Illinois General Assembly - Full Text of SB2865
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Full Text of SB2865  99th General Assembly


Sen. Jacqueline Y. Collins

Filed: 4/6/2016





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2    AMENDMENT NO. ______. Amend Senate Bill 2865 by replacing
3everything after the enacting clause with the following:
4    "Section 1. Short title. This Act may be cited as the Small
5Business Lending Act.
6    Section 5. Findings. The General Assembly finds the
8        (1) Small businesses are critical to the Illinois
9    economy and job creation throughout the State.
10        (2) Small businesses rely on financing to grow and such
11    financing can be provided by a variety of lenders.
12        (3) Transparency in financing terms protects the
13    Illinois economy by helping small businesses avoid
14    defaulting on loans provided by lenders.
15    Section 10. Definitions. In this Act:



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1    "Borrower" means a sole proprietor, partnership,
2association, limited liability company, corporation, or other
3entity that executes, or seeks to execute, a contract with a
4lender for a small business loan.
5    "Commercial loan" means a loan of a principal amount or any
6loan under an open-end credit program, whether secured by
7either real or personal property, or both, or unsecured, the
8proceeds of which are intended by the borrower for use
9primarily for purposes other than personal, family, or
10household purposes.
11    "Department" means the Department of Financial and
12Professional Regulation.
13    "Lender" and "licensee" means a person or entity, including
14an affiliate or subsidiary of a lender or licensee, that offers
15or makes a small business loan, buys a whole or partial
16interest in a small business loan, arranges a small business
17loan for a third party, or acts as an agent for a third party in
18making a small business loan, regardless of whether approval,
19acceptance, or ratification by the third party is necessary to
20create a legal obligation for the third party, and includes any
21other person or entity if the Department determines that the
22person or entity is engaged in a transaction that is in
23substance a disguised small business loan or a subterfuge for
24the purpose of avoiding this Act.
25    "Merchant cash advance" means a payment to a borrower in
26exchange for an agreed-upon percentage or amount of future



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1earnings accrued by the borrower.
2    "Monthly net revenue" means monthly gross revenue minus
3monthly expenses, including the costs of goods sold, operating
4expenses, and debt service. "Debt service" includes, but is not
5limited to, payments per month to be made on all outstanding
6small business loans.
7    "Secretary" means the Secretary of the Department of
8Financial and Professional Regulation.
9    "Small business loan" means a commercial loan or a merchant
10cash advance in an amount not exceeding $250,000.
11    "Sole proprietorship" means an unincorporated business
12entity that is owned and run by one natural person.
13    Section 15. Applicability and scope.
14    (a) Unless otherwise specified, this Act does not apply to
15a person, business, partnership, association, limited
16liability company, or corporation that is defined as any of the
18        (1) a bank chartered and supervised by the Office of
19    the Comptroller of the Currency, an agency in the U.S.
20    Treasury Department, pursuant to the National Bank Act;
21        (2) a bank under the Illinois Banking Act;
22        (3) a bank, Illinois bank, or Illinois bank holding
23    company under the Illinois Bank Holding Company Act of
24    1957;
25        (4) a savings bank under the Savings Bank Act; or



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1        (5) a credit union under the Illinois Credit Union Act.
2    (b) A lender that is an agent for a person, business,
3partnership, association, limited liability company, or
4corporation as defined in subsection (a) is subject to all of
5the provisions of this Act.
6    Section 20. License required to engage in business.
7    (a) No lender shall make a small business loan to a person,
8business, partnership, association, limited liability company,
9or corporation except as authorized by this Act after first
10obtaining a license from the Department.
11    (b) Subsection (a) does not apply to any person,
12partnership, association, limited liability company, or
13corporation that is exempt from federal income taxes under
14Section 501(c)(3) of the Internal Revenue Code, or is a
15business assistance organization recognized by the United
16States Small Business Administration.
17    (c) A person, partnership, association, limited liability
18company, or corporation that violates this Section commits a
19Class A misdemeanor, and the Attorney General or the State's
20Attorney of the county in which the violation occurs may file a
21complaint in the circuit court of the county to restrain the
23    Section 25. Application. An application for a license shall
24be in writing, and in the form prescribed by the Secretary. The



