(815 ILCS 390/1) (from Ch. 21, par. 201)
Sec. 1.
Purpose.
It is the purpose of this Act to assure adequate
protection for
those who contract through pre-need contracts for the purchase of certain
cemetery merchandise and cemetery services and undeveloped interment,
entombment or inurnment space, when the seller may delay
delivery or
performance more than 120 days following initial payment on the account.
(Source: P.A. 92-419, eff. 1-1-02.)
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(815 ILCS 390/2) (from Ch. 21, par. 202)
Sec. 2.
This Act applies to all persons, except religious, municipal, State
and federal cemeteries, that offer for sale or sell cemetery merchandise,
cemetery services, or undeveloped interment, entombment or inurnment spaces on
a pre-need basis.
Nothing in this Act shall be deemed to apply to pre-arranged funeral programs
covered under the Illinois Funeral or Burial Funds Act.
(Source: P.A. 88-477.)
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(815 ILCS 390/3) (from Ch. 21, par. 203)
Sec. 3.
Short title.
This Act may be cited as
the Illinois Pre-Need Cemetery Sales Act.
(Source: P.A. 90-47, eff. 1-1-98.)
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(815 ILCS 390/4) (from Ch. 21, par. 204)
Sec. 4. Definitions. As used in this Act, the following terms shall
have the meaning specified:
(A) "Pre-need sales contract" or "Pre-need sales" means any
agreement or contract or series or combination of agreements or contracts which
have for a purpose the sale of cemetery merchandise, cemetery services or
undeveloped interment, entombment or inurnment spaces where the terms of
such sale require payment or payments to be made at a currently determinable
time and where the merchandise, services or completed spaces are to be
provided more than 120 days following the initial payment on the account.
An agreement or contract for a memorial, marker, or monument shall not be
deemed a "pre-need sales contract" or a "pre-need sale" if the memorial,
marker, or monument is delivered within 180 days following initial payment on
the account and work thereon commences a reasonably short time after initial
payment on the account.
(B) "Delivery" occurs when:
(1) Physical possession of the merchandise is | ||
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(2) Following authorization by a purchaser under a | ||
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(3) Following authorization by a purchaser under a | ||
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All warehouse facilities to which sellers deliver | ||
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(i) be either located in the State of Illinois or | ||
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(ii) submit to the Comptroller not less than | ||
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(iii) permit the Comptroller or his designee at | ||
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(iv) submit evidence satisfactory to the | ||
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(v) demonstrate to the Comptroller that the | ||
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(C) "Cemetery merchandise" means items of personal property normally
sold by a cemetery authority not covered under the Illinois Funeral or Burial
Funds Act, including but not limited to:
(1) memorials,
(2) markers,
(3) monuments,
(4) foundations, and
(5) outer burial containers.
(D) "Undeveloped interment, entombment or inurnment spaces" or
"undeveloped spaces" means any space to be used for the reception of human
remains that is not completely and totally constructed at the time of
initial payment therefor in a:
(1) lawn crypt,
(2) mausoleum,
(3) garden crypt,
(4) columbarium, or
(5) cemetery section.
(E) "Cemetery services" means those services customarily performed
by cemetery or crematory personnel in connection with the interment,
entombment, inurnment or cremation of a dead human body.
(F) "Cemetery section" means a grouping of spaces intended to be
developed simultaneously for the purpose of interring human remains.
(G) "Columbarium" means an arrangement of niches that may be an entire
building, a complete room, a series of special indoor alcoves, a bank along
a corridor or part of an outdoor garden setting that is constructed of
permanent material such as bronze, marble, brick, stone or concrete for the
inurnment of human remains.
(H) "Lawn crypt" means a permanent underground crypt usually constructed
of reinforced concrete or similar material installed in multiple units for
the entombment of human remains.
(I) "Mausoleum" or "garden crypt" means a grouping of spaces constructed
of reinforced concrete or similar material constructed or assembled above
the ground for entombing human remains.
(J) "Memorials, markers and monuments" means the object usually comprised
of a permanent material such as granite or bronze used to identify and
memorialize the deceased.
(K) "Foundations" means those items used to affix or support a memorial
or monument to the ground in connection with the installation of a memorial,
marker or monument.
(L) "Person" means an individual, corporation, partnership, joint
venture, business trust, voluntary organization or any other form of entity.
(M) "Seller" means
any person selling or offering for sale cemetery
merchandise, cemetery services or undeveloped interment, entombment, or
inurnment spaces in accordance with a pre-need sales contract.
(N) "Religious cemetery" means a cemetery owned, operated, controlled
or managed by any recognized church, religious society, association or
denomination or by any cemetery authority or any corporation administering,
or through which is administered, the temporalities of any recognized
church, religious society, association or denomination.
(O) "Municipal cemetery" means a cemetery owned, operated, controlled or
managed by any city, village, incorporated town, township, county or other
municipal corporation, political subdivision, or instrumentality thereof
authorized by law to own, operate or manage a cemetery. "Municipal cemetery" also includes a cemetery placed in receivership pursuant to this Act while such cemetery is in receivership.
(O-1) "Outer burial container" means a container made of concrete, steel,
wood, fiberglass, or similar material, used solely at the interment site, and
designed and used exclusively to surround or enclose a separate casket and to
support the earth above such casket, commonly known as a burial vault, grave
box, or grave liner, but not including a lawn crypt.
(P) "Sales price" means the gross amount paid by a
purchaser on a
pre-need sales contract for cemetery merchandise, cemetery services or
undeveloped interment, entombment or inurnment spaces, excluding sales
taxes, credit life insurance premiums, finance charges and Cemetery Care
Act contributions.
(Q) (Blank).
(R) "Provider" means a person who is responsible for
performing cemetery services or furnishing cemetery
merchandise, interment spaces, entombment spaces, or
inurnment spaces under a pre-need sales contract.
(S) "Purchaser" or "buyer" means the person who
originally paid the money under or in connection with a
pre-need sales contract.
(T) "Parent company" means a corporation owning more than 12 cemeteries or
funeral homes in more than one state.
(U) "Foreign warehouse facility" means a warehouse facility
now or
hereafter located in any state or territory of the United States, including
the District of Columbia, other than the State of Illinois.
A foreign warehouse facility shall be deemed to have appointed the
Comptroller to be its true and lawful attorney upon whom may be served all
legal process in any action or proceeding against it relating to or growing
out of this Act, and the acceptance of the delivery of stored merchandise
under this Act shall be signification of its agreement that any such
process against it which is so served, shall be of the same legal force and
validity as though served upon it personally.
Service of such process shall be made by delivering to and leaving with
the Comptroller, or any agent having charge of the Comptroller's Department
of Cemetery and Burial Trusts, a copy of such process and such service
shall be sufficient service upon such foreign warehouse facility if notice
of such service and a copy of the process are, within 10 days thereafter,
sent by registered mail by the plaintiff to the foreign warehouse facility
at its principal office and the plaintiff's affidavit of compliance
herewith is appended to the summons. The Comptroller shall keep a record
of all process served upon him under this Section and shall record therein
the time of such service.
