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1 | AN ACT concerning regulation.
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2 | Be it enacted by the People of the State of Illinois,
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3 | represented in the General Assembly:
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4 | Section 1. Short title. This Act may be cited as the | ||||||||||||||||||||||||||
5 | Foreclosure Protection Act. | ||||||||||||||||||||||||||
6 | Section 5. Findings. The General Assembly finds that home | ||||||||||||||||||||||||||
7 | ownership and the accumulation of equity in one's home provide | ||||||||||||||||||||||||||
8 | significant social and economic benefits to this State and its | ||||||||||||||||||||||||||
9 | citizens. Unfortunately, too many home owners in financial | ||||||||||||||||||||||||||
10 | distress, especially the poor, elderly, and financially | ||||||||||||||||||||||||||
11 | unsophisticated, are vulnerable to a variety of deceptive and | ||||||||||||||||||||||||||
12 | unconscionable business practices designed to dispossess them | ||||||||||||||||||||||||||
13 | or otherwise strip the equity from their homes. There is a | ||||||||||||||||||||||||||
14 | compelling need to curtail and to prevent the most deceptive | ||||||||||||||||||||||||||
15 | and unconscionable of these business practices, to provide each | ||||||||||||||||||||||||||
16 | home owner with information necessary to make an informed and | ||||||||||||||||||||||||||
17 | intelligent decision regarding transactions with certain | ||||||||||||||||||||||||||
18 | foreclosure consultants and equity purchases, to provide | ||||||||||||||||||||||||||
19 | certain minimum requirements for contracts between such | ||||||||||||||||||||||||||
20 | parties, including statutory rights to cancel such contracts, | ||||||||||||||||||||||||||
21 | and to ensure and foster fair dealing in the sale and purchase | ||||||||||||||||||||||||||
22 | of homes in foreclosure. Therefore, it is the intent of the | ||||||||||||||||||||||||||
23 | General Assembly that all violations of this Act have a |
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1 | significant public impact and that the terms of the Act be | ||||||
2 | liberally construed to achieve these purposes. | ||||||
3 | Section 10. Definitions. As used in this Act: | ||||||
4 | "Associate" means a partner, subsidiary, affiliate, agent, | ||||||
5 | or any other person working in association with a foreclosure | ||||||
6 | consultant or an equity purchaser. "Associate" does not include | ||||||
7 | a person who is excluded from the definition of "equity | ||||||
8 | purchaser" or a "foreclosure consultant". | ||||||
9 | "Equity purchaser" means a person who, in the course of the | ||||||
10 | person's business, vocation, or occupation, acquires title to a | ||||||
11 | residence in foreclosure, except that the term does not include | ||||||
12 | a person who acquires such title: | ||||||
13 | (1) for the purpose of using the property as his or her | ||||||
14 | personal residence for at least one year; | ||||||
15 | (2) by a deed in lieu of foreclosure to the holder of | ||||||
16 | an evidence of debt, or an associate of the holder of an | ||||||
17 | evidence, of a consensual lien, or encumbrance of record if | ||||||
18 | such consensual lien or encumbrance is recorded in the real | ||||||
19 | property records of the recorder of the county where the | ||||||
20 | residence in foreclosure is located prior to the recording | ||||||
21 | of the notice of election and demand for sale; | ||||||
22 | (3) by a deed from the county sheriff as a result of a | ||||||
23 | foreclosure sale; | ||||||
24 | (4) at a sale of property by statute; | ||||||
25 | (5) by order or judgment of any court; |
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1 | (6) from the person's spouse, relative, or relative of | ||||||
2 | a spouse, but the half or whole blood or by adoption, or | ||||||
3 | from a guardian, conservator, or personal representative | ||||||
4 | of a person identified in this paragraph; or | ||||||
5 | (7) while performing services as part of a person's | ||||||
6 | normal business activities under any law of this State or | ||||||
7 | the United States that regulates banks, trust companies, | ||||||
8 | savings and loan associations, credit unions, insurance | ||||||
9 | companies, title insurers, insurance producers, or escrow | ||||||
10 | companies authorized to conduct business in this State, an | ||||||
11 | affiliate or subsidiary of such person, or an employee or | ||||||
12 | agent acting on behalf of such person. | ||||||
13 | "Foreclosure consultant" means a person who does not, | ||||||
14 | directly or through an associate, take or acquire any interest | ||||||
15 | in or title to the residence in foreclosure and who, in the | ||||||
16 | course of such person's business, vocation, or occupation, | ||||||
