Illinois General Assembly - Full Text of SB2112
Illinois General Assembly

Previous General Assemblies

Full Text of SB2112  96th General Assembly

SB2112 96TH GENERAL ASSEMBLY


 


 
96TH GENERAL ASSEMBLY
State of Illinois
2009 and 2010
SB2112

 

Introduced 2/20/2009, by Sen. Don Harmon

 

SYNOPSIS AS INTRODUCED:
 
See Index

    Amends the Real Estate Timeshare Act of 1999. Provides a description of the Act's scope. Provides that a resale agent is a person who for another and for compensation, or with the intention or expectation of receiving compensation, either directly or indirectly, sells or offers to sell (instead of directly or through an employee or agent sells or offers to sell a timeshare). Provides definition of "managing entity lien". Provides that the minimum requirements of a timeshare sale listing agreement include the use, rental, or exchange of the unit while listed; designation of any rental fees recipient; disclosure of any relationship between the resale agent and any person receiving a benefit from use of the timeshare; any pre-sale fees; the resale agent's prior experience; commissions; and other items (instead of requiring only disclosure of the resale agent's compensation, certain terms of the use or rental of the timeshare, and the length of the term of the listing contract). Provides for disclosures, in addition to those required, to a prospective purchaser of a timeshare that include the status of assessments and real estate or personal property taxes and the location of documents about the timeshare. Provides that a timeshare resale agent shall be a licensed real estate broker unless exempt from licensure by the Real Estate License Act of 2000 or because of selling no more than 8 timeshares per year. Provides for a managing entity lien. Provides procedures, including notices and auctions, for the nonjudicial foreclosure against time share estates and the foreclosure of a lien or security interest on a timeshare use under the Act or under the Uniform Commercial Code. Repeals certain provisions of existing law regarding resale agent registration requirements. Makes other changes. Provides for severability of the amendatory provisions. Effective immediately.


LRB096 09414 AJO 19571 b

 

 

A BILL FOR

 

SB2112 LRB096 09414 AJO 19571 b

1     AN ACT concerning civil law.
 
2     Be it enacted by the People of the State of Illinois,
3 represented in the General Assembly:
 
4     Section 5. The Real Estate Timeshare Act of 1999 is amended
5 by changing Sections 1-10, 1-15, 5-40, 5-45, 5-60, 10-5, and
6 10-25 and by adding Sections 10-45, 10-50, and 10-55 as
7 follows:
 
8     (765 ILCS 101/1-10)
9     Sec. 1-10. Scope of Act.
10     (a) This Act applies to all of the following:
11         (1) Timeshare plans with an accommodation or component
12     site in Illinois.
13         (2) Timeshare plans without an accommodation or
14     component site in Illinois, if those timeshare plans are
15     sold or offered to be sold to any individual located within
16     Illinois.
17         (3) Exchange programs as defined in this Act.
18         (4) Resale agents as defined in this Act.
19     (b) Exemptions. This Act does not apply to the following:
20         (1) Timeshare plans, whether or not an accommodation is
21     located in Illinois, consisting of 7 or fewer timeshare
22     periods, the use of which extends over any period of less
23     than 3 years; or .

 

 

SB2112 - 2 - LRB096 09414 AJO 19571 b

1         (2) Timeshare plans, whether or not an accommodation is
2     located in Illinois, under which the prospective
3     purchaser's total financial obligation will be less than
4     $1,500 during the entire term of the timeshare plan.
5 (Source: P.A. 91-585, eff. 1-1-00.)
 
6     (765 ILCS 101/1-15)
7     Sec. 1-15. Definitions. In this Act, unless the context
8 otherwise requires:
9     "Accommodation" means any apartment, condominium or
10 cooperative unit, cabin, lodge, hotel or motel room, or other
11 private or commercial structure containing toilet facilities
12 therein that is designed and available, pursuant to applicable
13 law, for use and occupancy as a residence by one or more
14 individuals, or any unit or berth on a commercial cruise line
15 ship, which is included in the offering of a timeshare plan.
16     "Acquisition agent" means a person who, directly or through
17 the person's employees, agents, or independent contractors,
18 induces or attempts to induce by means of a promotion or an
19 advertisement any individual located within the State of
20 Illinois to attend a sales presentation for a timeshare plan.
21     "Advertisement" means any written, oral, or electronic
22 communication that is directed to or targeted to persons within
23 the State of Illinois and contains a promotion, inducement, or
24 offer to sell a timeshare plan, including but not limited to
25 brochures, pamphlets, radio and television scripts, electronic

 

 

SB2112 - 3 - LRB096 09414 AJO 19571 b

1 media, telephone and direct mail solicitations, and other means
2 of promotion.
3     "Association" means the organized body consisting of the
4 purchasers of interests in a timeshare plan.
5     "Assessment" means the share of funds required for the
6 payment of common expenses which is assessed from time to time
7 against each purchaser by the managing entity.
8     "Commissioner" means the Commissioner of Banks and Real
9 Estate, or a natural person authorized by the Commissioner, the
10 Office of Banks and Real Estate Act, or this Act to act in the
11 Commissioner's stead.
12     "Component site" means a specific geographic location
13 where accommodations which are part of a multi-site timeshare
14 plan are located. Separate phases of a single timeshare
15 property in a specific geographic location and under common
16 management shall be deemed a single component site.
17     "Developer" means and includes any person or entity, other
18 than a sales agent, acquisition agent, or resale agent, who
19 creates a timeshare plan or is in the business of selling
20 timeshare interests, or employs agents to do the same, or any
21 person or entity who succeeds to the interest of a developer by
22 sale, lease, assignment, mortgage, or other transfer, but the
23 term includes only those persons who offer timeshare interests
24 for disposition in the ordinary course of business.
25     "Dispose" or "disposition" means a voluntary transfer or
26 assignment of any legal or equitable interest in a timeshare