(Source: P.A. 96-879, eff. 2-2-10.)
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(815 ILCS 390/5) (from Ch. 21, par. 205)
Sec. 5.
It is unlawful for any seller directly or
indirectly doing business within this State to engage in pre-need sales without
a license issued
by the Comptroller.
(Source: P.A. 92-419, eff. 1-1-02.)
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(815 ILCS 390/6) (from Ch. 21, par. 206)
Sec. 6. License application.
(a) An application for a license shall be made in writing to
the Comptroller on forms prescribed by him or her, signed by the applicant
under oath verified by a notary public,
and accompanied
by a non-returnable $125 application fee, $100 of which shall be deposited into the Comptroller's Administrative Fund. The Comptroller may prescribe
abbreviated application forms for persons holding a license under the Cemetery
Care Act. Applications (except abbreviated applications) must include at least
the following information:
(1) The full name and address, both residence and | ||
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(2) A detailed statement of applicant's assets and | ||
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(2.1) The name and address of the applicant's | ||
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(2.2) The name and address of the applicant's branch | ||
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(3) For each individual listed under (1) above, a | ||
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(4) The name of the trustee and, if applicable, the | ||
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(5) Where applicable, the name of the corporate | ||
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(6) Such other information as the Comptroller may | ||
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(b) Applications for license shall be accompanied by a fidelity bond
executed by the applicant and a security company authorized to do business
in this State in such amount, not exceeding $10,000, as the Comptroller may
require. The Comptroller may require additional bond from time to time in
amounts equal to one-tenth of such trust funds but not to exceed $100,000,
which bond shall run to the Comptroller for the use and benefit of the
beneficiaries of such trust funds. Such licensee may by written permit of
the Comptroller be authorized to operate without additional bond, except
such fidelity bond as may be required by the Comptroller for the protection
of the licensee against loss by default by any of its employees engaged in
the handling of trust funds.
(c) Any application not acted upon within 90 days may be deemed denied.
(Source: P.A. 97-593, eff. 8-26-11.)
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(815 ILCS 390/7) (from Ch. 21, par. 207)
Sec. 7.
The Comptroller may refuse to issue or may suspend or revoke
a license on any of the following grounds:
(a) The applicant or licensee has made any misrepresentations or false
statements or concealed any material fact;
(b) The applicant or licensee is insolvent;
(c) The applicant or licensee has been engaged in business practices that
work a fraud;
(d) The applicant or licensee has refused to give pertinent data to the
Comptroller;
(e) The applicant or licensee has failed to satisfy any enforceable
judgment or decree rendered by any court of competent jurisdiction against
the applicant;
(f) The applicant or licensee has conducted or is about to conduct
business in a fraudulent manner;
(g) The trust agreement is not in compliance
with State or federal law;
(h) The pre-construction performance bond, if applicable, is not
satisfactory to the Comptroller;
(i) The fidelity bond is not satisfactory to the Comptroller;
(j) As to any individual listed in the license application as required
pursuant to Section 6, that individual has conducted
or is
about to conduct any business on behalf of the applicant in a fraudulent
manner, has been convicted of any felony or misdemeanor an essential
element of which is fraud, has had a judgment rendered against him or her
based on
fraud in any civil litigation, has failed to satisfy any enforceable
judgment or decree rendered against him by any court of competent
jurisdiction, or has been convicted of any felony or any theft-related
offense;
(k) The applicant or licensee has failed to make the annual report
required by this Act or to comply with a final order, decision, or finding
of the Comptroller made pursuant to this Act;
(l) The applicant or licensee, including any member, officer, or director
thereof if the applicant or licensee is a firm, partnership, association, or
corporation and any shareholder holding more than 10% of the corporate stock,
has violated any provision of this Act
or
any regulation or order made by the Comptroller under this Act; or
(m) The Comptroller finds any fact or condition existing which, if it
had existed at the time of the original application for such license would
have warranted the Comptroller in refusing the issuance of the license.
(Source: P.A. 92-419, eff. 1-1-02.)
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(815 ILCS 390/8) (from Ch. 21, par. 208)
Sec. 8.
(a) Every license issued by the Comptroller shall state the
number of the license, the business name and address of the licensee's
principal place of business, each branch location also operating under the
license, and the licensee's parent company, if any. The license shall be
conspicuously posted in
each place of business operating under the license. The Comptroller may issue
additional licenses as may be necessary for license branch locations upon compliance with the provisions of this Act
governing an original issuance of a license for each new license.
(b) Individual salespersons representing a licensee
shall not be required
to obtain licenses in their individual capacities
but must acknowledge, by affidavit, that they have
been provided a copy of and have read this Act. The licensee must
retain copies of the affidavits of its salespersons for its
records and must make the affidavits available to the
Comptroller for examination upon request.
(c) The licensee shall be responsible for the activities of any person
representing the licensee in selling or offering a pre-need contract for sale.
(d) Any person not selling on behalf of a
licensee
shall be required to obtain his or her own license.
(e) Any person engaged in pre-need sales, as defined herein, prior to
the effective date of this Act may continue operations until the application
for license under this Act is denied; provided that such person shall make
application for a license within 60 days of the date that application forms
are made available by the Comptroller.
(f) No license shall be transferable or assignable without the express
written consent of the Comptroller. A transfer of more than 50% of the
ownership of any business licensed hereunder shall be deemed to be an attempted
assignment of the license originally issued to the licensee for which consent
of the Comptroller shall be required.
(g) Every license issued hereunder shall be renewed every 5 years for a fee of $100. The renewal fee shall be deposited into the Comptroller's Administrative Fund. The Comptroller, upon the request of an interested person or on his
own motion, may issue new licenses to a licensee whose license or licenses
have been revoked, if no factor or condition then exists which would have
warranted the Comptroller in refusing originally the issuance of such license.
(Source: P.A. 97-593, eff. 8-26-11.)
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(815 ILCS 390/8a)
Sec. 8a.
Investigation of unlawful practices.
If it appears to the
Comptroller that a person has engaged in, is engaging in, or is about to engage
in any practice in violation of this Act,
the Comptroller may:
(1) require that person to file on such terms as the | ||
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(2) examine under oath any person in connection with | ||
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(3) examine any books and records of the licensee, | ||
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(4) require the production of a copy of any record, | ||
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(Source: P.A. 92-419, eff. 1-1-02.)
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(815 ILCS 390/8b)
Sec. 8b.
Service.
Service by the Comptroller of any notice requiring a
person to file a statement or report shall be made:
(1) personally by delivery of a duly executed copy | ||
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(2) by mailing by certified mail a duly executed copy | ||
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(Source: P.A. 89-615, eff. 8-9-96.)
