103RD GENERAL ASSEMBLY State of Illinois 2023 and 2024 SB2234 Introduced 2/10/2023, by Sen. Laura Ellman SYNOPSIS AS INTRODUCED: New Act815 ILCS 505/2BBBB new Creates the Small Business Truth in Lending Act. Sets forth provisions concerning disclosure requirements for sales-based financing, closed-end commercial financing, open-end commercial financing, factoring transactions, renewal financing, and other forms of financing. Provides that all commercial financing shall include a clear and conspicuous notice on how to file a complaint with the Department of Financial and Professional Regulation. Provides that the Department may adopt rules. Provides that upon a finding by the Secretary of Financial and Professional Regulation that a provider has violated the provisions or rules, the provider shall be ordered to pay the Department a civil penalty for each violation of the provisions or any rule not to exceed $10,000 for each violation, or if a violation is willful, $20,000 for each violation. Sets forth provisions concerning cease and desist orders, injunctions, investigation and examination, civil actions, violations, and registration. Provides that a violation of the provisions constitutes an unlawful practice in violation of the Consumer Fraud and Deceptive Business Practices Act. Defines terms. Makes a conforming change in the Consumer Fraud and Deceptive Business Practices Act. Effective immediately. LRB103 28770 BMS 55153 b A BILL FOR 103RD GENERAL ASSEMBLY State of Illinois 2023 and 2024 SB2234 Introduced 2/10/2023, by Sen. Laura Ellman SYNOPSIS AS INTRODUCED: New Act815 ILCS 505/2BBBB new New Act 815 ILCS 505/2BBBB new Creates the Small Business Truth in Lending Act. Sets forth provisions concerning disclosure requirements for sales-based financing, closed-end commercial financing, open-end commercial financing, factoring transactions, renewal financing, and other forms of financing. Provides that all commercial financing shall include a clear and conspicuous notice on how to file a complaint with the Department of Financial and Professional Regulation. Provides that the Department may adopt rules. Provides that upon a finding by the Secretary of Financial and Professional Regulation that a provider has violated the provisions or rules, the provider shall be ordered to pay the Department a civil penalty for each violation of the provisions or any rule not to exceed $10,000 for each violation, or if a violation is willful, $20,000 for each violation. Sets forth provisions concerning cease and desist orders, injunctions, investigation and examination, civil actions, violations, and registration. Provides that a violation of the provisions constitutes an unlawful practice in violation of the Consumer Fraud and Deceptive Business Practices Act. Defines terms. Makes a conforming change in the Consumer Fraud and Deceptive Business Practices Act. Effective immediately. LRB103 28770 BMS 55153 b LRB103 28770 BMS 55153 b A BILL FOR
103RD GENERAL ASSEMBLY State of Illinois 2023 and 2024 SB2234 Introduced 2/10/2023, by Sen. Laura Ellman SYNOPSIS AS INTRODUCED:
New Act815 ILCS 505/2BBBB new New Act 815 ILCS 505/2BBBB new
New Act
815 ILCS 505/2BBBB new
Creates the Small Business Truth in Lending Act. Sets forth provisions concerning disclosure requirements for sales-based financing, closed-end commercial financing, open-end commercial financing, factoring transactions, renewal financing, and other forms of financing. Provides that all commercial financing shall include a clear and conspicuous notice on how to file a complaint with the Department of Financial and Professional Regulation. Provides that the Department may adopt rules. Provides that upon a finding by the Secretary of Financial and Professional Regulation that a provider has violated the provisions or rules, the provider shall be ordered to pay the Department a civil penalty for each violation of the provisions or any rule not to exceed $10,000 for each violation, or if a violation is willful, $20,000 for each violation. Sets forth provisions concerning cease and desist orders, injunctions, investigation and examination, civil actions, violations, and registration. Provides that a violation of the provisions constitutes an unlawful practice in violation of the Consumer Fraud and Deceptive Business Practices Act. Defines terms. Makes a conforming change in the Consumer Fraud and Deceptive Business Practices Act. Effective immediately.
LRB103 28770 BMS 55153 b LRB103 28770 BMS 55153 b
LRB103 28770 BMS 55153 b
A BILL FOR
SB2234LRB103 28770 BMS 55153 b SB2234 LRB103 28770 BMS 55153 b
SB2234 LRB103 28770 BMS 55153 b
1 AN ACT concerning regulation.
2 Be it enacted by the People of the State of Illinois,
3 represented in the General Assembly:
4 Section 1. Short title. This Act may be cited as the Small
5 Business Truth in Lending Act.
6 Section 3. Applicability. This Act applies to transactions
7 occurring on or after January 1, 2024.
8 Section 5. Purpose and construction.
9 (a) The purpose of this Act is to protect business owners
10 from predatory business loans.
11 (b) This Act shall be liberally construed to effectuate
12 its purpose.
