Illinois General Assembly - Full Text of SB2234
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Full Text of SB2234  103rd General Assembly

SB2234 103RD GENERAL ASSEMBLY

  
  

 


 
103RD GENERAL ASSEMBLY
State of Illinois
2023 and 2024
SB2234

 

Introduced 2/10/2023, by Sen. Laura Ellman

 

SYNOPSIS AS INTRODUCED:
 
New Act
815 ILCS 505/2BBBB new

    Creates the Small Business Truth in Lending Act. Sets forth provisions concerning disclosure requirements for sales-based financing, closed-end commercial financing, open-end commercial financing, factoring transactions, renewal financing, and other forms of financing. Provides that all commercial financing shall include a clear and conspicuous notice on how to file a complaint with the Department of Financial and Professional Regulation. Provides that the Department may adopt rules. Provides that upon a finding by the Secretary of Financial and Professional Regulation that a provider has violated the provisions or rules, the provider shall be ordered to pay the Department a civil penalty for each violation of the provisions or any rule not to exceed $10,000 for each violation, or if a violation is willful, $20,000 for each violation. Sets forth provisions concerning cease and desist orders, injunctions, investigation and examination, civil actions, violations, and registration. Provides that a violation of the provisions constitutes an unlawful practice in violation of the Consumer Fraud and Deceptive Business Practices Act. Defines terms. Makes a conforming change in the Consumer Fraud and Deceptive Business Practices Act. Effective immediately.


LRB103 28770 BMS 55153 b

 

 

A BILL FOR

 

SB2234LRB103 28770 BMS 55153 b

1    AN ACT concerning regulation.
 
2    Be it enacted by the People of the State of Illinois,
3represented in the General Assembly:
 
4    Section 1. Short title. This Act may be cited as the Small
5Business Truth in Lending Act.
 
6    Section 3. Applicability. This Act applies to transactions
7occurring on or after January 1, 2024.
 
8    Section 5. Purpose and construction.
9    (a) The purpose of this Act is to protect business owners
10from predatory business loans.
11    (b) This Act shall be liberally construed to effectuate
12its purpose.
 
13    Section 10. Definitions. As used in this Act:
14    "Commercial financing" means open-end financing,
15closed-end financing, sales-based financing, factoring
16transaction, or another form of financing that the recipient
17does not intend to use the proceeds of primarily for personal,
18family, or household purposes. For purposes of determining
19whether a financing is a commercial financing, the provider
20may rely on any statement of intended purposes or on
21electronic signatures or consents by the recipient. The

 

 

SB2234- 2 -LRB103 28770 BMS 55153 b

1statement may be a separate statement signed by the recipient;
2may be contained in the financing application, financing
3agreement, or other document signed or consented to by the
4recipient; or may be provided orally by the recipient so long
5as it is documented in the recipient's application file by the
6provider. The provider shall not be required to ascertain that
7the proceeds of a commercial financing are used in accordance
8with the recipient's statement of intended purposes.
9    "Closed-end financing" means a closed-end extension of
10credit, secured or unsecured, recourse or nonrecourse,
11including equipment financing that does not meet the
12definition of a lease under Section 2A-103 of the Uniform
13Commercial Code, that the recipient does not intend to use the
14proceeds of primarily for personal, family, or household
15purposes. "Closed-end financing" includes financing with an
16established principal amount and duration.
17    "Department" means the Department of Financial and
18Professional Regulation.
19    "Factoring transaction" means an accounts receivable
20purchase transaction that includes an agreement to purchase,
21transfer, or sell a legally enforceable claim for payment held
22by a recipient for goods the recipient has supplied or
23services the recipient has rendered that have been ordered but
24for which payment has not yet been made.
25    "Finance charge" means the cost of financing as a dollar
26amount. "Finance charge" includes any charge payable directly

 

 

