Sen. Don Harmon

Filed: 3/13/2007

 

 


 

 


 
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1
AMENDMENT TO SENATE BILL 1398

2     AMENDMENT NO. ______. Amend Senate Bill 1398 by replacing
3 everything after the enacting clause with the following:
 
4     "Section 5. The Collection Agency Act is amended by
5 changing Sections 2, 2.03, and 3 and by adding Sections 9.1,
6 9.2, 9.3, 9.4, and 9.7 as follows:
 
7     (225 ILCS 425/2)  (from Ch. 111, par. 2002)
8     (Section scheduled to be repealed on January 1, 2016)
9     Sec. 2. Definitions. In this Act:
10     "Consumer credit transaction" means a transaction between
11 a natural person and another person in which property, service,
12 or money is acquired on credit by that natural person from such
13 other person primarily for personal, family, or household
14 purposes.
15     "Consumer debt" or "consumer credit" means money,
16 property, or their equivalent, due or owing or alleged to be

 

 

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1 due or owing from a natural person by reason of a consumer
2 credit transaction.
3     "Creditor" means a person who extends consumer credit to a
4 debtor.
5     "Debt" means money, property, or their equivalent which is
6 due or owing or alleged to be due or owing from a natural
7 person to another person.
8     "Debt collection" means any act or practice in connection
9 with the collection of consumer debts.
10     "Debt collector", "collection agency", or "agency" means
11 any person who, in the ordinary course of business, regularly,
12 on behalf of himself or herself or others, engages in debt
13 collection.
14     "Debtor" means a natural person from whom a debt collector
15 seeks to collect a consumer debt that is due and owing or
16 alleged to be due and owing from such person.
17     "Department" means Division of Professional Regulation
18 within the Department of Financial and Professional
19 Regulation.
20     "Director" means the Director of the Division of
21 Professional Regulation within the Department of Financial and
22 Professional Regulation.
23     "Person" means a natural person, partnership, corporation,
24 limited liability company, trust, estate, cooperative,
25 association, or other similar entity. Unless the context
26 clearly requires otherwise, the following terms have the

 

 

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1 meanings ascribed to them in Sections 2.01 through 2.02.
2 (Source: P.A. 78-1248.)
 
3     (225 ILCS 425/2.03)  (from Ch. 111, par. 2005)
4     (Section scheduled to be repealed on January 1, 2016)
5     Sec. 2.03. This Act does not apply to persons whose
6 collection activities are confined to and are directly related
7 to the operation of a business other than that of a collection
8 agency, and specifically does not include the following:
9         1. Banks, including trust departments, affiliates, and
10     subsidiaries thereof, fiduciaries, and financing and
11     lending institutions (except those who own or operate
12     collection agencies);
13         2. Abstract companies doing an escrow business;
14         3. Real estate brokers when acting in the pursuit of
15     their profession;
16         4. Public officers and judicial officers acting under
17     order of a court;
18         5. Licensed attorneys at law;
19         6. Insurance companies;
20         7. Credit unions;
21         8. Loan and finance companies;
22         9. Retail stores collecting their own accounts;
23         10. Unit Owner's Associations established under the
24     Condominium Property Act, and their duly authorized
25     agents, when collecting assessments from unit owners; and

 

 

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1         11. Any person or business under contract with a
2     creditor to notify the creditor's debtors of a debt using
3     only the creditor's name.
4 (Source: P.A. 89-387, eff. 1-1-96.)
 
5     (225 ILCS 425/3)  (from Ch. 111, par. 2006)
6     (Section scheduled to be repealed on January 1, 2016)
7     Sec. 3. A person, association, partnership, corporation,
8 or other legal entity acts as a collection agency when he or
9 it:
10         (a) Engages in the business of collection for others of
11     any account, bill or other indebtedness;
12         (b) Receives, by assignment or otherwise, accounts,
13     bills, or other indebtedness from any person owning or
14     controlling 20% or more of the business receiving the
15     assignment, with the purpose of collecting monies due on
16     such account, bill or other indebtedness;
17         (c) Sells or attempts to sell, or gives away or
18     attempts to give away to any other person, other than one
19     registered under this Act, any system of collection,
20     letters, demand forms, or other printed matter where the
21     name of any person, other than that of the creditor,
22     appears in such a manner as to indicate, directly or
23     indirectly, that a request or demand is being made by any
24     person other than the creditor for the payment of the sum
25     or sums due or asserted to be due;

