(735 ILCS 5/15‑1701) (from Ch. 110, par. 15‑1701)
Sec. 15‑1701.
Right to possession.
(a) General. The provisions of
this Article shall govern the right to possession of the mortgaged real
estate during foreclosure. Possession under this Article includes physical
possession of the mortgaged real estate to the same extent to which the
mortgagor, absent the foreclosure, would have been entitled to physical
possession. For the purposes of Part 17, real estate is residential real estate
only if it is residential real estate at the time the foreclosure is commenced.
(b) Pre‑Judgment. Prior to the entry of a judgment of foreclosure:
(1) In the case of residential real estate, the |
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mortgagor shall be entitled to possession of the real estate except if (i) the mortgagee shall object and show good cause, (ii) the mortgagee is so authorized by the terms of the mortgage or other written instrument, and (iii) the court is satisfied that there is a reasonable probability that the mortgagee will prevail on a final hearing of the cause, the court shall upon request place the mortgagee in possession. If the residential real estate consists of more than one dwelling unit, then for the purpose of this Part residential real estate shall mean only that dwelling unit or units occupied by persons described in clauses (i), (ii) and (iii) of Section 15‑1219.
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(2) In all other cases, if (i) the mortgagee is so
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authorized by the terms of the mortgage or other written instrument, and (ii) the court is satisfied that there is a reasonable probability that the mortgagee will prevail on a final hearing of the cause, the mortgagee shall upon request be placed in possession of the real estate, except that if the mortgagor shall object and show good cause, the court shall allow the mortgagor to remain in possession.
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(c) Judgment Through 30 Days After Sale Confirmation. After the entry
of a judgment of foreclosure and through the 30th day after a foreclosure
sale is confirmed:
(1) Subsection (b) of Section 15‑1701 shall be
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applicable, regardless of the provisions of the mortgage or other instrument, except that after a sale pursuant to the judgment the holder of the certificate of sale (or, if none, the purchaser at the sale) shall have the mortgagee's right to be placed in possession, with all rights and duties of a mortgagee in possession under this Article.
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(2) Notwithstanding paragraph (1) of subsection (b)
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and paragraph (1) of subsection (c) of Section 15‑1701, upon request of the mortgagee, a mortgagor of residential real estate shall not be allowed to remain in possession between the expiration of the redemption period and through the 30th day after sale confirmation unless (i) the mortgagor pays to the mortgagee or such holder or purchaser, whichever is applicable, monthly the lesser of the interest due under the mortgage calculated at the mortgage rate of interest applicable as if no default had occurred or the fair rental value of the real estate, or (ii) the mortgagor otherwise shows good cause. Any amounts paid by the mortgagor pursuant to this subsection shall be credited against the amounts due from the mortgagor.
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(d) After 30 Days After Sale Confirmation. The holder of
the certificate of sale or deed issued pursuant to that certificate or, if
no certificate or deed was issued, the purchaser, except to the extent the
holder or purchaser may consent otherwise, shall be entitled to possession of
the mortgaged real estate, as of the date 30 days after the order confirming
the sale is entered, against those parties to the foreclosure whose interests
the court has ordered terminated, without further notice to any party, further
order of the court, or resort to proceedings under any other statute other than
this Article.
This right to possession shall be limited by the provisions
governing entering and enforcing orders of possession under subsection (g) of
Section
15‑1508.
If the holder or purchaser determines that there are occupants
of the mortgaged real estate who have not been made parties to the foreclosure
and had their interests terminated therein, the holder or purchaser may bring a
proceeding under subsection (h) of this Section or under Article 9 of this Code
to terminate the rights of possession of any such occupants. The holder or
purchaser shall not be entitled to proceed against any such occupant under
Article 9 of this Code until after 30 days after the order confirming the sale
is entered.
(e) Termination of Leases. A lease of all or any part of the mortgaged
real estate shall not be terminated automatically solely by virtue of the entry
into possession by (i) a mortgagee or receiver prior to the entry of an order
confirming the sale, (ii) the holder of the certificate of sale, (iii) the
holder of the deed issued pursuant to that certificate, or (iv) if no
certificate or deed was issued, the purchaser at the sale.
(f) Other Statutes; Instruments. The provisions of this Article
providing for possession of mortgaged real estate shall supersede any other
inconsistent statutory provisions. In particular, and without limitation,
whenever a receiver is sought to be appointed in any action in which a
foreclosure is also pending, a receiver shall be appointed only in
accordance with this Article. Except as may be authorized by this Article,
no mortgage or other instrument may modify or supersede the provisions of this
Article.