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(815 ILCS 390/9) (from Ch. 21, par. 209)
Sec. 9.
The Comptroller may upon his own motion investigate the actions
of any person providing, selling, or offering pre-need sales contracts
or of any applicant
or any person or persons holding or claiming to hold
a license under this Act. The Comptroller shall make such an investigation
on receipt of the verified written complaint of any person setting forth
facts which, if proved, would constitute grounds for refusal, suspension,
or revocation of a license.
Before refusing to issue, and before suspension or revocation of a license,
the Comptroller shall hold a hearing to determine whether the applicant or
licensee,
hereafter called the respondent, is entitled to hold
such a license. At
least 10 days prior to the date set for such hearing, the Comptroller shall
notify the respondent in writing that on the date designated a hearing
will be held to determine his eligibility for a license and that he may
appear in person or by counsel. Such written notice may be served on the
respondent personally, or by registered or certified mail sent to the
respondent's
business address as shown in his latest notification to the Comptroller and
shall include sufficient information to inform the respondent of the general
nature of the charge. At the hearing, both the respondent and the complainant
shall be accorded ample opportunity to present in person or by counsel such
statements, testimony, evidence and argument as may be pertinent to the
charges or to any defense thereto. The Comptroller may reasonably continue
such hearing from time to time.
The Comptroller may subpoena any person or persons in this State and take
testimony orally, by deposition or by exhibit, in the same manner and with
the same fees and mileage as prescribed in judicial proceedings in civil cases.
Any authorized agent of the Comptroller may administer oaths to witnesses
at any hearing which the Comptroller is authorized to conduct.
The Comptroller, at his expense, shall provide a certified shorthand reporter
to take down the testimony and preserve a record of all proceedings at the
hearing of any case involving the refusal to issue a license, the suspension
or revocation of a license, the imposition of a monetary penalty, or the
referral
of a case for criminal prosecution. The record of any such proceeding shall
consist of the notice of hearing, complaint, all other documents in the
nature of pleadings and written motions filed in the proceedings, the
transcript
of testimony and the report and orders of the Comptroller. Copies of the
transcript of such record may be purchased from the certified shorthand
reporter
who prepared the record or from the Comptroller.
(Source: P.A. 92-419, eff. 1-1-02.)
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(815 ILCS 390/10) (from Ch. 21, par. 210)
Sec. 10.
Any circuit court may, upon application of the Comptroller
or of the applicant or licensee against whom proceedings under Section 9
are pending, enter an order requiring witnesses to attend and testify, and
requiring the production of documents, papers, files, books and records
in connection with any hearing in any proceedings under that Section. Failure
to obey such court order may result in contempt proceedings.
(Source: P.A. 84-239.)
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(815 ILCS 390/11) (from Ch. 21, par. 211)
Sec. 11.
Any person affected by a final administrative decision of the
Comptroller may have such decision reviewed judicially by the circuit court
of the county where such person resides, or in the case of a corporation,
where the registered office is located. If the plaintiff in the review
proceeding is not a resident of this State, venue shall be in Sangamon County. The
provisions of the "Administrative Review Law", approved August 19, 1981,
all amendments and modifications thereto, and any rules adopted under it
govern all proceedings for the judicial review of final administrative
decisions of the Comptroller. The term "administrative decision" is defined
as in the "Administrative Review Law".
The Comptroller is not required to certify the record of the proceeding
unless the plaintiff in the review proceedings has purchased a copy of the
transcript from the certified shorthand reporter who prepared the record or
from the Comptroller. Exhibits shall be certified without cost.
(Source: P.A. 84-239.)
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(815 ILCS 390/12) (from Ch. 21, par. 212)
Sec. 12.
License revocation or suspension.
(a) The Comptroller may, upon determination that grounds
exist for the revocation or suspension of a license issued
under this Act, revoke or suspend, if appropriate, the license issued to a
licensee or to a
particular branch office location with respect to which the
grounds for revocation or suspension may occur or exist.
(b) Upon the revocation or suspension of any license, the
licensee shall immediately surrender the license or licenses to the Comptroller. If the licensee fails to do so, the
Comptroller has the right to seize the license or licenses.
(Source: P.A. 92-419, eff. 1-1-02.)
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(815 ILCS 390/13) (from Ch. 21, par. 213)
Sec. 13.
A licensee may surrender any license by delivering to the
Comptroller written notice that he thereby surrenders such license but such
surrender shall not affect such licensee's civil or criminal liability for
acts committed prior to such surrender, or affect his bond. The Comptroller
shall not permit a license to be surrendered by licensee unless and until
the trust funds of such licensee have been transferred to a successor
licensee who shall be licensed by the Comptroller in conformity with the
provisions of this Act. Any purported transfer of trust funds without
compliance with this Section is void and the Comptroller shall have the
right to petition for the appointment of a receiver to administer the
business of the licensee.
(Source: P.A. 84-239.)
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(815 ILCS 390/14) (from Ch. 21, par. 214)
Sec. 14. Contract required.
(a) It is unlawful for any person doing business within this
State to accept sales proceeds, either directly or indirectly, by any
means unless the seller enters into a pre-need sales
contract
with the
purchaser which meets the following requirements:
(1) A written sales contract shall be executed in at | ||
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(2) In addition, such contracts must contain a | ||
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"Notwithstanding anything in this contract to the | ||
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(3) All pre-need sales contracts shall be sold on a | ||
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(4) Each contract shall clearly disclose that the | ||
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"THIS CONTRACT GUARANTEES THE BENEFICIARY THE | ||
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(5) The pre-need sales contract shall provide that if | ||
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(6) The pre-need contract shall also disclose any | ||
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(7) The pre-need contract shall disclose the nature | ||
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(8) Each pre-need contract that authorizes the | ||
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"THIS CONTRACT AUTHORIZES THE DELIVERY OF MERCHANDISE TO | ||
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The purchaser shall initial the statement at the time | ||
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(9) Each pre-need contract that authorizes the | ||
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"THIS CONTRACT AUTHORIZES THE PLACEMENT OF MERCHANDISE AT | ||
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The purchaser shall initial the statement at the time | ||
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(10) Each pre-need contract that is funded by a trust | ||
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(b) Every pre-need sales contract must be in writing.
The Comptroller may by rule
develop a model pre-need sales contract form that meets the requirements
of this Act.
(c) To the extent the Rule is applicable, every pre-need sales
contract is subject to the Federal Trade Commission Rule concerning the
Cooling-Off Period for Door-to-Door Sales (16 CFR Part 429).
(d) No pre-need sales contract may be entered into in
this State unless there is a provider for the cemetery
merchandise, cemetery services, and undeveloped interment,
inurnment, and entombment spaces being sold. If the seller
is not the provider, then the seller must have a binding
agreement with a provider, and the identity of the provider
and the nature of the agreement between the seller and the
provider must be disclosed in the pre-need sales contract
at the time of sale and before the receipt of any sale
proceeds. The failure to disclose the identity of the
provider, the nature of the agreement between the seller
and the provider, or any changes thereto to the purchaser
and beneficiary, or the failure to make the disclosures
required by this Section constitutes an intentional
violation of this Act.
