Full Text of HB4083 093rd General Assembly
HB4083 93RD GENERAL ASSEMBLY
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93RD GENERAL ASSEMBLY
State of Illinois
2003 and 2004 HB4083
Introduced 1/15/2004, by Maria Antonia Berrios SYNOPSIS AS INTRODUCED: |
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New Act |
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30 ILCS 105/5.625 new |
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35 ILCS 120/6 |
from Ch. 120, par. 445 |
625 ILCS 5/5-104.2 |
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625 ILCS 5/5-501 |
from Ch. 95 1/2, par. 5-501 |
815 ILCS 380/8 |
from Ch. 121 1/2, par. 1208 |
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Creates the New Vehicle Buyer Protection Act of 2004. Provides that qualified
third-party
dispute resolution processes may be used to resolve certain disputes
between certain
new vehicle buyers and manufacturers concerning a nonconformity that substantially
impairs the use, value, or safety of a new vehicle. Provides that, if a qualified third-party
dispute resolution process does not exist, or the new vehicle buyer is dissatisfied with that
third-party decision, or the manufacturer or its agent does not fulfill the terms of a
decision after it is accepted by the buyer, the buyer may: (i) assert a presumption that a
reasonable number of attempts have been made to conform the vehicle to the applicable
express warranties in accordance with criteria set forth in the Act and (ii) seek
replacement of the vehicle or restitution for the price of the vehicle and damages,
attorney's fees, costs, and a civil penalty. Provides that no person may sell, lease, or
transfer a motor vehicle that was returned to a manufacturer under the Act or a similar
law of any other state unless the vehicle's nonconformity is clearly and conspicuously
disclosed to the prospective buyer, lessee, or transferee, the nonconformity is corrected,
and the manufacturer warrants to the new buyer, lessee, or transferee in writing for a
period of one year that the motor vehicle is free of that nonconformity, except as
otherwise specified. Provides that the Attorney General shall establish a program for
certifying, reviewing, and decertifying third-party dispute resolution processes
established by new vehicle manufacturers or their agents. Provides that the Secretary of
State may suspend the license of a manufacturer or distributor for its failure to honor a
decision of a qualified third-party dispute resolution process. Provides that
the Secretary
of State shall collect fees from manufacturers for the administration of the
program and
that the fees shall be deposited in the new Third-Party Dispute Resolution
Fund. Applies
to new motor vehicles beginning with the model year following the effective
date of the
Act. Amends the State Finance Act, the Retailers' Occupation Tax Act, and the
Illinois Vehicle Code to conform to the new
Act. Amends the existing New Vehicle Buyer Protection Act to provide that it
does not
apply to vehicles to which the new Act applies. Effective January 1, 2005.
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A BILL FOR
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HB4083 |
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| AN ACT concerning motor vehicles.
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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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| Article 1
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| | 6 |
| Section 1-1. Short title. This Act may be cited as the
New | 7 |
| Vehicle Buyer Protection Act of 2004.
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| Article 5
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| | 10 |
| Section 5-5. Definitions. As used in this Article:
| 11 |
| "Nonconformity" means a nonconformity that substantially
| 12 |
| impairs the use, value, or safety of the new motor vehicle to | 13 |
| the
buyer or lessee.
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| "New motor vehicle" means a new motor vehicle that is | 15 |
| bought
or used primarily for personal, family, or household | 16 |
| purposes. "New
motor vehicle" also means a new motor vehicle | 17 |
| with a gross vehicle
weight under 10,000 pounds that is bought | 18 |
| or used primarily for
business purposes by a person, including | 19 |
| a partnership, limited
liability company, corporation, | 20 |
| association, or any other legal
entity, to which not more than | 21 |
| 5 motor vehicles are registered in
this State. "New motor | 22 |
| vehicle" includes the chassis, chassis cab,
and that portion of | 23 |
| a motor home devoted to its propulsion, but does
not include | 24 |
| any portion designed, used, or maintained primarily for
human | 25 |
| habitation, a dealer-owned vehicle and a "demonstrator" or
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| other motor vehicle sold with a manufacturer's new car warranty | 27 |
| but
does not include a motorcycle or a motor vehicle that is | 28 |
| not
registered under the Illinois Vehicle Code because it is to | 29 |
| be operated or
used exclusively off the highways. A | 30 |
| demonstrator is a vehicle
assigned by a dealer for the purpose |
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| of demonstrating qualities and
characteristics common to | 2 |
| vehicles of the same or similar model and
type.
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| "Motor home" means a vehicular unit built on, or | 4 |
| permanently
attached to, a self-propelled motor vehicle | 5 |
| chassis, chassis cab, or
van, which becomes an integral part of | 6 |
| the completed vehicle,
designed for human habitation for | 7 |
| recreational or emergency
occupancy.
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| Section 5-10. Presumption. It shall be presumed that a | 9 |
| reasonable number of
attempts have
been made to conform a new | 10 |
| motor vehicle to the applicable express
warranties if, within | 11 |
| 18 months from delivery to the buyer or 18,000
miles on the | 12 |
| odometer of the vehicle, whichever occurs first, one or
more of | 13 |
| the following occurs:
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| (1) The same nonconformity results in a condition that | 15 |
| is likely
to cause death or serious bodily injury if the | 16 |
| vehicle is driven and
the nonconformity has been subject to | 17 |
| repair 2 or more times by the
manufacturer or its agents, | 18 |
| and the buyer or lessee has at least
once directly notified | 19 |
| the manufacturer of the need for the repair of
the | 20 |
| nonconformity.
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| (2) The same nonconformity has been subject to repair 4 | 22 |
| or more
times by the manufacturer or its agents and the | 23 |
| buyer has at least
once directly notified the manufacturer | 24 |
| of the need for the repair of
the nonconformity.
