Public Act 97-1164 (the Act) amended the Illinois Mortgage Foreclosure Law (IMFL) 735 ILCS 5/15-1101, et seq., by authorizing the plaintiff to seek an expedited judgment and sale if the real estate meets the definition of abandoned residential property. Abandoned residential property is defined as property that is either 1) not occupied by a mortgagor or lawful occupant or 2) is an incomplete structure or in need of obvious maintenance, repair, or securing as further defined by the Act. 735 ILCS 5/15-1200.5.
The Act imposes additional obligations on plaintiff’s counsel and additional fees to help fund housing counseling and foreclosure prevention initiatives. The additional filing fees range from $50-$500 per filing, depending on the number of foreclosures a plaintiff, or the plaintiff’s affiliate, files each year. To police these rules, the plaintiff must submit a verified statement with each complaint averring to the filing fee category that applies. In addition to requiring that a notice of foreclosure be sent to municipalities and county governments, if the property is located in Chicago, the new law requires additional notices be sent to the alderman for the ward in which the real estate is located within ten days. The mortgagee must also file an affidavit of compliance with this notice requirement. The failure to send a copy of the notice to the alderman or to file an affidavit as required could result in dismissal.
The Act also now expressly permits a court to expedite the judgment and sale of abandoned residential property. Upon a motion, supported by an affidavit explaining that the property meets the definition of abandoned residential property according to 735 ILCS 5/15-1200.5, the court must expedite the judgment and sale of the property. 735 ILCS 5/15-1505.8(a)(e). The motion may be brought at any time, but if it is brought after the time to answer the foreclosure complaint has passed, it must be heard no later than 15 days after it is filed with the court. 735 ILCS 5/15-1505.8(d). In addition, the mortgagee must post statutory form notices at the property address at least 14 days prior to the hearing on the motion, and at least 14 days prior to the hearing to confirm the foreclosure sale. The notices must take the form set forth in the statute and must also be sent to the last known address of the mortgagor. 735 ILCS 5/15-1505.8(d). Removing the notice or entering the property without lawful authority is a class B misdemeanor. 720 ILCS 5/21-3(a)(3.7).
If the court finds that the mortgaged real estate is abandoned residential property it must grant the motion and immediately proceed to a trial of the foreclosure. 735 ILCS 5/15-1505.8(f). The court will terminate the redemption period 30 days after the entry of expedited judgment. 735 ILCS 5/15-1603(b)(4). The plaintiff must send a copy of the confirmation order to the last known property insurer of the foreclosed property. Failure to send a copy of the order will not impair the rights of the mortgagee or purchaser or affect the status of the foreclosure proceedings. 735 ILCS 5/15-1508 (b-15). Furthermore, once the sale is confirmed any personal property remaining in the property shall be deemed to have been abandoned and may be disposed by the holder of the certificate of sale, who will not be held liable for disposing of the personal property. 735 ILCS 5/15-1505.8(k). A mortgagee or its agent is exempt from criminal prosecution for trespassing if it enters abandoned residential property for the purpose of securing or maintaining it. 720 ILCS 5/21-3(e-5).
The court may not grant the motion, however, if the mortgagor, an unknown owner, owner, or lawful occupant appears and objects to a finding of abandonment. 735 ILCS 5/15-1505.8(g). The court must also vacate an expedited judgment if the mortgagor or lawful occupant appears in the action before the order confirming sale and presents evidence establishing that the property has not been abandoned. 735 ILCS 5/15-1505.8(h). Also if a lawful occupant has not been made a party to the foreclosure and had his or her interests terminated therein, the lawful occupant’s personal property will not be deemed to have been abandoned. 735 § 5/15-1505.8(k)(2).
Author
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Solomon has nearly two decades of experience representing financial institutions, real estate investors and privately owned business entities. Solomon concentrates his practice in the areas of banking, consumer financial services, real estate, business law and related litigation and appellate practice.
