SB2144 94TH GENERAL ASSEMBLY

LRB094 14899 RAS 49931 b

94TH GENERAL ASSEMBLY
State of Illinois
2005 and 2006
SB2144

Introduced 10/26/2005, by Sen. Mike Jacobs

SYNOPSIS AS INTRODUCED:

New Act

Creates the Collateral Recovery Act. Provides for the licensure of repossession agencies, the certification of recovery managers, and the registration of repossession agency employees. Establishes the Illinois Repossession and Recovery Board. Grants rulemaking authority to the Department of Financial and Professional Regulation. Sets forth provisions concerning qualifications, application, examination, assignment, insurance requirements, and administrative proceedings. Prohibits recovery work on a contingency basis.

CORRECTIONAL BUDGET AND IMPACT NOTE ACT MAY APPLY

FISCAL NOTE ACT MAY APPLY

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

Collateral Recovery Act.

Section 5. Findings; purpose. The General Assembly finds that collateral recovery practices affect public health, safety, and welfare and declares that the purpose of this Act is to regulate individuals and entities engaged in the business of collateral recovery for the protection of the public.

Section 10. Definitions. In this Act:

"Assignment" means a written authorization by a legal owner, lien holder, lessor, or lessee to skip trace, locate, or repossess, or to collect money payment in lieu of repossession of, any collateral, including, but not limited to, collateral registered under the Illinois Vehicle Code that is subject to a security agreement that contains a repossession clause. "Assignment" also means a written authorization by an employer to recover any collateral entrusted to an employee or former employee if the possessor is wrongfully in the possession of the collateral. A photocopy, facsimile copy, or electronic copy of an assignment shall have the same force and effect as an original written assignment.

"Board" means the Illinois Repossession and Recovery Board.

"Certified recovery manager" means a person who possesses a valid certificate in accordance with the provisions of this Act and is in active control or management of a repossession agency.

"Collateral" means any vehicle, boat, recreational vehicle, motor home, motorcycle, appliance, or other property that is subject to a security agreement.

"Contingency" means contingent upon recovering collateral

"Debtor" means any person obligated under a security agreement.

"Department" means the Department of Financial and Professional Regulation.

"Legal owner" means a person holding (i) a security interest in any collateral that is subject to a security agreement, (ii) a lien against any collateral, or (iii) an interest in any collateral that is subject to a lease agreement.

"Licensee" means an individual, partnership, limited liability company, or corporation licensed under this Act.

"Personal effects" means any property contained within repossessed collateral that is not the property of the legal owner.

"Repossession agency" means any person or entity that, for any type of consideration, engages in the business of, accepts employment to furnish, or agrees to provide or provides skip tracing services, property locating services, property recovery, recovered property transportation, recovered property storage, or all services relevant to any of the following:

(1) The location, disposition, or recovery of property as authorized by the self-help provisions of the Uniform Commercial Code.

(2) The location, disposition, or recovery of lost or stolen property.

(3) Securing evidence concerning repossession and recovery to be used before any court, board, office, or investigating committee.

(4) Inventory of property contained in the collateral or recovered property.

(5) The possession of collateral.

(6) The prevention of the misappropriation or concealment of chattel, vehicles, goods, objects, documents, or papers. "Repossession agency" does not include any of the following:

(1) An attorney at law who is performing his or her duties as an attorney at law.

(2) The legal owner of collateral that is subject to a security agreement.

(3) An officer or employee of the United States of America or of this State or a political subdivision of this State, while the officer or employee is engaged in the performance of his or her official duties.

(4) A qualified certificate holder or a registrant when performing services for, or on behalf of, a licensee.

"Repossession agency employee" means a person who is hired by a licensed repossession agency to recover property and who holds a permanent employee registration card in accordance with the provisions of this Act.

"Secretary" means the Secretary of Financial and Professional Regulation.

"Security agreement" means an obligation, pledge, mortgage, chattel mortgage, lease agreement, deposit, or lien, given by a debtor as security for payment or performance of his or her debt, by furnishing the creditor with a recourse to be used in case of failure in the principal obligation. "Security agreement" includes a bailment where an employer-employee relationship exists or existed between the bailor and the bailee.

Section 15. Illinois Repossession and Recovery Board.

(a) There is established within the Department, the Illinois Repossession and Recovery Board. The Board shall be composed of 7 members appointed by the Secretary who shall serve in an advisory capacity to the Secretary. The Board shall elect a chairperson and a vice chairperson.

(b) In appointing members of the Board, the Secretary shall give due consideration to recommendations by members of the collateral recovery profession and by statewide organizations solely representing the interests of repossession agencies and collateral recovery managers.

(c) Board members shall be appointed for terms of 4 years, except that any person appointed to fill a vacancy shall serve only for the unexpired term and until a successor is appointed and qualified. No member shall be reappointed to the Board for a term that would result in the member serving for more than 8 consecutive years.

(d) The membership of the Board shall reasonably reflect representation from various geographic areas of the State.

(e) A majority of the Board members currently appointed shall constitute a quorum. A vacancy in the membership of the Board shall not impair the right of a quorum to exercise all the rights and perform all the duties of the Board.

(f) Members of the Board shall be immune from suit in any action based upon any disciplinary proceedings or other activities performed in good faith as members of the Board.

(g) The Secretary may remove any member of the Board for any cause that, in the opinion of the Secretary, reasonably justifies termination.

(h) The Secretary may consider the recommendations of the Board on questions of standards of professional conduct, discipline, and qualification of candidates or licensees under this Act.

(i) The Department shall, in conformity with the Personnel Code, employ all staff, clerical and otherwise, as are necessary to carry out the duties of the Board.

(j) Board members shall not be compensated, but shall be reimbursed for all legitimate, necessary, and authorized expenses from funds appropriated for that purpose.

