Bill Text: IN SB0009 | 2011 | Regular Session | Amended
Bill Title: Consumer protection matters.
Spectrum: Slight Partisan Bill (Republican 5-2)
Status: (Engrossed - Dead) 2011-03-28 - First reading: referred to Committee on Judiciary [SB0009 Detail]
Download: Indiana-2011-SB0009-Amended.html
Citations Affected: IC 4-6; IC 24-4.7; IC 24-5; IC 24-9; IC 27-7;
noncode.
Effective: Upon passage; July 1, 2011.
January 5, 2011, read first time and referred to Committee on Rules and Legislative
Procedure.
January 6, 2011, amended; reassigned to Committee on Commerce and Economic
Development.
Digest Continued
multimedia messages through multimedia messaging service (MMS). Amends the statute concerning deceptive consumer sales to: (1) provide that a violation of the federal Fair Debt Collection Practices Act is a deceptive act that is actionable by the attorney general under the statute (but that is not subject to an action by an individual or to a class action); and (2) include cross references to certain consumer protection statutes, the violation of which constitutes a deceptive act subject to the penalties and remedies set forth in the statute. Specifies that for purposes of the statute governing home loan practices, a "deceptive act" includes a knowing or intentional misrepresentation made regarding real estate transactions, as well as mortgage transactions. Provides that the statute requiring the department of insurance (department) to establish and maintain an electronic system for the collection and storage of certain information about persons participating in or assisting with certain residential mortgage transactions also applies in the case of residential real estate transactions that: (1) do not involve a mortgage transaction; and (2) are closed by a closing agent after December 31, 2011. Requires certain additional information about residential mortgage transactions and residential real estate transactions to be collected and stored in the system. Requires the department to adopt, not later than September 1, 2011, emergency rules to update the electronic system in order to enable the storage and collection of the additional information.
PRINTING CODE. Amendments: Whenever an existing statute (or a section of the Indiana Constitution) is being amended, the text of the existing provision will appear in this style type, additions will appear in this style type, and deletions will appear in
Additions: Whenever a new statutory provision is being enacted (or a new constitutional provision adopted), the text of the new provision will appear in this style type. Also, the word NEW will appear in that style type in the introductory clause of each SECTION that adds a new provision to the Indiana Code or the Indiana Constitution.
Conflict reconciliation: Text in a statute in this style type or
A BILL FOR AN ACT to amend the Indiana Code concerning trade
regulation.
(1) a person listed in IC 16-39-7-1(a)(1) through IC 16-39-7-1(a)(11); or
(2) a person licensed, certified, registered, or regulated by a board listed in IC 25-1-9-1.
(1) for the telephone service received:
(A) has a place of primary use in Indiana; or
(B) is issued an Indiana telephone number or an Indiana identification number; and
(2) is an actual or a prospective:
services; or
(2) (B) donor to a charitable organization.
(b) The term includes a user of a prepaid wireless calling service
(as defined in IC 6-2.5-1-22.4) who:
(1) is issued an Indiana telephone number or an Indiana
identification number for the service; or
(2) purchases prepaid wireless calling service in a retail
transaction that is sourced to Indiana (as determined under
IC 6-2.5-12-16).
(1) making; or
(2) causing others to make;
telephone sales calls to consumers located in Indiana whether the telephone sales calls are made from a location in Indiana or outside Indiana.
(1) the residential street address of the subscriber or, in the case of a subscriber of interconnected VOIP service, the subscriber's registered location (as defined in 47 CFR 9.3); and
(2) in the case of mobile telecommunications services (as defined in IC 6-8.1-15-7), within the licensed service area of the home service provider, as set forth in IC 6-8.1-15-8.
(1) is assigned to a subscriber who has a place of primary use in Indiana; or
(2) otherwise represents an Indiana telephone number or is associated with an Indiana identification number.
(1) Solicitation of a sale of consumer goods or services.
