SB3886 102ND GENERAL ASSEMBLY

LRB102 24082 BMS 33303 b

102ND GENERAL ASSEMBLY
State of Illinois
2021 and 2022
SB3886

Introduced 1/21/2022, by Sen. Jason Plummer

SYNOPSIS AS INTRODUCED:

205 ILCS 5/32	from Ch. 17, par. 339
205 ILCS 5/48.1	from Ch. 17, par. 360
205 ILCS 705/10
755 ILCS 5/6-15	from Ch. 110 1/2, par. 6-15

Amends the Illinois Banking Act. In provisions concerning customer financial records and confidentiality, provides that the language does not prohibit the furnishing of financial information to the executor, executrix, administrator, or other lawful representative of the estate of a customer. Makes other changes. Amends the Financial Institutions Electronic Documents and Digital Signatures Act. In provisions concerning electronic notices, provides that consent to electronic transactions given by the customer pursuant to the federal Electronic Signatures in Global and National Commerce Act shall satisfy applicable consent requirements. Amends the Probate Act of 1975. Provides that any person doing business or performing transactions on behalf of or at the direction of an executor or administrator with a will annexed shall be entitled to the presumption that the executor or administrator with the will annexed is lawfully authorized to conduct the business or perform the transaction without such person investigating the source of the authority and without verifying that the actions of the executor or administrator with the will annexed comply with a will or any order of the probate court, unless such person has actual knowledge to the contrary.

A BILL FOR

AN ACT concerning finances.

Be it enacted by the People of the State of Illinois, represented in the General Assembly:

Section 5. The Illinois Banking Act is amended by changing Sections 32 and 48.1 as follows:

(205 ILCS 5/32) (from Ch. 17, par. 339)

Sec. 32. Basic loaning limits. The liabilities outstanding at one time to a state bank of a person for money borrowed, including the liabilities of a partnership or joint venture in the liabilities of the several members thereof, shall not exceed 25% of the amount of the unimpaired capital and unimpaired surplus of the bank.

The liabilities to any state bank of a person may exceed 25% of the unimpaired capital and unimpaired surplus of the bank, provided that (i) the excess amount from time to time outstanding is fully secured by readily marketable collateral having a market value, as determined by reliable and continuously available quotations, at least equal to the excess amount outstanding; and (ii) the total liabilities shall not exceed 30% of the unimpaired capital and unimpaired surplus of the bank.

The following shall not be considered as money borrowed within the meaning of this Section:

(1) The purchase or discount of bills of exchange drawn in good faith against actually existing values.

(2) The purchase or discount of commercial or business paper actually owned by the person negotiating the same.

(3) The purchase of or loaning money in exchange for evidences of indebtedness which shall be secured by mortgage or trust deed upon productive real estate the value of which, as ascertained by the oath of 2 qualified appraisers, neither of whom shall be an officer, director, or employee of the bank or of any subsidiary or affiliate of the bank, is double the amount of the principal debt secured at the time of the original purchase of evidence of indebtedness or loan of money and which is still double the amount of the principal debt secured at the time of any renewal of the indebtedness or loan, and which mortgage or trust deed is shown, either by a guaranty policy of a title guaranty company approved by the Commissioner or by a registrar's certificate of title in any county having adopted the provisions of the Registered Titles (Torrens) Act, or by the opinion of an attorney-at-law, to be a first lien upon the real estate therein described, and real estate shall not be deemed to be encumbered within the meaning of this subsection (3) by reason of the existence of instruments reserving rights-of-way, sewer rights and rights in wells, building restrictions or other restrictive covenants, nor by reason of the fact it is subject to lease under which rents or profits are reserved by the owners.

(4) The purchase of marketable investment securities.

(5) The liability to a state bank of a person who is an accommodation party to, or guarantor of payment for, any evidence of indebtedness of another person who obtains a loan from or discounts paper with or sells paper to the state bank; but the total liability to a state bank of a person as an accommodation party or guarantor of payment in respect of such evidences of indebtedness shall not exceed 25% of the amount of the unimpaired capital and unimpaired surplus of the bank; provided however that the liability of an accommodation party to paper excepted under subsection 2 of this Section shall not be included in the computation of this limitation.

(6) The liability to a state bank of a person, who as a guarantor, guarantees collection of the obligation or indebtedness of another person.