13 Section 10. Definitions. As used in this Act:
14 "Commercial financing" means open-end financing,
15 closed-end financing, sales-based financing, factoring
16 transaction, or another form of financing that the recipient
17 does not intend to use the proceeds of primarily for personal,
18 family, or household purposes. For purposes of determining
19 whether a financing is a commercial financing, the provider
20 may rely on any statement of intended purposes or on
21 electronic signatures or consents by the recipient. The
103RD GENERAL ASSEMBLY State of Illinois 2023 and 2024 SB2234 Introduced 2/10/2023, by Sen. Laura Ellman SYNOPSIS AS INTRODUCED:
New Act815 ILCS 505/2BBBB new New Act 815 ILCS 505/2BBBB new
New Act
815 ILCS 505/2BBBB new
Creates the Small Business Truth in Lending Act. Sets forth provisions concerning disclosure requirements for sales-based financing, closed-end commercial financing, open-end commercial financing, factoring transactions, renewal financing, and other forms of financing. Provides that all commercial financing shall include a clear and conspicuous notice on how to file a complaint with the Department of Financial and Professional Regulation. Provides that the Department may adopt rules. Provides that upon a finding by the Secretary of Financial and Professional Regulation that a provider has violated the provisions or rules, the provider shall be ordered to pay the Department a civil penalty for each violation of the provisions or any rule not to exceed $10,000 for each violation, or if a violation is willful, $20,000 for each violation. Sets forth provisions concerning cease and desist orders, injunctions, investigation and examination, civil actions, violations, and registration. Provides that a violation of the provisions constitutes an unlawful practice in violation of the Consumer Fraud and Deceptive Business Practices Act. Defines terms. Makes a conforming change in the Consumer Fraud and Deceptive Business Practices Act. Effective immediately.
LRB103 28770 BMS 55153 b LRB103 28770 BMS 55153 b
LRB103 28770 BMS 55153 b
A BILL FOR
New Act
815 ILCS 505/2BBBB new
LRB103 28770 BMS 55153 b
SB2234 LRB103 28770 BMS 55153 b
SB2234- 2 -LRB103 28770 BMS 55153 b SB2234 - 2 - LRB103 28770 BMS 55153 b
SB2234 - 2 - LRB103 28770 BMS 55153 b
1 statement may be a separate statement signed by the recipient;
2 may be contained in the financing application, financing
3 agreement, or other document signed or consented to by the
4 recipient; or may be provided orally by the recipient so long
5 as it is documented in the recipient's application file by the
6 provider. The provider shall not be required to ascertain that
7 the proceeds of a commercial financing are used in accordance
8 with the recipient's statement of intended purposes.
9 "Closed-end financing" means a closed-end extension of
10 credit, secured or unsecured, recourse or nonrecourse,
11 including equipment financing that does not meet the
12 definition of a lease under Section 2A-103 of the Uniform
13 Commercial Code, that the recipient does not intend to use the
14 proceeds of primarily for personal, family, or household
15 purposes. "Closed-end financing" includes financing with an
16 established principal amount and duration.
17 "Department" means the Department of Financial and
18 Professional Regulation.
19 "Factoring transaction" means an accounts receivable
20 purchase transaction that includes an agreement to purchase,
21 transfer, or sell a legally enforceable claim for payment held
22 by a recipient for goods the recipient has supplied or
23 services the recipient has rendered that have been ordered but
24 for which payment has not yet been made.
25 "Finance charge" means the cost of financing as a dollar
26 amount. "Finance charge" includes any charge payable directly
SB2234 - 2 - LRB103 28770 BMS 55153 b
SB2234- 3 -LRB103 28770 BMS 55153 b SB2234 - 3 - LRB103 28770 BMS 55153 b
SB2234 - 3 - LRB103 28770 BMS 55153 b
1 or indirectly by the recipient and imposed directly or
2 indirectly by the provider as an incident to or a condition of
3 the extension of financing. "Finance charge" includes all
4 charges that would be included under 12 CFR 1026.4 as if the
5 transaction were subject to 12 CFR 1026.4. "Finance charge"
6 includes any charges as determined by the Secretary. For the
7 purposes of an open-end financing, "finance charge" means the
8 maximum amount of credit available to the recipient, in each
9 case, that is drawn and held for the duration of the term or
10 draw period. For the purposes of a factoring transaction,
11 "finance charge" includes the discount taken on the face value
12 of the accounts receivable.
13 "Open-end financing" means an agreement for one or more
14 extensions of open-end credit, secured or unsecured, that the
15 recipient does not intend to use the proceeds of primarily for
16 personal, family, or household purposes. "Open-end financing"
17 includes credit extended by a provider under a plan in which:
18 (i) the provider reasonably contemplates repeated
19 transactions; (ii) the provider may impose a finance charge
20 from time to time on an outstanding unpaid balance; and (iii)
21 the amount of credit that may be extended to the recipient
22 during the term of the plan is generally made available to the
23 extent that any outstanding balance is repaid.
24 "Person" means an individual, entity, corporation,
25 partnership, limited liability company, joint venture,
26 association, joint stock company, trust, or unincorporated
SB2234 - 3 - LRB103 28770 BMS 55153 b
SB2234- 4 -LRB103 28770 BMS 55153 b SB2234 - 4 - LRB103 28770 BMS 55153 b
SB2234 - 4 - LRB103 28770 BMS 55153 b
1 organization including, but not limited to, a sole
2 proprietorship.
