Full Text of SB1674 95th General Assembly
SB1674ham002 95TH GENERAL ASSEMBLY
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Rep. Joseph M. Lyons
Filed: 5/29/2007
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LRB095 04901 MJR 37316 a |
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| AMENDMENT TO SENATE BILL 1674
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| AMENDMENT NO. ______. Amend Senate Bill 1674, AS AMENDED, | 3 |
| by replacing everything after the enacting clause with the | 4 |
| following:
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| "Section 5. The State Finance Act is amended by adding | 6 |
| Section 5.675 and changing Section 8h as follows: | 7 |
| (30 ILCS 105/5.675 new) | 8 |
| Sec. 5.675. The Predatory Lending Database Program Fund. | 9 |
| (30 ILCS 105/8h)
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| Sec. 8h. Transfers to General Revenue Fund. | 11 |
| (a) Except as otherwise provided in this Section and | 12 |
| Section 8n of this Act, and (c), (d), or (e),
notwithstanding | 13 |
| any other
State law to the contrary, the Governor
may, through | 14 |
| June 30, 2007, from time to time direct the State Treasurer and | 15 |
| Comptroller to transfer
a specified sum from any fund held by |
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| the State Treasurer to the General
Revenue Fund in order to | 2 |
| help defray the State's operating costs for the
fiscal year. | 3 |
| The total transfer under this Section from any fund in any
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| fiscal year shall not exceed the lesser of (i) 8% of the | 5 |
| revenues to be deposited
into the fund during that fiscal year | 6 |
| or (ii) an amount that leaves a remaining fund balance of 25% | 7 |
| of the July 1 fund balance of that fiscal year. In fiscal year | 8 |
| 2005 only, prior to calculating the July 1, 2004 final | 9 |
| balances, the Governor may calculate and direct the State | 10 |
| Treasurer with the Comptroller to transfer additional amounts | 11 |
| determined by applying the formula authorized in Public Act | 12 |
| 93-839 to the funds balances on July 1, 2003.
No transfer may | 13 |
| be made from a fund under this Section that would have the
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| effect of reducing the available balance in the fund to an | 15 |
| amount less than
the amount remaining unexpended and unreserved | 16 |
| from the total appropriation
from that fund estimated to be | 17 |
| expended for that fiscal year. This Section does not apply to | 18 |
| any
funds that are restricted by federal law to a specific use, | 19 |
| to any funds in
the Motor Fuel Tax Fund, the Intercity | 20 |
| Passenger Rail Fund, the Hospital Provider Fund, the Medicaid | 21 |
| Provider Relief Fund, the Teacher Health Insurance Security | 22 |
| Fund, the Reviewing Court Alternative Dispute Resolution Fund, | 23 |
| the Voters' Guide Fund, the Foreign Language Interpreter Fund, | 24 |
| the Lawyers' Assistance Program Fund, the Supreme Court Federal | 25 |
| Projects Fund, the Supreme Court Special State Projects Fund, | 26 |
| the Supplemental Low-Income Energy Assistance Fund, the Good |
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| Samaritan Energy Trust Fund, the Low-Level Radioactive Waste | 2 |
| Facility Development and Operation Fund, the Horse Racing | 3 |
| Equity Trust Fund, or the Hospital Basic Services Preservation | 4 |
| Fund, or to any
funds to which subsection (f) of Section 20-40 | 5 |
| of the Nursing and Advanced Practice Nursing Act applies. No | 6 |
| transfers may be made under this Section from the Pet | 7 |
| Population Control Fund. Notwithstanding any
other provision | 8 |
| of this Section, for fiscal year 2004,
the total transfer under | 9 |
| this Section from the Road Fund or the State
Construction | 10 |
| Account Fund shall not exceed the lesser of (i) 5% of the | 11 |
| revenues to be deposited
into the fund during that fiscal year | 12 |
| or (ii) 25% of the beginning balance in the fund.
For fiscal | 13 |
| year 2005 through fiscal year 2007, no amounts may be | 14 |
| transferred under this Section from the Road Fund, the State | 15 |
| Construction Account Fund, the Criminal Justice Information | 16 |
| Systems Trust Fund, the Wireless Service Emergency Fund, or the | 17 |
| Mandatory Arbitration Fund.
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| In determining the available balance in a fund, the | 19 |
| Governor
may include receipts, transfers into the fund, and | 20 |
| other
resources anticipated to be available in the fund in that | 21 |
| fiscal year.
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| The State Treasurer and Comptroller shall transfer the | 23 |
| amounts designated
under this Section as soon as may be | 24 |
| practicable after receiving the direction
to transfer from the | 25 |
| Governor.
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| (a-5) Transfers directed to be made under this Section on |
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| or before February 28, 2006 that are still pending on May 19, | 2 |
| 2006 ( the effective date of Public Act 94-774)
this amendatory | 3 |
| Act of the 94th General Assembly shall be redirected as | 4 |
| provided in Section 8n of this Act.
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| (b) This Section does not apply to: (i) the Ticket For The | 6 |
| Cure Fund; (ii) any fund established under the Community Senior | 7 |
| Services and Resources Act; or (iii) on or after January 1, | 8 |
| 2006 (the effective date of Public Act 94-511), the Child Labor | 9 |
| and Day and Temporary Labor Enforcement Fund. | 10 |
| (c) This Section does not apply to the Demutualization | 11 |
| Trust Fund established under the Uniform Disposition of | 12 |
| Unclaimed Property Act.
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| (d) This Section does not apply to moneys set aside in the | 14 |
| Illinois State Podiatric Disciplinary Fund for podiatric | 15 |
| scholarships and residency programs under the Podiatric | 16 |
| Scholarship and Residency Act. | 17 |
| (e) Subsection (a) does not apply to, and no transfer may | 18 |
| be made under this Section from, the Pension Stabilization | 19 |
| Fund.
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| (f) This Section does not apply to the Predatory Lending | 21 |
| Database Program Fund.
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| (Source: P.A. 93-32, eff. 6-20-03; 93-659, eff. 2-3-04; 93-674, | 23 |
| eff. 6-10-04; 93-714, eff. 7-12-04; 93-801, eff. 7-22-04; | 24 |
| 93-839, eff. 7-30-04; 93-1054, eff. 11-18-04; 93-1067, eff. | 25 |
| 1-15-05; 94-91, eff. 7-1-05; 94-120, eff. 7-6-05; 94-511, eff. | 26 |
| 1-1-06; 94-535, eff. 8-10-05; 94-639, eff. 8-22-05; 94-645, |
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| eff. 8-22-05; 94-648, eff. 1-1-06; 94-686, eff. 11-2-05; | 2 |
| 94-691, eff. 11-2-05; 94-726, eff. 1-20-06; 94-773, eff. | 3 |
| 5-18-06; 94-774, eff. 5-19-06; 94-804, eff. 5-26-06; 94-839, | 4 |
| eff. 6-6-06; revised 6-19-06.)
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| Section 10. The Home Equity Assurance Act is amended by | 6 |
| changing Section 11 as follows:
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| (65 ILCS 95/11) (from Ch. 24, par. 1611)
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| Sec. 11. Guarantee Fund.
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| (a) Each governing commission and program
created by | 10 |
| referendum under the provisions of this Act shall maintain a
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| guarantee fund for the purposes of paying the costs of | 12 |
| administering the
program and extending protection to members | 13 |
| pursuant to the limitations and
procedures set forth in this | 14 |
| Act.
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| (b) The guarantee fund shall be raised by means of an | 16 |
| annual tax levied
on all residential property within the | 17 |
| territory of the program having at
least one, but not more than | 18 |
| 6 dwelling units and classified by county
ordinance as | 19 |
| residential. The rate of this tax may be changed from year to
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| year by majority vote of the governing commission but in no | 21 |
| case shall it
exceed a rate of .12% of the equalized assessed | 22 |
| valuation of all property
in the territory of the program | 23 |
| having at least one, but not
more than 6 dwelling units and | 24 |
| classified by county ordinance as
residential, or the maximum |
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| tax rate approved by the voters of the
territory at the | 2 |
| referendum which created the program
or, in the case of a | 3 |
| merged program, the maximum tax rate approved by
the voters at | 4 |
| the referendum authorizing the merger, whichever rate is
lower. | 5 |
| The commissioners shall cause the amount to be
raised by | 6 |
| taxation in each year to be certified to the county clerk in | 7 |
| the
manner provided by law, and any tax so levied and certified | 8 |
| shall be
collected and enforced in the same manner and by the | 9 |
| same officers as those
taxes for the purposes of the county and | 10 |
| city within which the territory of
the commission is located. | 11 |
| Any such tax, when collected, shall be paid
over to the proper | 12 |
| officer of the commission who is authorized to receive
and | 13 |
| receipt for such tax. The governing commission may issue tax
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| anticipation warrants against the taxes to be assessed for the | 15 |
| calendar
year in which the program is created and for the first | 16 |
| full calendar year
after the creation of the program.
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| (c) The moneys deposited in the guarantee fund shall, as | 18 |
| nearly as
practicable, be fully and continuously invested or | 19 |
| reinvested by the
governing commission in investment | 20 |
| obligations which shall be in such
amounts, and shall mature at | 21 |
| such times, that the maturity or date of
redemption at the | 22 |
| option of the holder of such investment obligations shall
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| coincide, as nearly as practicable, with the times at which | 24 |
| monies will be
required for the purposes of the program. For | 25 |
| the purposes of this
Section investment obligation shall mean | 26 |
| direct general municipal, state,
or federal obligations which |
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| at the time are legal investments under the
laws of this State | 2 |
| and the payment of principal of and interest on which
are | 3 |
| unconditionally guaranteed by the governing body issuing them.
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| (d) Except as permitted by this subsection and subsection | 5 |
| (d-5) ,
the guarantee fund shall be used solely and exclusively | 6 |
| for the
purpose of providing guarantees to members of the | 7 |
| particular Guaranteed
Home Equity Program and for reasonable | 8 |
| salaries, expenses, bills,
and fees incurred in administering | 9 |
| the program, and shall be used for no other
purpose.
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| A governing commission, with no less than $4,000,000 in its | 11 |
| guarantee
fund,
may, if authorized by referendum duly adopted | 12 |
| by a majority of the voters,
establish a Low
Interest
Home | 13 |
| Improvement Loan Program in accordance with and subject to | 14 |
| procedures
established by a financial institution, as defined | 15 |
| in the Illinois Banking Act.
Whenever
the question of creating | 16 |
| a Low Interest Home Improvement Loan Program is
initiated by
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| resolution or ordinance of the corporate authorities of the | 18 |
| municipality or by
a petition
signed by not less than 10% of | 19 |
| the total number of registered voters of each
precinct in
the | 20 |
| territory, the registered voters of which are eligible to sign | 21 |
| the
petition, it shall be the
duty of the election authority | 22 |
| having jurisdiction over the municipality to
submit the
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| question of creating the program to the electors of each | 24 |
| precinct within the
territory at
the regular election specified | 25 |
| in the resolution, ordinance, or petition
initiating the
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| question. A petition initiating a question described in this |
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| subsection shall
be filed with
the election authority having | 2 |
| jurisdiction over the municipality. The petition
shall be filed
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| and objections to the petition shall be made in the manner | 4 |
| provided in the
Election Code.
A resolution, ordinance, or | 5 |
| petition initiating a question described in this
subsection | 6 |
| shall
specify the election at which the question is to be | 7 |
| submitted. The referendum
on the
question shall be held in | 8 |
| accordance with the Election Code. The question
shall be in | 9 |
| substantially the
following form:
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| "Shall the (name of the home equity program) implement | 11 |
| a Low Interest Home
Improvement Loan Program with money | 12 |
| from the guarantee fund of the established
guaranteed home | 13 |
| equity program?"
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| The votes must be recorded as "Yes" or "No".
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| Whenever a majority of the voters on the public question | 16 |
| approve the
creation of
the program as certified by the proper | 17 |
| election authorities, the commission
shall
establish the | 18 |
| program and administer the program with funds collected under | 19 |
| the
Guaranteed Home Equity
Program, subject to the following | 20 |
| conditions:
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| (1) At any given time, the cumulative total of all | 22 |
| loans and loan
guarantees
(if applicable) issued under this | 23 |
| program may not reduce the balance of the
guarantee
fund to | 24 |
| less than $3,000,000.
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| (2) Only eligible applicants may apply for a
loan.
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| (3) The loan must be used for the repair, maintenance, |
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| remodeling,
alteration, or improvement of a guaranteed | 2 |
| residence. This condition is not
intended to exclude the | 3 |
| repair, maintenance, remodeling, alteration, or
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| improvement of a guaranteed residence's landscape. This | 5 |
| condition is intended
to exclude the demolition of a | 6 |
| current residence. This condition is also
intended to | 7 |
| exclude
the construction of a new residence.
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| (4) An eligible applicant may not borrow more than the | 9 |
| amount of equity
value in his or her residence.
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| (5) A commission must ensure that loans issued are | 11 |
| secured with
collateral that is at least equal to the | 12 |
| amount of the loan or loan guarantee.
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| (6) A commission shall charge an interest rate which it | 14 |
| determines to be
below the market rate of interest | 15 |
| generally available to the applicant.
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| (7) A commission may, by resolution, establish other | 17 |
| administrative
rules and procedures as are necessary to | 18 |
| implement this program including, but
not limited to, loan | 19 |
| dollar amounts and terms. A commission may also impose
on | 20 |
| loan applicants a one-time application fee for the purpose | 21 |
| of defraying the
costs of administering the program.
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| (d-5) A governing commission, with no less than $4,000,000 | 23 |
| in its guarantee fund, may, if authorized by referendum duly | 24 |
| adopted by a majority of the voters, establish a Foreclosure | 25 |
| Prevention Loan Fund to provide low interest emergency loans to | 26 |
| eligible applicants that may be forced into foreclosure |
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| proceedings. | 2 |
| Whenever the question of creating a Foreclosure Prevention | 3 |
| Loan Fund is initiated by resolution or ordinance of the | 4 |
| corporate authorities of the municipality or by a petition | 5 |
| signed by not less than 10% of the total number of registered | 6 |
| voters of each precinct in the territory, the registered voters | 7 |
| of which are eligible to sign the petition, it shall be the | 8 |
| duty of the election authority having jurisdiction over the | 9 |
| municipality to submit the question of creating the program to | 10 |
| the electors of each precinct within the territory at the | 11 |
| regular election specified in the resolution, ordinance, or | 12 |
| petition initiating the question. A petition initiating a | 13 |
| question described in this subsection shall be filed with the | 14 |
| election authority having jurisdiction over the municipality. | 15 |
| The petition shall be filed and objections to the petition | 16 |
| shall be made in the manner provided in the Election Code. A | 17 |
| resolution, ordinance, or petition initiating a question | 18 |
| described in this subsection shall specify the election at | 19 |
| which the question is to be submitted. The referendum on the | 20 |
| question shall be held in accordance with the Election Code. | 21 |
| The question shall be in substantially the following form: | 22 |
| "Shall the (name of the home equity program) implement a | 23 |
| Foreclosure Prevention Loan Fund with money from the guarantee | 24 |
| fund of the established guaranteed home equity program?" | 25 |
| The votes must be recorded as "Yes" or "No". | 26 |
| Whenever a majority of the voters on the public question |
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| approve the creation of a Foreclosure Prevention Loan Fund as | 2 |
| certified by the proper election authorities, the commission | 3 |
| shall establish the program and administer the program with | 4 |
| funds collected under the Guaranteed Home Equity Program, | 5 |
| subject to the following conditions: | 6 |
| (1) At any given time, the cumulative total of all | 7 |
| loans and loan guarantees (if applicable) issued under this | 8 |
| program may not exceed $3,000,000. | 9 |
| (2) Only eligible applicants may apply for a loan. The | 10 |
| Commission may establish, by resolution, additional | 11 |
| criteria for eligibility. | 12 |
| (3) The loan must be used to assist with preventing | 13 |
| foreclosure proceedings. | 14 |
| (4) An eligible applicant may not borrow more than the | 15 |
| amount of equity value in his or her residence. | 16 |
| (5) A commission must ensure that loans issued are | 17 |
| secured as a second lien on the property. | 18 |
| (6) A commission shall charge an interest rate which it | 19 |
| determines to be below the market rate of interest | 20 |
| generally available to the applicant. | 21 |
| (7) A commission may, by resolution, establish other | 22 |
| administrative rules and procedures as are necessary to | 23 |
| implement this program including, but not limited to, | 24 |
| eligibility requirements for eligible applicants, loan | 25 |
| dollar amounts, and loan terms. | 26 |
| (8) A commission may also impose on loan applicants a |
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| one-time application fee for the purpose of defraying the | 2 |
| costs of administering the program. | 3 |
| (e) The guarantee fund shall be maintained, invested, and | 4 |
| expended
exclusively by the governing commission of the program | 5 |
| for whose purposes
it was created. Under no circumstance shall | 6 |
| the guarantee fund be used by
any person or persons, | 7 |
| governmental body, or public or private agency or
concern other | 8 |
| than the governing commission of the program for whose
purposes | 9 |
| it was created. Under no circumstances shall the guarantee fund | 10 |
| be
commingled with other funds or investments.