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1applicant, at the time of making an application, shall pay to
2the Secretary the sum of $1,000 as an application fee and the
3additional sum of $750 as an annual license fee, for a period
4terminating on the last day of the current calendar year;
5however, if the application is filed after June 30th in a year,
6the license fee is one-half of the annual license fee for the
8    Every applicant and licensee shall maintain a surety bond
9in the principal sum of $500,000 issued by a bonding company
10that is authorized to do business in this State and is approved
11by the Secretary. The bond shall run to the Secretary and shall
12be for the benefit of any consumer who incurs damages as a
13result of a violation of this Act or rules by a licensee. If
14the Secretary finds at any time that a bond is of insufficient
15size, is insecure, exhausted, or otherwise doubtful, an
16additional bond in such amount as determined by the Secretary
17shall be filed by the licensee within 30 days after written
18demand by the Secretary for the filing of the additional bond.
19    Section 30. Appointment of attorney-in-fact for service of
20process. A licensee shall appoint, in writing, the Secretary
21and the Secretary's successors in office or an official who is
22charged with the administration of this Act, as
23attorney-in-fact upon whom all lawful process against the
24licensee may be served with the same legal force and validity
25as if served on the licensee. A copy of the written



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1appointment, duly certified, shall be filed in the office of
2the Secretary, and a copy of the written appointment certified
3by the Secretary shall be sufficient evidence. This appointment
4shall remain in effect while any liability remains outstanding
5in this State against the licensee. If summons is served upon
6the Secretary as attorney-in-fact for the licensee, the
7Secretary shall immediately notify the licensee by registered
8mail, enclosing the summons and specifying the hour and day of
10    Section 35. Investigation to determine whether license
11shall be issued. Upon the filing of an application and the
12payment of the fee, the Secretary shall investigate to
13determine that the reputation of the applicant, including
14managers of a limited liability company, partners, owners,
15officers, or directors thereof, is such as to warrant belief
16that the business will be operated honestly and fairly within
17the purposes of this Act. Unless the Secretary makes findings
18hereinabove enumerated, the Secretary shall not issue a license
19and shall notify the applicant of the denial and return to the
20applicant the sum paid by the applicant as a license fee, but
21shall retain the $1,000 application fee. The Secretary shall
22approve or deny every application for a license under this Act
23within 60 days from the filing of the application with the fee;
24however, if the Secretary does not approve or deny an
25application within this 60-day period, the application shall be



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1deemed denied.
2    Section 40. License. The license shall state the address,
3including city, county, and state, at which the business is to
4be conducted and shall state fully the name of the licensee.
5The license shall be displayed on licensee websites. The
6license shall not be transferable or assignable.
7    Section 45. More than one license to same licensee;
8changing place of business. Not more than one place of business
9shall be maintained under the same license, but the Secretary
10may issue more than one license to the same licensee upon
11compliance with all of the provisions of this Act governing the
12original issuance of a license.
13    Section 50. Annual license fee; expenses. On or before
14December 15 of each year, a licensee must pay to the Secretary,
15and the Department must receive, the annual license fee
16required by Section 25 for the next succeeding calendar year.
17If a licensee fails to renew his or her license by December 31,
18the license shall automatically expire and the licensee is not
19entitled to a hearing; however, the Secretary, in his or her
20discretion, may reinstate an expired license upon payment of
21the annual renewal fee and proof of good cause for failure to



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1    Section 55. Education. All moneys received by the
2Department under this Act that, in the opinion of the
3Secretary, exceed the amount required for the administration of
4this Act shall be deposited into the Financial Institution Fund
5and shall inure to the benefit of State programs directed at
6small business owner education and assistance.
7    Section 60. Advertising. Advertising for small business
8loans may not be false, misleading, or deceptive.
9    Section 65. Fund transfers. No lender may condition an
10extension of credit to a borrower on the borrower's repayment
11by preauthorized electronic fund transfers. Payment options,
12including, but not limited to, electronic fund transfers and
13Automated Clearing House transactions may be offered to
14borrowers as a choice and method of payment chosen by the
16    Section 70. Insufficient funds; late fees.
17    (a) If there are insufficient funds to pay a check or
18Automated Clearing House debit on the day of presentment and
19only after the lender has incurred an expense, a lender may
20charge a fee not to exceed $25. Only one such fee may be
21collected by the lender with respect to a particular check or
22Automated Clearing House debit even if it has been deposited
23and returned more than once. A lender shall present the check



