Bill Text: IL HB1698 | 2011-2012 | 97th General Assembly | Amended
NOTE: There are more recent revisions of this legislation. Read Latest Draft
Bill Title: Amends the Adoption Act. Provides a form of waiver of parental rights to be used by a putative or legal father of a born or unborn child.
Spectrum: Partisan Bill (Democrat 12-0)
Status: (Passed) 2011-06-28 - Public Act . . . . . . . . . 97-0018 [HB1698 Detail]
Download: Illinois-2011-HB1698-Amended.html
Bill Title: Amends the Adoption Act. Provides a form of waiver of parental rights to be used by a putative or legal father of a born or unborn child.
Spectrum: Partisan Bill (Democrat 12-0)
Status: (Passed) 2011-06-28 - Public Act . . . . . . . . . 97-0018 [HB1698 Detail]
Download: Illinois-2011-HB1698-Amended.html
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1 | AMENDMENT TO HOUSE BILL 1698
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2 | AMENDMENT NO. ______. Amend House Bill 1698 by replacing | ||||||
3 | everything after the enacting clause with the following:
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4 | "Section 5. The Code of Civil Procedure is amended by | ||||||
5 | changing Sections 15-1504, 15-1504.1, 15-1507.1, 15-1508, | ||||||
6 | 15-1603, and 15-1701 and by adding Sections 15-1200.5 and | ||||||
7 | 15-1505.8 as follows:
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8 | (735 ILCS 5/15-1200.5 new) | ||||||
9 | Sec. 15-1200.5. Abandoned residential property. "Abandoned | ||||||
10 | residential property" means residential real estate that upon | ||||||
11 | inspection is not occupied by any mortgagor or bona fide tenant | ||||||
12 | as a principal residence and as to which at least 2 of the | ||||||
13 | following circumstances exist: | ||||||
14 | (1) the property has had at least one uncorrected | ||||||
15 | municipal or county building, housing, or similar code | ||||||
16 | violation in the preceding year, or has been declared unfit |
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1 | for occupancy and ordered to remain vacant and unoccupied | ||||||
2 | by a municipal or county authority; | ||||||
3 | (2) construction was initiated on the property and | ||||||
4 | discontinued prior to completion, and there is no valid | ||||||
5 | municipal or county construction or building permit posted | ||||||
6 | on the property; | ||||||
7 | (3) gas, electric, or water utility service to the | ||||||
8 | property has been terminated; | ||||||
9 | (4) windows or entrances to the property are boarded up | ||||||
10 | or closed off, or multiple window panes are broken and | ||||||
11 | unrepaired; | ||||||
12 | (5) doors to the property are smashed through, broken | ||||||
13 | off, unhinged, or continuously unlocked; | ||||||
14 | (6) rubbish, trash, garbage, debris, graffiti, | ||||||
15 | neglected weeds, grass, trees, bushes, or other nuisance | ||||||
16 | greenery, or other hazardous, noxious, or unhealthy | ||||||
17 | substances or materials, have accumulated on the property; | ||||||
18 | (7) the police or the sheriff's office has received at | ||||||
19 | least one report of trespassing, vandalism, or other | ||||||
20 | illegal activity being committed on the property in the | ||||||
21 | preceding year; | ||||||
22 | (8) pursuant to the terms of the mortgage, the | ||||||
23 | mortgagee has posted a pre-foreclosure notice of its intent | ||||||
24 | to enter the property for purposes of maintaining or | ||||||
25 | repairing it, and upon entering the property following the | ||||||
26 | posting of the notice and a lack of response by the |
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1 | mortgagor, has found the property unoccupied; | ||||||
2 | (9) the mortgagee or an interested or authorized party | ||||||
3 | has secured or winterized the property due to the property | ||||||
4 | being deemed vacant and unprotected or in danger of | ||||||
5 | freezing; | ||||||
6 | (10) any mortgagor, or his or her personal | ||||||
7 | representatives or assigns, has issued an oral or written | ||||||
8 | statement expressing the clear intent of all mortgagors to | ||||||
9 | abandon the property; | ||||||
10 | (11) any property manager or other person conducting an | ||||||
11 | inspection of the property has issued an oral or written | ||||||
12 | statement indicating all mortgagors or bona fide tenants | ||||||
13 | have moved out and vacated the property; | ||||||
14 | (12) the property is a vacant lot; | ||||||
15 | (13) the property is deteriorating and is either below | ||||||
16 | or is in imminent danger of falling below minimum municipal | ||||||
17 | or county government standards for public safety and | ||||||
18 | sanitation; or | ||||||
19 | (14) any other reasonable indicia of abandonment that | ||||||
20 | is not otherwise included in this Section.
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21 | (735 ILCS 5/15-1504) (from Ch. 110, par. 15-1504)
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22 | Sec. 15-1504. Pleadings and service.
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23 | (a) Form of Complaint. A foreclosure complaint
may be in | ||||||
24 | substantially the following form:
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25 | (1) Plaintiff files this complaint to foreclose the |
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1 | mortgage (or other
conveyance in the nature of a mortgage) | ||||||
2 | (hereinafter called "mortgage")
hereinafter described and | ||||||
3 | joins the following person as defendants: (here
insert | ||||||
4 | names of all defendants).
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5 | (2) Attached as Exhibit "A" is a copy of the mortgage | ||||||
6 | and as Exhibit "B"
is a copy of the note secured thereby.
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7 | (3) Information concerning mortgage:
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8 | (A) Nature of instrument: (here insert whether a | ||||||
9 | mortgage, trust deed or
other instrument in the nature | ||||||
10 | of a mortgage, etc.)
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11 | (B) Date of mortgage:
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12 | (C) Name of mortgagor:
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13 | (D) Name of mortgagee:
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14 | (E) Date and place of recording:
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15 | (F) Identification of recording: (here insert book | ||||||
16 | and page number or document number)
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17 | (G) Interest subject to the mortgage: (here insert | ||||||
18 | whether fee simple,
estate for years, undivided | ||||||
19 | interest, etc.)
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20 | (H) Amount of original indebtedness, including | ||||||
21 | subsequent advances made
under the mortgage:
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22 | (I) Both the legal description of the mortgaged | ||||||
23 | real estate and the
common address or other information | ||||||
24 | sufficient to identify it with reasonable certainty:
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25 | (J) Statement as to defaults, including, but not | ||||||
26 | necessarily
limited to, date of default, current |
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1 | unpaid principal balance, per diem
interest accruing, | ||||||
2 | and any further information concerning the default:
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3 | (K) Name of present owner of the real estate:
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4 | (L) Names of other persons who are joined as | ||||||
5 | defendants and whose
interest in or lien on the | ||||||
6 | mortgaged real estate is sought to be terminated:
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7 | (M) Names of defendants claimed to be personally | ||||||
8 | liable
for deficiency, if any:
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9 | (N) Capacity in which plaintiff brings this | ||||||
10 | foreclosure (here indicate
whether plaintiff is the | ||||||
11 | legal holder of the indebtedness, a pledgee, an
agent, | ||||||
12 | the trustee under a trust deed or otherwise, as | ||||||
13 | appropriate):
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14 | (O) Facts in support of redemption period shorter | ||||||
15 | than
the longer of (i) 7 months from the date the | ||||||
16 | mortgagor or, if more than
one, all the mortgagors (I) | ||||||
17 | have been served with summons or by publication
or (II) | ||||||
18 | have otherwise submitted to the jurisdiction of the | ||||||
19 | court, or (ii)
3 months from the entry of the judgment | ||||||
20 | of foreclosure, if sought (here
indicate whether based | ||||||
21 | upon the real estate not being residential ,
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22 | abandonment, or real estate value less than 90%
of | ||||||
23 | amount owed, etc.):
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24 | (P) Statement that the right of redemption has been | ||||||
25 | waived by all
owners of redemption, if applicable:
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26 | (Q) Facts in support of request for attorneys' fees |
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1 | and of costs and
expenses, if applicable:
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2 | (R) Facts in support of a request for appointment | ||||||
3 | of mortgagee in
possession or for appointment of | ||||||
4 | receiver, and identity of such receiver, if
sought:
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5 | (S) Offer to mortgagor in accordance with Section | ||||||
6 | 15-1402 to accept
title to the real estate in | ||||||
7 | satisfaction of all indebtedness and
obligations | ||||||
8 | secured by the mortgage without judicial sale, if | ||||||
9 | sought:
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10 | (T) Name or names of defendants whose right to
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11 | possess the mortgaged real estate, after the | ||||||
12 | confirmation of a foreclosure
sale, is
sought to be | ||||||
13 | terminated and, if not elsewhere stated, the facts in | ||||||
14 | support
thereof:
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15 | REQUEST FOR RELIEF
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16 | Plaintiff requests:
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17 | (i) A judgment of foreclosure and sale.