SB2234- 3 -LRB103 28770 BMS 55153 b

1or indirectly by the recipient and imposed directly or
2indirectly by the provider as an incident to or a condition of
3the extension of financing. "Finance charge" includes all
4charges that would be included under 12 CFR 1026.4 as if the
5transaction were subject to 12 CFR 1026.4. "Finance charge"
6includes any charges as determined by the Secretary. For the
7purposes of an open-end financing, "finance charge" means the
8maximum amount of credit available to the recipient, in each
9case, that is drawn and held for the duration of the term or
10draw period. For the purposes of a factoring transaction,
11"finance charge" includes the discount taken on the face value
12of the accounts receivable.
13    "Open-end financing" means an agreement for one or more
14extensions of open-end credit, secured or unsecured, that the
15recipient does not intend to use the proceeds of primarily for
16personal, family, or household purposes. "Open-end financing"
17includes credit extended by a provider under a plan in which:
18(i) the provider reasonably contemplates repeated
19transactions; (ii) the provider may impose a finance charge
20from time to time on an outstanding unpaid balance; and (iii)
21the amount of credit that may be extended to the recipient
22during the term of the plan is generally made available to the
23extent that any outstanding balance is repaid.
24    "Person" means an individual, entity, corporation,
25partnership, limited liability company, joint venture,
26association, joint stock company, trust, or unincorporated

 

 

SB2234- 4 -LRB103 28770 BMS 55153 b

1organization including, but not limited to, a sole
2proprietorship.
3    "Provider" means a person who extends a specific offer of
4commercial financing to a recipient. Unless otherwise exempt,
5"provider" includes a person who solicits and presents
6specific offers of commercial financing on behalf of a third
7party. For purposes of determining whether a financing is a
8commercial financing, the mere extension of a specific offer
9or provision of disclosures for a commercial financing is not
10sufficient to conclude that a provider is originating, making,
11funding, or providing commercial financing.
12    "Recipient" means a person who applies for commercial
13financing and is made a specific offer of commercial financing
14by a provider or an authorized representative of such person.
15"Recipient" does not include a person acting as a broker in a
16transaction they broker.
17    "Sales-based financing" means a transaction that is repaid
18by the recipient to the provider, over time, as a percentage of
19sales or revenue, in which the payment amount may increase or
20decrease according to the volume of sales made or revenue
21received by the recipient or a transaction that includes a
22true-up mechanism where the financing is repaid as a fixed
23payment but provides for a reconciliation process that adjusts
24the payment to an amount that is a percentage of sales or
25revenue.
26    "Secretary" means the Secretary of Financial and

 

 

SB2234- 5 -LRB103 28770 BMS 55153 b

1Professional Regulation or a person authorized by the
2Secretary.
3    "Specific offer" means the specific terms of commercial
4financing, including price or amount, that is quoted to a
5recipient based on information obtained from or about the
6recipient, that, if accepted by a recipient, shall be binding
7on the provider, as applicable, subject to any specific
8requirements stated in such terms.
 
9    Section 15. Exemptions. This Act does not apply to, and
10shall not place any additional requirements or obligations
11upon, any of the following:
12        (1) A bank, trust company, or industrial loan company
13    doing business under the authority of, or in accordance
14    with, a license, certificate, or charter issued by the
15    United States, this State, or any other state, district,
16    territory, or commonwealth of the United States that is
17    authorized to transact business in this State.
18        (2) A federally chartered savings and loan
19    association, federal savings bank, or federal credit union
20    that is authorized to transact business in this State.
21        (3) A savings and loan association, savings bank, or
22    credit union organized under the laws of this State or any
23    other state that is authorized to transact business in
24    this State.
25        (4) A person acting in its capacity as a technology

 

 