(e) No pre-need contract may be entered into in this
State unless it is accompanied by a funding mechanism
permitted under this Act and unless the seller is
licensed by the Comptroller as provided in this Act.
Nothing in this Act is intended to relieve providers or
sellers of pre-need contracts from being licensed under any
other Act required for their profession or business or from
being subject to the rules promulgated to regulate their
profession or business, including rules on solicitation and
advertisement.
(f) No pre-need contract may be entered into in this
State unless the seller explains to the
purchaser the terms of the pre-need contract prior to the
purchaser signing and the purchaser initials a statement in the contract
confirming that the seller has explained the terms of the contract prior to the
purchaser signing.
(g) The State Comptroller shall develop a booklet for
consumers in plain English describing the scope,
application, and consumer protections of this Act. After
the booklet is developed, no pre-need contract may be
sold in this State unless the seller
distributes to the purchaser prior to the sale a booklet
developed or approved for use by the State Comptroller.
(Source: P.A. 96-879, eff. 2-2-10.)
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(815 ILCS 390/15) (from Ch. 21, par. 215)
Sec. 15.
(a) Whenever a seller receives anything of value under a
pre-need sales contract, the person receiving such value shall deposit 50%
of all proceeds received into one or more trust funds maintained pursuant
to this Section, except that, in the case of proceeds received for the
purchase of outer burial containers, 85% of the proceeds shall be deposited
into one or more trust funds. Such deposits shall be made until the amount
deposited in
trust equals 50% of the sales price of the cemetery merchandise, cemetery
services and undeveloped spaces included in such contract, except that, in
the case of deposits for outer burial containers, deposits shall be made until
the amount deposited in trust equals 85% of the sales price. In the event
an
installment contract is factored, discounted or sold to a third party, the
seller shall deposit an amount equal to 50% of the sales price of the
installment contract, except that, for the portion of the contract
attributable to the sale of outer burial containers, the seller shall deposit
an amount equal to 85% of the sales price. Proceeds required to be deposited
in trust which
are
attributable to cemetery merchandise and cemetery services shall be held
in a "Cemetery Merchandise Trust Fund". Proceeds required to be deposited
in trust which are attributable to the sale of undeveloped interment,
entombment or inurnment spaces shall be held in a "Pre-construction Trust
Fund". If merchandise is delivered for storage in a bonded warehouse, as
authorized herein, and payment of transportation or other charges totaling
more than $20 will be required in order to secure delivery to the site of
ultimate use, upon such delivery to the warehouse the seller shall deposit
to the trust fund the full amount of the actual or estimated transportation
charge. Transportation charges which have been prepaid by the seller
shall not be deposited to trust funds maintained pursuant to this Section.
As used in this Section, "all proceeds" means the entire amount paid by a
purchaser in connection with a pre-need sales contract, including finance
charges and Cemetery Care Act contributions, but excluding sales taxes
and credit life insurance premiums.
(b) The seller shall act as trustee of all amounts received for cemetery merchandise, services, or undeveloped spaces until those amounts have been deposited into the trust fund. All trust deposits required by this Act shall be made within 30 days
following the end of the month of receipt. The seller must retain a corporate fiduciary as an independent trustee for any amount of trust funds. Upon 30 days' prior written notice from the seller to the Comptroller, the seller may change the trustee of the trust fund. Failure to provide the Comptroller with timely prior notice is an intentional violation of this Act.
(c) A trust established under this Act must be maintained with a corporate fiduciary as defined in Section 1-5.05 of the Corporate Fiduciary Act or with a foreign corporate fiduciary recognized by Article IV of the Corporate Fiduciary Act.
(d) Funds deposited in the trust account shall be identified in the records
of the seller by the name of the purchaser. Nothing shall prevent the trustee
from commingling the deposits in any such trust fund for purposes of the
management thereof and the investment of funds therein as provided in the
"Common Trust Fund Act", approved June 24, 1949, as amended. In addition,
multiple trust funds maintained pursuant to this Act may be commingled or
commingled with other funeral or burial related trust funds, provided that
all record keeping requirements imposed by or pursuant to law are met.
(e) In lieu of a pre-construction trust fund, a seller of undeveloped
interment, entombment or inurnment spaces may obtain and file with the
Comptroller a performance bond in an amount at least equal to 50% of the
sales price of the undeveloped spaces or the estimated cost of completing
construction, whichever is greater. The bond shall be conditioned on the
satisfactory construction and completion of the undeveloped spaces as
required in Section 19 of this Act.
Each bond obtained under this Section shall have as surety thereon a
corporate surety company incorporated under the laws of the United States,
or a State, the District of Columbia or a territory or possession of the
United States. Each such corporate surety company must be authorized to
provide performance bonds as required by this Section, have paid-up
capital of at least $250,000 in cash or its equivalent and be able to carry
out its contracts. Each pre-need seller must provide to the Comptroller,
for each corporate surety company such
seller utilizes, a statement of assets and liabilities of the corporate
surety company sworn to by the president and secretary
of the corporation by January 1 of each year.
The Comptroller shall prohibit pre-need sellers from doing new business
with a corporate surety company if the company is insolvent or is in
violation of this Section. In addition the Comptroller may direct a
pre-need seller to reinstate a pre-construction trust fund upon the
Comptroller's determination that the corporate surety company no longer is
sufficient security.
All performance bonds issued pursuant to this Section must be irrevocable
during the statutory term for completing construction specified in Section
19 of this Act, unless terminated sooner by the completion of construction.
(f) Whenever any pre-need contract shall be entered into and include 1)
items of cemetery merchandise and cemetery services, and 2) rights to
interment, inurnment or entombment in completed spaces without allocation
of the gross sale price among the items sold, the application of payments
received under the contract shall be allocated, first to the right to
interment, inurnment or entombment, second to items of cemetery merchandise
and cemetery services, unless some other allocation is clearly provided
in the contract.
(g) Any person engaging in pre-need sales who enters into a combination
sale which involves the sale of items covered by a trust or performance
bond requirement and any item not covered by any entrustment or bond
requirement, shall be prohibited from increasing the gross sales price of
those items not requiring entrustment with the purpose of allocating a
lesser gross sales price to items which require a trust deposit or a
performance bond.
(Source: P.A. 96-879, eff. 2-2-10; 97-593, eff. 8-26-11.)
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(815 ILCS 390/16) (from Ch. 21, par. 216)
Sec. 16. Trust funds; disbursements.
(a) A trustee shall make no disbursements from the trust fund
except as provided in this Act.
