HB4897 101ST GENERAL ASSEMBLY

LRB101 16595 BMS 65979 b

101ST GENERAL ASSEMBLY
State of Illinois
2019 and 2020
HB4897

Introduced 2/18/2020, by Rep. Camille Y. Lilly

SYNOPSIS AS INTRODUCED:

205 ILCS 5/48.1	from Ch. 17, par. 360
205 ILCS 5/48.6
205 ILCS 5/80	from Ch. 17, par. 392
205 ILCS 630/17	from Ch. 17, par. 2201

Amends the Illinois Banking Act. Provides that, unless the bank has actual knowledge of the falsity of an allegation or assertion received by the bank relating to financial exploitation of an elderly or disabled customer, the bank is entitled to rely in good faith on such an allegation or assertion when formulating a suspicion that there might be a reportable case of financial exploitation. Defines "suspicion by the bank". Provides that, if a subpoena, summons, warrant, or other request for a customer's records is presented to the bank by an agency or department of the federal government, or by an officer, agent, or employee of such federal agency or department, a bank is not required to release records until the bank has been furnished with a written certification that the requesting agency or department has satisfied its obligations under the federal Right to Financial Privacy Act of 1978. Provides that, unless a federal law requires otherwise, the Secretary of Financial and Professional Regulation shall (rather than may) by rule prescribe periods of time for which banks operating under this Act must retain records and after the expiration of which, the bank may destroy those records. Includes within the powers of the State Banking Board of Illinois the power to review and examine bank call report fee revenue and the disbursement of the fees. Makes other changes. Amends the Promissory Note and Bank Holiday Act. Provides that, if the bank is going to be closed for no more than a half day to permit personnel to attend a funeral, visitation, or other memorial service held for a deceased officer, employee, or director of the bank, or a family member of such person, the bank need only notify the Secretary and post conspicuously in the lobby of any affected office or branch of the bank notice of the hours during which the bank will be closed. Requires the notification to the Secretary and posting of notice in the lobby of the office or branch to be accomplished not less than 24 hours in advance of the day during which such closing will occur.

A BILL FOR

AN ACT concerning regulation.

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 48.1, 48.6, and 80 as follows:

(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, and (iv) "suspicion by the bank" means an honest and good faith concern but does not require investigation by the bank and does not mean proof, certainty, or probability. 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. Unless the bank has actual knowledge of the falsity of an allegation or assertion received by the bank relating to financial exploitation of an elderly or disabled customer, the bank is entitled to rely in good faith on such an allegation or assertion when formulating a suspicion that there might be a reportable case of financial exploitation.

(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 of Human Services or the Department of Healthcare and Family Services, or both ("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.

(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.

(d-1) If a subpoena, summons, warrant, or other request for a customer's records is presented to the bank by an agency or department of the federal government, or by an officer, agent, or employee of such federal agency or department, a bank is not required to release records until the bank has been furnished with a written certification that the requesting agency or department has satisfied its obligations under the federal Right to Financial Privacy Act of 1978.

(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.)

(205 ILCS 5/48.6)

Sec. 48.6. Retention of records. Unless a federal law requires otherwise, the Secretary shall Commissioner may by rule prescribe periods of time for which banks operating under this Act must retain records and after the expiration of which, the bank may destroy those records. No liability shall accrue against the bank, the Secretary Commissioner, or this State for the destruction of records according to rules of the Secretary adopted Commissioner promulgated under the authority of this Section. In any cause or proceeding in which any records may be called in question or be demanded by any bank, a showing of the expiration of the period so prescribed shall be sufficient excuse for failure to produce them.

(Source: P.A. 91-929, eff. 12-15-00.)

(205 ILCS 5/80) (from Ch. 17, par. 392)

Sec. 80. Board; powers. The Board shall have the following powers in addition to any others that may be granted to it by law:

(a) (Blank).

(b) To review, consider, and make recommendations to the Director of Banking upon any banking matters.

(c) (Blank).

(d) (Blank).

(e) To review, consider, and submit to the Director of Banking and to the Governor proposals for amendments to this Act or for changes in or additions to the administration thereof which in the opinion of the Board are necessary or desirable in order to assure the safe and sound conduct of the banking business.

(f) To require the Secretary to furnish the Board space for meetings to be held by the Board as well as to require the Secretary to provide such clerical and technical assistance as the Board may require.

(g) To adopt its own by-laws with respect to Board meetings and procedures. Such by-laws shall provide that:

(i) A majority of the whole Board constitutes a quorum.

(ii) A majority of the quorum shall constitute effective action except that a vote of a majority of the whole Board shall be necessary for recommendations made to the Director of Banking and to the Governor with regard to proposed amendments to this Act or to the administrative practices hereunder.

(iii) The Board shall meet at least once in each calendar year and upon the call of the Director of Banking or a majority of the Board. The Director of Banking or a majority of the Board may call such special or additional meetings as may be deemed necessary or desirable.

(h) (Blank).

(i) (Blank).

(j) (Blank).

(k) (Blank).

(l) (Blank).

(m) To authorize the transfer of funds from the Illinois Bank Examiners' Education Fund to the Bank and Trust Company Fund. Any amount transferred shall be retransferred to the Illinois Bank Examiners' Education Fund from the Bank and Trust Company Fund within 3 years.