SB2234- 6 -LRB103 28770 BMS 55153 b

1    services provider, such as licensing software and
2    providing support services, to an entity exempt under this
3    Section for use as part of the exempt entity's commercial
4    financing program, if such person has no interest,
5    arrangement, or agreement to purchase any interest in the
6    commercial financing extended by the exempt entity in
7    connection with such program.
8        (5) A lender regulated under the federal Farm Credit
9    Act, 12 U.S.C. 2001 et seq.
10        (6) A commercial financing transaction secured by real
11    property.
12        (7) A lease as defined in Section 2A-103 of the
13    Uniform Commercial Code.
14        (8) Any person or provider who makes no more than 5
15    commercial financing transactions in this State in a
16    12-month period.
17        (9) An individual commercial financing transaction in
18    an amount over $2,500,000.
19        (10) A commercial financing transaction in which the
20    recipient is a vehicle dealer subject to Section 5-101 or
21    5-102 of the Illinois Vehicle Code, an affiliate of such a
22    dealer, a rental vehicle company as defined in Section 10
23    of the Renter's Financial Responsibility and Protection
24    Act, or an affiliate of such a company pursuant to a
25    commercial financing agreement or commercial open-end
26    credit plan of at least $50,000, including any commercial

 

 

SB2234- 7 -LRB103 28770 BMS 55153 b

1    loan made pursuant to such a commercial financing
2    transaction.
 
3    Section 20. Sales-based financing disclosure requirements.
4A provider subject to this Act shall provide the following
5disclosures to a recipient, according to formatting prescribed
6by the Secretary, if any, at the time of extending a specific
7offer of sales-based financing:
8        (1) The total amount of the commercial financing, and,
9    if different from the financing amount, the disbursement
10    amount after any amount deducted or withheld at
11    disbursement.
12        (2) The finance charge.
13        (3) The estimated annual percentage rate, using the
14    words annual percentage rate or the abbreviation "APR",
15    expressed as a yearly rate, inclusive of any fees and
16    finance charges, and calculated in accordance with the
17    federal Truth in Lending Act, Regulation Z, 12 CFR
18    1026.22, based on the estimated term of repayment and the
19    projected periodic payment amounts, regardless of whether
20    such act or such rule would require such a calculation.
21    The estimated term of repayment and the projected periodic
22    payment amounts shall be calculated based on the
23    projection of the recipient's sales, which may be referred
24    to as the projected sales volume. The projected sales
25    volume may be calculated using the historical method or

 

 

SB2234- 8 -LRB103 28770 BMS 55153 b

1    the opt-in method. The provider shall provide notice to
2    the Secretary on which method the provider intends to use
3    across all instances of sales-based financing offered in
4    calculating the estimated annual percentage rate pursuant
5    to this Section, according to the following:
6            (i) A provider using the historical method shall
7        use an average historical volume of sales or revenue
8        by which the financing's payment amounts are based and
9        the estimated annual percentage rate is calculated.
10        The provider shall fix the historical time period used
11        to calculate the average historical volume and use
12        such period for all disclosure purposes for all
13        sales-based financing products offered. The fixed
14        historical time period shall either be the preceding
15        time period from the specific offer or, alternatively,
16        the provider may use average sales for the same number
17        of months with the highest sales volume within the
18        past 12 months. The fixed historical time period shall
19        be no less than one month and shall not exceed 12
20        months.
21            (ii) A provider using the opt-in method shall
22        determine the estimated annual percentage rate, the
23        estimated term, and the projected payments, using a
24        projected sales volume that the provider elects for
25        each disclosure, if they participate in a review
26        process prescribed by the Secretary. A provider shall,

 

 

SB2234- 9 -LRB103 28770 BMS 55153 b

1        on an annual basis, report data to the Secretary of
2        estimated annual percentage rates disclosed to the
3        recipient and actual retrospective annual percentage
4        rates of completed transactions. The report shall
5        contain such information as the Department may adopt
6        by rule as necessary or appropriate for the purpose of
7        making a determination of whether the deviation
8        between the estimated annual percentage rate and
9        actual retrospective annual percentage rates of
10        completed transactions was reasonable. The Secretary
11        shall establish the method of reporting and may, upon
12        a finding that the use of projected sales volume by the
13        provider has resulted in an unacceptable deviation
14        between estimated and actual annual percentage rate,
15        require the provider to use the historical method. The
16        Secretary may consider unusual and extraordinary
17        circumstances impacting the provider's deviation
18        between estimated and actual annual percentage rate in
19        the determination of such finding.
20        (4) The total repayment amount, which is the
21    disbursement amount plus the finance charge.
22        (5) The estimated term is the period of time required
23    for the periodic payments, based on the projected sales
24    volume, to equal the total amount required to be repaid.
25        (6) The payment amounts, based on the projected sales
26    volume:

