By Michael N. Varak

On July 9, the Illinois Legislature amended the Illinois Mortgage Foreclosure Law to allow pre-judgment fees and costs incurred after the date the AOI was executed, that were therefore not included in the judgment, to be approved at confirmation.  Governor Pritzker signed the amendment into law the same day, and it is effective immediately.


The amendment adds language to 735 ILCS 5/15-1508(b), which governs the confirmation of the foreclosure sale. The language added by the amendment is underlined below:


The confirmation order may also:


(1) approve the mortgagee's fees and costs (i) arising between the entry of the judgment of foreclosure and the confirmation hearing, and (ii) incurred on or after the date of execution of an affidavit under subsection (a) of Section 15-1506 and prior to the judgment but not included in the judgment, those costs and fees to be allowable to the same extent as provided in the note and mortgage and in Section 15-1504;


This amendment to the statute governing confirmation essentially overrules the Second District’s 2015 holding in BMO Harris Bank v. Wolverine Properties, LLC, 2015 IL App (2d) 140921. Wolverine held that fees and costs that were not included in the judgment of foreclosure because they were not included in the affidavit of indebtedness could not be recovered at confirmation, limiting recovery of pre-judgment advancements to what was in the judgment of foreclosure.

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