 

 

SB2112 - 4 - LRB096 09414 AJO 19571 b

1 plan, other than the transfer, assignment, or release of a
2 security interest.
3     "Exchange company" means any person owning or operating, or
4 both owning and operating, an exchange program.
5     "Exchange program" means any method, arrangement, or
6 procedure for the voluntary exchange of timeshare interests or
7 other property interests. The term does not include the
8 assignment of the right to use and occupy accommodations to
9 owners of timeshare interests within a single-site timeshare
10 plan. Any method, arrangement, or procedure that otherwise
11 meets this definition, wherein the purchaser's total
12 contractual financial obligation exceeds $3,000 per any
13 individual, recurring timeshare period, shall be regulated as a
14 timeshare plan in accordance with this Act.
15     "Managing entity" means the person who undertakes the
16 duties, responsibilities, and obligations of the management of
17 a timeshare plan.
18     "Managing entity lien" means a lien created pursuant to
19 Section 10-45.
20     "Offer" means any inducement, solicitation, or other
21 attempt, whether by marketing, advertisement, oral or written
22 presentation, or any other means, to encourage a person to
23 acquire a timeshare interest in a timeshare plan, other than as
24 security for an obligation.
25     "Person" means a natural person, corporation, limited
26 liability company, partnership, joint venture, association,

 

 

SB2112 - 5 - LRB096 09414 AJO 19571 b

1 estate, trust, government, governmental subdivision or agency,
2 or other legal entity, or any combination thereof.
3     "Promotion" means a plan or device, including one involving
4 the possibility of a prospective purchaser receiving a
5 vacation, discount vacation, gift, or prize, used by a
6 developer, or an agent, independent contractor, or employee of
7 any of the same on behalf of the developer, in connection with
8 the offering and sale of timeshare interests in a timeshare
9 plan.
10     "Purchaser" means any person, other than a developer, who
11 by means of a voluntary transfer acquires a legal or equitable
12 interest in a timeshare plan other than as security for an
13 obligation.
14     "Purchase contract" means a document pursuant to which a
15 person becomes legally obligated to sell, and a purchaser
16 becomes legally obligated to buy, a timeshare interest.
17     "Resale agent" means a person who, for another and for
18 compensation, or with the intention or expectation of receiving
19 compensation, either directly or indirectly directly or
20 through the person's employees or agents, sells, or offers to
21 sell, or advertises to sell within this State any a timeshare
22 interest previously sold to a purchaser or solicits an owner of
23 a timeshare interest to list the owner's timeshare interest,
24 wherever located, for sale.
25     "Reservation system" means the method, arrangement, or
26 procedure by which a purchaser, in order to reserve the use or

 

 

SB2112 - 6 - LRB096 09414 AJO 19571 b

1 occupancy of any accommodation of a multi-site timeshare plan
2 for one or more timeshare periods, is required to compete with
3 other purchasers in the same multi-site timeshare plan,
4 regardless of whether the reservation system is operated and
5 maintained by the multi-site timeshare plan managing entity, an
6 exchange company, or any other person. In the event that a
7 purchaser is required to use an exchange program as the
8 purchaser's principal means of obtaining the right to use and
9 occupy accommodations, that arrangement shall be deemed a
10 reservation system. When an exchange company utilizes a
11 mechanism for the exchange of use of timeshare periods among
12 members of an exchange program, that utilization is not a
13 reservation system of a multi-site timeshare plan.    
14     "Sales agent" means a person, other than a resale agent,
15 who, directly or through the person's employees, agents, or
16 independent contractors, sells or offers to sell timeshare
17 interests in a timeshare plan to any individual located in the
18 State of Illinois.
19     "Timeshare instrument" means one or more documents, by
20 whatever name denominated, creating or governing the operation
21 of a timeshare plan.
22     "Timeshare interest" means and includes either:
23         (1) a "timeshare estate", which is the right to occupy
24     a timeshare property, coupled with a freehold estate or an
25     estate for years with a future interest in a timeshare
26     property or a specified portion thereof; or

 

 

