Full Text of HB2217 94th General Assembly
HB2217ham001 94TH GENERAL ASSEMBLY
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Rep. Jay C. Hoffman
Filed: 4/6/2005
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09400HB2217ham001 |
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LRB094 03345 DRH 44353 a |
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| AMENDMENT TO HOUSE BILL 2217
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| AMENDMENT NO. ______. Amend House Bill 2217 by replacing | 3 |
| everything after the enacting clause with the following:
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| "Section 5. The Illinois Vehicle Code is amended by | 5 |
| changing Section 3-114 as follows:
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| (625 ILCS 5/3-114) (from Ch. 95 1/2, par. 3-114)
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| Sec. 3-114. Transfer by operation of law.
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| (a) If the interest of an owner in a vehicle passes to | 9 |
| another other
than by voluntary transfer, the transferee shall, | 10 |
| except as provided in
paragraph (b), promptly mail or deliver | 11 |
| within 20 days to the
Secretary of State the last certificate | 12 |
| of title, if available, proof of
the transfer, and his | 13 |
| application for a new certificate in the form the
Secretary of | 14 |
| State prescribes. It shall be unlawful for any person
having | 15 |
| possession of a certificate of title for a motor vehicle,
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| semi-trailer, or house car by reason of his having a lien or | 17 |
| encumbrance
on such vehicle, to fail or refuse to deliver such | 18 |
| certificate to the
owner, upon the satisfaction or discharge of | 19 |
| the lien or encumbrance,
indicated upon such certificate of | 20 |
| title.
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| (b) If the interest of an owner in a vehicle passes to | 22 |
| another under
the provisions of the Small Estates provisions of | 23 |
| the Probate Act of 1975 the
transferee shall promptly mail or | 24 |
| deliver to the Secretary of State, within 120
days, the last |
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| certificate of title, if available, the documentation required
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| under the provisions of the Probate Act of 1975, and an | 3 |
| application for
certificate of title. The Small Estate | 4 |
| Affidavit form shall be furnished by the
Secretary of State. | 5 |
| The transfer may be to the transferee or to the nominee of
the | 6 |
| transferee.
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| (c) If the interest of an owner in a vehicle passes to | 8 |
| another under
other provisions of the Probate Act of 1975, as | 9 |
| amended, and the transfer is
made by a representative or | 10 |
| guardian, such transferee shall promptly mail or
deliver to the | 11 |
| Secretary of State, the last certificate of title, if | 12 |
| available,
and a certified copy of the letters of office or | 13 |
| guardianship, and an
application for certificate of title. Such | 14 |
| application shall be made before the
estate is closed. The | 15 |
| transfer may be to the transferee or to the nominee of
the | 16 |
| transferee.
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| (d) If the interest of an owner in joint tenancy passes to | 18 |
| the other
joint tenant with survivorship rights as provided by | 19 |
| law, the transferee
shall promptly mail or deliver to the | 20 |
| Secretary of State, the last
certificate of title, if | 21 |
| available, proof of death of the one joint
tenant and | 22 |
| survivorship of the surviving joint tenant, and an
application | 23 |
| for certificate of title. Such application shall be made
within | 24 |
| 120 days after the death of the joint tenant. The transfer may
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| be to the transferee or to the nominee of the transferee.
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| (e) The Secretary of State shall transfer a decedent's | 27 |
| vehicle title to
any legatee, representative or heir of the | 28 |
| decedent who submits to the
Secretary a death certificate and | 29 |
| an affidavit by an attorney at law on the
letterhead stationery | 30 |
| of the attorney at law stating the facts of the
transfer.
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| (f) Repossession with assignment of title. In all cases | 32 |
| wherein a
lienholder has repossessed a vehicle by other
than | 33 |
| judicial process and holds it for resale under a security | 34 |
| agreement, and
the owner of record has executed an assignment |
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| of the existing certificate of
title after default, the | 2 |
| lienholder may proceed to sell or otherwise dispose of
the | 3 |
| vehicle
as authorized under the Uniform Commercial Code. Upon | 4 |
| selling the vehicle to
another person, the lienholder need not | 5 |
| send the certificate of title to the
Secretary of State, but | 6 |
| shall promptly and within 20 days mail or deliver to
the | 7 |
| purchaser
as transferee the existing certificate of title for | 8 |
| the repossessed vehicle,
reflecting the release of the | 9 |
| lienholder's security interest in the vehicle.