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| (3) The vehicle is out of service by reason of repair | 26 |
| of
nonconformities by the manufacturer or its agents for a | 27 |
| cumulative
total of more than 30 calendar days since | 28 |
| delivery of the vehicle to
the buyer. The 30-day limit | 29 |
| shall be extended only if repairs cannot
be performed due | 30 |
| to conditions beyond the control of the
manufacturer or its | 31 |
| agents. The buyer shall be required to directly
notify the | 32 |
| manufacturer under subdivisions (1) and (2) only if
the | 33 |
| manufacturer has clearly and conspicuously disclosed to | 34 |
| the
buyer, with the warranty or the owner's manual, the | 35 |
| provisions of
this Act, including
the requirement that the |
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| buyer must notify the manufacturer directly
under | 2 |
| subdivisions (1) and (2). The notification, if required,
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| shall be sent to the address, if any, specified clearly and
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| conspicuously by the manufacturer in the warranty or | 5 |
| owner's manual.
This presumption shall be a rebuttable | 6 |
| presumption affecting the
burden of proof, and it may be | 7 |
| asserted by the buyer in any civil
action, including an | 8 |
| action in small claims court, or other formal or
informal | 9 |
| proceeding.
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| Section 5-15. Assertion of presumption; qualified | 11 |
| third-party dispute
resolution
process. If a qualified | 12 |
| third-party dispute resolution process exists,
and the buyer | 13 |
| receives timely notification in writing of the
availability of | 14 |
| that qualified third-party dispute resolution process
with a | 15 |
| description of its operation and effect, the presumption in
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| Section 5-10 may not be asserted by the buyer until after the
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| buyer has initially resorted to the qualified third-party | 18 |
| dispute
resolution process as required in Section 5-20. | 19 |
| Notification of
the availability of the qualified third-party | 20 |
| dispute resolution
process is not timely if the buyer suffers | 21 |
| any prejudice resulting
from any delay in giving the | 22 |
| notification. If a qualified
third-party dispute resolution | 23 |
| process does not exist, or if the
buyer is dissatisfied with | 24 |
| that third-party decision, or if the
manufacturer or its agent | 25 |
| neglects to promptly fulfill the terms of
the qualified | 26 |
| third-party dispute resolution process decision after
the | 27 |
| decision is accepted by the buyer, the buyer may assert the
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| presumption provided in Section 5-10 in an action to enforce | 29 |
| the
buyer's rights under Section 5-30. The findings
and | 30 |
| decision of a qualified third-party dispute resolution process
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| shall be admissible in evidence in the action without further
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| foundation. Any period of limitation of actions under any | 33 |
| federal or
State law with respect to any person shall be | 34 |
| extended for a
period equal to the number of days between the | 35 |
| date a complaint is
filed with a third-party dispute resolution |
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| process and the date of
its decision or the date before which | 2 |
| the manufacturer or its agent
is required by the decision to | 3 |
| fulfill its terms if the decision is
accepted by the buyer, | 4 |
| whichever occurs later.
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| Section 5-20. Elements of qualified third-party dispute | 6 |
| resolution process.
A qualified
third-party dispute resolution | 7 |
| process is one that does all of the following:
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| (1) Complies with the minimum requirements of the | 9 |
| Federal Trade
Commission for informal dispute settlement | 10 |
| procedures as set forth in
Part 703 of Title 16 of the Code | 11 |
| of Federal Regulations.
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| (2) Renders decisions that are binding on the | 13 |
| manufacturer if the
buyer elects to accept the decision.
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| (3) Prescribes a reasonable time, not to exceed 30 days | 15 |
| after the
decision is accepted by the buyer, within which | 16 |
| the manufacturer or
its agent must fulfill the terms of its | 17 |
| decisions.
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| (4) Provides arbitrators who are assigned to decide | 19 |
| disputes with
copies of, and instruction in, the provisions | 20 |
| of the Federal Trade
Commission's regulations in Part 703 | 21 |
| of Title 16 of the Code of
Federal Regulations,
Article 2 | 22 |
| of the Uniform Commercial Code, and
this Act.
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| (5) Requires the manufacturer, when the process | 24 |
| orders, under the
terms of this Act, either that the | 25 |
| nonconforming motor vehicle be
replaced if the buyer | 26 |
| consents to this remedy or that restitution be
made to the | 27 |
| buyer, to replace the motor vehicle or make restitution
in | 28 |
| accordance with Section 5-30.
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| (6) Provides, at the request of the arbitrator or a | 30 |
| majority of
the arbitration panel, for an inspection and | 31 |
| written report on the
condition of a nonconforming motor | 32 |
| vehicle, at no cost to the buyer,
by an automobile expert | 33 |
| who is independent of the manufacturer.
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| (7) Takes into account, in rendering decisions, all | 35 |
| legal and
equitable factors, including, but not limited to, |
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| the written
warranty, the rights and remedies conferred in | 2 |
| regulations of the
Federal Trade Commission contained in | 3 |
| Part 703 of Title 16 of the
Code of Federal Regulations, | 4 |
| Article 2 of the Uniform Commercial Code, this
Act, and
any | 5 |
| other equitable considerations
appropriate in the | 6 |
| circumstances. Nothing in this Act requires
that, to be | 7 |
| certified as a qualified third-party dispute resolution
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| process under this Section, decisions of the process must
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| consider or provide remedies in the form of awards of | 10 |
| punitive
damages, attorney's fees, or
consequential | 11 |
| damages under Section 5-35 including, but not limited to,
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| reasonable
repair, towing, and rental car costs actually | 13 |
| incurred by the buyer.
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| (8) Requires that no arbitrator deciding a dispute may | 15 |
| be a party
to the dispute and that no other person, | 16 |
| including an employee,
agent, or dealer for the | 17 |
| manufacturer, may be allowed to participate
substantively | 18 |
| in the merits of any dispute with the arbitrator unless
the | 19 |
| buyer is also allowed to participate. Nothing in this
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| subdivision (8) prohibits any member of an arbitration | 21 |
| board from
deciding a dispute.
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| (9) Obtains and maintains certification under Article | 23 |
| 10.
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| Section 5-25. Sale of transferred vehicles.
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| (a) Except as provided in subsection (b), no person may | 26 |
| sell,
either at wholesale or retail, lease, or transfer a motor | 27 |
| vehicle
transferred by a buyer or lessee to a manufacturer | 28 |
| under
Section 5-30 or a similar
law of any other state, unless | 29 |
| the nature of the nonconformity
experienced by the original | 30 |
| buyer or lessee is clearly and
conspicuously disclosed to the | 31 |
| prospective buyer, lessee, or
transferee, the nonconformity is | 32 |
| corrected, and the manufacturer
warrants to the new buyer, | 33 |
| lessee, or transferee in writing for a
period of one year that | 34 |
| the motor vehicle is free of that
nonconformity.