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| (e-1) No commissioner or family member of a commissioner, | 12 |
| or employee or
family member of an employee, may receive any
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| financial benefit, either directly or indirectly, from the | 14 |
| guarantee fund.
Nothing in this subsection (e-1) shall be | 15 |
| construed to prohibit payment of
expenses to a commissioner in | 16 |
| accordance with Section 4 or payment of salaries
or expenses to | 17 |
| an employee in accordance with this Section.
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| As used in this subsection (e-1), "family member" means a | 19 |
| spouse, child,
stepchild, parent, brother, or sister of a | 20 |
| commissioner or a child, stepchild,
parent, brother, or sister | 21 |
| of a commissioner's spouse.
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| (f) An independent audit of the guarantee fund and the | 23 |
| management of the
program shall be conducted annually and made | 24 |
| available to the public
through any office of the governing | 25 |
| commission or a public facility such as
a local public library | 26 |
| located within the territory of the program.
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| (Source: P.A. 91-492, eff. 1-1-00.)
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| Section 15. The Illinois Banking Act is amended by changing | 3 |
| Section 48 as follows:
| 4 |
| (205 ILCS 5/48) (from Ch. 17, par. 359)
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| Sec. 48. Commissioner's powers; duties. The Commissioner | 6 |
| shall have the
powers and authority, and is charged with the | 7 |
| duties and responsibilities
designated in this Act, and a State | 8 |
| bank shall not be subject to any
other visitorial power other | 9 |
| than as authorized by this Act, except those
vested in the | 10 |
| courts, or upon prior consultation with the Commissioner, a
| 11 |
| foreign bank regulator with an appropriate supervisory | 12 |
| interest in the parent
or affiliate of a state bank. In the | 13 |
| performance of the Commissioner's
duties:
| 14 |
| (1) The Commissioner shall call for statements from all | 15 |
| State banks
as provided in Section 47 at least one time during | 16 |
| each calendar quarter.
| 17 |
| (2) (a) The Commissioner, as often as the Commissioner | 18 |
| shall deem
necessary or
proper, and no less frequently than 18 | 19 |
| months following the preceding
examination, shall appoint a | 20 |
| suitable person or
persons to make an examination of the | 21 |
| affairs of every State bank,
except that for every eligible | 22 |
| State bank, as defined by regulation, the
Commissioner in lieu | 23 |
| of the examination may accept on an alternating basis the
| 24 |
| examination made by the eligible State bank's appropriate |
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| federal banking
agency pursuant to Section 111 of the Federal | 2 |
| Deposit Insurance Corporation
Improvement Act of 1991, | 3 |
| provided the appropriate federal banking agency has
made such | 4 |
| an examination. A person so appointed shall not be a | 5 |
| stockholder or
officer or employee of
any bank which that | 6 |
| person may be directed to examine, and shall have
powers to | 7 |
| make a thorough examination into all the affairs of the bank | 8 |
| and
in so doing to examine any of the officers or agents or | 9 |
| employees thereof
on oath and shall make a full and detailed | 10 |
| report of the condition of the
bank to the Commissioner. In | 11 |
| making the examination the examiners shall
include an | 12 |
| examination of the affairs of all the affiliates of the bank, | 13 |
| as
defined in subsection (b) of Section 35.2 of this Act, or | 14 |
| subsidiaries of the
bank as shall be
necessary to disclose | 15 |
| fully the conditions of the subsidiaries or
affiliates, the | 16 |
| relations
between the bank and the subsidiaries or affiliates | 17 |
| and the effect of those
relations upon
the affairs of the bank, | 18 |
| and in connection therewith shall have power to
examine any of | 19 |
| the officers, directors, agents, or employees of the
| 20 |
| subsidiaries or affiliates
on oath. After May 31, 1997, the | 21 |
| Commissioner may enter into cooperative
agreements
with state | 22 |
| regulatory authorities of other states to provide for | 23 |
| examination of
State bank branches in those states, and the | 24 |
| Commissioner may accept reports
of examinations of State bank | 25 |
| branches from those state regulatory authorities.
These | 26 |
| cooperative agreements may set forth the manner in which the |
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| other state
regulatory authorities may be compensated for | 2 |
| examinations prepared for and
submitted to the Commissioner.
| 3 |
| (b) After May 31, 1997, the Commissioner is authorized to | 4 |
| examine, as often
as the Commissioner shall deem necessary or | 5 |
| proper, branches of out-of-state
banks. The Commissioner may | 6 |
| establish and may assess fees to be paid to the
Commissioner | 7 |
| for examinations under this subsection (b). The fees shall be
| 8 |
| borne by the out-of-state bank, unless the fees are borne by | 9 |
| the state
regulatory authority that chartered the out-of-state | 10 |
| bank, as determined by a
cooperative agreement between the | 11 |
| Commissioner and the state regulatory
authority that chartered | 12 |
| the out-of-state bank.
| 13 |
| (2.5) Whenever any State bank, any subsidiary or affiliate | 14 |
| of a State
bank, or after May 31, 1997, any branch of an | 15 |
| out-of-state bank causes to
be performed, by contract or | 16 |
| otherwise, any bank services
for itself, whether on or off its | 17 |
| premises:
| 18 |
| (a) that performance shall be subject to examination by | 19 |
| the Commissioner
to the same extent as if services were | 20 |
| being performed by the bank or, after
May 31, 1997, branch | 21 |
| of the out-of-state bank itself
on its own premises; and
| 22 |
| (b) the bank or, after May 31, 1997, branch of the | 23 |
| out-of-state bank
shall notify the Commissioner of the | 24 |
| existence of a service
relationship. The notification | 25 |
| shall be submitted with the first statement
of condition | 26 |
| (as required by Section 47 of this Act) due after the |
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| making
of the service contract or the performance of the | 2 |
| service, whichever occurs
first. The Commissioner shall be | 3 |
| notified of each subsequent contract in
the same manner.
| 4 |
| For purposes of this subsection (2.5), the term "bank | 5 |
| services" means
services such as sorting and posting of checks | 6 |
| and deposits, computation
and posting of interest and other | 7 |
| credits and charges, preparation and
mailing of checks, | 8 |
| statements, notices, and similar items, or any other
clerical, | 9 |
| bookkeeping, accounting, statistical, or similar functions
| 10 |
| performed for a State bank, including but not limited to | 11 |
| electronic data
processing related to those bank services.
| 12 |
| (3) The expense of administering this Act, including the | 13 |
| expense of
the examinations of State banks as provided in this | 14 |
| Act, shall to the extent
of the amounts resulting from the fees | 15 |
| provided for in paragraphs (a),
(a-2), and (b) of this | 16 |
| subsection (3) be assessed against and borne by the
State | 17 |
| banks:
| 18 |
| (a) Each bank shall pay to the Commissioner a Call | 19 |
| Report Fee which
shall be paid in quarterly installments | 20 |
| equal
to one-fourth of the sum of the annual fixed fee of | 21 |
| $800, plus a variable
fee based on the assets shown on the | 22 |
| quarterly statement of condition
delivered to the | 23 |
| Commissioner in accordance with Section 47 for the
| 24 |
| preceding quarter according to the following schedule: 16˘ | 25 |
| per $1,000 of
the first $5,000,000 of total assets, 15˘ per | 26 |
| $1,000 of the next
$20,000,000 of total assets, 13˘ per |
|
|
|
09500SB1674ham002 |
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LRB095 04901 MJR 37316 a |
|
| 1 |
| $1,000 of the next $75,000,000 of
total assets, 9˘ per | 2 |
| $1,000 of the next $400,000,000 of total assets, 7˘
per | 3 |
| $1,000 of the next $500,000,000 of total assets, and 5˘ per | 4 |
| $1,000 of
all assets in excess of $1,000,000,000, of the | 5 |
| State bank. The Call Report
Fee shall be calculated by the | 6 |
| Commissioner and billed to the banks for
remittance at the | 7 |
| time of the quarterly statements of condition
provided for | 8 |
| in Section 47. The Commissioner may require payment of the | 9 |
| fees
provided in this Section by an electronic transfer of | 10 |
| funds or an automatic
debit of an account of each of the | 11 |
| State banks. In case more than one
examination of any
bank | 12 |
| is deemed by the Commissioner to be necessary in any | 13 |
| examination
frequency cycle specified in subsection 2(a) | 14 |
| of this Section,
and is performed at his direction, the | 15 |
| Commissioner may
assess a reasonable additional fee to | 16 |
| recover the cost of the additional
examination; provided, | 17 |
| however, that an examination conducted at the request
of | 18 |
| the State Treasurer pursuant to the Uniform Disposition of | 19 |
| Unclaimed
Property Act shall not be deemed to be an | 20 |
| additional examination under this
Section.
In lieu
of the | 21 |
| method and amounts set forth in this paragraph (a) for the | 22 |
| calculation
of the Call Report Fee, the Commissioner may | 23 |
| specify by
rule that the Call Report Fees provided by this | 24 |
| Section may be assessed
semiannually or some other period | 25 |
| and may provide in the rule the formula to
be
used for | 26 |
| calculating and assessing the periodic Call Report Fees to |
|
|
|
09500SB1674ham002 |
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LRB095 04901 MJR 37316 a |
|
| 1 |
| be paid by
State
banks.
| 2 |
| (a-1) If in the opinion of the Commissioner an | 3 |
| emergency exists or
appears likely, the Commissioner may | 4 |
| assign an examiner or examiners to
monitor the affairs of a | 5 |
| State bank with whatever frequency he deems
appropriate, | 6 |
| including but not limited to a daily basis. The reasonable
| 7 |
| and necessary expenses of the Commissioner during the | 8 |
| period of the monitoring
shall be borne by the subject | 9 |
| bank. The Commissioner shall furnish the
State bank a | 10 |
| statement of time and expenses if requested to do so within | 11 |
| 30
days of the conclusion of the monitoring period.
| 12 |
| (a-2) On and after January 1, 1990, the reasonable and | 13 |
| necessary
expenses of the Commissioner during examination | 14 |
| of the performance of
electronic data processing services | 15 |
| under subsection (2.5) shall be
borne by the banks for | 16 |
| which the services are provided. An amount, based
upon a | 17 |
| fee structure prescribed by the Commissioner, shall be paid | 18 |
| by the
banks or, after May 31, 1997, branches of | 19 |
| out-of-state banks receiving the
electronic data | 20 |
| processing services along with the
Call Report Fee assessed | 21 |
| under paragraph (a) of this
subsection (3).
| 22 |
| (a-3) After May 31, 1997, the reasonable and necessary | 23 |
| expenses of the
Commissioner during examination of the | 24 |
| performance of electronic data
processing services under | 25 |
| subsection (2.5) at or on behalf of branches of
| 26 |
| out-of-state banks shall be borne by the out-of-state |
|
|
|
09500SB1674ham002 |
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LRB095 04901 MJR 37316 a |
|
| 1 |
| banks, unless those
expenses are borne by the state | 2 |
| regulatory authorities that chartered the
out-of-state | 3 |
| banks, as determined by cooperative agreements between the
| 4 |
| Commissioner and the state regulatory authorities that | 5 |
| chartered the
out-of-state banks.
| 6 |
| (b) "Fiscal year" for purposes of this Section 48 is | 7 |
| defined as a
period beginning July 1 of any year and ending | 8 |
| June 30 of the next year.
The Commissioner shall receive | 9 |
| for each fiscal year, commencing with the
fiscal year | 10 |
| ending June 30, 1987, a contingent fee equal to the lesser | 11 |
| of
the aggregate of the fees paid by all State banks under | 12 |
| paragraph (a) of
subsection (3) for that year, or the | 13 |
| amount, if any, whereby the aggregate
of the administration | 14 |
| expenses, as defined in paragraph (c), for that
fiscal year | 15 |
| exceeds the sum of the aggregate of the fees payable by all
| 16 |
| State banks for that year under paragraph (a) of subsection | 17 |
| (3),
plus any amounts transferred into the Bank and Trust | 18 |
| Company Fund from the
State Pensions Fund for that year,
| 19 |
| plus all
other amounts collected by the Commissioner for | 20 |
| that year under any
other provision of this Act, plus the | 21 |
| aggregate of all fees
collected for that year by the | 22 |
| Commissioner under the Corporate Fiduciary
Act, excluding | 23 |
| the receivership fees provided for in Section 5-10 of the
| 24 |
| Corporate Fiduciary Act, and the Foreign Banking Office | 25 |
| Act.
