HB4094 95TH GENERAL ASSEMBLY

LRB095 12071 MJR 35847 b

95TH GENERAL ASSEMBLY
State of Illinois
2007 and 2008
HB4094

Introduced , by Rep. John A. Fritchey

SYNOPSIS AS INTRODUCED:

New Act

Creates the Debt Settlement Act. Provides that no person shall engage in the business of debt settlement in the State without a license. Provides that an applicant for a license to engage in the business of debt settlement shall file an application with the Director of Financial Institutions that contains specified provisions. Contains provisions concerning the renewal of licenses. Requires a licensee to create, maintain, and preserve accurate and complete books relating to the licensee's business. Contains provisions concerning contract fees. Provides for debt settlement contract requirements. Specifies the functions required to be performed and acts that are prohibited by a debt settlement provider. Provides that without limiting the generality of the Act and other applicable laws, the debt settlement provider, manager, or an employee of the debt settlement provider (except a licensed attorney who provides legal services in an attorney-client relationship or who is otherwise authorized to practice law in the State) shall not perform specified actions. Provides that the Attorney General or the prosecuting attorney of any county within the State may bring an action in the name of the State against any person to restrain and prevent any violation of the Act and specifies penalties for violations of the Act.

A BILL FOR

AN ACT concerning regulation.

Be it enacted by the People of the State of Illinois, represented in the General Assembly:

Section 1. Short title. This Act may be cited as the Debt Settlement Act.

Section 5. Definitions. In this Act:

"Director" means the Director of Financial Institutions.

"Debt settlement provider" means any person or entity engaging in or holding itself out as engaging in the business of debt settlement for compensation. The term shall not include any of the following:

(1) Attorneys-at-law, escrow agents, accountants, broker dealers in securities, or investment advisors in securities, while performing services during the course of the practice of their professions.

(2) Any person, partnership, association, or corporation doing business under, and as permitted by, any law of this State or any federal law relating to banks, consumer finance businesses, consumer loan companies, trust companies, mutual savings banks, savings and loan associations, building and loan associations, credit unions, crop credit associations, development credit corporations, industrial development corporations, title insurance companies, or insurance companies.

(3) Persons who, as employees on a regular salary or wage of an employer not engaged in the business of debt settlement, perform credit services for their employer.

(4) Public officers while acting in their official capacities and persons acting under court order.

(5) Any person while performing services incidental to the dissolution, winding up, or liquidating of a partnership, corporation, or other business enterprise.

"Debt settlement service" means the negotiation, adjustment, or settlement of a consumer's debt with the consumer's creditor without holding or receiving the debtor's funds or property and without paying the debtor's funds to, or distributing the debtor's property among, creditors.

Section 10. License required.

(a) No person shall engage in the business of debt settlement in this State without a license. An applicant for a license to engage in the business of debt settlement shall file an application with the Director in writing and under oath that includes all of the following:

(1) The name and exact address of the applicant and the name and address of each of the following, as applicable:

(A) If the applicant is a corporation, its officers and directors.

(B) If the applicant is an association, its officers and directors.

(C) If the applicant is a partnership, its partners.

(D) If the applicant is a limited liability company, its manager or managers.

(E) If the applicant is any other legal entity, its manager or other person designated to control the operation of that legal entity.

(2) A copy of a certificate of an assumed name, if applicable.

(3) One or more of the following, as applicable:

(A) If the applicant is a corporation, a copy of the articles of incorporation.

(B) If the applicant is an association, a copy of the organizational documents of the association.

(C) If the applicant is a partnership, a copy of the partnership agreement.

(D) If the applicant is a limited liability company, a copy of the articles of organization.

(4) The telephone number, email address, and website URL of the applicant.

(5) The address of each office in this State, if any, where the applicant will provide debt settlement services.

(6) A description or sample forms of the applicant's budget analysis and initial budget plan, including any form or electronic model, that are used to evaluate the financial condition of the debtors.

(7) A copy of the agreement form that the applicant will use with the debtor.

(b) When filing the application, the applicant shall do all of the following:

(1) Pay to the Director an initial license fee of $100.

(2) Provide evidence of insurance in the amount of $250,000 against the risks of dishonesty, fraud, theft, and other misconduct on the part of the applicant or a director, employee, or agent of the applicant. The insurance shall be issued by an insurance company authorized to do business in this State and rated at least by a nationally recognized rating organization. The insurance shall have no greater than a $10,000 deductible and shall cover claims filed by the applicant, the individuals who have agreements with the applicant, and this State. The insurance shall not be subject to cancellation by the applicant without a replacement policy in place.