Section 20. Rulemaking; enforcement. The Department may adopt any rules and procedures necessary to administer the provisions of this Act and shall work in conjunction with the Secretary of State Police in adopting any rules and procedures necessary to enforce the provisions of this Act.

Section 25. Licensure, certification, or registration required.

(a) Six months after the effective date of this Act, it shall be unlawful for any person or entity to practice, attempt to practice, or to hold himself, herself, or itself out to be a repossession agency unless licensed under this Act.

(b) It shall be unlawful for any person to practice, attempt to practice, or to hold himself or herself out to be a certified recovery manager unless certified under this Act.

(c) It shall be unlawful for any person to practice, attempt to practice, or hold himself or herself out to be a repossession agency employee unless he or she holds a valid permanent employee registration card issued by the Department under the the provisions of this Act.

Section 30. Application for repossession agency licensure.

(a) Application for original licensure as a repossession agency shall be made to the Department in writing on forms prescribed by the Department and shall be accompanied by the appropriate documentation and the required fee, which fee is nonrefundable.

(b) Every application shall state, in addition to any other requirements, (i) the name of the applicant, (ii) the name under which the applicant will do business, (iii) the proposed location of the agency by number and street and city, and (iv) the usual business hours that the agency will maintain. The residential address and telephone number and the driver's license number of each applicant, if requested, shall be confidential and may not be released to the public.

(c) No license may be issued in (i) any fictitious name that may be confused with or is similar to any federal, State, county, or municipal government function or agency, (ii) any name that may tend to describe any business function or enterprise not actually engaged in by the applicant, (iii) any name that is the same as or similar to any existing licensee as would tend to deceive the public, or (iv) any name that would tend to be deceptive or misleading.

(d) If the applicant for repossession agency licensure is an individual, his or her application shall include (i) the full residential address of the applicant and (ii) either the sworn statement of the applicant declaring that he or she is the certified recovery manager who shall be personally and actively in charge of the agency for which the license is sought or the name and sworn statement of the certified recovery manager who shall be actively in charge of the agency.

(e) If the applicant for repossession agency licensure is a partnership, the application shall include (i) a statement of the names and full residential addresses of all partners in the business and (ii) the sworn statement signed by each partner verifying the name of the partner who is a certified recovery manager and shall be actively in charge of the business or the name of the certified recovery manager who is not a partner, but shall be actively in charge of the agency. If a certified recovery manager who is not a partner shall be actively in charge of the agency, he or she must also sign the sworn statement. The application shall also state whether any of the partners has ever used an alias.

(f) If the applicant for repossession agency licensure is a corporation, the application shall include (i) the names and full residential addresses of all corporation officers and (ii) a sworn statement signed by a duly authorized officer of the corporation verifying the name of the officer who is a certified recovery manager and shall be actively in charge of the agency or the name of the certified recovery manager who is not an officer, but shall be actively in charge of the agency. If a certified recovery manager who is not an officer shall be actively in charge of the agency, he or she must also sign the sworn statement. The application shall also state whether any of the officers has ever used an alias.

(g) If the applicant for repossession agency licensure is a limited liability company, the application shall include (i) the names and full residential addresses of all company owners and (ii) a sworn statement signed by each owner verifying the name of the owner who is a certified recovery manager and shall be actively in charge of the agency or the name of the certified recovery manager who is not an owner, but shall be actively in charge of the agency. If a certified recovery manager who is not an owner shall be actively in charge of the agency, he or she must also sign the sworn statement. The application shall also state whether any of the owners has ever used an alias.

(h) Each individual, partner of a partnership, officer of a corporation, or owner of a limited liability company shall submit with the application, one form of personal identification upon which shall appear a photograph taken within one year immediately proceeding the date of the filing of the application.

(i) No examination shall be required for licensure as a repossession agency by the Department.

(j) The Department may require any additional information that, in the judgment of the Department, shall enable the Department to pass on the qualifications of the applicant for licensure.

(k) Applicants have one year from the date of application to complete the application process. If the application has not been completed within one year, the application shall be denied, the fee shall be forfeited, and the applicant must reapply and meet the requirements in effect at the time of reapplication.

(l) Nothing in this Section shall permit a domestic or foreign liability company to be licensed as a repossession agency.

Section 35. Qualifications for recovery manager; identification card.

(a) An applicant is qualified for certification as a recovery manager if that person meets all of the following requirements:

(1) Is 21 years of age or older.

(2) Has not been convicted in any jurisdiction of any felony or at least 10 years has passed from the time of discharge from any sentence imposed for a felony.

(3) Is of good moral character, which is a continuing requirement of licensure. Conviction of a crime not included under item (2) of this Section may be used in determining moral character, but may not operate as an absolute bar from licensure.

(4) Has not been declared by any court of competent jurisdiction to be incompetent by reason of mental or physical defect or disease, unless a declaration of competency has since occurred.

(5) Is not suffering from habitual drunkenness or narcotic addiction or dependence.

(6) Has completed no less than 5,000 hours of actual compensated collateral recovery work as an employee of a repossession agency located in the State, a financial institution, or a vehicle dealer in the 2 years immediately preceding the filing of an application, acceptable proof of which must be submitted to the Department.

(7) Has submitted to the Department 2 recent photographs of himself or herself and 2 sets of fingerprints, which shall be checked against the fingerprint records on file with the Department of State Police and the Federal Bureau of Investigation in the manner set forth in Section 50 of this Act.

(8) Has successfully passed the required examination authorized by the Department.

(9) Has successfully completed the Certified Asset Recovery Specialist (C.A.R.S.) and the Recovery Education and Certification Training (R.E.A.C.T.) national certification programs.

(10) Has not been dishonorably discharged from the Armed Services of the United States.

(11) Has paid the required application and examination fees.

