Full Text of SB0669 102nd General Assembly
SB0669enr 102ND GENERAL ASSEMBLY |
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| 1 | | AN ACT concerning regulation.
| 2 | | Be it enacted by the People of the State of Illinois,
| 3 | | represented in the General Assembly:
| 4 | | Section 5. The Debt Settlement Consumer Protection Act is | 5 | | amended by changing Sections 10, 105, 115, 125, and 145 as | 6 | | follows: | 7 | | (225 ILCS 429/10)
| 8 | | Sec. 10. Definitions. As used in this Act: | 9 | | "Consumer" means any person who purchases or contracts for | 10 | | the purchase of debt settlement services or a student loan | 11 | | borrower . | 12 | | "Consumer settlement account" means any account or other | 13 | | means or device in which payments, deposits, or other | 14 | | transfers from a consumer are arranged, held, or transferred | 15 | | by or to a debt settlement provider for the accumulation of the | 16 | | consumer's funds in anticipation of proffering an adjustment | 17 | | or settlement of a debt or obligation of the consumer to a | 18 | | creditor on behalf of the consumer. | 19 | | "Debt settlement provider" means : (1) any person or entity | 20 | | engaging in, or holding itself out as engaging in, the | 21 | | business of providing debt settlement service in exchange for | 22 | | any fee or compensation ; (2) , or any person who solicits for or | 23 | | acts on behalf of any person or entity engaging in, or holding |
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| 1 | | itself out as engaging in, the business of providing debt | 2 | | settlement service in exchange for any fee or compensation ; | 3 | | (3) any person or entity engaging in, or holding itself out as | 4 | | engaging in the business of student loan debt relief services | 5 | | in exchange for any fee or compensation assessed against or | 6 | | charged to a consumer; or (4) any person who solicits for or | 7 | | acts on behalf of such person or entity engaging in or holding | 8 | | itself out as engaging in, the business of student loan debt | 9 | | relief services in exchange for any fee or compensation | 10 | | assessed against or charged to a consumer . "Debt settlement | 11 | | provider" does not include: | 12 | | (1) attorneys licensed, or otherwise authorized, to | 13 | | practice in Illinois who are engaged in the practice of | 14 | | law;
| 15 | | (2) escrow agents, accountants, broker dealers in | 16 | | securities, or investment advisors in securities, when | 17 | | acting in the ordinary practice of their professions and | 18 | | through the entity used in the ordinary practice of their | 19 | | profession;
| 20 | | (3) any bank, agent of a bank, operating subsidiary of | 21 | | a bank, affiliate of a bank, trust company, savings and | 22 | | loan association, savings bank, credit union, crop credit | 23 | | association, development credit corporation, industrial | 24 | | development corporation, title insurance company, title | 25 | | insurance agent, independent escrowee or insurance company | 26 | | operating or organized under the laws of a state or the |
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| 1 | | United States, or any other person authorized to make | 2 | | loans under State law while acting in the ordinary | 3 | | practice of that business;
| 4 | | (4) any person who performs credit services for his or | 5 | | her employer while receiving a regular salary or wage when | 6 | | the employer is not engaged in the business of offering or | 7 | | providing debt settlement service;
| 8 | | (5) a collection agency licensed pursuant to the | 9 | | Collection Agency Act that is collecting a debt on its own | 10 | | behalf or on behalf of a third party; | 11 | | (6) an organization that is described in Section | 12 | | 501(c)(3) and subject to Section 501(q) of Title 26 of the | 13 | | United States Code and exempt from tax under Section | 14 | | 501(a) of Title 26 of the United States Code and governed | 15 | | by the Debt Management Service Act;
| 16 | | (7) public officers while acting in their official | 17 | | capacities and persons acting under court order;