17 | makes a solicitation, representation, or offer to a home owner | ||||||
18 | to perform, in exchange for compensation from the home owner or | ||||||
19 | from the proceeds of any loan or advance of funds, a service | ||||||
20 | that the person represents will do any of the following: | ||||||
21 | (1) stop or postpone a foreclosure sale; | ||||||
22 | (2) obtain a forbearance from a beneficiary under a | ||||||
23 | deed of trust, mortgage, or other lien; | ||||||
24 | (3) assist the home owner in exercising a right to cure | ||||||
25 | a default; | ||||||
26 | (4) obtain an extension of the period within which the |
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1 | home owner may cure a default; | ||||||
2 | (5) obtain a waiver of an acceleration clause contained | ||||||
3 | in an evidence of debt secured by a deed of trust, | ||||||
4 | mortgage, or other lien on a residence in foreclosure or | ||||||
5 | contained in such deed of trust, mortgage, or other lien; | ||||||
6 | (6) assist the home owner to obtain a loan or advance | ||||||
7 | of funds; | ||||||
8 | (7) avoid or reduce the impairment of the home owner's | ||||||
9 | credit resulting from the recording of a notice of election | ||||||
10 | and demand for sale, commencement of a judicial foreclosure | ||||||
11 | action, or due to any foreclosure sale or the granting of a | ||||||
12 | deed in lieu of foreclosure or resulting from any late | ||||||
13 | payment or other failure to pay or perform under the | ||||||
14 | evidence of debt, the deed of trust, or other lien securing | ||||||
15 | such evidence of debt; | ||||||
16 | (8) in any way delay, hinder, or prevent the | ||||||
17 | foreclosure upon the home owner's residence; or | ||||||
18 | (9) assist the home owner in obtaining from the | ||||||
19 | beneficiary, mortgagee, or grantee of the lien in | ||||||
20 | foreclosure or from counsel for such beneficiary, | ||||||
21 | mortgagee, or grantee the remaining or excess proceeds from | ||||||
22 | the foreclosure sale of the residence in foreclosure. | ||||||
23 | The term "foreclosure consultant" does not include: | ||||||
24 | (1) a person licensed to practice law in this State | ||||||
25 | while performing any activity related to the person's | ||||||
26 | attorney-client relationship with a home owner or any |
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1 | activity related to the person's attorney-client | ||||||
2 | relationship with the beneficiary, mortgagee, grantee, or | ||||||
3 | holder of any lien being enforced by way of foreclosure; | ||||||
4 | (2) a holder or servicer of an evidence of debt or the | ||||||
5 | attorney for the holder or servicer of an evidence of debt | ||||||
6 | secured by a deed of trust or other lien on any residence | ||||||
7 | in foreclosure while the person performs services in | ||||||
8 | connection with the evidence of debt, lien, deed of trust, | ||||||
9 | or other lien securing such debt; | ||||||
10 | (3) a person doing business under any law of this State | ||||||
11 | or the United States, which law regulates banks, trust | ||||||
12 | companies, savings and loan associations, credit unions, | ||||||
13 | insurance companies, title insurers, insurance producers, | ||||||
14 | or escrow companies authorized to conduct business in this | ||||||
15 | State, while the person performs services as part of the | ||||||
16 | person's normal business activities, an affiliate or | ||||||
17 | subsidiary of any of the foregoing, or an employee or agent | ||||||
18 | acting on behalf of any of the foregoing; | ||||||
19 | (4) a person originating or closing a loan in a | ||||||
20 | person's normal course of business if, as to that loan: | ||||||
21 | (A) the loan is subject to the requirements of the | ||||||
22 | federal Real Estate Settlement Procedures Act; or | ||||||
23 | (B) with respect to any second mortgage or home | ||||||
24 | equity line of credit, the loan is subordinate to and | ||||||
25 | closed simultaneously with a qualified first mortgage | ||||||
26 | loan under the federal Real Estate Settlement |
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1 | Procedures Act or is initially payable on the face of | ||||||
2 | the note or contract to an entity included in | ||||||
3 | subsection (3) of this definition; | ||||||
4 | (5) a judgment creditor of the home owner, if the | ||||||
5 | judgment is recorded in the real property records of the | ||||||
6 | recorder of the county where the residence in foreclosure | ||||||
7 | is located and the legal action giving rise to the judgment | ||||||
8 | was commenced before the notice of election and demand for | ||||||
9 | sale; | ||||||
10 | (6) a title insurance company or title insurance agent | ||||||
11 | authorized to conduct business in this State, while | ||||||
12 | performing title insurance and settlement services; | ||||||
13 | (7) a person licensed as a real estate broker or real | ||||||
14 | estate salesperson, while the person engaged in any | ||||||