The application | 10 |
| for a certificate of title made by the
purchaser shall comply | 11 |
| with subsection (a) of Section 3-104 and be accompanied
by the | 12 |
| existing certificate of title for the repossessed vehicle.
The | 13 |
| lienholder shall execute the assignment and warranty of title | 14 |
| showing the
name and address of the purchaser in the spaces | 15 |
| provided therefor on the
certificate of title or as the | 16 |
| Secretary of State prescribes. The lienholder
shall complete | 17 |
| the assignment of title in the certificate of title to reflect
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| the transfer of the vehicle to the lienholder and also a | 19 |
| reassignment to
reflect the transfer from the lienholder to the | 20 |
| purchaser. For this purpose,
the lienholder is specifically | 21 |
| authorized
to complete and execute
the space reserved in the | 22 |
| certificate of title for a dealer reassignment,
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| notwithstanding that the lienholder is not a licensed dealer. | 24 |
| Nothing herein
shall be construed to mean that the lienholder | 25 |
| is taking title to the
repossessed vehicle for purposes of | 26 |
| liability for retailer occupation, vehicle
use, or other tax | 27 |
| with respect to the proceeds from the repossession sale.
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| Delivery of the existing certificate of title to the purchaser | 29 |
| shall be deemed
disclosure to the purchaser of the owner of the | 30 |
| vehicle.
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| (f-5) Repossession without assignment of title. In all | 32 |
| cases wherein a
lienholder has repossessed a vehicle
by other | 33 |
| than judicial process and holds it for resale under a security
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| agreement,
and the owner of record has not executed an |
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| assignment of the existing
certificate of title,
the lienholder | 2 |
| shall comply with the following provisions:
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| (1) Prior to sale, the lienholder shall deliver or | 4 |
| mail , by certified or registered mail, to the owner at
the | 5 |
| owner's last known address and to any other lienholder of | 6 |
| record, a notice
of redemption
setting forth the following | 7 |
| information: (i) the name of the owner of record
and in | 8 |
| bold type at or near the top of the notice a statement that | 9 |
| the owner's
vehicle was repossessed on a specified date for | 10 |
| failure to make payments on the
loan (or other reason), | 11 |
| (ii) a
description of the vehicle subject to the lien | 12 |
| sufficient to identify it, (iii)
the right of the owner to | 13 |
| redeem the vehicle, (iv) the lienholder's intent to
sell or | 14 |
| otherwise dispose of the vehicle after the expiration of 21 | 15 |
| days from
the date of mailing or delivery of the notice, | 16 |
| and (v) the name, address, and
telephone number of the | 17 |
| lienholder from
whom information may be
obtained | 18 |
| concerning the amount due to redeem the vehicle and from | 19 |
| whom
the vehicle may be redeemed under
Section 9-623 of the | 20 |
| Uniform Commercial Code. At the
lienholder's option, the
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| information required to be set forth in this notice of | 22 |
| redemption
may be made a part of or accompany the | 23 |
| notification of sale or other
disposition
required under | 24 |
| Section 9-611 of the
Uniform
Commercial Code, but none of | 25 |
| the information required by this notice shall
be construed | 26 |
| to impose any requirement under Article 9 of the Uniform
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| Commercial Code.