 

 

SB2234- 10 -LRB103 28770 BMS 55153 b

1            (i) for payment amounts that are fixed, the
2        payment amounts and frequency (e.g., daily, weekly,
3        monthly), and, if the payment frequency is other than
4        monthly, the amount of the average projected payments
5        per month; or
6            (ii) for payment amounts that are variable, a
7        payment schedule or a description of the method used
8        to calculate the amounts and frequency of payments and
9        the amount of the average projected payments per
10        month.
11        (7) A description of all other potential fees and
12    charges not included in the finance charge, including, but
13    not limited to, draw fees, late payment fees, and returned
14    payment fees.
15        (8) If the recipient elects to pay off or refinance
16    the commercial financing before full repayment, the
17    provider must disclose:
18            (i) whether the recipient would be required to pay
19        any finance charges other than interest accrued since
20        their last payment; if so, disclosure of the
21        percentage of any unpaid portion of the finance charge
22        and maximum dollar amount the recipient could be
23        required to pay; and
24            (ii) whether the recipient would be required to
25        pay any additional fees not already included in the
26        finance charge.

 

 

SB2234- 11 -LRB103 28770 BMS 55153 b

1        (9) A description of collateral requirements or
2    security interests, if any.
 
3    Section 25. Closed-end commercial financing disclosure
4requirements. A provider subject to this Act shall provide the
5following disclosures to a recipient, according to formatting
6prescribed by the Secretary, if any, at the time of extending a
7specific offer for closed-end financing:
8        (1) The total amount of the commercial financing, and,
9    if different from the financing amount, the disbursement
10    amount after any amount deducted or withheld at
11    disbursement.
12        (2) The finance charge.
13        (3) The annual percentage rate, using only the words
14    annual percentage rate or the abbreviation "APR",
15    expressed as a yearly rate, inclusive of any fees and
16    finance charges that cannot be avoided by a recipient, and
17    calculated in accordance with the federal Truth in Lending
18    Act, Regulation Z, 12 CFR 1026.22, regardless of whether
19    such act or such rule would require such a calculation.
20        (4) The total repayment amount, which is the
21    disbursement amount plus the finance charge.
22        (5) The term of the financing.
23        (6) The payment amounts:
24            (i) for payment amounts that are fixed, the
25        payment amounts and frequency (e.g., daily, weekly,

 

 

SB2234- 12 -LRB103 28770 BMS 55153 b

1        monthly), and, if the term is longer than one month,
2        the average monthly payment amount; or
3            (ii) for payment amounts that are variable, a full
4        payment schedule or a description of the method used
5        to calculate the amounts and frequency of payments,
6        and, if the term is longer than one month, the
7        estimated average monthly payment amount.
8        (7) A description of all other potential fees and
9    charges that can be avoided by the recipient, including,
10    but not limited to, late payment fees and returned payment
11    fees.
12        (8) If the recipient elects to pay off or refinance
13    the commercial financing before full repayment, the
14    provider must disclose:
15            (i) whether the recipient would be required to pay
16        any finance charges other than interest accrued since
17        their last payment; if so, disclosure of the
18        percentage of any unpaid portion of the finance charge
19        and maximum dollar amount the recipient could be
20        required to pay; and
21            (ii) whether the recipient would be required to
22        pay any additional fees not already included in the
23        finance charge.
24        (9) A description of collateral requirements or
25    security interests, if any.
 

