Bill Text: IL SB3037 | 2017-2018 | 100th General Assembly | Introduced
Bill Title: Amends the Real Estate License Act of 2000. Removes specified caps for recovery from the Real Estate Recovery Fund and provides that the caps shall be decided by rule. Provides that the Department of Financial and Professional Regulation may expend moneys from the Fund to procure and pay the premium for a bond, insurance, or other indemnity product in amounts to be determined by the Department in order to compensate an aggrieved person for all or part of his or her loss of money due to a violation of the Act or to fund a program of self-insurance in order to compensate an aggrieved person for all or part of his or her loss of money due to a violation of the Act. Removes provisions permitting an aggrieved party to seek a post-judgment order from the Fund and makes related changes. Replaces references to an aggrieved party seeking a judgment to recover from the Fund with references to an aggrieved party filing a claim to recover from the Fund, and makes similar changes. Makes other changes to provisions concerning collection from the Fund. Repeals a provision concerning the Department's power to defend against actions for collection from the Fund. Effective January 1, 2019.
Spectrum: Partisan Bill (Republican 1-0)
Status: (Failed) 2019-01-09 - Session Sine Die [SB3037 Detail]
Download: Illinois-2017-SB3037-Introduced.html
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1 | AN ACT concerning regulation.
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2 | Be it enacted by the People of the State of Illinois,
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3 | represented in the General Assembly:
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4 | Section 5. The Real Estate License Act of 2000 is amended | ||||||||||||||||||||||||||||||
5 | by changing Sections 20-85, 20-90, and 20-100 as follows:
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6 | (225 ILCS 454/20-85)
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7 | (Section scheduled to be repealed on January 1, 2020)
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8 | Sec. 20-85. Recovery from Real Estate Recovery Fund. | ||||||||||||||||||||||||||||||
9 | (a) The Department shall maintain a Real Estate Recovery | ||||||||||||||||||||||||||||||
10 | Fund from which any person aggrieved
by an act,
representation, | ||||||||||||||||||||||||||||||
11 | transaction, or conduct of a licensee or unlicensed employee of
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12 | a licensee that is
in violation of this Act or the rules | ||||||||||||||||||||||||||||||
13 | promulgated pursuant thereto,
constitutes
embezzlement of | ||||||||||||||||||||||||||||||
14 | money or property, or results in money or property being
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15 | unlawfully obtained
from any person by false pretenses, | ||||||||||||||||||||||||||||||
16 | artifice, trickery, or forgery or by reason
of any fraud,
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17 | misrepresentation, discrimination, or deceit by or on the part | ||||||||||||||||||||||||||||||
18 | of any such
licensee or the unlicensed
employee of a licensee | ||||||||||||||||||||||||||||||
19 | and that results in a loss of actual cash money, as
opposed to | ||||||||||||||||||||||||||||||
20 | losses in
market value, may recover. The aggrieved person may | ||||||||||||||||||||||||||||||
21 | recover , by a post-judgment order of the
circuit court of the
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22 | county where the violation occurred in a proceeding described | ||||||||||||||||||||||||||||||
23 | in Section 20-90 of this Act, an amount of not more than that |
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1 | established by rule $25,000 from
the Fund for
damages sustained | ||||||
2 | by the act, representation, transaction, or conduct . No , | ||||||
3 | together
with costs of suit and
attorney's fees incurred in | ||||||
4 | connection therewith of not to exceed 15% of the
amount of the | ||||||
5 | recovery
ordered paid from the Fund. However, no person may
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6 | recover from the
Fund unless the court finds that the person | ||||||
7 | suffered a loss resulting from
intentional misconduct.
The | ||||||
8 | post-judgment order shall not include interest on the judgment.
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9 | The maximum liability against the Fund arising out of any one | ||||||
10 | act shall be as
provided by rule in this
Section, and the | ||||||
11 | post-judgment order shall spread the award equitably among all
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12 | co-owners or otherwise
aggrieved persons, if any . The maximum | ||||||
13 | liability against the Fund arising out
of the activities of
any | ||||||
14 | one licensee or one unlicensed employee of a licensee , since | ||||||
15 | January 1,
1974, shall be as provided by rule $100,000 .