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| (b) Except for the requirement that the nature of the
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| nonconformity be disclosed to the transferee, subsection (a) | 2 |
| does not
apply to the transfer of a motor vehicle to an | 3 |
| educational
institution if the purpose of the transfer is to | 4 |
| make the motor
vehicle available for use in automotive repair | 5 |
| courses.
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| Section 5-30. Replacement or restitution.
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| (a) If the manufacturer or its representative in this State | 8 |
| is
unable to service or repair a new motor vehicle to
conform | 9 |
| to the applicable express warranties after a reasonable
number | 10 |
| of attempts, the manufacturer shall either promptly replace
the | 11 |
| new motor vehicle in accordance with subsection (b) or promptly
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| make restitution to the buyer in accordance with subsection | 13 |
| (c).
However, the buyer may elect restitution in lieu of
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| replacement, and in no event shall the buyer be required by the
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| manufacturer to accept a replacement vehicle.
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| (b) In the case of replacement, the manufacturer shall | 17 |
| replace the
buyer's vehicle with a new motor vehicle | 18 |
| substantially identical to
the vehicle replaced. The | 19 |
| replacement vehicle shall be accompanied
by all express and | 20 |
| implied warranties that normally accompany new
motor vehicles | 21 |
| of that specific kind. The manufacturer also shall
pay for, or | 22 |
| to, the buyer the amount of any use tax, license
fees, | 23 |
| registration fees, and other official fees which the buyer is
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| obligated to pay in connection with the replacement, plus any
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| incidental damages to which the buyer is entitled under Section | 26 |
| 5-35,
including, but not limited to, reasonable repair, towing, | 27 |
| and rental
car costs actually incurred by the buyer.
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| (c) In the case of restitution, the manufacturer shall make
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| restitution in an amount equal to the actual price paid or | 30 |
| payable by
the buyer, including any charges for transportation | 31 |
| and
manufacturer-installed options, but excluding | 32 |
| nonmanufacturer items
installed by a dealer or the buyer, and | 33 |
| including any collateral
charges such as use tax, license fees, | 34 |
| registration fees, and other
official fees, plus any incidental | 35 |
| damages to which the buyer is
entitled under Section 5-35, |
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| including, but not limited to,
reasonable repair, towing, and | 2 |
| rental car costs actually incurred by
the buyer.
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| (d) When the manufacturer replaces the new motor vehicle | 4 |
| under subsection
(b),
the buyer shall only be liable to pay the
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| manufacturer an amount directly attributable to use by the | 6 |
| buyer of
the replaced vehicle before the buyer first delivered | 7 |
| the
vehicle to the manufacturer or distributor, or its | 8 |
| authorized service
and repair facility for correction of the | 9 |
| problem that gave rise to
the nonconformity. When restitution | 10 |
| is made under subsection
(c), the amount to be paid by the | 11 |
| manufacturer to the buyer may be
reduced by the manufacturer by | 12 |
| that amount directly attributable to
use by the buyer before | 13 |
| the buyer first delivered the
vehicle to the manufacturer or | 14 |
| distributor, or its authorized service
and repair facility for | 15 |
| correction of the problem that gave rise to
the nonconformity. | 16 |
| The amount directly attributable to use by a
buyer shall be | 17 |
| determined by multiplying the actual price of the new
motor | 18 |
| vehicle paid or payable by the buyer, including any charges for
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| transportation and manufacturer-installed options, by a | 20 |
| fraction
having as its denominator 120,000 and having as its | 21 |
| numerator the
number of miles traveled by the new motor vehicle | 22 |
| before
the buyer first delivered the vehicle to the | 23 |
| manufacturer or
distributor, or its authorized service and | 24 |
| repair facility for
correction of the problem that gave rise to | 25 |
| the nonconformity. Nothing in this
Section in
any way limits | 26 |
| the rights or
remedies available to the buyer under any other | 27 |
| law.
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| Section 5-35. Damages; attorney's fees and costs; civil | 29 |
| penalty.
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| (a) Except as otherwise provided in this Section, if the
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| buyer establishes a violation of Section 5-30, the buyer shall | 32 |
| recover damages
and
reasonable
attorney's fees and costs, and | 33 |
| may recover a civil penalty of up to
2 times the amount of | 34 |
| damages.
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| (b) If the manufacturer maintains a qualified third-party |
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| dispute
resolution process which substantially complies with | 2 |
| this Act,
the manufacturer shall not be liable for any civil | 3 |
| penalty under this Section.
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| (c) After the occurrence of the events giving rise to the
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| presumption established in Section 5-30, the
buyer may serve | 6 |
| upon the manufacturer a written notice requesting
that the | 7 |
| manufacturer comply with Section 5-30. If the buyer fails to | 8 |
| serve the
notice, the
manufacturer is not liable for a civil | 9 |
| penalty under this
Section.
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| (d) If the buyer serves the notice described in subsection | 11 |
| (c) and
the manufacturer complies with Section 5-30 within 30 | 12 |
| days of the service of
that notice,
the
manufacturer is not | 13 |
| liable for a civil penalty under this
Section.
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| Article 10
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| Section 10-5. Definitions. As used in this Article, unless | 17 |
| the context
requires
otherwise:
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| Except as otherwise provided in Section 10-30, "new motor | 19 |
| vehicle" means a
new
motor vehicle as defined in
Article 5.
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| "Manufacturer" a manufacturer or distributor as defined in | 21 |
| Section 5-109 of
the
Illinois Vehicle Code.
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| "Qualified third party dispute resolution process" means a
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| third party dispute resolution process which operates in | 24 |
| compliance
with Section 5-20 and this Article and which has | 25 |
| been certified by the Attorney
General
under
this Article.
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| Section 10-10. Program for certifying third-party dispute | 27 |
| resolution
process.
