SB2456sam002 93RD GENERAL ASSEMBLY

Sen. Kirk W. Dillard

Filed: 3/23/2004

09300SB2456sam002 LRB093 20572 AMC 48967 a

AMENDMENT TO SENATE BILL 2456

AMENDMENT NO. ______. Amend Senate Bill 2456, AS AMENDED, by replacing everything after the enacting clause with the following:

"Section 5. The Illinois State Collection Act of 1986 is amended by changing Section 2 as follows:

(30 ILCS 210/2) (from Ch. 15, par. 152)

Sec. 2. This Act applies to all accounts or claims owed to "State agencies", as that term is defined in the Illinois State Auditing Act, except that the debt collection and write-off provisions of this Act shall not apply to the Illinois State Scholarship Commission in the administration of its student loan programs nor to the Illinois circuit courts in the collection of unpaid court fines, forfeitures, fees, costs, penalties, assessments, surcharges, or restitution. To the extent that some other statute prescribes procedures for collection of particular types of accounts or claims owed to State agencies in conflict with the provisions of this Act, such other statute shall continue in full force and effect. The debt collection and write-off provisions of this Act may be utilized by the General Assembly, the Supreme Court and the several courts of this State, and the constitutionally elected State Officers, at their discretion. However reporting requirements established by the comptroller shall be followed by all State agencies. The provisions of this Act shall be utilized at all times by all departments, agencies, divisions, and offices under the jurisdiction of the Governor.

(Source: P.A. 85-814.)

Section 10. The Collection Agency Act is amended by changing Section 9 and by adding Section 8d as follows:

(225 ILCS 425/8d new)

(Section scheduled to be repealed on January 1, 2006)

Sec. 8d. Collection fees. At the time a past due account is forwarded to a third-party collector, units of Illinois State or local government or Illinois circuit courts may provide for the imposition of a collection fee added to any amounts past due. This collection fee shall be in addition to any other amounts owed to such units of State or local government or the Illinois circuit courts. The collection fee shall be collected under a contract and shall be in addition_to any amounts due. The person owing the past due amount is liable for the collection fee provided for under this Section. The amount of the collection fee is the amount provided by the contract, whether a specified amount or an amount contingent on the amount collected, for compensation of the person with whom the contract is made and any additional court costs or attorney's fees incurred in collecting the amount owed to the State, units of local government or Illinois circuit courts.

(225 ILCS 425/9) (from Ch. 111, par. 2012)

(Section scheduled to be repealed on January 1, 2006)

Sec. 9. (a) The Department may refuse to issue or renew, or may revoke, suspend, place on probation, reprimand or take other disciplinary action as the Department may deem proper, including fines not to exceed $1,000 per licensee per complaint, for any one or any combination of the following causes:

(1) Violations of this Act or of the rules promulgated hereunder.

(2) Conviction of the collection agency or the principals of the agency of any crime under the laws of any U.S. jurisdiction which is a felony, a misdemeanor an essential element of which is dishonesty, or of any crime which directly relates to the practice of the profession.

(3) Making any misrepresentation for the purpose of obtaining a license or certificate.

(4) Habitual or excessive use or addiction to alcohol, narcotics, stimulants or any other chemical agent or drug which results in the inability to practice with reasonable judgment, skill, or safety by any of the principals of a collection agency.

(5) Discipline by another U.S. jurisdiction or foreign nation, if at least one of the grounds for the discipline is the same or substantially equivalent to those set forth in this Act.

(6) A finding by the Department that the licensee, after having his license placed on probationary status, has violated the terms of probation.

(7) Practicing or attempting to practice under a name other than the name as shown on his or her license or any other legally authorized name.

(8) A finding by the Federal Trade Commission that a licensee violated the Federal Fair Debt and Collection Act or its rules.

(9) Failure to file a return, or to pay the tax, penalty or interest shown in a filed return, or to pay any final assessment of tax, penalty or interest, as required by any tax Act administered by the Illinois Department of Revenue until such time as the requirements of any such tax Act are satisfied.

(10) Using or threatening to use force or violence to cause physical harm to a debtor, his family or his property.

(11) Threatening to instigate an arrest or criminal prosecution where no basis for a criminal complaint lawfully exists.

(12) Threatening the seizure, attachment or sale of a debtor's property where such action can only be taken pursuant to court order without disclosing that prior court proceedings are required.

(13) Disclosing or threatening to disclose information adversely affecting a debtor's reputation for credit worthiness with knowledge the information is false.

