On January 18, 2017, Sen. Pamela J. Althoff introduced a senate bill (“SB 192”) that would amend section 15-1506 of the Illinois Mortgage Foreclosure Law of the Code of Civil Procedure, by introducing the burden of proof that parties would have to meet at trial. (735 ILCS 5/15-1506). Section 1506(a) in its current version states “[i]n the trial of a foreclosure, the evidence to support the allegations of the complaint shall be taken in open court …” Although the vast majority of foreclosure cases never go to trial, and are either disposed of summarily or by default, the very few that end up going to trial—suffer from the lack of statutory guidance as to the burden of proof that each side has to meet to prove its case. Sen. Althoff’s bill intends to clarify the burden of proof in section 1506(a) by providing that the mortgagee establishes a prima facie case for foreclosure once the subject mortgage and note are admitted into evidence. This provision of the amendment would seemingly be embraced by the mortgagee’s attorney since it does not require the mortgagee to present any additional evidence to meet its burden of proof to make a prima facie case for foreclosure.
The burden of proof would then shift to the mortgagor to prove the amount owed, payments made, and any affirmative defenses available. Thus, under the amendment, the mortgagee would not have to bear the initial burden of showing that the mortgagor is in default on the loan payments or the amount owed. If the mortgagor fails to proffer evidence as to the amount owed, that would constitute a waiver of that issue, regardless of a denial in the answer. The burden of proof at that point would shift back to the mortgagee to prove the amount owed by proffering evidence in the form of an affidavit—but not by evidence taken in open court. However, if the mortgagor bears the initial burden of presenting evidence of the amount owed, then the mortgagee may present evidence in rebuttal, which must be taken in open court. Sen. Althoff’s bill has not yet been voted on.
If you have any questions, please contact Michael Sadic, Associate Attorney, Potestivo & Associates, P.C. at (312) 263.0003 email@example.com.