Agricultural Law

House Bill 3775 (Tyron, R-Crystal Lake) amends the Residential Mortgage License Act of 1987 to do two things. (1) Prohibits a mortgage lender acting on behalf of a borrower from requiring the seller of real property to disclose the terms of a private trust agreement regarding the real property if the seller has obtained title insurance for the transaction. (2) Prohibits a mortgage lender acting on behalf of a borrower from withholding approval or threatening to do so of the borrower’s residential mortgage loan because the seller has not disclosed the terms of a private trust agreement regarding the real property. Introduced and referred to House Rules Committee.

(D'Amico, D-Chicago; Mulroe, D-Chicago) prohibits using a hand-held cell phone or personal digital assistant while driving. Exempts the use of a hands-free or voice-operated mode, which may include the use of a headset. It also exempts using an electronic communication device that is activated by pressing a single button to initiate or terminate a voice communication. Second or subsequent convictions are moving violations. The fine is a maximum of $75 for the first offense, $100 for the second offense, $125 for the third offense, and $150 for the fourth or subsequent offense. Effective Jan. 1, 2014.

(Bradley, D-Marion) makes six changes to the recently enacted Transfer on Death Instrument to clear up title questions as follows. (1) Current law states that if a beneficiary has not accepted the TODI within six months of the owner’s death, any co-beneficiary, contingent beneficiary, legatee, heir, or personal representative of the deceased owner’s estate may file a written demand on the non-accepting beneficiary requiring the filing of an acceptance or disclaimer within 30 days. (2) House Bill 169 specifically defines the term “authorized representative” to mean “an agent under a power of attorney, a guardian, a standby guardian, a short-term or temporary guardian, an executor, an administrator, or an administrator to collect.” It was used in the TODI Act but not defined. (3) Proposal 98-5 protects any purchaser or mortgagee who acquires its title or lien from the beneficiaries of the real estate for value and without notice before commencement of any action. But the amendment does not relieve the beneficiaries of liability to the claimant under the Act. (4) Currently, a TODI may be used only for residential real estate as defined in the Residential Real Property Disclosure Act. This has caused several problems with residential cooperatives and condominiums that don’t fit with the TODI Act. House Bill 169 resolves this problem by deleting any reference to “units in residential cooperatives” and includes “common elements” as what may be passed by a TODI as it relates to a residential condominium unit. (5) The current Act doesn’t prohibit an agent from creating or revoking a TODI if properly authorized under the instrument appointing the agent, but the concept of an agent doing so conflicts with the other requirements for the execution or revocation of a TODI. House Bill 169 eliminates the power to create or revoke a TODI by an agent even if expressly authorized under the agency. (6) The current Act requires strict compliance with the signing, attestation, and acknowledgement provisions in Section 45. House Bill 169 adds the word “substantial” to this compliance requirement so that mere technical errors do not render the TODI void. Examples include if the notary public failed to include the names of the witnesses in its acknowledgement, or if the attestation clause fails to contain a provision stating the witnesses believed the owner to be of sound mind and memory.

(Collins, D-Chicago) make a number of changes to the mortgage foreclosure article intending to better protect consumers. It also amends the Conveyances Act affecting the recording of deeds, mortgages, and other instruments. Amends the Conveyances Act. (1) Provides that those provisions also apply to the recording of assignments, mortgage releases, mortgage modifications, land equity loans, liens, lis pendens, and memoranda of judgment. (2) Changes the scope to instruments that affect interests in real property. (3) Provides that deeds and title papers are void until recorded (instead of void until recorded as to creditors and subsequent purchasers) with the recorder's office in the county in which the property is located. Just introduced.

(Silverstein, D-Chicago; Feigenholtz, D-Chicago) creates a $100 fee to open a decedent's estate to fund the State Guardianship and Advocacy Commission. It exempts indigents, the State Guardian, any state agency, any local public guardian, and any state's attorney. It is unknown whether this violates the constitutional nexus between a fee and a service or whether this starts a new trend in financing state government. If constitutional, what's to prevent a new fee next year on all family law litigants to fund DCFS? (2) It also allows the court to appoint a limited guardian for a disabled adult who lacks some but not all of the required capacity. If the court finds that the ward is totally without the required capacity, it may appoint a plenary guardian. (3) It adds criteria for the termination of the guardianship or modification of the guardian's duties. Effective January 1, 2013.

(Collins, D-Chicago; Lyons, D-Chicago) creates an expedited judgment and sale procedure for abandoned residential property. An additional filing fee will be imposed on plaintiffs in a tiered system in which the fees increase in proportion to the number of foreclosures a plaintiff prosecutes. The fees will also pay for "housing counseling" for residents who are going through the foreclosure process in effort to help them save their homes. Clarifies that a portion of the Conveyances Act is permissive instead of mandatory to prevent that portion of the Act from affecting the validity of a properly recorded mortgage by a trustee in bankruptcy. House Amendment 8 becomes the bill and is positioned to move during this veto session.

(Mulroe, D-Chicago; Lang, D-Skokie) carves out an exception to the prohibition against a title insurance company, title insurance agent, or independent escrowee making disbursements in connection with any escrows, settlements, or closings out of a fiduciary trust account or accounts. The exception that Senate Bill 3180 creates is if the funds are good funds and the title insurance company, title insurance agent, or independent escrowee and the financial institution are known to each other and agree to the use of these funds. Passed the Senate this spring and scheduled for a hearing Tuesday in House Executive Committee.

(Burke, D-Evergreen Park; Mulroe, D-Chicago) does three things in response to the LaSalle Bank National Association vs. Cypress Creek opinion. (1) Requires that the owner or interested person’s demand for suit to be commenced or answered within 30 days must contain this language in at least 10-point, boldface type: “Failure to respond to this notice within 30 days after receipt, as required by Section 34 of the Mechanics Lien Act, shall result in the forfeiture of the referenced lien.” (2) Defines a “lien creditor” as someone who does work or furnishes material under this Act. A lien creditor is preferred over other encumbrances except that previous encumbrances are preferred only to the extent of the value of the land at the time the contract was made for the improvements, and each lien creditor is preferred to the value of all later improvements regardless of whether the lien creditor provided those improvements. (3) If the sale proceeds are insufficient to satisfy claims of both prior encumbrances and lien creditors, the sale proceeds are to be distributed as follows. (a) Any previous encumbrance has a paramount lien in the portion of the proceeds attributable to the value of the land at the time of making of the contract for improvements. (b) Any lien creditors have a paramount lien in the portion of the proceeds attributable to all later improvements made to the property. (4) It has an immediate effective date. House Bill 3636 is in the House awaiting concurrence on Senate Amendment No. 2.