The
Attorney General shall establish a | 28 |
| program for certifying each
third-party dispute resolution | 29 |
| process used for the arbitration of
disputes under Section | 30 |
| 5-15. In establishing the program, the Attorney General
shall | 31 |
| do
all of
the following:
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| (1) Prescribe and provide forms to be used to apply for
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| certification under this Article.
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| (2) Establish a set of minimum standards which shall be | 2 |
| used to
determine whether a third-party dispute resolution | 3 |
| process is in
substantial compliance with Section 5-20 and | 4 |
| this Article.
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| (3) Prescribe the information which each manufacturer | 6 |
| or other
entity that operates a third-party dispute | 7 |
| resolution process shall
provide the Attorney General in | 8 |
| the application for certification. In
prescribing the | 9 |
| information to accompany the application for
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| certification, the Attorney General shall require the | 11 |
| manufacturer or
other entity to provide only that | 12 |
| information which the Attorney General
finds is reasonably | 13 |
| necessary to enable the Attorney General to determine
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| whether the third-party dispute resolution process is in | 15 |
| substantial
compliance with Section 5-20 and this Article.
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| (4) Prescribe the information that each qualified | 17 |
| third-party
dispute resolution process shall provide the | 18 |
| Attorney General, and the time
intervals at which the | 19 |
| information shall be required, to enable the
Attorney | 20 |
| General to determine whether the qualified third-party | 21 |
| dispute
resolution process continues to operate in | 22 |
| substantial compliance
with Section 5-20 and this Article.
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| Section 10-15. Establishment of qualified third-party | 24 |
| dispute resolution
process.
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| (a) Each manufacturer may establish, or otherwise make
| 26 |
| available to buyers or lessees of new motor vehicles, a | 27 |
| qualified
third-party dispute resolution process for the | 28 |
| resolution of disputes
under Section 5-15. A
manufacturer that | 29 |
| itself operates the third-party dispute resolution
process | 30 |
| shall apply to the Attorney General for certification of that
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| process. If the manufacturer makes the third-party dispute
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| resolution process available to buyers or lessees of new motor
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| vehicles through contract or other arrangement with another | 34 |
| entity,
that entity shall apply to the Attorney General for | 35 |
| certification. An
entity that operates a third-party dispute |
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| resolution process for
more than one manufacturer shall make a | 2 |
| separate application for
certification for each manufacturer | 3 |
| that uses that entity's
third-party dispute resolution | 4 |
| process. The application for
certification shall be | 5 |
| accompanied by the information prescribed by
the Attorney | 6 |
| General.
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| (b) The Attorney General shall review the application and | 8 |
| accompanying
information and, after conducting an onsite | 9 |
| inspection, shall
determine whether the third-party dispute | 10 |
| resolution process is in
substantial compliance with Section | 11 |
| 5-20 and this Article. If the Attorney
General
determines that | 12 |
| the
process is in substantial compliance, the Attorney General | 13 |
| shall certify
the process. If the Attorney General determines | 14 |
| that the process is not in
substantial compliance, the Attorney | 15 |
| General shall deny certification and
shall state, in writing, | 16 |
| the reasons for denial and the modifications
in the operation | 17 |
| of the process that are required in order for the
process to be | 18 |
| certified.
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| (c) The Attorney General shall make a final determination | 20 |
| whether to
certify a third-party dispute resolution process or | 21 |
| to deny
certification not later than 90 calendar days following | 22 |
| the date the
Attorney General accepts the application for | 23 |
| certification as complete.
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| Section 10-20. Review.
| 25 |
| (a) The Attorney General, in accordance with the time | 26 |
| intervals
set forth in subdivision (4) of Section 10-10, but at | 27 |
| least
once annually, shall review the operation and performance | 28 |
| of each
qualified third-party dispute resolution process and | 29 |
| determine, using
the information provided the Attorney General | 30 |
| under
subdivision (4) of Section 10-10 and the monitoring and | 31 |
| inspection
information described in subsection (c) of Section | 32 |
| 10-25, whether
the process is operating in substantial | 33 |
| compliance with Section 5-20 and this
Article. If
the
Attorney | 34 |
| General determines that the process is in substantial | 35 |
| compliance,
the certification shall remain in effect.
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| (b) If the Attorney General determines that the process is | 2 |
| not in
substantial compliance with Section 5-20 or this | 3 |
| Article, the Attorney General
shall issue
a notice of
| 4 |
| decertification to the entity which operates the process and | 5 |
| shall
send a copy of that notice to any manufacturer affected | 6 |
| by the
decertification. The notice of decertification shall | 7 |
| state the
reasons for the issuance of the notice and prescribe | 8 |
| the
modifications in the operation of the process that are | 9 |
| required for the process
to retain its
certification.
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| (c) A notice of decertification shall take effect 180 | 11 |
| calendar
days following the date the notice is served on the | 12 |
| manufacturer or
other entity which uses the process that the | 13 |
| Attorney General has
determined is not in substantial | 14 |
| compliance with Section 5-20 or this Article.
The
Attorney | 15 |
| General
shall withdraw the notice of decertification before its | 16 |
| effective
date if the Attorney General determines, after a | 17 |
| public hearing, that the
manufacturer or other entity which | 18 |
| uses the process has made the
modifications in the operation of | 19 |
| the process required in the notice
of decertification and is in | 20 |
| substantial compliance with Section 5-20 and this
Article.
| 21 |
| Section 10-25. Duties of Attorney General.
| 22 |
| (a) In addition to any other requirements of this Article, | 23 |
| the
Attorney General shall do all of the following:
| 24 |
| (1) Establish procedures to assist owners or lessees of | 25 |
| new motor
vehicles who have complaints regarding the | 26 |
| operation of a qualified
third-party dispute resolution | 27 |
| process.
