The entire process in Illinois takes, on average,
from the filing of the complaint to the eviction by
the sheriff, nine months.
Illinois Foreclosure
Law:
Judicial
Foreclosure. Except as provided in subsection (d) of
Section 15‑1501, the interest in the mortgaged real
estate of (i) all persons made a party in such
foreclosure and (ii) all nonrecord claimants given
notice in accordance with paragraph (2) of
subsection (c) of Section 15‑1502, shall be
terminated by the judicial sale of the real estate,
pursuant to a judgment of foreclosure, provided the
sale is confirmed
Illinois Foreclosure Process
1. File is referred to an Attorney - Mortgage
Company contracts with Foreclosure Attorney in
Illinois, the mortgage company and the attorney
typically have a computer system that is linked in
order to refer a file to the Illinois Foreclosure
Law attorney.
2. File Received by Attorney - Once the file
is received by an attorney they tack on their fees
and they begin their process of contacting courts
and following Illinois Foreclosure Law protocall.
3. Title Report Received - Also known as
title search. The analysis and written report on
current status to real property, this includes the
names of the title holders, how title is held (joint
tenants, right of survivorship etc.),
the property description, tax ID, encumbrances
(liens, judgments, mortgages, deeds of trust), and
property taxes due or paid. The entire history of
the title is called an abstract and holds vital
information about chain of title. A title report is
prepared by a n attorney, title company, an escrow
company, or an abstractor, according to local
practice. The attorney uses the information to
determine who to serve and the current status of the
property.
4.
Complaint Filed - Notice of Foreclosure. A
notice of foreclosure, whether the foreclosure
is initiated by complaint or counterclaim, made
in accordance with this Section and recorded in
the county in which the mortgaged real estate is
located shall be constructive notice of the
pendency of the foreclosure to every person
claiming an interest in or lien on the mortgaged
real estate, whose interest or lien has not been
recorded prior to the recording of such notice
of foreclosure. Such notice of foreclosure must
be executed by any party or any party's attorney
and shall include (i) the names of all
plaintiffs and the case number, (ii) the court
in which the action was brought, (iii) the names
of title holders of record, (iv) a legal
description of the real estate sufficient to
identify it with reasonable certainty, (v) a
common address or description of the location of
the real estate and (vi) identification of the
mortgage sought to be foreclosed. An incorrect
common address or description of the location,
or an immaterial error in the identification of
a plaintiff or title holder of record, shall not
invalidate the lis pendens effect of the notice
under this Section.
5. Service - 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.
6.
Judgment Entered - No Objection. In a
foreclosure, the court shall enter a judgment
satisfying the mortgage indebtedness by vesting
absolute title to the mortgaged real estate in
the mortgagee free and clear of all claims,
liens (except liens of the United States of
America which cannot be foreclosed without
judicial sale) and interest of the mortgagor,
including all rights of reinstatement and
redemption, and of all rights of all other
persons made parties in the foreclosure whose
interests are subordinate to that of the
mortgagee and all nonrecord claimants given
notice in accordance with paragraph (2) of
subsection (c) of Section 15‑1502 if at any time
before sale: (1) the mortgagee offers, in
connection with such a judgment, to waive any
and all rights to a personal judgment for
deficiency against the mortgagor and against all
other persons liable for the indebtedness or
other obligations secured by the mortgage; (2)
such offer is made either in the foreclosure
complaint or by motion upon notice to all
parties not in default; (3) all mortgagors who
then have an interest in the mortgaged real
estate, by answer to the complaint, response to
the motion or stipulation filed with the court
expressly consent to the entry of such judgment;
(4) no other party, by answer or by response to
the motion or stipulation, within the time
allowed for such answer or response, objects to
the entry of such judgment; and (5) upon notice
to all parties who have not previously been
found in default for failure to appear, answer
or otherwise plead. (b) Objection. If any party
other than a mortgagor who then has an interest
in the mortgaged real estate objects to the
entry of such judgment by consent, the court,
after hearing, shall enter an order providing
either: (1) that for good cause shown, the
judgment by consent shall not be allowed; or (2)
that, good cause not having been shown by the
objecting party and the objecting party not
having agreed to pay the amount required to
redeem in accordance with subsection (d) of
Section 15‑1603, title to the mortgaged real
estate be vested in the mortgagee as requested
by the mortgagee and consented to by the
mortgagor
Judgment Entered - A judgment is entered against
homeowner, and interested parties noted on the title
search, who have failed to represent or defend
against the foreclosure suit brought by the
mortgage company. If a homeowner fails to file a
plea or answer to defend the property the judgment
is entered
by the attorney and mortgage company.
Presale Redemption - because the
foreclosure action involves a monetary default
in the case of a foreclosure involving a
monetary default, the mortgagor can reinstate by
paying the entire amount of principal and
interest and corporate advances that are due and
payable to bring mortgage current prior to
foreclosure.
7. Sale
Scheduled - Date, time and location of
foreclosure sale. Typically the mortgage company
knows at least 30 days in advance of the scheduled
foreclosure sale
8. Final Title Clear - the preliminary title
report ran has a gap period that is taken to current
to make sure no additional liens and judgments were
incurred and recorded during the foreclosure
process.