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1or Automated Clearing House debit not more than twice.
2    (b) Within 10 days of the date on which an unpaid payment
3is due, a lender may charge a late charge equal to (i) $100 or
4(ii) 5% of the amount of the late payment, whichever is less.
5    Section 75. Refinancing. A lender shall not, when
6refinancing or modifying a loan, add new fees or fixed charges
7on existing principal.
8    Section 80. Enforcement and remedies.
9    (a) The Secretary may issue a cease and desist order to a
10lender if, in the opinion of the Secretary, the lender is
11violating or is about to violate any provision of this Act or
12any rule or requirement imposed in writing by the Department as
13a condition or granting any authorization permitted by this
14Act. The cease and desist order permitted by this Section may
15be issued prior to a hearing.
16    (b) The Secretary shall serve notice of his or her action,
17including, but not limited to, a statement of the reasons for
18the action, either personally or by certified mail, return
19receipt requested. Service by certified mail shall be deemed
20completed when the notice is deposited in the U.S. Mail.
21    Within 10 days of service of the cease and desist order,
22the lender may request a hearing in writing. The Secretary
23shall schedule a hearing within 30 days after the request for a
24hearing unless otherwise agreed to by the parties.



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1    If it is determined that the Secretary had the authority to
2issue the cease and desist order, the Secretary may issue such
3orders as may be reasonably necessary to correct, eliminate, or
4remedy the conduct.
5    The powers vested in the Secretary by this subsection are
6additional to any and all other powers and remedies vested in
7the Secretary by law, and nothing in this subsection shall be
8construed as requiring that the Secretary shall employ the
9power conferred in this Section instead of or as a condition
10precedent to the exercise of any other power or remedy vested
11in the Secretary.
12    (c) The Secretary may, after 10 days' notice by registered
13mail to the licensee at the address set forth in the license,
14stating the contemplated action and in general the grounds for
15the contemplated action, fine the licensee an amount not
16exceeding $15,000 per violation or revoke or suspend any
17license issued under this Act if the Secretary finds that:
18        (1) the licensee has failed to comply with any
19    provision of this Act or any order, decision, finding,
20    rule, or direction of the Secretary lawfully made pursuant
21    to the authority of this Act; or
22        (2) any fact or condition exists which, if it had
23    existed at the time of the original application for the
24    license, clearly would have warranted the Secretary in
25    refusing to issue the license.
26    (d) The Secretary may fine, suspend, or revoke only the



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1particular license with respect to which grounds for the fine,
2revocation, or suspension occur or exist, but if the Secretary
3finds that grounds for revocation are of general application to
4all offices or to more than one office of the licensee, the
5Secretary shall fine, suspend, or revoke every license to which
6such grounds apply.
7    (e) No revocation, suspension, or surrender of a license
8shall impair or affect the obligation of any pre-existing
9lawful contract between the licensee and any borrower.
10    (f) The Secretary may issue a new license to a licensee
11whose license has been revoked if facts or conditions that
12clearly would have warranted the Secretary in refusing
13originally to issue the license no longer exist.
14    (g) If a license is suspended or revoked or an application
15for a license or renewal of a license is denied, the Secretary
16shall serve the licensee with notice of his or her action,
17including a statement of the reasons for his or her actions,
18either personally, or by certified mail, return receipt
19requested. Service by certified mail shall be deemed completed
20when the notice is deposited in the U.S. Mail.
21    (h) An order assessing a fine, an order revoking or
22suspending a license, or an order denying renewal of a license
23shall take effect upon service of the order unless the licensee
24requests, in writing, within 10 days after the date of service,
25a hearing. If a hearing is requested, the order shall be stayed
26until a final administrative order is entered.