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| (2) Establish methods for measuring customer | 29 |
| satisfaction and to
identify violations of this Article, | 30 |
| which shall include an annual
random postcard or telephone | 31 |
| survey by the Attorney General of the
customers of each | 32 |
| qualified third-party dispute resolution process.
| 33 |
| (3) Monitor and inspect, on a regular basis, qualified | 34 |
| third-party
dispute resolution processes to determine | 35 |
| whether they continue to
meet the standards for |
|
|
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| certification. Monitoring and inspection
shall include, | 2 |
| but not be limited to, all of the following:
| 3 |
| (A) Onsite inspections of each qualified | 4 |
| third-party dispute
resolution process not less | 5 |
| frequently than twice annually.
| 6 |
| (B) Investigation of complaints from consumers | 7 |
| regarding the
operation of qualified third-party | 8 |
| dispute resolution processes and
analyses of | 9 |
| representative samples of complaints against each
| 10 |
| process.
| 11 |
| (C) Analyses of the annual surveys required by | 12 |
| subdivision (2).
| 13 |
| (4) Notify the Secretary of State of the failure of a
| 14 |
| manufacturer to honor a decision of a qualified third-party | 15 |
| dispute
resolution process to enable the Secretary of State | 16 |
| to take
appropriate enforcement action against the | 17 |
| manufacturer under
Section 5-501 of the Illinois Vehicle | 18 |
| Code.
| 19 |
| (5) Submit a biennial report to the General Assembly | 20 |
| evaluating the
effectiveness of this Article, make | 21 |
| available to the public summaries
of the statistics and | 22 |
| other information supplied by each qualified
third-party | 23 |
| dispute resolution process, and publish educational
| 24 |
| materials regarding the purposes of this Article.
| 25 |
| (6) Adopt rules as necessary and appropriate to | 26 |
| implement
this Article and Section 5-20.
| 27 |
| (b) Protection of the public shall be the highest priority | 28 |
| for the
Attorney General in exercising its certification, | 29 |
| regulatory, and
disciplinary functions. Whenever the | 30 |
| protection of the public is
inconsistent with other interests | 31 |
| sought to be promoted, the
protection of the public shall be | 32 |
| paramount.
| 33 |
| Section 10-30. Fees.
| 34 |
| (a) The Secretary of State shall, in accordance with this
| 35 |
| Section, administer the collection of fees for the purposes of |
|
|
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| 1 |
| fully
funding the administration of this Article.
| 2 |
| (b) Fees collected under this Section shall be deposited in
| 3 |
| the Third-Party Dispute Resolution Fund, a special fund which | 4 |
| is created in the
State
treasury and shall be
used, subject to | 5 |
| appropriation, exclusively to pay
the expenses incurred by the | 6 |
| Attorney General in administering this Article
and the expenses | 7 |
| incurred by the Secretary of State in collecting the fees.
| 8 |
| (c) Beginning July 1, 2006, and on or before May 1 of each
| 9 |
| calendar year thereafter, every manufacturer shall file with | 10 |
| the Secretary of
State a
statement of the number of motor | 11 |
| vehicles sold,
leased, or otherwise distributed by or for the | 12 |
| manufacturer in this
State during the preceding calendar year, | 13 |
| and shall, upon written
notice delivered to the manufacturer by | 14 |
| certified mail, return
receipt requested, pay to the Secretary | 15 |
| of State a fee, not to
exceed $1 for each motor vehicle sold, | 16 |
| leased, or
distributed by or for the manufacturer in this State | 17 |
| during the
preceding calendar year. Not more than $1
shall be | 18 |
| charged, collected, or received from any one or more
| 19 |
| manufacturers under this subsection (c) with respect to the | 20 |
| same
motor vehicle.
| 21 |
| (d) The fee required by subsection (c) is due and payable | 22 |
| not
later than 30 days after the manufacturer has received | 23 |
| notice of the
amount due and is delinquent after that time. A | 24 |
| penalty of 10% of the amount
delinquent
shall be added to that | 25 |
| amount if
the delinquency continues for more than 30 days. If a | 26 |
| manufacturer fails to
file the
statement required by
| 27 |
| subdivision (b) by the date specified, the Secretary of State
| 28 |
| shall assess the amount due from the manufacturer by using as | 29 |
| the
number of motor vehicles sold, leased, or otherwise | 30 |
| distributed by or
for the manufacturer in this State during the | 31 |
| preceding calendar
year the total number of new registrations | 32 |
| of all motor vehicles
sold, leased, or otherwise distributed by | 33 |
| or for the manufacturer
during the preceding calendar year.
| 34 |
| (e) On or before February 1 of each year, the Attorney | 35 |
| General shall
notify the Secretary of State of the dollar | 36 |
| amount necessary to
fully fund the program established by this |
|
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| Article during the
following fiscal year. The Secretary of | 2 |
| State shall use this
information in calculating the amounts of | 3 |
| the fees to be collected
from manufacturers under this Section.
| 4 |
| (f) As used in this Section, "motor vehicle" means a new
| 5 |
| passenger or commercial motor vehicle of a kind that is | 6 |
| required to
be registered under the Illinois Vehicle Code, but | 7 |
| "motor vehicle" does not
include a
motorcycle, a motor home, or | 8 |
| any vehicle whose gross weight exceeds
10,000 pounds.
| 9 |
| (g) The Secretary of State may adopt rules to implement
| 10 |
| this Section. The rules shall include, at a minimum, a
formula | 11 |
| for calculating the fee for each motor vehicle and the total | 12 |
| amount of
fees to be
collected from each manufacturer.
| 13 |
| Article 80
| 14 |
| | 15 |
| Section 80-5. Applicability. This Act applies to new motor | 16 |
| vehicles
beginning
with the model year following the effective | 17 |
| date of this Act.
| 18 |
| Article 90
| 19 |
| | 20 |
| Section 90-5. The State Finance Act is amended by adding | 21 |
| Section 5.625 as
follows:
| 22 |
| (30 ILCS 105/5.625 new)
| 23 |
| Sec. 5.625. The Third-Party Dispute Resolution Fund.
| 24 |
| Section 90-7. The Retailers' Occupation Tax Act is amended | 25 |
| by changing
Section 6 as follows:
| 26 |
| (35 ILCS 120/6) (from Ch. 120, par. 445)
| 27 |
| Sec. 6. Credit memorandum or refund. If it appears, after | 28 |
| claim therefor
filed with the Department, that
an amount of tax | 29 |
| or penalty or interest has been paid which was not due under
|
|
|
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| this Act, whether as the result of a mistake of fact or an | 2 |
| error of law,
except as hereinafter provided, then the | 3 |
| Department shall issue a credit
memorandum or refund to the | 4 |
| person who made the erroneous payment or, if
that person died | 5 |
| or became a person under legal disability, to his or her
legal | 6 |
| representative, as such.
