(735 ILCS 5/15‑1501) (from Ch. 110, par. 15‑1501)
Sec. 15‑1501.
Parties.
(a) Necessary Parties. For the purposes of
Section 2‑405 of the Code of Civil Procedure, only (i) the mortgagor and (ii)
other
persons (but not guarantors)
who owe payment of indebtedness or the performance of other
obligations secured by the mortgage and against whom personal liability is
asserted shall be necessary parties defendant in
a foreclosure. The court may proceed to adjudicate their respective
interests, but any disposition of the mortgaged real estate shall be
subject to (i) the interests of all other persons not made a party or (ii)
interests in the mortgaged real estate not otherwise barred or
terminated in the foreclosure.
(b) Permissible Parties. Any party may join as a party any other
person, although such person is not a necessary party, including, without
limitation, the following:
(1) All persons having a possessory interest in the |
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(2) A mortgagor's spouse who has waived the right of
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(3) A trustee holding an interest in the mortgaged
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real estate or a beneficiary of such trust;
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(4) The owner or holder of a note secured by a trust
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(5) Guarantors, provided that in a foreclosure any
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such guarantor also may be joined as a party in a separate count in an action on such guarantor's guaranty;
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(6) The State of Illinois or any political
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subdivision thereof, where a foreclosure involves real estate upon which the State or such subdivision has an interest or claim for lien, in which case "An Act in relation to immunity for the State of Illinois", approved December 10, 1971, as amended, shall not be effective;
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(7) The United States of America or any agency or
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department thereof where a foreclosure involves real estate upon which the United States of America or such agency or department has an interest or a claim for lien;
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(8) Any assignee of leases or rents relating to the
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(9) Any person who may have a lien under the
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(10) Any other mortgagee or claimant.
(c) Unknown Owners. Any unknown owner may be made a party in accordance
with Section 2‑413 of the Code of Civil Procedure.
(d) Right to Become Party. Any person who has or claims an interest in
real estate which is the subject of a foreclosure or an interest in any
debt secured by the mortgage shall have an unconditional
right to appear and become a party in such foreclosure in accordance with
subsection (e) of Section 15‑1501, provided, that neither such
appearance by a lessee
whose interest in the real estate is subordinate to the interest being
foreclosed, nor the act of making such lessee a party,
shall result in the termination of the lessee's lease unless the
termination of the lease or lessee's interest in the mortgaged real estate is
specifically
ordered by the court in the judgment of foreclosure.
(e) Time of Intervention.
(1) Of Right. A person not a party, other than a
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nonrecord claimant given notice in accordance with paragraph (2) of subsection (c) of Section 15‑1502, who has or claims an interest in the mortgaged real estate may appear and become a party at any time prior to the entry of judgment of foreclosure. A nonrecord claimant given such notice may appear and become a party at any time prior to the earlier of (i) the entry of a judgment of foreclosure or (ii) 30 days after such notice is given.
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(2) In Court's Discretion. After the right to
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intervene expires and prior to the sale in accordance with the judgment, the court may permit a person who has or claims an interest in the mortgaged real estate to appear and become a party on such terms as the court may deem just.
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(3) Later Right. After the sale of the mortgaged
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real estate in accordance with a judgment of foreclosure and prior to the entry of an order confirming the sale, a person who has or claims an interest in the mortgaged real estate, may appear and become a party, on such terms as the court may deem just, for the sole purpose of claiming an interest in the proceeds of sale. Any such party shall be deemed a party from the commencement of the foreclosure, and the interest of such party in the real estate shall be subject to all orders and judgments entered in the foreclosure.
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(4) Termination of Interest. Except as provided in
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Section 15‑1501(d), the interest of any person who is allowed to appear and become a party shall be terminated, and the interest of such party in the real estate shall attach to the proceeds of sale.
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(f) Separate Actions. Any mortgagee or claimant, other than the
mortgagee who commences a foreclosure, whose interest in the mortgaged real
estate is recorded prior to the filing of a notice of foreclosure in
accordance with this Article but who is not made a party to such
foreclosure, shall not be barred from filing a separate foreclosure (i) as
an intervening defendant or counterclaimant in accordance with subsections
(d) and (e) of Section
15‑1501 if a judgment of foreclosure has not been entered
in the original foreclosure or (ii) in a new foreclosure subsequent to the
entry of a judgment of foreclosure in the original foreclosure.