 

 

SB2234- 13 -LRB103 28770 BMS 55153 b

1    Section 30. Open-end commercial financing disclosure
2requirements. A provider subject to this Act shall provide the
3following disclosures to a recipient, according to formatting
4prescribed by the Secretary, if any, at the time of extending a
5specific offer for open-end financing:
6        (1) The maximum amount of credit available to the
7    recipient (e.g., the credit line amount), and the amount
8    scheduled to be drawn by the recipient at the time the
9    offer is extended, if any, less any amount deducted or
10    withheld at disbursement.
11        (2) The finance charge.
12        (3) The annual percentage rate, using only the words
13    annual percentage rate or the abbreviation "APR",
14    expressed as a nominal yearly rate, inclusive of any fees
15    and finance charges that cannot be avoided by a recipient,
16    and calculated in accordance with the federal Truth in
17    Lending Act, Regulation Z, 12 CFR 1026.22, and based on
18    the maximum amount of credit available to the recipient
19    and the term resulting from making the minimum required
20    payments term as disclosed, regardless of whether such act
21    or such rule would require such a calculation.
22        (4) The total repayment amount, which is the draw
23    amount, less any fees deducted or withheld at
24    disbursement, plus the finance charge. The total repayment
25    amount shall assume a draw amount equal to the maximum
26    amount of credit available to the recipient if drawn and

 

 

SB2234- 14 -LRB103 28770 BMS 55153 b

1    held for the duration of the term or draw period.
2        (5) The term of the plan, if applicable, or the period
3    over which a draw is amortized.
4        (6) The payment frequency and amounts, based on the
5    assumptions used in the calculation of the annual
6    percentage rate, including a description of payment amount
7    requirements such as a minimum payment amount, and if the
8    payment frequency is other than monthly, the amount of the
9    average projected payments per month. For payment amounts
10    that are variable, the provider should include a payment
11    schedule or a description of the method used to calculate
12    the amounts and frequency of payments and the estimated
13    average monthly payment amount.
14        (7) A description of all other potential fees and
15    charges that can be avoided by the recipient, including,
16    but not limited to, draw fees, late payment fees, and
17    returned payment fees.
18        (8) Were the recipient to elect to pay off or
19    refinance the commercial financing before full repayment,
20    the provider must disclose:
21            (i) whether the recipient would be required to pay
22        any finance charges other than interest accrued since
23        their last payment; if so, disclosure of the
24        percentage of any unpaid portion of the finance charge
25        and maximum dollar amount the recipient could be
26        required to pay; and

 

 

SB2234- 15 -LRB103 28770 BMS 55153 b

1            (ii) whether the recipient would be required to
2        pay any additional fees not already included in the
3        finance charge.
4        (9) A description of collateral requirements or
5    security interests, if any.
 
6    Section 35. Factoring transaction disclosure requirements.
7A provider subject to this Act shall provide the following
8disclosures to a recipient, according to formatting prescribed
9by the Secretary, if any, at the time of extending a specific
10offer for a factoring transaction:
11        (1) The amount of the receivables purchase price paid
12    to the recipient, and, if different from the purchase
13    price, the disbursement amount after any amount deducted
14    or withheld at disbursement.
15        (2) The finance charge.
16        (3) The estimated annual percentage rate, using that
17    term, calculated according to the federal Truth in Lending
18    Act, Regulation Z, 12 CFR 1026 Appendix J, as a "single
19    advance, single payment transaction", regardless of
20    whether such act or such rule would require such a
21    calculation. To calculate the estimated annual percentage
22    rate, the purchase amount is considered the financing
23    amount, the purchase amount minus the finance charge is
24    considered the payment amount, and the term is established
25    by the payment due date of the receivables. As an

 

 

SB2234- 16 -LRB103 28770 BMS 55153 b

1    alternate method of establishing the term, the provider
2    may estimate the term for a factoring transaction as the
3    average payment period based on its historical data over a
4    period not to exceed the previous 12 months, concerning
5    payment invoices paid by the party or parties owing the
6    accounts receivable in question.
7        (4) The total payment amount, which is the purchase
8    amount plus the finance charge.
9        (5) A description of all other potential fees and
10    charges that can be avoided by the recipient.
11        (6) A description of the receivables purchased and any
12    additional collateral requirements or security interests.
 