The total liabilities of any one person, for money borrowed, or otherwise, shall not exceed 25% of the deposits of the bank, and those total liabilities shall at no time exceed 50% of the amount of the unimpaired capital and unimpaired surplus of the bank. Absent an actual unremedied breach, the obligation or responsibility for breach of warranties or representations, express or implied, of a person transferring negotiable or non-negotiable paper to a bank without recourse and without guaranty of payment, shall not be included in determining the amount of liabilities of the person to the bank for borrowed money or otherwise; and in the event of and to the extent of an unremedied breach, the amount remaining unpaid for principal and interest on the paper in respect of which the unremedied breach exists shall thereafter for the purpose of determining whether subsequent transactions giving rise to additional liability of the person to the state bank for borrowed money or otherwise are within the limitations of Sections 32 through 34 of this Act, be included in computing the amount of liabilities of the person for borrowed money or otherwise.

The liability of a person to a state bank on account of acceptances made or issued by the state bank on behalf of the person shall be included in the computation of the total liabilities of the person for money borrowed except to the extent the acceptances grow out of transactions of the character described in subsection (6) of Section 34 of this Act and are otherwise within the limitations of that subsection; provided nevertheless that any such excepted acceptances acquired by the state bank which accepted the same shall be included in the computation of the liabilities of the person to the state bank for money borrowed.

The Secretary may adopt rules to address the funding by banks of any loan commitment, when such funding would involve additional extensions of credit to be made after the unimpaired capital and unimpaired surplus of the bank have decreased and the Secretary determines that such decrease in unimpaired capital and unimpaired surplus would cause the additional extensions of credit to result in an unsafe and unsound condition.

(Source: P.A. 96-1365, eff. 7-28-10.)

(205 ILCS 5/48.1) (from Ch. 17, par. 360)

Sec. 48.1. Customer financial records; confidentiality.

(a) For the purpose of this Section, the term "financial records" means any original, any copy, or any summary of:

(1) a document granting signature authority over a deposit or account;

(2) a statement, ledger card or other record on any deposit or account, which shows each transaction in or with respect to that account;

(3) a check, draft or money order drawn on a bank or issued and payable by a bank; or

(4) any other item containing information pertaining to any relationship established in the ordinary course of a bank's business between a bank and its customer, including financial statements or other financial information provided by the customer.

(b) This Section does not prohibit:

(1) The preparation, examination, handling or maintenance of any financial records by any officer, employee or agent of a bank having custody of the records, or the examination of the records by a certified public accountant engaged by the bank to perform an independent audit.

(2) The examination of any financial records by, or the furnishing of financial records by a bank to, any officer, employee or agent of (i) the Commissioner of Banks and Real Estate, (ii) after May 31, 1997, a state regulatory authority authorized to examine a branch of a State bank located in another state, (iii) the Comptroller of the Currency, (iv) the Federal Reserve Board, or (v) the Federal Deposit Insurance Corporation for use solely in the exercise of his duties as an officer, employee, or agent.

(3) The publication of data furnished from financial records relating to customers where the data cannot be identified to any particular customer or account.

(4) The making of reports or returns required under Chapter 61 of the Internal Revenue Code of 1986.

(5) Furnishing information concerning the dishonor of any negotiable instrument permitted to be disclosed under the Uniform Commercial Code.

(6) The exchange in the regular course of business of (i) credit information between a bank and other banks or financial institutions or commercial enterprises, directly or through a consumer reporting agency or (ii) financial records or information derived from financial records between a bank and other banks or financial institutions or commercial enterprises for the purpose of conducting due diligence pursuant to a purchase or sale involving the bank or assets or liabilities of the bank.

(7) The furnishing of information to the appropriate law enforcement authorities where the bank reasonably believes it has been the victim of a crime.

(8) The furnishing of information under the Revised Uniform Unclaimed Property Act.

(9) The furnishing of information under the Illinois Income Tax Act and the Illinois Estate and Generation-Skipping Transfer Tax Act.

(10) The furnishing of information under the federal Currency and Foreign Transactions Reporting Act Title 31, United States Code, Section 1051 et seq.

(11) The furnishing of information under any other statute that by its terms or by regulations promulgated thereunder requires the disclosure of financial records other than by subpoena, summons, warrant, or court order.