9. Sale Held - Opening bid Lender Acquire
Property successful third party bid,
What happens to homeowner: An order of
possession authorizing the removal of a person from
possession of the mortgaged real estate shall be
entered and enforced only against those persons
personally named as individuals in the complaint or
the petition under subsection (h) of Section 15‑1701
and in the order of possession and shall not be
entered and enforced against any person who is only
generically described as an unknown owner or
nonrecord claimant or by another generic designation
in the complaint.
Illinois Foreclosure Information Provided by
Illinois General Assembly
CIVIL PROCEDURE
(735 ILCS 5/) Code of Civil Procedure.
(735 ILCS 5/Art. XV heading)
ARTICLE XV
MORTGAGE FORECLOSURE
(735 ILCS 5/Art. XV Pt. 11 heading)
Part 11. General Provisions
(735 ILCS 5/15‑1101) (from Ch. 110, par. 15‑1101)
Sec. 15‑1101. Title. This Article shall be known,
and may be cited, as the Illinois Mortgage
Foreclosure Law.
(Source: P.A. 84‑1462.)
(735 ILCS 5/15‑1102) (from Ch. 110, par. 15‑1102)
Sec. 15‑1102. Enforcement. The Court has full power
to enforce any order entered pursuant to this
Article by contempt process or by such other order
as may be appropriate.
(Source: P.A. 84‑1462.)
(735 ILCS 5/15‑1103) (from Ch. 110, par. 15‑1103)
Sec. 15‑1103. Jurisdiction. The authority of the
court continues during the entire pendency of the
foreclosure and until disposition of all matters
arising out of the foreclosure.
(Source: P.A. 85‑907.)
(735 ILCS 5/15‑1104) (from Ch. 110, par. 15‑1104)
Sec. 15‑1104. Wrongful Inducement of Abandonment.
Any person who willfully misrepresents to the Court
any fact resulting in a finding of abandonment of
mortgaged real estate in connection with subsection
(b) of Section 15‑1603 or subsection (d) of Section
15‑1706 of this Article or who threatens to injure
the person or property of occupants of mortgaged
real estate, or who knowingly gives such occupants
false and misleading information, or who harasses or
intimidates such occupants, with the intent of
inducing such occupants to abandon the mortgaged
premises, in order to obtain a finding of
abandonment under subsection (b) of Section 15‑1603
or subsection (d) of Section 15‑1706 of this
Article, shall be guilty of a Class B misdemeanor.
(Source: P.A. 84‑1462.)
(735 ILCS 5/15‑1105) (from Ch. 110, par. 15‑1105)
Sec. 15‑1105. Interpretation. (a) "May." The word
"may" as used in this Article means permissive and
not mandatory.
(b) "Shall." The word "shall" as used in this
Article means mandatory and not permissive.
(Source: P.A. 84‑1462.)
(735 ILCS 5/15‑1106) (from Ch. 110, par. 15‑1106)
Sec. 15‑1106. Applicability of Article. (a)
Exclusive Procedure. From and after the effective
date of this amendatory Act of 1986, the following
shall be foreclosed in a foreclosure pursuant to
this Article:
(1) any mortgage created prior to, on or after the
effective date of this amendatory Act of 1986;
(2) any real estate installment contract for
residential real estate entered into on or after the
effective date of this amendatory Act of 1986 and
under which (i) the purchase price is to be paid in
installments over a period in excess of five years
and (ii) the amount unpaid under the terms of the
contract at the time of the filing of the
foreclosure complaint, including principal and due
and unpaid interest, at the rate prior to default,
is less than 80% of the original purchase price of
the real estate as stated in the contract;
(3) any collateral assignment of beneficial interest
made on or after the effective date of this
amendatory Act of 1986 (i) which is made with
respect to a land trust which was created
contemporaneously with the collateral assignment of
beneficial interest, (ii) which is made pursuant to
a requirement of the holder of the obligation to
secure the payment of money or performance of other
obligations and (iii) as to which the security
agreement or other writing creating the collateral
assignment permits the real estate which is the
subject of the land trust to be sold to satisfy the
obligations.
(b) Uniform Commercial Code. A secured party, as
defined in Article 9 of the Uniform Commercial Code,
may at its election enforce its security interest in
a foreclosure under this Article if its security
interest was created on or after the effective date
of this amendatory Act of 1986 and is created by (i)
a collateral assignment of beneficial interest in a
land trust or (ii) an assignment for security of a
buyer's interest in a real estate installment
contract. Such election shall be made by filing a
complaint stating that it is brought under this
Article, in which event the provisions of this
Article shall be exclusive in such foreclosure.
(c) Real Estate Installment Contracts. A contract
seller may at its election enforce in a foreclosure
under this Article any real estate installment
contract entered into on or after the effective date
of this Amendatory Act of 1986 and not required to
be foreclosed under this Article. Such election
shall be made by filing a complaint stating that it
is brought under this Article, in which event the
provisions of this Article shall be exclusive in
such foreclosure. A contract seller must enforce its
contract under this Article if the real estate
installment contract is one described in paragraph
(2) of subsection (a) of Section 15‑1106.
(d) Effect of Election. An election made pursuant to
subsection (b) or (c) of Section 15‑1106 shall be
binding only in the foreclosure and shall be void if
the foreclosure is terminated prior to entry of
judgment.