13    Section 40. Other forms of financing disclosure
14requirements. The Secretary may require disclosure by a
15provider extending a specific offer of commercial financing
16which is not an open-end financing, closed-end financing,
17sales-based financing, or factoring transaction but otherwise
18meets the definition of commercial financing. Subject to such
19rules by the Secretary, a provider subject to this Act shall
20provide the following disclosures to a recipient, according to
21formatting prescribed by the Secretary, if any, at the time of
22extending a specific offer of other forms of financing:
23        (1) The total amount of the commercial financing, and,
24    if different from the financing amount, the disbursement
25    amount after any fees deducted or withheld at

 

 

SB2234- 17 -LRB103 28770 BMS 55153 b

1    disbursement.
2        (2) The finance charge.
3        (3) The annual percentage rate, using only the words
4    annual percentage rate or the abbreviation "APR",
5    expressed as a yearly rate, inclusive of any fees and
6    finance charges, and calculated in accordance with the
7    relevant sections of the federal Truth in Lending Act,
8    Regulation Z, 12 CFR 1026.22, or this Act, regardless of
9    whether such act or such rule would require such a
10    calculation.
11        (4) The total repayment amount which is the
12    disbursement amount plus the finance charge.
13        (5) The term of the financing.
14        (6) The payment amounts:
15            (i) for payment amounts that are fixed, the
16        payment amounts and frequency (e.g., daily, weekly,
17        monthly), and the average monthly payment amount; or
18            (ii) for payment amounts that are variable, a
19        payment schedule or a description of the method used
20        to calculate the amounts and frequency of payments,
21        and the estimated average monthly payment amount.
22        (7) A description of all other potential fees and
23    charges that can be avoided by the recipient, including,
24    but not limited to, late payment fees and returned payment
25    fees.
26        (8) If the recipient elects to pay off or refinance

 

 

SB2234- 18 -LRB103 28770 BMS 55153 b

1    the commercial financing before full repayment, the
2    provider must disclose:
3            (i) whether the recipient would be required to pay
4        any finance charges other than interest accrued since
5        their last payment; if so, disclosure of the
6        percentage of any unpaid portion of the finance charge
7        and maximum dollar amount the recipient could be
8        required to pay; and
9            (ii) whether the recipient would be required to
10        pay any additional fees not already included in the
11        finance charge.
12        (9) A description of collateral requirements or
13    security interests, if any.
 
14    Section 45. Complaint disclosure. All commercial financing
15shall include a clear and conspicuous notice on how to file a
16complaint with the Department.
 
17    Section 50. Disclosure requirements for renewal financing.
18If, as a condition of obtaining the commercial financing, the
19provider requires the recipient to pay off the balance of an
20existing commercial financing from the same provider, then the
21provider must disclose the following:
22        (1) The amount of the new commercial financing that is
23    used to pay off the portion of the existing commercial
24    financing that consists of prepayment charges required to

 

 

SB2234- 19 -LRB103 28770 BMS 55153 b

1    be paid and any unpaid interest expense that was not
2    forgiven at the time of renewal. For financing for which
3    the total repayment amount is calculated as a fixed
4    amount, the prepayment charge is equal to the original
5    finance charge multiplied by the amount of the renewal
6    used to pay off existing financing as a percentage of the
7    total repayment amount, minus any portion of the total
8    repayment amount forgiven by the provider at the time of
9    prepayment. If the amount is more than zero, such amount
10    shall be the answer to the following question: "Does the
11    renewal financing include any amount that is used to pay
12    unpaid finance charge or fees, also known as double
13    dipping? Yes, [enter amount]. If the amount is zero, the
14    answer would be No."
15        (2) If the disbursement amount will be reduced to pay
16    down any unpaid portion of the outstanding balance, then
17    the actual dollar amount by which the disbursement amount
18    will be reduced.
 