Nothing | ||||||
16 | in this Section shall be construed to authorize recovery from | ||||||
17 | the Fund
unless the loss of the aggrieved person results from | ||||||
18 | an act or omission of a licensee under this Act
who was at the | ||||||
19 | time of the act or omission
acting in such
capacity or was | ||||||
20 | apparently acting in such capacity or their unlicensed employee | ||||||
21 | and unless the aggrieved
person has obtained a
valid judgment | ||||||
22 | and post-judgment order of the court as provided for in Section | ||||||
23 | 20-90 of this Act .
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24 | (b) The Department may expend moneys from the Fund to | ||||||
25 | procure and pay the premium for a bond, insurance, or other | ||||||
26 | indemnity product in amounts to be determined by the Department |
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1 | in order to compensate an aggrieved person for all or part of | ||||||
2 | his or her loss of money as set forth in subsection (a) or to | ||||||
3 | fund a program of self-insurance in order to compensate an | ||||||
4 | aggrieved person for all or part of his or her loss of money as | ||||||
5 | set forth in subsection (a). The Department may cooperate with | ||||||
6 | an insurance agency, carrier, entity, or provider, or its | ||||||
7 | agents in the insurance agency, carrier, entity or provider's | ||||||
8 | investigation, administration, and payment of claims, or to | ||||||
9 | procure one or more private vendors to administer a program of | ||||||
10 | self-insurance and to expend moneys from the Fund for any other | ||||||
11 | purpose necessary to effectuate the purposes of this Section. | ||||||
12 | The Fund shall not pay attorney's fees or costs incurred or | ||||||
13 | claimed to have been incurred by an aggrieved person in | ||||||
14 | connection with a claim against the Fund. | ||||||
15 | (Source: P.A. 99-227, eff. 8-3-15; 100-534, eff. 9-22-17.)
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16 | (225 ILCS 454/20-90)
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17 | (Section scheduled to be repealed on January 1, 2020)
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18 | Sec. 20-90. Collection from Real Estate Recovery Fund; | ||||||
19 | procedure.
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20 | (a) No claim for payment action for a judgment that | ||||||
21 | subsequently results in a post-judgment order for
collection | ||||||
22 | from the
Real Estate Recovery Fund shall be made started later | ||||||
23 | than 2 years after the date on
which the aggrieved
person knew, | ||||||
24 | or through the use of reasonable diligence should have known, | ||||||
25 | of
the acts or
omissions giving rise to a right of recovery |
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1 | from the Real Estate Recovery
Fund.
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2 | (b) When any aggrieved person commences action for a | ||||||
3 | judgment that may
result in
collection from the Real Estate | ||||||
4 | Recovery Fund, the aggrieved person files a claim that may | ||||||
5 | result in collection from the Real Estate Recovery Fund, the | ||||||
6 | aggrieved person must identify name
as parties
defendant to | ||||||
7 | that action any and all licensees, their
employees, or | ||||||
8 | independent contractors who allegedly committed or are | ||||||
9 | responsible for acts or omissions
giving rise to a right
of | ||||||
10 | recovery from the Real Estate Recovery Fund. Failure to | ||||||
11 | identify name as parties
defendant such
licensees, their | ||||||
12 | employees, or independent contractors shall preclude recovery
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13 | from the Real Estate
Recovery Fund of any portion of any | ||||||
14 | judgment received in such an action . These parties defendant | ||||||
15 | shall also include any corporations, limited
liability | ||||||
16 | companies,
partnerships, registered limited liability | ||||||
17 | partnership, or other business
associations licensed under | ||||||
18 | this Act that may be
responsible for acts giving rise to a | ||||||
19 | right of recovery from the Real Estate
Recovery Fund.
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20 | (c) (Blank).
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21 | (d) (Blank). When any aggrieved person commences action for | ||||||
22 | a judgment that may
result in
collection from the Real Estate | ||||||
23 | Recovery Fund, and the aggrieved person is unable to obtain | ||||||
24 | legal
and proper service upon the parties defendant licensed | ||||||
25 | under this Act under the provisions of Illinois law concerning | ||||||
26 | service of
process in civil actions, the aggrieved person may |
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1 | petition the court where the action to obtain
judgment was | ||||||
2 | begun for an order to allow service of legal process on the | ||||||
3 | Secretary. Service of
process on the Secretary shall be taken | ||||||
4 | and held in that court to be as valid and binding as if
due | ||||||
5 | service had been made upon the parties defendant licensed under | ||||||
6 | this Act. In case any process mentioned in this Section is
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7 | served upon the Secretary, the Secretary shall forward a copy | ||||||
8 | of the
process by certified
mail to the licensee's last address | ||||||
9 | on record with the Department. Any judgment obtained
after | ||||||
10 | service of
process on the Secretary under this Act shall apply | ||||||
11 | to and be enforceable
against the Real
Estate Recovery Fund | ||||||
12 | only. The Department may intervene in and defend any such | ||||||
13 | action.