(e) Supplementary General Principles of Law. General
principles of law and equity, such as those relating
to capacity to contract, principal and agent,
marshalling of assets, priority, subrogation,
estoppel, fraud, misrepresentations, duress,
collusion, mistake, bankruptcy or other validating
or invalidating cause, supplement this Article
unless displaced by a particular provision of it.
Section 9‑110 of the Code of Civil Procedure shall
not be applicable to any real estate installment
contract which is foreclosed under this Article.
(f) Pending Actions. A complaint to foreclose a
mortgage filed before July 1, 1987, and all
proceedings and third party actions in connection
therewith, shall be adjudicated pursuant to the
Illinois statutes and applicable law in effect
immediately prior to July 1, 1987. Such statutes
shall remain in effect with respect to such
complaint, proceedings and third party actions
notwithstanding the amendment or repeal of such
statutes on or after July 1, 1987.
(Source: P.A. 85‑907.)
(735 ILCS 5/15‑1107) (from Ch. 110, par. 15‑1107)
Sec. 15‑1107. Mode of Procedure. (a) Other Statutes.
Except as otherwise provided in this Article, the
mode of procedure, including the manner of service
of pleadings and other papers and service by
publication, shall be in accordance with the
provisions of Article II of the Illinois Code of
Civil Procedure and any other statutes of this State
which are from time to time applicable, and with
Illinois Supreme Court Rules applicable to actions
generally or otherwise applicable. If a mortgage
lien is being foreclosed under this Article and one
or more non‑mortgage liens or encumbrances is being
foreclosed or enforced in the same proceedings,
then, regardless of the respective priorities of the
various liens or encumbrances, the procedures and
all other provisions of this Article shall govern
such proceedings, and any inconsistent statutory
provisions shall not be applicable. Without limiting
the foregoing, any provision of Article XII or any
other Article of the Code of Civil Procedure shall
apply unless inconsistent with this Article and, in
case of such inconsistency, shall not be applicable
to actions under this Article.
(b) Mechanics' Liens. Mechanics' liens shall be
enforced as provided in the Mechanics' Lien Act;
provided, however, that any mechanics' lien claimant
may assert such lien in a foreclosure under this
Article, may intervene in such foreclosure in
accordance with this Article and may be made a party
in such foreclosure.
(c) Instruments Deemed a Mortgage. For the purpose
of proceeding under this Article, any instrument
described in paragraph (2) or (3) of subsection (a)
of Section 15‑1106, or in subsection (b) or (c) of
Section 15‑1106 which is foreclosed under this
Article shall be deemed a mortgage. For such
purpose, the real estate installment contract
purchaser, the assignor of the beneficial interest
in the land trust and the debtor, as appropriate,
shall be deemed the mortgagor, and the real estate
installment contract seller, the assignee of the
beneficial interest in the land trust and the
secured party, as appropriate, shall be deemed the
mortgagee.
(Source: P.A. 85‑907.)
(735 ILCS 5/Art. XV Pt. 12 heading)
Part 12. Definitions
(735 ILCS 5/15‑1201) (from Ch. 110, par. 15‑1201)
Sec. 15‑1201. Agricultural Real Estate.
"Agricultural real estate" means real estate which
is used primarily (i) for the growing and harvesting
of crops, (ii) for the feeding, breeding and
management of livestock, (iii) for dairying, or (iv)
for any other agricultural or horticultural use or
combination thereof, including without limitation,
aquaculture, silvaculture and any other activities
customarily engaged in by persons engaged in the
business of farming.
(Source: P.A. 84‑1462.)
(735 ILCS 5/15‑1202) (from Ch. 110, par. 15‑1202)
Sec. 15‑1202. Collateral Assignment of Beneficial
Interest. "Collateral assignment of beneficial
interest" means any pledge or assignment of the
beneficial interest in a land trust to any person to
secure a debt or other obligation.
(Source: P.A. 84‑1462.)
(735 ILCS 5/15‑1203) (from Ch. 110, par. 15‑1203)
Sec. 15‑1203. Foreclosure. "Foreclosure" means an
action commenced under this Article and "to
foreclose" means to terminate legal and equitable
interests in real estate pursuant to a foreclosure.
(Source: P.A. 84‑1462.)
(735 ILCS 5/15‑1204) (from Ch. 110, par. 15‑1204)
Sec. 15‑1204. Guarantor. "Guarantor" means any
person who has undertaken to pay any indebtedness or
perform any obligation of a mortgagor under a
mortgage or of any other person who owes payment or
the performance of other obligations secured by the
mortgage, which undertaking is made by a guaranty or
surety agreement of any kind.
(Source: P.A. 84‑1462.)
(735 ILCS 5/15‑1205) (from Ch. 110, par. 15‑1205)
Sec. 15‑1205. Land Trust. "Land trust" means any
trust arrangement under which the legal and
equitable title to real estate is held by a trustee,
the interest of the beneficiary of the trust is
personal property and the beneficiary or any person
designated in writing by the beneficiary has (i) the
exclusive power to direct or control the trustee in
dealing with the title to the trust property, (ii)
the exclusive control of the management, operation,
renting and selling of the trust property and (iii)
the exclusive right to the earnings, avails and
proceeds of the trust property.