The aggregate amount of the contingent
fee thus | 26 |
| arrived at for any fiscal year shall be apportioned |
|
|
|
09500SB1674ham002 |
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LRB095 04901 MJR 37316 a |
|
| 1 |
| amongst,
assessed upon, and paid by the State banks and | 2 |
| foreign banking corporations,
respectively, in the same | 3 |
| proportion
that the fee of each under paragraph (a) of | 4 |
| subsection (3), respectively,
for that year bears to the | 5 |
| aggregate for that year of the fees collected
under | 6 |
| paragraph (a) of subsection (3). The aggregate amount of | 7 |
| the
contingent fee, and the portion thereof to be assessed | 8 |
| upon each State
bank and foreign banking corporation,
| 9 |
| respectively, shall be determined by the Commissioner and | 10 |
| shall be paid by
each, respectively, within 120 days of the | 11 |
| close of the period for which
the contingent fee is | 12 |
| computed and is payable, and the Commissioner shall
give 20 | 13 |
| days advance notice of the amount of the contingent fee | 14 |
| payable by
the State bank and of the date fixed by the | 15 |
| Commissioner for payment of
the fee.
| 16 |
| (c) The "administration expenses" for any fiscal year | 17 |
| shall mean the
ordinary and contingent expenses for that | 18 |
| year incident to making the
examinations provided for by, | 19 |
| and for otherwise administering, this Act,
the Corporate | 20 |
| Fiduciary Act, excluding the expenses paid from the
| 21 |
| Corporate Fiduciary Receivership account in the Bank and | 22 |
| Trust Company
Fund, the Foreign Banking Office Act,
the | 23 |
| Electronic Fund Transfer Act,
and the Illinois Bank | 24 |
| Examiners'
Education Foundation Act, including all | 25 |
| salaries and other
compensation paid for personal services | 26 |
| rendered for the State by
officers or employees of the |
|
|
|
09500SB1674ham002 |
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LRB095 04901 MJR 37316 a |
|
| 1 |
| State, including the Commissioner and the
Deputy | 2 |
| Commissioners, all expenditures for telephone and | 3 |
| telegraph
charges, postage and postal charges, office | 4 |
| stationery, supplies and
services, and office furniture | 5 |
| and equipment, including typewriters and
copying and | 6 |
| duplicating machines and filing equipment, surety bond
| 7 |
| premiums, and travel expenses of those officers and | 8 |
| employees, employees,
expenditures or charges for the | 9 |
| acquisition, enlargement or improvement
of, or for the use | 10 |
| of, any office space, building, or structure, or
| 11 |
| expenditures for the maintenance thereof or for furnishing | 12 |
| heat, light,
or power with respect thereto, all to the | 13 |
| extent that those expenditures
are directly incidental to | 14 |
| such examinations or administration.
The Commissioner | 15 |
| shall not be required by paragraphs (c) or (d-1) of this
| 16 |
| subsection (3) to maintain in any fiscal year's budget | 17 |
| appropriated reserves
for accrued vacation and accrued | 18 |
| sick leave that is required to be paid to
employees of the | 19 |
| Commissioner upon termination of their service with the
| 20 |
| Commissioner in an amount that is more than is reasonably | 21 |
| anticipated to be
necessary for any anticipated turnover in | 22 |
| employees, whether due to normal
attrition or due to | 23 |
| layoffs, terminations, or resignations.
| 24 |
| (d) The aggregate of all fees collected by the | 25 |
| Commissioner under
this Act, the Corporate Fiduciary Act,
| 26 |
| or the Foreign Banking Office Act on
and after July 1, |
|
|
|
09500SB1674ham002 |
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LRB095 04901 MJR 37316 a |
|
| 1 |
| 1979, shall be paid promptly after receipt of the same,
| 2 |
| accompanied by a detailed statement thereof, into the State | 3 |
| treasury and
shall be set apart in a special fund to be | 4 |
| known as the "Bank and Trust
Company Fund", except as | 5 |
| provided in paragraph (c) of subsection (11) of
this | 6 |
| Section. All earnings received from investments of funds in | 7 |
| the Bank
and
Trust Company Fund shall be deposited in the | 8 |
| Bank and Trust Company Fund
and may be used for the same | 9 |
| purposes as fees deposited in that Fund. The
amount from | 10 |
| time to time deposited into the Bank and
Trust Company Fund | 11 |
| shall be used : (i) to offset the ordinary administrative
| 12 |
| expenses of the Commissioner of Banks and Real Estate as | 13 |
| defined in
this Section or (ii) as a credit against fees | 14 |
| under paragraph (d-1) of this subsection . Nothing in this | 15 |
| amendatory Act of 1979 shall prevent
continuing the | 16 |
| practice of paying expenses involving salaries, | 17 |
| retirement,
social security, and State-paid insurance | 18 |
| premiums of State officers by
appropriations from the | 19 |
| General Revenue Fund. However, the General Revenue
Fund | 20 |
| shall be reimbursed for those payments made on and after | 21 |
| July 1, 1979,
by an annual transfer of funds from the Bank | 22 |
| and Trust Company Fund. Moneys in the Bank and Trust | 23 |
| Company Fund may be transferred to the Professions Indirect | 24 |
| Cost Fund, as authorized under Section 2105-300 of the | 25 |
| Department of Professional Regulation Law of the Civil | 26 |
| Administrative Code of Illinois.
|
|
|
|
09500SB1674ham002 |
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LRB095 04901 MJR 37316 a |
|
| 1 |
| (d-1) Adequate funds shall be available in the Bank and | 2 |
| Trust
Company Fund to permit the timely payment of | 3 |
| administration expenses. In
each fiscal year the total | 4 |
| administration expenses shall be deducted from
the total | 5 |
| fees collected by the Commissioner and the remainder | 6 |
| transferred
into the Cash Flow Reserve Account, unless the | 7 |
| balance of the Cash Flow
Reserve Account prior to the | 8 |
| transfer equals or exceeds
one-fourth of the total initial | 9 |
| appropriations from the Bank and Trust
Company Fund for the | 10 |
| subsequent year, in which case the remainder shall be
| 11 |
| credited to State banks and foreign banking corporations
| 12 |
| and applied against their fees for the subsequent
year. For | 13 |
| the fiscal year beginning July 1, 2007, the Commissioner | 14 |
| must adopt rules to adjust regulatory fee rates to those in | 15 |
| effect prior to the escalation in rates published in 38 | 16 |
| Ill. Adm. Code 375 unless an audit by the Auditor General | 17 |
| of banking regulatory oversight activities requires a | 18 |
| different rate to be set. Any adjustments made pursuant to | 19 |
| an Auditor General's audit must be set forth in the form of | 20 |
| a notice to each affected entity 45 days prior to making | 21 |
| those adjustments. The notice must contain an explanation | 22 |
| that includes a description of the audit results pertaining | 23 |
| to the banking industry and a description of each reason | 24 |
| why adjustments to the regulatory fee rates are required.
| 25 |
| The amount credited to each State bank and foreign banking | 26 |
| corporation
shall be in the same proportion as the
Call |
|
|
|
09500SB1674ham002 |
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LRB095 04901 MJR 37316 a |
|
| 1 |
| Report Fees paid by each for the year bear to the total | 2 |
| Call Report
Fees collected for the year. If, after a | 3 |
| transfer to the Cash Flow Reserve
Account is made or if no | 4 |
| remainder is available for transfer, the balance
of the | 5 |
| Cash Flow Reserve Account is less than one-fourth of the | 6 |
| total
initial appropriations for the subsequent year and | 7 |
| the amount transferred
is less than 5% of the total Call | 8 |
| Report Fees for the year, additional
amounts needed to make | 9 |
| the transfer equal to 5% of the total Call Report
Fees for | 10 |
| the year shall be apportioned amongst, assessed upon, and
| 11 |
| paid by the State banks and foreign banking corporations
in | 12 |
| the same proportion that the Call Report Fees of each,
| 13 |
| respectively, for the year bear to the total Call Report | 14 |
| Fees collected for
the year. The additional amounts | 15 |
| assessed shall be transferred into the
Cash Flow Reserve | 16 |
| Account. For purposes of this paragraph (d-1), the
| 17 |
| calculation of the fees collected by the Commissioner shall | 18 |
| exclude the
receivership fees provided for in Section 5-10 | 19 |
| of the Corporate Fiduciary Act.
| 20 |
| (e) The Commissioner may upon request certify to any | 21 |
| public record
in his keeping and shall have authority to | 22 |
| levy a reasonable charge for
issuing certifications of any | 23 |
| public record in his keeping.
| 24 |
| (f) In addition to fees authorized elsewhere in this | 25 |
| Act, the
Commissioner
may, in connection with a review, | 26 |
| approval, or provision of a service, levy a
reasonable |
|
|
|
09500SB1674ham002 |
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LRB095 04901 MJR 37316 a |
|
| 1 |
| charge to recover the cost of the review, approval, or | 2 |
| service.
| 3 |
| (4) Nothing contained in this Act shall be construed to | 4 |
| limit the
obligation relative to examinations and reports of | 5 |
| any State bank, deposits
in which are to any extent insured by | 6 |
| the United States or any agency
thereof, nor to limit in any | 7 |
| way the powers of the Commissioner with
reference to | 8 |
| examinations and reports of that bank.
| 9 |
| (5) The nature and condition of the assets in or investment | 10 |
| of any
bonus, pension, or profit sharing plan for officers or | 11 |
| employees of every
State bank or, after May 31, 1997, branch of | 12 |
| an out-of-state bank shall be
deemed to be included in the | 13 |
| affairs of that State
bank or branch of an out-of-state bank | 14 |
| subject to examination by the
Commissioner under the
provisions | 15 |
| of subsection (2) of this Section, and if the Commissioner
| 16 |
| shall find from an examination that the condition of or | 17 |
| operation
of the investments or assets of the plan is unlawful, | 18 |
| fraudulent, or
unsafe, or that any trustee has abused his | 19 |
| trust, the Commissioner
shall, if the situation so found by the | 20 |
| Commissioner shall not be
corrected to his satisfaction within | 21 |
| 60 days after the Commissioner has
given notice to the board of | 22 |
| directors of the State bank or out-of-state
bank of his
| 23 |
| findings, report the facts to the Attorney General who shall | 24 |
| thereupon
institute proceedings against the State bank or | 25 |
| out-of-state bank, the
board of directors
thereof, or the | 26 |
| trustees under such plan as the nature of the case may require.
|
|
|
|
09500SB1674ham002 |
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LRB095 04901 MJR 37316 a |
|
| 1 |
| (6) The Commissioner shall have the power:
| 2 |
| (a) To promulgate reasonable rules for the purpose of
| 3 |
| administering the provisions of this Act.
| 4 |
| (a-5) To impose conditions on any approval issued by | 5 |
| the Commissioner
if he determines that the conditions are | 6 |
| necessary or appropriate. These
conditions shall be | 7 |
| imposed in writing and shall continue
in effect for the | 8 |
| period prescribed by the Commissioner.
| 9 |
| (b) To issue orders
against any person, if the | 10 |
| Commissioner has
reasonable cause to believe that an unsafe | 11 |
| or unsound banking practice
has occurred, is occurring, or | 12 |
| is about to occur, if any person has violated,
is | 13 |
| violating, or is about to violate any law, rule, or written
| 14 |
| agreement with the Commissioner, or
for the purpose of | 15 |
| administering the provisions of
this Act and any rule | 16 |
| promulgated in accordance with this Act.
| 17 |
| (b-1) To enter into agreements with a bank establishing | 18 |
| a program to
correct the condition of the bank or its | 19 |
| practices.
| 20 |
| (c) To appoint hearing officers to execute any of the | 21 |
| powers granted to
the Commissioner under this Section for | 22 |
| the purpose of administering this
Act and any rule | 23 |
| promulgated in accordance with this Act
and otherwise to | 24 |
| authorize, in writing, an officer or employee of the Office
| 25 |
| of
Banks and Real Estate to exercise his powers under this | 26 |
| Act.
|
|
|
|
09500SB1674ham002 |
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LRB095 04901 MJR 37316 a |
|
| 1 |
| (d) To subpoena witnesses, to compel their attendance, | 2 |
| to administer
an oath, to examine any person under oath, | 3 |
| and to require the production of
any relevant books, | 4 |
| papers, accounts, and documents in the course of and
| 5 |
| pursuant to any investigation being conducted, or any | 6 |
| action being taken,
by the Commissioner in respect of any | 7 |
| matter relating to the duties imposed
upon, or the powers | 8 |
| vested in, the Commissioner under the provisions of
this | 9 |
| Act or any rule promulgated in accordance with this Act.
| 10 |
| (e) To conduct hearings.
| 11 |
| (7) Whenever, in the opinion of the Commissioner, any | 12 |
| director,
officer, employee, or agent of a State bank
or any | 13 |
| subsidiary or bank holding company of the bank
or, after May | 14 |
| 31, 1997, of any
branch of an out-of-state bank
or any | 15 |
| subsidiary or bank holding company of the bank
shall have | 16 |
| violated any law,
rule, or order relating to that bank
or any | 17 |
| subsidiary or bank holding company of the bank, shall have
| 18 |
| obstructed or impeded any examination or investigation by the | 19 |
| Commissioner, shall have engaged in an unsafe or
unsound | 20 |
| practice in conducting the business of that bank
or any | 21 |
| subsidiary or bank holding company of the bank,
or shall have
| 22 |
| violated any law or engaged or participated in any unsafe or | 23 |
| unsound practice
in connection with any financial institution | 24 |
| or other business entity such that
the character and fitness of | 25 |
| the director, officer, employee, or agent does not
assure | 26 |
| reasonable promise of safe and sound operation of the State |
|
|
|
09500SB1674ham002 |
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LRB095 04901 MJR 37316 a |
|
| 1 |
| bank, the
Commissioner
may issue an order of removal.
If, in | 2 |
| the opinion of the Commissioner, any former director, officer,
| 3 |
| employee,
or agent of a State bank
or any subsidiary or bank | 4 |
| holding company of the bank, prior to the
termination of his or | 5 |
| her service with
that bank
or any subsidiary or bank holding | 6 |
| company of the bank, violated any law,
rule, or order relating | 7 |
| to that
State bank
or any subsidiary or bank holding company of | 8 |
| the bank, obstructed or impeded
any examination or | 9 |
| investigation by the Commissioner, engaged in an unsafe or | 10 |
| unsound practice in conducting the
business of that bank
or any | 11 |
| subsidiary or bank holding company of the bank,
or violated any | 12 |
| law or engaged or participated in any
unsafe or unsound | 13 |
| practice in connection with any financial institution or
other | 14 |
| business entity such that the character and fitness of the | 15 |
| director,
officer, employee, or agent would not have assured | 16 |
| reasonable promise of safe
and sound operation of the State | 17 |
| bank, the Commissioner may issue an order
prohibiting that | 18 |
| person from
further
service with a bank
or any subsidiary or | 19 |
| bank holding company of the bank
as a director, officer, | 20 |
| employee, or agent. An order
issued pursuant to this subsection | 21 |
| shall be served upon the
director,
officer, employee, or agent. | 22 |
| A copy of the order shall be sent to each
director of the bank | 23 |
| affected by registered mail. The person affected by
the action | 24 |
| may request a hearing before the State Banking Board within 10
| 25 |
| days after receipt of the order. The hearing shall be held by
| 26 |
| the Board within 30 days after the request has been received by |
|
|
|
09500SB1674ham002 |
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LRB095 04901 MJR 37316 a |
|
| 1 |
| the Board.
The Board shall make a determination approving, | 2 |
| modifying, or disapproving
the order of the Commissioner as its | 3 |
| final administrative decision. If a
hearing is held by the | 4 |
| Board, the Board shall make its determination within
60 days | 5 |
| from the conclusion of the hearing. Any person affected by a
| 6 |
| decision of the Board under this subsection (7) of Section 48 | 7 |
| of this Act
may have the decision reviewed only under and in | 8 |
| accordance with the
Administrative Review Law and the rules | 9 |
| adopted pursuant thereto. A copy of
the order shall also be | 10 |
| served upon the bank of which he is a director,
officer, | 11 |
| employee, or agent, whereupon he shall cease to be a director,
| 12 |
| officer, employee, or agent of that bank. The Commissioner may
| 13 |
| institute a civil action against the director, officer, or | 14 |
| agent of the
State bank or, after May 31, 1997, of the branch | 15 |
| of the out-of-state bank
against whom any order provided for by | 16 |
| this subsection (7) of
this Section 48 has been issued, and | 17 |
| against the State bank or, after May 31,
1997, out-of-state | 18 |
| bank, to enforce
compliance with or to enjoin any violation of | 19 |
| the terms of the order.
