Statutes > Illinois Statutes > CHAPTER 815 BUSINESS TRANSACTIONS > 815 ILCS 122/ Payday Loan Reform Act. > Article 4 - Administrative Provisions

Article 4 - Administrative Provisions


 
    (815 ILCS 122/Art. 4 heading)
Article 4. Administrative Provisions
(Source: P.A. 94‑13, eff. 12‑6‑05.)

    (815 ILCS 122/4‑5)
    (Text of Section before amendment by P.A. 96‑936)
    Sec. 4‑5. Prohibited acts. A licensee or unlicensed person or entity making payday loans may not commit, or have committed on behalf of the licensee or unlicensed person or entity, any of the following acts:
        (1) Threatening to use or using the criminal process
     in this or any other state to collect on the loan.
        (2) Using any device or agreement that would have the
     effect of charging or collecting more fees or charges than allowed by this Act, including, but not limited to, entering into a different type of transaction with the consumer.
        (3) Engaging in unfair, deceptive, or fraudulent
     practices in the making or collecting of a payday loan.
        (4) Using or attempting to use the check provided by
     the consumer in a payday loan as collateral for a transaction not related to a payday loan.
        (5) Knowingly accepting payment in whole or in part
     of a payday loan through the proceeds of another payday loan provided by any licensee.
        (6) Knowingly accepting any security, other than that
     specified in the definition of payday loan in Section 1‑10, for a payday loan.
        (7) Charging any fees or charges other than those
     specifically authorized by this Act.
        (8) Threatening to take any action against a consumer
     that is prohibited by this Act or making any misleading or deceptive statements regarding the payday loan or any consequences thereof.
        (9) Making a misrepresentation of a material fact by
     an applicant for licensure in obtaining or attempting to obtain a license.
        (10) Including any of the following provisions in
     loan documents required by subsection (b) of Section 2‑20:
            (A) a confession of judgment clause;
            (B) a waiver of the right to a jury trial, if
         applicable, in any action brought by or against a consumer, unless the waiver is included in an arbitration clause allowed under subparagraph (C) of this paragraph (11);
            (C) a mandatory arbitration clause that is
         oppressive, unfair, unconscionable, or substantially in derogation of the rights of consumers; or
            (D) a provision in which the consumer agrees not
         to assert any claim or defense arising out of the contract.
        (11) Selling any insurance of any kind whether or not
     sold in connection with the making or collecting of a payday loan.
        (12) Taking any power of attorney.
        (13) Taking any security interest in real estate.
        (14) Collecting a delinquency or collection charge on
     any installment regardless of the period in which it remains in default.
        (15) Collecting treble damages on an amount owing
     from a payday loan.
        (16) Refusing, or intentionally delaying or
     inhibiting, the consumer's right to enter into a repayment plan pursuant to this Act.
        (17) Charging for, or attempting to collect,
     attorney's fees, court costs, or arbitration costs incurred in connection with the collection of a payday loan.
        (18) Making a loan in violation of this Act.
        (19) Garnishing the wages or salaries of a consumer
     who is a member of the military.
        (20) Failing to suspend or defer collection activity
     against a consumer who is a member of the military and who has been deployed to a combat or combat‑support posting.
        (21) Contacting the military chain of command of a
     consumer who is a member of the military in an effort to collect on a payday loan.
(Source: P.A. 94‑13, eff. 12‑6‑05.)
 
    (Text of Section after amendment by P.A. 96‑936)
    Sec. 4‑5. Prohibited acts. A licensee or unlicensed person or entity making payday loans may not commit, or have committed on behalf of the licensee or unlicensed person or entity, any of the following acts:
        (1) Threatening to use or using the criminal process
     in this or any other state to collect on the loan.
        (2) Using any device or agreement that would have the
     effect of charging or collecting more fees or charges than allowed by this Act, including, but not limited to, entering into a different type of transaction with the consumer.
        (3) Engaging in unfair, deceptive, or fraudulent
     practices in the making or collecting of a payday loan.
        (4) Using or attempting to use the check provided by
     the consumer in a payday loan as collateral for a transaction not related to a payday loan.
        (5) Knowingly accepting payment in whole or in part
     of a payday loan through the proceeds of another payday loan provided by any licensee, except as provided in subsection (c) of Section 2.5.
        (6) Knowingly accepting any security, other than that
     specified in the definition of payday loan in Section 1‑10, for a payday loan.
        (7) Charging any fees or charges other than those
     specifically authorized by this Act.
        (8) Threatening to take any action against a consumer
     that is prohibited by this Act or making any misleading or deceptive statements regarding the payday loan or any consequences thereof.
        (9) Making a misrepresentation of a material fact by
     an applicant for licensure in obtaining or attempting to obtain a license.
        (10) Including any of the following provisions in
     loan documents required by subsection (b) of Section 2‑20:
            (A) a confession of judgment clause;
            (B) a waiver of the right to a jury trial, if
         applicable, in any action brought by or against a consumer, unless the waiver is included in an arbitration clause allowed under subparagraph (C) of this paragraph (11);
            (C) a mandatory arbitration clause that is
         oppressive, unfair, unconscionable, or substantially in derogation of the rights of consumers; or
            (D) a provision in which the consumer agrees not
         to assert any claim or defense arising out of the contract.
        (11) Selling any insurance of any kind whether or not
     sold in connection with the making or collecting of a payday loan.
        (12) Taking any power of attorney.
        (13) Taking any security interest in real estate.
        (14) Collecting a delinquency or collection charge on
     any installment regardless of the period in which it remains in default.
        (15) Collecting treble damages on an amount owing
     from a payday loan.
        (16) Refusing, or intentionally delaying or
     inhibiting, the consumer's right to enter into a repayment plan pursuant to this Act.
        (17) Charging for, or attempting to collect,
     attorney's fees, court costs, or arbitration costs incurred in connection with the collection of a payday loan.
        (18) Making a loan in violation of this Act.
        (19) Garnishing the wages or salaries of a consumer
     who is a member of the military.
        (20) Failing to suspend or defer collection activity
     against a consumer who is a member of the military and who has been deployed to a combat or combat‑support posting.
        (21) Contacting the military chain of command of a
     consumer who is a member of the military in an effort to collect on a payday loan.
        (22) Making or offering to make any loan other than a
     payday loan or a title‑secured loan, provided however, that to make or offer to make a title‑secured loan, a licensee must obtain a license under the Consumer Installment Loan Act.
(Source: P.A. 96‑936, eff. 3‑21‑11.)