(b) Upon the issuance of a recovery manager certificate, the Department shall issue the certificate holder a suitable pocket identification card that shall include a photograph of the certificate holder. The identification card must contain the name of the certificate holder and that of the repossession agency that employs the certificate holder, in addition to any other information required by the Department.

Section 40. Repossession agency employee requirements.

(a) All employees of a licensed repossession agency whose duties include the actual repossession of collateral shall apply for a permanent employee registration card. The holder of a repossession agency license issued under this Act, known in this Section as "employer", may employ in the conduct of the licensee's business employees under the following provisions:

(1) No person may be issued a permanent employee registration card who meets any of the following criteria:

(A) Is younger than 21 years of age.

(B) Has been determined by the Department to be unfit by reason of conviction of an offense in this or another state, other than a minor traffic offense. The Department shall adopt rules for making those determinations that shall afford the applicant due process of law.

(C) Has had a license or permanent employee registration card denied, suspended, or revoked under this Act.

(D) Has been declared incompetent by any court of competent jurisdiction by reason of mental disease or defect and has not been restored.

(E) Has not successfully completed the Certified Asset Recovery Specialist (C.A.R.S.) and the Recovery Education and Certification Training (R.E.A.C.T.) national certification programs.

(F) Has been dishonorably discharged from the armed services of the United States.

(2) No person may be employed by a repossession agency under this Section until he or she has executed and furnished to the employer, on forms furnished by the Department, a verified statement to be known as an "Employee's Statement" setting forth all of the following:

(A) The person's full name, age, and residence address.

(B) The business or occupation engaged in for the 5 years immediately before the date of the execution of the statement, the place where the business or occupation was engaged in, and the names of employers, if any.

(C) That the person has not had a license or employee registration denied, revoked, or suspended under this Act.

(D) Any conviction of a felony or misdemeanor.

(E) Any declaration of incompetence by a court of competent jurisdiction that has not been restored.

(F) Any dishonorable discharge from the armed services of the United States.

(G) Any other information as may be required by any rule of the Department to show the good character, competency, and integrity of the person executing the statement.

(b) Each applicant for a permanent employee registration card shall have his or her fingerprints submitted to the Department of State Police in an electronic format that complies with the form and manner for requesting and furnishing criminal history record information as prescribed by the Department of State Police. These fingerprints shall be checked against the Department of State Police and Federal Bureau of Investigation criminal history record databases now and hereafter filed. The Department of State Police shall charge applicants a fee for conducting the criminal history records check, which shall be deposited in the State Police Services Fund and shall not exceed the actual cost of the records check. The Department of State Police shall furnish, pursuant to positive identification, records of Illinois convictions to the Department. The Department may require applicants to pay a separate fingerprinting fee, either to the Department or directly to a designated vendor. The Department, in its discretion, may allow an applicant who does not have reasonable access to a designated vendor to provide his or her fingerprints in an alternative manner. The Department, in its discretion, may also use other procedures in performing or obtaining criminal history records checks of applicants. Instead of submitting his or her fingerprints, an individual may submit proof that is satisfactory to the Department that an equivalent security clearance has been conducted.

(c) Each applicant for a permanent employee registration card must submit to the Department 2 recent photographs of himself or herself.

(d) The Department shall issue a permanent employee registration card, in a form the Department prescribes, to all qualified applicants. The Department shall notify the submitting licensee within 10 days after receipt of the application of its intent to issue or deny the permanent employee registration card. The holder of a permanent employee registration card shall carry the card at all times while actually engaged in the performance of the duties of his or her employment. Expiration and requirements for renewal of permanent employee registration cards shall be established by rule of the Department. Possession of a permanent employee registration card does not in any way imply that the holder of the card is employed by an agency unless the permanent employee registration card is accompanied by the employee identification card required by subsection (f) of this Section.

(e) Each employer shall maintain a record of each employee that is accessible to the duly authorized representatives of the Department. The record shall contain all of the following information:

(1) A photograph taken within 10 days after the date that the employee begins employment with the employer. The photograph shall be replaced with a current photograph every 3 calendar years.

(2) The Employee's Statement specified in paragraph (2) of subsection (a) of this Section.

(3) All correspondence or documents relating to the character and integrity of the employee received by the employer from any official source or law enforcement agency.

(4) In the case of former employees, the employee identification card of that person issued under subsection (f) of this Section.

(f) Every employer shall furnish an employee identification card to each of his or her employees. This employee identification card shall contain a recent photograph of the employee, the employee's name, the name and agency license number of the employer, the employee's personal description, the signature of the employer, the signature of that employee, the date of issuance, and an employee identification card number.

(g) No employer may issue an employee identification card to any person who is not employed by the employer in accordance with this Section or falsely state or represent that a person is or has been in his or her employ. It is unlawful for an applicant for registered employment to file with the Department the fingerprints of a person other than himself or herself or to fail to exercise due diligence in resubmitting replacement fingerprints for those employees who have had original fingerprint submissions returned as unclassifiable.

(h) Every employer shall obtain the identification card of every employee who terminates employment with the employer.

(i) No agency may employ any person to perform a licensed activity under this Act unless the person possesses a valid permanent employee registration card or the person has a valid license under this Act.

(j) Notwithstanding the provisions of subsection (i) of this Section, an agency may employ a person in a temporary capacity if all of the following conditions are met:

(1) The agency completes in its entirety and submits to the Department an application for a permanent employee registration card, including the required fingerprint receipt and fees.

(2) The agency has verification from the Department that the applicant has no record of any criminal conviction pursuant to the criminal history records check conducted by the Department of State Police. The agency shall maintain the verification of the results of the Department of State Police criminal history records check as part of the employee record as required under subsection (e) of this Section.

(3) The agency exercises due diligence to ensure that the person is qualified under the requirements of the Act to be issued a permanent employee registration card.