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18 | (ii) An order granting a shortened redemption period, | ||||||
19 | if sought.
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20 | (iii) A personal judgment for a deficiency, if sought.
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21 | (iv) An order granting possession, if sought.
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22 | (v) An order placing the mortgagee in possession or | ||||||
23 | appointing a receiver,
if sought.
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24 | (vi) A judgment for attorneys' fees, costs and | ||||||
25 | expenses, if sought.
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1 | (b) Required Information. A foreclosure complaint need | ||||||
2 | contain only such
statements and requests called for by the | ||||||
3 | form set forth in subsection (a) of
Section
15-1504 as may be | ||||||
4 | appropriate for the relief sought. Such complaint may
be filed | ||||||
5 | as a counterclaim, may be joined with other counts or may | ||||||
6 | include
in the same count additional matters or a request for | ||||||
7 | any additional
relief permitted by Article
II of the Code of | ||||||
8 | Civil Procedure.
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9 | (c) Allegations. The statements contained in a complaint in | ||||||
10 | the form
set forth in subsection (a) of Section 15-1504 are | ||||||
11 | deemed and construed to include
allegations as follows:
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12 | (1) on the date indicated the obligor of the | ||||||
13 | indebtedness or other
obligations secured by the mortgage | ||||||
14 | was justly indebted in the amount of
the indicated original | ||||||
15 | indebtedness to the original mortgagee or payee of
the | ||||||
16 | mortgage note;
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17 | (2) that the exhibits attached are true and correct | ||||||
18 | copies of the
mortgage and note and are incorporated and | ||||||
19 | made a part of the complaint by
express reference;
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20 | (3) that the mortgagor was at the date indicated an | ||||||
21 | owner of the
interest in the real estate described in the | ||||||
22 | complaint and that as of that
date made, executed and | ||||||
23 | delivered the mortgage as security for the note or
other | ||||||
24 | obligations;
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25 | (4) that the mortgage was recorded in the county in | ||||||
26 | which the mortgaged
real estate is located, on the date |
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1 | indicated, in the book and page or as
the document number | ||||||
2 | indicated;
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3 | (5) that defaults occurred as indicated;
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4 | (6) that at the time of the filing of the complaint the | ||||||
5 | persons named as
present owners are the owners of the | ||||||
6 | indicated interests in and to the real
estate described;
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7 | (7) that the mortgage constitutes a valid, prior and | ||||||
8 | paramount lien upon
the indicated interest in the mortgaged | ||||||
9 | real estate, which lien is prior and
superior to the right, | ||||||
10 | title, interest, claim or lien of all parties and
nonrecord | ||||||
11 | claimants whose interests in the mortgaged real estate are
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12 | sought to be terminated;
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13 | (8) that by reason of the defaults alleged, if the | ||||||
14 | indebtedness has not
matured by its terms, the same has | ||||||
15 | become due by the exercise, by the
plaintiff or other | ||||||
16 | persons having such power, of a right or power to
declare | ||||||
17 | immediately due and payable the whole of all indebtedness | ||||||
18 | secured
by the mortgage;
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19 | (9) that any and all notices of default or election to | ||||||
20 | declare the
indebtedness due and payable or other notices | ||||||
21 | required to be given have
been duly and properly given;
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22 | (10) that any and all periods of grace or other period | ||||||
23 | of time allowed
for the performance of the covenants or | ||||||
24 | conditions claimed to be breached
or for the curing of any | ||||||
25 | breaches have expired;
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26 | (11) that the amounts indicated in the statement
in the |
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1 | complaint are correctly stated and
if such statement | ||||||
2 | indicates any advances made or to be made by the
plaintiff | ||||||
3 | or owner of the mortgage indebtedness, that such advances | ||||||
4 | were,
in fact, made or will be
required to be made, and | ||||||
5 | under and by virtue of the mortgage the same
constitute | ||||||
6 | additional indebtedness secured by the mortgage; and
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7 | (12) that, upon confirmation of the sale, the holder of | ||||||
8 | the certificate
of sale or deed issued pursuant to that | ||||||
9 | certificate or, if no certificate or
deed was issued, the | ||||||
10 | purchaser at the sale will be entitled to full possession
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11 | of the mortgaged real estate against the parties
named in | ||||||
12 | clause (T) of
paragraph (3) of subsection (a) of Section | ||||||
13 | 15-1504 or elsewhere to the same
effect;
the omission of | ||||||
14 | any
party indicates that plaintiff will not seek a | ||||||
15 | possessory order in the order
confirming sale unless the | ||||||
16 | request is subsequently made under subsection (h) of
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17 | Section 15-1701 or by separate action under Article 9 of | ||||||
18 | this Code.
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19 | (d) Request for Fees and Costs. A statement in the | ||||||
20 | complaint that
plaintiff seeks the inclusion of attorneys' fees | ||||||
21 | and of costs and expenses
shall be deemed and construed to | ||||||
22 | include allegations that:
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23 | (1) plaintiff has been compelled to employ and retain | ||||||
24 | attorneys to
prepare and file the complaint and to | ||||||
25 | represent and advise the plaintiff in
the foreclosure of | ||||||
26 | the mortgage and the plaintiff will thereby become
liable |
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1 | for the usual, reasonable and customary fees of the | ||||||
2 | attorneys in
that behalf;
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3 | (2) that the plaintiff has been compelled to advance or | ||||||
4 | will be
compelled to advance, various sums of money in | ||||||
5 | payment of costs, fees,
expenses and disbursements | ||||||
6 | incurred in connection with the foreclosure,
including, | ||||||
7 | without limiting the generality of the foregoing, filing | ||||||
8 | fees,
stenographer's fees, witness fees, costs of | ||||||
9 | publication, costs of procuring
and preparing documentary | ||||||
10 | evidence and costs of procuring
abstracts of title, Torrens | ||||||
11 | certificates, foreclosure minutes and a title
insurance | ||||||
12 | policy;
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13 | (3) that under the terms of the mortgage, all such | ||||||
14 | advances, costs,
attorneys' fees and other fees, expenses | ||||||
15 | and disbursements are made a lien
upon the mortgaged real | ||||||
16 | estate and the plaintiff is entitled to recover all
such | ||||||
17 | advances, costs, attorneys' fees, expenses and | ||||||
18 | disbursements, together
with interest on all advances at | ||||||
19 | the rate provided in the mortgage, or, if
no rate is | ||||||
20 | provided therein, at the statutory judgment rate, from the
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21 | date on which such advances are made;
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22 | (4) that in order to protect the lien of the mortgage, | ||||||
23 | it may become
necessary for plaintiff to pay taxes and | ||||||
24 | assessments which have been or may
be levied upon the | ||||||
25 | mortgaged real estate;
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26 | (5) that in order to protect and preserve the mortgaged |
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1 | real estate, it
may also become necessary for the plaintiff | ||||||
2 | to pay liability (protecting
mortgagor and mortgagee), | ||||||
3 | fire and other hazard
insurance premiums on the mortgaged | ||||||
4 | real estate, make such repairs
to the mortgaged real
estate | ||||||
5 | as may reasonably be deemed necessary for the proper | ||||||
6 | preservation
thereof, advance for costs to inspect the | ||||||
7 | mortgaged real estate or to
appraise it, or both, and | ||||||
8 | advance for premiums for pre-existing private or
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9 | governmental mortgage insurance to the extent required | ||||||
10 | after a foreclosure
is commenced in order to keep such | ||||||
11 | insurance in force; and
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12 | (6) that under the terms of the mortgage, any money so | ||||||
13 | paid or expended
will become an additional indebtedness | ||||||
14 | secured by the mortgage and will bear
interest from the | ||||||
15 | date such monies are advanced at the rate provided in the
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16 | mortgage, or, if no rate is provided, at the
statutory | ||||||
17 | judgment rate.