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1    (i) If the licensee requests a hearing, the Secretary shall
2schedule a hearing within 30 days after the request for a
3hearing unless otherwise agreed to by the parties.
4    (j) The hearing shall be held at the time and place
5designated by the Secretary. The Secretary and any
6administrative law judge designated by the Secretary have the
7power to administer oaths and affirmations, subpoena witnesses
8and compel their attendance, take evidence, and require the
9production of books, papers, correspondence, and other records
10or information that he or she considers relevant or material to
11the inquiry.
12    (k) The costs for the administrative hearing shall be set
13by rule.
14    (l) The Secretary has the authority to prescribe rules for
15the administration of this Section.
16    (m) The Department shall report to the Attorney General all
17material violations of this Act of which it becomes aware.
18    (n) Notwithstanding any other provision of this Section, if
19a lender who does not have a license issued under this Act
20makes a small business loan to an Illinois borrower, then the
21loan shall be null and void and the lender who made the loan
22shall have no right to collect, receive, or retain any
23principal, interest, or charges related to the loan.
24    Section 85. Closing of business; surrender of license.
25    (a) At least 10 days before a licensee ceases operations,



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1closes business, or files for bankruptcy, the licensee shall:
2        (1) Notify the Department of its action in writing.
3        (2) With the exception of filing for bankruptcy,
4    surrender its license to the Secretary for cancellation.
5    The surrender of the license shall not affect the
6    licensee's civil or criminal liability for acts committed
7    prior to surrender or entitle the licensee to a return of
8    any part of the annual license fee.
9        (3) Notify the Department of the location where the
10    books, accounts, contracts, and records will be maintained
11    and the procedure to ensure prompt return of contracts,
12    titles, and releases to the customers. The accounts, books,
13    records, and contracts shall be maintained and serviced by
14    the licensee or another licensee under this Act or an
15    entity exempt from licensure under this Act.
16    (b) The Department has the authority to conduct
17examinations of the books, records, and loan documents at any
18time after surrender of the license, filing of bankruptcy, or
19the cessation of operations.
20    Section 90. Investigation of conduct of business. For the
21purpose of discovering violations of this Act or securing
22information lawfully required by it, the Secretary may at any
23time investigate the loans and business and examine the books,
24accounts, records, and files used therein of every licensee and
25of every person, partnership, association, limited liability



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1company, and corporation engaged in small business lending,
2whether the person, partnership, association, limited
3liability company, or corporation shall act or claim to act as
4principal or agent or within or without the authority of this
5Act. For such purpose the Secretary shall have free access to
6the offices, websites and places of business, books, accounts,
7papers, records, files, safes, and vaults of the persons,
8partnerships, associations, limited liability companies, and
9corporations. The Secretary may require the attendance of and
10examine under oath all persons whose testimony he or she may
11require relative to such loans or such business, and in such
12cases the Secretary has the power to administer oaths to all
13persons called as witnesses, and the Secretary may conduct such
15    Section 95. Prohibition against taking power of attorney.
16No licensee shall take any power of attorney except to cancel
17any policies of insurance financed by the licensee as permitted
18by this Act and to receive either rebate of unearned premiums
19or loss payments.
20    Section 100. Pledge or sale of note. No licensee or other
21person shall pledge, assign, hypothecate, or sell a small
22business loan entered into under this Act by a borrower except
23to another licensee under this Act, a licensee under the Sales
24Finance Agency Act, a bank, savings bank, community development



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1financial institution, savings and loan association, or credit
2union created under the laws of this State or the United
3States, or to other persons or entities authorized by the
4Secretary in writing. Sales of such small business loans by
5licensees under this Act or other persons shall be made by
6agreement in writing and shall authorize the Secretary to
7examine the loan documents so hypothecated, pledged, or sold.
8    Section 105. Commercial status. Before making a small
9business loan to a borrower, the lender shall obtain
10documentation from the prospective borrower documenting the
11borrower's commercial status. Examples of acceptable forms of
12documentation include, but are not limited to, a seller's
13permit, business license, articles of incorporation, income
14tax returns showing business income, and bank account
15statements showing business income.
16    Section 110. Ability to repay.
17    (a) No lender may make a small business loan to a borrower
18if the total loan payments per month exceed 50% of the
19borrower's monthly net revenue.
20    (b) To determine a borrower's monthly net revenue, a lender
21shall obtain official documentation from the borrower
22including: (1) bank statements for the preceding 6 months, (2)
23the preceding year's tax return, or (3) a current profit and
24loss statement, a current balance sheet, and current