(12) The furnishing of information about the existence of an account of a person to a judgment creditor of that person who has made a written request for that information.

(13) The exchange in the regular course of business of information between commonly owned banks in connection with a transaction authorized under paragraph (23) of Section 5 and conducted at an affiliate facility.

(14) The furnishing of information in accordance with the federal Personal Responsibility and Work Opportunity Reconciliation Act of 1996. Any bank governed by this Act shall enter into an agreement for data exchanges with a State agency provided the State agency pays to the bank a reasonable fee not to exceed its actual cost incurred. A bank providing information in accordance with this item shall not be liable to any account holder or other person for any disclosure of information to a State agency, for encumbering or surrendering any assets held by the bank in response to a lien or order to withhold and deliver issued by a State agency, or for any other action taken pursuant to this item, including individual or mechanical errors, provided the action does not constitute gross negligence or willful misconduct. A bank shall have no obligation to hold, encumber, or surrender assets until it has been served with a subpoena, summons, warrant, court or administrative order, lien, or levy.

(15) The exchange in the regular course of business of information between a bank and any commonly owned affiliate of the bank, subject to the provisions of the Financial Institutions Insurance Sales Law.

(16) The furnishing of information to law enforcement authorities, the Illinois Department on Aging and its regional administrative and provider agencies, the Department of Human Services Office of Inspector General, or public guardians: (i) upon subpoena by the investigatory entity or the guardian, or (ii) if there is suspicion by the bank that a customer who is an elderly person or person with a disability has been or may become the victim of financial exploitation. For the purposes of this item (16), the term: (i) "elderly person" means a person who is 60 or more years of age, (ii) "disabled person" means a person who has or reasonably appears to the bank to have a physical or mental disability that impairs his or her ability to seek or obtain protection from or prevent financial exploitation, and (iii) "financial exploitation" means tortious or illegal use of the assets or resources of an elderly or disabled person, and includes, without limitation, misappropriation of the elderly or disabled person's assets or resources by undue influence, breach of fiduciary relationship, intimidation, fraud, deception, extortion, or the use of assets or resources in any manner contrary to law. A bank or person furnishing information pursuant to this item (16) shall be entitled to the same rights and protections as a person furnishing information under the Adult Protective Services Act and the Illinois Domestic Violence Act of 1986.

(17) The disclosure of financial records or information as necessary to effect, administer, or enforce a transaction requested or authorized by the customer, or in connection with:

(A) servicing or processing a financial product or service requested or authorized by the customer;

(B) maintaining or servicing a customer's account with the bank; or

(C) a proposed or actual securitization or secondary market sale (including sales of servicing rights) related to a transaction of a customer.

Nothing in this item (17), however, authorizes the sale of the financial records or information of a customer without the consent of the customer.

(18) The disclosure of financial records or information as necessary to protect against actual or potential fraud, unauthorized transactions, claims, or other liability.

(19)(A) The disclosure of financial records or information related to a private label credit program between a financial institution and a private label party in connection with that private label credit program. Such information is limited to outstanding balance, available credit, payment and performance and account history, product references, purchase information, and information related to the identity of the customer.

(B)(1) For purposes of this paragraph (19) of subsection (b) of Section 48.1, a "private label credit program" means a credit program involving a financial institution and a private label party that is used by a customer of the financial institution and the private label party primarily for payment for goods or services sold, manufactured, or distributed by a private label party.

(2) For purposes of this paragraph (19) of subsection (b) of Section 48.1, a "private label party" means, with respect to a private label credit program, any of the following: a retailer, a merchant, a manufacturer, a trade group, or any such person's affiliate, subsidiary, member, agent, or service provider.

(20)(A) The furnishing of financial records of a customer to the Department to aid the Department's initial determination or subsequent re-determination of the customer's eligibility for Medicaid and Medicaid long-term care benefits for long-term care services, provided that the bank receives the written consent and authorization of the customer, which shall:

(1) have the customer's signature notarized;

(2) be signed by at least one witness who certifies that he or she believes the customer to be of sound mind and memory;

(3) be tendered to the bank at the earliest practicable time following its execution, certification, and notarization;

(4) specifically limit the disclosure of the customer's financial records to the Department; and

(5) be in substantially the following form:

CUSTOMER CONSENT AND AUTHORIZATION

FOR RELEASE OF FINANCIAL RECORDS

I, ......................................., hereby authorize (Name of Customer)

.............................................................