SB2112 - 7 - LRB096 09414 AJO 19571 b

1         (2) a "timeshare use", which is the right to occupy a
2     timeshare property, which right is neither coupled with a
3     freehold interest, nor coupled with an estate for years
4     with a future interest, in a timeshare property.
5     "Timeshare period" means the period or periods of time when
6 the purchaser of a timeshare plan is afforded the opportunity
7 to use the accommodations of a timeshare plan.
8     "Timeshare plan" means any arrangement, plan, scheme, or
9 similar device, other than an exchange program, whether by
10 membership agreement, sale, lease, deed, license, or
11 right-to-use agreement or by any other means, whereby a
12 purchaser, in exchange for consideration, receives ownership
13 rights in or the right to use accommodations for a period of
14 time less than a full year during any given year, but not
15 necessarily for consecutive years. A timeshare plan may be:
16         (1) a "single-site timeshare plan", which is the right
17     to use accommodations at a single timeshare property; or
18         (2) a "multi-site timeshare plan", which includes:
19             (A) a "specific timeshare interest", which is the
20         right to use accommodations at a specific timeshare
21         property, together with use rights in accommodations
22         at one or more other component sites created by or
23         acquired through the timeshare plan's reservation
24         system; or
25             (B) a "non-specific timeshare interest", which is
26         the right to use accommodations at more than one

 

 

SB2112 - 8 - LRB096 09414 AJO 19571 b

1         component site created by or acquired through the
2         timeshare plan's reservation system, but including no
3         specific right to use any particular accommodations.
4     "Timeshare property" means one or more accommodations
5 subject to the same timeshare instrument, together with any
6 other property or rights to property appurtenant to those
7 accommodations.
8 (Source: P.A. 91-585, eff. 1-1-00.)
 
9     (765 ILCS 101/5-40)
10     Sec. 5-40. Resale agent duties. A Whether registered or
11 exempt from registration under Section 5-35, a resale agent
12 shall comply with all of the following:
13     (a) Prior to engaging in any resale activities on behalf of
14 any owner of a timeshare interest or accepting anything of
15 value from any owner of a timeshare interest, a resale agent
16 shall enter into a listing agreement with that owner. Every
17 listing agreement shall be in writing and signed by both the
18 resale agent and the timeshare interest owner. The requirements
19 of the written listing agreement shall be established by rule,
20 but at a minimum the listing agreement shall disclose the
21 following:
22         (1) The name and address of the resale agent and the
23     timeshare interest owner.
24         (2) The term of the listing agreement.
25         (3) Whether the resale agent's rights under the listing

 

 

SB2112 - 9 - LRB096 09414 AJO 19571 b

1     agreement are exclusive and, if the resale agent's rights
2     are exclusive, the length of such exclusivity period.
3         (4) Whether any person other than the timeshare
4     interest owner may use the timeshare during the period
5     before the timeshare interest is resold.
6         (5) Whether any person other than the timeshare
7     interest owner may rent or exchange the use of the
8     timeshare interest during the term of the listing
9     agreement.
10         (6) The name of any person who will receive any rents,
11     profits, or other thing of value generated from the use of
12     the timeshare interest during the period before the
13     timeshare interest is resold.
14         (7) A detailed description of any relationship between
15     the resale agent and any other person who receives any
16     benefit from the use of the timeshare interest.
17         (8) A description of any fees or costs that relate to
18     the listing or sale of the timeshare interest that the
19     timeshare interest owner (or any other person) must pay to
20     the resale agent or any third party. If the timeshare
21     interest owner (or any other person) must pay a fee to the
22     resale agent or any third party before the sale of the
23     timeshare interest, the listing agreement must identify
24     each of the following:
25             (A) The amount of each pre-sale fee and to whom
26         such pre-sale fee must be paid.

 

 

SB2112 - 10 - LRB096 09414 AJO 19571 b

1             (B) The time by which each pre-sale fee must be
2         paid.
3             (C) A reasonable description of each pre-sale cost
4         or fee.
5             (D) A description and the estimated amount of any
6         other fees or costs associated with the listing or sale
7         of the timeshare interest.
8             (E) The ratio or percentage of the number of
9         listings of timeshare interests for sale versus the
10         number of timeshare interests sold by the resale agent
11         for each of the past 3 years.
12         (9) A description of the amount or percentage and
13     procedures for paying any commissions due to the resale
14     agent upon resale of the timeshare interest. the method of
15     compensation, a definite date of termination, whether any
16     fees are non-refundable, and whether the agreement permits
17     the timeshare resale agent or any other person to make any
18     use whatsoever of the owner's timeshare interest or receive
19     any rents or profits generated from such use of the
20     timeshare interest.
21     (b) A resale agent shall maintain records as required by
22 rule. The records required to be maintained include, but are
23 not limited to, all listing agreements, copies of disbursement
24 authorizations in accordance with subsection (c), and resale
25 contracts.
26     (c) A resale agent who collects any fees prior to a

 

 

SB2112 - 11 - LRB096 09414 AJO 19571 b

1 transfer of an interest from any owner shall deposit the fees
2 in an escrow account. Any fees that are to be paid to the
3 resale agent prior to closing may be disbursed from the escrow
4 account only upon receipt of a disbursement authorization,
5 signed by the owner, in the following form:
6         "I, (name of owner), am the owner of a timeshare
7     interest in (name of timeshare plan). I understand that for
8     my protection I can require the entire fee to be held in
9     escrow until the closing on the resale of my timeshare
10     interest, but I am authorizing a release before the
11     transfer in the following amount: (amount written in words)
12     ($ (amount in numbers)), for the following purpose or
13     purposes (description of purpose or purposes). I
14     understand that the resale agent is regulated by the Office
15     of Banks and Real Estate under the Real Estate Timeshare
16     Act of 1999. The Office of Banks and Real Estate requires
17     the resale agent to obtain this disbursement authorization
18     with my signature before disbursement of my funds."
19     (d) A resale agent shall utilize a purchase agreement that
20 discloses to a purchaser of a timeshare interest all of the
21 following:
22         (1) A legally sufficient description of the timeshare
23     interest being purchased.
24         (2) The name and address of the managing entity of the
25     timeshare property.
26         (3) The amount of the most recent current year's