15 | activity for which the person is licensed; or | ||||||
16 | (8) a nonprofit organization that solely offers | ||||||
17 | counseling or advice to home owners in foreclosure or loan | ||||||
18 | default, unless the organization is an associate of the | ||||||
19 | foreclosure consultant. | ||||||
20 | "Foreclosure consulting contract" means any agreement | ||||||
21 | between a foreclosure consultant and a home owner. | ||||||
22 | "Home owner" means the owner of a residence in foreclosure, | ||||||
23 | including a vendee under contract for deed to real property. | ||||||
24 | "Residence in foreclosure" means a residence or dwelling | ||||||
25 | that is occupied as the home owner's principal place of | ||||||
26 | residence and against which any type of foreclosure action has |
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1 | been commenced. | ||||||
2 | Section 15. Foreclosure consulting contract. | ||||||
3 | (a) A foreclosure consulting contract shall: | ||||||
4 | (1) be in writing and provided to and retained by the | ||||||
5 | home owner, without changes, alterations, or | ||||||
6 | modifications, for review at least 24 hours before it is | ||||||
7 | signed by the home owner; | ||||||
8 | (2) be printed in at least 12-point type and shall | ||||||
9 | include the name and address of the foreclosure consultant | ||||||
10 | to which a notice of cancellation can be mailed and the | ||||||
11 | date the home owner signed the contract; | ||||||
12 | (3) fully disclose the exact nature of the foreclosure | ||||||
13 | consulting services to be provided and the total amount and | ||||||
14 | terms of any compensation to be received by the foreclosure | ||||||
15 | consultant or associate; | ||||||
16 | (4) be dated and personally signed, with each page | ||||||
17 | being initialed, by each home owner of the residence in | ||||||
18 | foreclosure and the foreclosure consultant and shall be | ||||||
19 | acknowledged by a notary public in the presence of the home | ||||||
20 | owner at the time the contract is signed by the home owner; | ||||||
21 | and | ||||||
22 | (5) shall be printed in at least 14-point bold-faced | ||||||
23 | type, completed with the name of the foreclosure | ||||||
24 | consultant, and located in immediate proximity to the space | ||||||
25 | reserved for the home owner's signature. |
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1 | A completed form in duplicate, captioned "Notice of | ||||||
2 | Cancellation" shall accompany the foreclosure consulting | ||||||
3 | contract. The notice of cancellation shall: (i) be on a | ||||||
4 | separate sheet of paper attached to the contract; (ii) be | ||||||
5 | easily detachable; and (iii) be printed in at least 14-point | ||||||
6 | type. | ||||||
7 | (b) The foreclosure consultant shall provide to the home | ||||||
8 | owner a signed, dated, and acknowledged copy of the foreclosure | ||||||
9 | consulting contract and the attached notice of cancellation | ||||||
10 | immediately upon execution of the contract. The time during | ||||||
11 | which the home owner may cancel the foreclosure consulting | ||||||
12 | contract does not begin to run until the foreclosure consultant | ||||||
13 | has complied with this Section. | ||||||
14 | Section 20. Foreclosure consulting contract; right of | ||||||
15 | cancellation. | ||||||
16 | (a) In addition to any right or rescission available under | ||||||
17 | State or federal law, the home owner has the right to cancel a | ||||||
18 | foreclosure consulting contract at any time. Cancellation | ||||||
19 | occurs when the home owner gives written notice of cancellation | ||||||
20 | of the foreclosure consulting contract to the foreclosure | ||||||
21 | consultant at the address specified in the contract or through | ||||||
22 | any facsimile or electronic mail address identified in the | ||||||
23 | contract or other materials provided to the home owner by the | ||||||
24 | foreclosure consultant. | ||||||
25 | (b) Notice of cancellation, if given by mail, is effective |
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1 | when deposited in the United State mail, properly addressed, | ||||||
2 | with postage prepaid. Notice of cancellation need not be in the | ||||||
3 | form provided with the contract and is effective, however | ||||||
4 | expressed, if it indicated the intention of the home owner to | ||||||
5 | cancel the foreclosure consulting contract. As part of the | ||||||
6 | cancellation of a foreclosure consulting contract, the home | ||||||
7 | owner shall repay, with 60 days after the date of cancellation, | ||||||
8 | all funds paid or advanced in good faith prior to the receipt | ||||||
9 | of notice of cancellation by the foreclosure consultant or | ||||||
10 | associate under the terms of the foreclosure consulting | ||||||
11 | contract, together with interest at the prime rate published by | ||||||
12 | the Federal Reserve, plus 2 percentage points, with the total | ||||||