(2) Solicitation of a charitable contribution.
(3) Obtaining information that will or may be used for the direct solicitation of a sale of consumer goods or services or an extension of credit for such purposes.
(b) The term includes any of the following:
(1) A call made by use of an automated dialing
(2) A call made by use of a recorded message
(3) Transmission of:
(A) a text message; or
(B) a graphic message;
using short message service (SMS).
(4) Transmission of:
(A) an image;
(B) a photograph; or
(C) a multimedia message;
using multimedia messaging service (MMS).
(5) Transmission of a communication or message using methods or technologies similar to those described in subdivisions (1) through (4).
(1) Subscribers of interconnected VOIP service.
(2) Subscribers of mobile telecommunications service (as defined in IC 6-8.1-15-7).
(3) Users of a prepaid wireless calling service, as described in IC 24-4.7-2-2(b).
(1) "Consumer transaction" means a sale, lease, assignment, award by chance, or other disposition of an item of personal property, real property, a service, or an intangible, except securities and policies or contracts of insurance issued by
corporations authorized to transact an insurance business under
the laws of the state of Indiana, with or without an extension of
credit, to a person for purposes that are primarily personal,
familial, charitable, agricultural, or household, or a solicitation to
supply any of these things. However, the term includes the
following:
(A) A transfer of structured settlement payment rights under
IC 34-50-2.
(B) An unsolicited advertisement sent to a person by telephone
facsimile machine offering a sale, lease, assignment, award by
chance, or other disposition of an item of personal property,
real property, a service, or an intangible.
(C) Collecting or attempting to collect a debt owed or due,
or asserted to be owed or due, another person.
(2) "Person" means an individual, corporation, the state of Indiana
or its subdivisions or agencies, business trust, estate, trust,
partnership, association, nonprofit corporation or organization, or
cooperative or any other legal entity.
(3) "Supplier" means the following:
(A) A seller, lessor, assignor, or other person who regularly
engages in or solicits consumer transactions, including
soliciting a consumer transaction by using a telephone
facsimile machine to transmit an unsolicited advertisement.
The term includes a manufacturer, wholesaler, or retailer,
whether or not the person deals directly with the consumer.
(B) A person who contrives, prepares, sets up, operates,
publicizes by means of advertisements, or promotes a pyramid
promotional scheme.
(C) A debt collector (as defined in 15 U.S.C. 1692a(6)).
(4) "Subject of a consumer transaction" means the personal
property, real property, services, or intangibles offered or
furnished in a consumer transaction.
(5) "Cure" as applied to a deceptive act, means either:
(A) to offer in writing to adjust or modify the consumer
transaction to which the act relates to conform to the
reasonable expectations of the consumer generated by such
deceptive act and to perform such offer if accepted by the
consumer; or
(B) to offer in writing to rescind such consumer transaction
and to perform such offer if accepted by the consumer.
The term includes an offer in writing of one (1) or more items of
value, including monetary compensation, that the supplier
delivers to a consumer or a representative of the consumer if
accepted by the consumer.
(6) "Offer to cure" as applied to a deceptive act is a cure that:
(A) is reasonably calculated to remedy a loss claimed by the
consumer; and
(B) includes a minimum additional amount that is the greater
of:
(i) ten percent (10%) of the value of the remedy under
clause (A), but not more than four thousand dollars
($4,000); or
(ii) five hundred dollars ($500);
as compensation for attorney's fees, expenses, and other costs
that a consumer may incur in relation to the deceptive act.
(7) "Uncured deceptive act" means a deceptive act:
(A) with respect to which a consumer who has been damaged
by such act has given notice to the supplier under section 5(a)
of this chapter; and
(B) either:
(i) no offer to cure has been made to such consumer within
thirty (30) days after such notice; or
(ii) the act has not been cured as to such consumer within a
reasonable time after the consumer's acceptance of the offer
to cure.