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18 | (e) Request for Foreclosure. The request for foreclosure is | ||||||
19 | deemed and
construed to mean that the plaintiff requests that:
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20 | (1) an accounting may be taken under the direction of | ||||||
21 | the court of the
amounts due and owing to the plaintiff;
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22 | (2) that the defendants be ordered to pay to the | ||||||
23 | plaintiff before
expiration of any redemption period (or, | ||||||
24 | if no redemption period, before a
short date fixed by the | ||||||
25 | court) whatever sums may appear to be due upon the taking
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26 | of such account,
together with attorneys' fees and costs of |
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1 | the proceedings (to the extent
provided in the mortgage or | ||||||
2 | by law);
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3 | (3) that in default of such payment in accordance with | ||||||
4 | the judgment, the
mortgaged real estate be sold as directed | ||||||
5 | by the court, to satisfy the
amount due to the plaintiff as | ||||||
6 | set forth in the judgment, together with the
interest | ||||||
7 | thereon at the statutory judgment rate from the date of the | ||||||
8 | judgment;
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9 | (4) that in the event the plaintiff is a purchaser of | ||||||
10 | the mortgaged real
estate at such sale, the plaintiff may | ||||||
11 | offset against the purchase price of
such real estate the | ||||||
12 | amounts due under the judgment of foreclosure and
order | ||||||
13 | confirming the sale;
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14 | (5) that in the event of such sale and the failure of | ||||||
15 | any person entitled
thereto to redeem prior to such sale | ||||||
16 | pursuant to this Article, the
defendants made parties to | ||||||
17 | the foreclosure in accordance with this Article,
and all | ||||||
18 | nonrecord claimants given notice of the foreclosure in | ||||||
19 | accordance
with this Article, and all persons claiming by, | ||||||
20 | through or under them, and
each and any and all of them, | ||||||
21 | may be forever barred and foreclosed of any
right, title, | ||||||
22 | interest, claim, lien, or right to redeem in and to the
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23 | mortgaged real estate; and
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24 | (6) that if no redemption is made prior to such sale, a | ||||||
25 | deed may be
issued to the purchaser thereat according to | ||||||
26 | law and such purchaser be let
into possession of the |
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1 | mortgaged real estate in accordance with Part 17 of this | ||||||
2 | Article.
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3 | (f) Request for Deficiency Judgment. A request for a | ||||||
4 | personal judgment
for a deficiency in a foreclosure complaint | ||||||
5 | if the sale of the mortgaged
real estate fails to produce a | ||||||
6 | sufficient amount to pay the amount found
due, the plaintiff | ||||||
7 | may have a personal judgment against any party in the
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8 | foreclosure indicated as being personally liable therefor and | ||||||
9 | the enforcement
thereof be had as provided by law.
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10 | (g) Request for Possession or Receiver. A request for | ||||||
11 | possession or appointment
of a receiver has the meaning as | ||||||
12 | stated in subsection (b) of Section 15-1706.
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13 | (h) Answers by Parties. Any party
may assert its interest | ||||||
14 | by counterclaim and such counterclaim may at the
option of that | ||||||
15 | party stand in lieu of answer to the complaint for
foreclosure | ||||||
16 | and all counter complaints previously or thereafter filed
in | ||||||
17 | the foreclosure. Any such counterclaim shall be deemed to | ||||||
18 | constitute a
statement that the counter claimant does not have | ||||||
19 | sufficient knowledge to
form a belief as to the truth or | ||||||
20 | falsity of the
allegations of the complaint and all other | ||||||
21 | counterclaims, except
to the extent that the counterclaim | ||||||
22 | admits or specifically denies such
allegations.
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23 | (Source: P.A. 91-357, eff. 7-29-99.)
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24 | (735 ILCS 5/15-1504.1) | ||||||
25 | Sec. 15-1504.1. Filing fee for Abandoned Residential |
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1 | Property Municipality Relief Foreclosure Prevention Program | ||||||
2 | Fund. | ||||||
3 | (a) With respect to residential real estate, at the time of | ||||||
4 | the filing of a foreclosure complaint, the plaintiff shall pay | ||||||
5 | to the clerk of the court in which the foreclosure complaint is | ||||||
6 | filed a fee of $50 for deposit into the Abandoned Residential | ||||||
7 | Property Municipality Relief Foreclosure Prevention Program | ||||||
8 | Fund, a special
fund created in the State treasury. The clerk | ||||||
9 | shall remit the fee to the State Treasurer as provided in this | ||||||
10 | Section to be expended for the purposes set forth in Section | ||||||
11 | 7.31 7.30 of the Illinois Housing Development Act. All fees | ||||||
12 | paid by plaintiffs to the clerk of the court as provided in | ||||||
13 | this Section shall be disbursed within 60 days after receipt by | ||||||
14 | the clerk of the court as follows: (i) 98% to the State | ||||||
15 | Treasurer for deposit into the Abandoned Residential Property | ||||||
16 | Municipality Relief Foreclosure Prevention Counseling Program | ||||||
17 | Fund, and (ii) 2% to the clerk of the court for administrative | ||||||
18 | expenses related to implementation of this Section. | ||||||
19 | (b) Not later than March 1 of each year, the clerk of the | ||||||
20 | court shall submit to the Illinois Housing Development | ||||||
21 | Authority a report of the funds collected and remitted pursuant | ||||||
22 | to this Section during the preceding year.
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23 | (c) Subsection (a) shall become inoperative on January 1, | ||||||
24 | 2016. This Section is repealed on March 2, 2016. | ||||||
25 | (Source: P.A. 96-1419, eff. 10-1-10; revised 9-16-10.)
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1 | (735 ILCS 5/15-1505.8 new) | ||||||
2 | Sec. 15-1505.8. Expedited judgment and sale procedure for | ||||||
3 | abandoned residential property. | ||||||
4 | (a) Upon motion and notice, the mortgagee may elect to | ||||||
5 | utilize the expedited judgment and sale procedure for abandoned | ||||||
6 | residential property set forth in this Section to obtain a | ||||||
7 | judgment of foreclosure pursuant to Section 15-1506. The motion | ||||||
8 | may be combined with or made part of the motion requesting a | ||||||
9 | judgment of foreclosure. If service upon the mortgagor was | ||||||
10 | obtained by publication, then notice of the motion to the | ||||||
11 | mortgagor shall be posted at the property address. | ||||||
12 | (b) The motion requesting an expedited judgment of | ||||||
13 | foreclosure and sale may be filed by the mortgagee at the time | ||||||
14 | the foreclosure complaint is filed or any time thereafter and | ||||||
15 | shall be accompanied by an affidavit setting forth facts | ||||||
16 | sufficient for the court to find that the mortgaged real estate | ||||||
17 | is abandoned residential property. | ||||||
18 | (c) Motion for an expedited judgment and sale. | ||||||
19 | (1) If a motion for an expedited judgment and sale is | ||||||
20 | filed at the time the foreclosure complaint is filed, the | ||||||
21 | motion shall be heard by the court no later than: | ||||||
22 | (A) 45 days after the date of service of the | ||||||
23 | summons on the mortgagor or, if more than one, no later | ||||||
24 | than 45 days after the date of service on the last | ||||||
25 | served mortgagor; | ||||||
26 | (B) 45 days after the date of first publication, if |