13 | interest rate not to exceed 8% per year, from the date of | ||||||
14 | expenditure until repaid by the home owner. | ||||||
15 | (c) The right to cancel may not be condition on the | ||||||
16 | repayment of any funds. | ||||||
17 | Section 25. Foreclosure consulting contract; waiver of | ||||||
18 | rights. A provision in a foreclosure consulting contract is | ||||||
19 | void as against public policy if the provision attempts or | ||||||
20 | purports to: | ||||||
21 | (a) waive any rights specified in Sections 15 though 45 | ||||||
22 | of this Act or the right to jury trial; | ||||||
23 | (b) consent to jurisdiction for litigation or choice of | ||||||
24 | law in a state other than this State; | ||||||
25 | (c) consent to venue in a county other than the county |
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1 | in which the property is located; or | ||||||
2 | (d) impose any costs or fees greater than the actual | ||||||
3 | costs and fees. | ||||||
4 | Section 30. Prohibited acts. A foreclosure consultant may | ||||||
5 | not: | ||||||
6 | (a) claim, demand, charge, collect, or receive any | ||||||
7 | compensation until after the foreclosure consultant has | ||||||
8 | fully performed each and every service the foreclosure | ||||||
9 | consultant contracted to perform or represented that the | ||||||
10 | foreclosure consultant would perform. | ||||||
11 | (b) claim, demand, charge, collect, or receive any | ||||||
12 | interest or any other compensation for a loan that the | ||||||
13 | foreclosure consultant makes to the home owner that exceeds | ||||||
14 | the prime rate published by the Federal Reserve at the time | ||||||
15 | of any loan plus 2 percentage points, with the total | ||||||
16 | interest rate not to exceed 8% per year; | ||||||
17 | (c) take a wage assignment, lien of any type on real or | ||||||
18 | personal property, or other security to secure the payment | ||||||
19 | of compensation; | ||||||
20 | (d) receive any consideration from a third party in | ||||||
21 | connection with foreclosure consulting services provided | ||||||
22 | to a home owner with whom the foreclosure consultant has | ||||||
23 | contracted; | ||||||
24 | (e) acquire an interest, directly, indirectly, or | ||||||
25 | through an associate, in the real or personal property of a |
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1 | home owner with whom the foreclosure consultant has | ||||||
2 | contracted; | ||||||
3 | (f) obtain a power of attorney from a home owner for | ||||||
4 | any purpose other than to inspect documents as provided by | ||||||
5 | law; or | ||||||
6 | (g) induce or attempt to induce a home owner to enter | ||||||
7 | into a foreclosure consulting contract that does not comply | ||||||
8 | in all respects with this Section. | ||||||
9 | Section 35. Foreclosure consulting contract; criminal | ||||||
10 | penalties. A person who violates Section 30 of this Act is | ||||||
11 | guilty of a Class A misdemeanor and, in addition to any term of | ||||||
12 | imprisonment that may be imposed by the court, may be fined up | ||||||
13 | to $25,000. | ||||||
14 | Section 40. Foreclosure consulting contract; | ||||||
15 | unconscionability. | ||||||
16 | (a) A foreclosure consultant or associate may not | ||||||
17 | facilitate or engage in any transaction that is unconscionable | ||||||
18 | given the terms and circumstances of the transaction. | ||||||
19 | (b) If a court, as a matter of law, finds a foreclosure | ||||||
20 | consultant contract or any clause of such contract to have been | ||||||
21 | unconscionable at the time it was made, the court may refuse to | ||||||
22 | enforce the contract, enforce the remainder of the contract | ||||||
23 | without the unconscionable clause, or so limit the application | ||||||
24 | of any unconscionable clause as to avoid an unconscionable |
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1 | result. | ||||||
2 | (c) When it is claimed or appears to the court that a | ||||||
3 | foreclosure consultant contract or any clause of such contract | ||||||
4 | may be unconscionable, the parties shall be afforded a | ||||||
5 | reasonable opportunity to present evidence as to its commercial | ||||||
6 | setting, purpose, and effect, to aid the court in making the | ||||||
7 | determination. | ||||||
8 | (d) In order to support a finding of unconscionability, | ||||||
9 | there must be evidence of some bad faith overreaching on the | ||||||
10 | part of the foreclosure consultant or associate such as that | ||||||
11 | which results from an unreasonable inequality of bargaining | ||||||
12 | power or other circumstance in which there is an absence of | ||||||
13 | meaningful choice for one of the parties, together with | ||||||
14 | contract terms that are, under standard industry practices, | ||||||
15 | unreasonably favorable to the foreclosure consultant or | ||||||
16 | associate. | ||||||
17 | Section 45. Foreclosure consulting contract language. A | ||||||