(Source: P.A. 84‑1462.)
(735 ILCS 5/15‑1206) (from Ch. 110, par. 15‑1206)
Sec. 15‑1206. Mechanics' Lien. "Mechanics' lien" or
"mechanics' lien claim" means a lien or claim
arising under the Mechanics' Lien Act.
(Source: P.A. 84‑1462.)
(735 ILCS 5/15‑1207) (from Ch. 110, par. 15‑1207)
Sec. 15‑1207. Mortgage. "Mortgage" means any
consensual lien created by a written instrument
which grants or retains an interest in real estate
to secure a debt or other obligation. The term
"mortgage" includes, without limitation:
(a) mortgages securing "reverse mortgage" loans as
authorized by subsection (a) of Section 5 of the
Illinois Banking Act;
(b) mortgages securing "revolving credit" loans as
authorized by subsection (c) of Section 5 of the
Illinois Banking Act, Section 1‑6b of the Illinois
Savings and Loan Act and Section 46 of the Illinois
Credit Union Act;
(c) every deed conveying real estate, although an
absolute conveyance in its terms, which shall have
been intended only as a security in the nature of a
mortgage;
(d) equitable mortgages; and
(e) instruments which would have been deemed
instruments in the nature of a mortgage prior to the
effective date of this amendatory Act of 1987.
(Source: P.A. 85‑907.)
(735 ILCS 5/15‑1208) (from Ch. 110, par. 15‑1208)
Sec. 15‑1208. Mortgagee. "Mortgagee" means (i) the
holder of an indebtedness or obligee of a
non‑monetary obligation secured by a mortgage or any
person designated or authorized to act on behalf of
such holder and (ii) any person claiming through a
mortgagee as successor.
(Source: P.A. 84‑1462.)
(735 ILCS 5/15‑1209) (from Ch. 110, par. 15‑1209)
Sec. 15‑1209. Mortgagor. "Mortgagor" means (i) the
person whose interest in the real estate is the
subject of the mortgage and (ii) any person claiming
through a mortgagor as successor. Where a mortgage
is executed by a trustee of a land trust, the
mortgagor is the trustee and not the beneficiary or
beneficiaries.
(Source: P.A. 85‑907.)
(735 ILCS 5/15‑1210) (from Ch. 110, par. 15‑1210)
Sec. 15‑1210. Nonrecord Claimant. "Nonrecord
claimant" means any person (i) who has or claims to
have an interest in mortgaged real estate, (ii)
whose name or interest, at the time a notice of
foreclosure is recorded in accordance with Section
15‑1503, is not disclosed of record either (1) by
means of a recorded notice or (2) by means of a
proceeding which under the law as in effect at the
time the foreclosure is commenced would afford
constructive notice of the existence of such
interest and (iii) whose interest falls in any of
the following categories: (1) right of homestead,
(2) judgment creditor, (3) beneficial interest under
any trust other than the beneficial interest of a
beneficiary of a trust in actual possession of all
or part of the real estate or (4) mechanics' lien
claim. Notwithstanding the foregoing, for the
purpose of this Article no proceeding shall be
deemed to constitute constructive notice of the
interest of any nonrecord claimant in the mortgaged
real estate unless in the proceeding there is a
legal description of the real estate sufficient to
identify it with reasonable certainty. The
classification of any person as a nonrecord claimant
under the foregoing definition shall not be affected
by any actual notice or knowledge of or attributable
to the mortgagee.
(Source: P.A. 84‑1462.)
(735 ILCS 5/15‑1211) (from Ch. 110, par. 15‑1211)
Sec. 15‑1211. Notice of Foreclosure. "Notice of
foreclosure" means the notice of a foreclosure which
is made and recorded in accordance with Section
15‑1503 of this Article.
(Source: P.A. 84‑1462.)
(735 ILCS 5/15‑1212) (from Ch. 110, par. 15‑1212)
Sec. 15‑1212. Owner of Redemption. "Owner of
redemption" means a mortgagor, or other owner or
co‑owner of the mortgaged real estate.
(Source: P.A. 84‑1462.)
(735 ILCS 5/15‑1213) (from Ch. 110, par. 15‑1213)
Sec. 15‑1213. Real Estate. "Real estate" means land
or any estate or interest in, over or under land
(including minerals, air rights, structures,
fixtures and other things which by custom, usage or
law pass with a conveyance of land though not
described or mentioned in the contract of sale or
instrument of conveyance). "Mortgaged real estate"
means the real estate which is the subject of a
mortgage.
(Source: P.A. 84‑1462.)
(735 ILCS 5/15‑1214) (from Ch. 110, par. 15‑1214)
Sec. 15‑1214. Real Estate Installment Contract.
"Real estate installment contract" means any
agreement or contract for a deed under which the
purchase price is to be paid in installments with
title to the real estate to be conveyed to the buyer
upon payment of the purchase price or a specified
portion thereof. For the purpose of this definition,
an earnest money deposit shall not be considered an
installment.
(Source: P.A. 84‑1462.)
(735 ILCS 5/15‑1215) (from Ch. 110, par. 15‑1215)
Sec. 15‑1215. Receiver. "Receiver" means a receiver
appointed pursuant to Section 15‑1704 of this
Article.