(4) The agency maintains a separate roster of the names of all employees whose applications are currently pending with the Department and submits the roster to the Department on a monthly basis. Rosters are to be maintained by the agency for a period of at least 24 months.

An agency may employ only a permanent employee applicant for which it either submitted a permanent employee application and all required forms and fees or it confirms with the Department that a permanent employee application and all required forms and fees have been submitted by another agency and all other requirements of this Section are met.

The Department shall have the authority to revoke, without a hearing, the temporary authority of an individual to work upon receipt of Federal Bureau of Investigation fingerprint data or a report of another official authority indicating a criminal conviction. If the Department has not received a temporary employee's Federal Bureau of Investigation fingerprint data within 120 days after the date the Department received the Department of State Police fingerprint data, the Department may, at its discretion, revoke the employee's temporary authority to work with 15 days written notice to the individual and the employing agency.

An agency may not employ a person in a temporary capacity if it knows or reasonably should have known that the person has been convicted of a crime under the laws of this State, has been convicted in another state of any crime that is a crime under the laws of this State, has been convicted of any crime in a federal court, or has been posted as an unapproved applicant by the Department. Notice by the Department to the agency, via certified mail, personal delivery, electronic mail, or posting on an internet site accessible to the agency that the person has been convicted of a crime shall be deemed constructive knowledge of the conviction on the part of the agency. The Department may adopt rules to implement this subsection (j).

(k) No person may be employed under this Section in any capacity if the person while so employed is being paid by the United States or any political subdivision for the time so employed in addition to any payments he or she may receive from the employer.

(l) If information is discovered affecting the registration of a person whose fingerprints were submitted under this Section, the Department shall so notify the agency that submitted the fingerprints on behalf of that person.

(m) A person employed under this Section shall have 15 business days within which to notify the Department of any change in employers. Upon notification and payment of the required fee, the Department shall issue that person a new permanent employee registration card, provided that the person's current employer is a licensed repossession agency.

(n) This Section applies only to those employees of licensed repossession agencies whose duties include actual repossession of collateral.

Section 45. SSN or FEIN on application. In addition to any other information required by the Department to be contained in the application, every application for an original, renewal, or restored license shall include the applicant's Social Security Number (SSN) if an individual or Federal Employer Identification Number (FEIN) if not an individual. The Department shall not disclose an individual's SSN and must keep that SSN confidential unless disclosure is required by law.

Section 50. Criminal background check. The Secretary shall require that each individual, partner of a partnership, officer of a corporation, or owner of a limited liability company, as part of the application process, authorize a criminal history records check to determine if such applicant has ever been charged with a crime and if so, the disposition of those charges. Upon this authorization, each individual, partner of a partnership, officer of a corporation, or owner of a limited liability company shall submit his or her fingerprints to the Department of State Police in the form and manner prescribed by the Department of State Police. These fingerprints shall be checked against the fingerprint records now and hereafter filed in the Department of State Police and Federal Bureau of Investigation criminal history records databases. The Department of State Police shall charge a fee for conducting the criminal history records check, which shall be deposited in the State Police Services Fund and shall not exceed the actual cost of the records check. The Department of State Police shall provide information concerning any criminal charges, and their disposition, now or hereafter filed, against an applicant upon request of the Secretary when the request is made in the form and manner required by the Department of State Police.

Section 55. Examinations.

(a) The Department may authorize examinations of applicants as recovery managers and repossession agency employees at least once every other month at such places and on such specific dates as it may determine. The examination of applicants shall be of a character to give a fair test of the qualifications of the applicants to engage in the practice of collateral recovery.

(b) In order to be eligible for initial examination, an applicant must have completed and filed his or her application, together with the application fee prescribed by the Department, not later than 30 days prior to the next scheduled examination date. Applicants whose applications are not completed and filed within the 30-day time period may, at the discretion of the Department, be scheduled for the first examination following the scheduled examination.

(c) Upon an applicant's failure to pass the initial examination, he or she shall not be eligible for any subsequent examination, except, upon payment of the reexamination fee prescribed by the Department for each subsequent examination accompanied by a completed application for reexamination filed within the time limits and under the conditions relating to applications for initial examination as set forth in this Section.

(d) The Department may employ consultants for the purpose of preparing and conducting examinations.

Section 60. Certified recovery manager in charge of repossession agency.

(a) As a condition of licensure, a certified recovery manager must, at all times, be actively in charge of a repossession agency.

(b) A certified recovery manager may only be actively in charge of one repossession agency at one time. Upon written request by a representative of an agency within 10 days after the loss of the certified recovery manager actively in charge due to the death of the certificate holder or because of an unanticipated termination of his or her employment, the Department shall issue a temporary permit allowing the continuing operation of a previously licensed agency. The temporary permit shall be valid for no more than 90 days. Upon written request by the representative of the agency, an extension of an additional 90 days may be granted by the Department for good cause shown. No more than 2 extensions may be granted to any repossession agency. A temporary permit may not be issued for loss of the certified recovery manager actively in charge if that loss is due to disciplinary action taken by the Department.

(c) Whenever a certified recovery manager actively in charge of a repossession agency ceases to be in charge, the licensed agency shall file within notice with the Department within 30 days after the cessation. If the licensee fails to give written notice at the end of the 30-day period, the agency's license shall automatically be suspended. If the notice is filed, the license shall remain in force for a period of 90 days after the filing of the notice. At the end of the 90-day period or an additional period, not to exceed one year, as specified by the Department, if written notice is not given that a certified recovery manager is then actively in charge of the agency, the agency's license shall automatically be suspended. A license suspended under this Section may be reinstated upon payment of the reinstatement fee and submission of a reinstatement application.