(g) Service on the State of Illinois. When making the State of
Illinois a party to a foreclosure, summons may be served by sending, by
registered or certified mail, a copy of the summons and the complaint to
the Attorney General. The complaint shall set forth with particularity the
nature of the interest or lien of the State of Illinois. If such interest
or lien appears in a recorded instrument, the complaint must state the
document number of the instrument and the office wherein it was recorded.
(Source: P.A. 88‑265.)
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(735 ILCS 5/15‑1504) (from Ch. 110, par. 15‑1504)
Sec. 15‑1504.
Pleadings and service.
(a) Form of Complaint. A foreclosure complaint
may be in substantially the following form:
(1) Plaintiff files this complaint to foreclose the |
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mortgage (or other conveyance in the nature of a mortgage) (hereinafter called "mortgage") hereinafter described and joins the following person as defendants: (here insert names of all defendants).
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(2) Attached as Exhibit "A" is a copy of the
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mortgage and as Exhibit "B" is a copy of the note secured thereby.
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(3) Information concerning mortgage:
(A) Nature of instrument: (here insert whether a
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mortgage, trust deed or other instrument in the nature of a mortgage, etc.)
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(B) Date of mortgage:
(C) Name of mortgagor:
(D) Name of mortgagee:
(E) Date and place of recording:
(F) Identification of recording: (here insert
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book and page number or document number)
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(G) Interest subject to the mortgage: (here
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insert whether fee simple, estate for years, undivided interest, etc.)
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(H) Amount of original indebtedness, including
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subsequent advances made under the mortgage:
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(I) Both the legal description of the mortgaged
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real estate and the common address or other information sufficient to identify it with reasonable certainty:
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(J) Statement as to defaults, including, but not
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necessarily limited to, date of default, current unpaid principal balance, per diem interest accruing, and any further information concerning the default:
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(K) Name of present owner of the real estate:
(L) Names of other persons who are joined as
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defendants and whose interest in or lien on the mortgaged real estate is sought to be terminated:
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(M) Names of defendants claimed to be personally
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liable for deficiency, if any:
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(N) Capacity in which plaintiff brings this
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foreclosure (here indicate whether plaintiff is the legal holder of the indebtedness, a pledgee, an agent, the trustee under a trust deed or otherwise, as appropriate):
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(O) Facts in support of redemption period
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shorter than the longer of (i) 7 months from the date the mortgagor or, if more than one, all the mortgagors (I) have been served with summons or by publication or (II) have otherwise submitted to the jurisdiction of the court, or (ii) 3 months from the entry of the judgment of foreclosure, if sought (here indicate whether based upon the real estate not being residential, abandonment, or real estate value less than 90% of amount owed, etc.):
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(P) Statement that the right of redemption has
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been waived by all owners of redemption, if applicable:
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(Q) Facts in support of request for attorneys'
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fees and of costs and expenses, if applicable:
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(R) Facts in support of a request for
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appointment of mortgagee in possession or for appointment of receiver, and identity of such receiver, if sought:
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(S) Offer to mortgagor in accordance with
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Section 15‑1402 to accept title to the real estate in satisfaction of all indebtedness and obligations secured by the mortgage without judicial sale, if sought:
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(T) Name or names of defendants whose right to
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possess the mortgaged real estate, after the confirmation of a foreclosure sale, is sought to be terminated and, if not elsewhere stated, the facts in support thereof:
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REQUEST FOR RELIEF
Plaintiff requests:
(i) A judgment of foreclosure and sale.
(ii) An order granting a shortened redemption
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(iii) A personal judgment for a deficiency, if
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(iv) An order granting possession, if sought.
(v) An order placing the mortgagee in possession or
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appointing a receiver, if sought.
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(vi) A judgment for attorneys' fees, costs and
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(b) Required Information. A foreclosure complaint need contain only such
statements and requests called for by the form set forth in subsection (a) of
Section
15‑1504 as may be appropriate for the relief sought. Such complaint may
be filed as a counterclaim, may be joined with other counts or may include
in the same count additional matters or a request for any additional
relief permitted by Article
II of the Code of Civil Procedure.