| 18 | | (8) any person while performing services incidental to | 19 | | the dissolution, winding up, or liquidating of a | 20 | | partnership, corporation, or other business enterprise; or | 21 | | (9) persons licensed under the Real Estate License Act | 22 | | of 2000 when acting in the ordinary practice of their | 23 | | profession and not holding themselves out as debt | 24 | | settlement providers ; or . | 25 | | (10) any institution of higher education as defined in | 26 | | the Higher Education Act of 1965, 20 U.S.C. 1001. |
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| 1 | | "Debt settlement service" means:
| 2 | | (1) offering to provide advice or service, or acting | 3 | | as an intermediary between or on behalf of a consumer and | 4 | | one or more of a consumer's creditors, where the primary | 5 | | purpose of the advice, service, or action is to obtain a | 6 | | settlement, adjustment, or satisfaction of the consumer's | 7 | | unsecured debt to a creditor in an amount less than the | 8 | | full amount of the principal amount of the debt or in an | 9 | | amount less than the current outstanding balance of the | 10 | | debt; or
| 11 | | (2) offering to provide services related to or | 12 | | providing services advising, encouraging, assisting, or | 13 | | counseling a consumer to accumulate funds for the primary | 14 | | purpose of proposing or obtaining or seeking to obtain a | 15 | | settlement, adjustment, or satisfaction of the consumer's | 16 | | unsecured debt to a creditor in an amount less than the | 17 | | full amount of the principal amount of the debt or in an | 18 | | amount less than the current outstanding balance of the | 19 | | debt ; or . | 20 | | (3) student loan debt relief. | 21 | | "Debt settlement service" does not include (A) the | 22 | | services of attorneys licensed, or otherwise authorized, to | 23 | | practice in Illinois who are engaged in the practice of law , or | 24 | | (B) debt management service as defined in the Debt Management | 25 | | Service Act , (C) the services of a student loan servicer, as | 26 | | defined in the Student Loan Servicing Rights Act, or (D) the |
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| 1 | | services of any other originator, guarantor, or servicer of | 2 | | federal education loans or private education loans . | 3 | | "Enrollment or set up fee" means any fee, obligation, or | 4 | | compensation paid or to be paid by the consumer to a debt | 5 | | settlement provider in consideration of or in connection with | 6 | | establishing a contract or other agreement with a consumer | 7 | | related to the provision of debt settlement service. | 8 | | "Federal education loan" means any loan made, guaranteed, | 9 | | or insured under Title IV of the federal Higher Education Act | 10 | | of 1965. | 11 | | "Maintenance fee" means any fee, obligation, or | 12 | | compensation paid or to be paid by the consumer on a periodic | 13 | | basis to a debt settlement provider in consideration of | 14 | | maintaining the relationship and services to be provided by a | 15 | | debt settlement provider in accordance with a contract with a | 16 | | consumer related to the provision of debt settlement service. | 17 | | "Principal amount of the debt" means the total amount or | 18 | | outstanding balance owed by a consumer to one or more | 19 | | creditors for a debt that is included in a contract for debt | 20 | | settlement service at the time when the consumer enters into a | 21 | | contract for debt settlement service. | 22 | | "Savings" means the difference between the principal | 23 | | amount of the debt and the amount paid by the debt settlement | 24 | | provider to the creditor or negotiated by the debt settlement | 25 | | provider and paid by the consumer to the creditor pursuant to a | 26 | | settlement negotiated by the debt settlement provider on |
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| 1 | | behalf of the consumer as full and complete satisfaction of | 2 | | the creditor's claim with regard to that debt. | 3 | | "Secretary" means the Secretary of Financial and | 4 | | Professional Regulation. | 5 | | "Settlement fee" means any fee, obligation, or | 6 | | compensation paid or to be paid by the consumer to a debt | 7 | | settlement provider in consideration of or in connection with | 8 | | a completed agreement or other arrangement on the part of a | 9 | | creditor to accept less than the principal amount of the debt | 10 | | as satisfaction of the creditor's claim against the consumer.
