770 ILCS 103/10

Current through Public Act 103-1052

Section 770 ILCS 103/10 - Nonjudicial foreclosure against timeshare estates

(a) Notwithstanding anything in the Illinois Mortgage Foreclosure Law or other applicable law to the contrary:

(1) the holder of a mortgage against a timeshare estate may foreclose or otherwise enforce a security interest pursuant to this Section; and

(2) the holder of a managing entity lien against a timeshare estate may foreclose the managing entity lien pursuant to this Section.

(b) Upon default, and after all applicable cure periods identified in the mortgage (if the default is under a mortgage) or the timeshare instrument (if the default is under a managing entity lien) have expired, the holder of the mortgage or managing entity lien must:

(1) Provide written notice of the default to the timeshare estate owner at the last known address of the timeshare estate owner by:

(A) certified mail, return receipt requested; or

(B) first class mail.

(2) Provide the timeshare estate owner an additional opportunity to cure for a period of 30 days following the later date of the mailing of the notices sent pursuant to paragraph (1) of this subsection.

(c) If the timeshare estate owner does not cure the default before the expiration of the additional cure period granted pursuant to paragraph (2) of subsection (b), the holder of the mortgage or managing entity lien may foreclose the mortgage or managing entity lien by conducting a public auction that complies with the following requirements:

(1) The holder of the mortgage or managing entity lien must provide notice of the public auction as follows:

(A) By publishing notice of the public auction in at least each of 3 successive weeks in a newspaper, whether printed or electronic, of general circulation in the county where the timeshare estate is located. The first notice must be published no more than 30 days before the date of the public auction, which 30-day period shall be calculated by excluding the date of publication of the first notice and the date of the public auction.

(B) By sending written notice identifying the time, date, and place of the public auction to the last known address of the owner of record of the timeshare estate at least 30 days before the date of the public auction by: (i) certified mail, return receipt requested; or (ii) first class mail.

(C) By sending notice by certified mail, return receipt requested, or first class mail, at least 30 days before the date of the public auction, identifying the time, date, and place of the public auction to all persons known to have a lien against the timeshare estate.

(2) The notices given pursuant to paragraph (1) of this subsection must also contain:

(A) the name of the timeshare estate owner;

(B) a general description of the timeshare estate; and

(C) the terms of the public auction.

(3) If more than one timeshare estate is to be included in the public auction, all such timeshare estates may be combined into one notice of public auction.

(4) The public notice required by subparagraph (A) of paragraph (1) of this subsection for foreclosing a mortgage against a timeshare estate must be printed in the following or a substantially similar form:

"NOTICE OF SALE OF TIMESHARE ESTATE OR ESTATES UNDER SECTION 10 OF THE TIMESHARE LIEN AND SECURITY INTEREST ACT

By virtue of Section 10 of the Timeshare Lien and Security Interest Act and in execution of a certain mortgage (or mortgages, if more than one) on the timeshare estate (or estates, if more than one) given by the owner of the timeshare estate (or owners, if more than one) set forth below for breach of the conditions of said mortgage (or mortgages, if more than one) and for the purpose of foreclosing, the same will be sold at public auction starting at........... on............ 20..at........ , Illinois, being all and singular the premises described in said mortgage (or mortgages, if more than one). (For each mortgage, list the name and address of the timeshare estate owner, a general description of the timeshare estate, and the book and page number of the mortgage.)

TERMS OF SALE: (State the deposit amount to be paid by the purchaser at the time and place of the sale and the times for payment of the balance or the whole, as the case may be. The timeshare estates, if more than one, must be sold in individual lots unless there are no individual bidders, in which case, they may be sold as a group.)

Other terms may be announced at the public auction.

Signed.................................

Holder of mortgage or authorized agent.".