3 "Provider" means a person who extends a specific offer of
4 commercial financing to a recipient. Unless otherwise exempt,
5 "provider" includes a person who solicits and presents
6 specific offers of commercial financing on behalf of a third
7 party. For purposes of determining whether a financing is a
8 commercial financing, the mere extension of a specific offer
9 or provision of disclosures for a commercial financing is not
10 sufficient to conclude that a provider is originating, making,
11 funding, or providing commercial financing.
12 "Recipient" means a person who applies for commercial
13 financing and is made a specific offer of commercial financing
14 by a provider or an authorized representative of such person.
15 "Recipient" does not include a person acting as a broker in a
16 transaction they broker.
17 "Sales-based financing" means a transaction that is repaid
18 by the recipient to the provider, over time, as a percentage of
19 sales or revenue, in which the payment amount may increase or
20 decrease according to the volume of sales made or revenue
21 received by the recipient or a transaction that includes a
22 true-up mechanism where the financing is repaid as a fixed
23 payment but provides for a reconciliation process that adjusts
24 the payment to an amount that is a percentage of sales or
25 revenue.
26 "Secretary" means the Secretary of Financial and
SB2234 - 4 - LRB103 28770 BMS 55153 b
SB2234- 5 -LRB103 28770 BMS 55153 b SB2234 - 5 - LRB103 28770 BMS 55153 b
SB2234 - 5 - LRB103 28770 BMS 55153 b
1 Professional Regulation or a person authorized by the
2 Secretary.
3 "Specific offer" means the specific terms of commercial
4 financing, including price or amount, that is quoted to a
5 recipient based on information obtained from or about the
6 recipient, that, if accepted by a recipient, shall be binding
7 on the provider, as applicable, subject to any specific
8 requirements stated in such terms.
9 Section 15. Exemptions. This Act does not apply to, and
10 shall not place any additional requirements or obligations
11 upon, any of the following:
12 (1) A bank, trust company, or industrial loan company
13 doing business under the authority of, or in accordance
14 with, a license, certificate, or charter issued by the
15 United States, this State, or any other state, district,
16 territory, or commonwealth of the United States that is
17 authorized to transact business in this State.
18 (2) A federally chartered savings and loan
19 association, federal savings bank, or federal credit union
20 that is authorized to transact business in this State.
21 (3) A savings and loan association, savings bank, or
22 credit union organized under the laws of this State or any
23 other state that is authorized to transact business in
24 this State.
25 (4) A person acting in its capacity as a technology
SB2234 - 5 - LRB103 28770 BMS 55153 b
SB2234- 6 -LRB103 28770 BMS 55153 b SB2234 - 6 - LRB103 28770 BMS 55153 b
SB2234 - 6 - LRB103 28770 BMS 55153 b
1 services provider, such as licensing software and
2 providing support services, to an entity exempt under this
3 Section for use as part of the exempt entity's commercial
4 financing program, if such person has no interest,
5 arrangement, or agreement to purchase any interest in the
6 commercial financing extended by the exempt entity in
7 connection with such program.
8 (5) A lender regulated under the federal Farm Credit
9 Act, 12 U.S.C. 2001 et seq.
10 (6) A commercial financing transaction secured by real
11 property.
12 (7) A lease as defined in Section 2A-103 of the
13 Uniform Commercial Code.
14 (8) Any person or provider who makes no more than 5
15 commercial financing transactions in this State in a
16 12-month period.
17 (9) An individual commercial financing transaction in
18 an amount over $2,500,000.
19 (10) A commercial financing transaction in which the
20 recipient is a vehicle dealer subject to Section 5-101 or
21 5-102 of the Illinois Vehicle Code, an affiliate of such a
22 dealer, a rental vehicle company as defined in Section 10
23 of the Renter's Financial Responsibility and Protection
24 Act, or an affiliate of such a company pursuant to a
25 commercial financing agreement or commercial open-end
26 credit plan of at least $50,000, including any commercial
SB2234 - 6 - LRB103 28770 BMS 55153 b
SB2234- 7 -LRB103 28770 BMS 55153 b SB2234 - 7 - LRB103 28770 BMS 55153 b
SB2234 - 7 - LRB103 28770 BMS 55153 b
1 loan made pursuant to such a commercial financing
2 transaction.
3 Section 20. Sales-based financing disclosure requirements.
4 A provider subject to this Act shall provide the following
5 disclosures to a recipient, according to formatting prescribed
6 by the Secretary, if any, at the time of extending a specific
7 offer of sales-based financing:
8 (1) The total amount of the commercial financing, and,
9 if different from the financing amount, the disbursement
10 amount after any amount deducted or withheld at
11 disbursement.
12 (2) The finance charge.
13 (3) The estimated annual percentage rate, using the
14 words annual percentage rate or the abbreviation "APR",
15 expressed as a yearly rate, inclusive of any fees and
16 finance charges, and calculated in accordance with the
17 federal Truth in Lending Act, Regulation Z, 12 CFR
18 1026.22, based on the estimated term of repayment and the
19 projected periodic payment amounts, regardless of whether
20 such act or such rule would require such a calculation.