(c) Unless surrendered, revoked, or suspended, a license issued under this Act expires on December 31 of the year for which it is issued. A licensee may renew a license before the expiration date as provided in this Act.

(d) A licensee shall create, maintain, and preserve accurate and complete books and records relating to the licensee's business. A licensee shall maintain the books and records according to generally accepted accounting principles. A licensee or an applicant shall notify the Director in writing of the address where the books and records are kept. If a licensee changes the location of the books and records, the licensee shall notify the Director in writing within 10 business days after the change. The Director may prescribe by rule or order the form and contents of books and records relating to a licensee's business.

(e) An applicant shall file a financial statement with an application for a debt settlement license. The Director may require an audit or review of the financial statement by an independent certified public accountant.

(f) If a licensee has a board of directors or the equivalent, the Director shall not require that the licensee provide information concerning a member of the board of directors or the equivalent if that member does not receive a salary, stock dividend, or other financial benefit from that corporation other than reimbursement of the actual expenses incurred in carrying out the duties of a director of that corporation.

(g) Upon receiving the application and determining that the applicant has complied with subsection (b) of this Section, the Director shall investigate the applicant's responsibility, experience, character, and general fitness. If after investigation the Director believes that the business will be operated fairly and honestly within the provisions of this Act, the Director shall issue a license to the applicant. The investigation of the applicant shall at least include investigation of the following, as applicable:

(1) If the applicant is a corporation, its officers and directors.

(2) If the applicant is a partnership, its partners.

(3) If the applicant is an association, its officers.

(4) If the applicant is a limited liability company, its manager or managers.

(5) If the applicant is any other legal entity, its manager or other person designated to control the operation of that legal entity.

(h) A license shall not be issued if the investigation reveals one or more of the following:

(1) That an individual investigated did any of the following:

(A) Was ever convicted of a crime involving moral turpitude, including forgery, embezzlement, obtaining money under false pretenses, larceny, extortion, conspiracy to defraud, or any other similar offense.

(B) Violated or failed to comply with this Article or a rule adopted pursuant to this Act.

(C) Had a license to engage in the business of debt settlement revoked or suspended for any reason other than failure to pay licensing fees in this State or another state.

(D) Defaulted in the payment of money collected for others, including the discharge of debts through bankruptcy proceedings. The Director may, at the Director's discretion, waive this restriction if provided with evidence of justifiable cause for the bankruptcy, plus convincing evidence of the fitness of the bankrupt party to carry out that party's duties and responsibilities pursuant to this Act.

(2) An individual applicant is not at least 18 years of age and a citizen of the United States.

(3) An applicant that is a partnership, corporation, limited liability company, association, or other legal entity required by law to obtain authority to do business in this State has not been granted authority to do business in this State.

(i) If the applicant holds a license or certificate of registration in another state authorizing it to provide debt settlement services, the provider may submit a copy of that license or certificate in place of the application prescribed in this Act. The Director shall accept the license or certificate from the other state if the application process in the other state contains information substantially similar to or more comprehensive than that required in an application submitted in this State.

Section 15. Contract fees. By contract, a debt settlement provider shall not charge fees in an aggregate amount exceeding 20% of the principal amount of the debt. In the event of cancellation of the contract by the debtor prior to its successful completion, the debt settlement provider shall refund 50% of any collected fees associated with the amount of debt remaining unsettled at the time of the termination of the contract.

Section 20. Debt settlement contract requirements. Every contract between a debt settlement provider and a debtor shall:

(1) List every debt to be handled with the creditor's name and disclose the approximate total of all known debts.

(2) Provide fees charged by the debt settlement provider for services.

(3) Disclose the approximate number and amount of savings required to pay the debts in full.

(4) Disclose the name and address of the debt settlement provider and of the debtor.

(5) State that the debt settlement provider shall notify the debtor, in writing, within five days of notification to the debt settlement provider by a creditor that the creditor refuses to negotiate with the debt settlement provider pursuant to the contract.

(6) Contain the following notice within the contract or agreement to engage the services of the debt settlement provider in a form substantially similar to the following:

"NOTICE TO DEBTOR:

Do not sign this contract before you read it.

Do not sign this contract if any spaces intended for

the agreed terms are left blank.

