The Illinois General Assembly has introduced a bill that would modify the state’s mortgage foreclosure laws by adding a definition of abandoned residential property, as well as requirements and procedures for an expedited judgment and sale of abandoned residential property.
The bill, SB 2534, was introduced by Sen. A.J. Wilhelmi, D-Crest Hill.
The bill defines abandoned residential property as “residential real estate that upon inspection is not occupied by any mortgagor or bona fide tenant as principal residence, and with respect to which at least two of the following conditions or circumstances are shown to exist:
- The property has had at least one uncorrected municipal or county building, housing or similar code violation in the preceding year or has been declared unfit for occupancy and ordered to remain vacant and unoccupied by municipal or county authorities;
- Construction was initiated on the property and discontinued prior to completion and there is no valid municipal or county construction or building permit posted on the property;
- Gas, electric or water utility service to the property has been terminated;
- Windows or entrances to the property are boarded up or closed off or multiple window panes are broken and unrepaired;
- Doors to the property are smashed through, broken off, unhinged or continuously unlocked;
- Rubbish, trash, garbage, debris, graffiti, neglected weeds, grass, trees, bushes or other nuisance greenery or other hazardous, noxious or unhealthy substances or materials, have accumulated on the property;
- The police or sheriff’s office has received at least one report of trespassing, vandalism or other illegal activity being committed on the property in the preceding year;
- Pursuant to the terms of the mortgage, the mortgagee has posted a pre-foreclosure notice of the mortgagee’s intent to enter the property for purposes of maintaining or repairing it and, upon entering the property following the posting of the notice and a lack of response by the mortgagor, has found the property unoccupied;
- The mortgagee or other interested or authorized party has secured or winterized the property due to the property being vacant and unprotected or in danger of freezing;
- Any mortgagor or any mortgagor’s personal representatives or assigns have issued an oral or written statement expressing the clear intent of all mortgagors to abandon the property;
- Any property manager or other person conducting an inspection of the property has issued an oral or written statement indicating all mortgagors or bona fide tenants have moved out and vacated the property;
- The property is a vacant lot;
- The property is deteriorating and is either below or is in imminent danger of falling below minimum municipal or county government standards for public safety and sanitation; or
- Any other reasonable indication of abandonment.”
Under the proposed law, the mortgagee would be permitted to utilize the expedited judgment and sale procedure for abandoned residential property to obtain a judgment of foreclosure. The motion could be combined with or made part of the motion requesting a judgment of foreclosure. If service upon the mortgagor was obtained by publication, then notice of the motion to the mortgagor would have to be posted at the property address.
The motion requesting an expedited judgment of foreclosure and sale could be filed by the mortgagee at the time the foreclosure complaint is filed or any time thereafter and would have to be accompanied by an affidavit setting forth facts sufficient for the court to find that the mortgaged real estate is abandoned residential property.
If a motion for an expedited judgment and sale was filed at the time the foreclosure complaint was filed, the motion would have to be heard by the court no later than:
- 45 days after the date of service of the summons on the mortgagor or, if there is more than one mortgagor, no later than 45 days after the date of service on the last served mortgagor;
- 45 days after the date of first publication, if service of process is by publication; or
- 45 days after the mortgagors have otherwise submitted to the jurisdiction of the court.
If a motion for an expedited judgment and sale is filed after the foreclosure complaint is filed, the motion would have to be heard no later than 15 days after the motion is filed, provided that at least:
- 30 days have transpired since service of the summons on the mortgagor or, if there is more than one mortgagor, 30 days have transpired since service on all mortgagors;
- 30 days have transpired since the date of first publication, if service of process is by publication; or
- 30 days have transpired since all mortgagors have otherwise submitted to the jurisdiction of the court.
The hearing would be given priority by the court and would be scheduled to be heard within the applicable time period set forth in the bill.
The affidavit would have to be signed by and be based upon the information and belief of the mortgagee, an agent of the mortgagee, the sheriff of the county or local law enforcement agency of the municipality in which the property is located, or a building inspector or other municipal or county official for the municipality or county in which the property is located. The affidavit would have to state that the property is not occupied by any mortgagor or bona fide tenant as a principal residence. Photographic or other documentary evidence that demonstrates supporting facts set forth in the affidavit would have to be attached to the affidavit.
The court would not be permitted to find that the mortgaged real estate is abandoned residential property if an appearance has been made and an objection ahs been filed to the finding that the property is abandoned residential property or if the owner provides evidence that the owner is working with, or making an attempt to work with, the mortgagee to modify the mortgage.
At the hearing on the motion requesting an expedited judgment and sale, and upon a finding by the court that the mortgaged real estate is abandoned residential property, the court would have to immediately proceed to enter a judgment of foreclosure as requested in the complaint.
The reinstatement period and redemption period for the abandoned residential property would have to end in accordance with the law and the property would have to be sold at the earliest practicable time at a sale as provided in the proposed law.
A mortgagee or its agent would be allowed to enter an abandoned residential property that is the subject of a foreclosure complaint for the purpose of maintaining or securing the property, provided that entry is not barred by an automatic stay issued by a bankruptcy court. A mortgagee and its agents would not be held liable for any claim of negligence, civil trespass or criminal trespass based upon entering the abandoned residential property or maintaining or securing the abandoned residential property.
The mortgagee would be responsible for repairs or other maintenance to the abandoned residential property if it purchases the property at the foreclosure sale. Upon confirmation of the sale, any personal property remaining in or upon the abandoned residential property would be deemed to have been abandoned by the owner of the personal property and could be disposed of or donated by the holder of the certificate of sale. In the event of donation of any personal property, the holder of the certificate of sale could transfer the donated property with a bill of sale. No mortgagee or its successors or assigns, holder of a certificate of sale or purchaser at the sale would be held liable for any such disposal or donation of personal property.
No mortgagee would be held liable for seeking a judicial determination of abandonment, if the mortgagee, upon information and belief at the time the motion requesting an expedited judgment of foreclosure and sale is filed with the court, makes a good faith assertion in its affidavit that evidence exists supporting the fact the mortgaged real estate is abandoned residential property.
The court would be required to enter an order confirming the sale of the abandoned residential property unless the court finds that a reason exists for not approving the sale. The order confirming the sale of the abandoned residential property would award to the purchaser possession of the property as of the date of the entry of the order confirming the sale.
The bill would go into effect immediately upon becoming law.