Any person who has been the subject of | 20 |
| an order of removal
or
an order of prohibition issued by the | 21 |
| Commissioner under
this subsection or Section 5-6 of the | 22 |
| Corporate Fiduciary Act may not
thereafter serve as director, | 23 |
| officer, employee, or agent of any State bank
or of any branch | 24 |
| of any out-of-state bank,
or of any corporate fiduciary, as | 25 |
| defined in Section 1-5.05 of the
Corporate
Fiduciary Act, or of | 26 |
| any other entity that is subject to licensure or
regulation by |
|
|
|
09500SB1674ham002 |
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LRB095 04901 MJR 37316 a |
|
| 1 |
| the Commissioner or the Office of Banks and Real Estate unless
| 2 |
| the Commissioner has granted prior approval in writing.
| 3 |
| For purposes of this paragraph (7), "bank holding company" | 4 |
| has the
meaning prescribed in Section 2 of the Illinois Bank | 5 |
| Holding Company Act of
1957.
| 6 |
| (8) The Commissioner may impose civil penalties of up to | 7 |
| $10,000 against
any person for each violation of any provision | 8 |
| of this Act, any rule
promulgated in accordance with this Act, | 9 |
| any order of the Commissioner, or
any other action which in the | 10 |
| Commissioner's discretion is an unsafe or
unsound banking | 11 |
| practice.
| 12 |
| (9) The Commissioner may impose civil penalties of up to | 13 |
| $100
against any person for the first failure to comply with | 14 |
| reporting
requirements set forth in the report of examination | 15 |
| of the bank and up to
$200 for the second and subsequent | 16 |
| failures to comply with those reporting
requirements.
| 17 |
| (10) All final administrative decisions of the | 18 |
| Commissioner hereunder
shall be subject to judicial review | 19 |
| pursuant to the provisions of the
Administrative Review Law. | 20 |
| For matters involving administrative review,
venue shall be in | 21 |
| either Sangamon County or Cook County.
| 22 |
| (11) The endowment fund for the Illinois Bank Examiners' | 23 |
| Education
Foundation shall be administered as follows:
| 24 |
| (a) (Blank).
| 25 |
| (b) The Foundation is empowered to receive voluntary | 26 |
| contributions,
gifts, grants, bequests, and donations on |
|
|
|
09500SB1674ham002 |
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LRB095 04901 MJR 37316 a |
|
| 1 |
| behalf of the Illinois Bank
Examiners' Education | 2 |
| Foundation from national banks and other persons for
the | 3 |
| purpose of funding the endowment of the Illinois Bank | 4 |
| Examiners'
Education Foundation.
| 5 |
| (c) The aggregate of all special educational fees | 6 |
| collected by the
Commissioner and property received by the | 7 |
| Commissioner on behalf of the
Illinois Bank Examiners' | 8 |
| Education Foundation under this subsection
(11) on or after | 9 |
| June 30, 1986, shall be either (i) promptly paid after
| 10 |
| receipt of the same, accompanied by a detailed statement | 11 |
| thereof, into the
State Treasury and shall be set apart in | 12 |
| a special fund to be known as "The
Illinois Bank Examiners' | 13 |
| Education Fund" to be invested by either the
Treasurer of | 14 |
| the State of Illinois in the Public Treasurers' Investment
| 15 |
| Pool or in any other investment he is authorized to make or | 16 |
| by the Illinois
State Board of Investment as the board of | 17 |
| trustees of the Illinois Bank
Examiners' Education | 18 |
| Foundation may direct or (ii) deposited into an account
| 19 |
| maintained in a commercial bank or corporate fiduciary in | 20 |
| the name of the
Illinois Bank Examiners' Education | 21 |
| Foundation pursuant to the order and
direction of the Board | 22 |
| of Trustees of the Illinois Bank Examiners' Education
| 23 |
| Foundation.
| 24 |
| (12) (Blank).
| 25 |
| (Source: P.A. 94-91, eff. 7-1-05.)
|
|
|
|
09500SB1674ham002 |
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LRB095 04901 MJR 37316 a |
|
| 1 |
| Section 20. The Illinois Savings and Loan Act of 1985 is | 2 |
| amended by changing Sections 7-3 and 7-19.1 as follows:
| 3 |
| (205 ILCS 105/7-3) (from Ch. 17, par. 3307-3)
| 4 |
| Sec. 7-3. Personnel, records, files, actions and
duties, | 5 |
| etc. (a) The Commissioner shall appoint, subject to
applicable | 6 |
| provisions of the Personnel Code, a supervisor, such
examiners, | 7 |
| employees, experts and special assistants as may be necessary
| 8 |
| to carry out effectively this Act. The Commissioner shall | 9 |
| require each
supervisor, examiner, expert and special | 10 |
| assistant employed or appointed
by him to give bond, with | 11 |
| security to be approved by the Commissioner,
not less in any | 12 |
| case than $15,000, conditioned for the faithful
discharge of | 13 |
| his duties. The premium on such bond shall be paid by the
| 14 |
| Commissioner from funds appropriated for that purpose. The | 15 |
| bond, along
with verification of payment of the premium on such | 16 |
| bond, shall be filed
in the office of the Secretary of State.
| 17 |
| (b) The Commissioner shall have the following duties and | 18 |
| powers:
| 19 |
| (1) To exercise the rights, powers and duties set forth in | 20 |
| this Act
or in any other related Act;
| 21 |
| (2) To establish such regulations as may be reasonable or | 22 |
| necessary
to accomplish the purposes of this Act;
| 23 |
| (3) To direct and supervise all the administrative and
| 24 |
| technical activities of this office and create an Advisory | 25 |
| Committee
which upon request will make recommendations to him;
|
|
|
|
09500SB1674ham002 |
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LRB095 04901 MJR 37316 a |
|
| 1 |
| (4) To make an annual report regarding the work of his | 2 |
| office
as he may consider desirable to the Governor, or as the | 3 |
| Governor may
request;
| 4 |
| (5) To cause a suit to be filed in his name to enforce any | 5 |
| law of
this State that applies to an association, subsidiary of | 6 |
| an association,
or holding company operating under this Act and
| 7 |
| shall include the enforcement of any obligation of the | 8 |
| officers,
directors or employees of any association;
| 9 |
| (6) To prescribe a uniform manner in which the books and | 10 |
| records of
every association are to be maintained; and
| 11 |
| (7) To establish reasonable and rationally based fee | 12 |
| structures for each
association and holding company operating | 13 |
| under this Act and for their
service corporations and | 14 |
| subsidiaries, which fees shall include but not be
limited to | 15 |
| annual fees, application fees, regular and special examination
| 16 |
| fees, and such other fees as the Commissioner establishes and | 17 |
| demonstrates
to be directly resultant from his | 18 |
| responsibilities under this Act and as
are directly | 19 |
| attributable to individual entities operating under this Act. | 20 |
| For the fiscal year beginning July 1, 2007, the Commissioner | 21 |
| must adopt rules to adjust regulatory fee rates to those in | 22 |
| effect prior to the escalation in rates published in 38 Ill. | 23 |
| Adm. Code 375 unless an audit by the Auditor General of banking | 24 |
| regulatory oversight activities requires a different rate to be | 25 |
| set. Any adjustments made pursuant to an Auditor General's | 26 |
| audit must be set forth in the form of a notice to each |
|
|
|
09500SB1674ham002 |
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LRB095 04901 MJR 37316 a |
|
| 1 |
| affected entity 45 days prior to making those adjustments. The | 2 |
| notice must contain an explanation that includes a description | 3 |
| of the audit results pertaining to the banking industry and a | 4 |
| description of each reason why adjustments to the regulatory | 5 |
| fee rates are required.
| 6 |
| (Source: P.A. 85-313.)
| 7 |
| (205 ILCS 105/7-19.1) (from Ch. 17, par. 3307-19.1)
| 8 |
| Sec. 7-19.1. Savings and Residential Finance Regulatory | 9 |
| Fund.
| 10 |
| (a) The aggregate of all fees collected by the Commissioner | 11 |
| under this Act
shall be paid promptly after receipt of the | 12 |
| same, accompanied by a detailed
statement thereof, into the | 13 |
| State treasury and shall be set apart in the
Savings and | 14 |
| Residential Finance Regulatory Fund, a special fund hereby | 15 |
| created
in the State treasury. The amounts deposited into the | 16 |
| Fund shall be used for
the ordinary and contingent expenses of | 17 |
| the Commissioner, in administering the Illinois Savings and | 18 |
| Loan Act of 1985 and the Savings Bank Act
Office of Banks and | 19 |
| Real
Estate . Nothing in this Act shall prevent continuing the | 20 |
| practice of paying
expenses involving salaries, retirement, | 21 |
| social security, and State-paid
insurance of State officers by | 22 |
| appropriation from the General Revenue Fund.
| 23 |
| (b) Except as otherwise provided in subsection (b-5), | 24 |
| moneys in the Savings and Residential Finance Regulatory Fund | 25 |
| may not
be appropriated, assigned, or transferred to another |
|
|
|
09500SB1674ham002 |
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LRB095 04901 MJR 37316 a |
|
| 1 |
| State fund. The moneys in
the Fund shall be for the sole | 2 |
| benefit of the institutions assessed.
| 3 |
| (b-5) Moneys in the Savings and Residential Finance | 4 |
| Regulatory Fund may be transferred to the Professions Indirect | 5 |
| Cost Fund, as authorized under Section 2105-300 of the | 6 |
| Department of Professional Regulation Law of the Civil | 7 |
| Administrative Code of Illinois.
| 8 |
| (c) All
earnings received from investments of funds in the | 9 |
| Savings and Residential
Finance Regulatory Fund shall be | 10 |
| deposited into the Savings and Residential
Finance Regulatory | 11 |
| Fund and may be used for the same purposes as fees
deposited | 12 |
| into that Fund.
| 13 |
| (d) When the amount remaining in the Savings and | 14 |
| Residential Finance Regulatory Fund at the end of a fiscal year | 15 |
| exceeds 25% of the total actual administrative and operational | 16 |
| expenses incurred under the Illinois Savings and Loan Act of | 17 |
| 1985 and the Savings Bank Act for that fiscal year, the excess | 18 |
| must be credited to the appropriate institutions and entities | 19 |
| and applied against their regulatory fees for the subsequent | 20 |
| fiscal year. The amount credited to the institution or entity | 21 |
| must be in the same proportion that the fees paid by the | 22 |
| institution or entity for the fiscal year in which the excess | 23 |
| is produced bears to the aggregate of the fees collected by the | 24 |
| Commissioner under the Illinois Savings and Loan Act of 1985 | 25 |
| and the Savings Bank Act of 1987 for the same fiscal year. For | 26 |
| the purpose of this Section, "fiscal year" means the period |
|
|
|
09500SB1674ham002 |
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LRB095 04901 MJR 37316 a |
|
| 1 |
| beginning July 1 of any year and ending June 30 of the next | 2 |
| calendar year.
| 3 |
| (Source: P.A. 94-91, eff. 7-1-05.)
| 4 |
| Section 25. The Savings Bank Act is amended by changing | 5 |
| Section 9002 as follows:
| 6 |
| (205 ILCS 205/9002) (from Ch. 17, par. 7309-2)
| 7 |
| Sec. 9002. Powers of Commissioner. The Commissioner shall | 8 |
| have the following
powers and duties:
| 9 |
| (1) To exercise the rights, powers, and duties set forth in
| 10 |
| this Act or in any related Act.
| 11 |
| (2) To establish regulations as may be reasonable or
| 12 |
| necessary to accomplish the purposes of this Act.
| 13 |
| (3) To make an annual report regarding the work of his
| 14 |
| office under this Act as he may consider desirable to the
| 15 |
| Governor, or as the Governor may request.
| 16 |
| (4) To cause a suit to be filed in his name to enforce
any | 17 |
| law of this State that applies to savings banks, their service
| 18 |
| corporations, subsidiaries, affiliates, or holding companies
| 19 |
| operating under this Act, including the enforcement of any
| 20 |
| obligation of the officers, directors, agents, or employees of | 21 |
| any
savings bank.
| 22 |
| (5) To prescribe a uniform manner in which the books and
| 23 |
| records of every savings bank are to be maintained.
| 24 |
| (6) To establish a reasonable fee
structure for savings |
|
|
|
09500SB1674ham002 |
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LRB095 04901 MJR 37316 a |
|
| 1 |
| banks and holding companies operating under
this Act and for | 2 |
| their service corporations and subsidiaries.
The fees shall | 3 |
| include, but not be limited to, annual fees,
application fees, | 4 |
| regular and special examination fees, and other
fees as the | 5 |
| Commissioner establishes and demonstrates to be
directly | 6 |
| resultant from the Commissioner's responsibilities under
this | 7 |
| Act and as are directly attributable to individual entities
| 8 |
| operating under this Act. The aggregate of all fees collected | 9 |
| by
the Commissioner on and after the effective date of this Act | 10 |
| shall
be paid promptly after receipt of the same, accompanied | 11 |
| by a
detailed statement thereof, into the Savings and | 12 |
| Residential Finance Regulatory
Fund. The amounts deposited | 13 |
| into the Fund shall be used for the ordinary and
contingent | 14 |
| expenses of the Office of Banks and Real Estate. For the fiscal | 15 |
| year beginning July 1, 2007, the Commissioner must adopt rules | 16 |
| to adjust regulatory fee rates to those in effect prior to the | 17 |
| escalation in rates published in 38 Ill. Adm. Code 375 unless | 18 |
| an audit by the Auditor General of banking regulatory oversight | 19 |
| activities requires a different rate to be set. Any adjustments | 20 |
| made pursuant to an Auditor General's audit must be set forth | 21 |
| in the form of a notice to each affected entity 45 days prior | 22 |
| to making those adjustments. The notice must contain an | 23 |
| explanation that includes a description of the audit results | 24 |
| pertaining to the banking industry and a description of each | 25 |
| reason why adjustments to the regulatory fee rates are | 26 |
| required. Nothing
in this Act shall prevent continuing the |
|
|
|
09500SB1674ham002 |
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LRB095 04901 MJR 37316 a |
|
| 1 |
| practice of paying expenses involving
salaries, retirement, | 2 |
| social security, and State-paid insurance of State
officers by | 3 |
| appropriation from the General Revenue Fund.
| 4 |
| (Source: P.A. 89-508, eff. 7-3-96.)
| 5 |
| Section 30. The Illinois Credit Union Act is amended by | 6 |
| changing Section 12 as follows: | 7 |
| (205 ILCS 305/12) (from Ch. 17, par. 4413) | 8 |
| Sec. 12. Regulatory fees.