    (815 ILCS 122/4‑10)
    Sec. 4‑10. Enforcement and remedies.
    (a) The remedies provided in this Act are cumulative and apply to persons or entities subject to this Act.
    (b) Any material violation of this Act, including the commission of an act prohibited under Section 4‑5, constitutes a violation of the Consumer Fraud and Deceptive Business Practices Act.
    (c) If any provision of the written agreement described in subsection (b) of Section 2‑20 violates this Act, then that provision is unenforceable against the consumer.
    (d) Subject to the Illinois Administrative Procedure Act, the Secretary may hold hearings, make findings of fact, conclusions of law, issue cease and desist orders, have the power to issue fines of up to $10,000 per violation, refer the matter to the appropriate law enforcement agency for prosecution under this Act, and suspend or revoke a license granted under this Act. All proceedings shall be open to the public.
    (e) The Secretary may issue a cease and desist order to any licensee or other person doing business without the required license, when in the opinion of the Secretary the licensee or other person is violating or is about to violate any provision of this Act or any rule or requirement imposed in writing by the Department as a condition of granting any authorization permitted by this Act. The cease and desist order permitted by this subsection (e) may be issued prior to a hearing.
    The Secretary shall serve notice of his or her action, including, but not limited to, a statement of the reasons for the action, either personally or by certified mail, return receipt requested. Service by certified mail shall be deemed completed when the notice is deposited in the U.S. Mail.
    Within 10 days of service of the cease and desist order, the licensee or other person may request a hearing in writing. The Secretary shall schedule a hearing within 30 days after the request for a hearing unless otherwise agreed to by the parties.
    If it is determined that the Secretary had the authority to issue the cease and desist order, he or she may issue such orders as may be reasonably necessary to correct, eliminate, or remedy the conduct.
    The powers vested in the Secretary by this subsection (e) are additional to any and all other powers and remedies vested in the Secretary by law, and nothing in this subsection (e) shall be construed as requiring that the Secretary shall employ the power conferred in this subsection instead of or as a condition precedent to the exercise of any other power or remedy vested in the Secretary.
    (f) The Secretary may, after 10 days notice by registered mail to the licensee at the address set forth in the license stating the contemplated action and in general the grounds therefore, fine the licensee an amount not exceeding $10,000 per violation, or revoke or suspend any license issued hereunder if he or she finds that:
        (1) the
     licensee has failed to comply with any provision of this Act or any order, decision, finding, rule, regulation, or direction of the Secretary lawfully made pursuant to the authority of this Act; or
        (2) any fact
     or condition exists which, if it had existed at the time of the original application for the license, clearly would have warranted the Secretary in refusing to issue the license.
    The Secretary may fine, suspend, or revoke only the
     particular license with respect to which grounds for the fine, revocation, or suspension occur or exist, but if the Secretary finds that grounds for revocation are of general application to all offices or to more than one office of the licensee, the Secretary shall fine, suspend, or revoke every license to which the grounds apply.
    No revocation, suspension, or surrender of any license
     shall impair or affect the obligation of any pre‑existing lawful contract between the licensee and any obligor.
    The Secretary may issue a new license to a licensee whose
     license has been revoked when facts or conditions which clearly would have warranted the Secretary in refusing originally to issue the license no longer exist.
    In every case in which a license is suspended or revoked
     or an application for a license or renewal of a license is denied, the Secretary shall serve the licensee with notice of his or her action, including a statement of the reasons for his or her actions, either personally, or by certified mail, return receipt requested. Service by certified mail shall be deemed completed when the notice is deposited in the U.S. Mail.
    An order assessing a fine, an order revoking or
     suspending a license, or an order denying renewal of a license shall take effect upon service of the order unless the licensee requests a hearing, in writing, within 10 days after the date of service. In the event a hearing is requested, the order shall be stayed until a final administrative order is entered.
    If the licensee requests a hearing, the Secretary shall
     schedule a hearing within 30 days after the request for a hearing unless otherwise agreed to by the parties.
    The hearing shall be held at the time and place
     designated by the Secretary. The Secretary and any administrative law judge designated by him or her shall have the power to administer oaths and affirmations, subpoena witnesses and compel their attendance, take evidence, and require the production of books, papers, correspondence, and other records or information that he or she considers relevant or material to the inquiry.
    (g) The costs of administrative hearings conducted pursuant to this Section shall be paid by the licensee.
(Source: P.A. 94‑13, eff. 12‑6‑05.)