21 The estimated term of repayment and the projected periodic
22 payment amounts shall be calculated based on the
23 projection of the recipient's sales, which may be referred
24 to as the projected sales volume. The projected sales
25 volume may be calculated using the historical method or
SB2234 - 7 - LRB103 28770 BMS 55153 b
SB2234- 8 -LRB103 28770 BMS 55153 b SB2234 - 8 - LRB103 28770 BMS 55153 b
SB2234 - 8 - LRB103 28770 BMS 55153 b
1 the opt-in method. The provider shall provide notice to
2 the Secretary on which method the provider intends to use
3 across all instances of sales-based financing offered in
4 calculating the estimated annual percentage rate pursuant
5 to this Section, according to the following:
6 (i) A provider using the historical method shall
7 use an average historical volume of sales or revenue
8 by which the financing's payment amounts are based and
9 the estimated annual percentage rate is calculated.
10 The provider shall fix the historical time period used
11 to calculate the average historical volume and use
12 such period for all disclosure purposes for all
13 sales-based financing products offered. The fixed
14 historical time period shall either be the preceding
15 time period from the specific offer or, alternatively,
16 the provider may use average sales for the same number
17 of months with the highest sales volume within the
18 past 12 months. The fixed historical time period shall
19 be no less than one month and shall not exceed 12
20 months.
21 (ii) A provider using the opt-in method shall
22 determine the estimated annual percentage rate, the
23 estimated term, and the projected payments, using a
24 projected sales volume that the provider elects for
25 each disclosure, if they participate in a review
26 process prescribed by the Secretary. A provider shall,
SB2234 - 8 - LRB103 28770 BMS 55153 b
SB2234- 9 -LRB103 28770 BMS 55153 b SB2234 - 9 - LRB103 28770 BMS 55153 b
SB2234 - 9 - LRB103 28770 BMS 55153 b
1 on an annual basis, report data to the Secretary of
2 estimated annual percentage rates disclosed to the
3 recipient and actual retrospective annual percentage
4 rates of completed transactions. The report shall
5 contain such information as the Department may adopt
6 by rule as necessary or appropriate for the purpose of
7 making a determination of whether the deviation
8 between the estimated annual percentage rate and
9 actual retrospective annual percentage rates of
10 completed transactions was reasonable. The Secretary
11 shall establish the method of reporting and may, upon
12 a finding that the use of projected sales volume by the
13 provider has resulted in an unacceptable deviation
14 between estimated and actual annual percentage rate,
15 require the provider to use the historical method. The
16 Secretary may consider unusual and extraordinary
17 circumstances impacting the provider's deviation
18 between estimated and actual annual percentage rate in
19 the determination of such finding.
20 (4) The total repayment amount, which is the
21 disbursement amount plus the finance charge.
22 (5) The estimated term is the period of time required
23 for the periodic payments, based on the projected sales
24 volume, to equal the total amount required to be repaid.
25 (6) The payment amounts, based on the projected sales
26 volume:
SB2234 - 9 - LRB103 28770 BMS 55153 b
SB2234- 10 -LRB103 28770 BMS 55153 b SB2234 - 10 - LRB103 28770 BMS 55153 b
SB2234 - 10 - LRB103 28770 BMS 55153 b
1 (i) for payment amounts that are fixed, the
2 payment amounts and frequency (e.g., daily, weekly,
3 monthly), and, if the payment frequency is other than
4 monthly, the amount of the average projected payments
5 per month; or
6 (ii) for payment amounts that are variable, a
7 payment schedule or a description of the method used
8 to calculate the amounts and frequency of payments and
9 the amount of the average projected payments per
10 month.
11 (7) A description of all other potential fees and
12 charges not included in the finance charge, including, but
13 not limited to, draw fees, late payment fees, and returned
14 payment fees.
15 (8) If the recipient elects to pay off or refinance
16 the commercial financing before full repayment, the
17 provider must disclose:
18 (i) whether the recipient would be required to pay
19 any finance charges other than interest accrued since
20 their last payment; if so, disclosure of the
21 percentage of any unpaid portion of the finance charge
22 and maximum dollar amount the recipient could be
23 required to pay; and
24 (ii) whether the recipient would be required to
25 pay any additional fees not already included in the
26 finance charge.
SB2234 - 10 - LRB103 28770 BMS 55153 b
SB2234- 11 -LRB103 28770 BMS 55153 b SB2234 - 11 - LRB103 28770 BMS 55153 b
SB2234 - 11 - LRB103 28770 BMS 55153 b
1 (9) A description of collateral requirements or
2 security interests, if any.
3 Section 25. Closed-end commercial financing disclosure
4 requirements. A provider subject to this Act shall provide the
5 following disclosures to a recipient, according to formatting
6 prescribed by the Secretary, if any, at the time of extending a
7 specific offer for closed-end financing:
8 (1) The total amount of the commercial financing, and,
9 if different from the financing amount, the disbursement
10 amount after any amount deducted or withheld at
11 disbursement.
12 (2) The finance charge.
13 (3) The annual percentage rate, using only the words
14 annual percentage rate or the abbreviation "APR",
15 expressed as a yearly rate, inclusive of any fees and
16 finance charges that cannot be avoided by a recipient, and
17 calculated in accordance with the federal Truth in Lending
18 Act, Regulation Z, 12 CFR 1026.22, regardless of whether
19 such act or such rule would require such a calculation.
20 (4) The total repayment amount, which is the
21 disbursement amount plus the finance charge.