| 9 |
| (1) A credit union regulated by the Department pursuant to | 10 |
| a regulatory fee schedule shall pay a regulatory
fee to the | 11 |
| Department based upon the credit union's
its total assets as | 12 |
| shown by its Year-end
Call Report at the following rates or at | 13 |
| a lesser rate established in a manner proportionately | 14 |
| consistent with the following rates and that would fund the | 15 |
| actual administrative and operational expenses of the Credit | 16 |
| Union Section pursuant to subsection (5) :
|
|
17 | | TOTAL ASSETS | REGULATORY FEE |
|
18 | | $25,000 or less ............... | $100 |
|
19 | | Over $25,000 and not over
|
|
20 | | $100,000 ...................... | $100 plus $4 per |
| 21 | | $1,000 of assets in excess of |
| 22 | | $25,000 |
|
23 | | Over $100,000 and not over
|
|
24 | | $200,000 ...................... | $400 plus $3 per |
|
|
|
|
|
09500SB1674ham002 |
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LRB095 04901 MJR 37316 a |
|
| 1 | | $1,000 of assets in excess of |
| 2 | | $100,000 |
|
3 | | Over $200,000 and not over
|
|
4 | | $500,000 ...................... | $700 plus $2 per |
| 5 | | $1,000 of assets in excess of |
| 6 | | $200,000 |
|
7 | | Over $500,000 and not over
|
|
8 | | $1,000,000 .................... | $1,300 plus $1.40 |
| 9 | | per $1,000 of assets in excess |
| 10 | | of $500,000 |
|
11 | | Over $1,000,000 and not
|
|
12 | | over $5,000,000 ................ | $2,000 plus $0.50 |
| 13 | | per $1,000 of assets in |
| 14 | | excess of $1,000,000 |
|
15 | | Over $5,000,000 and not
|
|
16 | | over $30,000,000 .............. |
$4,000
$5,080 plus $0.35
$0.44 |
| 17 | | per $1,000 assets |
| 18 | | in excess of $5,000,000 |
|
19 | | Over $30,000,000 and not
|
|
20 | | over $100,000,000 ............. | $12,750
$16,192 plus $0.30
$0.38
|
| 21 | | per $1,000 of assets in |
| 22 | | excess of $30,000,000 |
|
23 | | Over $100,000,000 and not
|
|
24 | | over $500,000,000 ............. | $33,750
$42,862 plus $0.15
$0.19
|
|
|
|
|
|
09500SB1674ham002 |
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LRB095 04901 MJR 37316 a |
|
| 1 | | per $1,000 of assets in |
| 2 | | excess of $100,000,000 |
|
3 | | Over $500,000,000 ............. | $93,750
$140,625 plus $0.05
$0.075 |
| 4 | | per $1,000 of assets in |
| 5 | | excess of $500,000,000 |
|
6 |
| (2) The Director shall review the regulatory fee schedule | 7 |
| in subsection
(1) and the projected earnings on those fees on | 8 |
| an annual
basis
and adjust the fee schedule on an annual basis. | 9 |
| The fee schedule may be increased by no more than 5% annually
| 10 |
| if necessary to defray the actual
estimated administrative and | 11 |
| operational expenses of
the Credit Union Section
Department as | 12 |
| defined in subsection (5). However, the fee schedule shall not | 13 |
| be increased if the amount remaining in the Credit Union Fund | 14 |
| at the end of the calendar year is equal to or greater than 25% | 15 |
| of the actual administrative and operational expenses for the | 16 |
| preceding year. The regulatory fee for the next calendar year | 17 |
| shall be calculated by the Director based on the credit union's | 18 |
| total assets as of December 31 of the preceding year. The | 19 |
| Director shall provide credit
unions with written notice of any | 20 |
| adjustment made in the regulatory fee
schedule.
| 21 |
| (3) Not later than March 1 of each calendar year, a credit | 22 |
| union shall
pay to the Department a regulatory fee
for that | 23 |
| calendar year in accordance with the regulatory fee schedule in
| 24 |
| subsection (1), on the basis of assets as
of the Year-end Call | 25 |
| Report of the preceding year. The total annual regulatory fee |
|
|
|
09500SB1674ham002 |
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LRB095 04901 MJR 37316 a |
|
| 1 |
| shall
not be less than
$100 or more than $125,000
$187,500 , | 2 |
| provided that the
regulatory fee cap of $125,000
$187,500
shall | 3 |
| be adjusted to incorporate the same percentage increase as the | 4 |
| Director
makes in the regulatory fee schedule from time to time | 5 |
| under subsection (2).
No regulatory
fee
shall be collected
from | 6 |
| a credit union until it
has been in operation for one year.
| 7 |
| (4) The aggregate of all fees collected by the Department | 8 |
| under this
Act
shall be paid promptly after they are received,
| 9 |
| accompanied by a detailed
statement thereof, into the State | 10 |
| Treasury and shall be set apart in the
Credit Union Fund, a | 11 |
| special fund hereby created in the State treasury.
The amount | 12 |
| from time to time deposited in the Credit Union Fund and shall
| 13 |
| be used to offset the actual
ordinary administrative and | 14 |
| operational expenses of
the Credit Union Section
Department
| 15 |
| under
this Act. All earnings received from investments of funds | 16 |
| in the Credit
Union Fund shall be deposited into the Credit | 17 |
| Union Fund and may be used for
the same purposes as fees | 18 |
| deposited into that Fund.
Moneys in the Credit Union Fund may | 19 |
| be transferred to the Professions Indirect Cost Fund, as | 20 |
| authorized under Section 2105-300 of the Department of | 21 |
| Professional Regulation Law of the Civil Administrative Code of | 22 |
| Illinois.
| 23 |
| (5) The actual administrative and operational expenses of | 24 |
| the Credit Union Section for any calendar
year shall mean the | 25 |
| ordinary
and contingent expenses for that year incidental to | 26 |
| making the examinations
provided for by, and for administering, |
|
|
|
09500SB1674ham002 |
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LRB095 04901 MJR 37316 a |
|
| 1 |
| this Act, including all salaries
and other compensation paid | 2 |
| for personal services rendered for the State by
officers or | 3 |
| employees of the State to enforce this Act; all expenditures
| 4 |
| for telephone and telegraph charges, postage and postal | 5 |
| charges, office
supplies and services, furniture and | 6 |
| equipment, office space and
maintenance thereof, travel | 7 |
| expenses and other necessary expenses; all to
the extent that | 8 |
| such expenditures are directly incidental to such
examination | 9 |
| or administration.
| 10 |
| (6) When the balance in the Credit Union Fund at the end of | 11 |
| a calendar year exceeds 25%
aggregate of all fees collected by | 12 |
| the Department under
this Act
and all earnings thereon for any | 13 |
| calendar year exceeds 150% of the
total actual
administrative | 14 |
| and operational
expenses under this Act for that year, such | 15 |
| excess shall be credited to
credit unions and applied against | 16 |
| their regulatory fees for
the subsequent year. The amount | 17 |
| credited to a credit union shall be in the
same proportion as | 18 |
| the fee paid by such credit union for the
calendar year in | 19 |
| which the excess is produced bears to the aggregate of the
fees | 20 |
| collected by the Department
under this Act for the same year.
| 21 |
| (7) Examination fees for the year 2000 statutory | 22 |
| examinations paid
pursuant to the examination fee schedule in | 23 |
| effect at that time shall be
credited toward the regulatory fee | 24 |
| to be assessed the credit union in calendar
year 2001.
| 25 |
| (8) Nothing in this Act shall prohibit the General Assembly | 26 |
| from
appropriating funds to the Department from the General |
|
|
|
09500SB1674ham002 |
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LRB095 04901 MJR 37316 a |
|
| 1 |
| Revenue Fund for the
purpose of administering this Act.
| 2 |
| (Source: P.A. 93-32, eff. 7-1-03; 93-652, eff. 1-8-04; 94-91, | 3 |
| eff. 7-1-05.)
| 4 |
| Section 35. The Residential Mortgage License Act of 1987 is | 5 |
| amended by changing Section 2-6 and by adding Sections 4-15, | 6 |
| 4-16, 5-6, 5-7, 5-8, 5-9, 5-10, 5-11, 5-12, 5-14, 5-15, 5-16, | 7 |
| 5-17, and 7-2 as follows:
| 8 |
| (205 ILCS 635/2-6) (from Ch. 17, par. 2322-6)
| 9 |
| Sec. 2-6. License issuance and renewal; fee.
| 10 |
| (a) Beginning July 1, 2003, licenses shall be renewed every | 11 |
| year on the
anniversary of the date of issuance of the original | 12 |
| license.
Properly completed renewal application forms and | 13 |
| filing fees must be received
by the Commissioner 60 days prior | 14 |
| to the renewal date.
| 15 |
| (b) It shall be the responsibility of each licensee to | 16 |
| accomplish renewal
of its license; failure of the licensee to | 17 |
| receive renewal forms absent a
request sent by certified mail | 18 |
| for such forms will not waive said
responsibility. Failure by a | 19 |
| licensee to submit a properly completed
renewal application | 20 |
| form and fees in a timely fashion, absent a written
extension | 21 |
| from the Commissioner, will result in the assessment of
| 22 |
| additional fees, as follows:
| 23 |
| (1) A fee of
$750 will be assessed to the licensee 30 | 24 |
| days
after the
proper renewal date and
$1,500
each month |
|
|
|
09500SB1674ham002 |
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LRB095 04901 MJR 37316 a |
|
| 1 |
| thereafter, until the
license is
either renewed or expires | 2 |
| pursuant to Section 2-6, subsections (c) and (d),
of this | 3 |
| Act.
| 4 |
| (2) Such fee will be assessed without prior notice to | 5 |
| the licensee, but
will be assessed only in cases wherein | 6 |
| the Commissioner has in his or her
possession documentation | 7 |
| of the licensee's continuing activity for which
the | 8 |
| unrenewed license was issued.
| 9 |
| (c) A license which is not renewed by the date required in | 10 |
| this Section
shall automatically become inactive. No activity | 11 |
| regulated by this Act
shall be conducted by the licensee when a | 12 |
| license becomes inactive. The Commissioner may require the | 13 |
| licensee to provide a plan for the disposition of any | 14 |
| residential mortgage loans not closed or funded when the | 15 |
| license becomes inactive. The Commissioner may allow a licensee | 16 |
| with an inactive license to conduct activities regulated by | 17 |
| this Act for the sole purpose of assisting borrowers in the | 18 |
| closing or funding of loans for which the loan application was | 19 |
| taken from a borrower while the license was active. An
inactive | 20 |
| license may be reactivated by the Commissioner upon payment of | 21 |
| the renewal fee, and payment
of a reactivation fee equal to the | 22 |
| renewal fee.
| 23 |
| (d) A license which is not renewed within one year of | 24 |
| becoming inactive
shall expire.
| 25 |
| (e) A licensee ceasing an activity or activities regulated | 26 |
| by this Act
and desiring to no longer be licensed shall so |
|
|
|
09500SB1674ham002 |
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LRB095 04901 MJR 37316 a |
|
| 1 |
| inform the Commissioner in
writing and, at the same time, | 2 |
| convey the license and all other symbols or
indicia of | 3 |
| licensure. The licensee shall include a plan for the withdrawal
| 4 |
| from regulated business, including a timetable for the | 5 |
| disposition of the
business. Upon receipt of such written | 6 |
| notice, the Commissioner shall issue
a certified statement | 7 |
| canceling the license.
| 8 |
| (f) Each entity licensed under this Act shall pay, in | 9 |
| addition to the license fees imposed under the Residential | 10 |
| Mortgage License Act of 1987, an additional annual fee of $300. | 11 |
| The additional annual fee shall be deposited into the Predatory | 12 |
| Lending Database Program Fund.
| 13 |
| (Source: P.A. 93-32, eff. 7-1-03; 93-561, eff. 1-1-04; 93-1018, | 14 |
| eff. 1-1-05.)
| 15 |
| (205 ILCS 635/4-15 new) | 16 |
| Sec. 4-15. Enforcement and reporting provisions. | 17 |
| (a) The Attorney General may enforce any violation of | 18 |
| Section 5-6, 5-7, 5-8, 5-9, 5-10, 5-11, 5-12, 5-14, or 5-15 of | 19 |
| this Act as an unlawful practice under the Consumer Fraud and | 20 |
| Deceptive Business Practices Act. | 21 |
| (b) The Department of Financial and Professional | 22 |
| Regulation and the Department of Financial Institutions must | 23 |
| report to the Attorney General all violations of this | 24 |
| amendatory Act of which they become aware. |
|
|
|
09500SB1674ham002 |
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LRB095 04901 MJR 37316 a |
|
| 1 |
| (205 ILCS 635/4-16 new) | 2 |
| Sec. 4-16. Private right of action. A borrower injured by a | 3 |
| violation of the standards, duties, prohibitions, or | 4 |
| requirements of Sections 5-6, 5-7, 5-8, 5-9, 5-10, 5-11, 5-12, | 5 |
| 5-13, 5-14, 5-15, and 5-16 of this Act shall have a private | 6 |
| right of action. | 7 |
| (a) A licensee is not liable for a violation of this Act | 8 |
| if: | 9 |
| (1) within 30 days of the loan closing and prior to | 10 |
| receiving any notice from the borrower of the violation, | 11 |
| the licensee has made appropriate restitution to the | 12 |
| borrower and appropriate adjustments are made to the loan; | 13 |
| or | 14 |
| (2) the violation was not intentional and resulted from | 15 |
| a bona fide error in fact, notwithstanding the maintenance | 16 |
| of procedures reasonably adopted to avoid such errors, and | 17 |
| within 60 days of the discovery of the violation and prior | 18 |
| to receiving any notice from the borrower of the violation, | 19 |
| the borrower is notified of the violation, appropriate | 20 |
| restitution is made to the borrower, and appropriate | 21 |
| adjustments are made to the loan. | 22 |
| (b) The remedies and rights provided for in this Act are | 23 |
| not exclusive, but cumulative, and all other applicable claims | 24 |
| are specifically preserved.