19    Section 55. Required signature. The provider shall obtain
20the recipient's signature, which may be fulfilled by an
21electronic signature, on all disclosures required to be
22presented to the recipient by this Act before authorizing the
23recipient to proceed further with the commercial financing
24transaction application.
 

 

 

SB2234- 20 -LRB103 28770 BMS 55153 b

1    Section 60. Additional information. Nothing in this Act
2shall prevent a provider from providing or disclosing
3additional information on a commercial financing being offered
4to a recipient, however, such additional information shall not
5be disclosed as part of the disclosure required by this Act. If
6other metrics of financing cost are disclosed or used in the
7application process of a commercial financing, then these
8metrics shall not be presented as a "rate" if they are not the
9annual interest rate or the annual percentage rate. The term
10"interest", when used to describe a percentage rate, shall
11only be used to describe annualized percentage rates, such as
12the annual interest rate. When a provider states a rate of
13finance charge or a financing amount to a recipient during an
14application process for commercial financing, the provider
15shall also state the rate as an "annual percentage rate",
16using that term or the abbreviation "APR".
 
17    Section 65. Rules. The Department is hereby authorized and
18empowered to adopt such rules as may in the judgment of the
19Secretary be consistent with the purposes of this Act, or
20appropriate for the effective administration of this Act,
21including, but not limited to:
22        (1) Rules in connection with the calculation or
23    determination of any metric required to be disclosed to a
24    recipient.
25        (2) Rules as necessary to develop and prescribe

 

 

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1    disclosure formatting to be used by providers that allows
2    for recipients to easily compare financing options in a
3    clear and conspicuous manner; such rules may include the
4    designation and method for disclosing the information
5    required in this Act or approving adequate forms and
6    methods already used by providers.
7        (3) Rules as may define the terms used in this Act and
8    as may be necessary and appropriate to interpret and
9    implement the provisions of this Act.
10        (4) Rules as may be necessary for the enforcement and
11    administration of this Act.
12        (5) Rules appropriate for the protection of consumers
13    in this State.
14        (6) Rules as may be necessary and appropriate to
15    define improper or fraudulent business practices in
16    connection with commercial financing.
17        (7) Rules as may be necessary to charge and collect
18    fees necessary to cover the costs of administering this
19    Act, including, but not limited to, registration,
20    investigation, and examination fees.
21    The Department may adopt rules pursuant to this Act upon
22this Act becoming law with such rules not to take effect
23earlier than January 1, 2024.
 
24    Section 70. Penalties.
25    (a) Upon a finding by the Secretary that a provider has

 

 

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1violated the provisions of this Act or the rules adopted
2pursuant to this Act, the provider shall be ordered to pay the
3Department a civil penalty for each violation of this Act or
4any rule a sum not to exceed $10,000 for each violation or, if
5such violation is willful, $20,000 for each violation.
6    (b) In addition to any penalty imposed pursuant to
7subsection (a), the Secretary may order additional relief,
8including, but not limited to:
9        (i) restitution;
10        (ii) refund of moneys or return of real property;
11        (iii) disgorgement or compensation for unjust
12    enrichment, with any disgorged amounts returned to the
13    affected businesses, to the extent practicable; and
14        (iv) limits on the activities or functions of the
15    person, including, but not limited to, prohibiting a
16    person from being a provider.
17    (c) The Secretary shall serve notice of the action,
18including, but not limited to, a statement of the reasons for
19the action, either personally or by certified mail. Service by
20certified mail shall be deemed completed when the notice is
21deposited in the U.S. mail.
22    (d) Within 10 days after service of the action, the person
23may request a hearing in writing. The Secretary shall schedule
24a hearing within 90 days after the request for a hearing unless
25otherwise agreed to by the parties.
 