| 11 | | "Student loan borrower" means a person who has received or | 12 | | agreed to pay a student loan for his or her own educational | 13 | | expenses; a parent, grandparent, or other family member who | 14 | | has received or agreed to pay a student loan for a family | 15 | | member receiving the education; or any co-signer who has | 16 | | agreed to share responsibility for repaying a student loan | 17 | | with the person receiving the education. | 18 | | "Student loan debt relief" means, in exchange for any fee | 19 | | or compensation assessed against or charged to a student loan | 20 | | borrower, offering to provide advice or service, or acting as | 21 | | an intermediary between or on behalf of a consumer and the | 22 | | United States Department of Education or any other originator | 23 | | or guarantor of federal education loans or one or more of the | 24 | | servicers of a student loan borrower's federal education loan, | 25 | | where the primary purpose of the advice, service, or action is | 26 | | to (1) negotiate, arrange, or obtain a settlement, adjustment, |
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| 1 | | discharge, or satisfaction of the student loan borrower's | 2 | | federal education loan debt in an amount less than the full | 3 | | amount of the principal amount of the debt, a reduction or | 4 | | alteration to the interest rate, a reduction or alteration in | 5 | | the amount of monthly payment or fees owed, or in an amount | 6 | | less than the current outstanding balance of the debt, (2) | 7 | | enroll the student loan borrower in a repayment plan, | 8 | | forbearance, or deferment of his or her federal education loan | 9 | | debt, (3) apply for consolidation or consolidate the student | 10 | | loan borrower's federal education loans, or (4) offer to | 11 | | provide any other services related to altering the terms of a | 12 | | student loan borrower's federal education loan debt, | 13 | | including, but not limited to, a reduction in the amount of | 14 | | interest, the principal balance, or the amount of monthly | 15 | | payment or fees owed. | 16 | | (Source: P.A. 96-1420, eff. 8-3-10.) | 17 | | (225 ILCS 429/105)
| 18 | | Sec. 105. Advertising and marketing practices. | 19 | | (a) A debt settlement provider shall not represent, | 20 | | expressly or by implication, any results or outcomes of its | 21 | | debt settlement services in any advertising, marketing, or | 22 | | other communication to consumers unless the debt settlement | 23 | | provider possesses substantiation for such representation at | 24 | | the time such representation is made.
| 25 | | (b) A debt settlement provider shall not, expressly or by |
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| 1 | | implication, make any unfair or deceptive representations, or | 2 | | any omissions of material facts, in any of its advertising or | 3 | | marketing communications concerning debt settlement services.
| 4 | | (c) All advertising and marketing communications | 5 | | concerning debt settlement services shall disclose the | 6 | | following material information clearly and conspicuously:
| 7 | | "Debt settlement services are not appropriate for | 8 | | everyone. Failure to pay your monthly bills in a timely | 9 | | manner will result in increased balances and will harm | 10 | | your credit rating. Not all creditors will agree to reduce | 11 | | principal balance, and they may pursue collection, | 12 | | including lawsuits."
| 13 | | (d) All advertising and marketing communications | 14 | | concerning student loan debt relief services shall disclose | 15 | | the following material information clearly and conspicuously, | 16 | | along with the legally registered name of the company: | 17 | | "[Name of company] is a private company, and is not | 18 | | affiliated with the Department of Education or any other | 19 | | academic entity or governmental agency. [Name of company] | 20 | | is not a lender, guarantor, or servicer of federal student | 21 | | loans. You can apply for consolidation and other repayment | 22 | | plans without paid assistance through the United States | 23 | | Department of Education. More information is available | 24 | | through the Department's website or your federal student | 25 | | loan servicer. You can find out who your servicer is | 26 | | through the Department of Education.". |
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| 1 | | (Source: P.A. 96-1420, eff. 8-3-10.) | 2 | | (225 ILCS 429/115)
| 3 | | Sec. 115. Required pre-sale consumer disclosures and | 4 | | warnings. | 5 | | (a) Before the consumer signs a contract, the debt | 6 | | settlement provider shall provide an oral and written notice | 7 | | to the consumer that clearly and conspicuously discloses all | 8 | | of the following:
| 9 | | (1) Debt settlement services may not be suitable for | 10 | | all consumers. | 11 | | (2) Using a debt settlement service likely will harm | 12 | | the consumer's credit history and credit score.
| 13 | | (3) Using a debt settlement service does not stop | 14 | | creditor collection activity, including creditor lawsuits | 15 | | and garnishments. | 16 | | (4) Not all creditors will accept a reduction in the | 17 | | balance, interest rate, or fees a consumer owes.
| 18 | | (5) The consumer should inquire about other means of | 19 | | dealing with debt, including, but not limited to, | 20 | | nonprofit credit counseling and bankruptcy.
| 21 | | (6) The consumer remains obligated to make periodic or | 22 | | scheduled payments to creditors while participating in a | 23 | | debt settlement plan, and that the debt settlement | 24 | | provider will not make any periodic or scheduled payments | 25 | | to creditors on behalf of the consumer.