18 | foreclosure consulting contract and all notices of | ||||||
19 | cancellation shall be written in English and shall be | ||||||
20 | accompanied by a written translation from English into any | ||||||
21 | other language principally spoken by the home owner, certified | ||||||
22 | by the person making the translation as a true and correct | ||||||
23 | translation of the English version. The translated version | ||||||
24 | shall be presumed to have equal status and credibility as the | ||||||
25 | English version. |
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1 | Section 50. Equity purchases; written contract required. | ||||||
2 | Every contract shall be written in at least 12-point bold-faced | ||||||
3 | type and fully completed, signed, and dated by the home owner | ||||||
4 | and equity purchaser prior to the execution of any instrument | ||||||
5 | quit-claiming, assigning, transferring, conveying, or | ||||||
6 | encumbering an interest in the residence in foreclosure. | ||||||
7 | Section 55. Equity purchases; contents; notice. Every | ||||||
8 | contract shall contain the entire agreement of the parties and | ||||||
9 | shall include the following terms: | ||||||
10 | (a) the name, business address, and telephone number of | ||||||
11 | the equity purchaser; | ||||||
12 | (b) the street address and full legal description of | ||||||
13 | the residence in foreclosure | ||||||
14 | (c) clear and conspicuous disclosure of any financial | ||||||
15 | or legal obligations of the home owner that will be assumed | ||||||
16 | by the equity purchaser. If the equity purchaser will not | ||||||
17 | be assuming any financial or legal obligations of the home | ||||||
18 | owner, the equity purchaser shall provide to the home owner | ||||||
19 | a separate written disclosure that substantially complies | ||||||
20 | with applicable State law. | ||||||
21 | (d) the total consideration to be paid by the equity | ||||||
22 | purchaser in connection with or incident to the acquisition | ||||||
23 | by the equity purchaser of the residence in foreclosure; | ||||||
24 | (e) the terms of payment or other consideration, |
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1 | including, but not limited to, any services of any nature | ||||||
2 | that the equity purchaser represents will be performed for | ||||||
3 | the home owner before or after the sale; | ||||||
4 | (f) the date and time when possession of the residence | ||||||
5 | in foreclosure is to be transferred to the equity | ||||||
6 | purchaser; | ||||||
7 | (g) the terms of any rental agreement or lease; | ||||||
8 | (h) the specifications of any option or right to | ||||||
9 | repurchase the residence in foreclosure, including the | ||||||
10 | specific amounts of any escrow deposit, down payment, | ||||||
11 | purchase price, closing costs, commissions, or other fees | ||||||
12 | or costs; | ||||||
13 | (i) a notice of cancellation as provided in Section 65 | ||||||
14 | of this Act; and | ||||||
15 | (j) the following notice, in at least 14-point | ||||||
16 | bold-faced type and completed with the name of the equity | ||||||
17 | purchaser, immediately above the statement required by | ||||||
18 | Section 65 of this Act. | ||||||
19 | Section 60. Equity purchase; right to cancel contract. | ||||||
20 | (a) In addition to any right of recission available under | ||||||
21 | State or federal law, the home owner has the right to cancel a | ||||||
22 | contract with an equity purchaser until 12 midnight of the | ||||||
23 | third business day following the day on which the home owner | ||||||
24 | signs a contract that complies with this Section or until 12 | ||||||
25 | noon on the day before the foreclosure sale of the residence in |
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1 | foreclosure, whichever occurs first. Cancellation occurs when | ||||||
2 | the home owner personally delivers written notice of | ||||||
3 | cancellation to the address specified in the contract or upon | ||||||
4 | deposit of such notice in the United States mail, properly | ||||||
5 | addressed, with postage prepaid. | ||||||
6 | (b) Notice of cancellation given by the home owner need not | ||||||
7 | take the particular form as provided with the contract and, | ||||||
8 | however expressed, is effective if it indicates the intention | ||||||
9 | of the home owner not to be bound by the contract. In the | ||||||
10 | absence of any written notice of cancellation from the home | ||||||
11 | owner, the execution by the home owner of a deed or other | ||||||
12 | instrument of conveyance of an interest in the residence in | ||||||
13 | foreclosure to the equity purchaser after the expiration of the | ||||||
14 | rescission period creates a rebuttable presumption that the | ||||||
15 | home owner did not cancel the contract with the equity | ||||||
16 | purchaser. | ||||||
17 | Section 65. Equity purchase contract; notice of | ||||||
18 | cancellation. | ||||||
