HB6113ham001 96TH GENERAL ASSEMBLY

Rep. Joseph M. Lyons

Filed: 3/23/2010

09600HB6113ham001 LRB096 16773 ASK 39377 a

AMENDMENT TO HOUSE BILL 6113

AMENDMENT NO. ______. Amend House Bill 6113 by replacing everything after the enacting clause with the following:

"Section 1. Short title. This Act may be cited as the Foreclosed Home Receiver License Act.

Section 5. Purpose. The intent of the General Assembly in enacting this Act is to evaluate the competency of persons, including any entity, engaged in the foreclosed home receiver business and to regulate and license those persons engaged in this business for the protection of the public.

Section 10. Definitions. In this Act:

"Bank" means any person doing a banking business whether subject to the laws of this State or any other jurisdiction.

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

"Home" means real property that is used or intended to be used as the principal place of residence of one or more individuals.

"Foreclosed home receiver" means any person who acts as a receiver of a home foreclosed on by a bank or trust or any person to whom a receiver delegates managerial functions concerning a home foreclosed on by a bank or trust.

"Licensee" means a foreclosed home receiver licensed under this Act.

"Person" means an individual, corporation, limited liability company, partnership, joint venture, trust, estate, or unincorporated association.

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

"Trust" means any trust company or any other corporation qualified to act as a fiduciary in this State.

Section 15. Exemptions. A full or part-time employee of a bank or trust who acts as a receiver of homes foreclosed on by that bank or trust shall be exempt from licensure under this Act, but must comply with Section 23 of this Act.

Section 20. Unlicensed practice; civil penalty.

(a) Any person who practices, offers to practice, attempts to practice, or holds himself or herself out to practice as a foreclosed home receiver without being licensed under this Act shall, in addition to any other penalty provided by law, pay a civil penalty to the Department in an amount not to exceed $10,000 for each offense as determined by the Department. The civil penalty shall be assessed by the Department after a hearing is held in accordance with the provisions set forth in this Act regarding the provision of a hearing for the discipline of a licensee.

(b) Any licensee under this Act who delegates managerial functions related to the foreclosed home to a person who is not licensed under this Act shall, in addition to any other penalty provided by law, pay a civil penalty to the Department in an amount not to exceed $10,000 for each offense as determined by the Department. The civil penalty shall be assessed by the Department after a hearing is held in accordance with the provisions set forth in this Act regarding the provision of a hearing for the discipline of a licensee.

(c) The Department has the authority and power to investigate any and all unlicensed activities.

(d) The civil penalty imposed under this Section must be paid within 60 days after the effective date of the order imposing the civil penalty. The order shall constitute a judgment and may be filed and execution had thereon in the same manner as any judgment from any court of record.

Section 23. Personal property requirements; public posting.

(a) If a foreclosed home receiver takes possession of a foreclosed home, then the foreclosed home receiver shall hold onto and preserve all remaining personal property of the mortgagor or former occupant for at least 30 days or until the mortgagor or occupant releases his or her claim to his or her property in writing, whichever is sooner. The Department may by rule afford exceptions to the requirements of this subsection (a) for perishable items, such as food, or other items that the Department determines may pose a health risk to the public or may risk damage to other personal property or the home itself.

(b) The foreclosed home receiver may keep the remaining personal property in the home or store the personal property at another location which shall be reasonably accessible to the public. A mortgagor or former occupant may reclaim his or her personal property free of charge at this location.

(c) Upon possession of the foreclosed home, the foreclosed home receiver shall make a public posting at the entrance of the home that notifies the mortgagor or any occupant of the following:

(1) The contact information of the receiver, including phone number and address.

(2) The full name of the specific individual who is responsible for preserving his or her personal property and the location at which the personal property is stored and may be reclaimed by the mortgagor or occupant, free of charge.

(3) The phone number of the Consumer Fraud Hotline of the Illinois Attorney General.

The public posting shall include the following language in 12-point boldface capitalized type:

THIS HOME HAS BEEN FORECLOSED.

THE PERSONAL PROPERTY WITHIN THE HOME MAY BE REDEEMED WITHIN 30 DAYS OF THIS POSTING.