 

 

SB2112 - 12 - LRB096 09414 AJO 19571 b

1     assessment for the common expenses allocated to the
2     timeshare interest being purchased including the time
3     period to which the assessment relates (e.g., monthly,
4     quarterly, yearly) and the date on which it is due. If not
5     included in the applicable common expense assessment, the
6     amount of any real or personal property taxes allocated to
7     the timeshare interest being purchased.
8         (3.5) Whether all assessments and real or personal
9     property taxes that are due against the timeshare interest
10     are paid in full and, if not, the amount owed and the
11     consequences of failure to pay timely any assessment or
12     real or personal property taxes.
13         (4) A complete and accurate disclosure of the terms and
14     conditions of the purchase and closing, including the
15     obligations of the owner, the purchaser, or both for
16     closing costs and the title insurance.
17         (5) The entity responsible for providing notification
18     to the managing entity of the timeshare plan and the
19     applicable exchange company regarding any change in the
20     ownership of the timeshare interest.
21         (6) A statement of the first year in which the
22     purchaser is entitled to receive the actual use rights and
23     occupancy of the timeshare interest, as determined by the
24     managing entity of the timeshare plan and any exchange
25     company.
26         (6.5) The name, address, telephone number, and website

 

 

SB2112 - 13 - LRB096 09414 AJO 19571 b

1     (if applicable) where the governing documents of the
2     association, if any, and the timeshare instrument may be
3     obtained, together with the following disclosure:
4             "There are many important documents relating to
5         the timeshare plan that you should review before
6         purchasing a timeshare interest. These may include,
7         but are not limited to, (a) the declaration of
8         condominium, (b) the declaration of timeshare plan,
9         (c) the reciprocal easement and cost sharing
10         agreement, (d) the declaration of restrictions,
11         covenants, and conditions, (e) the owners association
12         articles and bylaws, (f) the current year's operating
13         and reserve budgets, if any, for the owners
14         association, and (g) any rules and regulations
15         affecting the use of the timeshare property or other
16         facility or amenity available for use by timeshare
17         interest owners."
18         (7) In making the disclosures required by this
19     subsection (d), the timeshare resale agent may rely upon
20     information provided in writing by the owner or managing
21     entity of the timeshare plan.
22         (8) The purchaser's 5-day cancellation period as
23     required by Section 10-10.
24         (9) Any other information determined by the Office of
25     Banks and Real Estate and established by rule.
26     (e) Unless exempt from licensure pursuant to the Real

 

 

SB2112 - 14 - LRB096 09414 AJO 19571 b

1 Estate License Act of 2000 or its successor Act, a resale agent
2 must be licensed as a real estate broker or salesperson
3 pursuant to the Real Estate License Act of 2000 or its
4 successor Act.
5     (f) A resale agent is exempt from the duties imposed by
6 subsections (a)-(d) of this Section 5-40 if the resale agent
7 offers an aggregate total no more than 8 timeshare interests
8 per calendar year as a resale agent, regardless of (1) whether
9 those timeshare interests are located in this State and (2)
10 whether the resale agent offers all, or only some, of those
11 timeshare interests, in this State.
12 (Source: P.A. 91-585, eff. 1-1-00.)
 
13     (765 ILCS 101/5-45)
14     Sec. 5-45. Amendment to registration information or public
15 offering statement. The developer, resale agent, and exchange
16 company shall amend or supplement their disclosure documents
17 and registration information to reflect any material change in
18 any information required by this Act or the rules implementing
19 this Act. All such amendments, supplements, and changes shall
20 be filed with the Office of Banks and Real Estate within 30 20
21 calendar days of the material change.
22 (Source: P.A. 91-585, eff. 1-1-00.)
 
23     (765 ILCS 101/5-60)
24     Sec. 5-60. Registration; offer or disposal of interest.

 

 

SB2112 - 15 - LRB096 09414 AJO 19571 b

1     (a) A developer or , exchange company, or resale agent, or
2 any of their agents, shall not sell, offer, or dispose of a
3 timeshare interest unless all necessary registrations are
4 filed and approved by the Office of Banks and Real Estate, or
5 while an order revoking or suspending a registration is in
6 effect.
7     (b) An applicant for registration under this Act shall
8 submit the necessary information to complete the application,
9 as required by the Office of Banks and Real Estate, within 6
10 months from the date the initial registration application was
11 received by the Office of Banks and Real Estate. If the
12 applicant fails to submit the information necessary to complete
13 the application as required by the Office of Banks and Real
14 Estate within the six month period, said application shall be
15 voided, and a new registration application with applicable fees
16 must be submitted.
17 (Source: P.A. 91-585, eff. 1-1-00.)
 
