section 15-1602

8 of this Act and make continuing mortgage payments as available

9 under the Illinois Hardest Hit Program to avoid default.

10 Nothing in this subsection shall prohibit the mortgagee from

11 proceeding in the foreclosure action upon a subsequent default

12 of the mortgagor. Except for this sentence, this subsection is

13 inoperative on and after January 1, 2017 for all actions filed

14 under this Article after December 31, 2016 in which the

15 mortgagor did not begin receiving the assistance described in

16 this subsection under the Illinois Hardest Hit Program on or

17 before December 31, 2016.

18 (e) Deficiency Judgment. In any order confirming a sale

19 pursuant to the judgment of foreclosure, the court shall also

20 enter a personal judgment for deficiency against any party (i)

21 if otherwise authorized and (ii) to the extent requested in the

22 complaint and proven upon presentation of the report of sale in

23 accordance with Section 15-1508. Except as otherwise provided

24 in this Article, a judgment may be entered for any balance of

25 money that may be found due to the plaintiff, over and above

26 the proceeds of the sale or sales, and enforcement may be had

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1 for the collection of such balance, the same as when the

2 judgment is solely for the payment of money. Such judgment may

3 be entered, or enforcement had, only in cases where personal

4 service has been had upon the persons personally liable for the

5 mortgage indebtedness, unless they have entered their

6 appearance in the foreclosure action.

7 (f) Satisfaction. Upon confirmation of the sale, the

8 judgment stands satisfied to the extent of the sale price less

9 expenses and costs. If the order confirming the sale includes a

10 deficiency judgment, the judgment shall become a lien in the

11 manner of any other judgment for the payment of money.

12 (g) The order confirming the sale shall include,

13 notwithstanding any previous orders awarding possession during

14 the pendency of the foreclosure, an award to the purchaser of

15 possession of the mortgaged real estate, as of the date 30 days

16 after the entry of the order, against the parties to the

17 foreclosure whose interests have been terminated.

18 An order of possession authorizing the removal of a person

19 from possession of the mortgaged real estate shall be entered

20 and enforced only against those persons personally named as

21 individuals in the complaint or the petition under subsection

22 (h) of Section 15-1701 and in the order of possession and shall

23 not be entered and enforced against any person who is only

24 generically described as an unknown owner or nonrecord claimant

25 or by another generic designation in the complaint.

26 Notwithstanding the preceding paragraph, the failure to

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1 personally name, include, or seek an award of possession of the

2 mortgaged real estate against a person in the confirmation

3 order shall not abrogate any right that the purchaser may have

4 to possession of the mortgaged real estate and to maintain a

5 proceeding against that person for possession under Article 9

6 of this Code or subsection (h) of Section 15-1701; and

7 possession against a person who (1) has not been personally

8 named as a party to the foreclosure and (2) has not been

9 provided an opportunity to be heard in the foreclosure

10 proceeding may be sought only by maintaining a proceeding under

11 Article 9 of this Code or subsection (h) of Section 15-1701.

12 (h) With respect to mortgaged real estate containing 5 or

13 more dwelling units, the order confirming the sale shall also

14 provide that (i) the mortgagor shall transfer to the purchaser

15 the security deposits, if any, that the mortgagor received to

16 secure payment of rent or to compensate for damage to the

17 mortgaged real estate from any current occupant of a dwelling

18 unit of the mortgaged real estate, as well as any statutory

19 interest that has not been paid to the occupant, and (ii) the

20 mortgagor shall provide an accounting of the security deposits

21 that are transferred, including the name and address of each

22 occupant for whom the mortgagor holds the deposit and the

23 amount of the deposit and any statutory interest.

24 (Source: P.A. 96-265, eff. 8-11-09; 96-856, eff. 3-1-10;

25 96-1245, eff. 7-23-10; 97-333, eff. 8-12-11; 97-575, eff.

26 8-26-11; 97-1159, eff. 1-29-13.)".