(c) Allegations. The statements contained in a complaint in the form
set forth in subsection (a) of Section 15‑1504 are deemed and construed to include
allegations as follows:
(1) on the date indicated the obligor of the
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indebtedness or other obligations secured by the mortgage was justly indebted in the amount of the indicated original indebtedness to the original mortgagee or payee of the mortgage note;
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(2) that the exhibits attached are true and correct
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copies of the mortgage and note and are incorporated and made a part of the complaint by express reference;
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(3) that the mortgagor was at the date indicated an
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owner of the interest in the real estate described in the complaint and that as of that date made, executed and delivered the mortgage as security for the note or other obligations;
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(4) that the mortgage was recorded in the county in
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which the mortgaged real estate is located, on the date indicated, in the book and page or as the document number indicated;
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(5) that defaults occurred as indicated;
(6) that at the time of the filing of the complaint
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the persons named as present owners are the owners of the indicated interests in and to the real estate described;
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(7) that the mortgage constitutes a valid, prior and
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paramount lien upon the indicated interest in the mortgaged real estate, which lien is prior and superior to the right, title, interest, claim or lien of all parties and nonrecord claimants whose interests in the mortgaged real estate are sought to be terminated;
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(8) that by reason of the defaults alleged, if the
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indebtedness has not matured by its terms, the same has become due by the exercise, by the plaintiff or other persons having such power, of a right or power to declare immediately due and payable the whole of all indebtedness secured by the mortgage;
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(9) that any and all notices of default or election
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to declare the indebtedness due and payable or other notices required to be given have been duly and properly given;
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(10) that any and all periods of grace or other
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period of time allowed for the performance of the covenants or conditions claimed to be breached or for the curing of any breaches have expired;
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(11) that the amounts indicated in the statement in
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the complaint are correctly stated and if such statement indicates any advances made or to be made by the plaintiff or owner of the mortgage indebtedness, that such advances were, in fact, made or will be required to be made, and under and by virtue of the mortgage the same constitute additional indebtedness secured by the mortgage; and
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(12) that, upon confirmation of the sale, the holder
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of the certificate of sale or deed issued pursuant to that certificate or, if no certificate or deed was issued, the purchaser at the sale will be entitled to full possession of the mortgaged real estate against the parties named in clause (T) of paragraph (3) of subsection (a) of Section 15‑1504 or elsewhere to the same effect; the omission of any party indicates that plaintiff will not seek a possessory order in the order confirming sale unless the request is subsequently made under subsection (h) of Section 15‑1701 or by separate action under Article 9 of this Code.
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(d) Request for Fees and Costs. A statement in the complaint that
plaintiff seeks the inclusion of attorneys' fees and of costs and expenses
shall be deemed and construed to include allegations that:
(1) plaintiff has been compelled to employ and
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retain attorneys to prepare and file the complaint and to represent and advise the plaintiff in the foreclosure of the mortgage and the plaintiff will thereby become liable for the usual, reasonable and customary fees of the attorneys in that behalf;
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(2) that the plaintiff has been compelled to advance
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or will be compelled to advance, various sums of money in payment of costs, fees, expenses and disbursements incurred in connection with the foreclosure, including, without limiting the generality of the foregoing, filing fees, stenographer's fees, witness fees, costs of publication, costs of procuring and preparing documentary evidence and costs of procuring abstracts of title, Torrens certificates, foreclosure minutes and a title insurance policy;
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(3) that under the terms of the mortgage, all such
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advances, costs, attorneys' fees and other fees, expenses and disbursements are made a lien upon the mortgaged real estate and the plaintiff is entitled to recover all such advances, costs, attorneys' fees, expenses and disbursements, together with interest on all advances at the rate provided in the mortgage, or, if no rate is provided therein, at the statutory judgment rate, from the date on which such advances are made;
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(4) that in order to protect the lien of the
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mortgage, it may become necessary for plaintiff to pay taxes and assessments which have been or may be levied upon the mortgaged real estate;
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(5) that in order to protect and preserve the
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mortgaged real estate, it may also become necessary for the plaintiff to pay liability (protecting mortgagor and mortgagee), fire and other hazard insurance premiums on the mortgaged real estate, make such repairs to the mortgaged real estate as may reasonably be deemed necessary for the proper preservation thereof, advance for costs to inspect the mortgaged real estate or to appraise it, or both, and advance for premiums for pre‑existing private or governmental mortgage insurance to the extent required after a foreclosure is commenced in order to keep such insurance in force; and
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(6) that under the terms of the mortgage, any money
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so paid or expended will become an additional indebtedness secured by the mortgage and will bear interest from the date such monies are advanced at the rate provided in the mortgage, or, if no rate is provided, at the statutory judgment rate.