19 | (a) The contract shall contain, as the last provision | ||||||
20 | before the space reserved for the home owner's signature, a | ||||||
21 | conspicuous statement in at least 12-point bold-faced type, | ||||||
22 | stating the time when the home owner may cancel the equity | ||||||
23 | purchase contract with out penalty. | ||||||
24 | (b) The equity purchaser shall accurately specify the date | ||||||
25 | and time of day on which the cancellation rights ends. The |
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1 | contract shall be accompanied by duplicate completed forms, | ||||||
2 | captioned "notice of cancellation" in at least twelve-point | ||||||
3 | bold-faced type if the contract is printed or in capital | ||||||
4 | letters if the contract is typed, followed by a space in which | ||||||
5 | the equity purchaser shall enter the date on which the home | ||||||
6 | owner executed the contract. Such form shall be attached to the | ||||||
7 | contract and be easily detachable. The equity purchaser shall | ||||||
8 | provide the home owner with a copy of the contract and attached | ||||||
9 | notice of cancellation. Until the equity purchaser has complied | ||||||
10 | with this Section, the home owner may cancel the contract. | ||||||
11 | Section 70. Options through reconveyances. | ||||||
12 | (a) A transaction in which a home owner purports to grant a | ||||||
13 | residence in foreclosure to an equity purchaser by an | ||||||
14 | instrument that appears to be an absolute conveyance and | ||||||
15 | reserves to the home owner or is given by the equity purchaser | ||||||
16 | an option to repurchase shall be permitted only where all of | ||||||
17 | the following conditions have been met: | ||||||
18 | (1) the reconveyance contract complies in all respects | ||||||
19 | with Section 55 of this Act | ||||||
20 | (2) the reconveyance contract provides the home owner | ||||||
21 | with a nonwaivable 30-day right to cure any default of said | ||||||
22 | reconveyance contract and specifies that the home owner may | ||||||
23 | exercise this right to cure on at least 3 separate | ||||||
24 | occasions during such reconveyance contract; | ||||||
25 | (3) the equity purchaser fully assumes or discharges |
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1 | the lien in foreclosure as well as any prior liens that | ||||||
2 | will not be extinguished by such foreclosure, which | ||||||
3 | assumption or discharge shall be accomplished without | ||||||
4 | violation of the terms and conditions of the liens being | ||||||
5 | assumed or discharged. | ||||||
6 | (4) the equity purchaser verifies and can demonstrate | ||||||
7 | that the home owner has or will have a reasonable ability | ||||||
8 | to make the lease payments and to repurchase the residence | ||||||
9 | in foreclosure within the term of the option to repurchase | ||||||
10 | under the reconveyance contract. For purposes of this | ||||||
11 | Section, there is a rebuttable presumption that the home | ||||||
12 | owner has a reasonable ability to make lease payments and | ||||||
13 | to repurchase the residence in foreclosure if the home | ||||||
14 | owner's payments for primary housing expenses and regular | ||||||
15 | principal and interest payments on other personal debt do | ||||||
16 | not exceed 60% of the home owner's monthly gross income; | ||||||
17 | and | ||||||
18 | (5) the price the home owner must pay to exercise the | ||||||
19 | option to repurchase the residence in foreclosure is not | ||||||
20 | unconscionable. | ||||||
21 | (b) Without limitation on available claims under Section 90 | ||||||
22 | of this Act, a repurchase price exceeding 25% of the price at | ||||||
23 | which the equity purchaser acquired the residence in | ||||||
24 | foreclosure creates a rebuttable presumption that the | ||||||
25 | reconveyance contract is unconscionable. The acquisition price | ||||||
26 | paid by the equity purchaser may include any actual costs |
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1 | incurred by the equity purchaser in acquiring the residence in | ||||||
2 | foreclosure. | ||||||
3 | Section 75. Waiver of rights in contracts between equity | ||||||
4 | purchasers and home owners. A provision in a contract between | ||||||
5 | an equity purchaser and home owner is void against public | ||||||
6 | policy if it attempts or purports to: | ||||||
7 | (a) waive any of the rights specified in Sections 50 | ||||||
8 | through 95 of this Act or the right to a jury trial; | ||||||
9 | (b) consent to jurisdiction for litigation or choice of | ||||||
10 | law in a state other than this State; | ||||||
11 | (c) consent to venue in a county other than the county | ||||||
12 | in which the property is located; or | ||||||
13 | (d) impose any costs or fees greater than the actual | ||||||
14 | costs and fees. | ||||||
15 | Section 80. Prohibited conduct of equity purchasers. | ||||||
16 | (a) The contract provisions required by Sections 50 through | ||||||