(Name of Financial Institution)

.............................................................

(Address of Financial Institution)

to disclose the following financial records:

any and all information concerning my deposit, savings, money market, certificate of deposit, individual retirement, retirement plan, 401(k) plan, incentive plan, employee benefit plan, mutual fund and loan accounts (including, but not limited to, any indebtedness or obligation for which I am a co-borrower, co-obligor, guarantor, or surety), and any and all other accounts in which I have an interest and any other information regarding me in the possession of the Financial Institution,

to the Illinois Department of Human Services or the Illinois Department of Healthcare and Family Services, or both ("the Department"), for the following purpose(s):

to aid in the initial determination or re-determination by the State of Illinois of my eligibility for Medicaid long-term care benefits, pursuant to applicable law.

I understand that this Consent and Authorization may be revoked by me in writing at any time before my financial records, as described above, are disclosed, and that this Consent and Authorization is valid until the Financial Institution receives my written revocation. This Consent and Authorization shall constitute valid authorization for the Department identified above to inspect all such financial records set forth above, and to request and receive copies of such financial records from the Financial Institution (subject to such records search and reproduction reimbursement policies as the Financial Institution may have in place). An executed copy of this Consent and Authorization shall be sufficient and as good as the original and permission is hereby granted to honor a photostatic or electronic copy of this Consent and Authorization. Disclosure is strictly limited to the Department identified above and no other person or entity shall receive my financial records pursuant to this Consent and Authorization. By signing this form, I agree to indemnify and hold the Financial Institution harmless from any and all claims, demands, and losses, including reasonable attorneys fees and expenses, arising from or incurred in its reliance on this Consent and Authorization. As used herein, "Customer" shall mean "Member" if the Financial Institution is a credit union.

....................... ...................... (Date) (Signature of Customer)

...................... ...................... (Address of Customer)

...................... (Customer's birth date) (month/day/year)

The undersigned witness certifies that ................., known to me to be the same person whose name is subscribed as the customer to the foregoing Consent and Authorization, appeared before me and the notary public and acknowledged signing and delivering the instrument as his or her free and voluntary act for the uses and purposes therein set forth. I believe him or her to be of sound mind and memory. The undersigned witness also certifies that the witness is not an owner, operator, or relative of an owner or operator of a long-term care facility in which the customer is a patient or resident.

Dated: ................. ...................... (Signature of Witness)

...................... (Print Name of Witness)

...................... ...................... (Address of Witness)

State of Illinois) ) ss. County of .......)

The undersigned, a notary public in and for the above county and state, certifies that .........., known to me to be the same person whose name is subscribed as the customer to the foregoing Consent and Authorization, appeared before me together with the witness, .........., in person and acknowledged signing and delivering the instrument as the free and voluntary act of the customer for the uses and purposes therein set forth.

Dated:.......................................................

Notary Public:...............................................

My commission expires:.......................................

(B) In no event shall the bank distribute the customer's financial records to the long-term care facility from which the customer seeks initial or continuing residency or long-term care services.

(C) A bank providing financial records of a customer in good faith relying on a consent and authorization executed and tendered in accordance with this paragraph (20) shall not be liable to the customer or any other person in relation to the bank's disclosure of the customer's financial records to the Department. The customer signing the consent and authorization shall indemnify and hold the bank harmless that relies in good faith upon the consent and authorization and incurs a loss because of such reliance. The bank recovering under this indemnification provision shall also be entitled to reasonable attorney's fees and the expenses of recovery.

(D) A bank shall be reimbursed by the customer for all costs reasonably necessary and directly incurred in searching for, reproducing, and disclosing a customer's financial records required or requested to be produced pursuant to any consent and authorization executed under this paragraph (20). The requested financial records shall be delivered to the Department within 10 days after receiving a properly executed consent and authorization or at the earliest practicable time thereafter if the requested records cannot be delivered within 10 days, but delivery may be delayed until the final reimbursement of all costs is received by the bank. The bank may honor a photostatic or electronic copy of a properly executed consent and authorization.