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| (2) With respect to the repossession of a vehicle used | 29 |
| primarily for
personal, family, or household purposes, the | 30 |
| lienholder shall also deliver or
mail to the owner at the | 31 |
| owner's last known address an affidavit
of defense. The | 32 |
| affidavit of defense shall accompany the notice of
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| redemption
required in subdivision (f-5)(1) of
this | 34 |
| Section. The affidavit of defense shall (i) identify the |
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| lienholder,
owner, and the
vehicle; (ii) provide space for | 2 |
| the owner to state the defense claimed by the
owner; and | 3 |
| (iii) include an acknowledgment by the owner that the owner | 4 |
| may be
liable to the lienholder for fees, charges, and | 5 |
| costs incurred by the
lienholder in establishing the | 6 |
| insufficiency or invalidity of the owner's
defense. To stop | 7 |
| the transfer of title, the affidavit of defense must be
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| received by the
lienholder no later than 21 days after the | 9 |
| date of mailing or delivery of the
notice required in | 10 |
| subdivision (f-5)(1) of this Section. If the lienholder
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| receives the affidavit from the owner in a timely manner, | 12 |
| the lienholder must
apply to a court of competent | 13 |
| jurisdiction to determine if the lienholder is
entitled to | 14 |
| possession of the vehicle.
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| (3) Upon selling the vehicle to another person, the | 16 |
| lienholder need not
send the certificate of title to the | 17 |
| Secretary of State, but shall
promptly and within 20 days | 18 |
| mail or deliver to the purchaser as transferee (i)
the | 19 |
| existing
certificate of title for the repossessed vehicle, | 20 |
| reflecting the release of the
lienholder's security | 21 |
| interest in the vehicle; and (ii) an affidavit of
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| repossession made by or on behalf of the lienholder which | 23 |
| provides the
following information: that the vehicle was | 24 |
| repossessed, a description of the
vehicle sufficient to | 25 |
| identify it, whether the vehicle has been damaged in
excess | 26 |
| of 33 1/3% of its fair market value as required under | 27 |
| subdivision (b)(3)
of Section 3-117.1, that the owner and | 28 |
| any other lienholder of record were
given the notice | 29 |
| required in subdivision (f-5)(1) of this Section,
that the | 30 |
| owner of record was given the affidavit of defense required | 31 |
| in
subdivision (f-5)(2) of this Section,
that the interest | 32 |
| of the owner was lawfully terminated or sold pursuant to | 33 |
| the
terms of the security agreement, and the purchaser's | 34 |
| name and address.
If the vehicle is damaged in excess of 33 |
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| 1/3% of its fair market value, the
lienholder shall make | 2 |
| application for a salvage certificate under Section
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| 3-117.1 and transfer the vehicle to a person eligible to | 4 |
| receive assignments of
salvage certificates identified in | 5 |
| Section 3-118.
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| (4) The application for a certificate of title made by | 7 |
| the purchaser shall
comply with subsection (a) of Section | 8 |
| 3-104 and be accompanied by the affidavit
of repossession | 9 |
| furnished by the lienholder and the existing certificate of
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| title for the repossessed vehicle.
The lienholder shall | 11 |
| execute the assignment and warranty of title showing the
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| name and address of the purchaser in the spaces provided | 13 |
| therefor on the
certificate of title or as the Secretary of | 14 |
| State prescribes. The lienholder
shall complete the | 15 |
| assignment of title in the certificate of title to reflect
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| the transfer of the vehicle to the lienholder and also a | 17 |
| reassignment to
reflect the transfer from the lienholder to | 18 |
| the purchaser. For this purpose,
the lienholder is | 19 |
| specifically authorized to execute the assignment on | 20 |
| behalf
of the owner as seller if the owner has not done so | 21 |
| and to complete and execute
the space reserved in the | 22 |
| certificate of title for a dealer reassignment,
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| notwithstanding that the lienholder is not a licensed | 24 |
| dealer. Nothing herein
shall be construed to mean that the | 25 |
| lienholder is taking title to the
repossessed vehicle for | 26 |
| purposes of liability for retailer occupation, vehicle
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| use, or other tax with respect to the proceeds from the | 28 |
| repossession sale.
Delivery of the existing certificate of | 29 |
| title to the purchaser shall be deemed
disclosure to the | 30 |
| purchaser of the owner of the vehicle.