(b) A trustee has a duty to invest and manage the trust assets pursuant to the Illinois Prudent Investor Law under Article 9 of the Illinois Trust Code. Whenever the seller changes trustees pursuant to this Act, the trustee must provide written notice of the change in trustees to the Comptroller no less than 28 days prior to the effective date of such a change in trustee. The trustee has an ongoing duty to provide the Comptroller with a current and true copy of the trust agreement under which the trust funds are held pursuant to this Act.
(c) The trustee may rely upon certifications and affidavits made to it
under the provisions of this Act, and shall not be liable to any person
for such reliance.
(d) A trustee shall be allowed to withdraw from the trust funds maintained
pursuant to this Act a reasonable fee pursuant to the Illinois Trust Code.
(e) The trust shall be a single-purpose trust fund. In the event of the
seller's bankruptcy, insolvency or assignment for the
benefit of creditors,
or an adverse judgment, the trust funds shall not be available to any creditor
as assets of the seller or to pay any expenses of any
bankruptcy or similar
proceeding, but shall be distributed to the purchasers or managed for their
benefit by the trustee holding the funds.
Except in an action by the Comptroller to revoke a license issued pursuant
to this Act and for creation of a receivership as provided in this Act, the
trust shall not be subject to judgment, execution, garnishment, attachment,
or other seizure by process in bankruptcy or otherwise, nor to sale, pledge,
mortgage, or other alienation, and shall not be assignable except as
approved by the Comptroller. The changes made by this amendatory Act of
the 91st General Assembly are intended to clarify existing law regarding the
inability of licensees to pledge the trust.
(f) Because it is not known at the time of deposit or at the time that
income is earned on the trust account to whom the principal and the accumulated
earnings will be distributed, for purposes of determining the Illinois Income
Tax due on these trust funds, the principal and any accrued earnings or
losses relating to each individual account shall be held in suspense until
the final determination is made as to whom the account shall be paid.
(g) A trustee shall at least annually furnish to each purchaser a statement identifying: (1) the receipts, disbursements, and inventory of the trust, including an explanation of any fees or expenses charged by the trustee under paragraph (d) of this Section or otherwise, (2) an explanation of the purchaser's right to a refund, if any, under this Act, and (3) the primary regulator of the trust as a corporate fiduciary under state or federal law. (h) If the trustee has reason to believe that the contact information for a purchaser is no longer valid, then the trustee shall promptly notify the seller. If the trustee has reason to believe that the purchaser is deceased, then the trustee shall promptly notify the seller. A trustee shall remit as provided in Section 18.5 of this Act any pre-need trust funds, including both the principal and any accrued earnings or losses, relating to an individual account that is presumed abandoned under Section 18.5.(Source: P.A. 101-48, eff. 1-1-20; 101-552, eff. 1-1-20; 102-558, eff. 8-20-21.)
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(815 ILCS 390/16.5)
Sec. 16.5.
Licensee bankruptcy.
In the event of a licensee's
bankruptcy, insolvency, or assignment for the benefit of creditors, or
in the event of the bankruptcy, insolvency, or assignment for the
benefit of creditors of any person, partnership, association,
corporation, or other entity that possesses a controlling interest in a
licensee, the licensee shall provide notice in writing of that event to
each purchaser of a pre-need sales contract or a pre-need contract
within 30 days after the event of bankruptcy, insolvency, or assignment
for the benefit of creditors. At a minimum, the notice must contain the
following:
(1) The name and address of the licensee.
(2) If different from the licensee, the name and | ||
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(3) A brief description of the event of bankruptcy, | ||
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(4) The case name or other identifying title of any | ||
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(5) The name and address of the court in which the | ||
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(6) A description of any action the purchaser must | ||
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(Source: P.A. 91-7, eff. 6-1-99.)
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(815 ILCS 390/17) (from Ch. 21, par. 217)
Sec. 17.
The principal and undistributed income of the trust created
pursuant to Section 15 of this Act shall be paid to the seller if:
(1) the seller certifies by sworn affidavit to the | ||
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(2) the seller certifies by sworn affidavit to the | ||
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(Source: P.A. 100-863, eff. 8-14-18.)
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(815 ILCS 390/18) (from Ch. 21, par. 218)
Sec. 18.
(a) If for any reason a seller who has engaged in pre-need
sales has refused, cannot or does not comply with the terms of the pre-need
sales contract within a reasonable time after he is required to do so, the
purchaser or his heirs or assigns or duly authorized representative shall
have the right to a refund of an amount equal to the sales price paid for
undelivered merchandise, services or spaces plus undistributed interest
amounts held in trust attributable to such contract, within 30 days of the
filing of a sworn affidavit with the trustee setting forth the existence of
the contract and the fact of breach. A copy of this affidavit shall be
filed with the Comptroller and the seller. In the event a seller is
prevented from performing by strike, shortage of materials, civil disorder,
natural disaster or any like occurrence beyond the control of the seller,
the seller's time for performance shall be extended by the length of such
delay. Nothing in this Section shall relieve the seller from any liability
for non-performance of his obligations under the pre-need sales contract.
(b) If the purchaser defaults in making payments, the seller shall have
the right to cancel the contract and withdraw from the trust fund the
entire balance to the credit of the defaulting purchaser's account as
liquidating damages. In such event, the trustee shall deliver said balance
to the seller upon its certification, and upon receiving said certification the
trustee may rely thereon and shall not be liable to anyone for such reliance.
(c) After final payment on a pre-need contract, any beneficiary may upon
written demand of a seller, demand that the pre-need contract with such
seller be terminated. The seller shall, within 30 days, initiate a refund
to such purchaser or beneficiary of the entire amount held in trust
attributable to undelivered cemetery merchandise and unperformed cemetery
services, including undistributed interest earned thereon. Where more than
one beneficiary is included in a pre-need contract, a seller need not honor
a demand for cancellation under this paragraph unless all beneficiaries
assent and their signatures are included in written demand for refund.
(Source: P.A. 85-805.)