| 25 |
| (205 ILCS 635/5-6 new) |
|
|
|
09500SB1674ham002 |
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LRB095 04901 MJR 37316 a |
|
| 1 |
| Sec. 5-6. Verification of borrower's ability to repay. | 2 |
| (a) No licensee may make, provide, or arrange for a | 3 |
| residential mortgage loan without verifying the borrower's | 4 |
| reasonable ability to pay the principal and interest on the | 5 |
| loan, real estate taxes, homeowner's insurance, assessments, | 6 |
| and mortgage insurance premiums, if applicable. | 7 |
| For residential mortgage loans in which the interest rate | 8 |
| may vary, the reasonable ability to pay the principal and | 9 |
| interest on the loan shall be determined based on a fully | 10 |
| indexed rate, which rate shall be calculated by using the index | 11 |
| rate prevailing at the time of origination of the loan plus the | 12 |
| margin that will apply when calculating the adjustable rate | 13 |
| under the terms of the loan, assuming a fully amortizing | 14 |
| repayment schedule based on the term of the loan. | 15 |
| For loans that allow for negative amortization, the | 16 |
| principal amount of the loan shall be calculated by including | 17 |
| the maximum amount the principal balance may increase due to | 18 |
| negative amortization under the terms of the loan. | 19 |
| (b) For all residential mortgage loans made by a licensee, | 20 |
| the borrower's income and financial resources must be verified | 21 |
| by tax returns, payroll receipts, bank records, or other | 22 |
| similarly reliable documents. Nothing in this Section shall be | 23 |
| construed to limit a licensee's ability to rely on criteria | 24 |
| other than the borrower's income and financial resources to | 25 |
| establish the borrower's reasonable ability to repay a | 26 |
| residential mortgage loan; however, such other criteria must be |
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| verified through reasonably reliable methods and | 2 |
| documentation. A statement by the borrower to the licensee of | 3 |
| the borrower's income and resources is not sufficient to | 4 |
| establish the existence of the income or resources when | 5 |
| verifying the reasonable ability to pay. | 6 |
| (205 ILCS 635/5-7 new) | 7 |
| Sec. 5-7. Broker agency relationship. | 8 |
| (a) A mortgage broker shall be considered to have created | 9 |
| an agency relationship with the borrower in all cases and shall | 10 |
| comply with the following duties: | 11 |
| (1) mortgage brokers shall act in the borrower's best | 12 |
| interest and in the utmost good faith toward borrowers, and | 13 |
| shall not compromise a borrower's right or interest in | 14 |
| favor of another's right or interest, including a right or | 15 |
| interest of the mortgage broker. A mortgage broker shall | 16 |
| not accept, give, or charge any undisclosed compensation or | 17 |
| realize any undisclosed remuneration, either through | 18 |
| direct or indirect means, that inures to the benefit of the | 19 |
| mortgage broker on an expenditure made for the borrower; | 20 |
| (2) mortgage brokers shall carry out all lawful | 21 |
| instructions given by borrowers; | 22 |
| (3) mortgage brokers shall disclose to borrowers all | 23 |
| material facts of which the mortgage broker has knowledge | 24 |
| which might reasonably affect the borrower's rights, | 25 |
| interests, or ability, or both, to receive the borrower's |
|
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| intended benefit from the residential mortgage loan, but | 2 |
| not facts which are reasonably susceptible to the knowledge | 3 |
| of the borrower; | 4 |
| (4) mortgage brokers shall use reasonable care in | 5 |
| performing duties; and | 6 |
| (5) mortgage brokers shall account to a borrower for | 7 |
| all the borrower's money and
property received as agent. | 8 |
| (b) Nothing in this Section prohibits a mortgage broker | 9 |
| from contracting for or collecting a fee for services rendered | 10 |
| and which had been disclosed to the borrower in advance of the | 11 |
| provision of those services. | 12 |
| (c) Nothing in this Section requires a mortgage broker to | 13 |
| obtain a loan containing terms or conditions not available to | 14 |
| the mortgage broker in the mortgage broker's usual course of | 15 |
| business, or to obtain a loan for the borrower from a mortgage | 16 |
| lender with whom the mortgage broker does not have a business | 17 |
| relationship. | 18 |
| (205 ILCS 635/5-8 new) | 19 |
| Sec. 5-8. Prepayment penalties. | 20 |
| (a) No licensee may make, provide, or arrange a mortgage | 21 |
| loan with a prepayment
penalty unless the licensee offers the | 22 |
| borrower a loan without a prepayment penalty, the
offer is in | 23 |
| writing, and the borrower initials the offer to indicate that | 24 |
| the borrower has
declined the offer. In addition, the licensee | 25 |
| must disclose the discount in rate received in
consideration |
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| for a mortgage loan with the prepayment penalty. | 2 |
| (b) If a borrower declines an offer required under | 3 |
| subsection (a) of this Section, the licensee may include a | 4 |
| prepayment penalty that extends no longer than three years or | 5 |
| the first change date or rate adjustment of a variable rate | 6 |
| mortgage, whichever comes earlier, provided that, if a | 7 |
| prepayment is made during the fixed rate period, the licensee | 8 |
| shall receive an amount that is no more than: | 9 |
| (1) 3% of the total loan amount if the prepayment is | 10 |
| made within the first 12
month period following the date | 11 |
| the loan was made; | 12 |
| (2) 2% of the total loan amount if the prepayment is | 13 |
| made within the second
12-month period following the date | 14 |
| the loan was made; or | 15 |
| (3) 1% of the total loan amount if the prepayment is | 16 |
| made within the third 12-
month period following the date | 17 |
| the loan was made, if the fixed rate period
extends 3 | 18 |
| years. | 19 |
| (c) Notwithstanding any provision in this Section, | 20 |
| prepayment penalties are prohibited in connection with the sale | 21 |
| or destruction of a dwelling secured by a residential mortgage | 22 |
| loan.
| 23 |
| (d) This Section applies to loans made, refinanced, | 24 |
| renewed, extended, or modified on or after the effective date | 25 |
| of this amendatory Act of the 95th General Assembly. |
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| (205 ILCS 635/5-9 new) | 2 |
| Sec. 5-9. Notice of change in loan terms. | 3 |
| (a) No licensee may fail to do either of the following: | 4 |
| (1) Provide timely notice to the borrower of any | 5 |
| material change in the terms of the residential mortgage | 6 |
| loan prior to the closing of the loan. For purposes of this | 7 |
| Section, a "material change means" any of the following: | 8 |
| (A) A change in the type of loan being offered, | 9 |
| such as a fixed or variable rate loan or a loan with a | 10 |
| balloon payment. | 11 |
| (B) A change in the term of the loan, as reflected | 12 |
| in the number of monthly payments due before a final | 13 |
| payment is scheduled to be made. | 14 |
| (C) An increase in the interest rate of more than | 15 |
| 0.15%, or an equivalent
increase in the amount of | 16 |
| discount points charged. | 17 |
| (D) An increase in the regular monthly payment of | 18 |
| principal and interest of more than 5%. | 19 |
| (E) A change regarding the requirement or amount of | 20 |
| escrow of taxes or insurance. | 21 |
| (F) A change regarding the requirement or payment, | 22 |
| or both, of private mortgage insurance. | 23 |
| (2) Timely inform the borrower if any fees payable by | 24 |
| the borrower to the licensee increase by more than 10% or | 25 |
| $100, whichever is greater. | 26 |
| (b) The disclosures required by this Section shall be |
|
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| deemed timely if the licensee provides the borrower with the | 2 |
| revised information not later than 3 days after learning of the | 3 |
| change or 24 hours before the residential mortgage loan is | 4 |
| closed, whichever is earlier. If the licensee discloses a | 5 |
| material change more than the 3 days after learning of the | 6 |
| change but still 24 hours before the residential mortgage loan | 7 |
| is closed, it will not be liable for penalties or forfeitures | 8 |
| if the licensee cures in time for the borrower to avoid any | 9 |
| damage. | 10 |
| (c) If an increase in the total amount of the fee to be | 11 |
| paid by the borrower to the broker is not disclosed in | 12 |
| accordance with this Section, the broker shall refund to the | 13 |
| borrower the amount by which the fee was increased. If the fee | 14 |
| is financed into the residential mortgage loan, the broker | 15 |
| shall also refund to the borrower the interest charged to | 16 |
| finance the fee.
| 17 |
| (205 ILCS 635/5-10 new) | 18 |
| Sec. 5-10. Comparable monthly payment quotes. When | 19 |
| comparing different loans, the licensee must not state or imply | 20 |
| that monthly loan payments, if they include amounts escrowed | 21 |
| for payment of property taxes and homeowner's insurance, are | 22 |
| comparable with monthly loan payments that do not include these | 23 |
| amounts. | 24 |
| (205 ILCS 635/5-11 new) |
|
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| Sec. 5-11. Requirement to provide borrower with a copy of | 2 |
| all appraisals. Licensees must provide to the borrower a | 3 |
| complete copy of any appraisal, including any appraisal | 4 |
| generated using the Automated Valuation Model, obtained by the | 5 |
| lender for use in underwriting the residential mortgage loan | 6 |
| within 3 business days of receipt by the licensee, but in no | 7 |
| event less than 24 hours prior to the day of closing. The | 8 |
| appraisal may be sent via first class mail, commercial carrier, | 9 |
| by facsimile or by e-mail, if the borrower has supplied an | 10 |
| email address. | 11 |
| (205 ILCS 635/5-12 new) | 12 |
| Sec. 5-12. Disclosure of refinancing options. If the | 13 |
| subject of a future loan is discussed by a licensee making, | 14 |
| providing, or arranging a mortgage loan, the licensee shall | 15 |
| disclose the circumstances under which a new loan could be | 16 |
| considered. Such disclosure shall clearly state that it is not | 17 |
| a contract and that the licensee is not representing or | 18 |
| promising that a new loan could or would be made at any time in | 19 |
| the future. | 20 |
| (205 ILCS 635/5-14 new) | 21 |
| Sec. 5-14. Prohibition on equity stripping and loan | 22 |
| flipping. No licensee may engage in equity stripping or loan | 23 |
| flipping, as those terms are defined in the Illinois Fairness | 24 |
| in Lending Act. |
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| (205 ILCS 635/5-15 new) | 2 |
| Sec. 5-15. Prohibition on financing certain insurance | 3 |
| premiums. No licensee may make, provide, or arrange for a | 4 |
| residential mortgage loan that finances, directly or | 5 |
| indirectly, any credit life, credit disability, or credit | 6 |
| unemployment insurance; however, insurance premiums calculated | 7 |
| and paid on a monthly basis shall not be considered to be | 8 |
| financed by the lender. | 9 |
| (205 ILCS 635/5-16 new) | 10 |
| Sec. 5-16. Prohibition on encouraging default. A licensee | 11 |
| may not recommend or encourage default or the failure to make | 12 |
| timely payments on an existing residential mortgage loan or | 13 |
| other debt prior to and in connection with the closing or | 14 |
| planned closing of a residential mortgage loan that refinances | 15 |
| all or any portion of the existing loan or debt. | 16 |
| (205 ILCS 635/5-17 new) | 17 |
| Sec. 5-17. Severability. If any provision of this Act or | 18 |
| its application to any person or circumstance is held invalid, | 19 |
| the invalidity of that provision or application does not affect | 20 |
| other provisions or applications of this Act that can be given | 21 |
| effect without the invalid provision or application. | 22 |
| (205 ILCS 635/7-2 new) |
|
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| Sec. 7-2. Continuing education required; course review. | 2 |
| Before the end of fiscal year 2009, the Department of Financial | 3 |
| and Professional Regulation shall adopt rules as to the | 4 |
| required yearly continuing education of loan originators who | 5 |
| are required to register under Section 7-1 of this Act. All | 6 |
| continuing education courses and the providers of continuing | 7 |
| education courses shall be approved by the Secretary pursuant | 8 |
| to this Section. Continuing education courses and the providers | 9 |
| of continuing education courses shall be subject to a review by | 10 |
| a panel appointed by the Secretary. The panel shall consist of | 11 |
| no less than 5 persons appointed by the Secretary. Two of the | 12 |
| members of the panel shall be representatives of major trade | 13 |
| associations representing the mortgage industry. The Secretary | 14 |
| shall consider the recommendations of the panel prior to | 15 |
| approving or disapproving continuing education courses or the | 16 |
| providers of continuing education courses.
| 17 |
| Section 45. The Residential Real Property Disclosure Act is | 18 |
| amended by changing Sections 70, 72, and 74 and adding Sections | 19 |
| 73, 78, and 80 as follows: | 20 |
| (765 ILCS 77/70) | 21 |
| Sec. 70. Predatory lending database pilot program. | 22 |
| (a) As used in this Article: | 23 |
| "Adjustable rate mortgage" or "ARM" means a closed end | 24 |
| mortgage transaction that allows adjustments of the loan |
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| interest rate during the first 5 years of the loan term. | 2 |
| "Borrower" means a person seeking a mortgage loan.
| 3 |
| "Broker" means a "broker" or "loan broker", as defined in | 4 |
| subsection (p) of Section 1-4 of the Residential Mortgage | 5 |
| License Act of 1987. | 6 |
| "Closing agent" means an individual assigned by a title | 7 |
| insurance company or a broker or originator to ensure that the | 8 |
| execution of documents related to the closing of a real estate | 9 |
| sale or the refinancing of a real estate loan and the | 10 |
| disbursement of closing funds are in conformity with the | 11 |
| instructions of the entity financing the transaction.
| 12 |
| "Counseling" means in-person counseling provided by a | 13 |
| counselor employed by a HUD-certified counseling agency to all | 14 |
| borrowers, or documented telephone counseling where a hardship | 15 |
| would be imposed on one or more borrowers. A hardship shall | 16 |
| exist in instances in which the borrower is confined to his or | 17 |
| her home due to medical conditions, as verified in writing by a | 18 |
| physician, or the borrower resides 50 miles or more from the | 19 |
| nearest participating HUD-certified housing counseling agency. | 20 |
| In instances of telephone counseling, the borrower must supply | 21 |
| all necessary documents to the counselor at least 72 hours | 22 |
| prior to the scheduled telephone counseling session. | 23 |
| "Counselor" means a counselor employed by a HUD-certified | 24 |
| housing counseling agency. | 25 |
| "Credit score" means a credit risk score as defined by the | 26 |
| Fair Isaac Corporation, or its successor, and reported under |
|
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| such names as "BEACON", "EMPIRICA", and "FAIR ISAAC RISK SCORE" | 2 |
| by one or more of the following credit reporting agencies or | 3 |
| their successors: Equifax, Inc., Experian Information | 4 |
| Solutions, Inc., and TransUnion
LLC.
| 5 |
| "Department" means the Department of Financial and | 6 |
| Professional Regulation.
| 7 |
| "Exempt person" means that term as it is defined in | 8 |
| subsections (d)(1) and (d)(1.5) of Section 1-4 of the | 9 |
| Residential Mortgage License Act of 1987.
| 10 |
| "First-time homebuyer" means a borrower who has not held an | 11 |
| ownership interest in residential property.
| 12 |
| "HUD-certified counseling" or "counseling" means | 13 |
| counseling given to a borrower by a counselor employed by a | 14 |
| HUD-certified housing counseling agency. | 15 |
| "Interest only" means a loan that permits one or more | 16 |
| payments of interest without any reduction of the principal | 17 |
| balance of the loan. | 18 |
| "Lender" means that term as it is defined in subsection (g) | 19 |
| of Section 1-4 of the Residential Mortgage License Act.
| 20 |
| "Licensee" means that term as it is defined in subsection | 21 |
| (e) of Section 1-4 of the Residential Mortgage License Act of | 22 |
| 1987.
| 23 |
| "Mortgage loan" means that term as it is defined in | 24 |
| subsection (f) of Section 1-4 of the Residential Mortgage | 25 |
| License Act of 1987.
| 26 |
| "Negative amortization" means an amortization method under |
|
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| which the outstanding balance may increase at any time over the | 2 |
| course of the loan because the regular periodic payment does | 3 |
| not cover the full amount of interest due. | 4 |
| "Originator" means a "loan originator" as defined in | 5 |
| subsection (hh) of Section 1-4 of the Residential Mortgage | 6 |
| License Act of 1987, except an exempt person. | 7 |
| "Pilot program area" means all areas within Cook County | 8 |
| designated as such by the Department due to the high rate of | 9 |
| foreclosure on residential home mortgages that is primarily the | 10 |
| result of predatory lending practices. The Department shall | 11 |
| designate the pilot program area within 30 days after the | 12 |
| effective date of this amendatory Act of the 94th General | 13 |
| Assembly.
| 14 |
| "Points and fees" has the meaning ascribed to that term in | 15 |
| Section 10 of the High Risk Home Loan Act. | 16 |
| "Prepayment penalty" means a charge imposed by a lender | 17 |
| under a mortgage note or rider when the loan is paid before the | 18 |
| expiration of the term of the loan. | 19 |
| "Refinancing" means a loan secured by the borrower's or | 20 |
| borrowers' primary residence where the proceeds are not used as | 21 |
| purchase money for the residence. | 22 |
| "Stated income" means an income figure provided by the | 23 |
| borrower and not verified by tax returns, payroll receipts, | 24 |
| bank records, or other similarly reliable documents. A | 25 |
| statement made by the borrower to the licensee of the | 26 |
| borrower's income and resources is not sufficient to establish |
|
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| the existence of the income or resources. | 2 |
| "Title insurance company" means any domestic company | 3 |
| organized under the laws of this State for the purpose of | 4 |
| conducting the business of guaranteeing or insuring titles to | 5 |
| real estate and any title insurance company organized under the | 6 |
| laws of another State, the District of Columbia, or a foreign | 7 |
| government and authorized to transact the business of | 8 |
| guaranteeing or insuring titles to real estate in this State.
| 9 |
| (a-5) A predatory lending database program is established | 10 |
| within Cook County. The program shall be administered in | 11 |
| accordance with this Article. The inception date of the program | 12 |
| shall be: (1) November 1, 2007 in the first assessment district | 13 |
| established under clause (i) of subsection (b) of Section 9-220 | 14 |
| of the Property Tax Code; (2) May 1, 2008 in the second | 15 |
| assessment district established under clause (ii) of | 16 |
| subsection (b) of Section 9-220 of the Property Tax Code; (3) | 17 |
| November 1, 2008 in the third assessment district established | 18 |
| under clause (iii) of subsection (b) of Section 9-220 of the | 19 |
| Property Tax Code.