In the event the | 31 |
| lienholder does not hold
the certificate of title for the | 32 |
| repossessed vehicle, the lienholder shall
make application | 33 |
| for and may obtain a new certificate of title in the name | 34 |
| of
the lienholder upon furnishing information satisfactory |
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| to the Secretary of
State. Upon receiving the new | 2 |
| certificate of title, the lienholder may proceed
with the | 3 |
| sale described in subdivision (f-5)(3), except that upon | 4 |
| selling the
vehicle the lienholder shall promptly and | 5 |
| within 20 days mail or deliver to the
purchaser the new | 6 |
| certificate of title reflecting the assignment and | 7 |
| transfer
of title to the purchaser.
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| (5) Neither the lienholder nor the owner shall file | 9 |
| with the Office of
the Secretary of State the notice of | 10 |
| redemption or affidavit of defense
described in | 11 |
| subdivisions (f-5)(1) and (f-5)(2) of this Section. The | 12 |
| Office of
the Secretary of State shall not determine the | 13 |
| merits of an owner's affidavit
of defense, nor consider any | 14 |
| allegations or assertions regarding the validity
or | 15 |
| invalidity of a lienholder's claim to the vehicle or an | 16 |
| owner's asserted
defenses to the repossession action. | 17 |
| (6) A lienholder who has repossessed a vehicle under | 18 |
| this subsection (f-5) may not remove the vehicle from this | 19 |
| State until after the expiration of 21 days from the date | 20 |
| of the mailing or delivery of the notice of redemption.
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| (f-7) Notice of reinstatement in certain cases.
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| (1) If, at the time of repossession by a lienholder | 23 |
| that is seeking to
transfer title pursuant to subsection | 24 |
| (f-5), the owner has paid an amount equal
to 30% or more of | 25 |
| the deferred payment price or total of payments due, the
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| owner may, within 21 days of the date of repossession, | 27 |
| reinstate the contract
or loan agreement and recover the | 28 |
| vehicle from the lienholder by tendering in a
lump sum (i) | 29 |
| the total of all unpaid amounts, including any unpaid | 30 |
| delinquency
or deferral charges due at the date of | 31 |
| reinstatement, without acceleration; and
(ii) performance | 32 |
| necessary to cure any default other than nonpayment of the
| 33 |
| amounts due; and (iii)
all reasonable costs and fees | 34 |
| incurred by the lienholder in retaking, holding,
and |
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| preparing the vehicle for disposition and in arranging for | 2 |
| the sale of the
vehicle. Reasonable costs and fees incurred | 3 |
| by the lienholder include without
limitation repossession | 4 |
| and storage expenses and, if authorized by the contract
or | 5 |
| loan agreement, reasonable attorneys' fees and collection | 6 |
| agency charges.
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| (2) Tender of payment and performance pursuant to this | 8 |
| limited right of
reinstatement restores to the owner his | 9 |
| rights under the contract or loan
agreement as though no | 10 |
| default had occurred. The owner has the right to
reinstate | 11 |
| the contract or loan agreement and recover the vehicle from | 12 |
| the
lienholder only once under this subsection. The | 13 |
| lienholder may, in the
lienholder's sole discretion, | 14 |
| extend the period during which the owner may
reinstate the | 15 |
| contract or loan agreement and recover the vehicle beyond | 16 |
| the 21
days allowed under this subsection, and the | 17 |
| extension shall not subject the
lienholder to liability to | 18 |
| the owner under the laws of this State.
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| (3) The lienholder shall deliver or mail written notice | 20 |
| to the owner at
the
owner's last known address, within 3 | 21 |
| business days of the date of repossession,
of the owner's | 22 |
| right to reinstate the contract or loan agreement and | 23 |
| recover
the vehicle pursuant to the limited right of | 24 |
| reinstatement described in this
subsection. At the | 25 |
| lienholder's option, the information required to be set
| 26 |
| forth in this notice of reinstatement may be made part of | 27 |
| or accompany the
notice of redemption required in | 28 |
| subdivision (f-5)(1) of this Section and the
notification | 29 |
| of sale or other disposition required under
Section 9-611 | 30 |
| of the Uniform Commercial Code, but none of the
information
| 31 |
| required by this notice of reinstatement shall be construed | 32 |
| to impose any
requirement under Article 9 of the Uniform | 33 |
| Commercial Code.