(8) "Incurable deceptive act" means a deceptive act done by a
supplier as part of a scheme, artifice, or device with intent to
defraud or mislead. The term includes a failure of a transferee of
structured settlement payment rights to timely provide a true and
complete disclosure statement to a payee as provided under
IC 34-50-2 in connection with a direct or indirect transfer of
structured settlement payment rights.
(9) "Pyramid promotional scheme" means any program utilizing
a pyramid or chain process by which a participant in the program
gives a valuable consideration exceeding one hundred dollars
($100) for the opportunity or right to receive compensation or
other things of value in return for inducing other persons to
become participants for the purpose of gaining new participants
in the program. The term does not include ordinary sales of goods
or services to persons who are not purchasing in order to
participate in such a scheme.
(10) "Promoting a pyramid promotional scheme" means:
(A) inducing or attempting to induce one (1) or more other
persons to become participants in a pyramid promotional
scheme; or
(B) assisting another in promoting a pyramid promotional
scheme.
(11) "Elderly person" means an individual who is at least
sixty-five (65) years of age.
(12) "Telephone facsimile machine" means equipment that has
the capacity to transcribe text or images, or both, from:
(A) paper into an electronic signal and to transmit that signal
over a regular telephone line; or
(B) an electronic signal received over a regular telephone line
onto paper.
(13) "Unsolicited advertisement" means material advertising the
commercial availability or quality of:
(A) property;
(B) goods; or
(C) services;
that is transmitted to a person without the person's prior express
invitation or permission, in writing or otherwise.
(14) "Debt" has the meaning set forth in 15 U.S.C. 1692a(5).
(b) As used in section 3(a)(15) and 3(a)(16) of this chapter:
(1) "Directory assistance" means the disclosure of telephone
number information in connection with an identified telephone
service subscriber by means of a live operator or automated
service.
(2) "Local telephone directory" refers to a telephone classified
advertising directory or the business section of a telephone
directory that is distributed by a telephone company or directory
publisher to subscribers located in the local exchanges contained
in the directory. The term includes a directory that includes
listings of more than one (1) telephone company.
(3) "Local telephone number" refers to a telephone number that
has the three (3) number prefix used by the provider of telephone
service for telephones physically located within the area covered
by the local telephone directory in which the number is listed. The
term does not include long distance numbers or 800-, 888-, or
900- exchange numbers listed in a local telephone directory.
(1) That such subject of a consumer transaction has sponsorship, approval, performance, characteristics, accessories, uses, or benefits it does not have which the supplier knows or should reasonably know it does not have.
(2) That such subject of a consumer transaction is of a particular standard, quality, grade, style, or model, if it is not and if the supplier knows or should reasonably know that it is not.
(3) That such subject of a consumer transaction is new or unused, if it is not and if the supplier knows or should reasonably know that it is not.
(4) That such subject of a consumer transaction will be supplied to the public in greater quantity than the supplier intends or reasonably expects.
(5) That replacement or repair constituting the subject of a consumer transaction is needed, if it is not and if the supplier knows or should reasonably know that it is not.
(6) That a specific price advantage exists as to such subject of a consumer transaction, if it does not and if the supplier knows or should reasonably know that it does not.
(7) That the supplier has a sponsorship, approval, or affiliation in such consumer transaction the supplier does not have, and which the supplier knows or should reasonably know that the supplier does not have.
(8) That such consumer transaction involves or does not involve a warranty, a disclaimer of warranties, or other rights, remedies, or obligations, if the representation is false and if the supplier knows or should reasonably know that the representation is false.
(9) That the consumer will receive a rebate, discount, or other benefit as an inducement for entering into a sale or lease in return for giving the supplier the names of prospective consumers or otherwise helping the supplier to enter into other consumer transactions, if earning the benefit, rebate, or discount is contingent upon the occurrence of an event subsequent to the time the consumer agrees to the purchase or lease.