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(e) Request for Foreclosure. The request for foreclosure is deemed and
construed to mean that the plaintiff requests that:
(1) an accounting may be taken under the direction
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of the court of the amounts due and owing to the plaintiff;
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(2) that the defendants be ordered to pay to the
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plaintiff before expiration of any redemption period (or, if no redemption period, before a short date fixed by the court) whatever sums may appear to be due upon the taking of such account, together with attorneys' fees and costs of the proceedings (to the extent provided in the mortgage or by law);
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(3) that in default of such payment in accordance
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with the judgment, the mortgaged real estate be sold as directed by the court, to satisfy the amount due to the plaintiff as set forth in the judgment, together with the interest thereon at the statutory judgment rate from the date of the judgment;
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(4) that in the event the plaintiff is a purchaser
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of the mortgaged real estate at such sale, the plaintiff may offset against the purchase price of such real estate the amounts due under the judgment of foreclosure and order confirming the sale;
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(5) that in the event of such sale and the failure
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of any person entitled thereto to redeem prior to such sale pursuant to this Article, the defendants made parties to the foreclosure in accordance with this Article, and all nonrecord claimants given notice of the foreclosure in accordance with this Article, and all persons claiming by, through or under them, and each and any and all of them, may be forever barred and foreclosed of any right, title, interest, claim, lien, or right to redeem in and to the mortgaged real estate; and
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(6) that if no redemption is made prior to such
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sale, a deed may be issued to the purchaser thereat according to law and such purchaser be let into possession of the mortgaged real estate in accordance with Part 17 of this Article.
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(f) Request for Deficiency Judgment. A request for a personal judgment
for a deficiency in a foreclosure complaint if the sale of the mortgaged
real estate fails to produce a sufficient amount to pay the amount found
due, the plaintiff may have a personal judgment against any party in the
foreclosure indicated as being personally liable therefor and the enforcement
thereof be had as provided by law.
(g) Request for Possession or Receiver. A request for possession or appointment
of a receiver has the meaning as stated in subsection (b) of Section 15‑1706.
(h) Answers by Parties. Any party
may assert its interest by counterclaim and such counterclaim may at the
option of that party stand in lieu of answer to the complaint for
foreclosure and all counter complaints previously or thereafter filed
in the foreclosure. Any such counterclaim shall be deemed to constitute a
statement that the counter claimant does not have sufficient knowledge to
form a belief as to the truth or falsity of the
allegations of the complaint and all other counterclaims, except
to the extent that the counterclaim admits or specifically denies such
allegations.
(Source: P.A. 91‑357, eff. 7‑29‑99.)
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(735 ILCS 5/15‑1507) (from Ch. 110, par. 15‑1507)
Sec. 15‑1507.
Judicial Sale.
(a) In General. Except as provided in
Sections 15‑1402 and 15‑1403, upon entry of a judgment of foreclosure, the
real estate which is the subject of the judgment shall be sold at a
judicial sale in accordance with this Section 15‑1507.
(b) Sale Procedures. Upon expiration of the reinstatement period and
the redemption period in accordance with subsection (b) or (c) of Section
15‑1603 or upon the entry of a judgment of foreclosure after the waiver of
all rights of redemption, except as provided in subsection (g) of Section
15‑1506, the real estate shall be sold at a sale as provided in this
Article, on such terms and conditions as shall be specified by the court in
the judgment of foreclosure. A sale may be conducted by any judge or sheriff.