18     (765 ILCS 101/10-5)
19     Sec. 10-5. Management and operation provisions.
20     (a) Before the first sale of a timeshare interest, the
21 developer shall create or provide for a managing entity, which
22 shall be either the developer, a separate manager or management
23 firm, the board of directors of an owners' association, or some
24 combination thereof.
25     (b) The duties of the managing entity include, but are not

 

 

SB2112 - 16 - LRB096 09414 AJO 19571 b

1 limited to:
2         (1) Management and maintenance of all accommodations
3     constituting the timeshare plan.
4         (2) Collection of all assessments as provided in the
5     timeshare instrument.
6         (3) Providing to all purchasers each year an itemized
7     annual budget, which shall include all estimated revenues
8     and expenses.
9         (4) Maintenance of all books and records concerning the
10     timeshare plan.
11         (5) Scheduling occupancy of accommodations, when
12     purchasers are not entitled to use specific timeshare
13     periods, so that all purchasers will be provided the
14     opportunity to use and possession of the accommodations of
15     the timeshare plan which they have purchased.
16         (6) Performing any other functions and duties that are
17     necessary and proper to maintain the accommodations or that
18     are required by the timeshare instrument.
19     (c) If In the event a developer, mortgagee, managing
20 entity, or association does not pursue nonjudicial foreclosure
21 as provided in Section 10-50 or 10-55 and instead forecloses
22 against a timeshare interest pursuant to the Illinois Mortgage
23 Foreclosure Law, files a complaint in a foreclosure proceeding
24 involving timeshare interests, the developer, mortgagee,
25 managing entity, or association may join in the same action
26 multiple defendant obligors and junior interest holders of

 

 

SB2112 - 17 - LRB096 09414 AJO 19571 b

1 separate timeshare interests, provided:
2         (1) the foreclosure proceeding involves a single
3     timeshare plan;
4         (2) the foreclosure proceeding is filed by a single
5     plaintiff;
6         (3) the default and remedy provisions in the written
7     instruments on which the foreclosure proceeding is based
8     are substantially the same for each defendant; and
9         (4) the nature of the defaults alleged is the same for
10     each defendant.
11     (d) In any foreclosure proceeding involving multiple
12 defendants filed under subsection (c), the court shall sever
13 for separate trial any count of the complaint in which a
14 defense or counterclaim is timely raised by a defendant.
15 (Source: P.A. 91-585, eff. 1-1-00.)
 
16     (765 ILCS 101/10-25)
17     Sec. 10-25. Liability; material misrepresentation.
18     (a) A developer or other person offering a timeshare plan
19 may not do any of the following:
20         (1) Misrepresent a fact material to a purchaser's
21     decision to buy a timeshare interest.
22         (2) Predict specific or immediate increases in the
23     value of a timeshare interest represented over a period of
24     time, excluding bona fide pending price increases by the
25     developer.

 

 

SB2112 - 18 - LRB096 09414 AJO 19571 b

1         (3) Materially misrepresent the qualities or
2     characteristics of accommodations or the amenities
3     available to the occupant of those accommodations.
4         (4) Misrepresent the length of time accommodations or
5     amenities will be available to the purchaser of a timeshare
6     interest.
7         (5) Misrepresent the conditions under which a
8     purchaser of a timeshare interest may exchange the right of
9     his or her occupancy for the right to occupy other
10     accommodations.
11     (b) A developer or other person using a promotion in
12 connection with the offering of a timeshare interest shall
13 clearly disclose all of the following:
14         (1) That the purpose of the promotion is to sell
15     timeshare interests, which shall appear in bold face or
16     other conspicuous type.
17         (2) That any person whose name or address is obtained
18     during the promotion may be solicited to purchase a
19     timeshare interest.
20         (3) The name of each developer or other person trying
21     to sell a timeshare interest through the promotion, and the
22     name of each person paying for the promotion.
23         (4) The complete rules of the promotion.
24         (5) The method of awarding prizes, gifts, vacations,
25     discount vacations, or other benefits under the promotion;
26     a complete and fully detailed description, including

 

 

SB2112 - 19 - LRB096 09414 AJO 19571 b

1     approximate retail value, of all prizes, gifts, or benefits
2     under the promotion; the quantity of each prize, gift, or
3     benefit to be awarded or conferred; and the date by which
4     each prize, gift, or benefit will be awarded or conferred.
5         (6) Any other disclosures provided by rule.
6     (c) If a person represents that a prize, gift, or benefit
7 will be awarded in connection with a promotion, the prize,
8 gift, or benefit must be awarded or conferred in the manner
9 represented, and on or before the date represented.
10     (d) A developer or other person using a promotion in
11 connection with the offering of a timeshare interest shall
12 provide the disclosures required by this Section in writing or
13 electronically to the prospective purchaser at least once
14 before the earlier of (1) a reasonable period before the
15 scheduled sales presentation to ensure that the prospective
16 purchaser receives the disclosures before leaving to attend the
17 sales presentation or (2) the payment of any nonrefundable
18 monies by the prospective purchaser in regard to the promotion.
19     (e) A developer or other person using a promotion in
20 connection with the offering of a timeshare interest is not
21 required to provide the disclosures required by this Section in
22 every advertisement or other written, oral, or electronic
23 communication provided or made to a prospective purchaser.
24 (Source: P.A. 91-585, eff. 1-1-00.)
 