(10) That the supplier is able to deliver or complete the subject of the consumer transaction within a stated period of time, when the supplier knows or should reasonably know the supplier could not. If no time period has been stated by the supplier, there is a presumption that the supplier has represented that the supplier will deliver or complete the subject of the consumer transaction within a reasonable time, according to the course of dealing or the usage of the trade.
(11) That the consumer will be able to purchase the subject of the consumer transaction as advertised by the supplier, if the supplier does not intend to sell it.
(12) That the replacement or repair constituting the subject of a consumer transaction can be made by the supplier for the estimate the supplier gives a customer for the replacement or repair, if the specified work is completed and:
(A) the cost exceeds the estimate by an amount equal to or greater than ten percent (10%) of the estimate;
(B) the supplier did not obtain written permission from the customer to authorize the supplier to complete the work even if the cost would exceed the amounts specified in clause (A);
(C) the total cost for services and parts for a single transaction is more than seven hundred fifty dollars ($750); and
(D) the supplier knew or reasonably should have known that the cost would exceed the estimate in the amounts specified in clause (A).
(13) That the replacement or repair constituting the subject of a consumer transaction is needed, and that the supplier disposes of the part repaired or replaced earlier than seventy-two (72) hours after both:
(A) the customer has been notified that the work has been completed; and
(B) the part repaired or replaced has been made available for examination upon the request of the customer.
(14) Engaging in the replacement or repair of the subject of a consumer transaction if the consumer has not authorized the replacement or repair, and if the supplier knows or should reasonably know that it is not authorized.
(15) The act of misrepresenting the geographic location of the supplier by listing a fictitious business name or an assumed business name (as described in IC 23-15-1) in a local telephone directory if:
(A) the name misrepresents the supplier's geographic location;
(B) the listing fails to identify the locality and state of the supplier's business;
(C) calls to the local telephone number are routinely forwarded or otherwise transferred to a supplier's business location that is outside the calling area covered by the local telephone directory; and
(D) the supplier's business location is located in a county that is not contiguous to a county in the calling area covered by the
local telephone directory.
(16) The act of listing a fictitious business name or assumed
business name (as described in IC 23-15-1) in a directory
assistance database if:
(A) the name misrepresents the supplier's geographic location;
(B) calls to the local telephone number are routinely forwarded
or otherwise transferred to a supplier's business location that
is outside the local calling area; and
(C) the supplier's business location is located in a county that
is not contiguous to a county in the local calling area.
(17) The violation by a supplier of IC 24-3-4 concerning
cigarettes for import or export.
(18) The act of a supplier in knowingly selling or reselling a
product to a consumer if the product has been recalled, whether
by the order of a court or a regulatory body, or voluntarily by the
manufacturer, distributor, or retailer, unless the product has been
repaired or modified to correct the defect that was the subject of
the recall.
(19) The violation by a supplier of 47 U.S.C. 227, including any
rules or regulations issued under 47 U.S.C. 227.
(20) The violation by a supplier of the federal Fair Debt
Collection Practices Act (15 U.S.C. 1692 et seq.), including any
rules or regulations issued under the federal Fair Debt
Collection Practices Act (15 U.S.C. 1692 et seq.).
(21) A violation of IC 24-5-7 (concerning health spa services),
as set forth in IC 24-5-7-17.
(22) A violation of IC 24-5-8 (concerning business opportunity
transactions), as set forth in IC 24-5-8-20.
(23) A violation of IC 24-5-10 (concerning home consumer
transactions), as set forth in IC 24-5-10-18.
(24) A violation of IC 24-5-11 (concerning home improvement
contracts), as set forth in IC 24-5-11-14.
(25) A violation of IC 24-5-12 (concerning telephone
solicitations), as set forth in IC 24-5-12-23.
(26) A violation of IC 24-5-13.5 (concerning buyback motor
vehicles), as set forth in IC 24-5-13.5-14.