DO NOT ENTER THIS HOME - VIOLATORS ARE SUBJECT TO ARREST FOR CRIMINAL TRESPASS.

ARRANGEMENTS TO REDEEM THE PERSONAL PROPERTY INSIDE THE HOME MAY BE MADE BY CONTACTING:

The requirements of this subsection (c) are in addition to any other provision of State law related to the public posting of information that applies to a foreclosed home receiver.

Section 25. Powers and duties of the Department.

(a) The Department shall exercise the powers and duties prescribed by the Civil Administrative Code of Illinois for the administration of licensing Acts and shall exercise the powers and duties vested in it by this Act.

(b) The Department shall adopt rules necessary for the administration and enforcement of this Act, including rules concerning the standards and criteria for licensure, payment of applicable fees, and hearings.

(c) The Department must prescribe forms required for the administration of this Act.

Section 35. Licensure requirements.

(a) Every person applying to the Department for licensure must do so in writing on forms prescribed by the Department and pay the required nonrefundable fee. The application shall include without limitation all of the following information:

(1) The name, principal place of business, address, and telephone number of the applicant.

(2) Verification satisfactory to the Department that the applicant is at least 18 years of age.

(3) Verification satisfactory to the Department that the applicant does not have a criminal record.

(b) The Department may establish further requirements for registration by rule.

Section 40. Current address. Every licensee under this Act must maintain a current address with the Department. It shall be the responsibility of the licensee to notify the Department in writing of any change of address.

Section 45. Renewal; restoration; military service.

(a) The expiration date and renewal period for each license issued under this Act shall be set by the Department by rule.

(b) Any person who has permitted his or her license to expire may have his or her license restored by applying to the Department, filing proof acceptable to the Department of his or her fitness to have the license restored, which may include sworn evidence certifying to active practice in another jurisdiction satisfactory to the Department, and paying the required restoration fee. If the person has not maintained an active practice in another jurisdiction satisfactory to the Department, then the Department shall determine, by an evaluation program established by rule, the person's fitness to resume active status and may require the successful completion of an examination.

(c) Any person whose license has expired while he or she has been engaged (i) in federal service on active duty with the Armed Forces of the United States or the State Militia called into service or training or (ii) in training or education under the supervision of the United States preliminary to induction into the military service, may have his or her license renewed or restored without paying any lapsed renewal fees if, within 2 years after termination of service, training, or education, other than by dishonorable discharge, he or she furnishes the Department with satisfactory evidence to the effect that he or she has been so engaged and that the service, training, or education has been so terminated.

Section 50. Inactive status.

(a) Any person who notifies the Department in writing on forms prescribed by the Department may elect to place his or her license on inactive status and shall be excused from payment of renewal fees until he or she notifies the Department in writing of his or her desire to resume active status.

(b) Any person whose license has been expired for more than 3 years may have his or her certificate restored by making application to the Department and filing proof acceptable to the Department of his or her fitness to have his or her license restored, including evidence certifying to active practice in another jurisdiction, and by paying the required restoration fee.

(c) Any licensee whose license is on inactive status, has been suspended or revoked, or has expired may not represent himself or herself to be a licensed foreclosed home receiver or use the title "licensed foreclosed home receiver".

Section 55. Fees; disposition of funds.

(a) The Department shall establish by rule a schedule of fees for the administration and maintenance of this Act. Such fees shall be nonrefundable.

(b) All fees and fines collected pursuant to this Act shall be deposited in the General Professions Dedicated Fund. All moneys deposited into the Fund may be used for the expenses of the Department in the administration of this Act.

Section 60. Roster. The Department shall maintain a roster of the names and addresses of all licensees under this Act. This roster shall be made available upon written request and payment of the required fee.

Section 65. Advertising. Any person licensed under this Act may advertise the availability of professional services in the public media or on the premises where such professional services are rendered, provided that such advertising is truthful and not misleading.

Section 70. Injunction; criminal penalty; cease and desist order.

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

(b) If any person holds himself or herself out as a "licensed foreclosed home receiver" without being licensed under the provisions of this Act, then any interested party or person injured thereby may, in addition to the Secretary, petition for relief as provided in subsection (a) of this Section.