For purposes of this Section, the tax | 7 |
| is deemed to be erroneously paid by
a retailer when the | 8 |
| manufacturer of a motor vehicle sold by the retailer
accepts
| 9 |
| the return of that automobile and refunds to the purchaser the | 10 |
| selling price of
that vehicle as provided in the New Vehicle | 11 |
| Buyer Protection Act or the New
Vehicle Buyer Protection Act of | 12 |
| 2004 . When a
motor vehicle is returned for a refund of the | 13 |
| purchase price under the New
Vehicle Buyer Protection Act or | 14 |
| the New Vehicle Buyer Protection Act of
2004 , the Department | 15 |
| shall issue a credit memorandum
or a refund for the amount of | 16 |
| tax paid by the retailer under this Act
attributable to the | 17 |
| initial sale of that vehicle. Claims submitted by the
retailer | 18 |
| are subject to the same restrictions and procedures provided | 19 |
| for in
this Act.
If it is determined that the Department
should | 20 |
| issue a credit memorandum or refund, the Department may first | 21 |
| apply
the amount thereof against any tax or penalty or interest | 22 |
| due or to become
due under this Act or under the Use Tax Act, | 23 |
| the Service Occupation Tax
Act, the Service Use Tax Act,
any | 24 |
| local occupation or use tax administered by the Department,
| 25 |
| Section 4 of the Water Commission Act of
1985, subsections (b), | 26 |
| (c) and (d) of Section 5.01 of the Local Mass
Transit District | 27 |
| Act, or subsections (e), (f) and (g) of Section 4.03 of
the | 28 |
| Regional Transportation Authority Act, from the person who made | 29 |
| the
erroneous payment. If no tax or penalty or interest is due | 30 |
| and no
proceeding is pending to determine whether such person | 31 |
| is indebted to the
Department for tax or penalty or interest, | 32 |
| the credit memorandum or refund
shall be issued to the | 33 |
| claimant; or (in the case of a credit memorandum)
the credit | 34 |
| memorandum may be assigned and set over by the lawful holder
| 35 |
| thereof, subject to reasonable rules of the Department, to any | 36 |
| other person
who is subject to this Act, the Use Tax Act, the |
|
|
|
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| 1 |
| Service Occupation Tax Act,
the Service Use Tax Act,
any local | 2 |
| occupation or use tax administered by the Department,
Section 4 | 3 |
| of the Water Commission Act of
1985, subsections (b), (c) and | 4 |
| (d) of Section 5.01 of the Local Mass
Transit District Act, or | 5 |
| subsections (e), (f) and (g) of Section 4.03 of
the Regional | 6 |
| Transportation Authority Act,
and the amount thereof applied by | 7 |
| the Department against any tax or
penalty or interest due or to | 8 |
| become due under this Act or under the Use
Tax Act, the Service | 9 |
| Occupation Tax Act, the Service
Use Tax Act,
any local | 10 |
| occupation or use tax administered by the Department,
Section 4 | 11 |
| of the Water Commission Act of
1985, subsections (b), (c) and | 12 |
| (d) of Section 5.01 of the Local Mass
Transit District Act, or | 13 |
| subsections (e), (f) and (g) of Section 4.03 of
the Regional | 14 |
| Transportation Authority Act, from such assignee. However, as
| 15 |
| to any claim for credit or refund filed with the Department on | 16 |
| and after
each January 1 and July 1 no amount of tax or penalty | 17 |
| or interest
erroneously paid (either in total or partial | 18 |
| liquidation of a tax or
penalty or amount of interest under | 19 |
| this Act) more than 3 years prior to
such January 1 and July 1, | 20 |
| respectively, shall be credited or refunded,
except that if | 21 |
| both the Department and the taxpayer have agreed to an
| 22 |
| extension of time to issue a notice of tax liability as
| 23 |
| provided in Section 4 of this Act, such claim may be filed at | 24 |
| any time
prior to the expiration of the period agreed upon.
| 25 |
| No claim may be allowed for any amount paid to the | 26 |
| Department, whether
paid voluntarily or involuntarily, if paid | 27 |
| in total or partial liquidation
of an assessment which had | 28 |
| become final before the claim for credit or
refund to recover | 29 |
| the amount so paid is filed with the Department, or if
paid in | 30 |
| total or partial liquidation of a judgment or order of
court. | 31 |
| No credit may be allowed or refund made for any amount paid by | 32 |
| or
collected from any claimant unless it appears (a) that the | 33 |
| claimant bore
the burden of such amount and has not been | 34 |
| relieved thereof nor reimbursed
therefor and has not shifted | 35 |
| such burden directly or indirectly through
inclusion of such | 36 |
| amount in the price of the tangible personal property
sold by |
|
|
|
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| 1 |
| him or her or in any manner whatsoever; and that no | 2 |
| understanding or
agreement, written or oral, exists whereby he | 3 |
| or she or his or her
legal representative may be relieved of | 4 |
| the burden of such amount, be
reimbursed therefor or may shift | 5 |
| the burden thereof; or (b) that he or she
or his or her legal | 6 |
| representative has repaid unconditionally such amount
to his or | 7 |
| her vendee (1) who bore the burden thereof and has not shifted
| 8 |
| such burden directly or indirectly, in any manner whatsoever; | 9 |
| (2) who, if
he or she has shifted such burden, has repaid | 10 |
| unconditionally such amount
to his own vendee; and (3) who is | 11 |
| not entitled to receive any reimbursement
therefor from any | 12 |
| other source than from his or her vendor, nor to be
relieved of | 13 |
| such burden in any manner whatsoever. No credit may be allowed
| 14 |
| or refund made for any amount paid by or collected from any | 15 |
| claimant unless
it appears that the claimant has | 16 |
| unconditionally repaid, to the purchaser,
any amount collected | 17 |
| from the purchaser and retained by the claimant with
respect to | 18 |
| the same transaction under the Use Tax Act.