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| (4) The reinstatement period, if applicable, and the |
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| redemption period
described in subdivision (f-5)(1) of | 2 |
| this Section, shall run concurrently if
the information | 3 |
| required to be set forth in the notice of reinstatement is | 4 |
| part
of or accompanies the notice of redemption. In any | 5 |
| event, the 21 day
redemption period described in | 6 |
| subdivision (f-5)(1) of this Section shall
commence on the | 7 |
| date of
mailing or delivery to the owner of the information | 8 |
| required to be set forth in
the notice of redemption, and | 9 |
| the 21 day reinstatement period described in this
| 10 |
| subdivision, if applicable, shall commence on the date of | 11 |
| mailing or delivery
to the owner of the information | 12 |
| required to be set forth in the notice of
reinstatement.
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| (5) The Office of the Secretary of State shall not | 14 |
| determine the merits of
an owner's claim of right to | 15 |
| reinstatement, nor consider any allegations or
assertions | 16 |
| regarding the validity or invalidity of a lienholder's | 17 |
| claim to the
vehicle or an owner's asserted right to | 18 |
| reinstatement. Where a lienholder is
subject to licensing | 19 |
| and regulatory supervision by the State of Illinois, the
| 20 |
| lienholder shall be subject to all of the powers and | 21 |
| authority of the
lienholder's primary State regulator to | 22 |
| enforce compliance with the procedures
set forth in this | 23 |
| subsection (f-7).
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| (f-10) Repossession by judicial process. In all cases | 25 |
| wherein a lienholder
has repossessed a vehicle by
judicial
| 26 |
| process and holds it for resale under a security agreement, | 27 |
| order for replevin,
or other court order establishing the | 28 |
| lienholder's right to possession of the
vehicle, the lienholder | 29 |
| may proceed to sell or otherwise dispose of the vehicle
as | 30 |
| authorized under the Uniform Commercial Code or the court | 31 |
| order. Upon
selling the vehicle to another person, the | 32 |
| lienholder need not send the
certificate of title to the | 33 |
| Secretary of State, but shall promptly and within
20 days mail | 34 |
| or
deliver to the purchaser as transferee (i) the existing |
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LRB094 03345 DRH 44353 a |
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| certificate of title
for the repossessed vehicle reflecting the | 2 |
| release of the lienholder's security
interest in the vehicle; | 3 |
| (ii) a certified copy of the court order; and (iii) a
bill of | 4 |
| sale identifying the new owner's name and address and the year, | 5 |
| make,
model, and vehicle identification number of the vehicle.
| 6 |
| The application for a certificate of title made by the | 7 |
| purchaser shall comply
with subsection (a) of Section 3-104 and | 8 |
| be accompanied by the certified copy
of the court order | 9 |
| furnished by the
lienholder and the existing certificate of | 10 |
| title for the repossessed vehicle.
The lienholder shall execute | 11 |
| the assignment and warranty of title showing the
name and | 12 |
| address of the purchaser in the spaces provided therefor on the
| 13 |
| certificate of title or as the Secretary of State prescribes. | 14 |
| The lienholder
shall complete the assignment of title in the | 15 |
| certificate of title to reflect
the transfer of the vehicle to | 16 |
| the lienholder and also a reassignment to
reflect the transfer | 17 |
| from the lienholder to the purchaser. For this purpose,
the | 18 |
| lienholder is specifically authorized to execute the | 19 |
| assignment on behalf
of the owner as seller if the owner has | 20 |
| not done so and to complete and execute
the space reserved in | 21 |
| the certificate of title for a dealer reassignment,
| 22 |
| notwithstanding that the lienholder is not a licensed dealer. | 23 |
| Nothing herein
shall be construed to mean that the lienholder | 24 |
| is taking title to the
repossessed vehicle for purposes of | 25 |
| liability for retailer occupation, vehicle
use, or other tax | 26 |
| with respect to the proceeds from the repossession sale.
| 27 |
| Delivery of the existing certificate of title to the purchaser | 28 |
| shall be deemed
disclosure to the purchaser of the owner of the | 29 |
| vehicle.