25     (765 ILCS 101/10-45 new)

 

 

SB2112 - 20 - LRB096 09414 AJO 19571 b

1     Sec. 10-45. Managing entity lien created.
2     (a) A managing entity has a lien on a timeshare interest
3 for any of the following respectively levied or imposed against
4 a timeshare interest:
5         (1) Assessments, which for purposes of this Act unless
6     the timeshare instrument provides otherwise, shall include
7     fees, charges, late charges, fines, collection costs, and
8     interest charged in accordance with the timeshare
9     instrument;
10         (2) Reasonable collection and attorneys fees and costs
11     the managing entity incurs to collect assessments; and
12         (3) Taxes, interest, penalties, late payment fees or
13     fines in accordance with applicable law or the timeshare
14     instrument.
15     (b) Managing entity liens pursuant to this Section are
16 created and attached when the charges described in Section
17 10-45(a) become due. If such amounts are payable in
18 installments, the full amount of such charges is a managing
19 entity lien from the time that the first installment thereof
20 becomes due.
21     (c) Managing entity liens pursuant to this Section are
22 perfected on the date that the managing entity:
23         (1) In the case of a timeshare estate, records a notice
24     of lien against the timeshare estate in the registry of
25     deeds in the county where the timeshare estate is located,
26     which notice of lien must identify each of the following:

 

 

SB2112 - 21 - LRB096 09414 AJO 19571 b

1             (A) The name of the timeshare estate owner;
2             (B) The name and address of the managing entity;
3             (C) The description of the timeshare estate in the
4         same manner required for recording a mortgage against a
5         timeshare estate; and
6             (D) The amount of the debt secured by the managing
7         entity lien.
8         (2) In the case of a timeshare use, files a notice of
9     lien against the timeshare use in the filing office of the
10     Illinois Secretary of State pursuant to Article 9 of the
11     Uniform Commercial Code, which notice of lien, in addition
12     to any other filing requirements imposed by Article 9 of
13     the Uniform Commercial Code, must identify each of the
14     following:
15             (A) The name of the timeshare use owner as the
16         debtor;
17             (B) The name of the managing entity as the secured
18         party;
19             (C) The address of the managing entity;
20             (D) The timeshare use as the collateral; and
21             (E) The amount of the debt secured by the managing
22         entity lien.
23     (d) The managing entity must send a copy of the recorded or
24 filed notice of lien on the timeshare interest, as the case may
25 be, to the last known address of the timeshare interest owner.
26     (e) A managing entity lien against a timeshare estate, at

 

 

SB2112 - 22 - LRB096 09414 AJO 19571 b

1 the managing entity's option, may (1) be foreclosed as provided
2 in Section 10-50 or (2) be foreclosed in the same manner as a
3 mortgage pursuant to the Illinois Mortgage Foreclosure Law.
4     (f) A managing entity lien against a timeshare use, at the
5 managing entity's option, may (1) be foreclosed as provided in
6 Section 10-55 or (2) be enforced in the same manner as a
7 security interest pursuant to Article 9 of the Uniform
8 Commercial Code.
 
9     (765 ILCS 101/10-50 new)
10     Sec. 10-50. Nonjudicial foreclosure against timeshare
11 estates.
12     (a) Notwithstanding anything in the Illinois Mortgage
13 Foreclosure Law or other applicable law to the contrary:
14         (1) The holder of a mortgage against a timeshare estate
15     may foreclose or otherwise enforce a security interest
16     pursuant to this Section 10-50; and
17         (2) The holder of a managing entity lien against a
18     timeshare estate may foreclose such managing entity lien
19     pursuant to this Section 10-50.
20     (b) Upon default, and after all applicable cure periods
21 identified in the mortgage (if such default is under a
22 mortgage) or the timeshare instrument (if default is under a
23 managing entity lien) have expired, the holder of the mortgage
24 or managing entity lien must:
25         (1) Provide written notice of the default to the

 

 

SB2112 - 23 - LRB096 09414 AJO 19571 b

1     timeshare estate owner at the last known address of the
2     timeshare estate owner by (A) certified mail, return
3     receipt requested and (B) first-class mail.
4         (2) Provide the timeshare estate owner an additional
5     opportunity to cure for a period of at least 30 days
6     following the later date of the mailing of the notices
7     pursuant to Sections 10-50(b)(1)(A) and 10-50(b)(1)(B).
8     (c) If, the timeshare estate owner does not cure the
9 default before the expiration of the additional cure period
10 granted pursuant to Section 10-50(b)(2), the holder of the
11 mortgage or managing entity lien may foreclose the mortgage or
12 managing entity lien by conducting a public auction that
13 complies with the following requirements:
14         (1) The holder of the mortgage or managing entity lien
15     must provide notice of the public auction as follows:
16             (A) By publishing notice of the public auction in
17         at least each of 3 successive weeks in a newspaper,
18         whether printed or electronic, of general circulation
19         in the county where the timeshare estate is located.
20         The first notice must be published no more than 30 days
21         before the date of the public auction, which 30-day
22         period shall be calculated by excluding the date of
23         publication of the first notice and the date of the
24         public auction.
25             (B) By sending written notice identifying the
26         time, date, and place of the public auction to the last