| 19 |
| Any credit or refund that is allowed under this Section | 20 |
| shall bear interest
at the rate and in the manner specified in | 21 |
| the Uniform Penalty and Interest
Act.
| 22 |
| In case the Department determines that the claimant is | 23 |
| entitled to a
refund, such refund shall be made only from such | 24 |
| appropriation as may be
available for that purpose. If it | 25 |
| appears unlikely that the amount
appropriated would permit | 26 |
| everyone having a claim allowed during the period
covered by | 27 |
| such appropriation to elect to receive a cash refund, the
| 28 |
| Department, by rule or regulation, shall provide for the | 29 |
| payment of refunds in
hardship cases and shall define what | 30 |
| types of cases qualify as hardship cases.
| 31 |
| If a retailer who has failed to pay retailers' occupation | 32 |
| tax on gross
receipts from retail sales is required by the | 33 |
| Department to pay such tax,
such retailer, without filing any | 34 |
| formal claim with the Department, shall
be allowed to take | 35 |
| credit against such retailers' occupation tax liability
to the | 36 |
| extent, if any, to which such retailer has paid an amount |
|
|
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| 1 |
| equivalent
to retailers' occupation tax or has paid use tax in | 2 |
| error to his or her vendor
or vendors of the same tangible | 3 |
| personal property which such retailer bought
for resale and did | 4 |
| not first use before selling it, and no penalty or
interest | 5 |
| shall be charged to such retailer on the amount of such credit.
| 6 |
| However, when such credit is allowed to the retailer by the | 7 |
| Department, the
vendor is precluded from refunding any of that | 8 |
| tax to the retailer and
filing a claim for credit or refund | 9 |
| with respect thereto with the
Department. The provisions of | 10 |
| this amendatory Act shall be applied
retroactively, regardless | 11 |
| of the date of the transaction.
| 12 |
| (Source: P.A. 91-901, eff. 1-1-01.)
| 13 |
| Section 90-10. The Illinois Vehicle Code is amended by | 14 |
| changing
Sections 5-104.2 and 5-501 as follows:
| 15 |
| (625 ILCS 5/5-104.2)
| 16 |
| Sec. 5-104.2. Nonconforming vehicles; sale.
| 17 |
| (a) Every manufacturer shall be prohibited from reselling | 18 |
| any motor
vehicle that has been finally ordered, determined, or | 19 |
| adjudicated as having
a nonconformity under the New Vehicle | 20 |
| Buyer Protection Act or a similar law
of any state, territory, | 21 |
| or country, and that the manufacturer repurchased
or replaced | 22 |
| because of the nonconformity, unless the manufacturer has
| 23 |
| corrected the nonconformity and issues a disclosure statement | 24 |
| prior to
resale stating that the vehicle was repurchased or | 25 |
| replaced under the New
Vehicle Buyer Protection Act or similar | 26 |
| law of any other state, territory,
or country; identifying the | 27 |
| nonconformity; and warranting that the
nonconformity has been | 28 |
| corrected. The disclosure statement must accompany
the vehicle | 29 |
| through the first retail purchase.
| 30 |
| (b) "Nonconformity" refers to a new vehicle's failure to | 31 |
| conform to all
express warranties applicable to the vehicle, | 32 |
| which failure substantially
impairs the use, market value, or | 33 |
| safety of the vehicle.
| 34 |
| (c) The disclosure statement referred to in subsection (a) |
|
|
|
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LRB093 14547 WGH 40038 b |
|
| 1 |
| shall be in
substantially the same form as below:
| 2 |
| "IMPORTANT
| 3 |
| Vehicle Identification Number (VIN): (Insert VIN Number); | 4 |
| Year: (Insert
Year); Make (Insert Make); Model: (Insert | 5 |
| Model). This vehicle was previously
sold as new. It was | 6 |
| subsequently ordered as having a nonconformity by final
| 7 |
| decision of court proceeding or State run arbitration. It | 8 |
| was subsequently
repurchased by its manufacturer because | 9 |
| it did not conform to the
manufacturer's express warranty | 10 |
| and the nonconformity was not cured within a
reasonable | 11 |
| time as provided by Illinois law. The following | 12 |
| nonconformities have
been corrected (a minimum of 5 | 13 |
| numbered lines shall be provided to describe the
| 14 |
| nonconformity or nonconformities)."
| 15 |
| The customer shall sign the disclosure statement. This | 16 |
| disclosure language
shall be in at least 8-point type.
| 17 |
| (d) The sale, lease, or transfer of motor vehicles that | 18 |
| have been
determined to have a nonconformity under the New | 19 |
| Vehicle Buyer Protection Act
of 2004 shall be governed by that | 20 |
| Act.
| 21 |
| (Source: P.A. 88-415.)
| 22 |
| (625 ILCS 5/5-501) (from Ch. 95 1/2, par. 5-501)
| 23 |
| Sec. 5-501. Denial, suspension or revocation or | 24 |
| cancellation of a license.