(E) Nothing in this paragraph (20) shall impair, abridge, or abrogate the right of a customer to:

(1) directly disclose his or her financial records to the Department or any other person; or

(2) authorize his or her attorney or duly appointed agent to request and obtain the customer's financial records and disclose those financial records to the Department.

(F) For purposes of this paragraph (20), "Department" means the Department of Human Services and the Department of Healthcare and Family Services or any successor administrative agency of either agency.

(21) The furnishing of financial information to the executor, executrix, administrator, or other lawful representative of the estate of a customer.

(c) Except as otherwise provided by this Act, a bank may not disclose to any person, except to the customer or his duly authorized agent, any financial records or financial information obtained from financial records relating to that customer of that bank unless:

(1) the customer has authorized disclosure to the person;

(2) the financial records are disclosed in response to a lawful subpoena, summons, warrant, citation to discover assets, or court order which meets the requirements of subsection (d) of this Section; or

(3) the bank is attempting to collect an obligation owed to the bank and the bank complies with the provisions of Section 2I of the Consumer Fraud and Deceptive Business Practices Act.

(d) A bank shall disclose financial records under paragraph (2) of subsection (c) of this Section under a lawful subpoena, summons, warrant, citation to discover assets, or court order only after the bank mails a copy of the subpoena, summons, warrant, citation to discover assets, or court order to the person establishing the relationship with the bank, if living, and, otherwise his personal representative, if known, at his last known address by first class mail, postage prepaid, unless the bank is specifically prohibited from notifying the person by order of court or by applicable State or federal law. A bank shall not mail a copy of a subpoena to any person pursuant to this subsection if the subpoena was issued by a grand jury under the Statewide Grand Jury Act.

(e) Any officer or employee of a bank who knowingly and willfully furnishes financial records in violation of this Section is guilty of a business offense and, upon conviction, shall be fined not more than $1,000.

(f) Any person who knowingly and willfully induces or attempts to induce any officer or employee of a bank to disclose financial records in violation of this Section is guilty of a business offense and, upon conviction, shall be fined not more than $1,000.

(g) A bank shall be reimbursed for costs that are reasonably necessary and that have been directly incurred in searching for, reproducing, or transporting books, papers, records, or other data required or requested to be produced pursuant to a lawful subpoena, summons, warrant, citation to discover assets, or court order. The Commissioner shall determine the rates and conditions under which payment may be made.

(Source: P.A. 100-22, eff. 1-1-18; 100-664, eff. 1-1-19; 100-888, eff. 8-14-18; 101-81, eff. 7-12-19.)

Section 10. The Financial Institutions Electronic Documents and Digital Signature Act is amended by changing Section 10 as follows:

(205 ILCS 705/10)

Sec. 10. Electronic documents; digital signatures; electronic notices.

(a) Electronic documents. If in the regular course of business, a financial institution possesses, records, or generates any document, representation, image, substitute check, reproduction, or combination thereof, of any agreement, transaction, act, occurrence, or event by any electronic or computer-generated process that accurately reproduces, comprises, or records the agreement, transaction, act, occurrence, or event, the recording, comprising, or reproduction shall have the same force and effect under the laws of this State as one comprised, recorded, or created on paper or other tangible form by writing, typing, printing, or similar means.

(b) Digital signatures. In any communication, acknowledgement, agreement, or contract between a financial institution and its customer, in which a signature is required or used, any party to the communication, acknowledgement, agreement, or contract may affix a signature by use of a digital signature, and the digital signature, when lawfully used by the person whose signature it purports to be, shall have the same force and effect as the use of a manual signature if it is unique to the person using it, is capable of verification, is under the sole control of the person using it, and is linked to data in such a manner that if the data are changed, the digital signature is invalidated. Nothing in this Section shall require any financial institution or customer to use or permit the use of a digital signature.

(c) Electronic notices.

