SB 492-3_ Filed 04/14/2009, 07:41 Bardon
Adopted 4/14/2009


Text Box


    PREVAILED      Roll Call No. _______
    FAILED        Ayes _______
    WITHDRAWN        Noes _______
    RULED OUT OF ORDER


[

HOUSE MOTION ____

]

MR. SPEAKER:

    I move that Engrossed Senate Bill 492 be amended to read as follows:

SOURCE: Page 3, line 18; (09)MO049213.3. -->     Page 3, line 18, delete "IC 32-30-10.5-9(a)," and insert " IC 32-30-10.5-8(a),".
    Page 3, line 42, delete "IC 24-9-3-7(c)(3)" and insert " IC 24-9-3-7(c)(3),".
    Page 4, line 1, delete "and IC 24-9-3-7(c)(4)," and insert " IC 24-9-3-7(c)(4), and IC 24-9-3-7(c)(5),".
    Page 4, delete lines 22 through 42, begin a new paragraph and insert:
SOURCE: IC 24-9-3-7; (09)MO049213.6. -->     "SECTION 6. IC 24-9-3-7, AS AMENDED BY P.L.141-2005, SECTION 5, IS AMENDED TO READ AS FOLLOWS [EFFECTIVE JULY 1, 2009]: Sec. 7. (a) As used in this section, "mortgage transaction" includes the following:
        (1) A home loan subject to this article.
        (2) A loan described in IC 24-9-1-1 that is secured by a mortgage or deed of trust on real estate in Indiana on which there is located or will be located a structure or structures:
            (A) designed primarily for occupancy of one (1) to four (4) families; and
            (B) that is or will be occupied by a borrower as the borrower's principal dwelling.
        (3) A first lien mortgage transaction (as defined in IC 24-4.4-1-301) subject to IC 24-4.4.
        (4) A consumer credit sale subject to IC 24-4.5-2 in which a mortgage, deed of trust, or land contract that constitutes a

lien is created or retained against land upon which there is a dwelling that is or will be used by the debtor primarily for personal, family, or household purposes.
        (5) A consumer credit loan subject to IC 24-4.5-3 in which a mortgage, deed of trust, or land contract that constitutes a lien is created or retained against land upon which there is a dwelling that is or will be used by the debtor primarily for personal, family, or household purposes.
        (6) A loan in which a mortgage,
deed of trust, or land contract that constitutes a lien is created or retained against land:
            (A) that is located in Indiana;
            (B) upon which there is a dwelling that is not or will not be used by the borrower primarily for personal, family, or household purposes; and
            (C) that is classified as residential for property tax purposes.

         The term includes a loan that is secured by land in Indiana upon which there is a dwelling that is purchased by or through the borrower for investment or other business purposes.
        (7) A reverse mortgage transaction that is secured by real estate in Indiana on which there is located a structure that is occupied by a borrower as the borrower's principal dwelling.
    (b) As used in this section, "real estate transaction" means the sale or lease of any legal or equitable interest in real estate:
        (1) that is located in Indiana;
        (2) upon which there is a dwelling; and
        (3) that is classified as residential for property tax purposes.
    (c)
A person may not:
        (1) divide a loan transaction into separate parts with the intent of evading a provision of this article;
        (2) structure a home loan transaction as an open-end loan with the intent of evading the provisions of this article if the loan would be a high cost home loan if the home loan had been structured as a closed-end loan; or
        (3) engage in, a deceptive act in connection with a: (A) home loan; or (B) loan described in IC 24-9-1-1;
        (4) solicit to engage in a real estate transaction or a mortgage transaction without a permit or license required by law; or
        (5) with respect to a real estate transaction or a mortgage transaction, represent that:
            (A) the transaction has:
                (i) certain terms or conditions; or
                (ii) the sponsorship or approval of a particular person or entity;
            that it does not have and that the person knows or reasonably should know it does not have; or


            (B) the real estate or property that is the subject of the transaction has any improvements, appurtenances, uses, characteristics, or associated benefits that it does not have and that the person knows or reasonably should know it does not have.".
    Delete page 5.
SOURCE: Page 6, line 1; (09)MO049213.6. -->     Page 6, delete lines 1 through 5, begin a new paragraph and insert:
SOURCE: IC 24-9-5-4; (09)MO049213.7. -->     "SECTION 7. IC 24-9-5-4, AS AMENDED BY P.L.3-2005, SECTION 1, IS AMENDED TO READ AS FOLLOWS [EFFECTIVE JULY 1, 2009]: Sec. 4. (a) This section does not apply to a violation of IC 24-9-3-7(c)(4) or IC 24-9-3-7(c)(5). A person who violates this article is liable to a person who is a party to the home loan transaction that gave rise to the violation for the following:
        (1) Actual damages, including consequential damages. A person is not required to demonstrate reliance in order to receive actual damages.
        (2) Statutory damages equal to two (2) times the finance charges agreed to in the home loan agreement.
        (3) Costs and reasonable attorney's fees.
    (b) A person may be granted injunctive, declaratory, and other equitable relief as the court determines appropriate in an action to enforce compliance with this chapter.
    (c) The right of rescission granted under 15 U.S.C. 1601 et seq. for a violation of the federal Truth in Lending Act (15 U.S.C. 1601 et seq.) is available to a person acting only in an individual capacity by way of recoupment as a defense against a party foreclosing on a home loan at any time during the term of the loan. Any recoupment claim asserted under this provision is limited to the amount required to reduce or extinguish the person's liability under the home loan plus amounts required to recover costs, including reasonable attorney's fees. This article shall not be construed to limit the recoupment rights available to a person under any other law.
    (d) The remedies provided in this section are cumulative but are not intended to be the exclusive remedies available to a person. Except as provided in subsection (e), a person is not required to exhaust any administrative remedies under this article or under any other applicable law.
    (e) Before bringing an action regarding an alleged deceptive act under this chapter, a person must:
        (1) notify the homeowner protection unit established by IC 4-6-12-2 of the alleged violation giving rise to the action; and
        (2) allow the homeowner protection unit at least ninety (90) days to institute appropriate administrative and civil action to redress a violation.
    (f) An action under this chapter must be brought within five (5) years after the date that the person knew, or by the exercise of

