MADAM PRESIDENT:
I move
that Senate Bill 390 be amended to read as follows:
Page 1, between the enacting clause and line 1, begin a new
paragraph and insert: SECTION 1. IC 24-5-0.5-3 IS AMENDED
TO READ AS FOLLOWS [EFFECTIVE JULY 1, 2007]: Sec. 3.
(a) The following acts or representations as to the subject matter
of a consumer transaction, made orally, in writing, or by
electronic communication, by a supplier, are deceptive acts:
(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) That the supplier violated IC 24-3-4 concerning
cigarettes for import or export.
(18) That a supplier knowingly sells or resells 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) That the supplier violated 47 U.S.C. 227, including
any rules or regulations issued under 47 U.S.C. 227.
(20) That a person knowingly or intentionally commits
mortgage fraud (as described in IC 24-5.5).
(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), 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.
Page 5, line 17, delete ".", insert " ; and"
Page 5, after line 17, begin a new paragraph indent and
insert: "(3) foreclosure purchaser complies with the security
requirements contained in IC 24-5-15-8."
(Reference is to SB 390 as printed February 20, 2007.)