(c) Notice of Sale. The mortgagee, or such other party designated by the
court, in a foreclosure under this Article shall give public notice of the
sale as follows:
(1) The notice of sale shall include at least the |
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following information, but an immaterial error in the information shall not invalidate the legal effect of the notice:
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(A) the name, address and telephone number of
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the person to contact for information regarding the real estate;
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(B) the common address and other common
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description (other than legal description), if any, of the real estate;
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(C) a legal description of the real estate
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sufficient to identify it with reasonable certainty;
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(D) a description of the improvements on the
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(E) the times specified in the judgment, if any,
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when the real estate may be inspected prior to sale;
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(F) the time and place of the sale;
(G) the terms of the sale;
(H) the case title, case number and the court in
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which the foreclosure was filed; and
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(I) such other information ordered by the Court.
(2) The notice of sale shall be published at least 3
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consecutive calendar weeks (Sunday through Saturday), once in each week, the first such notice to be published not more than 45 days prior to the sale, the last such notice to be published not less than 7 days prior to the sale, by: (i) (A) advertisements in a newspaper circulated to the general public in the county in which the real estate is located, in the section of that newspaper where legal notices are commonly placed and (B) separate advertisements in the section of such a newspaper, which (except in counties with a population in excess of 3,000,000) may be the same newspaper, in which real estate other than real estate being sold as part of legal proceedings is commonly advertised to the general public; provided, that the separate advertisements in the real estate section need not include a legal description and that where both advertisements could be published in the same newspaper and that newspaper does not have separate legal notices and real estate advertisement sections, a single advertisement with the legal description shall be sufficient; and (ii) such other publications as may be further ordered by the court.
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(3) The party who gives notice of public sale in
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accordance with subsection (c) of Section 15‑1507 shall also give notice to all parties in the action who have appeared and have not theretofore been found by the court to be in default for failure to plead. Such notice shall be given in the manner provided in the applicable rules of court for service of papers other than process and complaint, not more than 45 days nor less than 7 days prior to the day of sale. After notice is given as required in this Section a copy thereof shall be filed in the office of the clerk of the court entering the judgment, together with a certificate of counsel or other proof that notice has been served in compliance with this Section.
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(4) The party who gives notice of public sale in
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accordance with subsection (c) of Section 15‑1507 shall again give notice in accordance with that Section of any adjourned sale; provided, however, that if the adjourned sale is to occur less than 60 days after the last scheduled sale, notice of any adjourned sale need not be given pursuant to this Section. In the event of adjournment, the person conducting the sale shall, upon adjournment, announce the date, time and place upon which the adjourned sale shall be held. Notwithstanding any language to the contrary, for any adjourned sale that is to be conducted more than 60 days after the date on which it was to first be held, the party giving notice of such sale shall again give notice in accordance with this Section.
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(5) Notice of the sale may be given prior to the
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expiration of any reinstatement period or redemption period.
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(6) No other notice by publication or posting shall
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be necessary unless required by order or rule of the court.
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(7) The person named in the notice of sale to be
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contacted for information about the real estate may, but shall not be required, to provide additional information other than that set forth in the notice of sale.
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(d) Election of Property. If the real estate which is the subject of a
judgment of foreclosure is susceptible of division, the court may order it to be sold
as necessary to satisfy the judgment. The court shall determine which real
estate shall be sold, and the court may determine the order in which
separate tracts may be sold.
(e) Receipt upon Sale.
Upon and at the sale
of mortgaged real estate, the person conducting the sale shall give to
the purchaser a receipt of sale. The receipt shall describe the real
estate purchased and shall show the amount bid, the amount paid, the
total amount paid to
date and the amount still to be paid therefor. An
additional receipt shall be given at the time of each subsequent
payment.
(f) Certificate of Sale. Upon
payment in full of the amount bid, the person conducting
the sale shall issue, in duplicate, and give to the purchaser a Certificate
of Sale. The Certificate of Sale shall be in a recordable form, describe
the real estate purchased, indicate the date and place of sale and show the
amount paid therefor. The Certificate of Sale shall further indicate that
it is subject to confirmation by the court. The duplicate certificate may
be recorded in accordance with Section 12‑121. The Certificate of Sale
shall be freely assignable by endorsement thereon.
(g) Interest after Sale. Any bid at sale shall be deemed to include,
without the necessity of a court order, interest at the statutory judgment
rate on any unpaid portion of the sale price from the date of sale to the
date of payment.
(Source: P.A. 86‑974.)
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