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(815 ILCS 390/18.5) Sec. 18.5. Presumptively abandoned trust funds. (a) After final payment on a pre-need contract, the entire amount held in trust attributable to undelivered cemetery merchandise and unperformed cemetery services, including undistributed interest earned thereon, is presumptively abandoned 2 years after the earlier of: (A) the later of: (i) the date the seller in the ordinary course of | ||
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(ii) 10 years after the death of a beneficiary if | ||
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(B) the date a beneficiary has attained, or would | ||
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(C) 50 years after the pre-need contract was | ||
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(b) The period after which trust funds are presumed abandoned is measured from the later of: (1) the date the trust funds are presumed abandoned under this Section; or (2) the latest indication of interest by the apparent owner in the trust funds. If more than one beneficiary is included in a pre-need contract, an indication of interest by any one or more of the beneficiaries requires that the presumption of abandonment under paragraphs (A) and (B) of subsection (a) be evaluated based on the beneficiary's information. An indication of interest in the trust funds includes any one or more of the actions listed in subsection (b) of Section 15-210 of the Revised Uniform Unclaimed Property Act. (c) The seller shall notify the trustee of the pre-need trust funds in writing when any trust funds are presumed abandoned under this Section. (d) If the seller is licensed to hold care funds under the Cemetery Care Act, then within 30 days of receiving notice that pre-need trust funds are presumed abandoned under this Section, the trustee of the pre-need trust funds shall remit the presumptively abandoned pre-need trust funds to the trustee for the care fund held pursuant to the Cemetery Care Act for deposit into such care fund. If the seller has retained an independent trustee pursuant to the Cemetery Care Act, then any funds remitted pursuant to this Section shall be remitted to the independent trustee. If the purchaser or beneficiary of pre-need trust funds presumed abandoned under this Section and deposited into a care fund makes a claim, then the seller shall direct the trustee of the care funds held pursuant to the Cemetery Care Act to refund the purchaser or beneficiary the amount that was deposited into the care fund. (e) If the seller is not licensed to hold care funds under the Cemetery Care Act, the trustee of pre-need trust funds shall remit presumptively abandoned trust funds to the Comptroller semi-annually within 30 days after the end of June and December for deposit into the Cemetery Consumer Protection Fund. If the purchaser or beneficiary of pre-need trust funds that were presumed abandoned under this Section and deposited into the Cemetery Consumer Protection Fund makes a claim, then either the seller shall request restitution or reimbursement from the Cemetery Consumer Protection Fund as provided in Section 22 and provide the cemetery merchandise or cemetery services pursuant to the pre-need contract, or the purchaser or beneficiary shall request restitution or reimbursement from the Cemetery Consumer Protection Fund as provided in Section 22. (f) Notwithstanding any provision of this Act, the only penalties that may be imposed in connection with the administration of this Section are those provided in the Revised Uniform Unclaimed Property Act.
(Source: P.A. 101-552, eff. 1-1-20.) |
(815 ILCS 390/19) (from Ch. 21, par. 219)
Sec. 19.
Construction or development of spaces.
(a) The construction or development of undeveloped
interment, entombment or inurnment spaces shall be commenced on that phase,
section or sections of undeveloped ground or section of lawn crypts,
mausoleums, garden crypts, columbariums or cemetery spaces in which sales
are made within 3 years of the date of the first such sale.
The
seller
shall give written notice to the Comptroller no later than 30 days after
the first sale. Such notice shall include a description of the project.
Once commenced, construction or development shall be pursued diligently to
completion. The construction must be completed within 6 years of the first
sale. If construction or development is not commenced or completed
within the times specified herein,
any purchaser may surrender and cancel the contract and upon cancellation
shall be entitled to a refund of the actual amounts paid toward the purchase
price plus interest attributable to such amount earned while in trust; provided
however that any delay caused by strike, shortage of materials, civil disorder,
natural disaster or any like occurrence beyond the control of the seller
shall extend the time of such commencement and completion by the length of
such delay.
(b) At any time within 12 months of a purchaser's entering into a pre-need
contract for undeveloped interment, entombment or inurnment spaces, a
purchaser
may surrender and cancel his or her contract and upon cancellation shall be
entitled
to a refund of
the actual amounts paid toward the purchase
price plus interest
attributable to such amount earned while in trust. Notwithstanding the
foregoing, the cancellation and refund rights specified in this paragraph shall
terminate as of the date the seller commences construction or
development of
the phase, section or sections of undeveloped spaces in which sales are
made.
After the rights of cancellation and refund specified herein have terminated,
if a purchaser defaults in making payments under the pre-need contract, the
seller shall have the right to cancel the contract and
withdraw from the trust
fund the entire balance to the credit of the defaulting purchaser's
account as liquidated damages. In such event, the trustee shall
deliver
said balance to the seller upon its certification,
and upon
receiving said
certification the trustee may rely thereon and shall not be liable to
anyone for such reliance.
(c) During the construction or development of interment, entombment or
inurnment spaces, upon the sworn certification by the seller
and the
contractor to the trustee the trustee shall disburse from the trust fund
the amount equivalent to the cost of performed labor or delivered materials
as certified. Said certification shall be substantially in the following
form:
We, the undersigned, being respectively the Seller and
Contractor, do
hereby certify that the Contractor has performed labor or delivered materials
or both to (address of property) .........., in connection with
a contract to .........., and that as of this date the value of the labor
performed and materials delivered is $.......
We do further certify that in connection with such contract there remains
labor to be performed, and materials to be delivered, of the value of $........
This Certificate is signed (insert date).
............ ............ Seller Contractor
A person who executes and delivers a completion certificate with actual
knowledge of a falsity contained therein shall be considered in violation of
this Act and subject to the penalties contained herein.
(d) Except as otherwise authorized by this Section, every
seller of
undeveloped spaces shall provide facilities for temporary interment,
entombment or inurnment for purchasers or beneficiaries of contracts who
die prior to completion of the space. Such temporary facilities shall be
constructed of permanent materials, and, insofar as practical, be
landscaped and groomed to the extent customary in the cemetery industry in
that community. The heirs, assigns, or personal representative of a
purchaser or beneficiary shall not be required to accept temporary
underground interment spaces where the undeveloped space contracted for was
an above ground entombment or inurnment space. In the event that temporary
facilities as described in this paragraph
are not made available, upon the death of a purchaser or beneficiary, the
heirs, assigns, or personal representative is entitled to a refund of the
entire sales price paid plus undistributed interest attributable to such
amount while in trust.
(e) If the seller delivers a completed space acceptable to
the heirs,
assigns or personal representative of a purchaser or beneficiary, other
than the temporary facilities specified herein, in lieu of the undeveloped
space purchased, the seller shall provide the trustee with a
delivery
certificate and all sums deposited under the pre-need sales contract,
including the undistributed income, shall be paid to the
seller.
(f) Upon completion of the phase, section or sections of the project as
certified to the trustee by the seller and the contractor
and delivery of the deed or certificate of ownership to the completed
interment, entombment, or inurnment space to
all of the purchasers entitled to receive those ownership documents, the
trust fund
requirements set forth herein shall terminate and all
funds held in the
preconstruction trust fund attributable to the completed phase, section or
sections, including interest accrued thereon, shall be returned to the
seller.
(g) This Section shall not apply to the sale of undeveloped spaces if
there has been any such sale in the same phase, section or sections of the
project prior to the effective date of this Act.
(Source: P.A. 91-357, eff. 7-29-99; 92-419, eff. 1-1-02.)
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(815 ILCS 390/20) (from Ch. 21, par. 220)
Sec. 20. Records.
(a) Each licensee must keep accurate accounts, books and
records in this State
at the principal place of business identified in the
licensee's license application or as otherwise approved by
the Comptroller in writing
of all transactions, copies of agreements, dates and
amounts of payments made or received, the names and addresses of the
contracting parties, the names and addresses of persons for whose benefit
funds are received, if known, and the names of the trust depositories.