reasonable diligence should have known, of the violation of this article.
    (g) An award of damages under subsection (a) has priority over a civil penalty imposed under this article.

SOURCE: IC 24-9-8-1; (09)MO049213.8. -->     SECTION 8. IC 24-9-8-1 IS AMENDED TO READ AS FOLLOWS [EFFECTIVE JULY 1, 2009]: Sec. 1. A person who knowingly or intentionally violates this article commits:
        (1) a Class A misdemeanor; and
        (2) except for a violation of IC 24-9-7-3(c)(4) by a person required to be licensed by the department of financial institutions, an act that is actionable by the attorney general under IC 24-5-0.5 and is subject to the penalties listed in IC 24-5-0.5.
SOURCE: IC 24-9-8-3; (09)MO049213.9. -->     SECTION 9. IC 24-9-8-3 IS AMENDED TO READ AS FOLLOWS [EFFECTIVE JULY 1, 2009]: Sec. 3. (a) This section does not apply to a violation of IC 24-9-7-3(c)(4) by a person required to be licensed by the department of financial institutions. The attorney general may bring an action to enjoin a violation of this article. A court in which the action is brought may:
        (1) issue an injunction;
        (2) order a person to make restitution;
        (3) order a person to reimburse the state for reasonable costs of the attorney general's investigation and prosecution of the violation of this article; and
        (4) impose a civil penalty of not more than ten thousand dollars ($10,000) per violation.
    (b) A person who violates an injunction under this section is subject to a civil penalty of not more than ten thousand dollars ($10,000) per violation.
    (c) The court that issues an injunction retains jurisdiction over a proceeding seeking the imposition of a civil penalty under this section.".
SOURCE: Page 10, line 27; (09)MO049213.10. -->     Page 10, line 27, after "10." insert " (a)".
    Page 10, line 30, after "(2)" insert " except as provided in subsection (b)".
    Page 10, between lines 35 and 36, begin a new paragraph and insert:
    " (b) The sheriff is not required to record the deed of conveyance for the premises under subsection (a)(2) if the mortgage involved in the foreclosure action resulting in the foreclosure sale under this chapter was insured by the United States Department of Housing and Urban Development.".
    Page 11, line 13, delete "IC 32-30-10.5-9(a)" and insert " IC 32-30-10.5-8(a)".
    Page 13, delete lines 8 through 10.
    Page 13, line 11, delete "9." and insert " 8.".
    Page 13, line 13, delete "11(g)" and insert " 10(g)".
    Page 13, line 33, delete "11(h)" and insert " 10(h)".
    Page 14, line 20, delete "10." and insert " 9.".
    Page 14, line 24, delete "9(c)" and insert " 8(c)".
    Page 14, line 27, delete "9(c)" and insert " 8(c)".
    Page 14, line 28, delete "9(c)" and insert " 8(c)".
    Page 14, line 31, delete "9(c)" and insert " 8(c)".
    Page 14, line 32, delete "9(c)" and insert " 8(c)".
    Page 14, line 37, delete "9(a)" and insert " 8(a)".
    Page 14, line 39, delete "11." and insert " 10.".
    Page 14, line 42, delete "9(c)" and insert " 8(c)".
    Page 17, line 5, before "If" insert " If the settlement conference held under this section results in an outcome described in subdivision (2) and the continuing negotiations described in subdivision (2) are later concluded without the debtor and creditor being able to agree on the terms of a foreclosure prevention agreement, the creditor shall file with the court a notice indicating that a foreclosure prevention agreement was not reached.".
    Page 17, line 6, after "(1)," insert " or if continuing negotiations described in subdivision (2) are later concluded without the debtor and creditor being able to agree on the terms of a foreclosure prevention agreement,".
    Page 17, line 14, delete "9" and insert " 8".
    Page 17, line 19, delete "12." and insert " 11.".
    Page 17, line 27, delete "9(c)" and insert " 8(c)".
    Renumber all SECTIONS consecutively.
    (Reference is to ESB 492 as printed April 10, 2009.)

________________________________________

Representative Bardon


MO049213/DI 101     2009