Inception date. The Secretary of Financial | 20 |
| and Professional Regulation shall declare in writing the date | 21 |
| of inception of the pilot program. The inception date shall be | 22 |
| no later than September 1, 2006, and shall be at least 30 days | 23 |
| after the date the Secretary issues a declaration establishing | 24 |
| that date. The Secretary's declaration shall be posted on the | 25 |
| Department's website, and the Department shall communicate the | 26 |
| declaration to affected licensees of the Department. Until the |
|
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| inception date, none of the duties, obligations, | 2 |
| contingencies, or consequences of or from the pilot program | 3 |
| shall be imposed. The pilot program shall apply to all mortgage | 4 |
| applications that are governed by this Article and that are | 5 |
| made or taken on or after the inception of the pilot program.
| 6 |
| (b) A predatory lending database pilot program is | 7 |
| established within the pilot program area, effective upon the | 8 |
| inception date established by the Secretary of the Department. | 9 |
| The pilot program shall be in effect and operational
for a | 10 |
| total of 4 years and shall be administered in accordance with | 11 |
| Article 3 of this Act. The database created under this program | 12 |
| shall be maintained and administered by the Department. The | 13 |
| database shall be designed to allow brokers, originators, | 14 |
| credit counselors, title insurance companies, and closing | 15 |
| agents to submit information to the database online. The | 16 |
| database shall not be designed to allow those entities to | 17 |
| retrieve information from the database, except as otherwise | 18 |
| provided in this Article. Information submitted by the broker | 19 |
| or originator to the Department may be used to populate the | 20 |
| online form submitted by a credit counselor, title insurance | 21 |
| company, or closing agent. | 22 |
| (c) Within 10 days after taking a mortgage application, the | 23 |
| broker or originator for any mortgage on residential property | 24 |
| within the pilot program area must submit to the predatory | 25 |
| lending database all of the information required under Section | 26 |
| 72 and any other information required by the Department by |
|
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| rule. Within 7 days after receipt of the information, the | 2 |
| Department shall compare that information to the housing
credit
| 3 |
| counseling standards in Section 73
developed by the Department | 4 |
| by rule and issue to the borrower and the broker or originator | 5 |
| a determination of whether credit counseling is recommended for | 6 |
| the borrower. The borrower may not waive credit counseling. If | 7 |
| at any time after submitting the information required under | 8 |
| Section 72 the broker or originator (i) changes the terms of | 9 |
| the loan or (ii) issues a new commitment to the borrower, then, | 10 |
| within 5 days thereafter, the broker or originator shall | 11 |
| re-submit all of the information required under Section 72 and, | 12 |
| within 4 days after receipt of the information re-submitted by | 13 |
| the broker or originator, the Department shall compare that | 14 |
| information to the housing
credit counseling standards in | 15 |
| Section 73
developed by the Department by rule and shall issue | 16 |
| to the borrower and the broker or originator a new | 17 |
| determination of whether re-counseling
credit counseling is | 18 |
| recommended for the borrower based on the information | 19 |
| re-submitted by the broker or originator. | 20 |
| (d) If the Department recommends credit counseling for the | 21 |
| borrower under subsection (c), then the Department shall notify | 22 |
| the borrower of all participating HUD-certified counseling | 23 |
| agencies located within the State and direct the borrower to | 24 |
| interview with a counselor associated with one of those | 25 |
| agencies. Within 10 days after receipt of the notice of | 26 |
| HUD-certified counseling agencies, the borrower shall select |
|
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| one of those agencies and shall engage in an interview with a | 2 |
| counselor associated with that agency. Within 7 days after | 3 |
| interviewing the borrower, the credit counselor must submit to | 4 |
| the predatory lending database all of the information required | 5 |
| under Section 74 and any other information required by the | 6 |
| Department by rule. Reasonable and customary costs not to | 7 |
| exceed $300
Any costs associated with credit counseling | 8 |
| provided under the pilot program shall be paid by the broker or | 9 |
| originator. The Department shall annually calculate to the | 10 |
| nearest dollar an adjusted rate for inflation. A counselor | 11 |
| shall not recommend or suggest that a borrower contact any | 12 |
| specific mortgage origination company, financial institution, | 13 |
| or entity that deals in mortgage finance to obtain a loan; | 14 |
| however, a counselor may suggest that the borrower seek an | 15 |
| opinion or a quote from another mortgage origination company, | 16 |
| financial institution, or entity that deals in mortgage | 17 |
| finance. A credit counselor or housing counseling agency that
| 18 |
| who in good faith provides counseling services shall not be | 19 |
| liable to a broker or originator or borrower for civil damages, | 20 |
| except for willful or wanton misconduct on the part of the | 21 |
| counselor in providing the counseling services . | 22 |
| (e) The broker or originator and the borrower may not take | 23 |
| any legally binding action concerning the loan transaction | 24 |
| until the later of the following: | 25 |
| (1) the Department issues a determination not to | 26 |
| recommend HUD-certified
credit counseling for the borrower |
|
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| in accordance with subsection (c); or | 2 |
| (2) the Department issues a determination that | 3 |
| HUD-certified
credit counseling is recommended for the | 4 |
| borrower and the credit counselor submits all required | 5 |
| information to the database in accordance with subsection | 6 |
| (d).
| 7 |
| (f) Within 10 days after closing, the title insurance | 8 |
| company or closing agent must submit to the predatory lending | 9 |
| database all of the information required under Section 76 and | 10 |
| any other information required by the Department by rule. | 11 |
| (g) The title insurance company or closing agent shall | 12 |
| attach to the mortgage a certificate of
compliance with the | 13 |
| requirements of this Article, as generated by the database. If | 14 |
| the title insurance company or closing agent fails to attach | 15 |
| the certificate of compliance, then the mortgage is not | 16 |
| recordable. In addition, if any lis pendens for a residential | 17 |
| mortgage foreclosure is recorded on the property within the | 18 |
| pilot program area, a certificate of service must be | 19 |
| simultaneously recorded that affirms that a copy of the lis | 20 |
| pendens was filed with the Department. If the certificate of | 21 |
| service is not recorded, then the lis pendens pertaining to the | 22 |
| residential mortgage foreclosure in question is not recordable | 23 |
| and is of no force and effect. | 24 |
| (h) All information provided to the predatory lending | 25 |
| database under the program is confidential and is not subject | 26 |
| to disclosure under the Freedom of Information Act, except as |
|
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| otherwise provided in this Article. Information or documents | 2 |
| obtained by employees of the Department in the course of | 3 |
| maintaining and administering the predatory lending database | 4 |
| are deemed confidential. Employees are prohibited from making | 5 |
| disclosure of such confidential information or documents. Any | 6 |
| request for production of information from the predatory | 7 |
| lending database, whether by subpoena, notice, or any other | 8 |
| source, shall be referred to the Department of Financial and | 9 |
| Professional Regulation. Any borrower may authorize in writing | 10 |
| the release of database information. The Department may use the | 11 |
| information in the database without the consent of the | 12 |
| borrower: (i) for the purposes of administering and enforcing | 13 |
| the pilot program; (ii) to provide relevant information to a | 14 |
| credit counselor providing credit counseling to a borrower | 15 |
| under the pilot program; or (iii) to the appropriate law | 16 |
| enforcement agency or the applicable administrative agency if | 17 |
| the database information demonstrates criminal, fraudulent, or | 18 |
| otherwise illegal activity.
| 19 |
| (i) Nothing in this Article is intended to prevent a | 20 |
| borrower from making his or her own decision as to whether to | 21 |
| proceed with a transaction.
| 22 |
| (j) Any person who violates any provision of this Article | 23 |
| commits an unlawful practice within the meaning of the Consumer | 24 |
| Fraud and Deceptive Business Practices Act.
| 25 |
| (k) During the existence of the program, the Department | 26 |
| shall submit semi-annual reports to the Governor and to the |
|
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| General Assembly by May 1 and November 1 of each year detailing | 2 |
| its findings regarding the program. The report shall include at | 3 |
| least the following information for each reporting period: | 4 |
| (1) the number of loans registered with the program; | 5 |
| (2) the number of borrowers receiving counseling; | 6 |
| (3) the number of loans closed; | 7 |
| (4) the number of loans requiring counseling for each | 8 |
| of the standards set forth in Section 73; | 9 |
| (5) the number of loans requiring counseling where the | 10 |
| mortgage originator changed the loan terms subsequent to | 11 |
| counseling.
| 12 |
| Not later than one year after the Department designates the | 13 |
| pilot program area and annually thereafter during the existence | 14 |
| of the pilot program, the Department shall report to the | 15 |
| Governor and to the General Assembly concerning its | 16 |
| administration and the effectiveness of the pilot program.
| 17 |
| (Source: P.A. 94-280, eff. 1-1-06; 94-1029, eff. 7-14-06.) | 18 |
| (765 ILCS 77/72) | 19 |
| Sec. 72. Originator; required information. As part of the | 20 |
| predatory lending database pilot program, the broker or | 21 |
| originator must submit all of the following information for | 22 |
| inclusion in the predatory lending database for each loan for | 23 |
| which the originator takes an application: | 24 |
| (1) The borrower's name, address, social security | 25 |
| number or taxpayer identification number, date of birth, |
|
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| and income and expense information contained in the | 2 |
| mortgage application.
| 3 |
| (2) The address, permanent index number, and a | 4 |
| description of the collateral and information about the | 5 |
| loan or loans being applied for and the loan terms, | 6 |
| including the amount of the loan, the rate and whether the | 7 |
| rate is fixed or adjustable, amortization or loan period | 8 |
| terms, and any other material terms.
| 9 |
| (3) The borrower's credit score at the time of | 10 |
| application.
| 11 |
| (4) Information about the originator and the company | 12 |
| the originator works for, including the originator's | 13 |
| license number and address, fees being charged, whether the | 14 |
| fees are being charged as points up front, the yield spread | 15 |
| premium payable outside closing, and other charges made or | 16 |
| remuneration required by the broker or originator or its | 17 |
| affiliates or the broker's or originator's employer or its | 18 |
| affiliates for the mortgage loans.
| 19 |
| (5) Information about affiliated or third party | 20 |
| service providers, including the names and addresses of | 21 |
| appraisers, title insurance companies, closing agents, | 22 |
| attorneys, and realtors who are involved with the | 23 |
| transaction and the broker or originator and any moneys | 24 |
| received from the broker or originator in connection with | 25 |
| the transaction.
| 26 |
| (6) All information indicated on the Good Faith |
|
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| Estimate and Truth in Lending statement disclosures given | 2 |
| to the borrower by the broker or originator.
| 3 |
| (7) Annual real estate taxes for the property, together | 4 |
| with any assessments payable in connection with the | 5 |
| property to be secured by the collateral and the proposed | 6 |
| monthly principal and interest charge of all loans to be | 7 |
| taken by the borrower and secured by the property of the | 8 |
| borrower.
| 9 |
| (8) Information concerning how the broker or | 10 |
| originator obtained the client and the name of its referral | 11 |
| source, if any.
| 12 |
| (9) Information concerning the notices provided by the | 13 |
| broker or originator to the borrower as required by law and | 14 |
| the date those notices were given.
| 15 |
| (10) Information concerning whether a sale and | 16 |
| leaseback is contemplated and the names of the lessor and | 17 |
| lessee, seller, and purchaser.
| 18 |
| (11) Any and all financing by the borrower for the | 19 |
| subject property within 12 months prior to the date of | 20 |
| application. | 21 |
| (12) Loan information, including interest rate, term, | 22 |
| purchase price, down payment, and closing costs. | 23 |
| (13) Whether the buyer is a first-time homebuyer or | 24 |
| refinancing a primary residence. | 25 |
| (14) Whether the loan permits interest only payments. | 26 |
| (15) Whether the loan may result in negative |
|
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| amortization. | 2 |
| (16) Whether the total points and fees payable by the | 3 |
| borrowers at or before closing will exceed 5%. | 4 |
| (17) Whether the loan relies on stated income. | 5 |
| (18) Whether the loan includes a prepayment penalty, | 6 |
| and, if so, the terms of the penalty. | 7 |
| (19) Whether the loan is an ARM. | 8 |
| (Source: P.A. 94-280, eff. 1-1-06.) | 9 |
| (765 ILCS 77/73 new)
| 10 |
| Sec. 73. Standards for counseling. A borrower or borrowers | 11 |
| subject to this Article shall be recommended for counseling if, | 12 |
| after reviewing the information in the predatory lending | 13 |
| database submitted under Section 72, the Department finds the | 14 |
| borrower or borrowers are all first-time homebuyers or | 15 |
| refinancing a primary residence and the loan is a mortgage that | 16 |
| includes one or more of the following: | 17 |
| (1) the loan permits interest only payments; | 18 |
| (2) the loan may result in negative amortization; | 19 |
| (3) the total points and fees payable by the borrower | 20 |
| at or before closing will exceed 5%; | 21 |
| (4) the loan relies on stated income; | 22 |
| (5) the loan includes a prepayment penalty; or | 23 |
| (6) the loan is an ARM. | 24 |
| (765 ILCS 77/74) |
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| Sec. 74. Counselor
Credit counselor ; required information. | 2 |
| As part of the predatory lending database pilot program, a | 3 |
| credit counselor must submit all of the following information | 4 |
| for inclusion in the predatory lending database: | 5 |
| (1) The information called for in items (1), (6), (9), | 6 |
| (11), (12), (13), (14), (15), (16), (17), (18), and (19) of
| 7 |
| Section 72. | 8 |
| (2) Any information from the borrower that confirms or | 9 |
| contradicts the information called for under item (1) of | 10 |
| this Section. | 11 |
| (3) The name and address of the credit counselor and | 12 |
| address of the HUD-certifed housing counseling agency that | 13 |
| employs the counselor .