(14) Initiating or threatening to initiate communication with a debtor's employer unless there has been a default of the payment of the obligation for at least 30 days and at least 5 days prior written notice, to the last known address of the debtor, of the intention to communicate with the employer has been given to the employee, except as expressly permitted by law or court order.

(15) Communicating with the debtor or any member of the debtor's family at such a time of day or night and with such frequency as to constitute harassment of the debtor or any member of the debtor's family. For purposes of this Section the following conduct shall constitute harassment:

(A) Communicating with the debtor or any member of his or her family in connection with the collection of any debt without the prior consent of the debtor given directly to the debt collector, or the express permission of a court of competent jurisdiction, at any unusual time or place or a time or place known or which should be known to be inconvenient to the debtor. In the absence of knowledge of circumstances to the contrary, a debt collector shall assume that the convenient time for communicating with a consumer is after 8 o'clock a.m. and before 9 o'clock p.m. local time at the debtor's location.

(B) The threat of publication or publication of a list of consumers who allegedly refuse to pay debts, except to a consumer reporting agency.

(C) The threat of advertisement or advertisement for sale of any debt to coerce payment of the debt.

(D) Causing a telephone to ring or engaging any person in telephone conversation repeatedly or continuously with intent to annoy, abuse, or harass any person at the called number.

(16) Using profane, obscene or abusive language in communicating with a debtor, his or her family or others.

(17) Disclosing or threatening to disclose information relating to a debtor's indebtedness to any other person except where such other person has a legitimate business need for the information or except where such disclosure is regulated by law.

(18) Disclosing or threatening to disclose information concerning the existence of a debt which the debt collector knows to be reasonably disputed by the debtor without disclosing the fact that the debtor disputes the debt.

(19) Engaging in any conduct which the Director finds was intended to cause and did cause mental or physical illness to the debtor or his or her family.

(20) Attempting or threatening to enforce a right or remedy with knowledge or reason to know that the right or remedy does not exist.

(21) Failing to disclose to the debtor or his or her family the corporate, partnership or proprietary name, or other trade or business name, under which the debt collector is engaging in debt collections and which he or she is legally authorized to use.

(22) Using any form of communication which simulates legal or judicial process or which gives the appearance of being authorized, issued or approved by a governmental agency or official or by an attorney at law when it is not.

(23) Using any badge, uniform, or other indicia of any governmental agency or official except as authorized by law.

(24) Conducting business under any name or in any manner which suggests or implies that a debt collector is bonded if such collector is or is a branch of or is affiliated with any governmental agency or court if such collector is not.

(25) Failing to disclose, at the time of making any demand for payment, the name of the person to whom the claim is owed and at the request of the debtor, the address where payment is to be made and the address of the person to whom the claim is owed.

(26) Misrepresenting the amount of the claim or debt alleged to be owed.

(27) Representing that an existing debt may be increased by the addition of attorney's fees, investigation fees or any other fees or charges when such fees or charges may not legally be added to the existing debt.

(28) Representing that the debt collector is an attorney at law or an agent for an attorney if he is not.

(29) Except as provided in Section 8d, collecting Collecting or attempting to collect any interest or other charge or fee in excess of the actual debt or claim unless such interest or other charge or fee is expressly authorized by the agreement creating the debt or claim unless expressly authorized by law or unless in a commercial transaction such interest or other charge or fee is expressly authorized in a subsequent agreement. If a contingency or hourly fee arrangement (i) is established under an agreement between a collection agency and a creditor to collect a debt and (ii) is paid by a debtor pursuant to a contract between the debtor and the creditor, then that fee arrangement does not violate this Section unless the fee is unreasonable. The Department shall determine what constitutes a reasonable collection fee.

(30) Communicating or threatening to communicate with a debtor when the debt collector is informed in writing by an attorney that the attorney represents the debtor concerning the claim, unless authorized by the attorney. If the attorney fails to respond within a reasonable period of time, the collector may communicate with the debtor. The collector may communicate with the debtor when the attorney gives his consent.

(31) Engaging in dishonorable, unethical, or unprofessional conduct of a character likely to deceive, defraud, or harm the public.

(b) The Department shall deny any license or renewal authorized by this Act to any person who has defaulted on an educational loan guaranteed by the Illinois State Scholarship Commission; however, the Department may issue a license or renewal if the person in default has established a satisfactory repayment record as determined by the Illinois State Scholarship Commission.

No debt collector while collecting or attempting to collect a debt shall engage in any of the Acts specified in this Section, each of which shall be unlawful practice.

(Source: P.A. 91-768, eff. 1-1-01.)".