(d) Except as otherwise provided in this Act, no person may serve as the certified recovery manager actively in charge of a licensed repossession agency if that person has ever had a repossession agency license revoked or suspended or if the person was a partner, managing employee, owner, or officer of a repossession agency the license of which has been revoked for cause.

(e) The certified recovery manager actively in charge must spend over 51% of the usual business hours conducting business related to collateral recovery at the licensed location.

(f) The certificate of the recovery manager actively in charge of a licensed repossession agency, together with the agency's license, shall be conspicuously displayed at the agency location of which the recovery manager is actively in charge.

(g) A license extended under this Section is subject to all other provisions of this Act.

Section 65. License extension in cases of death or disassociation.

(a) In the case of the death of a person who is licensed individually as a repossession agency, a member of the deceased licensee's immediate family shall be entitled to continue operating the agency under the same license for up to 120 days following the licensee's date of death, provided that written notice is given to the Department within 30 days following the licensee's date of death. At the end of the 120-day period, the license shall automatically be revoked.

(b) In the case of the death or disassociation of a partner of a partnership licensed as a repossession agency, the licensee shall notify the Department, in writing, within 30 days from the death or disassociation of the partner. If the licensee fails to notify the Department within the 30-day period, the license shall automatically be revoked at the end of that period. If proper notice is given, the license shall remain in force for 90 days following the date of death or disassociation of the partner. At the end of the 90-day period, the licensee shall automatically be revoked.

(c) A license extended under this Section is subject to all other provisions of this Act.

Section 70. Licenses, certificates, and registration cards; renewals; restoration; person in military service.

(a) An original repossession agency license, recovery manager certificate, and permanent employee registration card shall expire one year after the date of issuance.

(b) A renewal repossession agency license or recovery manager certificate shall expire 2 years after the date of renewal.

(c) A renewal permanent employee registration card shall expire one year after the date of renewal.

(d) At least 90 days prior to the expiration of a license, certificate, or registration card, the Department shall mail to the licensee, certificate holder, or registration card holder a renewal form in the form and manner prescribed by the Department. The licensee, certificate holder, or registration card holder must complete and mail the renewal form to the Department, pay any fines assessed, and pay any renewal fee required by the Department.

(e) Any person or entity that has permitted a license, certificate, or registration card to expire may have that license, certificate, or registration card restored by making application to the Department within one year after the expiration of a repossession agency license or a qualified manager certificate or within 30 days after the expiration of a permanent employee registration card, filing proof acceptable to the Department of fitness to have the license, certificate, or registration card restored, and paying the required restoration fee. However, any person whose license, certificate, or registration card expired while (i) in federal service on active duty with the Armed Forces of the United States or called into service or training with the State militia or (ii) in training or education under the supervision of the United States preliminary to induction into military service may have his or her license, certificate, or registration card renewed or restored without paying any lapsed renewal fees if, within 2 years after honorable termination of the service, training, or education, except under condition other than honorable, he or she furnishes the Department with satisfactory evidence to the effect that he or she has been so engaged and that the service, training, or education has been so terminated.

(f) A suspended repossession agency license, recovery manager certificate, or permanent employee registration card is subject to expiration as set forth in this Section; however, renewal of the license, certificate, or registration card does not entitle the licensee, certificate holder, or registration card holder, while the license, certificate, or registration card remains suspended and until it is reinstated, to engage in the licensed, certified, or registered activity.

(g) A revoked repossession agency license, recovery manager certificate, or permanent employee registration card is subject to expiration as set forth in this Section; however, it may not be renewed. If a revoked license, certificate, or registration card is reinstated after its expiration, the licensee, certificate holder, or registration card holder, as a condition of reinstatement, shall pay a reinstatement fee in an amount equal to the renewal fee in effect on the last regular renewal date prior to the date on which the license, certificate, or registration card is reinstated and any additional delinquency fee required by the Department.

(h) Any person or entity that notifies the Department, in writing on forms prescribed by the Department, may place a license, certificate, or registration card on inactive status and shall be excused from the payment of renewal fees until the person or entity notifies the Department in writing of the intention to resume active practice. Any person or entity requesting that a license, certificate, or registration card be changed from inactive to active status shall be required to pay the current renewal fee.

(i) Any repossession agency licensee, recovery manager certificate holder, or permanent employee registration card holder whose license, certificate, or registration card is nonrenewed or on inactive status shall not engage in the practice of recovery in the State or use the title or advertise that he, she, or it performs the services of a "licensed repossession agency", "certified recovery manager", or "repossession agency employee".

(j) Any person violating subsection (i) of this Section shall be considered to be operating a repossession agency without a license, acting as a recovery manager without a certificate, or acting as a repossession agency employee without a permanent employee registration card and is subject to the disciplinary provisions of this Act.

(k) A repossession agency license, recovery manager certificate, or permanent employee registration card that is not renewed within 3 years after its expiration may not be renewed, restored, reinstated, or reissued thereafter. The holder of the license, certificate, or registration card may obtain a new license, certificate, or registration card only upon compliance with all of the provisions of this Act concerning the issuance of an original license, certificate, or registration card.

Section 75. Refusal, revocation, or suspension.

(a) The Department may refuse to issue or renew or may revoke a license, certificate, or registration card or may suspend, place on probation, fine, or take any disciplinary action as the Department may deem proper, including fines not to exceed $2,500 for each violation, with regard to any licensee, certificate holder, or registration card holder for any one or combination of the following causes:

(1) Knowingly making any misrepresentation for the purpose of obtaining a license, certificate, or registration card.

(2) Violations of this Act or its rules.

(3) Conviction of any crime under the laws of the United States or any state or territory thereof that is (i) a felony, (ii) a misdemeanor, an essential element of which is dishonesty, or (iii) a crime that is related to the practice of the profession.

(4) Aiding or assisting another person in violating any provision of this Act or its rules.