| 14 |
| (4) Information pertaining to the borrower's monthly | 15 |
| expenses that assists the credit counselor in determining | 16 |
| whether the borrower can afford the loans or loans for | 17 |
| which the borrower is applying. | 18 |
| (5) A list of the disclosures furnished to the | 19 |
| borrower, as seen and reviewed by the credit counselor, and | 20 |
| a comparison of that list to all disclosures required by | 21 |
| law. | 22 |
| (6) Whether the borrower provided tax returns to the | 23 |
| broker or originator or to the credit counselor, and, if | 24 |
| so, who prepared the tax returns. | 25 |
| (7) The date the loan commitment expires and whether a | 26 |
| written commitment has been given, together with the |
|
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| proposed date of closing. | 2 |
| (8) A statement of the recommendations of the credit
| 3 |
| counselor that indicates the counselor's response to each | 4 |
| of the following statements: | 5 |
| (A) The loan should not be approved due to indicia | 6 |
| of fraud. | 7 |
| (B) The loan should be approved; no material | 8 |
| problems noted. | 9 |
| (C) The borrower cannot afford the loan. | 10 |
| (D) The borrower does not understand the | 11 |
| transaction. | 12 |
| (E) The borrower does not understand the costs | 13 |
| associated with the transaction. | 14 |
| (F) The borrower's monthly income and expenses | 15 |
| have been reviewed and disclosed. | 16 |
| (G) The rate of the loan is above market rate. | 17 |
| (H) The borrower should seek a competitive bid from | 18 |
| another broker or originator. | 19 |
| (I) There are discrepancies between the borrower's | 20 |
| verbal understanding and the originator's completed | 21 |
| form. | 22 |
| (J) The borrower is precipitously close to not | 23 |
| being able to afford the loan. | 24 |
| (K) The borrower understands the true cost of debt | 25 |
| consolidation and the need for credit card discipline.
| 26 |
| (L) The information that the borrower provided the |
|
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| originator has been amended by the originator.
| 2 |
| (Source: P.A. 94-280, eff. 1-1-06.) | 3 |
| (765 ILCS 77/78 new)
| 4 |
| Sec. 78. Exemption. Borrowers applying for reverse | 5 |
| mortgage financing of residential real estate including under | 6 |
| programs regulated by the Federal Housing Authority (FHA) that | 7 |
| require HUD-certified counseling are exempt from the program | 8 |
| and may submit a HUD counseling certificate to comply with the | 9 |
| program. | 10 |
| (765 ILCS 77/80 new)
| 11 |
| Sec. 80. Predatory Lending Database Program Fund. The | 12 |
| Predatory Lending Database Program Fund is created as a special | 13 |
| fund in the State treasury. Subject to appropriation, moneys in | 14 |
| the Fund shall be used by the Department to make grants to | 15 |
| assist with implementation and development for participating | 16 |
| HUD-certified housing counseling agencies providing counseling | 17 |
| to borrowers under the program. | 18 |
| Section 50. The Mortgage Rescue Fraud Act is amended by | 19 |
| changing Section 5 as follows: | 20 |
| (765 ILCS 940/5)
| 21 |
| Sec. 5. Definitions. As used in this Act: | 22 |
| "Distressed property" means residential real property |
|
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| consisting of one to 6 family dwelling units that is in | 2 |
| foreclosure or at risk of loss due to nonpayment of taxes, or | 3 |
| whose owner is more than 90 days delinquent on any loan that is | 4 |
| secured by the property. | 5 |
| "Distressed property consultant" means any person who, | 6 |
| directly or indirectly, for compensation from the owner, makes | 7 |
| any solicitation, representation, or offer to perform or who, | 8 |
| for compensation from the owner, performs any service that the | 9 |
| person represents will in any manner do any of the following: | 10 |
| (1) stop or postpone the foreclosure sale or the loss | 11 |
| of the home due to nonpayment of taxes; | 12 |
| (2) obtain any forbearance from any beneficiary or | 13 |
| mortgagee, or relief with respect to a tax sale of the | 14 |
| property; | 15 |
| (3) assist the owner to exercise any right of | 16 |
| reinstatement or right of redemption; | 17 |
| (4) obtain any extension of the period within which the | 18 |
| owner may reinstate the owner's rights with respect to the | 19 |
| property; | 20 |
| (5) obtain any waiver of an acceleration clause | 21 |
| contained in any promissory note or contract secured by a | 22 |
| mortgage on a distressed property or contained in the | 23 |
| mortgage; | 24 |
| (6) assist the owner in foreclosure, loan default, or | 25 |
| post-tax sale redemption period to obtain a loan or advance | 26 |
| of funds; |
|
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| (7) avoid or ameliorate the impairment of the owner's | 2 |
| credit resulting from the recording of a notice of default | 3 |
| or the conduct of a foreclosure sale or tax sale; or | 4 |
| (8) save the owner's residence from foreclosure or loss | 5 |
| of home due to nonpayment of taxes. | 6 |
| A "distressed property consultant" does not include any of | 7 |
| the following: | 8 |
| (1) a person or the person's authorized agent acting | 9 |
| under the express authority or written approval of the | 10 |
| Department of Housing and Urban Development; | 11 |
| (2) a person who holds or is owed an obligation secured | 12 |
| by a lien on any distressed property, or a person acting | 13 |
| under the express authorization or written approval of such | 14 |
| person, when the person performs services in connection | 15 |
| with the obligation or lien, if the obligation or lien did | 16 |
| not arise as the result of or as part of a proposed | 17 |
| distressed property conveyance; | 18 |
| (3) banks, savings banks, savings and loan | 19 |
| associations, credit unions, and insurance companies | 20 |
| organized, chartered, or holding a certificate of | 21 |
| authority to do business under the laws of this State or | 22 |
| any other state or under the laws of the United States; | 23 |
| (4) licensed attorneys engaged in the practice of law; | 24 |
| (5) a Department of Housing and Urban Development | 25 |
| approved mortgagee and any subsidiary or affiliate of these | 26 |
| persons or entities, and any agent or employee of these |
|
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| persons or entities, while engaged in the business of these | 2 |
| persons or entities; | 3 |
| (6) a 501(c)(3) nonprofit agency or organization, | 4 |
| doing business for no less than 5 years, that offers | 5 |
| counseling or advice to an owner of a distressed property, | 6 |
| if they do not contract for services with for-profit | 7 |
| lenders or distressed property purchasers, or any person | 8 |
| who structures or plans such a transaction; | 9 |
| (7) licensees of the Residential Mortgage License Act | 10 |
| of 1987; | 11 |
| (8) licensees of the Consumer Installment Loan Act who | 12 |
| are authorized to make loans secured by real property; or | 13 |
| (9) licensees of the Real Estate License Act of 2000 | 14 |
| when providing licensed activities. | 15 |
| "Distressed property purchaser" means any person who | 16 |
| acquires any interest in fee in a distressed property or a | 17 |
| beneficial interest in a trust holding title to a distressed | 18 |
| property while allowing the owner to possess, occupy, or retain | 19 |
| any present or future interest in fee in the property, or any | 20 |
| person who participates in a joint venture or joint enterprise | 21 |
| involving a distressed property conveyance. "Distressed | 22 |
| property purchaser" does not mean any person who acquires | 23 |
| distressed property at a short sale or any person acting in | 24 |
| participation with any person who acquires distressed property | 25 |
| at a short sale, if that person does not promise to convey an | 26 |
| interest in fee back to the owner or does not give the owner an |
|
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| option to purchase the property at a later date. | 2 |
| "Distressed property conveyance" means a transaction in | 3 |
| which an owner of a distressed property transfers an interest | 4 |
| in fee in the distressed property or in which the holder of all | 5 |
| or some part of the beneficial interest in a trust holding | 6 |
| title to a distressed property transfers that interest ; the | 7 |
| acquirer of the property allows the owner of the distressed | 8 |
| property to occupy the property; and the acquirer of the | 9 |
| property or a person acting in participation with the acquirer | 10 |
| of the property conveys or promises to convey an interest in | 11 |
| fee back to the owner or gives the owner an option to purchase | 12 |
| the property at a later date. | 13 |
| "Person" means any individual, partnership, corporation, | 14 |
| limited liability company, association, or other group or | 15 |
| entity, however organized. | 16 |
| "Service" means, without limitation, any of the following: | 17 |
| (1) debt, budget, or financial counseling of any type; | 18 |
| (2) receiving money for the purpose of distributing it | 19 |
| to creditors in payment or partial payment of any | 20 |
| obligation secured by a lien on a distressed property; | 21 |
| (3) contacting creditors on behalf of an owner of a | 22 |
| residence that is distressed property; | 23 |
| (4) arranging or attempting to arrange for an extension | 24 |
| of the period within which the owner of a distressed | 25 |
| property may cure the owner's default and reinstate his or | 26 |
| her obligation;
|
|
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| (5) arranging or attempting to arrange for any delay or | 2 |
| postponement of the time of sale of the distressed | 3 |
| property; | 4 |
| (6) advising the filing of any document or assisting in | 5 |
| any manner in the preparation of any document for filing | 6 |
| with any court; or | 7 |
| (7) giving any advice, explanation, or instruction to | 8 |
| an owner of a distressed property that in any manner | 9 |
| relates to the cure of a default or forfeiture or to the | 10 |
| postponement or avoidance of sale of the distressed | 11 |
| property.
| 12 |
| (Source: P.A. 94-822, eff. 1-1-07.) | 13 |
| Section 55. The Interest Act is amended by changing Section | 14 |
| 4.1a as follows:
| 15 |
| (815 ILCS 205/4.1a) (from Ch. 17, par. 6406)
| 16 |
| Sec. 4.1a. Charges for and cost of the following items paid | 17 |
| or
incurred by any lender in connection with any loan shall not | 18 |
| be deemed
to be charges for or in connection with any loan of | 19 |
| money referred to in
Section 6 of this Act, or charges by the | 20 |
| lender as a consideration for
the loan referred to in this | 21 |
| Section:
| 22 |
| (a) hazard, mortgage or life insurance premiums, | 23 |
| survey, credit
report, title insurance, abstract and | 24 |
| attorneys' fees, recording
charges, escrow and appraisal |
|
|
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| fees, and similar charges.
| 2 |
| (b) in the case of construction loans, in addition to | 3 |
| the matters
referred to in clause (a) above, the actual | 4 |
| cost incurred by the lender
for services for making | 5 |
| physical inspections, processing payouts,
examining and | 6 |
| reviewing contractors' and subcontractors' sworn
| 7 |
| statements and waivers of lien and the like.
| 8 |
| (c) in the case of any loan made pursuant to the | 9 |
| provisions of the
Emergency Home Purchase Assistance Act of | 10 |
| 1974 (Section 313 of the
National Housing Act, Chapter B of | 11 |
| Title 12 of the United States Code),
in addition to the | 12 |
| matters referred to in paragraphs (a) and (b) of this
| 13 |
| Section all charges required or allowed by the Government | 14 |
| National
Mortgage Association, whether designated as | 15 |
| processing fees, commitment
fees, loss reserve and | 16 |
| marketing fees, discounts, origination fees or
otherwise | 17 |
| designated.
| 18 |
| (d) in the case of a single payment loan, made for a | 19 |
| period of 6 months
or less, a regulated financial | 20 |
| institution or licensed lender may contract
for and receive | 21 |
| a maximum charge of $15 in lieu of interest. Such charge
| 22 |
| may be collected when the loan is made, but only one such | 23 |
| charge may be
contracted for, received, or collected for | 24 |
| any such loan, including any
extension or renewal thereof.
| 25 |
| (e) if the agreement governing the loan so provides, a | 26 |
| charge not to
exceed the rate permitted under Section 3-806 |
|
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| of the Uniform Commercial
Code-Commercial Paper for any | 2 |
| check, draft or order for the payment of
money submitted in | 3 |
| accordance with said agreement which is unpaid or not
| 4 |
| honored by a bank or other depository institution.
| 5 |
| (f) if the agreement governing the loan so provides, | 6 |
| for each loan
installment in default for a period of not | 7 |
| less than 10 days, a charge in
an amount not in excess of | 8 |
| 5% of such loan installment. Only one
delinquency charge | 9 |
| may be collected on any such loan installment regardless
of | 10 |
| the period during which it remains in default. Payments | 11 |
| timely received
by the lender under a written extension or | 12 |
| deferral agreement shall not be
subject to any delinquency | 13 |
| charge.
| 14 |
| Notwithstanding items (k) and (l) of subsection (1) of | 15 |
| Section 4 of this Act, the lender, in the case of any nonexempt | 16 |
| residential mortgage loan, as defined in Section 1-4 of the | 17 |
| Residential Mortgage License Act of 1987, shall have the right | 18 |
| to include a prepayment penalty that extends no longer than the | 19 |
| fixed rate period of a variable rate mortgage provided that, if | 20 |
| a prepayment is made during the fixed rate period and not in | 21 |
| connection with the sale or destruction of the dwelling | 22 |
| securing the loan, the lender shall receive an amount that is | 23 |
| no more than: | 24 |
| (1) 3% of the total loan amount if the prepayment is | 25 |
| made within the first 12
month period following the date | 26 |
| the loan was made; |
|
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| (2) 2% of the total loan amount if the prepayment is | 2 |
| made within the second
12-month period following the date | 3 |
| the loan was made; or | 4 |
| (3) 1% of the total loan amount if the prepayment is | 5 |
| made within the third 12-
month period following the date | 6 |
| the loan was made, if the fixed rate period
extends 3 | 7 |
| years.
| 8 |
| This Section applies to loans made, refinanced, renewed, | 9 |
| extended, or modified on or after the effective date of this | 10 |
| amendatory Act of the 95th General Assembly.
| 11 |
| Where there is a charge in addition to the stated rate of | 12 |
| interest
payable directly or indirectly by the borrower and | 13 |
| imposed directly or
indirectly by the lender as a consideration | 14 |
| for the loan, or for or in
connection with the loan of money, | 15 |
| whether paid or payable by the
borrower, the seller, or any | 16 |
| other person on behalf of the borrower to
the lender or to a | 17 |
| third party, or for or in connection with the loan of
money, | 18 |
| other than as hereinabove in this Section provided, whether
| 19 |
| denominated "points," "service charge," "discount," | 20 |
| "commission," or
otherwise, and without regard to declining | 21 |
| balances of principal which
would result from any required or | 22 |
| optional amortization of the principal
of the loan, the rate of | 23 |
| interest shall be calculated in the following
manner:
| 24 |
| The percentage of the principal amount of the loan | 25 |
| represented by all
of such charges shall first be computed, | 26 |
| which in the case of a loan
with an interest rate in excess of |
|
|
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| 8% per annum secured by residential
real estate, other than | 2 |
| loans described in paragraphs (e) and (f) of
Section 4, shall | 3 |
| not exceed 3% of such principal amount. Said
percentage shall | 4 |
| then be divided by the number of years and fractions
thereof of | 5 |
| the period of the loan according to its stated maturity. The
| 6 |
| percentage thus obtained shall then be added to the percentage | 7 |
| of the
stated annual rate of interest.
| 8 |
| The borrower in the case of nonexempt loan shall have the | 9 |
| right to
prepay the loan in whole or in part at any time, but, | 10 |
| except as may
otherwise be provided by Section 4, the lender | 11 |
| may require payment of
not more than 6 months' advance interest | 12 |
| on that part of the aggregate
amount of all prepayments on a | 13 |
| loan in one year, which exceeds 20% of
the original principal | 14 |
| amount of the loan.
| 15 |
| (Source: P.A. 87-496 .)
| 16 |
| (205 ILCS 635/2-2 rep.)
| 17 |
| Section 60. The Residential Mortgage License Act of 1987 is | 18 |
| amended by repealing Section 2-2. | 19 |
| Section 970. Severability. If any provision of this | 20 |
| amendatory Act of the 95th General Assembly or its application | 21 |
| to any person or circumstance is held invalid, the invalidity | 22 |
| of that provision or application does not affect other | 23 |
| provisions or applications of this amendatory Act that can be | 24 |
| given effect without the invalid provision or application.
|
|
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| Section 999. Effective date. This Act takes effect upon | 2 |
| becoming law.".
|
|