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1receivables aging.
2    (c) If the loan will be secured by a personal guarantee, a
3credit report from a major credit reporting bureau shall be
4obtained and considered by the lender.
5    (d) If the loan was secured by a personal guarantee, a
6lender shall report loan repayment information to at least one
7major credit reporting bureau.
8    Section 115. Referral.
9    (a) A licensee may pay compensation to a person in
10connection with the referral of one or more prospective
11borrowers to the licensee if the referral leads to the
12consummation of a small business loan between the lender and
13the prospective borrower.
14    (b) The lender shall annually submit information requested
15by the Secretary regarding the payment of compensation in a
16form set forth by the Secretary.
17    (c) A lender that pays compensation to a person or entity
18pursuant to this Section in connection with a referral for a
19small business loan made by that licensee to a borrower by the
20referral agent is liable for any misrepresentation made to that
21borrower in connection with that small business loan.
22    (d) The Secretary shall adopt rules under this Section to
23impose conditions on the referral activity authorized under
24this Section. The Secretary may classify persons, loans, loan
25terms, referral methods, and other matters within the



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1Secretary's jurisdiction, and may prescribe different
2requirements for different classes of small business loans.
3    (e) Nothing in this Section authorizes the payment of a
4referral fee for a residential mortgage loan.
5    (f) As used in this Section, "referral" means either the
6introduction of the borrower and the lender or the delivery to
7the lender of the borrower's contact information.
8    Section 120. Disclosure. Before executing a contract for a
9small business loan, a lender shall display the following
10information in clear and unequivocal language in bold font in
11all offering documentation:
12        (1) The term of the small business loan.
13        (2) The annualized interest rate expressed as an annual
14    percentage rate inclusive of all fees, including
15    third-party origination fees, except any such fees imposed
16    by the Department, calculated in accordance with the
17    federal Truth in Lending Act.
18        (3) The total amount of money that the borrower will
19    pay the licensee over the course of the small business
20    loan.
21        (4) Any fees assessed due to prepayment.
22        (5) A full schedule of any fees and payments made by
23    the borrower to the lender including how payment is
24    remitted and to whom.
25        (6) The total of all loan payments per month.



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1        (7) The total amount of borrower receivables,
2    expressed as a percentage of the borrower's total amount of
3    receivables over a clearly articulated period of time, that
4    have been pledged as payments on a small business loan.
5        (8) All loan options for which the borrower qualifies
6    through the licensee's services with the lowest annual
7    percentage rate option included.
8    Section 125. Performance disclosures. Prior to executing a
9contract for a small business loan with a borrower, the lender
10shall disclose in its offering documentation, in an anonymous
11and aggregated format, the percentage of loans that defaulted
12based on their contract terms.
13    Section 130. Prepayment.
14    (a) If a borrower seeks to prepay a loan, the lender must
15provide the borrower with any information, including a pay-off
16letter, required for prepayment within 2 business days of the
17borrower's request.
18    (b) If a borrower elects to pay off a loan before the end
19of the loan term, the lender is not entitled to collect any
20unearned finance charges but is entitled to collect a
21prepayment fee equal to the lesser of: (1) 25% of the total
22finance charges; or (2) the full amount of the total unpaid
23finance charge.



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1    Section 135. Default. Upon and after default, a lender
2shall not charge the borrower any finance charges, interest,
3fees, or charges of any kind.
4    Section 140. Release of liens. Without charge to the
5borrower, the lender shall release all liens within 2 business
6days after a small business loan is paid in full.
7    Section 145. Verification.
8    (a) Before entering into a loan agreement with a borrower,
9a lender must use the Department's existing certified database
10to verify that the proposed loan agreement is permissible under
11this Act.
12    (b) Within 6 months after the effective date of this Act,
13the Department shall ensure that the consumer database
14maintained by the Department for compliance with the Payday
15Loan Reform Act and the Consumer Installment Loan Act is
16modified to enable verification compliance with this Act while
17maintaining functionality for the Payday Loan Reform Act and
18the Consumer Installment Loan Act.
19    (c) Within 6 months after the effective date of this Act,
20the Department shall use the consumer reporting service
21database referenced in this Section for Act compliance.
22    (d) All personally identifiable information regarding any
23borrower obtained by way of the certified database and
24maintained by the Department is strictly confidential and is