(1) Consent to electronic records. If a statute, regulation, or other rule of law requires that information relating to a transaction or transactions in or affecting intrastate commerce in this State be provided or made available by a financial institution to a consumer in writing, the use of an electronic record to provide or make available that information satisfies the requirement that the information be in writing if:

(A) the consumer has affirmatively consented to the use of an electronic record to provide or make available that information and has not withdrawn consent;

(B) the consumer, prior to consenting, is provided with a clear and conspicuous statement:

(i) informing the consumer of:

(I) any right or option of the consumer to have the record provided or made available on paper or in nonelectronic form, and

(II) the right of the consumer to withdraw the consent to have the record provided or made available in an electronic form and of any conditions, consequences (which may include termination of the parties' relationship), or fees in the event of a withdrawal of consent;

(ii) informing the consumer of whether the consent applies:

(I) only to the particular transaction that gave rise to the obligation to provide the record, or

(II) to identified categories of records that may be provided or made available during the course of the parties' relationship;

(iii) describing the procedures the consumer must use to withdraw consent, as provided in clause (i), and to update information needed to contact the consumer electronically; and

(iv) informing the consumer:

(I) how, after the consent, the consumer may, upon request, obtain a paper copy of an electronic record, and

(II) whether any fee will be charged for a paper copy;

(C) the consumer:

(i) prior to consenting, is provided with a statement of the hardware and software requirements for access to and retention of the electronic records; and

(ii) consents electronically, or confirms his or her consent electronically, in a manner that reasonably demonstrates that the consumer can access information in the electronic form that will be used to provide the information that is the subject of the consent; and

(D) after the consent of a consumer in accordance with subparagraph (A), if a change in the hardware or software requirements needed to access or retain electronic records creates a material risk that the consumer will not be able to access or retain a subsequent electronic record that was the subject of the consent, the person providing the electronic record:

(i) provides the consumer with a statement of:

(I) the revised hardware and software requirements for access to and retention of the electronic records, and

(II) the right to withdraw consent without the imposition of any fees for the withdrawal and without the imposition of any condition or consequence that was not disclosed under subparagraph (B)(i); and

(ii) again complies with subparagraph (C).

(2) Other rights.

(A) Preservation of consumer protections. Nothing in this subsection (c) affects the content or timing of any disclosure or other record required to be provided or made available to any consumer under any statute, regulation, or other rule of law.

(B) Verification or acknowledgment. If a law that was enacted prior to this amendatory Act of the 95th General Assembly expressly requires a record to be provided or made available by a specified method that requires verification or acknowledgment of receipt, the record may be provided or made available electronically only if the method used provides the required verification or acknowledgment of receipt.

(2.5) Consent to electronic transactions given by the customer pursuant to the federal Electronic Signatures in Global and National Commerce Act, 15 U.S.C. 7001, shall satisfy the consent requirements of this Act.

(3) Effect of failure to obtain electronic consent or confirmation of consent. The legal effectiveness, validity, or enforceability of any contract executed by a consumer shall not be denied solely because of the failure to obtain electronic consent or confirmation of consent by that consumer in accordance with paragraph (1)(C)(ii).

(4) Prospective effect. Withdrawal of consent by a consumer shall not affect the legal effectiveness, validity, or enforceability of electronic records provided or made available to that consumer in accordance with paragraph (1) prior to implementation of the consumer's withdrawal of consent. A consumer's withdrawal of consent shall be effective within a reasonable period of time after receipt of the withdrawal by the provider of the record. Failure to comply with paragraph (1)(D) may, at the election of the consumer, be treated as a withdrawal of consent for purposes of this paragraph.

(5) Prior consent. This subsection does not apply to any records that are provided or made available to a consumer who has consented prior to the effective date of this amendatory Act of the 95th General Assembly to receive the records in electronic form as permitted by any statute, regulation, or other rule of law.

(6) Oral communications. An oral communication or a recording of an oral communication shall not qualify as an electronic record for purposes of this subsection (c), except as otherwise provided under applicable law.

(Source: P.A. 94-458, eff. 8-4-05; 95-77, eff. 8-13-07.)

Section 15. The Probate Act of 1975 is amended by changing Section 6-15 as follows:

(755 ILCS 5/6-15) (from Ch. 110 1/2, par. 6-15)

Sec. 6-15. Executor to administer all estate of decedent.)

(a) The executor or the administrator with the will annexed shall administer all the testate and intestate estate of the decedent.

(b) Any person doing business or performing transactions on behalf of or at the direction of an executor or administrator with the will annexed shall be entitled to the presumption that the executor or administrator with the will annexed is lawfully authorized to conduct the business or perform the transaction without such person investigating the source of the authority and without verifying that the actions of the executor or administrator with the will annexed comply with a will or any order of the probate court, unless such person has actual knowledge to the contrary.

(Source: P.A. 79-328.)