 

 

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1         (d) Buys accounts, bills or other indebtedness with
2     recourse and engages in collecting the same; or
3         (e) Uses a fictitious name in collecting its own
4     accounts, bills, or debts with the intention of conveying
5     to the debtor that a third party has been employed to make
6     such collection.
7 (Source: P.A. 94-414, eff. 12-31-05.)
 
8     (225 ILCS 425/9.1 new)
9     (Section scheduled to be repealed on January 1, 2016)
10     Sec. 9.1. Communication with persons other than debtor.
11     (a) Any debt collector or collection agency communicating
12 with any person other than the debtor for the purpose of
13 acquiring location information about the debtor shall:
14         (1) identify himself or herself, state that he or she
15     is confirming or correcting location information
16     concerning the consumer, and, only if expressly requested,
17     identify his or her employer;
18         (2) not state that the consumer owes any debt;
19         (3) not communicate with any the person more than once
20     unless requested to do so by the person or unless the debt
21     collector or collection agency reasonably believes that
22     the earlier response of the person is erroneous or
23     incomplete and that the person now has correct or complete
24     location information;
25         (4) not communicate by postcard;

 

 

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1         (5) not use any language or symbol on any envelope or
2     in the contents of any communication effected by mail or
3     telegram that indicates that the debt collector or
4     collection agency is in the debt collection business or
5     that the communication relates to the collection of a debt;
6     and
7         (6) after the debt collector or collection agency knows
8     the debtor is represented by an attorney with regard to the
9     subject debt and has knowledge of or can readily ascertain
10     the attorney's name and address, not communicate with any
11     person other than the attorney, unless the attorney fails
12     to respond within a reasonable period of time, not less
13     than 30 days, to communication from the debt collector or
14     collection agency.
 
15     (225 ILCS 425/9.2 new)
16     (Section scheduled to be repealed on January 1, 2016)
17     Sec. 9.2. Communication in connection with debt
18 collection.
19     (a) Without the prior consent of the debtor given directly
20 to the debt collector or collection agency or the express
21 permission of a court of competent jurisdiction, a debt
22 collector or collection agency may not communicate with a
23 debtor in connection with the collection of any debt in any of
24 the following circumstances:
25         (1) At any unusual time, place, or manner that is known

 

 

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1     or should be known to be inconvenient to the debtor. In the
2     absence of knowledge of circumstances to the contrary, a
3     debt collector or collection agency shall assume that the
4     convenient time for communicating with a debtor is after 8
5     o'clock a.m. and before 9 o'clock p.m. local time at the
6     debtor's location.
7         (2) If the debt collector or collection agency knows
8     the debtor is represented by an attorney with respect to
9     such debt and has knowledge of or can readily ascertain,
10     the attorney's name and address, unless the attorney fails
11     to respond within a reasonable period of time to a
12     communication from the debt collector or collection agency
13     or unless the attorney consents to direct communication
14     with the debtor.
15         (3) At the debtor's place of employment, if the debt
16     collector or collection agency knows or has reason to know
17     that the debtor's employer prohibits the debtor from
18     receiving such communication.
19     (b) Except as provided in Section 9.1 of this Act, without
20 the prior consent of the debtor given directly to the debt
21 collector or collection agency or the express permission of a
22 court of competent jurisdiction or as reasonably necessary to
23 effectuate a post judgment judicial remedy, a debt collector or
24 collection agency may not communicate, in connection with the
25 collection of any debt, with any person other than the debtor,
26 the debtor's attorney, a consumer reporting agency if otherwise

 

 

