Ill. Admin. Code tit. 74 § 760.780

Current through Register Vol. 48, No. 24, June 14, 2024

Section 760.780 - Evidence of Unpaid Debt or Undischarged Obligation

a)A record of a person subject to examination showing an unpaid debt or undischarged obligation is prima facie evidence of the debt or obligation. [ 765 ILCS 1026/15-1005(a) ]

b) A person subject to examination may establish by a preponderance of the evidence that there is no unpaid debt or undischarged obligation for a debt or obligation or that the debt or obligation was not, or no longer is, a fixed and certain obligation of the person subject to examination. [ 765 ILCS 1026/15-1005(b) ] Thus, the prima facie evidence may be rebutted by the person subject to examination.

c) A person subject to examination may overcome prima facie evidence by establishing by a preponderance of the evidence that a check, draft, or similar instrument was:

1)issued as an unaccepted offer in settlement of an unliquidated amount;

2)issued but later was replaced with another instrument because the earlier instrument was lost or contained an error that was corrected;

3)issued to a party affiliated with the issuer;

4)paid, satisfied, or discharged;

5)issued in error;

6)issued without consideration;

7)issued but there was a failure of consideration;

8)voided not later than 90 days after issuance for a valid business reason set forth in a contemporaneous record;

A) for purposes of this provision "valid business reason" does not include a policy of voiding outstanding checks, drafts, or similar instruments after a specified number of days;

B) a policy of automatically voiding would be tantamount to a private escheat law in violation of longstanding public policy in Illinois (see People ex rel. Callahan v. Marshall Field & Co., 83 Ill. App. 3d 811, 818, 404 N.E.2d 368, 374 (1980));

C) this defense merely indicates that when a check, draft, or similar instrument is voided quickly, for a valid business reason (i.e., not as a private escheat law), and the reason is indicated in a contemporaneous record, there is sufficient evidence to overcome the prima facie evidence of the existence of a debt or obligation; or

9)issued but not delivered to the third-party payee for a sufficient reason recorded within a reasonable time after issuance. [ 765 ILCS 1026/15-1005(c) ]

d)In asserting a defense under this Section, and subject to the records retention requirements of the Act, a putative holder may present evidence of a course of dealing between the putative holder and the apparent owner. [ 765 ILCS 1026/15-1005(d) ]

Ill. Admin. Code tit. 74, § 760.780

Adopted at 43 Ill. Reg. 4253, effective 3/25/2019.