(Source: P.A. 84‑1462.)
(735 ILCS 5/15‑1216) (from Ch. 110, par. 15‑1216)
Sec. 15‑1216. Recorder. "Recorder" means (i) the
Recorder of the county in which the mortgaged real
estate is located or (ii) if the mortgaged real
estate is registered under the Torrens Act, the
Registrar of Titles of the county in which the
mortgaged real estate is located. "Recorder"
includes any authorized assistant or employee of the
Recorder.
(Source: P.A. 84‑1462.)
(735 ILCS 5/15‑1217) (from Ch. 110, par. 15‑1217)
Sec. 15‑1217. Recording of Instruments. "Recording
of instruments" or "to record" means to present to
the Recorder a document, in recordable form, which
is to be recorded in accordance with Section 11 of
the Recorder's Act, together with the required
recording fee. The Registrar of Titles shall accept
the filing of notices or affidavits required or
permitted by this Article without the necessity of
the production of evidence of title.
(Source: P.A. 84‑1462.)
(735 ILCS 5/15‑1218) (from Ch. 110, par. 15‑1218)
Sec. 15‑1218. Recorded Notice. "Recorded notice"
with respect to any real estate means (i) any
instrument filed in accordance with Sections 2‑1901
or 12‑101 of the Code of Civil Procedure or (ii) any
recorded instrument which discloses (a) the names
and addresses of the persons making the claim or
asserting the interest described in the notice; (b)
that such persons have or claim some interest in or
lien on the subject real estate; (c) the nature of
the claim; (d) the names of the persons against whom
the claim is made; (e) a legal description of the
real estate sufficient to identify it with
reasonable certainty; (f) the name and address of
the person executing the notice; and (g) the name
and address of the person preparing the notice.
(Source: P.A. 85‑907.)
(735 ILCS 5/15‑1219) (from Ch. 110, par. 15‑1219)
Sec. 15‑1219. Residential Real Estate. "Residential
real estate" means any real estate, except a single
tract of agricultural real estate consisting of more
than 40 acres, which is improved with a single
family residence or residential condominium units or
a multiple dwelling structure containing single
family dwelling units for six or fewer families
living independently of each other, which residence,
or at least one of which condominium or dwelling
units, is occupied as a principal residence either (i)
if a mortgagor is an individual, by that mortgagor,
that mortgagor's spouse or that mortgagor's
descendants, or (ii) if a mortgagor is a trustee of
a trust or an executor or administrator of an
estate, by a beneficiary of that trust or estate or
by such beneficiary's spouse or descendants or (iii)
if a mortgagor is a corporation, by persons owning
collectively at least 50 percent of the shares of
voting stock of such corporation or by a spouse or
descendants of such persons. The use of a portion of
residential real estate for non‑residential purposes
shall not affect the characterization of such real
estate as residential real estate.
(Source: P.A. 85‑907.)
(735 ILCS 5/15‑1220) (from Ch. 110, par. 15‑1220)
Sec. 15‑1220. Statutory Judgment Rate. "Statutory
judgment rate" means the rate of interest on
judgments specified in Section 2‑1303 of the Code of
Civil Procedure.
(Source: P.A. 84‑1462.)
(735 ILCS 5/15‑1221) (from Ch. 110, par. 15‑1221)
Sec. 15‑1221. Unknown Owner. "Unknown owner" means
the same as "unknown owner" as used in Section 2‑413
of the Code of Civil Procedure.
(Source: P.A. 84‑1462.)
(735 ILCS 5/15‑1222) (from Ch. 110, par. 15‑1222)
Sec. 15‑1222. Acts Referred to in this Article. Acts
referred to by name in this Article shall mean those
Acts, as amended from time to time, and, in
particular:
(a) "Torrens Act" means "An act concerning land
titles", approved May 1, 1897.
(b) "Recorder's Act" means "An act to revise the law
in relation to recorders", approved March 9, 1874.
(c) "Mechanics' Lien Act" means "An Act relating to
contractors' and material men's liens, known as
mechanics' liens", approved May 18, 1903, as
amended.
(Source: P.A. 84‑1462.)
(735 ILCS 5/15‑1223)
Sec. 15‑1223. Occupant. "Occupant" means a person in
lawful physical possession of all or part of the
mortgaged real estate.
(Source: P.A. 88‑265.)
(735 ILCS 5/Art. XV Pt. 13 heading)
Part 13. Mortgage Lien Priorities
(735 ILCS 5/15‑1301) (from Ch. 110, par. 15‑1301)
Sec. 15‑1301. Lien Created. Except as provided in
Section 15‑1302, from the time a mortgage is
recorded it shall be a lien upon the real estate
that is the subject of the mortgage for all monies
advanced or applied or other obligations secured in
accordance with the terms of the mortgage or as
authorized by law, including the amounts specified
in a judgment of foreclosure in accordance with
subsection (d) of Section 15‑1603.
(Source: P.A. 84‑1462.)
