Full Text of SB1398 95th General Assembly
SB1398enr 95TH GENERAL ASSEMBLY
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| AN ACT concerning regulation.
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| Be it enacted by the People of the State of Illinois,
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| represented in the General Assembly:
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| Section 5. The Collection Agency Act is amended by changing | 5 |
| Sections 2, 2.03, and 3 and by adding Sections 9.1, 9.2, 9.3, | 6 |
| 9.4, and 9.7 as follows:
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| (225 ILCS 425/2) (from Ch. 111, par. 2002)
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| (Section scheduled to be repealed on January 1, 2016)
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| Sec. 2. Definitions. In this Act:
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| "Consumer credit transaction" means a transaction between | 11 |
| a natural person and another person in which property, service, | 12 |
| or money is acquired on credit by that natural person from such | 13 |
| other person primarily for personal, family, or household | 14 |
| purposes. | 15 |
| "Consumer debt" or "consumer credit" means money, | 16 |
| property, or their equivalent, due or owing or alleged to be | 17 |
| due or owing from a natural person by reason of a consumer | 18 |
| credit transaction. | 19 |
| "Creditor" means a person who extends consumer credit to a | 20 |
| debtor. | 21 |
| "Debt" means money, property, or their equivalent which is | 22 |
| due or owing or alleged to be due or owing from a natural | 23 |
| person to another person. |
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| "Debt collection" means any act or practice in connection | 2 |
| with the collection of consumer debts. | 3 |
| "Debt collector", "collection agency", or "agency" means | 4 |
| any person who, in the ordinary course of business, regularly, | 5 |
| on behalf of himself or herself or others, engages in debt | 6 |
| collection. | 7 |
| "Debtor" means a natural person from whom a debt collector | 8 |
| seeks to collect a consumer debt that is due and owing or | 9 |
| alleged to be due and owing from such person. | 10 |
| "Department" means Division of Professional Regulation | 11 |
| within the Department of Financial and Professional | 12 |
| Regulation. | 13 |
| "Director" means the Director of the Division of | 14 |
| Professional Regulation within the Department of Financial and | 15 |
| Professional Regulation. | 16 |
| "Person" means a natural person, partnership, corporation, | 17 |
| limited liability company, trust, estate, cooperative, | 18 |
| association, or other similar entity.
Unless the context | 19 |
| clearly requires otherwise, the following terms have
the | 20 |
| meanings ascribed to them in Sections 2.01 through 2.02.
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| (Source: P.A. 78-1248 .)
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| (225 ILCS 425/2.03) (from Ch. 111, par. 2005)
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| (Section scheduled to be repealed on January 1, 2016)
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| Sec. 2.03. This Act does not
apply to persons whose | 25 |
| collection activities are
confined to and are directly related |
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| to the operation of a business other
than that of a collection | 2 |
| agency, and specifically does not include the
following:
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| 1. Banks, including trust departments , affiliates, and | 4 |
| subsidiaries thereof, fiduciaries, and
financing and | 5 |
| lending institutions (except those who own or operate
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| collection agencies);
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| 2. Abstract companies doing an escrow business;
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| 3. Real estate brokers when acting in the pursuit of | 9 |
| their profession;
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| 4. Public officers and judicial officers acting under | 11 |
| order of a court;
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| 5. Licensed attorneys at law;
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| 6. Insurance companies;
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| 7. Credit unions , including affiliates and | 15 |
| subsidiaries thereof ;
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| 8. Loan and finance companies;
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| 9. Retail stores collecting their own accounts;
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| 10. Unit Owner's Associations established under the | 19 |
| Condominium Property
Act, and their duly authorized | 20 |
| agents, when collecting assessments from
unit owners; and
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| 11. Any person or business under contract with a | 22 |
| creditor to notify the
creditor's debtors of a debt using | 23 |
| only the creditor's name.
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| (Source: P.A. 89-387, eff. 1-1-96 .)