(27) A violation of IC 24-5-14 (concerning automatic
dialing-announcing devices), as set forth in IC 24-5-14-13.
(28) A violation of IC 24-5-15 (concerning credit services
organizations), as set forth in IC 24-5-15-11.
(29) A violation of IC 24-5-16 (concerning unlawful motor
vehicle subleasing), as set forth in IC 24-5-16-18.
(30) A violation of IC 24-5-17 (concerning environmental
marketing claims), as set forth in IC 24-5-17-14.
(31) A violation of IC 24-5-19 (concerning deceptive
commercial solicitation), as set forth in IC 24-5-19-11.
(32) A violation of IC 24-5-21 (concerning prescription drug
discount cards), as set forth in IC 24-5-21-7.
(33) A violation of IC 24-5-23.5-7 (concerning real estate
appraisals), as set forth in IC 24-5-23.5-9.
(34) A violation of IC 24-5-26 (concerning identity theft), as
set forth in IC 24-5-26-3.
(35) A violation of IC 24-5.5 (concerning mortgage rescue
fraud), as set forth in IC 24-5.5-6-1.
(36) A violation of IC 24-8 (concerning promotional gifts and
contests), as set forth in IC 24-8-6-3.
(b) Any representations on or within a product or its packaging or
in advertising or promotional materials which would constitute a
deceptive act shall be the deceptive act both of the supplier who places
such representation thereon or therein, or who authored such materials,
and such other suppliers who shall state orally or in writing that such
representation is true if such other supplier shall know or have reason
to know that such representation was false.
(c) If a supplier shows by a preponderance of the evidence that an
act resulted from a bona fide error notwithstanding the maintenance of
procedures reasonably adopted to avoid the error, such act shall not be
deceptive within the meaning of this chapter.
(d) It shall be a defense to any action brought under this chapter that
the representation constituting an alleged deceptive act was one made
in good faith by the supplier without knowledge of its falsity and in
reliance upon the oral or written representations of the manufacturer,
the person from whom the supplier acquired the product, any testing
organization, or any other person provided that the source thereof is
disclosed to the consumer.
(e) For purposes of subsection (a)(12), a supplier that provides
estimates before performing repair or replacement work for a customer
shall give the customer a written estimate itemizing as closely as
possible the price for labor and parts necessary for the specific job
before commencing the work.
(f) For purposes of subsection (a)(15) and (a)(16), a telephone
company or other provider of a telephone directory or directory
assistance service or its officer or agent is immune from liability for
publishing the listing of a fictitious business name or assumed business
name of a supplier in its directory or directory assistance database
unless the telephone company or other provider of a telephone
directory or directory assistance service is the same person as the
supplier who has committed the deceptive act.
(g) For purposes of subsection (a)(18), it is an affirmative defense
to any action brought under this chapter that the product has been
altered by a person other than the defendant to render the product
completely incapable of serving its original purpose.
(1) three (3) times the actual damages of the consumer suffering the loss; or
(2) one thousand dollars ($1,000).
Except as provided in subsection (j), the court may award reasonable attorney fees to the party that prevails in an action under this subsection. This subsection does not apply to a consumer transaction in real property, including a claim or action involving a construction defect (as defined in IC 32-27-3-1(5)) brought against a construction professional (as defined in IC 32-27-3-1(4)), except for purchases of time shares and camping club memberships. This subsection does not apply with respect to a deceptive act described in section 3(a)(20) of this chapter. This subsection also does not apply to a violation of IC 24-4.7, IC 24-5-12, or IC 24-5-14. Actual damages awarded to a person under this section have priority over any civil penalty imposed under this chapter.