(c) Whoever holds himself or herself out as a "licensed foreclosed home receiver" in this State without being licensed for that purpose is guilty of a Class A misdemeanor, and for each subsequent conviction, is guilty of a Class 4 felony.

(d) Whenever, in the opinion of the Department, a person violates any provision of this Act, the Department may issue a rule to show cause why an order to cease and desist should not be entered against that person. The rule shall clearly set forth the grounds relied upon by the Department and shall allow the person at least 7 days after the date of the rule to file an answer that is satisfactory to the Department. Failure to answer to the satisfaction of the Department shall cause an order to cease and desist to be issued.

Section 75. Disciplinary grounds.

(a) The Department may refuse to issue or renew, or may revoke, suspend, place on probation, reprimand, or take other disciplinary action as the Department considers appropriate, including the issuance of fines not to exceed $10,000 for each violation, with regard to any license for any one or more of the following causes:

(1) Violation of this Act or any rule adopted under this Act.

(2) Conviction of any crime under the laws of any U.S. jurisdiction that is a felony or a misdemeanor an essential element of which is dishonesty or that directly relates to the practice of the profession.

(3) Making any misrepresentation for the purpose of obtaining a license.

(4) Professional incompetence or gross negligence in the practice of building contracting.

(5) Gross malpractice, prima facie evidence of which may be a conviction or judgment of malpractice in any court of competent jurisdiction.

(6) Aiding or assisting another person in violating any provision of this Act or any rule adopted under this Act.

(7) Failing, within 60 days, to provide information in response to a written request made by the Department that has been sent by certified mail to the licensee's last known address.

(8) Engaging in dishonorable, unethical, or unprofessional conduct of a character likely to deceive, defraud, or harm the public.

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

(10) Discipline by another U.S. jurisdiction or foreign nation, if at least one of the grounds for the discipline is the same or substantially equivalent to those set forth in this Section.

(11) Directly or indirectly giving to or receiving from any person, firm, corporation, partnership, or association any fee, commission, rebate, or other form of compensation for any professional service not actually rendered.

(12) A finding by the Department that a licensee, after having his or her license placed on probationary status, has violated the terms of probation.

(13) Conviction by any court of competent jurisdiction, either within or without this State, of any violation of any law governing the practice of building contracting if the Department determines, after investigation, that such person has not been sufficiently rehabilitated to warrant the public trust.

(14) A finding that registration has been applied for or obtained by fraudulent means.

(15) Practicing, attempting to practice, or advertising under a name other than the full name as shown on the license or any other legally authorized name.

(16) Gross and willful overcharging for professional services, including filing false statements for collection of fees or moneys for which services are not rendered.

(17) Failure to file a return, to pay the tax, penalty, or interest shown in a filed return, or to pay any final assessment of tax, penalty, or interest as required by any tax Act administered by the Department of Revenue, until such time as the requirements of the tax Act are satisfied in accordance with subsection (g) of Section 15 of the Department of Professional Regulation Law of the Civil Administrative Code of Illinois (20 ILCS 2105/2105-15).

(18) Failure to continue to meet the requirements of this Act.

(19) Material misstatement in furnishing information to the Department or to any other State agency.

(20) Advertising in any manner that is false, misleading, or deceptive.

(b) In enforcing this Section, the Department, upon a showing of a possible violation, may order a licensee or applicant to submit to a mental or physical examination, or both, at the expense of the Department. The Department may order the examining physician to present testimony concerning his or her examination of the licensee or applicant. No information shall be excluded by reason of any common law or statutory privilege relating to communications between the licensee or applicant and the examining physician. The examining physicians shall be specifically designated by the Department. The licensee or applicant may have, at his or her own expense, another physician of his or her choice present during all aspects of the examination. Failure of a licensee or applicant to submit to any such examination when directed, without reasonable cause as defined by rule, shall be grounds for either the immediate suspension of his or her license or immediate denial of his or her application.

If the Secretary immediately suspends the license of a licensee for his or her failure to submit to a mental or physical examination when directed, a hearing must be convened by the Department within 15 days after the suspension and completed without appreciable delay.