17 | 14 of this Act shall be provided and completed in conformity | ||||||
18 | with such Sections by the equity purchaser. | ||||||
19 | (b) Until the time within which the home owner may cancel | ||||||
20 | the transaction has fully elapsed, the equity purchaser shall | ||||||
21 | not do any of the following: | ||||||
22 | (1) accept from a home owner an execution of, or induce | ||||||
23 | a home owner to execute, an instrument of conveyance of any | ||||||
24 | interest in the residence in foreclosure; |
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1 | (2) record with the county recorder any document, | ||||||
2 | including, but not limited to, the contract or any lease, | ||||||
3 | lien, or instrument of conveyance, that has be signed by | ||||||
4 | the home owner; | ||||||
5 | (3) transfer or encumber or purport to transfer or | ||||||
6 | encumber an interest in the residence in foreclosure to a | ||||||
7 | third party; or | ||||||
8 | (4) pay the home owner any consideration. | ||||||
9 | (b) Within 10 days following receipt of a notice of | ||||||
10 | cancellation given in accordance with Section 60 and 65 of this | ||||||
11 | Act, the equity purchaser shall return without condition the | ||||||
12 | original contract and any other documents signed by the home | ||||||
13 | owner. | ||||||
14 | (c) An equity purchaser shall make no untrue or misleading | ||||||
15 | statements of material fact regarding the value of the | ||||||
16 | residence in foreclosure, the amount of proceeds the home owner | ||||||
17 | will receive after a foreclosure sale, any contract term, the | ||||||
18 | home owner's rights or obligations incident to or arising out | ||||||
19 | of the sale transaction, the nature of any document that the | ||||||
20 | equity purchaser induces the home owner to sigh, or any other | ||||||
21 | untrue or misleading statement concerning the sale of the | ||||||
22 | residence in foreclosure to the equity purchaser. | ||||||
23 | Section 85. Penalties. A person who violates Section 80 of | ||||||
24 | this Act is guilty of a Class A misdemeanor and, in addition to | ||||||
25 | any term of imprisonment that may be imposed by the court, may |
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1 | be fined up to $25,000. | ||||||
2 | Section 90. Unconscionable behavior; equity purchasers. | ||||||
3 | (a) An equity purchaser or associate may not facilitate or | ||||||
4 | engage in any transaction that is unconscionable given the | ||||||
5 | terms and circumstances of the transaction. | ||||||
6 | (b) If a court, as a matter of law, finds an equity | ||||||
7 | purchaser contract or any clause of such contract to have be | ||||||
8 | unconscionable at the time it was made, the court may refuse to | ||||||
9 | enforce the contract, enforce the remainder of the contract | ||||||
10 | without the unconscionable clause, or so limit the application | ||||||
11 | of any unconscionable clause as to avoid an unconscionable | ||||||
12 | result. | ||||||
13 | When it is claimed or appears to the court that the | ||||||
14 | contract or any clause thereof may be unconscionable, the | ||||||
15 | parties shall be afforded a reasonable opportunity to present | ||||||
16 | evidence as to its commercial setting, purpose, and effect to | ||||||
17 | aid the court in making the determination. | ||||||
18 | (c) In order to support a finding of unconscionability, | ||||||
19 | there must be evidence of some bad faith overreaching on the | ||||||
20 | part of the equity purchaser or associate, such as that which | ||||||
21 | results from an unreasonable inequality of bargaining power or | ||||||
22 | under other circumstances in which there is an absence of | ||||||
23 | meaningful choices for one of the parties, together with | ||||||
24 | contract terms that are, under standard industry practices, | ||||||
25 | unreasonably favorable to the equity purchaser or associate. |
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1 | Section 95. Language of equity purchase contracts. Any | ||||||
2 | contract, rental agreement, lease, option, or right to | ||||||
3 | repurchase, and any notice, conveyance, lien, encumbrance, | ||||||
4 | consent, or other document or instrument signed by a home | ||||||
5 | owner, shall be written in English and shall be accompanied by | ||||||
6 | a written translation from English into any other language | ||||||
7 | principally spoken by the home owner, certified by the person | ||||||
8 | making the translation as a true and correct translation of the | ||||||
9 | English version. The translated version shall be presumed to | ||||||
10 | have equal status and credibility as the English version. | ||||||
11 | Section 100. Unfair trade practices. A person engages in an | ||||||
12 | unfair trade practice when, in the course of the person's | ||||||
13 | business, vocation, or occupation, the person violates any | ||||||
14 | provision of this Act.