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| 1 | | (7) The failure to make periodic or scheduled payments | 2 | | to a creditor is likely to:
| 3 | | (A) harm the consumer's credit history, credit | 4 | | rating, or credit score;
| 5 | | (B) lead the creditor to increase lawful | 6 | | collection activity, including litigation, garnishment | 7 | | of the consumer's wages, and judgment liens on the | 8 | | consumer's property; and
| 9 | | (C) lead to the imposition by the creditor of | 10 | | interest charges, late fees, and other penalty fees, | 11 | | increasing the principal amount of the debt. | 12 | | (8) The amount of time estimated to be necessary to | 13 | | achieve the represented results.
| 14 | | (9) The estimated amount of money or the percentage of | 15 | | debt the consumer must accumulate before a settlement | 16 | | offer will be made to each of the consumer's creditors.
| 17 | | (10) For student loan debt relief services, before the | 18 | | student loan borrower signs a contract, the provider shall | 19 | | provide an oral and written notice to the student loan | 20 | | borrower that clearly and conspicuously discloses the | 21 | | following: | 22 | | "[Name of company] is a private company, and is | 23 | | not affiliated with the Department of Education or any | 24 | | other academic entity or governmental agency. [Name of | 25 | | company] is not a lender, guarantor, or servicer of | 26 | | federal student loans. You can apply for consolidation |
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| 1 | | and other repayment plans without paid assistance | 2 | | through the United States Department of Education. | 3 | | More information is available through the Department's | 4 | | website or your federal student loan servicer. You can | 5 | | find out who your servicer is through the Department | 6 | | of Education.". | 7 | | (b) The consumer shall sign and date an acknowledgment | 8 | | form entitled "Consumer Notice and Rights Form" that states: | 9 | | "I, the debtor, have received from the debt settlement | 10 | | provider a copy of the form entitled "Consumer Notice and | 11 | | Rights Form"." The debt settlement provider or its | 12 | | representative shall also sign and date the acknowledgment | 13 | | form, which includes the name and address of the debt | 14 | | settlement services provider. The acknowledgment form shall be | 15 | | in duplicate and incorporated into the "Consumer Notice and | 16 | | Rights Form". The original acknowledgment form shall be | 17 | | retained by the debt settlement provider, and the duplicate | 18 | | copy shall be retained within the form by the consumer.
| 19 | | If the acknowledgment form is in electronic form, then it | 20 | | shall contain the consumer disclosures required by Section | 21 | | 101(c) of the federal Electronic Signatures in Global and | 22 | | National Commerce Act. | 23 | | (c) Except as provided in subsection (d), the The | 24 | | requirements of this Section are satisfied if the provider | 25 | | provides the following warning verbatim, both orally and in | 26 | | writing, with the caption "CONSUMER NOTICE AND RIGHTS FORM" in |
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| 1 | | at least 28-point font and the remaining portion in at least | 2 | | 14-point font, to a consumer before the consumer signs a | 3 | | contract for the debt settlement provider's services: | 4 | | "CONSUMER NOTICE AND RIGHTS FORM | 5 | | CAUTION | 6 | | We CANNOT GUARANTEE that you successfully will reduce or | 7 | | eliminate your debt. | 8 | | If you stop paying your creditors, there is a strong | 9 | | likelihood some or all of the following may happen: | 10 | | - CREDITORS MAY STILL CONTACT YOU AND TRY TO COLLECT. | 11 | | - CREDITORS MAY STILL SUE YOU FOR THE MONEY YOU OWE.
| 12 | | - YOUR WAGES OR BANK ACCOUNT MAY STILL BE GARNISHED.
| 13 | | - YOUR CREDIT RATING AND CREDIT SCORE LIKELY WILL BE | 14 | | HARMED. | 15 | | - NOT ALL CREDITORS WILL AGREE TO ACCEPT A BALANCE | 16 | | REDUCTION. | 17 | | - YOU SHOULD CONSIDER ALL YOUR OPTIONS FOR ADDRESSING YOUR | 18 | | DEBT, SUCH AS CREDIT COUNSELING AND BANKRUPTCY FILING.
| 19 | | - THE AMOUNT OF MONEY YOU OWE MAY INCREASE DUE TO CREDITOR | 20 | | IMPOSITION OF INTEREST CHARGES, LATE FEES, AND OTHER PENALTY | 21 | | FEES.