(5) Engaging in dishonorable, unethical, or unprofessional conduct of a character likely to deceive, defraud, or harm the public as defined by the rules of the Department, or violating the rules adopted by the Board.

(6) Habitual or excessive use or addiction to alcohol, narcotics, stimulants, or any other chemical agent or drug that results in the inability to engage in the practice of recovery with reasonable judgment, skill, or safety.

(7) Violation of any court order from any State or public agency engaged in the enforcement of repayment of child support or arrearages or for noncompliance with certain processes relating to paternity or support proceedings.

(8) Solicitation of professional services by using false or misleading advertising.

(9) A finding that licensure, certification, or registration has been applied for or obtained by fraudulent means.

(10) Practicing or attempting to practice under a name other than the full name as shown on the license, certificate, or registration card or any other legally authorized name.

(b) The entry of an order by a circuit court establishing that any person holding a license, certificate, or registration card under Department rule is subject to involuntary admission or judicial admission as provided for in the Mental Health and Developmental Disabilities Code operates as an automatic suspension of that license, certificate, or registration card. That person may have his or her license, certificate, or registration card restored only upon the determination by a circuit court that the patient is no longer subject to involuntary admission or judicial admission and the issuance of an order so finding and discharging the patient or at the discretion of the Department. Where the circumstances so indicate, the Department may require an examination prior to restoring a suspended license, certificate, or registration card.

(c) The Department may refuse to issue or may suspend the license, certificate, or registration card of any person or entity who fails to file a return, pay the tax, penalty, or interest shown in a filed return or pay any final assessment of tax, penalty, or interest, as required by any tax Act administered by the Department of Revenue, until the time the requirements of the tax Act are satisfied.

Section 80. Consideration of past crimes.

(a) Notwithstanding the prohibitions set forth in Sections 35 and 40 of this Act, when considering the denial of a license, certificate, or registration card on the grounds of conviction of a crime, the Department, in evaluating the rehabilitation of the applicant and the applicant's present eligibility for a license, certificate, or registration card, shall consider each of the following criteria:

(1) the nature and severity of the act or crime under consideration as grounds for denial;

(2) evidence of any act committed subsequent to the act or crime under consideration as grounds for denial, which also could be considered as grounds for disciplinary action under this Act;

(3) the amount of time that has lapsed since the commission of the act or crime referred to in item (1) or (2) of this subsection (a);

(4) the extent to which the applicant has complied with any terms of parole, probation, restitution, or any other sanctions lawfully imposed against the applicant; and

(5) evidence, if any, of rehabilitation submitted by the applicant.

(b) When considering the suspension or revocation of a license, certificate, or registration card on the grounds of conviction of a crime, the Department, in evaluating the rehabilitation of the applicant and the applicant's present eligibility for a license, certificate, or registration card, shall consider each of the following criteria:

(1) the nature and severity of the act or offense;

(2) the licensee's, certificate holder's, or registration card holder's criminal record in its entirety;

(3) the amount of time that has lapsed since the commission of the act or offense;

(4) whether the licensee, certificate holder, or registration card holder has complied with any terms of parole, probation, restitution, or any other sanctions lawfully imposed against him or her;

(5) if applicable, evidence of expungement proceedings; and

(6) evidence, if any, of rehabilitation submitted by the licensee, certificate holder, or registration card holder.

Section 85. Assignment of repossession agency license.

(a) Except as provided in subsection (b) of this Section, a repossession agency license is not assignable.

(b) A repossession agency may apply to the Department for consent and, upon receipt of such consent and payment of any fee required by the Department, may assign a license to another entity, provided that all owners of the assignor agency shall subsequently own the assignee agency in its entirety.

Section 90. Insurance required. No repossession agency license shall be issued unless the applicant first files with the Department a certification of insurance evidencing coverage in the required amount. The coverage shall provide the Department as an additional insured for the purpose of receiving all notices of modifications or cancellation of such insurance. Coverage shall be written by an insurance company that is lawfully engaged to provide insurance coverage in Illinois. Coverage shall provide for a combined single limit policy in the amount of at least $1,000,000, which policy shall include commercial general liability for wrongful repossession, dishonesty bond, garage keepers, on hook, and drive-away. Coverage shall insure for the liability of all employees certified by the Department while acting in the course of their employment.

The agency shall notify the Department of any claim against the insurance policy and shall notify the Department immediately upon cancellation of the insurance policy, whether the cancellation was initiated by the insurance company or the insured agency. The agency's license shall automatically be suspended on the date of cancellation of the policy, unless evidence of insurance is provided to the Department prior to the effective date of the cancellation.

Section 95. Contingency work prohibited. No person or entity licensed, certified, or registered under this Act shall work on a contingency basis. Any assignment received from a financial institution or financier requesting repossession work within the State must be issued and accepted on a non-contingent basis.

Section 100. Display of license required. At all times, a repossession agency license shall be conspicuously displayed at the agency location on record with the Department.

Section 105. Local filing. Nothing in this Act shall prevent local authorities in any city, county, or city and county, by ordinance and within the exercise of the police power of the city or county from requiring repossession agency licensees and recovery manager certificate holders to register their names and file a copy of their State identification cards with the city, county, or city and county. No fee may be charged nor may any application be required by the city or county for this registration.

Section 110. Repossession of vehicles.

(a) With regard to collateral subject to registration under the Illinois Vehicle Code, repossession occurs when the repossessor gains entry into the collateral or when the collateral becomes connected to a tow truck.

(b) If personal effects or other property not recovered by a security agreement are contained in or on a recovered vehicle at the time it is recovered, the personal effects and other property must be handled in the manner set forth in Article II of Chapter 4 of the Illinois Vehicle Code.