(735 ILCS 5/15‑1302) (from Ch. 110, par. 15‑1302)
Sec. 15‑1302. Certain Future Advances. (a) Advances
Made After Eighteen Months. Except as provided in
subsection (b) of Section 15‑1302, as to any monies
advanced or applied more than 18 months after a
mortgage is recorded, the mortgage shall be a lien
as to subsequent purchasers and judgment creditors
only from the time such monies are advanced or
applied. However, nothing in this Section shall
affect any lien arising or existing by virtue of the
Mechanics' Lien Act.
(b) Exceptions.
(1) All monies advanced or applied pursuant to
commitment, whenever advanced or applied, shall be a
lien from the time the mortgage is recorded. An
advance shall be deemed made pursuant to commitment
only if the mortgagee has bound itself to make such
advance in the mortgage or in an instrument executed
contemporaneously with, and referred to in, the
mortgage, whether or not a subsequent event of
default or other event not within the mortgagee's
control has relieved or may relieve the mortgagee
from its obligation.
(2) All monies advanced or applied, whenever
advanced or applied, in accordance with the terms of
a reverse mortgage shall be a lien from the time the
mortgage is recorded.
(3) All monies advanced or applied in accordance
with the terms of a revolving credit arrangement
secured by a mortgage as authorized by law shall be
a lien from the time the mortgage is recorded.
(4) All interest which in accordance with the terms
of a mortgage is accrued or added to the principal
amount secured by the mortgage, whenever added,
shall be a lien from the time the mortgage is
recorded.
(5) All monies advanced by the mortgagee in
accordance with the terms of a mortgage to (i)
preserve or restore the mortgaged real estate, (ii)
preserve the lien of the mortgage or the priority
thereof or (iii) enforce the mortgage, shall be a
lien from the time the mortgage is recorded.
(Source: P.A. 84‑1462.)
(735 ILCS 5/Art. XV Pt. 14 heading)
Part 14. Methods of Terminating
Mortgagor's Interest in Real Estate
(735 ILCS 5/15‑1401) (from Ch. 110, par. 15‑1401)
Sec. 15‑1401. Deed in Lieu of Foreclosure. The
mortgagor and mortgagee may agree on a termination
of the mortgagor's interest in the mortgaged real
estate after a default by a mortgagor. Any mortgagee
or mortgagee's nominee may accept a deed from the
mortgagor in lieu of foreclosure subject to any
other claims or liens affecting the real estate.
Acceptance of a deed in lieu of foreclosure shall
relieve from personal liability all persons who may
owe payment or the performance of other obligations
secured by the mortgage, including guarantors of
such indebtedness or obligations, except to the
extent a person agrees not to be relieved in an
instrument executed contemporaneously. A deed in
lieu of foreclosure, whether to the mortgagee or
mortgagee's nominee, shall not effect a merger of
the mortgagee's interest as mortgagee and the
mortgagee's interest derived from the deed in lieu
of foreclosure. The mere tender of an executed deed
by the mortgagor or the recording of a deed by the
mortgagor to the mortgagee shall not constitute
acceptance by the mortgagee of a deed in lieu of
foreclosure.
(Source: P.A. 86‑974.)
(735 ILCS 5/15‑1402) (from Ch. 110, par. 15‑1402)
Sec. 15‑1402. Consent Foreclosure.
(a) No Objection. In a foreclosure, the court shall
enter a judgment satisfying the mortgage
indebtedness by vesting absolute title to the
mortgaged real estate in the mortgagee free and
clear of all claims, liens (except liens of the
United States of America which cannot be foreclosed
without judicial sale) and interest of the
mortgagor, including all rights of reinstatement and
redemption, and of all rights of all other persons
made parties in the foreclosure whose interests are
subordinate to that of the mortgagee and all
nonrecord claimants given notice in accordance with
paragraph (2) of subsection (c) of Section 15‑1502
if at any time before sale:
(1) the mortgagee offers, in connection with such a
judgment, to waive any and all rights to a personal
judgment for deficiency against the mortgagor and
against all other persons liable for the
indebtedness or other obligations secured by the
mortgage;
(2) such offer is made either in the foreclosure
complaint or by motion upon notice to all parties
not in default;
(3) all mortgagors who then have an interest in the
mortgaged real estate, by answer to the complaint,
response to the motion or stipulation filed with the
court expressly consent to the entry of such
judgment;
(4) no other party, by answer or by response to the
motion or stipulation, within the time allowed for
such answer or response, objects to the entry of
such judgment; and
(5) upon notice to all parties who have not
previously been found in default for failure to
appear, answer or otherwise plead.
(b) Objection. If any party other than a mortgagor
who then has an interest in the mortgaged real
estate objects to the entry of such judgment by
consent, the court, after hearing, shall enter an
order providing either:
(1) that for good cause shown, the judgment by
consent shall not be allowed; or
(2) that, good cause not having been shown by the
objecting party and the objecting party not having
agreed to pay the amount required to redeem in
accordance with subsection (d) of Section 15‑1603,
title to the mortgaged real estate be vested in the
mortgagee as requested by the mortgagee and
consented to by the mortgagor; or
(3) determining the amount required to redeem in
accordance with subsection (d) of Section 15‑1603,
finding that the objecting party (or, if more than
one party so objects, the objecting party who has
the least priority) has agreed to pay such amount
and additional interest under the mortgage accrued
to the date of payment within 30 days after entry of
the order, and declaring that upon payment of such
amount within 30 days title to the mortgaged real
estate shall be vested in such objecting party.
