Are we still prohibited from repossessing vehicles from consumer borrowers who are delinquent on their vehicle loan payments? If so, can you direct us to the relevant executive order? Also, are we prohibited from repossessing collateral from delinquent commercial borrows, such as semis and trailers?

Please note that as of August 23, 2020, the portion of Executive Order 2020-16 referenced in our answer below has been rescinded by Executive Order 2020-48 (“Executive Order 2020-16 is re-issued in its entirety and extended through August 22, 2020, whereafter Section 1 shall be rescinded”).

Yes, lenders still are prohibited from repossessing vehicles (including semis and trailers) from consumer and commercial borrowers.

On May 29, the Illinois Governor issued Executive Order 2020-39, in which he reissued and extended Executive Order 2020-16 (EO-16) (suspending the repossession of vehicles for the duration of the Gubernatorial Disaster Proclamation) through June 27, 2020. A renewed Gubernatorial Disaster Proclamation also was issued on May 29 and will remain in effect for thirty days.

EO-16 states: “Beginning March 27, 2020 and continuing for the duration of the Gubernatorial Disaster Proclamation, the provisions of the Uniform Commercial Code, 810 ILCS 5/9-609, regarding the possession or usability of a vehicle, and the provisions of the Illinois Vehicle Code, 625 ILCS 5/3-114, regarding the repossession of vehicles, are suspended.”

The referenced sections of UCC and Vehicle Code are not exclusive to the repossession of collateral belonging to consumers, and the Vehicle Code’s definition of “vehicle” includes “every device, in, upon or by which any person or property is or may be transported or drawn upon a highway.” Consequently, we believe EO 2020-16 prohibits the repossession of semis and trailers.

For resources related to our guidance, please see:

Illinois Executive Order 2020-39 (May 29, 2020) (“Executive Order 2020-16 is re-issued in its entirety and extended through June 27, 2020.”)

Illinois Executive Order 2020-16 (March 28, 2020) (“[T]he repossession of vehicles is contrary to the interest of preserving public health and ensuring that individuals are able to engage in permitted travel while limiting their use of public transportation and maintaining social distancing.”)

Illinois Executive Order 2020-16 (March 28, 2020) (“Beginning March 27, 2020 and continuing for the duration of the Gubernatorial Disaster Proclamation, the provisions of the Uniform Commercial Code, 810 ILCS 5/9-609, regarding the possession or usability of a vehicle, and the provisions of the Illinois Vehicle Code, 625 ILCS 5/3-114, regarding the repossession of vehicles, are suspended. No provision contained in this Executive Order shall be construed as relieving any individual of the obligation to make payments or comply with any other obligation that an individual may have pursuant to a loan agreement or otherwise.”)

Gubernatorial Disaster Proclamation (May 29, 2020) (Pursuant to the provisions of Section 7 of the Illinois Emergency Management Agency Act, 20 ILCS 3305/7, I find that a disaster exists within the State of Illinois and specifically declare all counties in the State of Illinois as a disaster area. . . . This proclamation shall be effective immediately and remain in effect for 30 days.”)

Illinois UCC, 810 ILCS 5/9-609 (“Secured party's right to take possession after default.

(a) Possession; rendering equipment unusable; disposition on debtor's premises. After default, a secured party: (1) may take possession of the collateral; and (2) without removal, may render equipment unusable and dispose of collateral on a debtor's premises under Section 9-610.

(b) Judicial and nonjudicial process. A secured party may proceed under subsection (a): (1) pursuant to judicial process; or (2) without judicial process, if it proceeds without breach of the peace. Assembly of collateral. If so agreed, and in any event after default, a secured party may require the debtor to assemble the collateral and make it available to the secured party at a place to be designated by the secured party which is reasonably convenient to both parties.

(c) Assembly of collateral. If so agreed, and in any event after default, a secured party may require the debtor to assemble the collateral and make it available to the secured party at a place to be designated by the secured party which is reasonably convenient to both parties.”)

Illinois Vehicle Code, 625 ILCS 5/3-114 (Addressing vehicle repossession with and without assignment of title.)

Illinois Vehicle Code, 625 ILCS 5/1-217 (“Vehicle. Every device, in, upon or by which any person or property is or may be transported or drawn upon a highway or requiring a certificate of title under Section 3-101(d) of this Code, except devices moved by human power, devices used exclusively upon stationary rails or tracks and snowmobiles as defined in the Snowmobile Registration and Safety Act. For the purposes of this Code, unless otherwise prescribed, a device shall be considered to be a vehicle until such time it either comes within the definition of a junk vehicle, as defined under this Code, or a junking certificate is issued for it. For this Code, vehicles are divided into 2 divisions: First Division: Those motor vehicles which are designed for the carrying of not more than 10 persons. Second Division: Those vehicles which are designed for carrying more than 10 persons, those designed or used for living quarters and those vehicles which are designed for pulling or carrying property, freight or cargo, those motor vehicles of the First Division remodeled for use and used as motor vehicles of the Second Division, and those motor vehicles of the First Division used and registered as school buses.”)