 

 

SB2112 - 24 - LRB096 09414 AJO 19571 b

1         known address of the owner of record of the timeshare
2         estate at least 30 days before the date of the public
3         auction by (i) certified mail, return receipt
4         requested and (ii) first-class mail.
5             (C) By sending notice identifying the time, date,
6         and place of the public auction to all persons known to
7         have a lien against the timeshare estate at least 30
8         days before the date of the public auction by certified
9         mail, return receipt requested.
10         (2) The notices given pursuant to Section 10-50(c)(1)
11     must also contain:
12             (A) The name of the timeshare estate owner;
13             (B) A general description of the timeshare estate;
14         and
15             (C) The terms of the public auction.
16         (3) If more than one timeshare estate is to be included
17     in the public auction, all such timeshare estates may be
18     combined into one notice of public auction.
19         (4) The public notice required by Section
20     10-50(c)(1)(A) for foreclosing a mortgage against a
21     timeshare estate must be printed in substantially the
22     following form:
 
23 NOTICE OF SALE OF TIMESHARE ESTATE OR ESTATES UNDER SECTION
24 10-50 OF THE ILLINOIS REAL ESTATE TIMESHARE ACT OF 1999
 

 

 

SB2112 - 25 - LRB096 09414 AJO 19571 b

1 By virtue of 765 ILCS 101/10-50 and in execution of a certain
2 mortgage (or mortgages, if more than one) on the timeshare
3 estate (or estates, if more than one) given by the owner of the
4 timeshare estate (or owners, if more than one) set forth below
5 for breach of the conditions of said mortgage (or mortgages, if
6 more than one) and for the purpose of foreclosing, the same
7 will be sold at public auction starting at...........
8 on............ 20.. at........, Illinois, being all and
9 singular the premises described in said mortgage (or mortgages,
10 if more than one). (For each mortgage, list the name and
11 address of the timeshare estate owner, a general description of
12 the timeshare estate, and the book and page number of the
13 mortgage.)
 
14 TERMS OF SALE: (State the deposit amount to be paid by the
15 purchaser at the time and place of the sale and the times for
16 payment of the balance or the whole, as the case may be. The
17 timeshare estates, if more than one, must be sold in individual
18 lots unless there are no individual bidders, in which case,
19 they may be sold as a group.)
 
20 Other terms may be announced at the public auction.
 
21 Signed.................................
 
22 Holder of mortgage or authorized agent.

 

 

SB2112 - 26 - LRB096 09414 AJO 19571 b

1         (5) The public notice required by Section
2     10-50(c)(1)(A) for foreclosing a managing entity lien
3     against a timeshare estate must be printed in substantially
4     the following form:
 
5 NOTICE OF SALE OF TIMESHARE ESTATE OR ESTATES UNDER SECTION
6 10-50 OF THE ILLINOIS REAL ESTATE TIMESHARE ACT OF 1999
 
7 By virtue of the timeshare instrument of the
8 ................... (name and address of timeshare property)
9 and 765 ILCS 101/10-45 establishing a managing entity lien for
10 failure to pay assessments and other costs on the timeshare
11 estate (or estates, if more than one) held by the owner of the
12 timeshare estate (or owners, if more than one) listed below,
13 the timeshare estate (or estates, if more than one) and for the
14 purpose of foreclosing, the same will be sold at public auction
15 starting at ......... on ........ 20.. at .............,
16 Illinois. (For each timeshare estate, list the name and address
17 of the timeshare estate owner, a general description of the
18 timeshare estate, and the book and page number of the deed.)
 
19 TERMS OF SALE: (State the deposit amount to be paid by the
20 purchaser at the time and place of the sale and the times for
21 payment of the balance or the whole, as the case may be. The
22 timeshare estates, if more than one, must be sold in individual
23 lots unless there are no individual bidders, in which case,

 

 

SB2112 - 27 - LRB096 09414 AJO 19571 b

1 they may be sold as a group.)
 
2 Other terms may be announced at the public auction.
 
3 Signed ................................
 
4 Managing entity lienholder or authorized agent.
 
5         (6) Publishing and sending notices in compliance with
6     this Section 10-50(c) constitutes sufficient public notice
7     of the public auction.
8     (d) Public auctions pursuant to this Section 10-50 must be
9 conducted as follows:
10         (1) The public auction must take place within the
11     county where the timeshare estate is located.
12         (2) The public auction must be open to the general
13     public and conducted by an auctioneer licensed pursuant to
14     the Auction License Act.
15         (3) Notwithstanding anything in the Auction License
16     Act to the contrary, the auctioneer, in his or her
17     discretion, may waive the reading of the names of the
18     timeshare estate owners, if more than one, the description
19     of the timeshare estates, if more than one, and the
20     recording information of the applicable mortgages or
21     managing entity liens (as the case may be), if more than
22     one.