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1 permitted by law, the creditor, the attorney of the creditor,
2 or the attorney of the collection agency.
3     (c) If a debtor notifies a debt collector or collection
4 agency in writing that the debtor refuses to pay a debt or that
5 the debtor wishes the debt collector or collection agency to
6 cease further communication with the debtor, the debt collector
7 or collection agency may not communicate further with the
8 debtor with respect to such debt, except to perform any of the
9 following tasks:
10         (1) Advise the debtor that the debt collector's or
11     collection agency's further efforts are being terminated.
12         (2) Notify the debtor that the collection agency or
13     creditor may invoke specified remedies that are ordinarily
14     invoked by such collection agency or creditor.
15         (3) Notify the debtor that the collection agency or
16     creditor intends to invoke a specified remedy.
17     If such notice from the debtor is made by mail,
18 notification shall be complete upon receipt. (d) For the
19 purposes of this Section, "debtor" includes the debtor's
20 spouse, parent (if the debtor is a minor), guardian, executor,
21 or administrator.
 
22     (225 ILCS 425/9.3 new)
23     (Section scheduled to be repealed on January 1, 2016)
24     Sec. 9.3. Validation of debts.
25     (a) Within 5 days after the initial communication with a

 

 

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1 debtor in connection with the collection of any debt, a debt
2 collector or collection agency shall, unless the following
3 information is contained in the initial communication or the
4 debtor has paid the debt, send the debtor a written notice with
5 each of the following disclosures:
6         (1) The amount of the debt.
7         (2) The name of the creditor to whom the debt is owed.
8         (3) That, unless the debtor, within 30 days after
9     receipt of the notice, disputes the validity of the debt,
10     or any portion thereof, the debt will be assumed to be
11     valid by the debt collector or collection agency.
12         (4) That, if the debtor notifies the debt collector or
13     collection agency in writing within the 30-day period that
14     the debt, or any portion thereof, is disputed, the debt
15     collector or collection agency will obtain verification of
16     the debt or a copy of a judgment against the debtor and a
17     copy of the verification or judgment will be mailed to the
18     debtor by the debt collector or collection agency.
19         (5) That upon the debtor's written request within the
20     30-day period, the debt collector or collection agency will
21     provide the debtor with the name and address of the
22     original creditor, if different from the current creditor.
23     If the disclosures required under this subsection (a) are
24     placed on the back of the notice, the front of the notice
25     shall contain a statement notifying debtors of that fact.
26     (b) If the debtor notifies the debt collector or collection

 

 

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1 agency in writing within the 30-day period set forth in
2 paragraph (3) of subsection (a) of this Section that the debt,
3 or any portion thereof, is disputed or that the debtor requests
4 the name and address of the original creditor, the debt
5 collector or collection agency shall cease collection of the
6 debt, or any disputed portion thereof, until the debt collector
7 or collection agency obtains verification of the debt or a copy
8 of a judgment or the name and address of the original creditor
9 and mails a copy of the verification or judgment or name and
10 address of the original creditor to the debtor.
11     (c) The failure of a debtor to dispute the validity of a
12 debt under this Section shall not be construed by any court as
13 an admission of liability by the debtor.
 
14     (225 ILCS 425/9.4 new)
15     (Section scheduled to be repealed on January 1, 2016)
16     Sec. 9.4. Debt collection as a result of identity theft.
17     (a) Upon receipt from a debtor of all of the following
18 information, a debt collector or collection agency must cease
19 collection activities until completion of the review provided
20 in subsection (d) of this Section:
21         (1) A copy of a police report filed by the debtor
22     alleging that the debtor is the victim of an identity theft
23     crime for the specific debt being collected by the debt
24     collector.
25         (2) The debtor's written statement that the debtor

 

 

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1     claims to be the victim of identity theft with respect to
2     the specific debt being collected by the debt collector,
3     including (i) a Federal Trade Commission's Affidavit of
4     Identity Theft, (ii) an Illinois Attorney General ID Theft
5     Affidavit, or (iii) a written statement that certifies that
6     the representations are true, correct, and contain no
7     material omissions of fact to the best knowledge and belief
8     of the person submitting the certification. This written
9     statement must contain or be accompanied by, each of the
10     following, to the extent that an item listed below is
11     relevant to the debtor's allegation of identity theft with
12     respect to the debt in question:
13             (A) A statement that the debtor is a victim of
14         identity theft.
15             (B) A copy of the debtor's driver's license or
16         identification card, as issued by this State.
17             (C) Any other identification document that
18         supports the statement of identity theft.
19             (D) Specific facts supporting the claim of
20         identity theft, if available.
21             (E) Any explanation showing that the debtor did not
22         incur the debt.
23             (F) Any available correspondence disputing the
24         debt after transaction information has been provided
25         to the debtor.
26             (G) Documentation of the residence of the debtor at