Additionally, for a period not to exceed 6 months after
the performance of all terms in a pre-need sales contract,
the licensee shall maintain copies of each pre-need
contract at the licensee branch location where the contract
was entered or at some other location agreed to by the Comptroller in
writing.
(b) Each licensee must maintain such records for a period of 3
years
after the licensee shall have fulfilled his or her obligation
under the pre-need
contract or 3 years after any stored merchandise shall have been provided
to the purchaser or beneficiary, whichever is later.
(c) Each licensee shall submit reports to the Comptroller
annually,
under oath, on forms furnished by the Comptroller. The annual report
shall
contain, but shall not be limited to, the following:
(1) An accounting of the principal deposit and | ||
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(2) An accounting of any withdrawal of principal or | ||
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(3) An accounting at the end of each fiscal year, of | ||
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(d) The annual report shall be filed by the licensee with the
Comptroller within 75 days after the end of the licensee's fiscal year. An
extension of up to 60 days may be granted by the Comptroller, upon a
showing of need by the licensee. Any other reports shall be in
the form
furnished or specified by the Comptroller. If a licensee fails to submit an
annual report to the Comptroller within the time specified in this Section, the
Comptroller shall impose upon the licensee a penalty of $5 per day for the first 15 days past due, $10 per day for 16 through 30 days past due, $15 per day for 31 through 45 days past due, and $20 per day for the 46th day and every day thereafter the licensee remains delinquent in submitting the annual report. The
Comptroller may abate all or part of the $5 daily penalty for good cause
shown. Each
report shall be accompanied by a check or money order in the
amount of $10
payable to: Comptroller, State of Illinois.
(e) On and after the effective date of this amendatory Act of the 91st
General Assembly, a licensee may
report all required information concerning the sale of outer burial containers
on the licensee's annual report required to be filed under this Act and
shall
not be required to report that information under the Illinois Funeral or
Burial
Funds Act, as long as the information is reported under this Act.
(Source: P.A. 97-593, eff. 8-26-11.)
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(815 ILCS 390/21) (from Ch. 21, par. 221)
Sec. 21.
Audits.
(a) The Comptroller may audit the records of any licensee with
respect to the trust funds created or pre-construction performance bonds
obtained pursuant to this Act as they pertain to the deposits to and
withdrawals from the trust fund and the maintenance of the required bond,
at reasonable times no more than annually unless there is reasonable cause
to suspect a deficiency. For that purpose, the Comptroller shall have free
access to the office and places of business of all licensees and all
trustees or depositories as it relates to the deposit, withdrawal and
investment of funds. The fee for
an initial audit shall be borne by the licensee
if it has $10,000 or more in trust funds; otherwise, by the Comptroller.
The fee charged by the Comptroller for such audit shall be paid by the
licensee and shall be based upon the total amount of pre-need sales made by
the licensee pursuant to this Act as of the end of the calendar or fiscal
year for which an annual report is required and shall be in accordance with
the following schedule:
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(b) The Comptroller may order additional audits or examinations as he or
she
may deem necessary or advisable to ensure the safety and stability of the trust
funds and to ensure compliance with this Act. These additional audits or
examinations shall only be made after good cause is established by the
Comptroller in the written order. The grounds for ordering these additional
audits or examinations may include, but shall not be limited to:
(1) material and unverified changes or fluctuations | ||||||||||
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(2) the licensee changing trustees more than twice in | ||||||||||
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(3) any withdrawals or attempted withdrawals from the | ||||||||||
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(4) failure to maintain or produce documentation | ||||||||||
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Prior to ordering an additional audit or examination, the Comptroller shall
request the licensee to respond and comment upon the factors identified by the
Comptroller as warranting the subsequent examination or audit. The licensee
shall have 30 days to provide a response to the Comptroller. If the
Comptroller decides to proceed with the additional examination or audit, the
licensee shall bear the full cost of that examination or audit up to a maximum
of $7,500. The
Comptroller may elect to pay for the examination or audit and receive
reimbursement from the licensee. Payment of the costs of the examination or
audit by a licensee shall be a condition of receiving or maintaining a license
under this Act. All moneys received by the Comptroller for examination or
audit fees shall be maintained in a separate account to be known as the
Comptroller's Administrative
Fund. This
Fund, subject to appropriation by the General Assembly, may
be utilized by the Comptroller for
enforcing this Act and other purposes that may be authorized by law.
(Source: P.A. 88-477; 89-615, eff. 8-9-96.)
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(815 ILCS 390/22) (from Ch. 21, par. 222)
Sec. 22. Cemetery Consumer Protection Fund.
(a) Every seller engaging in pre-need sales shall
pay to the
Comptroller $5 for each said contract entered into, to be paid into a special
income earning fund hereby created in the State Treasury, known as the Cemetery
Consumer Protection Fund. The above said fees shall
be remitted to the
Comptroller semi-annually within 30 days after the end of June and December
for all contracts that have been entered in such 6 month period.
(b) All monies paid into the fund together with all accumulated
undistributed
income thereon shall be held as a special fund in the State Treasury. The
fund shall be used solely for the purpose of providing restitution to consumers
who have suffered pecuniary loss arising out of pre-need sales, to help pay expenses of cemeteries or mausoleums in court-ordered receivership, to satisfy Receiver's fees, or to administer the Comptroller's program for the purpose of cleaning up abandoned or neglected cemeteries located in Illinois.
(c) Restitution or reimbursement for pre-need merchandise or services shall not exceed the reasonable average regional cost of the contracted merchandise at current prices.
(d) Whenever restitution is paid by the fund, the fund shall be
subrogated to the amount of such restitution, and the Comptroller shall
request the Attorney General to engage in all reasonable post judgment
collection steps to collect said restitution from the judgment debtor and
reimburse the fund.
(e) (Blank).
(f) The fund may not be allocated for any purpose other than that specified
in this Act.
(g) Notwithstanding any other provision of this Section, the payment of
restitution from the fund shall be a matter of grace and not of
right and
no purchaser shall have any vested rights in the fund as a
beneficiary or
otherwise.
Prior to seeking restitution from the fund, a purchaser
or beneficiary seeking payment of restitution shall apply
for restitution on a form provided by the Comptroller. The
form shall include any information the Comptroller may
reasonably require in order for the Comptroller to determine that
restitution or reimbursement for cemetery
merchandise or services is appropriate.
(h) Annually, the status of the fund shall be reviewed by the
Comptroller, and if she or he determines that the fund together with all
accumulated income earned thereon, equals or exceeds $10,000,000 and that
the total number of outstanding claims filed against the fund is less than
10% of the fund's current balance, then payments to the fund pursuant to subsection (a) of this Section shall be
suspended until such time as the fund's balance drops below $10,000,000 or
the total number of outstanding claims filed against the fund is more than
10% of the fund's current balance, but on such suspension, the fund shall
not be considered inactive.