Title so vested shall be free and clear of all
claims, liens (except liens of the United States of
America which cannot be foreclosed without judicial
sale) and interest of the mortgagor and of all
rights of other persons made parties in the
foreclosure whose interests are subordinate to the
interest of the mortgagee and all nonrecord
claimants given notice in accordance with paragraph
(2) of subsection (c) of Section 15‑1502. If any
objecting party subject to such an order has not
paid the amount required to redeem in accordance
with that order within the 30‑day period, the court
(i) shall order that such title to the mortgaged
real estate shall vest in the objecting party next
higher in priority (and successively with respect to
each other objecting party in increasing order of
such party's priority), if any, upon that party's
agreeing to pay within 30 days after the entry of
such further order, such amount as specified in the
original order plus additional interest under the
terms of the mortgage accrued to the date of
payment, provided that such party pays such amount
within the 30‑day period, and (ii) may order that
the non‑paying objecting party pay costs, interest
accrued between the start of the preceding 30‑day
period and the later of the date another objecting
party makes the payment, if applicable, or the date
such period expired, and the reasonable attorneys'
fees incurred by all other parties on account of
that party's objection.
(c) Judgment. Any judgment entered pursuant to
Section 15‑1402 shall recite the mortgagee's waiver
of rights to a personal judgment for deficiency and
shall bar the mortgagee from obtaining such a
deficiency judgment against the mortgagor or any
other person liable for the indebtedness or other
obligations secured by the mortgage.
(Source: P.A. 86‑974.)
(735 ILCS 5/15‑1403) (from Ch. 110, par. 15‑1403)
Sec. 15‑1403. Common Law Strict Foreclosure. Nothing
in this Article shall affect the right of a
mortgagee to foreclose its mortgage by a common law
strict foreclosure as in existence in Illinois on
the effective date of this Article.
(Source: P.A. 84‑1462.)
(735 ILCS 5/15‑1404) (from Ch. 110, par. 15‑1404)
Sec. 15‑1404. Judicial Foreclosure. Except as
provided in subsection (d) of Section 15‑1501, the
interest in the mortgaged real estate of (i) all
persons made a party in such foreclosure and (ii)
all nonrecord claimants given notice in accordance
with paragraph (2) of subsection (c) of Section
15‑1502, shall be terminated by the judicial sale of
the real estate, pursuant to a judgment of
foreclosure, provided the sale is confirmed in
accordance with this Article.
(Source: P.A. 85‑907.)
(735 ILCS 5/15‑1405) (from Ch. 110, par. 15‑1405)
Sec. 15‑1405. Power of Sale. No real estate within
this State may be sold by virtue of any power of
sale contained in a mortgage or any other agreement,
and all such mortgages may only be foreclosed in
accordance with this Article.
(Source: P.A. 84‑1462.)
(735 ILCS 5/Art. XV Pt. 15 heading)
Part 15. Judicial Foreclosure Procedure
(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
mortgaged real estate;
(2) A mortgagor's spouse who has waived the right of
homestead;
(3) A trustee holding an interest in the mortgaged
real estate or a beneficiary of such trust;
(4) The owner or holder of a note secured by a trust
deed;
(5) Guarantors, provided that in a foreclosure any
such guarantor also may be joined as a party in a
separate count in an action on such guarantor's
guaranty;
(6) The State of Illinois or any political
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;
(7) The United States of America or any agency or
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;
(8) Any assignee of leases or rents relating to the
mortgaged real estate;
(9) Any person who may have a lien under the
Mechanic's Lien Act; and
(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
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.
(2) In Court's Discretion. After the right to
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.
(3) Later Right. After the sale of the mortgaged
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.
(4) Termination of Interest. Except as provided in
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.
(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.)
(735 ILCS 5/15‑1502) (from Ch. 110, par. 15‑1502)
Sec. 15‑1502. Nonrecord Claimants. (a) Right to
Become Record Claimant. At any time prior to the
recording of a notice of foreclosure in accordance
with Section 15‑1503, a nonrecord claimant or
unknown owner may become a record claimant with
respect to the foreclosure by recording a notice of
such claimant's interest in the mortgaged real
estate in accordance with Section 15‑1218.
(b) Rights of Nonrecord Claimants After Notice. The
interest in the mortgaged real estate of a nonrecord
claimant who is given notice of the foreclosure as
provided in paragraph (2) of subsection (c) of
Section 15‑1502 shall be barred and terminated by
any judgment of foreclosure to the same extent as if
such claimant had been a party.
(c) Terminating Rights of Nonrecord Claimants. (1)
Contents of Affidavit. A party in a foreclosure
seeking to bar and terminate the interest in the
mortgaged real estate of nonrecord claimants shall
file in the office of the clerk of the court in
which such action is pending an affidavit stating (i)
the names and respective present or last known
places of residence of such nonrecord claimants, or
(ii) that the existence, names or the present or
last known places of residence, or both, of such
nonrecord claimants are unknown as of that time to
the party and to the party's attorney. Such
affidavit, with respect to names and places of
residence, may be made upon information and belief
of the affiant. The affidavit need not state that
inquiry has been made to ascertain the names or
present or last known places of residence of such
nonrecord claimants, and no such inquiry need be
made.