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1 | service of process is by publication; or | ||||||
2 | (C) 45 days after the mortgagors have otherwise | ||||||
3 | submitted to the jurisdiction of the court. | ||||||
4 | (2) If a motion for an expedited judgment and sale is | ||||||
5 | filed after the foreclosure complaint is filed, the motion | ||||||
6 | shall be heard no later than 15 days after the motion is | ||||||
7 | filed, provided that at least: | ||||||
8 | (A) 30 days have transpired since service of the | ||||||
9 | summons on the mortgagor, or, if there is more than one | ||||||
10 | mortgagor, 30 days have transpired since service on all | ||||||
11 | mortgagors; or | ||||||
12 | (B) 30 days have transpired since the date of first | ||||||
13 | publication, if service of process is by publication; | ||||||
14 | or | ||||||
15 | (C) 30 days have transpired since all mortgagors | ||||||
16 | have otherwise submitted to the jurisdiction of the | ||||||
17 | court. | ||||||
18 | (d) The hearing shall be given priority by the court and | ||||||
19 | shall be scheduled to be heard within the applicable time | ||||||
20 | period set forth in subsection (c). | ||||||
21 | (e) The affidavit shall be signed by and based upon the | ||||||
22 | information and belief of the mortgagee, an agent of the | ||||||
23 | mortgagee, the sheriff of the county or local law enforcement | ||||||
24 | agency of the municipality in which the property is located, or | ||||||
25 | a building inspector or other municipal or county official for | ||||||
26 | the municipality or county in which the property is located. |
| |||||||
| |||||||
1 | The affidavit shall state that the property is not occupied by | ||||||
2 | any mortgagor or bona fide tenant as a principal residence and | ||||||
3 | there exists at least 2 of the criteria set forth in Section | ||||||
4 | 15-1200.5, which shall be stated in the affidavit. Photographic | ||||||
5 | or other documentary evidence that demonstrates supporting | ||||||
6 | facts set forth in the affidavit shall be attached to the | ||||||
7 | affidavit. An affidavit that meets the foregoing criteria shall | ||||||
8 | be prima facie evidence that the property which is the subject | ||||||
9 | of the foreclosure complaint is abandoned residential | ||||||
10 | property. | ||||||
11 | (f) At the hearing on the motion requesting an expedited | ||||||
12 | judgment and sale, and upon a finding by the court that the | ||||||
13 | mortgaged real estate is abandoned residential property, the | ||||||
14 | court shall immediately proceed to enter a judgment of | ||||||
15 | foreclosure as requested in the complaint. The judgment of | ||||||
16 | foreclosure shall include the matters identified in Section | ||||||
17 | 15-1506. | ||||||
18 | (g) The reinstatement period and redemption period for the | ||||||
19 | abandoned residential property shall end in accordance with | ||||||
20 | paragraph (4) of subsection (b) of Section 15-1603, and the | ||||||
21 | property shall be sold at the earliest practicable time at a | ||||||
22 | sale as provided in this Article. | ||||||
23 | (h) Mortgagee responsibility. | ||||||
24 | (1) A mortgagee or its agent may enter an abandoned | ||||||
25 | residential property that is the subject of a foreclosure | ||||||
26 | complaint for the purpose of maintaining or securing the |
| |||||||
| |||||||
1 | property, provided that entry is not barred by an automatic | ||||||
2 | stay issued by a bankruptcy court. A mortgagee and its | ||||||
3 | agents shall not be held liable for any claim of | ||||||
4 | negligence, civil trespass, or criminal trespass based | ||||||
5 | upon entering the abandoned residential property or | ||||||
6 | maintaining or securing the abandoned residential | ||||||
7 | property. | ||||||
8 | (2) The mortgagee shall be responsible for repairs or | ||||||
9 | other maintenance to the abandoned residential property if | ||||||
10 | it purchases the property at the foreclosure sale held | ||||||
11 | pursuant to Section 15-1507 and the sale is confirmed by | ||||||
12 | the court pursuant to Section 15-1508. | ||||||
13 | (i) Upon confirmation of the sale held pursuant to Section | ||||||
14 | 15-1507, any personal property remaining in or upon the | ||||||
15 | abandoned residential property shall be deemed to have been | ||||||
16 | abandoned by the owner of such personal property and may be | ||||||
17 | disposed of or donated by the holder of the certificate of sale | ||||||
18 | or, if none, by the purchaser at the sale. In the event of | ||||||
19 | donation of any such personal property, the holder of the | ||||||
20 | certificate of sale or, if none, the purchaser at the sale may | ||||||
21 | transfer such donated property with a bill of sale. No | ||||||
22 | mortgagee or its successors or assigns, holder of a certificate | ||||||
23 | of sale, or purchaser at the sale, or its attorneys or agents, | ||||||
24 | shall be liable for any such disposal or donation of personal | ||||||
25 | property. | ||||||
26 | (j) No mortgagee shall be held liable for seeking a |
| |||||||
| |||||||
1 | judicial determination of abandonment, if the mortgagee, upon | ||||||
2 | information and belief at the time the motion requesting an | ||||||
3 | expedited judgment of foreclosure and sale is filed with the | ||||||
4 | court, makes a good faith assertion through its affidavit that | ||||||
5 | evidence exists supporting the fact the mortgaged real estate | ||||||
6 | is abandoned residential property.
| ||||||
7 | (735 ILCS 5/15-1507.1) | ||||||
8 | (Section scheduled to be repealed on March 2, 2016) | ||||||
9 | Sec. 15-1507.1. Judicial sale fee for Foreclosure | ||||||
10 | Prevention Program Abandoned Residential Property Municipality | ||||||
11 | Relief Fund. | ||||||
12 | (a) Upon and at the sale of residential real estate under | ||||||
13 | Section 15-1507, the purchaser shall pay to the person | ||||||
14 | conducting the sale pursuant to Section 15-1507 a fee for | ||||||
15 | deposit into the Foreclosure Prevention Program Abandoned | ||||||
16 | Residential Property Municipality Relief Fund, a special
fund | ||||||
17 | created in the State treasury. The fee shall be calculated at | ||||||
18 | the rate of $1 for each $1,000 or fraction thereof of the | ||||||
19 | amount paid by the purchaser to the person conducting the sale, | ||||||
20 | as reflected in the receipt of sale issued to the purchaser, | ||||||
21 | provided that in no event shall the fee exceed $300. No fee | ||||||
22 | shall be paid by the mortgagee acquiring the residential real | ||||||
23 | estate pursuant to its credit bid at the sale or by any | ||||||
24 | mortgagee, judgment creditor, or other lienor acquiring the | ||||||
25 | residential real estate whose rights in and to the residential |
| |||||||
| |||||||
1 | real estate arose prior to the sale. Upon confirmation of the | ||||||
2 | sale under Section 15-1508, the person conducting the sale | ||||||
3 | shall remit the fee to the clerk of the court in which the | ||||||
4 | foreclosure case is pending. The clerk shall remit the fee to | ||||||
5 | the State Treasurer as provided in this Section, to be expended | ||||||
6 | for the purposes set forth in Section 7.30 7.31 of the Illinois | ||||||
7 | Housing Development Act. | ||||||
8 | (b) All fees paid by purchasers as provided in this Section | ||||||
9 | shall be disbursed within 60 days after receipt by the clerk of | ||||||
10 | the court as follows: (i) 98% to the State Treasurer for | ||||||
11 | deposit into the Foreclosure Prevention Program Abandoned | ||||||
12 | Residential Property Municipality Relief Fund, and (ii) 2% to | ||||||
13 | the clerk of the court for administrative expenses related to | ||||||
14 | implementation of this Section. | ||||||
15 | (c) Not later than March 1 of each year, the clerk of the | ||||||
16 | court shall submit to the Illinois Housing Development | ||||||
17 | Authority a report of the funds collected and remitted during | ||||||
18 | the preceding year pursuant to this Section. | ||||||
19 | (d) (Blank.) Subsections (a) and (b) of this Section shall | ||||||
20 | become inoperative on January 1, 2016. This Section is repealed | ||||||
21 | on March 2, 2016.
| ||||||
22 | (Source: P.A. 96-1419, eff. 10-1-10.)