You are entitled to a copy of this contract at the time

you sign it.

You may cancel this contract within three days of

signing the contract by sending notice of cancellation by

certified mail, return receipt requested, to the debt

settlement provider at his or her address shown on the

contract, which notice shall be posted not later than

midnight of the third day (excluding Sundays and the

holidays) or by fax following your signing of the

contract."

(7) Contain any other provision or disclosure that is necessary for the protection of the debtor and the proper conduct of business by the debt settlement provider.

Section 25. Debt settlement provider; functions required to be performed. Every debt settlement provider shall perform the following functions:

(1) Make a permanent record of all payments by debtors. The record may be in an electronic format. No person shall intentionally make any false entry in any record or intentionally mutilate, destroy, or otherwise dispose of any record. Records shall at all times be open for inspection by the Attorney General or the Attorney General's authorized agent and shall be preserved (i) as original records, (ii) in an electronic format, or (iii) in a form of duplication, for at least 6 years after making the final entry therein.

(2) Sign and deliver a completed copy of the contract between the debt settlement provider and a debtor to the debtor immediately after the debtor executes the contract.

(3) Notify the debtor of any offer of settlement made by the creditor no later than 5 days of receiving the offer.

Section 30. Debt settlement provider; prohibited acts. A debt settlement provider shall not do any of the following:

(1) Take any contract or other instrument which has any blank spaces when signed by the debtor.

(2) Receive or charge any fee in the form of a promissory note or other promise to pay.

(3) Receive or accept any mortgage or other security for any fee, whether as to real or personal property.

(4) Lend money or credit.

(5) Take any confession of the judgment or power of attorney to confess judgment against the debtor or appear as the debtor in any judicial proceeding.

(6) Take, concurrent with the signing of the contract or as a part of the contract or the application for the contract, a release of any obligation to be performed on the part of the debt settlement provider.

(7) Advertise, display, distribute, broadcast, or televise services or permit services to be displayed, advertised, distributed, broadcasted, or televised in any manner in which a false, misleading, or deceptive statement or representation is made with regard to either (i) the services to be performed by the debt settlement provider or (ii) the fees to be charged by the debt settlement provider.

(8) Receive any cash, fee, gift, bonus, premium, reward, or other compensation from any person other than the debtor or a person in the debtor's behalf in connection with that person's activities as a debt settlement provider.

(9) Disclose to anyone the debtors who have contracted with the debt settlement provider other than a debtor's own creditors or the provider's agents. The debt settlement provider shall not disclose the creditors of a debtor to anyone other than the debtor or another creditor of the debtor and then only to the extent necessary to secure the cooperation of the creditor in a debt settlement plan.

Section 35. Legal services; prohibited actions.

(a) Without limiting the generality of this Act and other applicable laws, the debt settlement provider, manager, or an employee of the debt settlement provider shall not do any of the following:

(1) Prepare, advise, or sign a release of attachment or garnishment, stipulation, affidavit for exemption, compromise agreement, or other legal or court document, nor furnish legal advice or perform legal services of any kind.

(2) Represent that the debt settlement provider is authorized or competent to furnish legal advice or perform legal services.

(3) Communicate with the debtor or creditor or any other person in the name of any attorney or upon the stationery of any attorney or prepare any form or instrument which only attorneys are authorized to prepare.

(b) This Section does not apply to a licensed attorney who provides legal services in an attorney-client relationship or who is otherwise authorized to practice law in this State.

Section 40. Violations and sanctions.

(a) Notwithstanding any other actions which may be brought under the laws of this State, the Attorney General or the prosecuting attorney of any county within the State may bring an action in the name of the State against any person to restrain and prevent any violation of this Act.

(b) The Attorney General may accept an assurance of discontinuance of any act or practice deemed in violation of this Article in the enforcement thereof from any person engaging in, or who has engaged in, the act or practice. The assurance shall be in writing and be filed with and subject to the approval of the superior court of the county in which the alleged violator resides or has a principal place of business or, in the alternative, in Cook County.

(c) Any person who violates an injunction issued pursuant to this Act shall forfeit and pay a civil penalty of not more than five thousand dollars $5,000. The clear proceeds of civil penalties assessed pursuant to this subsection (c) shall be credited to the General Professions Dedicated Fund.

Section 45. Saving prior contracts. The provisions of this Act shall not invalidate or make unlawful contracts between debt settlement providers and debtors executed lawfully prior to the effective date of this Act.