(Source: P.A. 103-253, eff. 6-30-23.)
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(815 ILCS 390/23) (from Ch. 21, par. 223)
Sec. 23.
(a) Any person who fails to deposit the required amount into a
trust provided for in this Act, improperly withdraws or uses trust funds for
his
or her own benefit, or otherwise violates any provision of this
Act is
guilty of a Class 4 felony.
(b) If any person violates this Act or fails or refuses to comply with
any order of the Comptroller or any part thereof which to such person has
become final and is still in effect, the Comptroller may, after notice and
hearing at which it is determined that a violation of this Act or such order
has been committed, further order that such person shall forfeit and pay to the
State of Illinois a sum not to exceed $5,000 for each violation. Such
liability shall be enforced in an action brought in any court of competent
jurisdiction by the Comptroller in the name of the people of the State of
Illinois.
(c) Whenever a license is revoked by the Comptroller, or the Comptroller
determines that any person is engaged in pre-need sales without a license,
he shall apply to the circuit court of the county where such person is
located for a receiver to administer the business of such person.
(d) Whenever a licensee fails or refuses to make a required report or
whenever it appears to the Comptroller from any report or examination that
such licensee has committed a violation of law or that the trust funds have
not been administered properly or that it is unsafe or inexpedient for such
licensee or the trustee of the trust funds of such licensee to continue to
administer such funds or that any officer of such licensee or of the trustee
of the trust funds of such licensee has abused his trust or has been guilty
of misconduct or breach of trust in his official position injurious to such
licensee or that such licensee has suffered as to its trust funds a serious
loss by larceny, embezzlement, burglary, repudiation or otherwise, the
Comptroller shall, by order, direct the discontinuance of such illegal,
unsafe or unauthorized practices and shall direct strict conformity with the
requirements of the law and safety and security in its transactions and may
apply to the circuit court of the county where such licensee is located to
prevent any disbursements or expenditures by such licensee until the trust
funds are in such condition that it would not be jeopardized thereby and
the Comptroller shall communicate the facts to the Attorney General of the
State of Illinois who shall thereupon institute such proceedings against the
licensee or its trustee or the officers of either or both as the nature of
the case may require.
(e) In addition to the other penalties and remedies provided in this
Act, the Comptroller may bring a civil action in the county of residence of
the licensee or any person engaging in pre-need sales, to enjoin any
violation or threatened violation of this Act.
(f) The powers vested in the Comptroller by this Section are additional
to any and all other powers and remedies vested in the Comptroller by law,
and nothing herein contained shall be construed as requiring that the
Comptroller shall employ the powers conferred herein instead of or as a
condition precedent to the exercise of any other power or remedy vested in
the Comptroller.
(Source: P.A. 92-419, eff. 1-1-02.)
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(815 ILCS 390/24) (from Ch. 21, par. 224)
Sec. 24.
The Comptroller may adopt, amend or repeal such rules, not
inconsistent with the law, as may be necessary to enable him to administer
and enforce the provisions of this Act. All such action shall be taken
according to the provisions of "The Illinois Administrative Procedure Act",
approved September 22, 1975, as amended.
(Source: P.A. 84-239.)
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(815 ILCS 390/25) (from Ch. 21, par. 225)
Sec. 25.
Any provision of any contract which purports to waive any
provision of this Act shall be null and void.
(Source: P.A. 84-239.)
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(815 ILCS 390/26) (from Ch. 21, par. 226)
Sec. 26.
(a) No person shall encumber or mortgage cemetery property,
unless the mortgage or other encumbrance documents contain the following clause:
"The mortgagee expressly agrees that there shall be released from the
lien of this mortgage, automatically and without recordation of any
instrument, any lot, crypt, or niche encumbered hereby with respect to
which the mortgagor sells rights of interment, entombment or inurnment in
the ordinary course of business".
(b) In the case of a sale of any cemetery or any part thereof or any
related cemetery merchandise by a cemetery owner to a purchaser, except the
sale of burial rights, interment services, or cemetery merchandise to a
person for his or her personal or family burial or interment, the purchaser
shall perform all obligations imposed under this Act, all obligations
imposed under pre-need sales contracts made by the selling cemetery or any
prior cemetery owner relating to pre-need sales and any other related obligations.
(Source: P.A. 84-239.)
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(815 ILCS 390/27) (from Ch. 21, par. 227)
Sec. 27.
(a) The provisions of this Act shall not apply to any pre-need
sale that was executed prior to the effective date of this Act. Any seller,
with the written approval of the purchaser, shall have the option to become
subject to this Act on any pre-need sales made prior to the effective date
of this Act by giving written notice to its purchasers and to the Comptroller.
(b) The provisions of this Act shall not apply to the isolated or
occasional sale by a consumer to another consumer of cemetery merchandise,
cemetery services or undeveloped spaces by an individual who does not
hold himself out as being engaged in, or who does not engage in, making
pre-need sales.
(Source: P.A. 85-805.)
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(815 ILCS 390/27.1)
Sec. 27.1.
Sales; liability of purchaser for shortage.
In the event of a sale or transfer of all or
substantially all of the assets of the licensee, the sale
or transfer of the controlling interest of the corporate
stock of the licensee if the licensee is a corporation, the
sale or transfer of the controlling interest of the partnership if
the licensee is a partnership, or sale pursuant to
foreclosure proceedings, the purchaser is liable for any
shortages existing before or after the sale in the trust
funds required to be maintained in a trust under this Act
and shall honor all pre-need contracts and trusts entered
into by the licensee. Any shortages existing in the trust
funds constitute a prior lien in favor of the trust for the
total value of the shortages, and notice of that lien must
be provided in all sales instruments.
In the event of a sale or transfer of all or
substantially all of the assets of the licensee, the sale
or transfer of the controlling interest of the corporate
stock of the licensee if the licensee is a corporation, or
the sale or transfer of the controlling interest of the partnership
if the licensee is a partnership, the licensee shall, at
least 21 days prior to the sale or transfer, notify the
Comptroller, in writing, of the pending date of sale or
transfer so as to permit the Comptroller to audit the books
and records of the licensee. The audit must be commenced
within 10 business days after the receipt of the notification
and completed within the 21-day notification period unless
the Comptroller notifies the licensee during that period
that there is a basis for determining a deficiency which
will require additional time to finalize. The sale or
transfer may not be completed by the licensee unless and
until:
(i) the Comptroller has completed the audit of the | ||
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(ii) any delinquency existing in the trust funds has | ||
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(iii) the Comptroller issues a license upon | ||
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For purposes of this Section, a person, firm,
corporation, partnership, or institution that acquires the
licensee through a real estate foreclosure is subject
to the provisions of this Section.
(Source: P.A. 92-419, eff. 1-1-02.)
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