(a) The license of a person issued | 25 |
| under this Chapter may be denied,
revoked or suspended if the | 26 |
| Secretary of State finds that the applicant,
or the officer, | 27 |
| director, shareholder having a ten percent or
greater ownership | 28 |
| interest in the corporation, owner, partner, trustee,
manager, | 29 |
| employee or the licensee
has:
| 30 |
| 1. Violated this Act;
| 31 |
| 2. Made any material misrepresentation to the Secretary of | 32 |
| State in
connection with an application for a license, junking | 33 |
| certificate,
salvage certificate, title or registration;
| 34 |
| 3. Committed a fraudulent act in connection with selling,
| 35 |
| bartering, exchanging, offering for sale or otherwise dealing |
|
|
|
HB4083 |
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LRB093 14547 WGH 40038 b |
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| 1 |
| in
vehicles, chassis, essential parts, or vehicle shells;
| 2 |
| 4. As a new vehicle dealer has no contract with a | 3 |
| manufacturer or
enfranchised distributor to sell that new | 4 |
| vehicle in this State;
| 5 |
| 5. Not maintained an established place of business as | 6 |
| defined in
this Code;
| 7 |
| 6. Failed to file or produce for the Secretary of State any
| 8 |
| application, report, document or other pertinent books, | 9 |
| records,
documents, letters, contracts, required to be filed or | 10 |
| produced under
this Code or any rule or regulation made by the | 11 |
| Secretary of State
pursuant to this Code;
| 12 |
| 7. Previously had, within 3 years, such a license denied, | 13 |
| suspended,
revoked, or cancelled under the provisions of | 14 |
| subsection (c) (2)
of this Section;
| 15 |
| 8. Has committed in any calendar year 3 or more violations, | 16 |
| as
determined in any civil or criminal proceeding, of any one | 17 |
| or more of
the following Acts:
| 18 |
| a. the "Consumer Finance Act";
| 19 |
| b. the "Consumer Installment Loan Act";
| 20 |
| c. the "Retail Installment Sales Act";
| 21 |
| d. the "Motor Vehicle Retail Installment Sales Act";
| 22 |
| e. "An Act in relation to the rate of interest and other | 23 |
| charges in
connection with sales on credit and the lending of | 24 |
| money", approved May
24, 1879, as amended;
| 25 |
| f. "An Act to promote the welfare of wage-earners by | 26 |
| regulating the
assignment of wages, and prescribing a penalty | 27 |
| for the violation
thereof", approved July 1, 1935, as amended;
| 28 |
| g. Part 8 of Article XII of the Code of Civil Procedure; or
| 29 |
| h. the "Consumer Fraud Act";
| 30 |
| 9. Failed to pay any fees or taxes due under this Act, or | 31 |
| has
failed to transmit any fees or taxes received by him for | 32 |
| transmittal by
him to the Secretary of State or the State of | 33 |
| Illinois;
| 34 |
| 10. Converted an abandoned vehicle;
| 35 |
| 11. Used a vehicle identification plate or number assigned | 36 |
| to a
vehicle other than the one to which originally assigned;
|
|
|
|
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| 1 |
| 12. Violated the provisions of Chapter 5 of this Act, as | 2 |
| amended;
| 3 |
| 13. Violated the provisions of Chapter 4 of this Act, as | 4 |
| amended;
| 5 |
| 14. Violated the provisions of Chapter 3 of this Act, as | 6 |
| amended;
| 7 |
| 15. Violated Section 21-2 of the Criminal Code of 1961, | 8 |
| Criminal Trespass
to Vehicles;
| 9 |
| 16. Made or concealed a material fact in connection with | 10 |
| his application
for a license;
| 11 |
| 17. Acted in the capacity of a person licensed or acted as | 12 |
| a licensee
under this Chapter without having a license | 13 |
| therefor;
| 14 |
| 18. Failed to pay, within 90 days after a final judgment, | 15 |
| any fines
assessed against the licensee pursuant to an action | 16 |
| brought under Section
5-404 ;
| 17 |
| 19. Willfully violated the terms of any warranty | 18 |
| responsibilities as set
forth in the New Vehicle Buyer | 19 |
| Protection Act of 2004 .
| 20 |
| (b) In addition to other grounds specified in this Chapter, | 21 |
| the
Secretary of State, on complaint of the Department of | 22 |
| Revenue, shall
refuse the issuance of renewal of a license, or | 23 |
| suspend or revoke such
license, for any of the following | 24 |
| violations of the "Retailers'
Occupation Tax Act":
| 25 |
| 1. Failure to make a tax return;
| 26 |
| 2. The filing of a fraudulent return;
| 27 |
| 3. Failure to pay all or part of any tax or penalty finally
| 28 |
| determined to be due;
| 29 |
| 4. Failure to comply with the bonding requirements of the
| 30 |
| "Retailers' Occupation Tax Act".
| 31 |
| (c) Cancellation of a license.
| 32 |
| 1. The license of a person issued under this Chapter may be | 33 |
| cancelled
by the Secretary of State prior to its expiration in | 34 |
| any of the following
situations:
| 35 |
| A. When a license is voluntarily surrendered, by the | 36 |
| licensed person;
or
|
|
|
|
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|
| 1 |
| B. If the business enterprise is a sole proprietorship, | 2 |
| which is not a
franchised dealership, when the sole proprietor | 3 |
| dies or is imprisoned for
any period of time exceeding 30 days; | 4 |
| or
| 5 |
| C. If the license was issued to the wrong person or | 6 |
| corporation, or
contains an error on its face. If any person | 7 |
| above whose license
has been cancelled wishes to apply for | 8 |
| another license, whether during the
same license year or any | 9 |
| other year, that person shall be treated as any
other new | 10 |
| applicant and the cancellation of the person's prior license
| 11 |
| shall not, in and of itself, be a bar to the issuance of a new | 12 |
| license.
| 13 |
| 2. The license of a person issued under this Chapter may be | 14 |
| cancelled
without a hearing when the Secretary of State is | 15 |
| notified that the
applicant, or any officer, director, | 16 |
| shareholder having a 10 per cent or
greater ownership interest | 17 |
| in the corporation, owner, partner, trustee,
manager, employee | 18 |
| or member of the applicant or the licensee has been
convicted | 19 |
| of any felony involving the selling, bartering, exchanging,
| 20 |
| offering for sale, or otherwise dealing in vehicles, chassis, | 21 |
| essential
parts, vehicle shells, or ownership documents | 22 |
| relating to any of the
above items.
| 23 |
| (Source: P.A. 86-820.)
| 24 |
| Section 90-15. The New Vehicle Buyer Protection Act is | 25 |
| amended by changing
Section 8 as follows:
| 26 |
| (815 ILCS 380/8) (from Ch. 121 1/2, par. 1208)
| 27 |
| Sec. 8. This Act shall apply to motor vehicles beginning | 28 |
| with the model
year following the effective date of this Act , | 29 |
| except that this Act does not
apply to any motor vehicle to | 30 |
| which the New Vehicle Buyer Protection Act of
2004 applies .
| 31 |
| (Source: P.A. 83-768.)
| 32 |
| Article 99
| 33 |
| |
|
|
|
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LRB093 14547 WGH 40038 b |
|
| 1 |
| Section 99-5. Effective date. This Act takes effect on | 2 |
| January 1, 2005.
|
|