Section 115. Deposit of fees and fines. All of the fees and fines collected under this Act shall be deposited into the General Professions Dedicated Fund.

Section 120. Payments; penalty for insufficient funds. Any person or entity who delivers a check or other payment to the Department that is returned to the Department unpaid by the financial institution upon which it is drawn shall pay to the Department, in addition to the amount already owed to the Department, a fine of $50. The fines imposed by this Section are in addition to any other discipline provided under this Act prohibiting unlicensed, uncertified, or unregistered practice or practice on a nonrenewed license, certificate, or registration card. The Department shall notify the person or entity that payment of fees and fines shall be paid to the Department by certified check or money order within 30 calendar days after notification. If, after the expiration of 30 days from the date of the notification, the person or entity has failed to submit the necessary remittance, the Department shall automatically terminate the license, certificate, or registration card or deny the application, without hearing. If, after termination or denial, the person seeks a license, certificate, or registration card, the person or entity shall apply to the Department for restoration or issuance of the license, certificate, or registration card and pay all fees and fines due to the Department. The Department may establish a fee for the processing of an application for restoration of a license, certificate, or registration card to pay all expenses of processing this application. The Secretary may waive the fines due under this Section in individual cases where the Secretary finds that the fines would be unreasonable or unnecessarily burdensome.

Section 125. Roster. The Department shall maintain a roster of names and addresses of all persons who hold valid licenses, certificates, and registration cards and all persons whose licenses, certificates, or registration cards have been suspended or revoked within the previous year. This roster shall be available upon request and payment of the required fee.

Section 130. Violations; injunctions; cease and desist order.

(a) If any person or entity violates a provision of this Act, the Secretary may, in the name of the People of the State of Illinois, through the Attorney General of the State of Illinois, petition for an order enjoining the violation or for an order enforcing compliance with this Act. Upon the filing of a verified petition in court, the court may issue a temporary restraining order, without notice or bond, and may preliminarily and permanently enjoin the violation. If it is established that the person or entity has violated or is violating the injunction, the Court may punish the offender for contempt of court. Proceedings under this Section are in addition to, and not in lieu of, all other remedies and penalties provided by this Act.

(b) If any person or entity practices as a repossession agency or a recovery manager or holds himself, herself, or itself out as such without having a valid license, certificate, or registration card under this Act, then any licensee, certificate holder, or registration card holder, any person injured thereby, or any resident of or legal entity within the State may, in addition to the Secretary, petition for relief as provided in subsection (a) of this Section.

(c) Whenever, in the opinion of the Department or the Board, any person or entity violates any provision of this Act, the Department may issue a rule to show cause why an order to cease and desist should not be entered against that person or entity. The rule shall clearly set forth the grounds relied upon by the Department and shall provide a period of 7 days from the date of the rule to file an answer to the satisfaction of the Department. Failure to answer to the satisfaction of the Department shall cause an order to cease and desist to be issued immediately.

Section 135. Investigation; notice and hearing. The Department may investigate the actions or qualifications of any person or entity holding or claiming to hold a license, certificate, or registration card. Before suspending, revoking, placing on probationary status, or taking any other disciplinary action as the Department may deem proper with regard to any license, certificate, or registration card, at least 30 days before the date set for the hearing, the Department shall (i) notify the accused in writing of any charges made and the time and place for a hearing on the charges before the Board, (ii) direct the accused to file a written answer to the charges with the Board under oath within 20 days after the service on the person or entity of such notice, and (iii) inform the accused that failure to file an answer shall result in a default judgment against the person or entity and the person's or entity's license, certificate, or registration card may be suspended, revoked, placed on probationary status, or other disciplinary action taken with regard to the license, as the Department may deem proper. In case the person or entity, after receiving notice, fails to file an answer, the person's or entity's license may, in the discretion of the Department, be suspended, revoked, placed on probationary status, or the Department may take whatever disciplinary action deemed proper, including the imposition of a fine, without a hearing, if the act or acts charged constitute sufficient grounds for such action under this Act. This written notice and any notice in the subsequent proceedings may be served by personal delivery to the accused, or by registered or certified mail to the address last specified by the accused in the last notification to the Department. In case the person or entity fails to file an answer after receiving notice, the person's or entity's license may, in the discretion of the Department, be suspended, revoked, or placed on probationary status, or the Department may take whatever disciplinary action deemed proper, including the imposition of a fine, without a hearing, if the act or acts charged constitute sufficient grounds for such action under this Act. The written answer shall be served by personal delivery, certified delivery, or certified or registered mail to the Department. At the time and place fixed in the notice, the Department shall proceed to hear the charges and the parties or their counsel shall be accorded ample opportunity to present such statements, testimony, evidence, and argument as may be pertinent to the charges or to the defense thereto. The Department may continue such hearing from time to time. At the discretion of the Secretary after having first received the recommendation of the Board, the accused person's or entity's license, certificate, or registration card may be suspended or revoked, if the evidence constitutes sufficient grounds for such action under this Act.

Section 140. Record of proceeding. The Department, at its expense, shall preserve a record of all proceedings at the formal hearing of any case. The notice of hearing, complaint and all other documents in the nature of pleadings and written motions filed in the proceedings, the transcript of testimony, the report of the Board and orders of the Department shall be in the record of the proceedings. The Department shall furnish a transcript of the record to any person interested in the hearing upon payment of the fee required under Section 2105-115 of the Department of Professional Regulation Law.

Section 145. Subpoenas; oaths; attendance of witnesses.

The Department has the power to subpoena and to bring before it any person and to take testimony either orally or by deposition, or both, with the same fees and mileage and in the same manner as prescribed in civil cases in the courts of this State. The Secretary, the designated hearing officer, and every member of the Board has power to administer oaths to witnesses at any hearing that the Department is authorized to conduct and any other oaths authorized in any Act administered by the Department. Any circuit court may, upon application of the Department or its designee or of the applicant, licensee, certificate holder, or registration card holder against whom proceedings under this Act are pending, enter an order requiring the attendance of witnesses and their testimony, and the production of documents, papers, files, books and records in connection with any hearing or investigation. The court may compel obedience to its order by proceedings for contempt.