22 (5) The term of the financing.
23 (6) The payment amounts:
24 (i) for payment amounts that are fixed, the
25 payment amounts and frequency (e.g., daily, weekly,
SB2234 - 11 - LRB103 28770 BMS 55153 b
SB2234- 12 -LRB103 28770 BMS 55153 b SB2234 - 12 - LRB103 28770 BMS 55153 b
SB2234 - 12 - LRB103 28770 BMS 55153 b
1 monthly), and, if the term is longer than one month,
2 the average monthly payment amount; or
3 (ii) for payment amounts that are variable, a full
4 payment schedule or a description of the method used
5 to calculate the amounts and frequency of payments,
6 and, if the term is longer than one month, the
7 estimated average monthly payment amount.
8 (7) A description of all other potential fees and
9 charges that can be avoided by the recipient, including,
10 but not limited to, late payment fees and returned payment
11 fees.
12 (8) If the recipient elects to pay off or refinance
13 the commercial financing before full repayment, the
14 provider must disclose:
15 (i) whether the recipient would be required to pay
16 any finance charges other than interest accrued since
17 their last payment; if so, disclosure of the
18 percentage of any unpaid portion of the finance charge
19 and maximum dollar amount the recipient could be
20 required to pay; and
21 (ii) whether the recipient would be required to
22 pay any additional fees not already included in the
23 finance charge.
24 (9) A description of collateral requirements or
25 security interests, if any.
SB2234 - 12 - LRB103 28770 BMS 55153 b
SB2234- 13 -LRB103 28770 BMS 55153 b SB2234 - 13 - LRB103 28770 BMS 55153 b
SB2234 - 13 - LRB103 28770 BMS 55153 b
1 Section 30. Open-end commercial financing disclosure
2 requirements. A provider subject to this Act shall provide the
3 following disclosures to a recipient, according to formatting
4 prescribed by the Secretary, if any, at the time of extending a
5 specific offer for open-end financing:
6 (1) The maximum amount of credit available to the
7 recipient (e.g., the credit line amount), and the amount
8 scheduled to be drawn by the recipient at the time the
9 offer is extended, if any, less any amount deducted or
10 withheld at disbursement.
11 (2) The finance charge.
12 (3) The annual percentage rate, using only the words
13 annual percentage rate or the abbreviation "APR",
14 expressed as a nominal yearly rate, inclusive of any fees
15 and finance charges that cannot be avoided by a recipient,
16 and calculated in accordance with the federal Truth in
17 Lending Act, Regulation Z, 12 CFR 1026.22, and based on
18 the maximum amount of credit available to the recipient
19 and the term resulting from making the minimum required
20 payments term as disclosed, regardless of whether such act
21 or such rule would require such a calculation.
22 (4) The total repayment amount, which is the draw
23 amount, less any fees deducted or withheld at
24 disbursement, plus the finance charge. The total repayment
25 amount shall assume a draw amount equal to the maximum
26 amount of credit available to the recipient if drawn and
SB2234 - 13 - LRB103 28770 BMS 55153 b
SB2234- 14 -LRB103 28770 BMS 55153 b SB2234 - 14 - LRB103 28770 BMS 55153 b
SB2234 - 14 - LRB103 28770 BMS 55153 b
1 held for the duration of the term or draw period.
2 (5) The term of the plan, if applicable, or the period
3 over which a draw is amortized.
4 (6) The payment frequency and amounts, based on the
5 assumptions used in the calculation of the annual
6 percentage rate, including a description of payment amount
7 requirements such as a minimum payment amount, and if the
8 payment frequency is other than monthly, the amount of the
9 average projected payments per month. For payment amounts
10 that are variable, the provider should include a payment
11 schedule or a description of the method used to calculate
12 the amounts and frequency of payments and the estimated
13 average monthly payment amount.
14 (7) A description of all other potential fees and
15 charges that can be avoided by the recipient, including,
16 but not limited to, draw fees, late payment fees, and
17 returned payment fees.
18 (8) Were the recipient to elect to pay off or
19 refinance the commercial financing before full repayment,
20 the provider must disclose:
21 (i) whether the recipient would be required to pay
22 any finance charges other than interest accrued since
23 their last payment; if so, disclosure of the
24 percentage of any unpaid portion of the finance charge
25 and maximum dollar amount the recipient could be
26 required to pay; and
SB2234 - 14 - LRB103 28770 BMS 55153 b
SB2234- 15 -LRB103 28770 BMS 55153 b SB2234 - 15 - LRB103 28770 BMS 55153 b
SB2234 - 15 - LRB103 28770 BMS 55153 b
1 (ii) whether the recipient would be required to
2 pay any additional fees not already included in the
3 finance charge.
4 (9) A description of collateral requirements or
5 security interests, if any.
6 Section 35. Factoring transaction disclosure requirements.
7 A provider subject to this Act shall provide the following
8 disclosures to a recipient, according to formatting prescribed
9 by the Secretary, if any, at the time of extending a specific
10 offer for a factoring transaction:
11 (1) The amount of the receivables purchase price paid
12 to the recipient, and, if different from the purchase
13 price, the disbursement amount after any amount deducted
14 or withheld at disbursement.
15 (2) The finance charge.