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| (225 ILCS 425/3) (from Ch. 111, par. 2006)
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| (Section scheduled to be repealed on January 1, 2016)
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| Sec. 3. A person, association, partnership,
corporation, | 3 |
| or other legal entity acts as a
collection agency when he or | 4 |
| it:
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| (a) Engages in the business of collection for others of | 6 |
| any account, bill
or other indebtedness;
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| (b) Receives, by assignment or otherwise, accounts, | 8 |
| bills, or other
indebtedness from any person owning or | 9 |
| controlling 20% or more of the
business receiving the | 10 |
| assignment, with the purpose of collecting monies
due on | 11 |
| such account, bill or other indebtedness;
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| (c) Sells or attempts to sell, or gives away or | 13 |
| attempts to give away
to any other person, other than one | 14 |
| registered under this Act, any system of
collection, | 15 |
| letters, demand forms, or other printed matter where the | 16 |
| name
of any person, other than that of the creditor, | 17 |
| appears in such a manner
as to indicate, directly or | 18 |
| indirectly, that a request or demand is being
made by any | 19 |
| person other than the creditor for the payment of the sum | 20 |
| or
sums due or asserted to be due;
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| (d) Buys accounts, bills or other indebtedness
with | 22 |
| recourse and engages in collecting the same; or
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| (e) Uses a fictitious name in collecting its own | 24 |
| accounts, bills, or debts
with the intention of conveying | 25 |
| to the debtor that a third party has been
employed to make | 26 |
| such collection.
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| (Source: P.A. 94-414, eff. 12-31-05.)
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| (225 ILCS 425/9.1 new) | 3 |
| (Section scheduled to be repealed on January 1, 2016) | 4 |
| Sec. 9.1. Communication with persons other than debtor. | 5 |
| (a) Any debt collector or collection agency communicating | 6 |
| with any person other than the debtor for the purpose of | 7 |
| acquiring location information about the debtor shall: | 8 |
| (1) identify himself or herself, state that he or she | 9 |
| is confirming or correcting location information | 10 |
| concerning the consumer, and, only if expressly requested, | 11 |
| identify his or her employer; | 12 |
| (2) not state that the consumer owes any debt; | 13 |
| (3) not communicate with any person more than once | 14 |
| unless
requested to do so by the person or unless the debt | 15 |
| collector or collection agency reasonably believes that | 16 |
| the earlier response of the person is erroneous or | 17 |
| incomplete and that the person now has correct or complete | 18 |
| location information; | 19 |
| (4) not communicate by postcard; | 20 |
| (5) not use any language or symbol on any envelope or | 21 |
| in the contents of any communication effected by mail or | 22 |
| telegram that indicates that the debt collector or | 23 |
| collection agency is in the debt collection business or | 24 |
| that the communication relates to the collection of a debt; | 25 |
| and |
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| (6) after the debt collector or collection agency knows | 2 |
| the debtor is represented by an attorney with regard to the | 3 |
| subject debt and has knowledge of or can readily ascertain | 4 |
| the attorney's name and address, not communicate with any | 5 |
| person other than the attorney, unless the attorney fails | 6 |
| to respond within a reasonable period of time, not less | 7 |
| than 30 days, to communication from the debt collector or | 8 |
| collection agency. | 9 |
| (225 ILCS 425/9.2 new) | 10 |
| (Section scheduled to be repealed on January 1, 2016) | 11 |
| Sec. 9.2. Communication in connection with debt | 12 |
| collection. | 13 |
| (a) Without the prior consent of the debtor given directly | 14 |
| to the debt collector or collection agency or the express | 15 |
| permission of a court of competent jurisdiction, a debt | 16 |
| collector or collection agency may not communicate with a | 17 |
| debtor in connection with the collection of any debt in any of | 18 |
| the following circumstances: | 19 |
| (1) At any unusual time, place, or manner that is known | 20 |