| 22 | | - EVEN IF WE DO SETTLE YOUR DEBT, YOU MAY STILL BE REQUIRED | 23 | | TO PAY TAXES ON THE AMOUNT FORGIVEN. |
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| 1 | | YOUR RIGHT TO CANCEL | 2 | | If you sign a contract with a Debt Settlement Provider, | 3 | | you have the right to cancel at any time and receive a full | 4 | | refund of all unearned fees you have paid to the provider and | 5 | | all funds placed in your settlement fund that have not been | 6 | | paid to any creditors. | 7 | | IF YOU ARE DISSATISFIED
| 8 | | OR YOU HAVE QUESTIONS | 9 | | If you are dissatisfied with a debt settlement provider or | 10 | | have any questions, please bring it to the attention of the | 11 | | Illinois Attorney General's Office and the Department of | 12 | | Financial and Professional Regulation. | 13 | | Attorney General Toll-Free Numbers:
| 14 | | Carbondale (800) 243-0607 | 15 | | Springfield (800) 243-0618
| 16 | | Chicago (800) 386-5438 | 17 | | Website for Department of Financial and Professional | 18 | | Regulation: www.idfpr.com | 19 | | I, the debtor, have received from the debt settlement provider | 20 | | a copy of the form entitled Consumer Notice and Rights Form.".
| 21 | | (d) All providers of student loan debt relief services | 22 | | shall include the following disclosure: | 23 | | "[NAME OF COMPANY] IS A PRIVATE COMPANY, AND IS NOT | 24 | | AFFILIATED WITH THE DEPARTMENT OF EDUCATION OR ANY OTHER | 25 | | ACADEMIC ENTITY OR GOVERNMENTAL AGENCY. [NAME OF COMPANY] |
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| 1 | | IS NOT A LENDER, GUARANTOR, OR SERVICER OF FEDERAL STUDENT | 2 | | LOANS. YOU CAN APPLY FOR CONSOLIDATION AND OTHER REPAYMENT | 3 | | PLANS WITHOUT PAID ASSISTANCE THROUGH THE UNITED STATES | 4 | | DEPARTMENT OF EDUCATION. MORE INFORMATION IS AVAILABLE | 5 | | THROUGH THE DEPARTMENT'S WEBSITE OR YOUR FEDERAL STUDENT | 6 | | LOAN SERVICER. YOU CAN FIND OUT WHO YOUR SERVICER IS | 7 | | THROUGH THE DEPARTMENT OF EDUCATION.". | 8 | | (Source: P.A. 96-1420, eff. 8-3-10.) | 9 | | (225 ILCS 429/125)
| 10 | | Sec. 125. Fees. | 11 | | (a) A debt settlement provider shall not charge fees of | 12 | | any type or receive compensation from a consumer in a type, | 13 | | amount, or timing other than fees or compensation permitted in | 14 | | this Section.
| 15 | | (b) A debt settlement provider shall not charge or receive | 16 | | from a consumer any enrollment fee, set up fee, up front fee of | 17 | | any kind, or any maintenance fee, except for a one-time | 18 | | enrollment fee of no more than $50.
| 19 | | (c) A debt settlement provider may charge a settlement | 20 | | fee, which shall not exceed an amount greater than 15% of the | 21 | | savings. If the amount paid by the debt settlement provider to | 22 | | the creditor or negotiated by the debt settlement provider and | 23 | | paid by the consumer to the creditor pursuant to a settlement | 24 | | negotiated by the debt settlement provider on behalf of the | 25 | | consumer as full and complete satisfaction of the creditor's |
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| 1 | | claim with regard to that debt is greater than the principal | 2 | | amount of the debt, then the debt settlement provider shall | 3 | | not be entitled to any settlement fee.
| 4 | | (d) A debt settlement provider shall not collect any | 5 | | settlement fee from a consumer until a creditor enters into a | 6 | | legally enforceable agreement to accept funds in a specific | 7 | | dollar amount as full and complete satisfaction of the | 8 | | creditor's claim with regard to that debt and those funds are | 9 | | provided by the debt settlement provider on behalf of the | 10 | | consumer or are provided directly by the consumer to the | 11 | | creditor pursuant to a settlement negotiated by the debt | 12 | | settlement provider.