In the event the
lienholder does not hold the | 30 |
| certificate of title for the repossessed vehicle,
the | 31 |
| lienholder shall
make application for and may obtain a new | 32 |
| certificate of title in the name of
the lienholder upon | 33 |
| furnishing information satisfactory to the Secretary of
State. | 34 |
| Upon receiving the new certificate of title, the lienholder may |
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| proceed
with the sale described in this subsection, except that | 2 |
| upon selling the
vehicle the lienholder shall promptly and | 3 |
| within 20 days mail or deliver to the
purchaser the new | 4 |
| certificate of title reflecting the assignment and transfer
of | 5 |
| title to the purchaser.
| 6 |
| (f-15) The Secretary of State shall not issue a certificate | 7 |
| of title to a
purchaser under subsection (f), (f-5), or (f-10) | 8 |
| of this Section, unless the
person from whom the vehicle has | 9 |
| been repossessed by the lienholder is shown to
be the last | 10 |
| registered owner of the motor vehicle. The Secretary of State | 11 |
| may
provide by rule for the standards to be followed by a | 12 |
| lienholder in assigning
and transferring certificates of title | 13 |
| with respect to repossessed vehicles.
| 14 |
| (f-20) If applying for a salvage certificate or a junking | 15 |
| certificate, the lienholder
shall within 20 days make an | 16 |
| application to the Secretary of State for a salvage certificate | 17 |
| or a junking certificate, as
set forth in this Code. The | 18 |
| Secretary of State shall
not issue a salvage
certificate or a | 19 |
| junking
certificate to such lienholder unless the person from | 20 |
| whom such vehicle has
been repossessed is shown to be the last | 21 |
| registered owner of such motor
vehicle and such lienholder | 22 |
| establishes to the satisfaction of
the Secretary of State that | 23 |
| he is entitled to such
salvage certificate or junking | 24 |
| certificate. The Secretary
of State may provide by rule for the | 25 |
| standards to be followed by
a lienholder in order to obtain a
| 26 |
| salvage certificate or junking certificate for a
repossessed | 27 |
| vehicle.
| 28 |
| (f-25) If the interest of an owner in a mobile home, as | 29 |
| defined in the
Mobile Home Local Services Tax Act, passes to | 30 |
| another under the provisions of
the
Mobile Home Local Services | 31 |
| Tax Enforcement Act, the transferee shall promptly
mail or | 32 |
| deliver to the Secretary of State (i) the last certificate of | 33 |
| title, if
available, (ii) a certified copy of the court order | 34 |
| ordering the transfer of
title, and (iii) an application for |
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| certificate of title.
| 2 |
| (g) A person holding a certificate of title whose interest | 3 |
| in the
vehicle has been extinguished or transferred other than | 4 |
| by voluntary
transfer shall mail or deliver the certificate, | 5 |
| within 20 days
upon request of the Secretary of State. The | 6 |
| delivery of the certificate
pursuant to the request of the | 7 |
| Secretary of State does not affect the
rights of the person | 8 |
| surrendering the certificate, and the action of the
Secretary | 9 |
| of State in issuing a new certificate of title as provided
| 10 |
| herein is not conclusive upon the rights of an owner or | 11 |
| lienholder named
in the old certificate.
| 12 |
| (h) The Secretary of State may decline to process any | 13 |
| application
for a transfer of an interest in a vehicle | 14 |
| hereunder if any fees or
taxes due under this Act from the | 15 |
| transferor or the transferee have not
been paid upon reasonable | 16 |
| notice and demand.
| 17 |
| (i) The Secretary of State shall not be held civilly or | 18 |
| criminally
liable to any person because any purported | 19 |
| transferor may not have had
the power or authority to make a | 20 |
| transfer of any interest in any vehicle
or because a | 21 |
| certificate of title issued in error is subsequently used to
| 22 |
| commit a fraudulent act.
| 23 |
| (Source: P.A. 91-893, eff. 7-1-01; 92-807, eff. 1-1-03.)".
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