| or should be known to be inconvenient to the debtor. In the | 21 |
| absence of knowledge of circumstances to the contrary, a | 22 |
| debt collector or collection agency shall assume that the | 23 |
| convenient time for communicating with a debtor is after 8 | 24 |
| o'clock a.m. and before 9 o'clock p.m. local time at the | 25 |
| debtor's location. |
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| (2) If the debt collector or collection agency knows | 2 |
| the debtor is represented by an attorney with respect to | 3 |
| such debt and has knowledge of or can readily ascertain, | 4 |
| the attorney's name and address, unless the attorney fails | 5 |
| to respond within a reasonable period of time to a | 6 |
| communication from the debt collector or collection agency | 7 |
| or unless the attorney consents to direct communication | 8 |
| with the debtor. | 9 |
| (3) At the debtor's place of employment, if the debt | 10 |
| collector or collection agency knows or has reason to know | 11 |
| that the debtor's employer prohibits the debtor from | 12 |
| receiving such communication. | 13 |
| (b) Except as provided in Section 9.1 of this Act, without | 14 |
| the prior consent of the debtor given directly to the debt | 15 |
| collector or collection agency or the express permission of a | 16 |
| court of competent jurisdiction or as reasonably necessary to | 17 |
| effectuate a post judgment judicial remedy, a debt collector or | 18 |
| collection agency may not communicate, in connection with the | 19 |
| collection of any debt, with any person other than the debtor, | 20 |
| the debtor's attorney, a consumer reporting agency if otherwise | 21 |
| permitted by law, the creditor, the attorney of the creditor, | 22 |
| or the attorney of the collection agency. | 23 |
| (c) If a debtor notifies a debt collector or collection | 24 |
| agency in writing that the debtor refuses to pay a debt or that | 25 |
| the debtor wishes the debt collector or collection agency to | 26 |
| cease further communication with the debtor, the debt collector |
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| or collection agency may not communicate further with the | 2 |
| debtor with respect to such debt, except to perform any of the | 3 |
| following tasks: | 4 |
| (1) Advise the debtor that the debt collector's or | 5 |
| collection agency's further efforts are being terminated. | 6 |
| (2) Notify the debtor that the collection agency or | 7 |
| creditor may invoke specified remedies that are ordinarily | 8 |
| invoked by such collection agency or creditor. | 9 |
| (3) Notify the debtor that the collection agency or | 10 |
| creditor intends to invoke a specified remedy. | 11 |
| If such notice from the debtor is made by mail, | 12 |
| notification shall be complete upon receipt.
(d) For the | 13 |
| purposes of this Section, "debtor" includes the debtor's | 14 |
| spouse, parent (if the debtor is a minor), guardian, executor, | 15 |
| or administrator. | 16 |
| (225 ILCS 425/9.3 new) | 17 |
| (Section scheduled to be repealed on January 1, 2016) | 18 |
| Sec. 9.3. Validation of debts. | 19 |
| (a) Within 5 days after the initial communication with a | 20 |
| debtor in connection with the collection of any debt, a debt | 21 |
| collector or collection agency shall, unless the following | 22 |
| information is contained in the initial communication or the | 23 |
| debtor has paid the debt, send the debtor a written notice with | 24 |
| each of the following disclosures: | 25 |
| (1) The amount of the debt. |
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| (2) The name of the creditor to whom the debt is owed. | 2 |
| (3) That, unless the debtor, within 30 days after | 3 |
| receipt of the notice,
disputes the validity of the debt, | 4 |
| or any portion thereof, the debt will be assumed to be | 5 |
| valid by the debt collector or collection agency. | 6 |
| (4) That, if the debtor notifies the debt collector or | 7 |
| collection agency in writing within the 30-day period that | 8 |
| the debt, or any portion thereof, is disputed, the debt | 9 |
| collector or collection agency will obtain verification of | 10 |
| the debt or a copy of a judgment against the debtor and a | 11 |
| copy of the verification or judgment will be mailed to the | 12 |
| debtor by the debt collector or collection agency. | 13 |
| (5) That upon the debtor's written request within the | 14 |
| 30-day period, the debt collector or collection agency will | 15 |
| provide the debtor with the name and address of the | 16 |
| original creditor, if different from the current creditor.