If the Secretary otherwise suspends a license pursuant to the results of the licensee's mental or physical examination, a hearing must be convened by the Department within 15 days after the suspension and completed without appreciable delay. The Department shall have the authority to review the licensee's record of treatment and counseling regarding the relevant impairment or impairments to the extent permitted by applicable federal statutes and regulations safeguarding the confidentiality of medical records.

Any licensee suspended under this subsection (b) shall be afforded an opportunity to demonstrate to the Department that he or she can resume practice in compliance with the acceptable and prevailing standards under the provisions of his or her license.

(c) The Department shall deny a license or renewal authorized by this Act to a person who has defaulted on an educational loan or scholarship provided or guaranteed by the Illinois Student Assistance Commission or any governmental agency of this State in accordance with subdivision (a)(5) of Section 15 of the Department of Professional Regulation Law of the Civil Administrative Code of Illinois (20 ILCS 2105/2105-15).

(d) In cases where the Department of Healthcare and Family Services (formerly the Department of Public Aid) has previously determined that a licensee or a potential licensee is more than 30 days delinquent in the payment of child support and has subsequently certified the delinquency to the Department, the Department may refuse to issue or renew or may revoke or suspend that person's license or may take other disciplinary action against that person based solely upon the certification of delinquency made by the Department of Healthcare and Family Services in accordance with subdivision (a)(5) of Section 15 of the Department of Professional Regulation Law of the Civil Administrative Code of Illinois (20 ILCS 2105/2105-15).

Section 80. Investigation; notice of hearing. The Department may investigate the actions or qualifications of any applicant or person holding or claiming to hold a license. The Department shall, before suspending or revoking, placing on probation, reprimanding, or taking any other disciplinary action under Section 75 of this Act, at least 30 days before the date set for the hearing, notify the applicant or licensee in writing of the nature of the charges and that a hearing will be held on the date designated. The written notice may be served by personal delivery or certified mail to the applicant or licensee at the address of his or her last notification to the Department. The Department shall direct the applicant or licensee to file a written answer with the Department, under oath, within 20 days after the service of the notice, and inform the person that if he or she fails to file an answer, his or her certificate may be revoked, suspended, placed on probation, reprimanded, or the Department may take any other additional disciplinary action, including the issuance of fines not to exceed $1,000 for each violation, as the Department may consider necessary, without a hearing. At the time and place fixed in the notice, the Department shall proceed to hear the charges and the parties or their counsel. All parties shall be afforded an opportunity to present any statements, testimony, evidence, and arguments as may be pertinent to the charges or to their defense. The Department may continue the hearing from time to time.

Section 120. Restoration of suspended or revoked license. At any time after the suspension or revocation of any license, the Department may restore it to the licensee, unless after an investigation and hearing, the Department determines that restoration is not in the public interest.

Section 125. Surrender of license. Upon the revocation or suspension of any license, the licensee shall immediately surrender his or her certificate to the Department. If the licensee fails to do so, the Department has the right to seize the certificate.

Section 130. Summary suspension of a license. The Secretary may summarily suspend a license issued under this Act without a hearing, simultaneously with the institution of proceedings for a hearing provided for in this Act, if the Secretary finds that evidence in the possession of the Secretary indicates that the continuation in practice by the licensee would constitute an imminent danger to the public. In the event that the Secretary temporarily suspends the license of an individual without a hearing, a hearing must be held within 30 days after such suspension has occurred.

Section 135. Administrative Review Law; venue.

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

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

Section 140. Certification of record; costs. The Department shall not be required to certify any record to the court or file an answer in court or to otherwise appear in any court in a judicial review proceeding, unless there is filed in the court with the complaint a receipt from the Department acknowledging payment of the costs of furnishing and certifying the record. Failure on the part of the plaintiff to file such receipt in court shall be grounds for dismissal of the action.

Section 145. Administrative Procedure Act. The Illinois Administrative Procedure Act is hereby expressly adopted and incorporated herein as if all of the provisions of that Act were included in this Act, except that the provision of subsection (d) of Section 10-65 of the Illinois Administrative Procedure Act that provides that at hearings the licensee has the right to show compliance with all lawful requirements for retention, continuation, or renewal of the certificate is specifically excluded. For the purposes of this Act, the notice required under Section 10-25 of the Illinois Administrative Procedure Act is deemed sufficient when mailed to the last known address of a party.