| ||||||
23 | (735 ILCS 5/15-1508) (from Ch. 110, par. 15-1508) | ||||||
24 | Sec. 15-1508. Report of Sale and Confirmation of Sale. | ||||||
25 | (a) Report. The person conducting the sale shall promptly |
| |||||||
| |||||||
1 | make a report to
the court, which report shall include a copy | ||||||
2 | of all receipts and, if any,
certificate of sale. | ||||||
3 | (b) Hearing. Upon motion and notice in accordance with | ||||||
4 | court rules
applicable to motions generally, which motion shall | ||||||
5 | not be made prior to
sale, the court shall conduct a hearing to
| ||||||
6 | confirm the sale. Unless the court finds that (i) a notice | ||||||
7 | required in
accordance with subsection (c) of Section 15-1507 | ||||||
8 | was not given, (ii) the
terms of sale were unconscionable, | ||||||
9 | (iii) the sale was conducted
fraudulently , or (iv) that justice | ||||||
10 | was otherwise not done, the court shall
then enter an order | ||||||
11 | confirming the sale. The confirmation order shall include a | ||||||
12 | name, address, and telephone number of the holder of the | ||||||
13 | certificate of sale or deed issued pursuant to that certificate | ||||||
14 | or, if no certificate or deed was issued, the purchaser, whom a | ||||||
15 | municipality or county may contact with concerns about the real | ||||||
16 | estate. The confirmation order may
also: | ||||||
17 | (1) approve the mortgagee's fees and costs arising | ||||||
18 | between the entry of
the judgment of foreclosure and the | ||||||
19 | confirmation hearing, those costs and
fees to be allowable | ||||||
20 | to the same extent as provided in the note and mortgage
and | ||||||
21 | in Section 15-1504; | ||||||
22 | (2) provide for a personal judgment against any party | ||||||
23 | for a deficiency;
and | ||||||
24 | (3) determine the priority of the judgments of parties | ||||||
25 | who deferred proving
the priority pursuant to subsection | ||||||
26 | (h) of Section 15-1506, but
the court shall not
defer |
| |||||||
| |||||||
1 | confirming the sale pending the determination of such | ||||||
2 | priority. | ||||||
3 | (b-3) Hearing to confirm sale of abandoned residential | ||||||
4 | property. Upon motion and notice, which motion shall be made | ||||||
5 | prior to the sale and heard by the court upon conclusion of the | ||||||
6 | sale, the court shall enter an order confirming the sale of the | ||||||
7 | abandoned residential property, unless the court finds that a | ||||||
8 | reason set forth in items (i) through (iv) of subsection (b) of | ||||||
9 | this Section exists for not approving the sale. The | ||||||
10 | confirmation order also may address the matters identified in | ||||||
11 | items (1) through (3) of subsection (b) of this Section. | ||||||
12 | Notwithstanding anything to the contrary in subsection (g) of | ||||||
13 | this Section, the order confirming the sale of the abandoned | ||||||
14 | residential property shall award to the purchaser possession of | ||||||
15 | the property as of the date of the entry of the order | ||||||
16 | confirming the sale. | ||||||
17 | (b-5) Notice with respect to residential real estate. With | ||||||
18 | respect to residential real estate, the notice required under | ||||||
19 | subsection (b) of this Section shall be sent to the mortgagor | ||||||
20 | even if the mortgagor has previously been held in default. In | ||||||
21 | the event the mortgagor has filed an appearance, the notice | ||||||
22 | shall be sent to the address indicated on the appearance. In | ||||||
23 | all other cases, the notice shall be sent to the mortgagor at | ||||||
24 | the common address of the foreclosed property. The notice shall | ||||||
25 | be sent by first class mail. Unless the right to possession has | ||||||
26 | been previously terminated by the court, the notice shall |
| |||||||
| |||||||
1 | include the following language in 12-point boldface | ||||||
2 | capitalized type: | ||||||
3 | IF YOU ARE THE MORTGAGOR (HOMEOWNER), YOU HAVE THE RIGHT TO | ||||||
4 | REMAIN IN POSSESSION FOR 30 DAYS AFTER ENTRY OF AN ORDER OF | ||||||
5 | POSSESSION, IN ACCORDANCE WITH SECTION 15-1701(c) OF THE | ||||||
6 | ILLINOIS MORTGAGE FORECLOSURE LAW. | ||||||
7 | (b-10) Notice of confirmation order sent to municipality or | ||||||
8 | county. A copy of the confirmation order required under | ||||||
9 | subsection (b) shall be sent to the municipality in which the | ||||||
10 | foreclosed property is located, or to the county within the | ||||||
11 | boundary of which the foreclosed property is located if the | ||||||
12 | foreclosed property is located in an unincorporated territory. | ||||||
13 | A municipality or county must clearly publish on its website a | ||||||
14 | single address to which such notice shall be sent. If a | ||||||
15 | municipality or county does not maintain a website, then the | ||||||
16 | municipality or county must publicly post in its main office a | ||||||
17 | single address to which such notice shall be sent. In the event | ||||||
18 | that a municipality or county has not complied with the | ||||||
19 | publication requirement in this subsection (b-10), then such | ||||||
20 | notice to the municipality or county shall be provided pursuant | ||||||
21 | to Section 2-211 of the Code of Civil Procedure. | ||||||
22 | (c) Failure to Give Notice. If any sale is held without | ||||||
23 | compliance with
subsection (c) of Section 15-1507 of this | ||||||
24 | Article, any party entitled to
the notice provided for in | ||||||
25 | paragraph (3) of that subsection
(c) who was not so notified | ||||||
26 | may, by motion supported by affidavit
made prior to |
| |||||||
| |||||||
1 | confirmation of such sale, ask the court which entered the
| ||||||
2 | judgment to set aside the sale. Any such party shall guarantee | ||||||
3 | or secure by bond a bid equal to the successful bid at the | ||||||
4 | prior sale, unless the party seeking to set aside the sale is | ||||||
5 | the mortgagor, the real estate sold at the sale is residential | ||||||
6 | real estate, and the mortgagor occupies the residential real | ||||||
7 | estate at the time the motion is filed. In that event, no | ||||||
8 | guarantee or bond shall be required of the mortgagor. Any
| ||||||
9 | subsequent sale is subject to the same notice requirement as | ||||||
10 | the original sale. | ||||||
11 | (d) Validity of Sale. Except as provided in subsection (c) | ||||||
12 | of Section
15-1508, no sale under this Article shall be held | ||||||
13 | invalid or be set aside
because of any defect in the notice | ||||||
14 | thereof or in the publication of the
same, or in the | ||||||
15 | proceedings of the officer conducting the sale, except upon
| ||||||
16 | good cause shown in a hearing pursuant to subsection (b) of | ||||||
17 | Section
15-1508. At any time after a sale has occurred, any | ||||||
18 | party entitled to
notice under paragraph (3) of subsection (c) | ||||||
19 | of Section 15-1507 may recover
from the mortgagee any damages | ||||||
20 | caused by the mortgagee's failure to comply
with such paragraph | ||||||
21 | (3). Any party who recovers damages in a judicial
proceeding | ||||||
22 | brought under this subsection may also recover from the
| ||||||
23 | mortgagee the reasonable expenses of litigation, including | ||||||
24 | reasonable attorney's fees. | ||||||
25 | (d-5) Making Home Affordable Program. The court that | ||||||
26 | entered the judgment shall set aside a sale held pursuant to |
| |||||||
| |||||||
1 | Section 15-1507, upon motion of the mortgagor at any time prior | ||||||
2 | to the confirmation of the sale, if the mortgagor proves by a | ||||||
3 | preponderance of the evidence that (i) the mortgagor has | ||||||
4 | applied for assistance under the Making Home Affordable Program | ||||||
5 | established by the United States Department of the Treasury | ||||||
6 | pursuant to the Emergency Economic Stabilization Act of 2008, | ||||||
7 | as amended by the American Recovery and Reinvestment Act of | ||||||
8 | 2009, and (ii) the mortgaged real estate was sold in material | ||||||
9 | violation of the program's requirements for proceeding to a | ||||||
10 | judicial sale. The provisions of this subsection (d-5), except | ||||||
11 | for this sentence, shall become inoperative on January 1, 2013 | ||||||
12 | for all actions filed under this Article after December 31, | ||||||
13 | 2012, in which the mortgagor did not apply for assistance under | ||||||
14 | the Making Home Affordable Program on or before December 31, | ||||||
15 | 2012. | ||||||
16 | (e) Deficiency Judgment. In any order confirming a sale | ||||||
17 | pursuant to the
judgment of foreclosure, the court shall also | ||||||
18 | enter a personal judgment
for deficiency against any party (i) | ||||||
19 | if otherwise authorized and (ii) to
the extent requested in the | ||||||
20 | complaint and proven upon presentation of the
report of sale in | ||||||
21 | accordance with Section 15-1508. Except as otherwise provided
| ||||||
22 | in this Article, a judgment may be entered for any balance of | ||||||
23 | money that
may be found due to the plaintiff, over and above | ||||||
24 | the proceeds of the sale
or sales, and enforcement may be had | ||||||
25 | for the collection of such balance,
the same as when the | ||||||
26 | judgment is solely for the payment of money. Such
judgment may |
| |||||||
| |||||||
1 | be entered, or enforcement had,
only in cases where personal | ||||||
2 | service has been had upon the
persons personally liable for the | ||||||
3 | mortgage indebtedness, unless they have
entered their | ||||||
4 | appearance in the foreclosure action. | ||||||
5 | (f) Satisfaction. Upon confirmation of the sale, the
| ||||||
6 | judgment stands satisfied to the extent of the sale price less | ||||||
7 | expenses and
costs. If the order confirming the sale includes a | ||||||
8 | deficiency judgment, the
judgment shall become a lien in the | ||||||
9 | manner of any other
judgment for the payment of money. | ||||||
10 | (g) The order confirming the sale shall include, | ||||||
11 | notwithstanding any
previous orders awarding possession during | ||||||
12 | the pendency of the foreclosure, an
award to the purchaser of | ||||||
13 | possession of the mortgaged real estate, as of the
date 30 days | ||||||
14 | after the entry of the order, against the
parties to the | ||||||
15 | foreclosure whose interests have been terminated. | ||||||
16 | An order of possession authorizing the removal of a person | ||||||
17 | from possession
of the mortgaged real estate shall be entered | ||||||
18 | and enforced only against those
persons personally
named as | ||||||
19 | individuals in the complaint or the petition under subsection | ||||||
20 | (h)
of Section 15-1701 and in the order of possession and shall
| ||||||
21 | not be entered and enforced against any person who is only | ||||||
22 | generically
described as an
unknown owner or nonrecord claimant | ||||||
23 | or by another generic designation in the
complaint. | ||||||
24 | Notwithstanding the preceding paragraph, the failure to | ||||||
25 | personally
name,
include, or seek an award of
possession of the | ||||||
26 | mortgaged real estate against a person in the
confirmation |
| |||||||
| |||||||
1 | order shall not abrogate any right that the purchaser may have | ||||||
2 | to
possession of the mortgaged real estate and to maintain a | ||||||
3 | proceeding against
that person for
possession under Article 9 | ||||||
4 | of this Code or subsection (h) of Section 15-1701;
and | ||||||
5 | possession against a person
who (1) has not been personally | ||||||
6 | named as a party to the
foreclosure and (2) has not been | ||||||
7 | provided an opportunity to be heard in the
foreclosure | ||||||
8 | proceeding may be sought only by maintaining a
proceeding under | ||||||
9 | Article 9 of this
Code or subsection (h) of Section 15-1701. | ||||||
10 | (Source: P.A. 95-826, eff. 8-14-08; 96-265, eff. 8-11-09; | ||||||
11 | 96-856, eff. 3-1-10; 96-1245, eff. 7-23-10; revised 9-16-10.)