16 (3) The estimated annual percentage rate, using that
17 term, calculated according to the federal Truth in Lending
18 Act, Regulation Z, 12 CFR 1026 Appendix J, as a "single
19 advance, single payment transaction", regardless of
20 whether such act or such rule would require such a
21 calculation. To calculate the estimated annual percentage
22 rate, the purchase amount is considered the financing
23 amount, the purchase amount minus the finance charge is
24 considered the payment amount, and the term is established
25 by the payment due date of the receivables. As an
SB2234 - 15 - LRB103 28770 BMS 55153 b
SB2234- 16 -LRB103 28770 BMS 55153 b SB2234 - 16 - LRB103 28770 BMS 55153 b
SB2234 - 16 - LRB103 28770 BMS 55153 b
1 alternate method of establishing the term, the provider
2 may estimate the term for a factoring transaction as the
3 average payment period based on its historical data over a
4 period not to exceed the previous 12 months, concerning
5 payment invoices paid by the party or parties owing the
6 accounts receivable in question.
7 (4) The total payment amount, which is the purchase
8 amount plus the finance charge.
9 (5) A description of all other potential fees and
10 charges that can be avoided by the recipient.
11 (6) A description of the receivables purchased and any
12 additional collateral requirements or security interests.
13 Section 40. Other forms of financing disclosure
14 requirements. The Secretary may require disclosure by a
15 provider extending a specific offer of commercial financing
16 which is not an open-end financing, closed-end financing,
17 sales-based financing, or factoring transaction but otherwise
18 meets the definition of commercial financing. Subject to such
19 rules by the Secretary, a provider subject to this Act shall
20 provide the following disclosures to a recipient, according to
21 formatting prescribed by the Secretary, if any, at the time of
22 extending a specific offer of other forms of financing:
23 (1) The total amount of the commercial financing, and,
24 if different from the financing amount, the disbursement
25 amount after any fees deducted or withheld at
SB2234 - 16 - LRB103 28770 BMS 55153 b
SB2234- 17 -LRB103 28770 BMS 55153 b SB2234 - 17 - LRB103 28770 BMS 55153 b
SB2234 - 17 - LRB103 28770 BMS 55153 b
1 disbursement.
2 (2) The finance charge.
3 (3) The annual percentage rate, using only the words
4 annual percentage rate or the abbreviation "APR",
5 expressed as a yearly rate, inclusive of any fees and
6 finance charges, and calculated in accordance with the
7 relevant sections of the federal Truth in Lending Act,
8 Regulation Z, 12 CFR 1026.22, or this Act, regardless of
9 whether such act or such rule would require such a
10 calculation.
11 (4) The total repayment amount which is the
12 disbursement amount plus the finance charge.
13 (5) The term of the financing.
14 (6) The payment amounts:
15 (i) for payment amounts that are fixed, the
16 payment amounts and frequency (e.g., daily, weekly,
17 monthly), and the average monthly payment amount; or
18 (ii) for payment amounts that are variable, a
19 payment schedule or a description of the method used
20 to calculate the amounts and frequency of payments,
21 and the estimated average monthly payment amount.
22 (7) A description of all other potential fees and
23 charges that can be avoided by the recipient, including,
24 but not limited to, late payment fees and returned payment
25 fees.
26 (8) If the recipient elects to pay off or refinance
SB2234 - 17 - LRB103 28770 BMS 55153 b
SB2234- 18 -LRB103 28770 BMS 55153 b SB2234 - 18 - LRB103 28770 BMS 55153 b
SB2234 - 18 - LRB103 28770 BMS 55153 b
1 the commercial financing before full repayment, the
2 provider must disclose:
3 (i) whether the recipient would be required to pay
4 any finance charges other than interest accrued since
5 their last payment; if so, disclosure of the
6 percentage of any unpaid portion of the finance charge
7 and maximum dollar amount the recipient could be
8 required to pay; and
9 (ii) whether the recipient would be required to
10 pay any additional fees not already included in the
11 finance charge.
12 (9) A description of collateral requirements or
13 security interests, if any.
14 Section 45. Complaint disclosure. All commercial financing
15 shall include a clear and conspicuous notice on how to file a
16 complaint with the Department.
17 Section 50. Disclosure requirements for renewal financing.
18 If, as a condition of obtaining the commercial financing, the
19 provider requires the recipient to pay off the balance of an
20 existing commercial financing from the same provider, then the
21 provider must disclose the following:
22 (1) The amount of the new commercial financing that is
23 used to pay off the portion of the existing commercial
24 financing that consists of prepayment charges required to
SB2234 - 18 - LRB103 28770 BMS 55153 b
SB2234- 19 -LRB103 28770 BMS 55153 b SB2234 - 19 - LRB103 28770 BMS 55153 b
SB2234 - 19 - LRB103 28770 BMS 55153 b
1 be paid and any unpaid interest expense that was not
2 forgiven at the time of renewal. For financing for which
3 the total repayment amount is calculated as a fixed
4 amount, the prepayment charge is equal to the original
5 finance charge multiplied by the amount of the renewal
6 used to pay off existing financing as a percentage of the
7 total repayment amount, minus any portion of the total
8 repayment amount forgiven by the provider at the time of
9 prepayment. If the amount is more than zero, such amount
10 shall be the answer to the following question: "Does the
11 renewal financing include any amount that is used to pay
12 unpaid finance charge or fees, also known as double
13 dipping? Yes, [enter amount]. If the amount is zero, the
14 answer would be No."