Section 150. Recommendations for disciplinary action. At the conclusion of the hearing, the Board shall present to the Secretary a written report of its findings and recommendations. The report shall contain a finding whether or not the accused person or entity violated this Act or failed to comply with the conditions required in this Act. The Board shall specify the nature of the violation or failure to comply, and shall make its recommendations to the Secretary. The report of findings and recommendations of the Board shall be the basis for the Department's order for refusal or for the granting of a license, certificate, or registration card, or for any disciplinary action, unless the Secretary shall determine that the Board's report is contrary to the manifest weight of the evidence, in which case the Secretary may issue an order in contravention of the Board's report. The finding is not admissible in evidence against the person in a criminal prosecution brought for the violation of this Act, but the hearing and finding are not a bar to a criminal prosecution brought for the violation of this Act.

Section 155. Rehearing. In any hearing involving disciplinary action against a licensee, certificate holder, or registration card holder, a copy of the Board's report shall be served upon the respondent by the Department, either personally or as provided in this Act for the service of the notice of hearing. Within 20 calendar days after service, the respondent may present to the Department a motion in writing for a rehearing that shall specify the particular grounds for rehearing. If no motion for rehearing is filed, then upon the expiration of the time specified for filing a motion, or if a motion for rehearing is denied, then upon denial, the Secretary may enter an order in accordance with recommendations of the Board, except as provided in this Act. If the respondent orders from the reporting service, and pays for, a transcript of the record within the time for filing a motion for rehearing, the 20 calendar day period within which a motion may be filed shall commence upon the delivery of the transcript to the respondent.

Section 160. Appointment of a hearing officer. The Secretary has the authority to appoint any attorney duly licensed to practice law in the State of Illinois to serve as the hearing officer in any action for refusal to issue or renew a license, certificate, or registration card or to discipline a licensee, certificate holder, or registration card holder. The hearing officer has full authority to conduct the hearing. The hearing officer shall report his findings and recommendations to the Board and the Secretary. The Board has 60 calendar days from receipt of the report to review the report of the hearing officer and present its findings of fact, conclusions of law and recommendations to the Secretary. If the Board fails to present its report within the 60 calendar day period, the Secretary may issue an order based on the report of the hearing officer. If the Secretary disagrees with the recommendation of the Board or the hearing officer, the Secretary may issue an order in contravention of the recommendation.

Section 165. Hearing by other examiner. Whenever the Secretary is not satisfied that substantial justice has been done in the revocation, suspension or refusal to issue or renew a license, certificate, or registration card, the Secretary may order a rehearing by the same or other examiners.

Section 170. Order; certified copy. An order or a certified copy thereof, over the seal of the Department and purporting to be signed by the Secretary, shall be prima facie proof:

(a) that the signature is the genuine signature of the Secretary;

(b) that the Secretary is duly appointed and qualified; and

(c) that the Board and its members are qualified to act.

Section 175. Restoration. At any time after the suspension or revocation of any license, certificate, or registration card, the Department may restore the license, certificate, or registration card to the accused person, upon the written recommendation of the Board, unless after an investigation and a hearing the Board determines that restoration is not in the public interest.

Section 180. License, certificate, and registration card surrender. Upon the revocation or suspension of any license, certificate, or registration card, the licensee, certificate holder, or registration card holder shall immediately surrender the license, certificate, or registration card to the Department. If the licensee, certificate holder, or registration card holder fails to do so, the Department has the right to seize the license, certificate, or registration card.

Section 185. Summary suspension. The Secretary may summarily suspend the license of a repossession agency, the certificate of a recovery manager, or the registration card of an employee without a hearing, simultaneously with the institution of proceedings for a hearing provided for in this Act, if the Secretary finds that evidence in his or her possession indicates that a repossession agency's, recovery manager's, or employee's continuation in the business of collateral recovery would constitute an imminent danger to the public. In the event that the Secretary summarily suspends a license, certificate, or registration card without a hearing, a hearing by the Board must be held within 30 calendar days after the suspension has occurred.

Section 190. Judicial review. All final administrative decisions of the Department are subject to judicial review under the Administrative Review Law and its rules. The term "administrative decision" is defined as in Section 3-101 of the Code of Civil Procedure.

Proceedings for judicial review shall be commenced in the circuit court of the county in which the party applying for review resides; but if the party is not a resident of this State, the venue shall be in Sangamon County.

Section 195. Certification of records. The Department shall not be required to certify any record to the Court or file any answer in court or otherwise appear in any court in a judicial review proceeding, unless there is filed in the court, with the complaint, a receipt from the Department acknowledging payment of the costs of furnishing and certifying the record. Failure on the part of the plaintiff to file such receipt in Court shall be grounds for dismissal of the action.

Section 200. Violations; criminal penalties. Any person who is found to have violated any provision of this Act is guilty of a Class A misdemeanor for the first offense, and a Class 4 felony for second and subsequent offenses.

Section 205. Illinois Administrative Procedure Act. The Illinois Administrative Procedure Act is expressly adopted and incorporated in this Act as if all of the provisions of that Act were included in this Act, except that the provision of paragraph (d) of Section 10-65 of the Illinois Administrative Procedure Act, which provides that at hearings the license holder has the right to show compliance with all lawful requirements for retention, continuation, or renewal of the certificate, is specifically excluded. For the purpose of this Act, the notice required under Section 10-25 of the Illinois Administrative Procedure Act is deemed sufficient when mailed to the last known address of a party.