| ||||||
12 | (735 ILCS 5/15-1603) (from Ch. 110, par. 15-1603)
| ||||||
13 | Sec. 15-1603. Redemption.
| ||||||
14 | (a) Owner of Redemption. Except as
provided in subsection | ||||||
15 | (b) of Section 15-1402, only an owner of redemption
may redeem | ||||||
16 | from the foreclosure, and such owner of redemption may redeem
| ||||||
17 | only during the redemption period specified in subsection (b) | ||||||
18 | of Section
15-1603 and only if the right of redemption has not | ||||||
19 | been validly waived.
| ||||||
20 | (b) Redemption Period.
| ||||||
21 | (1) In the foreclosure of a mortgage of
real estate | ||||||
22 | which is residential real estate at the time the | ||||||
23 | foreclosure
is commenced, the redemption period shall end | ||||||
24 | on the later of
(i) the date 7 months from the date the | ||||||
25 | mortgagor or, if more than one, all
the mortgagors (A) have |
| |||||||
| |||||||
1 | been served with summons or by publication or (B)
have | ||||||
2 | otherwise submitted to the jurisdiction of the court, or | ||||||
3 | (ii) the date
3 months from the date of entry of a judgment | ||||||
4 | of foreclosure.
| ||||||
5 | (2) In all other foreclosures, the redemption period | ||||||
6 | shall end on the later of
(i) the date 6 months from the | ||||||
7 | date the mortgagor or, if more than one,
all the mortgagors | ||||||
8 | (A) have been served with summons or by publication or
(B) | ||||||
9 | have otherwise submitted to the jurisdiction of the court, | ||||||
10 | or (ii) the
date 3 months from the date of entry of a | ||||||
11 | judgment of foreclosure.
| ||||||
12 | (3) Notwithstanding paragraphs (1) and (2),
the | ||||||
13 | redemption period shall end at the later
of the expiration | ||||||
14 | of any reinstatement period provided for in Section
15-1602 | ||||||
15 | or the date 60 days after the date the judgment of | ||||||
16 | foreclosure is
entered, if the court finds that (i) the | ||||||
17 | value of
the mortgaged real estate as of the date of the | ||||||
18 | judgment is less than 90%
of the amount specified pursuant | ||||||
19 | to subsection (d) of Section 15-1603 and
(ii) the mortgagee | ||||||
20 | waives any and all rights to a personal judgment for a
| ||||||
21 | deficiency against the mortgagor and against all other | ||||||
22 | persons liable for
the indebtedness or other obligations | ||||||
23 | secured by the mortgage.
| ||||||
24 | (4) Notwithstanding paragraphs (1) and (2),
the | ||||||
25 | redemption period shall end on the date 30
days after the | ||||||
26 | date the judgment of foreclosure is entered if
the court |
| |||||||
| |||||||
1 | finds that the mortgaged real estate is abandoned | ||||||
2 | residential property has
been abandoned . In cases where the | ||||||
3 | redemption period is shortened on
account of abandonment, | ||||||
4 | the reinstatement period shall not extend beyond
the date | ||||||
5 | the judgment is entered redemption period as shortened .
| ||||||
6 | (c) Extension of Redemption Period.
| ||||||
7 | (1) Once expired, the right of redemption provided for | ||||||
8 | in Sections
15-1603 or 15-1604 shall not be revived. The | ||||||
9 | period within which the right of
redemption provided for in | ||||||
10 | Sections 15-1603 or 15-1604 may be exercised runs
| ||||||
11 | independently of any action by any person to enforce the | ||||||
12 | judgment of
foreclosure or effect a sale pursuant thereto. | ||||||
13 | Neither the initiation of
any legal proceeding nor the | ||||||
14 | order of any court staying the enforcement of
a judgment of | ||||||
15 | foreclosure or the sale pursuant to a judgment or the
| ||||||
16 | confirmation of the sale, shall have the effect of tolling | ||||||
17 | the running of
the redemption period.
| ||||||
18 | (2) If a court has the authority to stay, and does | ||||||
19 | stay, the running of
the redemption period, or if the | ||||||
20 | redemption period is extended by any
statute of the United | ||||||
21 | States, the redemption period shall be extended until
the | ||||||
22 | expiration of the same number of days after the expiration | ||||||
23 | of the stay
order as the number of days remaining in the | ||||||
24 | redemption period at the time
the stay order became | ||||||
25 | effective, or, if later, until the expiration of 30
days | ||||||
26 | after the stay order terminates. If the stay
order |
| |||||||
| |||||||
1 | terminates more than 30 days prior to the expiration of the
| ||||||
2 | redemption period, the redemption period shall not be | ||||||
3 | extended.
| ||||||
4 | (d) Amount Required to Redeem. The amount required to | ||||||
5 | redeem shall be the sum of:
| ||||||
6 | (1) The amount specified in the judgment of | ||||||
7 | foreclosure, which shall
consist of (i) all principal and | ||||||
8 | accrued interest secured by the mortgage
and due as of the | ||||||
9 | date of the judgment, (ii) all costs allowed by law,
(iii) | ||||||
10 | costs and expenses approved by the court, (iv) to the | ||||||
11 | extent provided
for in the mortgage and approved by the | ||||||
12 | court, additional costs, expenses
and reasonable | ||||||
13 | attorneys' fees incurred by the mortgagee, (v) all amounts
| ||||||
14 | paid pursuant to Section 15-1505 and (vi) per diem interest | ||||||
15 | from the date
of judgment to the date of redemption | ||||||
16 | calculated at the mortgage rate of
interest applicable as | ||||||
17 | if no default had occurred; and
| ||||||
18 | (2) The amount of other expenses authorized by the | ||||||
19 | court which the
mortgagee reasonably incurs between the | ||||||
20 | date of judgment and the date of
redemption, which shall be | ||||||
21 | the amount certified by the mortgagee in
accordance with | ||||||
22 | subsection (e) of Section 15-1603.