(n) To maintain and direct the investments of the Illinois Bank Examiners' Education Fund.

(o) To evaluate various courses, programs, curricula, and schools of continuing education and professional training that are available from within the United States for State banking department examination personnel and develop a program known as the Illinois Bank Examiners' Education Program. The Board shall determine which courses, programs, curricula, and schools will be included in the Program to be funded by the Foundation.

(p) To review and examine bank call report fee revenue and the disbursement of the fees.

(Source: P.A. 96-1163, eff. 1-1-11.)

Section 10. The Promissory Note and Bank Holiday Act is amended by changing Section 17 as follows:

(205 ILCS 630/17) (from Ch. 17, par. 2201)

Sec. 17. Holidays.

(a) The following days shall be legal holidays in the State of Illinois upon which day a bank may, but is not required to, remain closed:

the first day of January (New Year's Day);

the third Monday in January (observance of Martin Luther King, Jr.'s birthday);

the twelfth day in February (Abraham Lincoln's birthday);

the third Monday in February (Presidents Day);

the first Monday in March (observance of Casimir Pulaski's birthday);

the Friday preceding Easter Sunday (Good Friday);

the last Monday of May (Memorial Day);

the fourth day of July (Independence Day);

the first Monday in September (Labor Day);

the second Monday in October (Columbus Day);

the eleventh day of November (Veterans' Day);

the fourth Thursday in November (Thanksgiving Day);

the twenty-fifth day in December (Christmas Day);

the days upon which the general elections for members of the House of Representatives are held, and any day proclaimed by the Governor of this State as a legal holiday. From 12 o'clock noon to 12 o'clock midnight of each Saturday shall be considered a half holiday. In addition to such holidays and half-holidays, a bank may select one day of the week to remain closed, as provided in subsection (b) of this Section.

(b) Any bank doing business within this State may select any one day of the week to remain closed on a regular basis upon adoption of a resolution by the board of directors of such bank designating the day selected and upon filing and publishing a copy of such resolution as hereinafter required. Any such resolution shall be deemed effective for the purpose of this Section only when a copy thereof, certified by an officer having charge of the records of such bank, is filed with the Recorder of the county in which such bank is located and published once each week for 3 successive weeks in a newspaper of general circulation in such county. Such publication shall be accomplished by, and at the expense of, the bank, and the bank shall submit to the Commissioner of Banks and Real Estate such evidence of the publication as the Commissioner shall deem appropriate. Any such selection shall remain in full force and effect until a copy of the later resolution of the board of directors of such bank, certified in like manner, terminating or altering any such prior selection shall be filed and published in the same manner as such prior resolution.

(c) If an occasion arises when a state bank wishes to remain closed on a particular day, other than a day on which the bank has selected to remain closed on a regular basis as provided in this Section, such state bank may remain closed on such an occasion after first sending to the Commissioner a copy of a resolution adopted by the board of directors authorizing the bank to remain closed on such occasion and notice of the intent to remain closed on such occasion shall be conspicuously posted in the lobby of the main banking office and any branches of such bank for at least 3 weeks in advance of such occasion. Any day which any bank doing business within the State shall select to remain closed pursuant to this Section shall, with respect to such bank, be treated and considered as a Sunday. Notwithstanding the notification time frames and procedures otherwise stated in this subsection, if the bank is going to be closed for no more than a half day to permit personnel to attend a funeral, visitation, or other memorial service held for a deceased officer, employee, or director of the bank, or a family member of such person, the bank need only notify the Secretary and post conspicuously in the lobby of any affected office or branch of the bank notice of the hours during which the bank will be closed. Such notification to the Secretary and posting of notice in the lobby of the office or branch shall be accomplished not less than 24 hours in advance of the day during which such closing will occur.

(d) All legal holidays, the half holidays and any day selected by a bank doing business within the State to remain closed, shall, for all purposes whatsoever, as regards the presenting for payment or acceptance, the maturity and protesting and giving of notice of the dishonor of bills of exchange, bank checks and promissory notes and other negotiable or commercial paper or instrument, be treated and considered as a Sunday. When any such holidays fall on Sunday, the Monday next following shall be held and considered such holiday. All notes, bills, drafts, checks or other evidence of indebtedness, falling due or maturing on either of such days, shall be deemed as due or maturing upon the day following, and when 2 or more of these days come together, or immediately succeeding each other, then such instruments, paper or indebtedness shall be deemed as due or having matured on the day following the last of such days.

(e) Any act authorized, required or permitted to be performed at or by or with respect to any bank doing business within the State on a day which it has selected to remain closed under this Section may be so performed on the next succeeding business day and no liability or loss of rights of any kind shall result from such delay.

(f) Nothing in this Act shall in any manner affect the validity of, or render void or voidable, the payment, certification, or acceptance of a check or other negotiable instrument, or any other transaction by a bank in this State, because done or performed on any Saturday, Sunday, holiday, or any day selected by a bank to remain closed, or during any time other than regular banking hours; but no bank in this State, which by law or custom is entitled to remain open or to close for the whole or any part of any day selected by it to remain open or to close, is compelled to close, or to remain open for the transaction of business or to perform any of the acts or transactions aforesaid except at its own option.

(Source: P.A. 89-508, eff. 7-3-96; 89-567, eff. 7-26-96; 90-14, eff. 7-1-97.)