(b) Any person who is entitled to bring an action under subsection (a) on the person's own behalf against a supplier for damages for a deceptive act may bring a class action against such supplier on behalf of any class of persons of which that person is a member and which has been damaged by such deceptive act, subject to and under the Indiana Rules of Trial Procedure governing class actions, except as herein expressly provided. Except as provided in subsection (j), the court may award reasonable attorney fees to the party that prevails in a class action under this subsection, provided that such fee shall be determined by the amount of time reasonably expended by the attorney and not by the amount of the judgment, although the contingency of the fee may be considered. Any money or other property recovered in a class action
under this subsection which cannot, with due diligence, be restored to
consumers within one (1) year after the judgment becomes final shall
be returned to the party depositing the same. This subsection does not
apply to a consumer transaction in real property, except for purchases
of time shares and camping club memberships. This subsection does
not apply with respect to a deceptive act described in section
3(a)(20) of this chapter. Actual damages awarded to a class have
priority over any civil penalty imposed under this chapter.
(c) The attorney general may bring an action to enjoin a deceptive
act, including a deceptive act described in section 3(a)(20) of this
chapter, notwithstanding subsections (a) and (b). However, the
attorney general may seek to enjoin patterns of incurable deceptive acts
with respect to consumer transactions in real property. In addition, the
court may:
(1) issue an injunction;
(2) order the supplier to make payment of the money unlawfully
received from the aggrieved consumers to be held in escrow for
distribution to aggrieved consumers;
(3) order the supplier to pay to the state the reasonable costs of
the attorney general's investigation and prosecution related to the
action; and
(4) provide for the appointment of a receiver.
(d) In an action under subsection (a), (b), or (c), the court may void
or limit the application of contracts or clauses resulting from deceptive
acts and order restitution to be paid to aggrieved consumers.
(e) In any action under subsection (a) or (b), upon the filing of the
complaint or on the appearance of any defendant, claimant, or any
other party, or at any later time, the trial court, the supreme court, or the
court of appeals may require the plaintiff, defendant, claimant, or any
other party or parties to give security, or additional security, in such
sum as the court shall direct to pay all costs, expenses, and
disbursements that shall be awarded against that party or which that
party may be directed to pay by any interlocutory order by the final
judgment or on appeal.
(f) Any person who violates the terms of an injunction issued under
subsection (c) shall forfeit and pay to the state a civil penalty of not
more than fifteen thousand dollars ($15,000) per violation. For the
purposes of this section, the court issuing an injunction shall retain
jurisdiction, the cause shall be continued, and the attorney general
acting in the name of the state may petition for recovery of civil
penalties. Whenever the court determines that an injunction issued
under subsection (c) has been violated, the court shall award
reasonable costs to the state.
(g) If a court finds any person has knowingly violated section 3 or
10 of this chapter, other than section 3(a)(19) of this chapter, the
attorney general, in an action pursuant to subsection (c), may recover
from the person on behalf of the state a civil penalty of a fine not
exceeding five thousand dollars ($5,000) per violation.
(h) If a court finds that a person has violated section 3(a)(19) of this
chapter, the attorney general, in an action under subsection (c), may
recover from the person on behalf of the state a civil penalty as follows:
(1) For a knowing or intentional violation, one thousand five
hundred dollars ($1,500).
(2) For a violation other than a knowing or intentional violation,
five hundred dollars ($500).
A civil penalty recovered under this subsection shall be deposited in
the consumer protection division telephone solicitation fund
established by IC 24-4.7-3-6 to be used for the administration and
enforcement of section 3(a)(19) of this chapter.
(i) An elderly person relying upon an uncured or incurable
deceptive act, including an act related to hypnotism, may bring an
action to recover treble damages, if appropriate.
(j) An offer to cure is:
(1) not admissible as evidence in a proceeding initiated under this
section unless the offer to cure is delivered by a supplier to the
consumer or a representative of the consumer before the supplier
files the supplier's initial response to a complaint; and
(2) only admissible as evidence in a proceeding initiated under
this section to prove that a supplier is not liable for attorney's fees
under subsection (k).