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| If the disclosures required under this subsection (a) are | 18 |
| placed on the back of the notice, the front of the notice | 19 |
| shall contain a statement notifying debtors of that fact. | 20 |
| (b) If the debtor notifies the debt collector or collection | 21 |
| agency in writing within the 30-day period set forth in | 22 |
| paragraph (3) of subsection (a) of this Section that the debt, | 23 |
| or any portion thereof, is disputed or that the debtor requests | 24 |
| the name and address of the original creditor, the debt | 25 |
| collector or collection agency shall cease collection of the | 26 |
| debt, or any disputed portion thereof, until the debt collector |
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| or collection agency obtains verification of the debt or a copy | 2 |
| of a judgment or the name and address of the original creditor | 3 |
| and mails a copy of the verification or judgment or name and | 4 |
| address of the original creditor to the debtor. | 5 |
| (c) The failure of a debtor to dispute the validity of a | 6 |
| debt under this Section shall not be construed by any court as | 7 |
| an admission of liability by the debtor. | 8 |
| (225 ILCS 425/9.4 new) | 9 |
| (Section scheduled to be repealed on January 1, 2016) | 10 |
| Sec. 9.4. Debt collection as a result of identity theft. | 11 |
| (a) Upon receipt from a debtor of all of the following | 12 |
| information, a debt collector or collection agency must cease | 13 |
| collection activities until completion of the review provided | 14 |
| in subsection (d) of this Section: | 15 |
| (1) A copy of a police report filed by the debtor | 16 |
| alleging that the debtor is the victim of an identity theft | 17 |
| crime for the specific debt being collected by the debt | 18 |
| collector. | 19 |
| (2) The debtor's written statement that the debtor | 20 |
| claims to be the victim of identity theft with respect to | 21 |
| the specific debt being collected by the debt collector, | 22 |
| including (i) a Federal Trade Commission's Affidavit of | 23 |
| Identity Theft, (ii) an Illinois Attorney General ID Theft | 24 |
| Affidavit, or (iii) a written statement that certifies that | 25 |
| the representations are true, correct, and contain no |
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| material omissions of fact to the best knowledge and belief | 2 |
| of the person submitting the certification. This written | 3 |
| statement must contain or be accompanied by, each of the | 4 |
| following, to the extent that an item listed below is | 5 |
| relevant to the debtor's allegation of identity theft with | 6 |
| respect to the debt in question: | 7 |
| (A) A statement that the debtor is a victim of | 8 |
| identity theft. | 9 |
| (B) A copy of the debtor's driver's license or | 10 |
| identification card, as issued by this State. | 11 |
| (C) Any other identification document that | 12 |
| supports the statement of identity theft. | 13 |
| (D) Specific facts supporting the claim of | 14 |
| identity theft, if available. | 15 |
| (E) Any explanation showing that the debtor did not | 16 |
| incur the debt. | 17 |
| (F) Any available correspondence disputing the | 18 |
| debt after transaction information has been provided | 19 |
| to the debtor. | 20 |
| (G) Documentation of the residence of the debtor at | 21 |
| the time of the alleged debt, which may include copies | 22 |
| of bills and statements, such as utility bills, tax | 23 |
| statements, or other statements from businesses sent | 24 |
| to the debtor and showing that the debtor lived at | 25 |
| another residence at the time the debt was incurred. | 26 |
| (H) A telephone number for contacting the debtor |
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| concerning any additional information or questions or | 2 |
| direction that further communications to the debtor be | 3 |
| in writing only, with the mailing address specified in | 4 |
| the statement. | 5 |
| (I) To the extent the debtor has information | 6 |
| concerning who may have incurred the debt, the | 7 |
| identification of any person whom the debtor believes | 8 |
| is responsible. | 9 |
| (J) An express statement that the debtor did not | 10 |