 

 

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1         the time of the alleged debt, which may include copies
2         of bills and statements, such as utility bills, tax
3         statements, or other statements from businesses sent
4         to the debtor and showing that the debtor lived at
5         another residence at the time the debt was incurred.
6             (H) A telephone number for contacting the debtor
7         concerning any additional information or questions or
8         direction that further communications to the debtor be
9         in writing only, with the mailing address specified in
10         the statement.
11             (I) To the extent the debtor has information
12         concerning who may have incurred the debt, the
13         identification of any person whom the debtor believes
14         is responsible.
15             (J) An express statement that the debtor did not
16         authorize the use of the debtor's name or personal
17         information for incurring the debt.
18     (b) A written certification submitted pursuant to item
19 (iii) of paragraph (2) of subsection (a) of this Section shall
20 be sufficient if it is in substantially the following form:
21     "I certify that the representations made are true, correct,
22     and contain no material omissions of fact known to me.
 
23             (Signature)
 
24             (Date)"
 

 

 

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1     (c) If a debtor notifies a debt collector or collection
2 agency orally that he or she is a victim of identity theft, the
3 debt collector or collection agency shall notify the debtor
4 orally or in writing, that the debtor's claim must be in
5 writing. If a debtor notifies a debt collector or collection
6 agency in writing that he or she is a victim of identity theft,
7 but omits information required pursuant to this Section, if the
8 debt collector or collection agency does not cease collection
9 activities, the debt collector or collection agency must
10 provide written notice to the debtor of the additional
11 information that is required or send the debtor a copy of the
12 Federal Trade Commission's Affidavit of Identity Theft form.
13     (d) Upon receipt of the complete statement and information
14 described in subsection (a) of this Section, the debt collector
15 shall review and consider all of the information provided by
16 the debtor and other information available to the debt
17 collector or collection agency in its file or from the
18 creditor. The debt collector or collection agency may
19 recommence debt collection activities only upon making a good
20 faith determination that the information does not establish
21 that the debtor is not responsible for the specific debt in
22 question. The debt collector or collection agency must notify
23 the consumer in writing of that determination and the basis for
24 that determination before proceeding with any further
25 collection activities. The debt collector's or collection

 

 

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1 agency's determination shall be based on all of the information
2 provided by the debtor and other information available to the
3 debt collector or collection agency in its file or from the
4 creditor.
5     (e) No inference or presumption that the debt is valid or
6 invalid or that the debtor is liable or not liable for the debt
7 may arise if the debt collector or collection agency decides
8 after the review described in subsection (d) to cease or
9 recommence the debt collection activities. The exercise or
10 non-exercise of rights under this Section is not a waiver of
11 any other right or defense of the debtor or debt collector.
12     (f) A debt collector or collection agency that (i) ceases
13 collection activities under this Section, (ii) does not
14 recommence those collection activities, and (iii) furnishes
15 adverse information to a consumer credit reporting agency, must
16 notify the consumer credit reporting agency to delete that
17 adverse information.
 
18     (225 ILCS 425/9.7 new)
19     Sec. 9.7. Enforcement under the Consumer Fraud and
20 Deceptive Business Practices Act. The Attorney General may
21 enforce the knowing violation of Section 9 (except for items
22 (1) through (9) and (19) of subsection (a)), 9.1, 9.2, 9.3, or
23 9.4 of this Act as an unlawful practice under the Consumer
24 Fraud and Deceptive Business Practices Act.
 

 

 

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1     (225 ILCS 425/2.01 rep.)
2     (225 ILCS 425/2.02 rep.)
3     Section 10. The Collection Agency Act is amended by
4 repealing Sections 2.01 and 2.02.
 
5     Section 99. Effective date. This Act takes effect January
6 1, 2008.".