If the offer to cure is timely delivered by the supplier, the supplier may
submit the offer to cure as evidence to prove in the proceeding in
accordance with the Indiana Rules of Trial Procedure that the supplier
made an offer to cure.
(k) A supplier may not be held liable for the attorney's fees and
court costs of the consumer that are incurred following the timely
delivery of an offer to cure as described in subsection (j) unless the
actual damages awarded, not including attorney's fees and costs, exceed
the value of the offer to cure.
IC 24-9-3-7(b)), in which a person at the time of the transaction
knowingly or intentionally:
(1) makes a material misrepresentation; or
(2) conceals material information regarding the terms or
conditions of the transaction.
(b) For purposes of this section, "knowingly" means having actual
knowledge at the time of the transaction.
(1)
(A) is:
(i) a first lien purchase money mortgage transaction; or
(2) A real estate transaction (as defined in IC 24-9-3-7(b)) that:
(A) does not involve a mortgage transaction described in subdivision (1);
(B) is closed by a closing agent (as defined in IC 6-1.1-12-43(a)(2)) after December 31, 2011.
(b) For purposes of this subsection, a person described in this subsection is involved in a transaction to which this section applies if the person participates in or assists with, or will participate in or assist with, a transaction to which this section applies.
(1) In the case of a transaction described in subsection (a)(1), the name and license number (under IC 23-2-5) of each loan brokerage business involved in the transaction.
(2) In the case of a transaction described in subsection (a)(1), the name and license or registration number of any mortgage loan originator who is:
(A) either licensed or registered under state or federal law as a mortgage loan originator consistent with the Secure and Fair Enforcement for Mortgage Licensing Act of 2008 (H.R. 3221
Title V); and
(B) involved in the transaction.
(3) The name and license number (under IC 25-34.1) of each:
(A) principal broker; and
(B) salesperson or broker-salesperson, if any;
involved in the transaction.
(4) The following information:
(A) The:
(i) name of; and
(B) (ii) code assigned by the National Association of
Insurance Commissioners (NAIC) to;
each title insurance underwriter involved in the transaction.
(B) The type of title insurance policy issued in connection
with the transaction.
(5) The name and license number (under IC 27-1-15.6) of each
title insurance agency and agent involved in the transaction as a
closing agent (as defined in IC 6-1.1-12-43(a)(2)).
(6) The following information:
(A) The name and:
(A) (i) license or certificate number (under IC 25-34.1-3-8)
of each licensed or certified real estate appraiser; or
(B) (ii) license number (under IC 25-34.1) of each broker;
who appraises the property that is the subject of the
transaction.
(B) The appraised value of the property that is the subject
of the transaction, as determined as part of any appraisal
(as defined in IC 24-5-23.5-1) prepared in connection with
the transaction.
(C) The name and registration number (under
IC 25-34.1-11-10) of any appraisal management company
that performs appraisal management services (as defined
in IC 25-34.1-11-3) in connection with the transaction.
(7) In the case of a transaction described in subsection (a)(1),
the name of the mortgagee creditor and, if the mortgagee
creditor is required to be licensed under IC 24-4.4, the license
number of the mortgagee. creditor.
(8) In the case of a first lien purchase money mortgage transaction
described in subsection (a)(1)(A)(i) or (a)(2), the name of the
seller of the property that is the subject of the transaction.
(9) In the case of a first lien purchase money mortgage transaction
described in subsection (a)(1)(A)(i), the following information:
(A) The name of the buyer of the property that is the subject of
the transaction.
(B) The purchase price of the property that is the subject
of the transaction.
(C) The loan amount of the mortgage transaction.
(10) In the case of a transaction described in subsection (a)(2),
the following information:
(A) The name of the buyer of the property that is the
subject of the transaction.
(B) The purchase price of the property that is the subject
of the transaction.
(11) In the case of a transaction described in subsection
(a)(1)(A)(ii), the following information:
(A) The name of the borrower in the mortgage transaction.
(B) The loan amount of the refinancing.