| ||||||
23 | (e) Notice of Intent to Redeem. An owner of redemption who | ||||||
24 | intends to
redeem shall give written notice of such intent to | ||||||
25 | redeem to the
mortgagee's attorney of record specifying the | ||||||
26 | date designated for
redemption and the current address of the |
| |||||||
| |||||||
1 | owner of redemption for purposes
of receiving notice. Such | ||||||
2 | owner of redemption shall file with the clerk of
the court a | ||||||
3 | certification of the giving of such notice. The notice of
| ||||||
4 | intent to redeem must be received by the mortgagee's attorney | ||||||
5 | at least 15
days (other than Saturday, Sunday or court holiday) | ||||||
6 | prior to the date
designated for redemption. The mortgagee | ||||||
7 | shall thereupon file with the
clerk of the court and shall give | ||||||
8 | written notice to the owner of redemption
at least three days | ||||||
9 | (other than Saturday, Sunday or court holiday) before
the date | ||||||
10 | designated for redemption a certification,
accompanied by | ||||||
11 | copies of paid receipts or appropriate affidavits, of
any | ||||||
12 | expenses authorized in paragraph (2) of subsection (d) of | ||||||
13 | Section
15-1603. If the mortgagee fails
to serve such | ||||||
14 | certification within the time specified herein, then the owner
| ||||||
15 | of redemption intending to redeem may redeem on the date | ||||||
16 | designated for
redemption in the notice of intent to redeem, | ||||||
17 | and the mortgagee shall not
be entitled to payment of any | ||||||
18 | expenses authorized in paragraph (2) of
subsection (d) of | ||||||
19 | Section 15-1603.
| ||||||
20 | (f) Procedure for Redemption.
| ||||||
21 | (1) An owner of redemption may redeem
the real estate | ||||||
22 | from the foreclosure by paying the amount specified in
| ||||||
23 | subsection (d) of Section 15-1603 to the mortgagee or the | ||||||
24 | mortgagee's
attorney of record on or before the date | ||||||
25 | designated for redemption pursuant
to subsection (e) of | ||||||
26 | Section 15-1603.
|
| |||||||
| |||||||
1 | (2) If the mortgagee refuses to accept payment or if | ||||||
2 | the owner of
redemption redeeming from the foreclosure | ||||||
3 | objects to the reasonableness of
the additional expenses | ||||||
4 | authorized in paragraph (2) of subsection (d) of
Section | ||||||
5 | 15-1603 and certified in accordance with subsection (e) of | ||||||
6 | Section
15-1603, the owner of redemption shall pay
the | ||||||
7 | certified amount to the clerk of the court on or before the | ||||||
8 | date
designated for redemption, together with a written | ||||||
9 | statement specifying the
expenses to which objection is | ||||||
10 | made. In such case the clerk shall pay to the
mortgagee the | ||||||
11 | amount tendered minus the amount to which the objection | ||||||
12 | pertains.
| ||||||
13 | (3) Upon payment to the clerk, whether or not the owner | ||||||
14 | of redemption
files an objection at the time of payment, | ||||||
15 | the clerk shall give a receipt
of payment to the person | ||||||
16 | redeeming from the foreclosure, and shall file a
copy of | ||||||
17 | that receipt in the foreclosure record. Upon receipt of the
| ||||||
18 | amounts specified to be paid to the mortgagee pursuant to | ||||||
19 | this Section, the
mortgagee shall promptly furnish the | ||||||
20 | mortgagor with a release of the
mortgage or satisfaction of | ||||||
21 | the judgment, as appropriate, and the evidence
of all | ||||||
22 | indebtedness secured by the mortgage shall be cancelled.
| ||||||
23 | (g) Procedure Upon Objection. If an objection is filed by | ||||||
24 | an owner of
redemption in accordance with paragraph (2) of | ||||||
25 | subsection (f) of Section
15-1603, the clerk shall hold the | ||||||
26 | amount to which the objection pertains
until the court orders |
| |||||||
| |||||||
1 | distribution of those funds. The court shall hold a
hearing | ||||||
2 | promptly to determine the distribution of any funds held by the
| ||||||
3 | clerk pursuant to such objection. Each party shall pay its own | ||||||
4 | costs and
expenses in connection with any objection, including | ||||||
5 | attorneys' fees,
subject to Section 2-611 of the Code of Civil | ||||||
6 | Procedure.
| ||||||
7 | (h) Failure to Redeem. Unless the real estate being | ||||||
8 | foreclosed is redeemed
from the foreclosure, it shall be sold | ||||||
9 | as provided in this Article.
| ||||||
10 | (Source: P.A. 86-974.)
| ||||||
11 | (735 ILCS 5/15-1701) (from Ch. 110, par. 15-1701)
| ||||||
12 | Sec. 15-1701. Right to possession.
| ||||||
13 | (a) General. The provisions of
this Article shall govern | ||||||
14 | the right to possession of the mortgaged real
estate during | ||||||
15 | foreclosure. Possession under this Article includes physical
| ||||||
16 | possession of the mortgaged real estate to the same extent to | ||||||
17 | which the
mortgagor, absent the foreclosure, would have been | ||||||
18 | entitled to physical
possession. For the purposes of Part 17, | ||||||
19 | real estate is residential real estate
only if it is | ||||||
20 | residential real estate at the time the foreclosure is | ||||||
21 | commenced.
| ||||||
22 | (a-5) Abandoned residential property. Notwithstanding | ||||||
23 | anything to the contrary in this Section, the holder of the | ||||||
24 | certificate of sale or deed issued pursuant to that certificate | ||||||
25 | or, if no certificate or deed was issued, the purchaser, of |
| |||||||
| |||||||
1 | abandoned residential property shall be entitled to possession | ||||||
2 | of the property as of the date the order confirming the sale of | ||||||
3 | the abandoned residential property is entered. | ||||||
4 | (b) Pre-Judgment. Prior to the entry of a judgment of | ||||||
5 | foreclosure:
| ||||||
6 | (1) In the case of residential real estate, the | ||||||
7 | mortgagor shall be
entitled to possession of the real | ||||||
8 | estate except if (i) the mortgagee shall
object and show | ||||||
9 | good cause, (ii) the mortgagee is so authorized by the | ||||||
10 | terms of
the mortgage or other written instrument, and | ||||||
11 | (iii) the court is satisfied that
there is a reasonable | ||||||
12 | probability that the mortgagee will prevail on a final
| ||||||
13 | hearing of the cause, the court shall upon request place | ||||||
14 | the mortgagee in
possession. If the residential real estate | ||||||
15 | consists of more than one dwelling
unit, then for the | ||||||
16 | purpose of this Part residential real estate shall mean | ||||||
17 | only
that dwelling unit or units occupied by persons | ||||||
18 | described in clauses (i), (ii)
and (iii) of Section | ||||||
19 | 15-1219.
| ||||||
20 | (2) In all other cases, if (i) the mortgagee is so | ||||||
21 | authorized by the
terms of the mortgage or other written | ||||||
22 | instrument, and (ii) the court is
satisfied that there is a | ||||||
23 | reasonable probability that the mortgagee will
prevail on a | ||||||
24 | final hearing of the cause, the mortgagee shall
upon | ||||||
25 | request be placed in possession of the real estate, except | ||||||
26 | that if the
mortgagor shall object and show good cause, the |
| |||||||
| |||||||
1 | court shall allow the
mortgagor to remain in possession.
| ||||||
2 | (c) Judgment Through 30 Days After Sale Confirmation. After | ||||||
3 | the entry
of a judgment of foreclosure and through the 30th day | ||||||
4 | after a foreclosure
sale is confirmed:
| ||||||
5 | (1) Subsection (b) of Section 15-1701 shall be | ||||||
6 | applicable, regardless of
the provisions of the mortgage or | ||||||
7 | other instrument, except that after a
sale pursuant to the | ||||||
8 | judgment the holder of the certificate of sale
(or, if | ||||||
9 | none, the purchaser at the sale) shall have the mortgagee's | ||||||
10 | right to be
placed in possession, with all rights and | ||||||
11 | duties of a mortgagee in possession
under this Article.
| ||||||
12 | (2) Notwithstanding paragraph (1) of subsection (b) | ||||||
13 | and paragraph (1) of
subsection (c) of Section 15-1701, | ||||||
14 | upon request of the mortgagee, a mortgagor
of residential | ||||||
15 | real estate shall not be allowed to remain in possession | ||||||
16 | between
the expiration of the redemption period and through | ||||||
17 | the 30th day after sale
confirmation unless (i) the | ||||||
18 | mortgagor pays to the mortgagee or such holder or
| ||||||
19 | purchaser, whichever is applicable, monthly the lesser of | ||||||
20 | the interest due
under the mortgage calculated at the | ||||||
21 | mortgage rate of interest applicable as if
no default had | ||||||
22 | occurred or the fair rental value of the real estate, or | ||||||
23 | (ii)
the mortgagor otherwise shows good cause. Any amounts | ||||||
24 | paid by the mortgagor
pursuant to this subsection shall be | ||||||
25 | credited against the amounts due from the
mortgagor.
| ||||||
26 | (d) After 30 Days After Sale Confirmation. The holder of
|
| |||||||
| |||||||
1 | the certificate of sale or deed issued pursuant to that | ||||||
2 | certificate or, if
no certificate or deed was issued, the | ||||||
3 | purchaser, except to the extent the
holder or purchaser may | ||||||
4 | consent otherwise, shall be entitled to possession of
the | ||||||
5 | mortgaged real estate, as of the date 30 days after the order | ||||||
6 | confirming
the sale is entered, against those parties to the | ||||||
7 | foreclosure whose interests
the court has ordered terminated, | ||||||
8 | without further notice to any party, further
order of the | ||||||
9 | court, or resort to proceedings under any other statute other | ||||||
10 | than
this Article.