| authorize the use of the debtor's name or personal | 11 |
| information for incurring the debt. | 12 |
| (b) A written certification submitted pursuant to item | 13 |
| (iii) of paragraph (2) of subsection (a) of this Section shall | 14 |
| be sufficient if it is in substantially the following form: | 15 |
| "I certify that the representations made are true, correct, | 16 |
| and contain no material omissions of fact known to me. | 17 |
| (Signature) | 18 |
| (Date)" | 19 |
| (c) If a debtor notifies a debt collector or collection | 20 |
| agency orally that he or she is a victim of identity theft, the | 21 |
| debt collector or collection agency shall notify the debtor | 22 |
| orally or in writing, that the debtor's claim must be in | 23 |
| writing. If a debtor notifies a debt collector or collection |
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| agency in writing that he or she is a victim of identity theft, | 2 |
| but omits information required pursuant to this Section, if the | 3 |
| debt collector or collection agency does not cease collection | 4 |
| activities, the debt collector or collection agency must | 5 |
| provide written notice to the debtor of the additional | 6 |
| information that is required or send the debtor a copy of the | 7 |
| Federal Trade Commission's Affidavit of Identity Theft form. | 8 |
| (d) Upon receipt of the complete statement and information | 9 |
| described in subsection (a) of this Section, the debt collector | 10 |
| shall review and consider all of the information provided by | 11 |
| the debtor and other information available to the debt | 12 |
| collector or collection agency in its file or from the | 13 |
| creditor. The debt collector or collection agency may | 14 |
| recommence debt collection activities only upon making a good | 15 |
| faith determination that the information does not establish | 16 |
| that the debtor is not responsible for the specific debt in | 17 |
| question. The debt collector or collection agency must notify | 18 |
| the consumer in writing of that determination and the basis for | 19 |
| that determination before proceeding with any further | 20 |
| collection activities. The debt collector's or collection | 21 |
| agency's determination shall be based on all of the information | 22 |
| provided by the debtor and other information available to the | 23 |
| debt collector or collection agency in its file or from the | 24 |
| creditor. | 25 |
| (e) No inference or presumption that the debt is valid or | 26 |
| invalid or that the debtor is
liable or not liable for the debt |
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| may arise if the debt collector or collection agency decides | 2 |
| after the review described in subsection (d) to cease or | 3 |
| recommence the debt collection activities. The exercise or | 4 |
| non-exercise of rights under this Section is not a waiver of | 5 |
| any other right or defense of the debtor or debt collector. | 6 |
| (f) A debt collector or collection agency that (i) ceases | 7 |
| collection activities under this Section, (ii) does not | 8 |
| recommence those collection activities, and (iii) furnishes | 9 |
| adverse information to a consumer credit reporting agency, must | 10 |
| notify the consumer credit reporting agency to delete that | 11 |
| adverse information. | 12 |
| (225 ILCS 425/9.7 new)
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| Sec. 9.7. Enforcement under the Consumer Fraud and | 14 |
| Deceptive Business Practices Act. The Attorney General may | 15 |
| enforce the knowing violation of Section 9 (except for items | 16 |
| (1) through (9) and (19) of subsection (a)), 9.1, 9.2, 9.3, or | 17 |
| 9.4 of this Act as an unlawful practice under the Consumer | 18 |
| Fraud and Deceptive Business Practices Act.
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| (225 ILCS 425/2.01 rep.)
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| (225 ILCS 425/2.02 rep.)
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| Section 10. The Collection Agency Act is amended by | 22 |
| repealing Sections 2.01 and 2.02.
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| Section 99. Effective date. This Act takes effect January | 24 |
| 1, 2008.
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