15 (2) If the disbursement amount will be reduced to pay
16 down any unpaid portion of the outstanding balance, then
17 the actual dollar amount by which the disbursement amount
18 will be reduced.
19 Section 55. Required signature. The provider shall obtain
20 the recipient's signature, which may be fulfilled by an
21 electronic signature, on all disclosures required to be
22 presented to the recipient by this Act before authorizing the
23 recipient to proceed further with the commercial financing
24 transaction application.
SB2234 - 19 - LRB103 28770 BMS 55153 b
SB2234- 20 -LRB103 28770 BMS 55153 b SB2234 - 20 - LRB103 28770 BMS 55153 b
SB2234 - 20 - LRB103 28770 BMS 55153 b
1 Section 60. Additional information. Nothing in this Act
2 shall prevent a provider from providing or disclosing
3 additional information on a commercial financing being offered
4 to a recipient, however, such additional information shall not
5 be disclosed as part of the disclosure required by this Act. If
6 other metrics of financing cost are disclosed or used in the
7 application process of a commercial financing, then these
8 metrics shall not be presented as a "rate" if they are not the
9 annual interest rate or the annual percentage rate. The term
10 "interest", when used to describe a percentage rate, shall
11 only be used to describe annualized percentage rates, such as
12 the annual interest rate. When a provider states a rate of
13 finance charge or a financing amount to a recipient during an
14 application process for commercial financing, the provider
15 shall also state the rate as an "annual percentage rate",
16 using that term or the abbreviation "APR".
17 Section 65. Rules. The Department is hereby authorized and
18 empowered to adopt such rules as may in the judgment of the
19 Secretary be consistent with the purposes of this Act, or
20 appropriate for the effective administration of this Act,
21 including, but not limited to:
22 (1) Rules in connection with the calculation or
23 determination of any metric required to be disclosed to a
24 recipient.
25 (2) Rules as necessary to develop and prescribe
SB2234 - 20 - LRB103 28770 BMS 55153 b
SB2234- 21 -LRB103 28770 BMS 55153 b SB2234 - 21 - LRB103 28770 BMS 55153 b
SB2234 - 21 - LRB103 28770 BMS 55153 b
1 disclosure formatting to be used by providers that allows
2 for recipients to easily compare financing options in a
3 clear and conspicuous manner; such rules may include the
4 designation and method for disclosing the information
5 required in this Act or approving adequate forms and
6 methods already used by providers.
7 (3) Rules as may define the terms used in this Act and
8 as may be necessary and appropriate to interpret and
9 implement the provisions of this Act.
10 (4) Rules as may be necessary for the enforcement and
11 administration of this Act.
12 (5) Rules appropriate for the protection of consumers
13 in this State.
14 (6) Rules as may be necessary and appropriate to
15 define improper or fraudulent business practices in
16 connection with commercial financing.
17 (7) Rules as may be necessary to charge and collect
18 fees necessary to cover the costs of administering this
19 Act, including, but not limited to, registration,
20 investigation, and examination fees.
21 The Department may adopt rules pursuant to this Act upon
22 this Act becoming law with such rules not to take effect
23 earlier than January 1, 2024.
24 Section 70. Penalties.
25 (a) Upon a finding by the Secretary that a provider has
SB2234 - 21 - LRB103 28770 BMS 55153 b
SB2234- 22 -LRB103 28770 BMS 55153 b SB2234 - 22 - LRB103 28770 BMS 55153 b
SB2234 - 22 - LRB103 28770 BMS 55153 b
1 violated the provisions of this Act or the rules adopted
2 pursuant to this Act, the provider shall be ordered to pay the
3 Department a civil penalty for each violation of this Act or
4 any rule a sum not to exceed $10,000 for each violation or, if
5 such violation is willful, $20,000 for each violation.
6 (b) In addition to any penalty imposed pursuant to
7 subsection (a), the Secretary may order additional relief,
8 including, but not limited to:
9 (i) restitution;
10 (ii) refund of moneys or return of real property;
11 (iii) disgorgement or compensation for unjust
12 enrichment, with any disgorged amounts returned to the
13 affected businesses, to the extent practicable; and
14 (iv) limits on the activities or functions of the
15 person, including, but not limited to, prohibiting a
16 person from being a provider.
17 (c) The Secretary shall serve notice of the action,
18 including, but not limited to, a statement of the reasons for
19 the action, either personally or by certified mail. Service by
20 certified mail shall be deemed completed when the notice is
21 deposited in the U.S. mail.
22 (d) Within 10 days after service of the action, the person
23 may request a hearing in writing. The Secretary shall schedule
24 a hearing within 90 days after the request for a hearing unless
25 otherwise agreed to by the parties.
SB2234 - 22 - LRB103 28770 BMS 55153 b
SB2234- 23 -LRB103 28770 BMS 55153 b SB2234 - 23 - LRB103 28770 BMS 55153 b
SB2234 - 23 - LRB103 28770 BMS 55153 b
1 Section 75. Cease and desist order.
2 (a) The Secretary may issue a cease and desist order if, in
3 the opinion of the Secretary, a licensee or other person is
4 violating or is about to violate any provision of this Act or
5 any rule or requirement imposed in writing by the Department.