(g) Certain Leases. Leases of the mortgaged real estate entered into by
a mortgagee in possession or a receiver and approved by the court in a
foreclosure shall be binding on all parties, including the mortgagor after
redemption, the purchaser at a sale pursuant to a judgment of foreclosure
and any person acquiring an interest in the mortgaged real estate after
entry of a judgment of foreclosure in accordance with Sections 15‑1402 and
15‑1403.
(h) Proceedings Against Certain Occupants.
(1) The mortgagee‑in‑possession of the mortgaged
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real estate under Section 15‑1703, a receiver appointed under Section 15‑1704, a holder of the certificate of sale or deed, or the purchaser may, at any time during the pendency of the foreclosure and up to 90 days after the date of the order confirming the sale, file a supplemental petition for possession against a person not personally named as a party to the foreclosure. The supplemental petition for possession shall name each such occupant against whom possession is sought and state the facts upon which the claim for relief is premised.
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(2) The petitioner shall serve upon each named
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occupant the petition, a notice of hearing on the petition, and, if any, a copy of the certificate of sale or deed. The proceeding for the termination of such occupant's possessory interest, including service of the notice of the hearing and the petition, shall in all respects comport with the requirements of Article 9 of this Code, except as otherwise specified in this Section. The hearing shall be no less than 21 days from the date of service of the notice.
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(3) The supplemental petition shall be heard as part
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of the foreclosure proceeding and without the payment of additional filing fees. An order for possession obtained under this Section shall name each occupant whose interest has been terminated, shall recite that it is only effective as to the occupant so named and those holding under them, and shall be enforceable for no more than 90 days after its entry, except that the 90‑day period may be extended to the extent and in the manner provided in Section 9‑117 of Article 9.
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(Source: P.A. 88‑21; 88‑265; 88‑670, eff. 12‑2‑94; 89‑203, eff. 7‑21‑95.)
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(735 ILCS 5/15‑1702) (from Ch. 110, par. 15‑1702)
Sec. 15‑1702.
Specific Rules of Possession.
(a) Mortgagee's Rights. No
mortgagee shall be required to take possession of the mortgaged real
estate, whether upon application made by any other party or otherwise.
Whenever a mortgagee entitled to possession so requests, the court shall
appoint a receiver. The failure of a mortgagee to request possession or
appointment of a receiver shall not preclude a mortgagee otherwise entitled
to possession from making such a request at any future time.
The appointment of a receiver shall not preclude a mortgagee from thereafter
seeking to exercise such mortgagee's right to be placed in possession.
(b) Designation of Receivers. Whenever a receiver is to be appointed,
the mortgagee shall be entitled to designate the receiver. If the mortgagor or
any other party to the foreclosure objects to any such designation
or designations and shows good cause, or the court disapproves the
designee, the mortgagee in such instance shall
be entitled to make another designation.
(c) Rights of Mortgagee Having Priority. If a mortgagee having priority
objects to the proposed possession by a subordinate mortgagee or by a receiver
designated by the subordinate mortgagee, upon entry of a finding in accordance
with subsection (d) of Section 15‑1702 the court shall instead place that
objecting mortgagee in possession or, if a receiver is to be designated in
accordance with subsection (b) of Section 15‑1702, allow the designation of
the receiver to be made by that objecting mortgagee.
(d) Removal of Mortgagee in Possession. A mortgagee placed in possession
shall not be removed from possession, and no receiver or other mortgagee
shall be placed in possession except upon (i) the mortgagee's misconduct,
death, legal disability or other inability to act, (ii) appointment of a
receiver in accordance with subsection (a) of Section 15‑1704 or (iii) a
showing of good cause by a mortgagee having priority. A receiver shall not
be removed solely on account of being designated by a mortgagee later
determined not to have priority.
(e) Determination of Priority. If the court is required to determine
priority for the purposes of subsection (c) of Section 15‑1702, a new
determination shall be made each time a mortgagee is to be placed in
possession or a receiver is to be appointed and shall be an interim
determination which shall not preclude the court from making a contrary
determination later in the foreclosure. If the court subsequently shall
make such a contrary determination, a mortgagee in possession or acting
receiver shall not be removed except in accordance with Part 17 of this Article.
(f) Rights to Crops. With respect to any crops growing or to be grown
on the mortgaged real estate, the rights of a holder of any obligation
secured by a collateral assignment of beneficial interest in a land trust,
the rights of a mortgagee in possession, or the rights of a receiver,
including rights by virtue of an equitable lien, shall be subject to a
security interest properly perfected pursuant to
Article 9 of the Uniform Commercial Code, where the holder of a
collateral assignment, mortgagee in possession, or receiver becomes
entitled to crops by obtaining possession on or after the effective date of
this Amendatory Act of 1988.
(Source: P.A. 85‑1427.)
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(735 ILCS 5/15‑1704) (from Ch. 110, par. 15‑1704)
Sec. 15‑1704.