| ||||||
15 | Section 900. The Consumer Fraud and Deceptive Business | ||||||
16 | Practices Act is amended by changing Section 2Z as follows:
| ||||||
17 | (815 ILCS 505/2Z) (from Ch. 121 1/2, par. 262Z)
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18 | (Text of Section before amendment by P.A. 95-562 ) | ||||||
19 | Sec. 2Z. Violations of other Acts. Any person who knowingly | ||||||
20 | violates
the Automotive Repair Act, the Automotive Collision | ||||||
21 | Repair Act,
the Home Repair and Remodeling Act,
the Dance | ||||||
22 | Studio Act,
the Physical Fitness Services Act,
the Hearing |
| |||||||
| |||||||
1 | Instrument Consumer Protection Act,
the Illinois Union Label | ||||||
2 | Act,
the Job Referral and Job Listing Services Consumer | ||||||
3 | Protection Act,
the Travel Promotion Consumer Protection Act,
| ||||||
4 | the Credit Services Organizations Act,
the Automatic Telephone | ||||||
5 | Dialers Act,
the Pay-Per-Call Services Consumer Protection | ||||||
6 | Act,
the Telephone Solicitations Act,
the Illinois Funeral or | ||||||
7 | Burial Funds Act,
the Cemetery Care Act,
the Safe and Hygienic | ||||||
8 | Bed Act,
the Pre-Need Cemetery Sales Act,
the High Risk Home | ||||||
9 | Loan Act, the Payday Loan Reform Act, the Mortgage Rescue Fraud | ||||||
10 | Act, subsection (a) or (b) of Section 3-10 of the
Cigarette Tax | ||||||
11 | Act, the Payday Loan Reform Act, subsection
(a) or (b) of | ||||||
12 | Section 3-10 of the Cigarette Use Tax Act, the Electronic
Mail | ||||||
13 | Act, the Internet Caller Identification Act, paragraph (6)
of
| ||||||
14 | subsection (k) of Section 6-305 of the Illinois Vehicle Code, | ||||||
15 | Article 3 of the Residential Real Property Disclosure Act, the | ||||||
16 | Foreclosure Protection Act, the Automatic Contract Renewal | ||||||
17 | Act, or the Personal Information Protection Act commits an | ||||||
18 | unlawful practice within the meaning of this Act.
| ||||||
19 | (Source: P.A. 94-13, eff. 12-6-05; 94-36, eff. 1-1-06; 94-280, | ||||||
20 | eff. 1-1-06; 94-292, eff. 1-1-06; 94-822, eff. 1-1-07; 95-413, | ||||||
21 | eff. 1-1-08.)
| ||||||
22 | (Text of Section after amendment by P.A. 95-562 ) | ||||||
23 | Sec. 2Z. Violations of other Acts. Any person who knowingly | ||||||
24 | violates
the Automotive Repair Act, the Automotive Collision | ||||||
25 | Repair Act,
the Home Repair and Remodeling Act,
the Dance |
| |||||||
| |||||||
1 | Studio Act,
the Physical Fitness Services Act,
the Hearing | ||||||
2 | Instrument Consumer Protection Act,
the Illinois Union Label | ||||||
3 | Act,
the Job Referral and Job Listing Services Consumer | ||||||
4 | Protection Act,
the Travel Promotion Consumer Protection Act,
| ||||||
5 | the Credit Services Organizations Act,
the Automatic Telephone | ||||||
6 | Dialers Act,
the Pay-Per-Call Services Consumer Protection | ||||||
7 | Act,
the Telephone Solicitations Act,
the Illinois Funeral or | ||||||
8 | Burial Funds Act,
the Cemetery Care Act,
the Safe and Hygienic | ||||||
9 | Bed Act,
the Pre-Need Cemetery Sales Act,
the High Risk Home | ||||||
10 | Loan Act, the Payday Loan Reform Act, the Mortgage Rescue Fraud | ||||||
11 | Act, subsection (a) or (b) of Section 3-10 of the
Cigarette Tax | ||||||
12 | Act, the Payday Loan Reform Act, subsection
(a) or (b) of | ||||||
13 | Section 3-10 of the Cigarette Use Tax Act, the Electronic
Mail | ||||||
14 | Act, the Internet Caller Identification Act, paragraph (6)
of
| ||||||
15 | subsection (k) of Section 6-305 of the Illinois Vehicle Code, | ||||||
16 | Section 18d-115, 18d-120, 18d-125, 18d-135, or 18d-150 of the | ||||||
17 | Illinois Vehicle Code, Article 3 of the Residential Real | ||||||
18 | Property Disclosure Act, the Foreclosure Protection Act, the | ||||||
19 | Automatic Contract Renewal Act, or the Personal Information | ||||||
20 | Protection Act commits an unlawful practice within the meaning | ||||||
21 | of this Act.
| ||||||
22 | (Source: P.A. 94-13, eff. 12-6-05; 94-36, eff. 1-1-06; 94-280, | ||||||
23 | eff. 1-1-06; 94-292, eff. 1-1-06; 94-822, eff. 1-1-07; 95-413, | ||||||
24 | eff. 1-1-08; 95-562, eff. 7-1-08; revised 10-17-07.)
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25 | Section 995. No acceleration or delay. Where this Act makes |
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| |||||||
1 | changes in a statute that is represented in this Act by text | ||||||
2 | that is not yet or no longer in effect (for example, a Section | ||||||
3 | represented by multiple versions), the use of that text does | ||||||
4 | not accelerate or delay the taking effect of (i) the changes | ||||||
5 | made by this Act or (ii) provisions derived from any other | ||||||
6 | Public Act.
|