(5) The public notice required by subparagraph (A) of paragraph (1) of this subsection for foreclosing a managing entity lien against a timeshare estate must be printed in the following or a substantially similar form:

"NOTICE OF SALE OF TIMESHARE ESTATE OR ESTATES UNDER SECTION 10 OF THE TIMESHARE LIEN AND SECURITY INTEREST ACT

By virtue of the timeshare instrument of the ................... (name and address of timeshare property) and Section 5 of the Timeshare Lien and Security Interest Act establishing a managing entity lien for failure to pay assessments and other costs on the timeshare estate (or estates, if more than one) held by the owner of the timeshare estate (or owners, if more than one) listed below, the timeshare estate (or estates, if more than one) and for the purpose of foreclosing, the same will be sold at public auction starting at......... on........ 20.. at............. , Illinois. (For each timeshare estate, list the name and address of the timeshare estate owner, a general description of the timeshare estate, and the book and page number of the deed.)

TERMS OF SALE: (State the deposit amount to be paid by the purchaser at the time and place of the sale and the times for payment of the balance or the whole, as the case may be. The timeshare estates, if more than one, must be sold in individual lots unless there are no individual bidders, in which case, they may be sold as a group.)

Other terms may be announced at the public auction.

Signed................................

Managing entity lienholder or authorized agent.".

(6) Publishing and sending notices in compliance with this subsection constitutes sufficient public notice of the public auction.

(d) Public auctions pursuant to this Section must be conducted as follows:

(1) The public auction must take place within the county where the timeshare estate is located.

(2) The public auction must be open to the general public and conducted by an auctioneer licensed pursuant to the Auction License Act.

(3) The auctioneer, in his or her discretion, may waive the reading of the names of the timeshare estate owners, if more than one, the description of the timeshare estates, if more than one, and the recording information of the applicable mortgages or managing entity liens (as the case may be), if more than one.

(4) All rights of redemption of the timeshare estate owner are extinguished upon sale of a timeshare estate at the public auction.

(5) The holder of the mortgage or managing entity lien, the developer, the managing entity, and the timeshare estate owner are not precluded from bidding at the public auction.

(6) The successful purchaser at the public auction is not required to complete the purchase of the timeshare estate if the timeshare estate, at the time the auctioneer accepts the successful bid, is subject to liens or other encumbrances, other than those identified in the notice of public auction and those identified at the auction before the auctioneer opens bidding on the applicable timeshare estate.

(7) The purchaser at the public auction takes title to the timeshare estate free and clear of any outstanding assessments owed by the prior timeshare estate owner to the managing entity.

(e) Upon the sale of a timeshare estate pursuant to this Section, the holder of the mortgage or managing entity lien must provide the purchaser with:

(1) a foreclosure deed or other appropriate instrument transferring the mortgage holder's or managing entity's interest in the timeshare estate; and

(2) an affidavit affirming that all requirements of the foreclosure pursuant to this Section have been satisfied.

(f) The timeshare estate is considered sold and the deed or other instrument transferring the timeshare estate must transfer the timeshare estate, subject to municipal or other taxes and any liens or encumbrances recorded before the recording of the mortgage or the managing entity lien foreclosed pursuant to this Section (as the case may be), but not including such managing entity lien.

(g) The purchaser of a timeshare estate at a public auction pursuant to this Section must record the foreclosure deed or other instrument with the appropriate recorder of deeds within 30 days after the date the foreclosing mortgage holder or managing entity (as the case may be) delivers the foreclosure deed or other instrument to the purchaser.

(h) If the holder of a mortgage or managing entity lien conducts a nonjudicial foreclosure pursuant to this Section, the holder of the mortgage or managing entity lien forfeits its right to pursue a claim for any deficiency in the payment of the obligations of the timeshare estate owner resulting from the application of the proceeds of the sale to such obligations.

(i) For purposes of this Section, obligations to pay assessments secured by a lien established pursuant to a timeshare instrument before the effective date of this Act are considered managing entity liens.

(j) This Section applies to the foreclosure of mortgages and liens considered to be managing entity liens that arose before or after the effective date of this Act.

770 ILCS 103/10

Added by P.A. 100-1038,§ 10, eff. 1/1/2019.