(10) (12) The:
(A) name; and
(B) license number, certificate number, registration number,
or other code, as appropriate;
of any other person that participates in or assists with is involved
in a transaction to which this section applies, as the department
may prescribe.
(c) The system established by the department under this section
must include a form that:
(1) is uniformly accessible in an electronic format to the closing
agent (as defined in IC 6-1.1-12-43(a)(2)) in the transaction; and
(2) allows the closing agent to do the following:
(A) Input information identifying the property that is the
subject of the transaction by lot or parcel number, street
address, or some other means of identification that the
department determines:
(i) is sufficient to identify the property; and
(ii) is determinable by the closing agent.
(B) Subject to subsection (d) and to the extent determinable,
input the applicable information described in subsection (b).
with respect to each person described in subsection (b) that
participates in or assists with the transaction.
(C) Respond to the following questions, if applicable:
(i) "On what date did you receive the closing instructions
from the creditor in the transaction?".
(ii) "On what date did the transaction close?".
(D) Submit the form electronically to a data base maintained
by the department.
(d) Not later than the time of the closing, each person described in subsection (b), other than a person described in subsection (b)(8),
(1) legal name; and
(2) license number, certificate number, registration number, or NAIC code, as appropriate;
to allow the closing agent to comply with subsection (c)(2)(B).
(e) Except for a person described in subsection (b)(8),
(1) may be enforced by the state agency that has administrative jurisdiction over the person in the same manner that the agency enforces the payment of fees or other penalties payable to the agency; and
(2) shall be paid into the home ownership education account established by IC 5-20-1-27.
(f) Subject to subsection (g), the department shall make the information stored in the data base described in subsection (c)(2)(D) accessible to:
(1) each entity described in IC 4-6-12-4; and
(2) the homeowner protection unit established under IC 4-6-12-2.
(g) The department, a closing agent who submits a form under subsection (c), each entity described in IC 4-6-12-4, and the homeowner protection unit established under IC 4-6-12-2 shall exercise all necessary caution to avoid disclosure of any information:
(1) concerning a person described in subsection (b), including the person's license, registration, or certificate number; and
(2) contained in the data base described in subsection (c)(2)(D);
except to the extent required or authorized by state or federal law.
(h) The department may adopt rules under IC 4-22-2, including emergency rules under IC 4-22-2-37.1, to implement this section. Rules adopted by the department under this subsection may establish procedures for the department to:
(1) establish;
(2) collect; and
(3) change as necessary;
an administrative fee to cover the department's expenses in establishing and maintaining the electronic system required by this section.
(i) If the department adopts a rule under IC 4-22-2 to establish an administrative fee to cover the department's expenses in establishing and maintaining the electronic system required by this section, as allowed under subsection (h), the department may:
(1) require the fee to be paid:
(A) to the closing agent responsible for inputting the information and submitting the form described in subsection (c)(2); and
(B) by the borrower, the seller, or the buyer in the transaction;
(2) allow the closing agent described in subdivision (1)(A) to retain a part of the fee collected to cover the closing agent's costs in inputting the information and submitting the form described in subsection (c)(2); and
(3) require the closing agent to pay the remainder of the fee collected to the department for deposit in the title insurance enforcement fund established by IC 27-7-3.6-1, for the department's use in establishing and maintaining the electronic system required by this section.
(b) Not later than September 1, 2011, the department shall adopt emergency rules under IC 4-22-2-37.1 to:
(1) update the electronic system established by the department under IC 27-7-3-15.5, before its amendment by this act, in order to enable the storage and collection of the information set forth in IC 27-7-3-15.5(b), as amended by this act; and
(2) otherwise implement IC 27-7-3-15.5, as amended by this act.
(c) An emergency rule adopted under this SECTION expires on the date the rule is adopted by the department under IC 4-22-2-24 through IC 4-22-2-36.
(d) This SECTION expires January 1, 2013.