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14 | (e) (Blank).
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15 | (f) The aggrieved person shall give written notice to the | ||||||
16 | Department within 30 days of
the entry of any
judgment that is | ||||||
17 | based on the facts giving rise to a Real Estate Recovery Fund | ||||||
18 | claim may result in collection from the Real Estate Recovery | ||||||
19 | Fund . The
aggrieved person shall provide the Department with 30 | ||||||
20 | 20 days prior written notice of all
supplementary
proceedings | ||||||
21 | based on the facts giving rise to the Real Estate Recovery Fund | ||||||
22 | claim, so as to allow the Department to intervene and | ||||||
23 | participate in all efforts to collect on the
judgment in the | ||||||
24 | same manner as any party.
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25 | (g) When any aggrieved person files a claim recovers a | ||||||
26 | valid judgment in any court of
competent
jurisdiction against |
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1 | any licensee or an unlicensed employee of any licensee in | ||||||
2 | accordance with this Section , upon
the grounds of
fraud, | ||||||
3 | misrepresentation, discrimination, or deceit, the aggrieved | ||||||
4 | person shall may,
upon the termination
of all proceedings, | ||||||
5 | including review and appeals in connection with the
judgment, | ||||||
6 | file a verified
claim in the court in which the judgment was | ||||||
7 | entered and, upon 30 days' written
notice to the Department,
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8 | and to the person against whom the judgment was obtained, may | ||||||
9 | apply to the
court for a post-judgment order
directing payment | ||||||
10 | out of the Real Estate Recovery Fund of the amount unpaid
upon | ||||||
11 | the judgment,
not including interest on the judgment, and | ||||||
12 | subject to the limitations stated
in Section 20-85 of this
Act. | ||||||
13 | The aggrieved person must set out in that verified claim and | ||||||
14 | prove at an
evidentiary hearing to be
held by the court upon | ||||||
15 | the application that the claim meets all requirements of | ||||||
16 | Section 20-85 and this Section to be eligible for payment from | ||||||
17 | the Real Estate Recovery Fund and the aggrieved party shall be | ||||||
18 | required to
show that the
aggrieved person:
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19 | (1) Is not a spouse of the debtor or debtors or the | ||||||
20 | personal representative of such
spouse.
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21 | (2) (Blank). Has complied with all the requirements of | ||||||
22 | this Section.
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23 | (3) Has not recovered any funds arising out of a civil | ||||||
24 | action based on the facts giving rise to his or her Real | ||||||
25 | Estate Recovery Fund claim obtained a judgment stating the | ||||||
26 | amount thereof and the amount
owing thereon,
not including |
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1 | interest thereon, at the date of the application .
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2 | (4) Has not previously settled or compromised the claim | ||||||
3 | sought to be filed against the Real Estate Recovery Fund | ||||||
4 | made all reasonable searches and inquiries to ascertain | ||||||
5 | whether
the judgment
debtor or debtors is possessed of real | ||||||
6 | or personal property or other assets, liable to be
sold or | ||||||
7 | applied in
satisfaction of the judgment .
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8 | (5) (Blank). By such search has discovered no personal | ||||||
9 | or real property or other
assets liable to
be sold or | ||||||
10 | applied, or has discovered certain of them, describing them | ||||||
11 | as owned
by the judgment
debtor or debtors and liable to be | ||||||
12 | so applied and has taken all necessary action and
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13 | proceedings for the
realization thereof, and the amount | ||||||
14 | thereby realized was insufficient to
satisfy the judgment, | ||||||
15 | stating
the amount so realized and the balance remaining | ||||||
16 | due on the judgment after
application of the
amount | ||||||
17 | realized.
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18 | (6) (Blank). Has diligently pursued all remedies | ||||||
19 | against all the judgment debtors
and
all other
persons | ||||||
20 | liable to the aggrieved person in the transaction for which | ||||||
21 | recovery is
sought from the Real
Estate Recovery Fund,
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22 | including the filing of an adversary action to have the | ||||||
23 | debts declared
non-dischargeable in any bankruptcy | ||||||
24 | petition matter filed by any judgment
debtor or person | ||||||
25 | liable to the aggrieved person.