Receivers.
(a) Receiver. Notwithstanding the
provisions of subsections (b), (c) and (d) of Section 15‑1701, and except
as provided in Section 15‑1702, upon request of any party and a showing of
good cause, the court shall appoint a receiver for the mortgaged real estate.
(b) Powers. A receiver appointed pursuant to this Article shall have
possession of the mortgaged real estate and other property subject to the
mortgage during the foreclosure, shall have full power and authority to
operate, manage and conserve such property, and shall have all the usual
powers of receivers in like cases. Without limiting the foregoing, a
receiver shall have the power and authority to:
(1) secure tenants and execute leases for the real estate,
the duration and terms of which are
reasonable and customary for the type of use involved, and such leases
shall have the same priority as if made by the owner of the real estate;
but, unless approved by the Court, the receiver shall not
execute oil, gas or other mineral leases, or (even if otherwise allowed by
law) leases extending beyond the time of the receiver's possession;
provided, however, with respect to residential real estate leased by the
receiver, nothing in this Section shall affect the legal rights of any lessee
with respect to the safety and habitability of the residential real estate;
(2) collect the rents, issues and profits from the mortgaged real estate;
(3) insure the mortgaged real estate against loss by fire or other casualty;
(4) employ counsel, custodians, janitors and other help; and
(5) pay taxes which may have been or may be levied against the mortgaged real estate.
(c) Duties. A receiver appointed pursuant to this Article must manage
the mortgaged real estate as would a prudent person, taking into account
the effect of the receiver's management on the interest of the mortgagor.
A receiver may, without an order of the court, delegate managerial
functions to a person in the business of managing real estate of the kind
involved who is financially responsible, not related to the mortgagee or
receiver and prudently selected. However, the receiver
shall remain responsible to the mortgagor or other
persons for the acts or omissions of such management agent. When fees are
paid to such a management agent, the receiver's fees may be adjusted to the
extent the court deems appropriate. In managing the mortgaged real estate
and other property subject to the mortgage,
a receiver or receiver's delegate, to the extent the receiver receives
sufficient receipts from the mortgaged real estate, such other property or
other sources, except to the extent ordered otherwise by the court:
(1) shall maintain the existing casualty and liability insurance
required in accordance with the mortgage or applicable to the real estate
and other property subject to the mortgage at the time the receiver took possession;
(2) shall use reasonable efforts to maintain the real estate and other
property subject to the mortgage in at least as good condition as existed at
the time the receiver took possession, excepting reasonable wear and tear
and damage by any casualty;
(3) shall apply receipts to payment of ordinary operating expenses,
including royalties, rents and other expenses of management;
(4) shall pay any shared or common expense assessments due to any
association of owners of interests in real estate to the extent that such
assessments are or may become a lien against the mortgaged real estate;
(5) may pay the amounts due under any mortgage if the mortgagee thereof
is not a party in the foreclosure;
(6) may carry such additional casualty and liability insurance as is
reasonably available and reasonable as to amounts and risks covered;
(7) may make other repairs and improvements necessary to comply with
building, housing, and other similar codes or with existing contractual
obligations affecting the mortgaged real estate;
(8) may hold receipts as reserves reasonably required for the foregoing purposes; and
(9) may take such other actions as may be reasonably necessary to
conserve the mortgaged real estate and other property subject to the
mortgage, or as otherwise authorized by the court.
(d) Allocation of Receipts. Receipts received from operation of the
real estate and other property subject to the mortgage by the receiver
shall be applied in the following order of priority.
(1) to reimbursement of the receiver for all reasonable costs and
expenses incurred by the receiver or the receiver's delegates;
(2) to payment of insurance premiums authorized in paragraph (1) of
subsection (c) of Section 15‑1704;
(3) to payment of the receiver's delegates of any reasonable management
fees for managing real estate of the type involved;
(4) to payment of receiver's fees allowed by the court;
(5) to payment of expenses authorized in paragraphs (2), (3) and (4) of
subsection (c) of Section 15‑1704;
(6) to payment of amounts authorized in paragraph (5) of subsection (c)
of Section 15‑1704;
(7) to payment of expenses authorized in paragraphs (6) and (7) of
subsection (c) of Section 15‑1704; and
(8) the balance, if any, shall be held or disbursed as ordered by the court.
(e) Non‑Liability for Allocations. A receiver shall in no event be
liable to any person for the allocation of, or failure to allocate,
receipts to possible expenditures within the same priority category.
(f) Removal. The court may remove a receiver upon a showing of good
cause, in which case a new receiver may be appointed in accordance with
subsection (b) of Section 15‑1702 and subsection (a) of Section 15‑1704.
(Source: P.A. 84‑1462.)
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