6 The cease and desist order permitted by this Section may be
7 issued before a hearing.
8 (b) The Secretary shall serve notice of his or her action,
9 including, but not limited to, a statement of the reasons for
10 the action, either personally or by certified mail. Service by
11 certified mail shall be deemed completed when the notice is
12 deposited in the U.S. mail.
13 (c) Within 10 days after service of the cease and desist
14 order, the licensee or other person may request a hearing in
15 writing. The Secretary shall schedule a hearing within 90 days
16 after the request for a hearing unless otherwise agreed to by
17 the parties.
18 (d) The Secretary may include in any cease and desist
19 order such orders as may be reasonably necessary to correct,
20 eliminate, or remedy the conduct.
21 (e) The powers vested in the Secretary by this Section are
22 in addition to any and all other powers and remedies vested in
23 the Secretary by law, and nothing in this Section shall be
24 construed as requiring that the Secretary shall employ the
25 power conferred in this subsection instead of or as a
26 condition precedent to the exercise of any other power or
SB2234 - 23 - LRB103 28770 BMS 55153 b
SB2234- 24 -LRB103 28770 BMS 55153 b SB2234 - 24 - LRB103 28770 BMS 55153 b
SB2234 - 24 - LRB103 28770 BMS 55153 b
1 remedy vested in the Secretary.
2 Section 80. Injunction. The Secretary may, through the
3 Attorney General, bring an action in the circuit court to
4 enjoin a person from violating this Act in the name of the
5 people of the State of Illinois.
6 Section 85. Investigation and examination. The Department
7 may investigate or examine providers and persons reasonably
8 believed to be providers for compliance with this Act and its
9 implementing rules.
10 Section 90. Civil action. A civil claim may be asserted
11 against a provider for violation of this Act. Additionally, a
12 prevailing person other than a provider may be awarded
13 reasonable attorney's fees and court costs.
14 Section 95. Violations.
15 (a) Nothing in this Act shall be construed to restrict the
16 exercise of powers or the performance of the duties that the
17 Illinois Attorney General is authorized to exercise or perform
18 by law.
19 (b) Any violation of this Act constitutes an unlawful
20 practice in violation of the Consumer Fraud and Deceptive
21 Business Practices Act.
22 (c) The Illinois Attorney General may enforce a violation
SB2234 - 24 - LRB103 28770 BMS 55153 b
SB2234- 25 -LRB103 28770 BMS 55153 b SB2234 - 25 - LRB103 28770 BMS 55153 b
SB2234 - 25 - LRB103 28770 BMS 55153 b
1 of this Act as an unlawful practice under the Consumer Fraud
2 and Deceptive Business Practices Act.
3 Section 100. No evasion. An agreement, contract, or
4 transaction that is structured to evade this Act shall be
5 deemed to be covered by this Act.
6 Section 105. Registration.
7 (a) All providers shall be required to pay a registration
8 fee of $1,000 to the Department and register with the
9 Department in the manner and form directed by the Secretary
10 within one year after the effective date of this Act and renew
11 the registration each calendar year thereafter in the manner
12 and form directed by the Secretary.
13 (b) Before December 1 of each year, a provider must pay to
14 the Secretary, and the Department must receive, a registration
15 fee of $1,000 for the following calendar year. A provider's
16 registration shall automatically expire on January 1 of each
17 year unless the registration fee has been paid prior thereto.
18 (c) Any commercial financing made or offered by a provider
19 that violates this Section is null and void and no person or
20 entity shall have any right to collect, attempt to collect,
21 receive, or retain any funded amount or charges related to the
22 commercial financing.
23 Section 110. Judicial review. All final administrative
SB2234 - 25 - LRB103 28770 BMS 55153 b
SB2234- 26 -LRB103 28770 BMS 55153 b SB2234 - 26 - LRB103 28770 BMS 55153 b
SB2234 - 26 - LRB103 28770 BMS 55153 b
1 decisions of the Department under this Act are subject to
2 judicial review under the Administrative Review Law and any
3 rules adopted under the Administrative Review Law.
4 Section 900. The Consumer Fraud and Deceptive Business
5 Practices Act is amended by adding Section 2BBBB as follows:
6 (815 ILCS 505/2BBBB new)
7 Sec. 2BBBB. Violations of the Small Business Truth in
8 Lending Act. Any person who violates the Small Business Truth
9 in Lending Act commits an unlawful practice within the meaning
10 of this Act.
11 Section 997. Severability. The provisions of this Act are
12 severable under Section 1.31 of the Statute on Statutes. If
13 any clause, sentence, provision, or part of this Act or its
14 application to any person or circumstance is adjudged to be
15 unconstitutional or invalid for any reason by any court of
16 competent jurisdiction, that judgment shall not impair,
17 affect, or invalidate other provisions or applications of this
18 Act, which shall remain in full force and effect thereafter.
19 Section 999. Effective date. This Act takes effect upon
20 becoming law.
SB2234 - 26 - LRB103 28770 BMS 55153 b