 

 

SB2112 - 28 - LRB096 09414 AJO 19571 b

1         (4) All rights of redemption of the timeshare estate
2     owner are extinguished upon sale of a timeshare estate at
3     the public auction.
4         (5) The holder of the mortgage or managing entity lien,
5     the developer, the managing entity, and the timeshare
6     estate owner are not precluded from bidding at the public
7     auction.
8         (6) The successful purchaser at the public auction is
9     not required to complete the purchase of the timeshare
10     estate if the timeshare estate, at the time the auctioneer
11     accepts the successful bid, is subject to liens or other
12     encumbrances, other than those identified in the notice of
13     public auction and those identified at the auction before
14     the auctioneer opens bidding on the applicable timeshare
15     estate.
16         (7) The purchaser at the public auction takes title to
17     the timeshare estate free and clear of any outstanding
18     assessments owed by the prior timeshare estate owner to the
19     managing entity.
20     (e) Upon the sale of a timeshare estate pursuant to this
21 Section 10-50, the holder of the mortgage or managing entity
22 lien must provide the purchaser with (1) a foreclosure deed or
23 other appropriate instrument transferring the mortgage
24 holder's or managing entity's interest in the timeshare estate
25 and (2) an affidavit affirming that all requirements of the
26 foreclosure pursuant to this Section 10-50 have been satisfied.

 

 

SB2112 - 29 - LRB096 09414 AJO 19571 b

1     (f) The timeshare estate is considered sold, and the deed
2 or other instrument transferring the timeshare estate must
3 transfer the timeshare estate, subject to municipal or other
4 taxes and any liens or encumbrances recorded before the
5 recording of the mortgage or the managing entity lien
6 foreclosed pursuant to this Section 10-50 (as the case may be),
7 but not including such managing entity lien.
8     (g) The purchaser of a timeshare estate at a public auction
9 pursuant to this Section 10-50 must record the foreclosure deed
10 or other instrument with the appropriate recorder of deeds
11 within 30 days after the date the foreclosing mortgage holder
12 or managing entity (as the case may be) delivers the
13 foreclosure deed or other instrument to the purchaser.
14     (h) If the holder of a mortgage or managing entity lien
15 conducts a nonjudicial foreclosure pursuant to this Section
16 10-50, the holder of the mortgage or managing entity lien
17 forfeits its right to pursue a claim for any deficiency in the
18 payment of the obligations of the timeshare estate owner
19 resulting from the application of the proceeds of the sale to
20 such obligations.
21     (i) For purposes of this Section 10-50, obligations to pay
22 assessments secured by a lien established pursuant to a
23 timeshare instrument before the effective date of this
24 amendatory Act of the 96th General Assembly are considered
25 managing entity liens.
26     (j) This Section 10-50 applies to the foreclosure of

 

 

SB2112 - 30 - LRB096 09414 AJO 19571 b

1 mortgages and liens considered to be managing entity liens that
2 arose before or after the effective date of this amendatory Act
3 of the 96th General Assembly.
 
4     (765 ILCS 101/10-55 new)
5     Sec. 10-55. Foreclosure of lien or security interest on a
6 timeshare use.
7     (a) Notwithstanding anything in the Illinois Mortgage
8 Foreclosure Law or the Uniform Commercial Code to the contrary,
9 the holder of a managing entity lien on a timeshare use created
10 by Section 10-45, in the case of the failure to pay assessments
11 when due, or a security interest against a timeshare use, in
12 the case of a breach of the security agreement, may do either
13 of the following:
14         (1) Enforce the security interest pursuant to Part 6 of
15     Article 9 of the Uniform Commercial Code, including
16     (without limitation) accepting the timeshare use in full or
17     partial satisfaction of the timeshare use owner's
18     obligation pursuant to Section 9-620 of the Uniform
19     Commercial Code; or
20         (2) Nonjudicially foreclose in the same manner as
21     authorized by Section 10-50 for holders of a mortgage or
22     managing entity lien against a timeshare estate.
23     (b) All rights of redemption of a timeshare use owner are
24 extinguished upon sale of a timeshare use as authorized by
25 Section 10-55(a).

 

 

SB2112 - 31 - LRB096 09414 AJO 19571 b

1     (c) The holder of the security interest or managing entity
2 lien, the developer, the managing entity and the timeshare use
3 owner are not precluded from bidding at the sale of the
4 timeshare use pursuant to this Section 10-55 and may enter into
5 agreements for the purchase of one or more timeshare uses
6 following the completion of the sale proceedings.
7     (d) The purchaser at the public auction takes title to the
8 timeshare use free and clear of any outstanding assessments
9 owed by the prior timeshare use owner to the managing entity.
 
10     (765 ILCS 101/5-35 rep.)
11     Section 10. The Real Estate Timeshare Act of 1999 is
12 amended by repealing Section 5-35.
 
13     Section 97. Severability. The provisions of this Act are
14 severable under Section 1.31 of the Statute on Statutes.
 
15     Section 99. Effective date. This Act takes effect upon
16 becoming law.

 

 

SB2112 - 32 - LRB096 09414 AJO 19571 b

1 INDEX
2 Statutes amended in order of appearance
3     765 ILCS 101/1-10
4     765 ILCS 101/1-15
5     765 ILCS 101/5-40
6     765 ILCS 101/5-45
7     765 ILCS 101/5-60
8     765 ILCS 101/10-5
9     765 ILCS 101/10-25
10     765 ILCS 101/10-45 new
11     765 ILCS 101/10-50 new
12     765 ILCS 101/10-55 new
13     765 ILCS 101/5-35 rep.