(2) Notice. At least 30 days prior to the entry of a
judgment of foreclosure, any person identified in
the affidavit described in paragraph (1) of
subsection (c) of Section 15‑1502 shall be given a
notice of the foreclosure complying with the
requirements of Section 15‑1503 by the party filing
the affidavit. Such notice shall be given in the
manner and upon the terms and conditions set forth
in Sections 2‑206 and 2‑207 of the Code of Civil
Procedure, except that (i) such notice with respect
to nonrecord claimants whose names are not set forth
in such affidavit, instead of being addressed to
such nonrecord claimants by name, may simply be
addressed to "Nonrecord Claimants" and (ii) when the
mortgaged real estate is located within a
municipality in a county with a population under
2,000,000, publication shall be in a newspaper
generally circulated in such municipality. Such
notice shall have the same effect with respect to
all nonrecord claimants designated therein as though
a notice containing their names had been published
in accordance with Sections 2‑206 and 2‑207 of the
Code of Civil Procedure and may be combined with any
notice published against parties defendant in the
same action pursuant to those Sections.
(3) Errors. Any inaccuracy in the affidavit
described in paragraph (1) of subsection (c) of
Section 15‑1502 or the failure to file such
affidavit or the failure to give notice in
accordance with paragraph (2) of subsection (c) of
Section 15‑1502 shall not invalidate any sale made
pursuant to this Article.
(4) Rights of Barred Nonrecord Claimant. Nothing in
paragraph (3) of subsection (c) of Section 15‑1502
shall affect the rights, if any, of any nonrecord
claimant whose interest in the mortgaged real estate
was barred and terminated to bring an action against
any party to the foreclosure on whose behalf the
affidavit was filed, on account of the filing of an
inaccurate affidavit by such party in accordance
with paragraph (1) of subsection (c) of Section
15‑1502 or the failure to give notice in accordance
with paragraph (2) of subsection (c) of Section
15‑1502.
(Source: P.A. 84‑1462.)
(735 ILCS 5/15‑1503) (from Ch. 110, par. 15‑1503)
Sec. 15‑1503. Notice of Foreclosure. A notice of
foreclosure, whether the foreclosure is initiated by
complaint or counterclaim, made in accordance with
this Section and recorded in the county in which the
mortgaged real estate is located shall be
constructive notice of the pendency of the
foreclosure to every person claiming an interest in
or lien on the mortgaged real estate, whose interest
or lien has not been recorded prior to the recording
of such notice of foreclosure. Such notice of
foreclosure must be executed by any party or any
party's attorney and shall include (i) the names of
all plaintiffs and the case number, (ii) the court
in which the action was brought, (iii) the names of
title holders of record, (iv) a legal description of
the real estate sufficient to identify it with
reasonable certainty, (v) a common address or
description of the location of the real estate and
(vi) identification of the mortgage sought to be
foreclosed. An incorrect common address or
description of the location, or an immaterial error
in the identification of a plaintiff or title holder
of record, shall not invalidate the lis pendens
effect of the notice under this Section. A notice
which complies with this Section shall be deemed to
comply with Section 2‑1901 of the Code of Civil
Procedure and shall have the same effect as a notice
filed pursuant to that Section; however, a notice
which complies with Section 2‑1901 shall not be
constructive notice unless it also complies with the
requirements of this Section.
(Source: P.A. 86‑974.)
(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
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).
(2) Attached as Exhibit "A" is a copy of the
mortgage and as Exhibit "B" is a copy of the note
secured thereby.
(3) Information concerning mortgage:
(A) Nature of instrument: (here insert whether a
mortgage, trust deed or other instrument in the
nature of a mortgage, etc.)
(B) Date of mortgage:
(C) Name of mortgagor:
(D) Name of mortgagee:
(E) Date and place of recording:
(F) Identification of recording: (here insert
book and page number or document number)
(G) Interest subject to the mortgage: (here
insert whether fee simple, estate for years,
undivided interest, etc.)
(H) Amount of original indebtedness, including
subsequent advances made under the mortgage:
(I) Both the legal description of the mortgaged
real estate and the common address or other
information sufficient to identify it with
reasonable certainty:
(J) Statement as to defaults, including, but not
necessarily limited to, date of default, current
unpaid principal balance, per diem interest
accruing, and any further information concerning the
default:
(K) Name of present owner of the real estate:
(L) Names of other persons who are joined as
defendants and whose interest in or lien on the
mortgaged real estate is sought to be terminated:
(M) Names of defendants claimed to be personally
liable for deficiency, if any:
(N) Capacity in which plaintiff brings this
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):
(O) Facts in support of redemption period
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.):
(P) Statement that the right of redemption has
been waived by all owners of redemption, if
applicable:
(Q) Facts in support of request for attorneys'
fees and of costs and expenses, if applicable:
(R) Facts in support of a request for
appointment of mortgagee in possession or for
appointment of receiver, and identity of such
receiver, if sought:
(S) Offer to mortgagor in accordance with
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:
(T) Name or names of defendants whose right to
possess the mortgaged real estate, after the
confirmation of a foreclosure sale, is sought to be
terminated and, if not elsewhere stated
More
information on Illinois foreclosure laws
|