| 13 | | (e) Any fees charged to a student loan borrower in | 14 | | exchange for student loan debt relief shall comply with this | 15 | | Section. | 16 | | (Source: P.A. 96-1420, eff. 8-3-10; 97-333, eff. 8-12-11.) | 17 | | (225 ILCS 429/145)
| 18 | | Sec. 145. Prohibited practices. A debt settlement provider | 19 | | shall not do any of the following:
| 20 | | (1) Charge or collect from a consumer any fee not | 21 | | permitted by, in an amount in excess of the maximum amount | 22 | | permitted by, or at a time earlier than permitted by | 23 | | Section 125 of this Act.
| 24 | | (2) Advise or represent, expressly or by implication, | 25 | | that consumers should stop making payments to their |
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| 1 | | creditors , lenders, loan servicers, or loan guarantors or | 2 | | government entities .
| 3 | | (3) Advise or represent, expressly or by implication, | 4 | | that consumers should stop communicating with their | 5 | | creditors , lenders, loan servicers, loan guarantors, or | 6 | | attorneys or government entities . | 7 | | (4) Change the mailing address on any of a consumer's | 8 | | creditor's statements.
| 9 | | (5) Make loans or offer credit or solicit or accept | 10 | | any note, mortgage, or negotiable instrument other than a | 11 | | check signed by the consumer and dated no later than the | 12 | | date of signature.
| 13 | | (6) Take any confession of judgment or power of | 14 | | attorney to confess judgment against the consumer or | 15 | | appear as the consumer or on behalf of the consumer in any | 16 | | judicial proceedings.
| 17 | | (7) Take any release or waiver of any obligation to be | 18 | | performed on the part of the debt settlement provider or | 19 | | any right of the consumer.
| 20 | | (8) Advertise, display, distribute, broadcast, or | 21 | | televise services or permit services to be displayed, | 22 | | advertised, distributed, broadcasted, or televised, in any | 23 | | manner whatsoever, that contains any false, misleading, or | 24 | | deceptive statements or representations with regard to any | 25 | | matter, including services to be performed, the fees to be | 26 | | charged by the debt settlement provider, or the effect |
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| 1 | | those services will have on a consumer's credit rating or | 2 | | on creditor collection efforts.
| 3 | | (9) Receive any cash, fee, gift, bonus, premium, | 4 | | reward, or other compensation from any person other than | 5 | | the consumer explicitly for the provision of debt | 6 | | settlement service to that consumer.
| 7 | | (10) Offer or provide gifts or bonuses to consumers | 8 | | for signing a debt settlement service contract or for | 9 | | referring another potential customer or customer.
| 10 | | (11) Disclose to anyone the name or any personal | 11 | | information of a consumer for whom the debt settlement | 12 | | provider has provided or is providing debt settlement | 13 | | service other than to a consumer's own creditors or the | 14 | | debt settlement provider's agents, affiliates, or | 15 | | contractors for the purpose of providing debt settlement | 16 | | service without the prior consent of the consumer.
| 17 | | (12) Enter into a contract with a consumer without | 18 | | first providing the disclosures and financial analysis and | 19 | | making the determinations required by this Section.
| 20 | | (13) Misrepresent any material fact, make a material | 21 | | omission, or make a false promise directed to one or more | 22 | | consumers in connection with the solicitation, offering, | 23 | | contracting, or provision of debt settlement service.
| 24 | | (14) Violate the provisions of applicable do not call | 25 | | statutes. | 26 | | (15) Purchase debts or engage in the practice or |
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| 1 | | business of debt collection.
| 2 | | (16) Include in a debt settlement agreement any | 3 | | secured debt.
| 4 | | (17) Employ an unfair, unconscionable, or deceptive | 5 | | act or practice, including the knowing omission of any | 6 | | material information.
| 7 | | (18) Engage in any practice that prohibits or limits | 8 | | the consumer or any creditor from communication directly | 9 | | with one another. | 10 | | (19) Represent or imply to a person participating in | 11 | | or considering debt settlement that purchase of any | 12 | | ancillary goods or services is required.
| 13 | | (20) Access or obtain a consumer's or student loan | 14 | | borrower's federal student aid information in violation of | 15 | | federal law. | 16 | | (Source: P.A. 96-1420, eff. 8-3-10.)
| 17 | | Section 99. Effective date. This Act takes effect upon | 18 | | becoming law.
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