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1exempt from disclosure under subdivision (1)(b) of Section 7 of
2the Freedom of Information Act.
3    (e) A lender shall update the certified database by
4inputting all information on the same day that a small business
5loan is made and on the same day that a small business loan is
6paid in full, including the refinancing of a small business
7loan as permitted in Section 110.
8    (f) A lender may charge a borrower a fee not to exceed $1
9for the verification required in this Section. Only one such
10fee may be collected by the lender with respect to a particular
12    Section 150. Civil action. A claim of violation of this Act
13may be asserted in a civil action.
14    Section 155. Rules. The Department shall make and enforce
15such reasonable rules, directions, orders, decisions, and
16findings as the execution and enforcement of this Act requires,
17and as are not inconsistent with this Act. In addition, the
18Department shall adopt rules in connection with the activities
19of licensees that are necessary and appropriate for the
20protection of businesses in this State. All rules and
21directions of a general character shall be sent electronically
22to all licensees.
23    Section 160. Judicial review. All final administrative



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1decisions of the Secretary under this Act are subject to
2judicial review pursuant to the Administrative Review Law.
3    Section 165. Partial invalidity. If any clause, sentence,
4provision, or part of this Act shall be adjudged to be
5unconstitutional or invalid for any reason by any court of
6competent jurisdiction, such judgment shall not impair,
7affect, or invalidate the remainder of this Act, which shall
8remain in full force and effect thereafter.
9    Section 900. The State Finance Act is amended by changing
10Section 6z-26 as follows:
11    (30 ILCS 105/6z-26)
12    Sec. 6z-26. The Financial Institution Fund. All moneys
13received by the Department of Financial and Professional
14Regulation under the Safety Deposit License Act, the Foreign
15Exchange License Act, the Pawners Societies Act, the Sale of
16Exchange Act, the Currency Exchange Act, the Sales Finance
17Agency Act, the Debt Management Service Act, the Consumer
18Installment Loan Act, the Illinois Development Credit
19Corporation Act, the Title Insurance Act, the Debt Settlement
20Consumer Protection Act, the Debt Management Service Consumer
21Protection Fund, the Small Business Lending Act, and any other
22Act administered by the Department of Financial and
23Professional Regulation as the successor of the Department of



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1Financial Institutions now or in the future (unless an Act
2specifically provides otherwise) shall be deposited in the
3Financial Institution Fund (hereinafter "Fund"), a special
4fund that is hereby created in the State Treasury.
5    Moneys in the Fund shall be used by the Department, subject
6to appropriation, for expenses incurred in administering the
7above named and referenced Acts. Moneys in the Fund received
8under the Small Business Lending Act shall be used as set forth
9in Section 55 of that Act.
10    The Comptroller and the State Treasurer shall transfer from
11the General Revenue Fund to the Fund any monies received by the
12Department after June 30, 1993, under any of the above named
13and referenced Acts that have been deposited in the General
14Revenue Fund.
15    As soon as possible after the end of each calendar year,
16the Comptroller shall compare the balance in the Fund at the
17end of the calendar year with the amount appropriated from the
18Fund for the fiscal year beginning on July 1 of that calendar
19year. If the balance in the Fund exceeds the amount
20appropriated, the Comptroller and the State Treasurer shall
21transfer from the Fund to the General Revenue Fund an amount
22equal to the difference between the balance in the Fund and the
23amount appropriated.
24    Nothing in this Section shall be construed to prohibit
25appropriations from the General Revenue Fund for expenses
26incurred in the administration of the above named and



09900SB2865sam001- 23 -LRB099 18390 JLS 47122 a

1referenced Acts.
2    Moneys in the Fund may be transferred to the Professions
3Indirect Cost Fund, as authorized under Section 2105-300 of the
4Department of Professional Regulation Law of the Civil
5Administrative Code of Illinois.
6(Source: P.A. 96-1420, eff. 8-3-10.)".