Section 150. Home rule. A unit of local government, including a home rule unit, may not regulate the practice of foreclosed home receivers in a manner inconsistent with this Act. This Section is a limitation under subsection (i) of Section 6 of Article VII of the Illinois Constitution on the concurrent exercise by home rule units of powers and functions exercised by the State.

Section 900. The Regulatory Sunset Act is amended by renumbering and changing Section 8.31 as follows:

(5 ILCS 80/4.31)

Sec. 4.31 8.31. Acts repealed on January 1, 2021. The following Acts are repealed on January 1, 2021:

The Crematory Regulation Act.

The Cemetery Oversight Act.

The Foreclosed Home Receiver License Act.

(Source: P.A. 96-863, eff. 3-1-10; revised 1-24-10.)

Section 920. The Code of Civil Procedure is amended by changing Section 15-1702 as follows:

(735 ILCS 5/15-1702) (from Ch. 110, par. 15-1702)

Sec. 15-1702. Specific Rules of Possession. (a) Mortgagee's Rights. No mortgagee shall be required to take possession of the mortgaged real estate, whether upon application made by any other party or otherwise. Whenever a mortgagee entitled to possession so requests, the court shall appoint a receiver. The failure of a mortgagee to request possession or appointment of a receiver shall not preclude a mortgagee otherwise entitled to possession from making such a request at any future time. The appointment of a receiver shall not preclude a mortgagee from thereafter seeking to exercise such mortgagee's right to be placed in possession.

(b) Designation of Receivers. Whenever a receiver is to be appointed, the mortgagee shall be entitled to designate the receiver. If the mortgagee is a bank or trust, then the mortgagee may only designate a foreclosed home receiver that is licensed under the Foreclosed Home Receiver License Act. If the mortgagor or any other party to the foreclosure objects to any such designation or designations and shows good cause, or the court disapproves the designee, then the mortgagee in such instance shall be entitled to make another designation.

(c) Rights of Mortgagee Having Priority. If a mortgagee having priority objects to the proposed possession by a subordinate mortgagee or by a receiver designated by the subordinate mortgagee, upon entry of a finding in accordance with subsection (d) of Section 15-1702 the court shall instead place that objecting mortgagee in possession or, if a receiver is to be designated in accordance with subsection (b) of Section 15-1702, allow the designation of the receiver to be made by that objecting mortgagee.

(d) Removal of Mortgagee in Possession. A mortgagee placed in possession shall not be removed from possession, and no receiver or other mortgagee shall be placed in possession except upon (i) the mortgagee's misconduct, death, legal disability or other inability to act, (ii) appointment of a receiver in accordance with subsection (a) of Section 15-1704 or (iii) a showing of good cause by a mortgagee having priority. A receiver shall not be removed solely on account of being designated by a mortgagee later determined not to have priority.

(e) Determination of Priority. If the court is required to determine priority for the purposes of subsection (c) of Section 15-1702, a new determination shall be made each time a mortgagee is to be placed in possession or a receiver is to be appointed and shall be an interim determination which shall not preclude the court from making a contrary determination later in the foreclosure. If the court subsequently shall make such a contrary determination, a mortgagee in possession or acting receiver shall not be removed except in accordance with Part 17 of this Article.

(f) Rights to Crops. With respect to any crops growing or to be grown on the mortgaged real estate, the rights of a holder of any obligation secured by a collateral assignment of beneficial interest in a land trust, the rights of a mortgagee in possession, or the rights of a receiver, including rights by virtue of an equitable lien, shall be subject to a security interest properly perfected pursuant to Article 9 of the Uniform Commercial Code, where the holder of a collateral assignment, mortgagee in possession, or receiver becomes entitled to crops by obtaining possession on or after the effective date of this Amendatory Act of 1988.

(Source: P.A. 85-1427.)

Section 999. Effective date. This Act takes effect upon becoming law.".