Full Text of SB1692 97th General Assembly
SB1692ham001 97TH GENERAL ASSEMBLY | Rep. Kenneth Dunkin Filed: 4/25/2011
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| 1 | | AMENDMENT TO SENATE BILL 1692
| 2 | | AMENDMENT NO. ______. Amend Senate Bill 1692 by replacing | 3 | | everything after the enacting clause with the following:
| 4 | | "Section 5. The Uniform Commercial Code is amended by | 5 | | changing Section 9-510 and by adding Section 9-513A as follows:
| 6 | | (810 ILCS 5/9-510)
| 7 | | Sec. 9-510. Effectiveness of filed record.
| 8 | | (a) Filed record effective if authorized. A filed record is | 9 | | effective
only to the extent that it was filed by a person that | 10 | | may file it under Section
9-509 or by the filing office under | 11 | | Section 9-513A .
| 12 | | (b) Authorization by one secured party of record. A record
| 13 | | authorized by one secured party of record does not affect the | 14 | | financing
statement
with respect to another secured party of | 15 | | record.
| 16 | | (c) Continuation statement not timely filed. A |
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| 1 | | continuation
statement that is not filed within the six-month | 2 | | period prescribed by Section
9-515(d) is ineffective.
| 3 | | (Source: P.A. 91-893, eff. 7-1-01.)
| 4 | | (810 ILCS 5/9-513A new) | 5 | | Sec. 9-513A. Termination of wrongfully filed financing | 6 | | statement; reinstatement. | 7 | | (a) Qualified person. In this Section, the term "qualified | 8 | | person" means an individual who, at the time the financing | 9 | | statement referred to in subsection (b) was filed or within | 10 | | five years prior to the time of filing, either held a judicial | 11 | | or prosecutorial office in this State or was an elected or | 12 | | appointed official of this State. | 13 | | (b) Application of this Section. This Section applies only | 14 | | with respect to a filed financing statement that (i) indicates | 15 | | that all secured parties of record are individuals, (ii) | 16 | | identifies as a debtor a qualified person, and (iii) was filed | 17 | | by an individual not entitled to do so under Section 9-509(a). | 18 | | If the financing statement identifies more than one debtor, the | 19 | | provisions of this Section apply only with respect to those | 20 | | debtors who are qualified persons. | 21 | | (c) Affidavit of wrongful filing. A qualified person may | 22 | | file in the filing office a notarized affidavit, signed under | 23 | | penalty of perjury, that identifies a filed financing statement | 24 | | that indicates that all secured parties of record are | 25 | | individuals and states that (i) the affiant held a judicial or |
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| 1 | | prosecutorial office in this State or was an elected or | 2 | | appointed official of this State at, or within five years prior | 3 | | to, the time the financing statement was filed, and (ii) the | 4 | | financing statement was filed by an individual not entitled to | 5 | | do so under Section 9-509(a). The Secretary of State shall | 6 | | adopt a form of affidavit for use under this Section. | 7 | | (d) Termination statement by filing office. If an affidavit | 8 | | is filed under subsection (c), the filing office shall promptly | 9 | | file a termination statement with respect to the financing | 10 | | statement identified in the affidavit. The termination | 11 | | statement must indicate that it was filed pursuant to this | 12 | | Section. Except as provided in subsection (h) or (i), a | 13 | | termination statement filed under this subsection shall take | 14 | | effect 30 days after it is filed. | 15 | | (e) No fee charged or refunded. The filing office shall not | 16 | | charge a fee for the filing of an affidavit under subsection | 17 | | (c) or a termination statement under subsection (d). The filing | 18 | | office shall not return any fee paid for filing the financing | 19 | | statement identified in the affidavit, whether or not the | 20 | | financing statement is reinstated under subsection (i). | 21 | | (f) Notice of termination statement. On the same day that a | 22 | | filing office files a termination statement under subsection | 23 | | (d), it shall send to each secured party of record for the | 24 | | financing statement a notice advising the secured party of | 25 | | record that the termination statement has been filed. The | 26 | | notice shall be sent by certified mail, return receipt |