    (815 ILCS 122/4‑15)
    Sec. 4‑15. Bonding.
    (a) A person or entity engaged in making payday loans under this Act shall post a bond to the Department in the amount of $50,000 for each location where loans will be made, up to a maximum bond amount of $500,000.
    (b) A bond posted under subsection (a) must continue in effect for the period of licensure and for 3 additional years if the bond is still available. The bond must be available to pay damages and penalties to a consumer harmed by a violation of this Act.
    (c) From time to time the Secretary may require a
     licensee to file a bond in an additional sum if the Secretary determines it to be necessary. In no case shall the bond be more than the outstanding liabilities of the licensee.
(Source: P.A. 94‑13, eff. 12‑6‑05.)

    (815 ILCS 122/4‑20)
    Sec. 4‑20. Preemption of administrative rules. Any administrative rule promulgated prior to the effective date of this Act by the Department regarding payday loans is preempted.
(Source: P.A. 94‑13, eff. 12‑6‑05.)

    (815 ILCS 122/4‑25)
    Sec. 4‑25. Reporting of violations. The Department shall report to the Attorney General all material violations of this Act of which it becomes aware.
(Source: P.A. 94‑13, eff. 12‑6‑05.)

    (815 ILCS 122/4‑30)
    Sec. 4‑30. Rulemaking; industry review.
    (a) The Department may make and enforce such reasonable rules, regulations, directions, orders, decisions, and findings as the execution and enforcement of the provisions of this Act require, and as are not inconsistent therewith. All rules, regulations, and directions of a general character shall be printed and copies thereof mailed to all licensees.
    (b) Within 6 months after the effective date of this Act, the Department shall promulgate reasonable rules regarding the issuance of payday loans by banks, savings banks, savings and loan associations, credit unions, and insurance companies. These rules shall be consistent with this Act and shall be limited in scope to the actual products and services offered by lenders governed by this Act.
    (c) After the effective date of this Act, the Department shall, over a 3‑year period, conduct a study of the payday loan industry to determine the impact and effectiveness of this Act. The Department shall report its findings to the General Assembly within 3 months of the third anniversary of the effective date of this Act. The study shall determine the effect of this Act on the protection of consumers in this State and on the fair and reasonable regulation of the payday loan industry. The study shall include, but shall not be limited to, an analysis of the ability of the industry to use private reporting tools that:
        (1) ensure substantial compliance with this Act,
     including real time reporting of outstanding payday loans; and
        (2) provide data to the Department in an appropriate
     form and with appropriate content to allow the Department to adequately monitor the industry.
    The report of the Department shall, if necessary,
     identify and recommend specific amendments to this Act to further protect consumers and to guarantee fair and reasonable regulation of the payday loan industry.
(Source: P.A. 94‑13, eff. 12‑6‑05.)

    (815 ILCS 122/4‑35)
    Sec. 4‑35. Judicial review. All final administrative decisions of the Department under this Act are subject to judicial review pursuant to the provisions of the Administrative Review Law and any rules adopted pursuant thereto.
(Source: P.A. 94‑13, eff. 12‑6‑05.)

    (815 ILCS 122/4‑40)
    Sec. 4‑40. No waivers. There shall be no waiver of any provision of this Act.
(Source: P.A. 94‑13, eff. 12‑6‑05.)

    (815 ILCS 122/4‑45)
    Sec. 4‑45. Superiority of Act. To the extent this Act conflicts with any other State financial regulation laws, this Act is superior and supersedes those laws for the purposes of regulating payday loans in Illinois, provided that nothing herein shall apply to any lender that is a bank, savings bank, savings and loan association, credit union, or insurance company organized, chartered, or holding a certificate of authority to do business under the laws of this State or any other state or under the laws of the United States.
(Source: P.A. 94‑13, eff. 12‑6‑05.)

    (815 ILCS 122/4‑50)
    Sec. 4‑50. Severability. The provisions of this Act are severable under Section 1.31 of the Statute on Statutes.
(Source: P.A. 94‑13, eff. 12‑6‑05.)