This right to possession shall be limited by | ||||||
11 | the provisions
governing entering and enforcing orders of | ||||||
12 | possession under subsection (g) of
Section
15-1508.
If the | ||||||
13 | holder or purchaser determines that there are occupants
of the | ||||||
14 | mortgaged real estate who have not been made parties to the | ||||||
15 | foreclosure
and had their interests terminated therein, the | ||||||
16 | holder or purchaser may bring a
proceeding under subsection (h) | ||||||
17 | of this Section or under Article 9 of this Code
to terminate | ||||||
18 | the rights of possession of any such occupants. The holder or
| ||||||
19 | purchaser shall not be entitled to proceed against any such | ||||||
20 | occupant under
Article 9 of this Code until after 30 days after | ||||||
21 | the order confirming the sale
is entered.
| ||||||
22 | (e) Termination of Leases. A lease of all or any part of | ||||||
23 | the mortgaged
real estate shall not be terminated automatically | ||||||
24 | solely by virtue of the entry
into possession by (i) a | ||||||
25 | mortgagee or receiver prior to the entry of an order
confirming | ||||||
26 | the sale, (ii) the holder of the certificate of sale, (iii) the
|
| |||||||
| |||||||
1 | holder of the deed issued pursuant to that certificate, or (iv) | ||||||
2 | if no
certificate or deed was issued, the purchaser at the | ||||||
3 | sale.
| ||||||
4 | (f) Other Statutes; Instruments. The provisions of this | ||||||
5 | Article
providing for possession of mortgaged real estate shall | ||||||
6 | supersede any other
inconsistent statutory provisions. In | ||||||
7 | particular, and without limitation,
whenever a receiver is | ||||||
8 | sought to be appointed in any action in which a
foreclosure is | ||||||
9 | also pending, a receiver shall be appointed only in
accordance | ||||||
10 | with this Article. Except as may be authorized by this Article,
| ||||||
11 | no mortgage or other instrument may modify or supersede the | ||||||
12 | provisions of this
Article.
| ||||||
13 | (g) Certain Leases. Leases of the mortgaged real estate | ||||||
14 | entered into by
a mortgagee in possession or a receiver and | ||||||
15 | approved by the court in a
foreclosure shall be binding on all | ||||||
16 | parties, including the mortgagor after
redemption, the | ||||||
17 | purchaser at a sale pursuant to a judgment of foreclosure
and | ||||||
18 | any person acquiring an interest in the mortgaged real estate | ||||||
19 | after
entry of a judgment of foreclosure in accordance with | ||||||
20 | Sections 15-1402 and
15-1403.
| ||||||
21 | (h) Proceedings Against Certain Occupants.
| ||||||
22 | (1) The mortgagee-in-possession of the mortgaged real | ||||||
23 | estate under Section
15-1703, a receiver appointed under | ||||||
24 | Section 15-1704, a holder of the
certificate of sale or | ||||||
25 | deed, or the purchaser may, at any time during the
pendency | ||||||
26 | of the foreclosure and up to 90 days after the date of the |
| |||||||
| |||||||
1 | order
confirming the sale,
file a supplemental petition for | ||||||
2 | possession against a person not personally
named as a party
| ||||||
3 | to the foreclosure. The supplemental petition for | ||||||
4 | possession shall name each such
occupant against whom | ||||||
5 | possession is sought and state the facts upon which the
| ||||||
6 | claim for relief is premised.
| ||||||
7 | (2) The petitioner shall serve upon each named occupant | ||||||
8 | the petition,
a notice of hearing on the petition, and, if | ||||||
9 | any, a copy of the certificate of
sale or deed. The | ||||||
10 | proceeding for the termination of such occupant's | ||||||
11 | possessory
interest, including service of the notice of the | ||||||
12 | hearing and the petition,
shall in all respects comport | ||||||
13 | with the requirements of Article 9 of this Code,
except as | ||||||
14 | otherwise specified in this Section. The hearing shall be | ||||||
15 | no less
than 21 days from the date of service of the | ||||||
16 | notice.
| ||||||
17 | (3) The supplemental petition shall be heard as part of | ||||||
18 | the foreclosure
proceeding and without the payment of | ||||||
19 | additional filing fees. An order for
possession obtained | ||||||
20 | under this Section shall name each occupant whose interest
| ||||||
21 | has been terminated, shall recite that it is only effective | ||||||
22 | as to the occupant
so named and those holding under them, | ||||||
23 | and shall be enforceable for no more
than 120 days after | ||||||
24 | its entry, except that the 120-day period may be extended | ||||||
25 | to
the extent and in the manner provided in Section 9-117 | ||||||
26 | of Article 9 and except as provided in item (4) of this |
| |||||||
| |||||||
1 | subsection (h). | ||||||
2 | (4) In a case of foreclosure where the occupant is | ||||||
3 | current on his or her rent, or where timely written notice | ||||||
4 | of to whom and where the rent is to be paid has not been | ||||||
5 | provided to the occupant, or where the occupant has made | ||||||
6 | good-faith efforts to make rental payments in order to keep | ||||||
7 | current, any order of possession must allow the occupant to | ||||||
8 | retain possession of the property covered in his or her | ||||||
9 | rental agreement (i) for 120 days following the notice of | ||||||
10 | the hearing on the supplemental petition that has been | ||||||
11 | properly served upon the occupant, or (ii) through the | ||||||
12 | duration of his or her lease, whichever is shorter, | ||||||
13 | provided that if the duration of his or her lease is less | ||||||
14 | than 30 days from the date of the order, the order shall | ||||||
15 | allow the occupant to retain possession for 30 days from | ||||||
16 | the date of the order. A mortgagee in possession, receiver, | ||||||
17 | holder of a certificate of sale or deed, or purchaser at | ||||||
18 | the judicial sale, who asserts that the occupant is not | ||||||
19 | current in rent, shall file an affidavit to that effect in | ||||||
20 | the supplemental petition proceeding. If the occupant has | ||||||
21 | been given timely written notice of to whom and where the | ||||||
22 | rent is to be paid, this item (4) shall only apply if the | ||||||
23 | occupant continues to pay his or her rent in full during | ||||||
24 | the 120-day period or has made good-faith efforts to pay | ||||||
25 | the rent in full during that period.
No | ||||||
26 | mortgagee-in-possession, receiver or holder of a |
| |||||||
| |||||||
1 | certificate of sale or deed, or purchaser who fails to file | ||||||
2 | a supplemental petition under this subsection during the | ||||||
3 | pendency of a mortgage foreclosure shall file a forcible | ||||||
4 | entry and detainer action against an occupant of the | ||||||
5 | mortgaged real estate until 90 days after a notice of | ||||||
6 | intent to file such action has been properly served upon | ||||||
7 | the occupant. | ||||||
8 | (5) The court records relating to a supplemental | ||||||
9 | petition for possession filed under this subsection (h) | ||||||
10 | against an occupant who is entitled to notice under item | ||||||
11 | (4) of this subsection (h), or relating to a forcible entry | ||||||
12 | and detainer action brought against an occupant who would | ||||||
13 | have lawful possession of the premises but for the | ||||||
14 | foreclosure of a mortgage on the property, shall be ordered | ||||||
15 | sealed and shall not be disclosed to any person, other than | ||||||
16 | a law enforcement officer or any other representative of a | ||||||
17 | governmental entity, except upon further order of the | ||||||
18 | court.
| ||||||
19 | (Source: P.A. 95-262, eff. 1-1-08; 95-933, eff. 8-26-08; 96-60, | ||||||
20 | eff. 7-23-09; 96-111, eff. 10-29-09; 96-1000, eff. 7-2-10.)
| ||||||
21 | Section 99. Effective date. This Act takes effect upon | ||||||
22 | becoming law.".
|