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26 | The aggrieved person shall also be required to prove the |
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1 | amount of attorney's
fees sought to be
recovered and the | ||||||
2 | reasonableness of those fees up to the maximum allowed
pursuant | ||||||
3 | to Section 20-85
of this Act.
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4 | (h) (Blank). After conducting the evidentiary hearing | ||||||
5 | required under this Section, the court, in a post-judgment | ||||||
6 | order directed to the Department, shall indicate whether | ||||||
7 | requiring payment from
the Real Estate
Recovery Fund is | ||||||
8 | appropriate and, if so, the amount it finds to be payable upon | ||||||
9 | the claim, pursuant
to and in
accordance with the limitations | ||||||
10 | contained in Section 20-85 of this Act, if the
court is
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11 | satisfied, based upon the hearing,
of the truth of all matters | ||||||
12 | required to be shown by the aggrieved person under
subsection | ||||||
13 | (g) of this
Section and that the aggrieved person has fully | ||||||
14 | pursued and exhausted all
remedies available for
recovering the | ||||||
15 | amount awarded by the judgment of the court.
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16 | (i) Should the Department pay from the Real Estate Recovery | ||||||
17 | Fund any amount in
settlement of a claim
or toward satisfaction | ||||||
18 | of a judgment against any licensee
or an unlicensed
employee of | ||||||
19 | a licensee, the licensee's license shall be automatically | ||||||
20 | revoked
upon the issuance of a determination
post-judgment | ||||||
21 | order authorizing payment from the Real Estate Recovery Fund. | ||||||
22 | No
petition for restoration of
a license shall be heard until | ||||||
23 | repayment has been made in full, plus interest
at the rate | ||||||
24 | prescribed in
Section 12-109 of the Code of Civil Procedure of | ||||||
25 | the amount paid from
the Real Estate Recovery Fund on their | ||||||
26 | account, notwithstanding any provision to the contrary in |
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1 | Section 2105-15 of the Department of Professional Regulation | ||||||
2 | Law of the Civil Administrative Code of Illinois. A discharge | ||||||
3 | in bankruptcy shall
not relieve a
person from the penalties and | ||||||
4 | disabilities provided in this subsection (i).
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5 | (j) If, at any time, the money deposited in the Real Estate | ||||||
6 | Recovery Fund is
insufficient to
satisfy any duly authorized | ||||||
7 | claim or portion thereof, the Department shall, when
sufficient | ||||||
8 | money has been
deposited in the Real Estate Recovery Fund, | ||||||
9 | satisfy such unpaid claims or
portions thereof, in the
order | ||||||
10 | that such claims or portions thereof were originally filed, | ||||||
11 | plus
accumulated interest at the rate
prescribed in Section | ||||||
12 | 12-109 of the Code of Civil Procedure , provided that the | ||||||
13 | amounts do not exceed the limits set forth in rules adopted by | ||||||
14 | the Department .
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15 | (Source: P.A. 96-856, eff. 12-31-09; 97-1002, eff. 8-17-12.)
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16 | (225 ILCS 454/20-100)
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17 | (Section scheduled to be repealed on January 1, 2020)
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18 | Sec. 20-100. Subrogation of the Department to rights of | ||||||
19 | claimant judgment creditor . When , upon the order of the court, | ||||||
20 | the Department has paid from the Real Estate Recovery
Fund any | ||||||
21 | sum to
a claimant the judgment creditor , the Department shall | ||||||
22 | be subrogated to all of the rights of the claimant and the | ||||||
23 | claimant
judgment creditor and
the judgment creditor shall | ||||||
24 | assign all rights, title, and interest in the claim
judgment to | ||||||
25 | the Department and any
amount and interest so recovered by the |
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1 | Department on the judgment shall be deposited in
the Real | ||||||
2 | Estate
Recovery Fund.
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3 | (Source: P.A. 96-856, eff. 12-31-09.)
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4 | (225 ILCS 454/20-95 rep.)
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5 | Section 10. The Real Estate License Act of 2000 is amended | ||||||
6 | by repealing Section 20-95.
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7 | Section 99. Effective date. This Act takes effect January | ||||||
8 | 1, 2019.
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