 

 

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1    Section 75. Cease and desist order.
2    (a) The Secretary may issue a cease and desist order if, in
3the opinion of the Secretary, a licensee or other person is
4violating or is about to violate any provision of this Act or
5any rule or requirement imposed in writing by the Department.
6The cease and desist order permitted by this Section may be
7issued before a hearing.
8    (b) The Secretary shall serve notice of his or her action,
9including, but not limited to, a statement of the reasons for
10the action, either personally or by certified mail. Service by
11certified mail shall be deemed completed when the notice is
12deposited in the U.S. mail.
13    (c) Within 10 days after service of the cease and desist
14order, the licensee or other person may request a hearing in
15writing. The Secretary shall schedule a hearing within 90 days
16after the request for a hearing unless otherwise agreed to by
17the parties.
18    (d) The Secretary may include in any cease and desist
19order such orders as may be reasonably necessary to correct,
20eliminate, or remedy the conduct.
21    (e) The powers vested in the Secretary by this Section are
22in addition to any and all other powers and remedies vested in
23the Secretary by law, and nothing in this Section shall be
24construed as requiring that the Secretary shall employ the
25power conferred in this subsection instead of or as a
26condition precedent to the exercise of any other power or

 

 

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1remedy vested in the Secretary.
 
2    Section 80. Injunction. The Secretary may, through the
3Attorney General, bring an action in the circuit court to
4enjoin a person from violating this Act in the name of the
5people of the State of Illinois.
 
6    Section 85. Investigation and examination. The Department
7may investigate or examine providers and persons reasonably
8believed to be providers for compliance with this Act and its
9implementing rules.
 
10    Section 90. Civil action. A civil claim may be asserted
11against a provider for violation of this Act. Additionally, a
12prevailing person other than a provider may be awarded
13reasonable attorney's fees and court costs.
 
14    Section 95. Violations.
15    (a) Nothing in this Act shall be construed to restrict the
16exercise of powers or the performance of the duties that the
17Illinois Attorney General is authorized to exercise or perform
18by law.
19    (b) Any violation of this Act constitutes an unlawful
20practice in violation of the Consumer Fraud and Deceptive
21Business Practices Act.
22    (c) The Illinois Attorney General may enforce a violation

 

 

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1of this Act as an unlawful practice under the Consumer Fraud
2and Deceptive Business Practices Act.
 
3    Section 100. No evasion. An agreement, contract, or
4transaction that is structured to evade this Act shall be
5deemed to be covered by this Act.
 
6    Section 105. Registration.
7    (a) All providers shall be required to pay a registration
8fee of $1,000 to the Department and register with the
9Department in the manner and form directed by the Secretary
10within one year after the effective date of this Act and renew
11the registration each calendar year thereafter in the manner
12and form directed by the Secretary.
13    (b) Before December 1 of each year, a provider must pay to
14the Secretary, and the Department must receive, a registration
15fee of $1,000 for the following calendar year. A provider's
16registration shall automatically expire on January 1 of each
17year unless the registration fee has been paid prior thereto.
18    (c) Any commercial financing made or offered by a provider
19that violates this Section is null and void and no person or
20entity shall have any right to collect, attempt to collect,
21receive, or retain any funded amount or charges related to the
22commercial financing.
 
23    Section 110. Judicial review. All final administrative

 

 

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1decisions of the Department under this Act are subject to
2judicial review under the Administrative Review Law and any
3rules adopted under the Administrative Review Law.
 
4    Section 900. The Consumer Fraud and Deceptive Business
5Practices Act is amended by adding Section 2BBBB as follows:
 
6    (815 ILCS 505/2BBBB new)
7    Sec. 2BBBB. Violations of the Small Business Truth in
8Lending Act. Any person who violates the Small Business Truth
9in Lending Act commits an unlawful practice within the meaning
10of this Act.
 
11    Section 997. Severability. The provisions of this Act are
12severable under Section 1.31 of the Statute on Statutes. If
13any clause, sentence, provision, or part of this Act or its
14application to any person or circumstance is adjudged to be
15unconstitutional or invalid for any reason by any court of
16competent jurisdiction, that judgment shall not impair,
17affect, or invalidate other provisions or applications of this
18Act, which shall remain in full force and effect thereafter.
 
19    Section 999. Effective date. This Act takes effect upon
20becoming law.