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| 1 | | requested, to the address provided for the secured party in the | 2 | | financing statement. | 3 | | (g) Action by secured party of record. An individual | 4 | | indicated as secured party of record on a financing statement | 5 | | as to which a termination statement has been filed under | 6 | | subsection (d) may, before or after the termination statement | 7 | | takes effect, bring an action against the individual who filed | 8 | | the affidavit under subsection (c) seeking a determination that | 9 | | the financing statement was filed by a person entitled to do so | 10 | | under Section 9-509(a). An action under this subsection shall | 11 | | have priority on the court's calendar and shall proceed by | 12 | | expedited hearing. If the individual who filed the affidavit | 13 | | resides in this State, the exclusive venue in this State for | 14 | | the action shall be in the circuit court for the county where | 15 | | the individual principally resides in this State. If the | 16 | | individual who filed the affidavit does not reside in this | 17 | | State, the exclusive venue in this State shall be in the | 18 | | circuit court for the county where the filing office in which | 19 | | the financing statement was filed is located. | 20 | | (h) Preliminary relief. In an action brought pursuant to | 21 | | subsection (g), a court may, in appropriate circumstances, | 22 | | order preliminary relief, including but not limited to an order | 23 | | precluding the termination statement from taking effect or | 24 | | directing a party to take action to prevent the termination | 25 | | statement from taking effect. If the court issues such an order | 26 | | and the filing office receives a certified copy of the order |
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| 1 | | before the termination statement takes effect as provided in | 2 | | subsection (d), the termination statement shall not take effect | 3 | | and the filing office shall promptly file an amendment to the | 4 | | financing statement that indicates that an order has prevented | 5 | | the termination statement from taking effect. If such an order | 6 | | ceases to be effective by reason of a subsequent order or a | 7 | | final judgment of that court or by an order issued by another | 8 | | court, and the filing office receives a certified copy of the | 9 | | subsequent judgment or order, the termination statement shall | 10 | | immediately be effective and the filing office shall file an | 11 | | amendment to the financing statement indicating that the | 12 | | termination statement is effective. | 13 | | (i) Final judgment or order. If, in an action under | 14 | | subsection (g), the court determines that the financing | 15 | | statement was filed by a person entitled to do so under Section | 16 | | 9-509(a) and the filing office receives a certified copy of the | 17 | | court's final judgment or order before the termination | 18 | | statement takes effect, the termination statement shall not | 19 | | take effect and the filing office shall remove the termination | 20 | | statement and any amendments filed under subsection (h) from | 21 | | the files. If the filing office receives the certified copy | 22 | | after the termination statement takes effect and within 30 days | 23 | | after the final judgment or order was entered, the filing | 24 | | office shall promptly file an amendment to the financing | 25 | | statement that indicates that the financing statement has been | 26 | | reinstated. |
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| 1 | | (j) Effect of reinstatement. Except as provided in | 2 | | subsection (k), upon the filing of an amendment reinstating a | 3 | | financing statement under subsection (i) the effectiveness of | 4 | | the financing statement is retroactively reinstated and the | 5 | | financing statement shall be considered never to have been | 6 | | ineffective against all persons and for all purposes. | 7 | | (k) Exception to subsection (i). A financing statement | 8 | | whose effectiveness is reinstated under subsection (i) shall | 9 | | not be effective as against a person that purchased the | 10 | | collateral in good faith to the extent the person gave new | 11 | | value, in reliance on the termination statement, between the | 12 | | time the termination statement was filed and the time of the | 13 | | filing of the record reinstating the financing statement. | 14 | | (l) Liability for wrongful filing. If, in an action under | 15 | | subsection (g), the court declares that the financing statement | 16 | | was not filed by a person entitled to do so under Section | 17 | | 9-509(a), the qualified person may recover from the individual | 18 | | who brought the action the costs and expenses, including | 19 | | reasonable attorneys' fees, that the qualified person incurred | 20 | | in the action. This recovery is in addition to any recovery to | 21 | | which the qualified person is entitled under Section 9-625 or | 22 | | under law other than this Article. | 23 | | (m) Action to compel removal of termination statement not | 24 | | precluded. This Section does not preclude an individual | 25 | | wrongfully identified as a debtor on a financing statement or | 26 | | an individual secured party of record from bringing an action |
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| 1 | | under law other than this Act seeking appropriate relief. ".
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