SB 492-1_ Filed 02/12/2009, 11:11
Adopted 2/12/2009
COMMITTEE REPORT
MADAM PRESIDENT:
The Senate Committee on Judiciary, to which was referred Senate Bill No. 492, has had the
same under consideration and begs leave to report the same back to the Senate with the
recommendation that said bill be AMENDED as follows:
SOURCE: Page 1, line 3; (09)CR049201.1. -->
Page 1, line 3, delete "IC 24-5.5-3-1," and insert " IC 24-5.5-3,".
Page 2, between lines 26 and 27, begin a new paragraph and insert:
SOURCE: IC 24-5.5-5-7; (09)CR049201.3. -->
"SECTION 3. IC 24-5.5-5-7 IS ADDED TO THE INDIANA CODE
AS A NEW SECTION TO READ AS FOLLOWS [EFFECTIVE JULY
1, 2009]: Sec. 7. A foreclosure consultant shall retain all records
and documents related to services performed on behalf of a
homeowner for at least three (3) years after the termination or
conclusion of a contract with the homeowner.
SOURCE: IC 24-9-2-12.5; (09)CR049201.4. -->
SECTION 4. IC 24-9-2-12.5 IS ADDED TO THE INDIANA CODE
AS A NEW SECTION TO READ AS FOLLOWS [EFFECTIVE JULY
1, 2009]: Sec. 12.5. "Real estate transaction" has the meaning set
forth in IC 25-34.1-10-8.
SOURCE: IC 24-9-3-7; (09)CR049201.5. -->
SECTION 5. 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 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.
(3) engage or solicit to engage in a real estate transaction or
a consumer credit mortgage transaction without a permit or
license required by law; or
(4) represent that a real estate transaction or a consumer
credit mortgage transaction has sponsorship, approval,
performance, characteristics, accessories, uses, or benefits
that:
(A) the real estate transaction or consumer credit
mortgage does not have; and
(B) the person knows or reasonably should know the real
estate transaction or consumer credit mortgage does not
have.
SOURCE: IC 25-1-11-17; (09)CR049201.6. -->
SECTION 6. IC 25-1-11-17 IS AMENDED TO READ AS
FOLLOWS [EFFECTIVE JULY 1, 2009]: Sec. 17. A practitioner may
petition the board to accept the surrender of the practitioner's license
instead of having a hearing before the board. The practitioner may not
surrender the practitioner's license without the written approval of the
board, and the board may impose any conditions appropriate to the
surrender or reinstatement of a surrendered license. The board may
not accept the surrender of a practitioner's license if the office of
attorney general:
(1) has filed an administrative complaint concerning the
practitioner's license; and
(2) opposes the surrender of the license.
SOURCE: IC 25-1-11-18; (09)CR049201.7. -->
SECTION 7. IC 25-1-11-18, AS AMENDED BY P.L.194-2005,
SECTION 8, IS AMENDED TO READ AS FOLLOWS [EFFECTIVE
JULY 1, 2009]: Sec. 18. A practitioner who has been subjected to
disciplinary sanctions may be required by a board to pay the costs of
the proceeding. The practitioner's ability to pay shall be considered
when costs are assessed. If the practitioner fails to pay the costs, a
suspension may not be imposed solely upon the practitioner's inability
to pay the amount assessed. These costs are limited to costs for the
following:
(1) Court reporters.
(2) Transcripts.
(3) Certification of documents.
(4) Photo duplication.
(5) Witness attendance and mileage fees.
(6) Postage.
(7) Expert witnesses.
(8) Depositions.
(9) Notarizations.
(10) Administrative law judges.
(11) Real estate appraisals.
SOURCE: IC 25-34.1-6-2; (09)CR049201.8. -->
SECTION 8. IC 25-34.1-6-2 IS AMENDED TO READ AS
FOLLOWS [EFFECTIVE JULY 1, 2009]: Sec. 2. (a) A person who:
(1) performs the acts of a salesperson without a salesperson
license;
(2) performs the acts of a broker without a broker license; or
(3) conducts, or solicits or accepts enrollment of students for, a
course as prescribed in IC 25-34.1-3 without course approval;
commits a Class A infraction. Upon conviction for an offense under
this section, the court shall add to any fine imposed, the amount of any
fee or other compensation earned in the commission of the offense.
Each transaction constitutes a separate offense.
(b) In all actions for the collection of a fee or other compensation for
performing acts regulated by this article, it must be alleged and proved
that, at the time the cause of action arose, the party seeking relief was
not in violation of this section.
(c) The commission may issue a cease and desist order to prevent
violations of this section.
(1) If the commission determines that a person is violating this
section, or is believed to be violating this section, the commission
may issue an order to that person setting forth the time and place
for a hearing at which the affected person may appear and show
cause as to why the challenged activities are not in violation of
this section.
(2) After an opportunity for hearing, if the commission determines
that the person is violating this section, the commission shall
issue a cease and desist order which shall describe the person and
activities which are the subject of the order.
(3) A cease and desist order issued under this section is
enforceable in the circuit courts of this state.
(d) The attorney general, the commission, or the prosecuting
attorney of any county in which a violation occurs may maintain an
action in the name of the state to enjoin a person from violating this
section.
(e) In charging any person in a complaint for an injunction or in
affidavit, information, or indictment with the violation of the provisions
of this section, it is sufficient, without averring any further or more
particular facts, to charge that the person upon a certain day and in a
certain county either acted as a real estate broker or salesperson not
having a license or conducted, or solicited or accepted enrollment of
students for, a broker or salesperson course without course approval.
(f) A licensee who violates IC 24-5-15 or IC 24-5.5 may be
disciplined under IC 25-1-11 and this section.
(f) (g) Each enforcement procedure established in this section is
supplemental to other enforcement procedures established in this
section.".
SOURCE: Page 5, line 22; (09)CR049201.5. -->
Page 5, line 22, delete "will" and insert " may".
Page 5, delete lines 25 through 39.
Page 5, line 40, delete "(7)" and insert " (3)".
Page 5, line 40, delete "necessary and".
Page 6, delete lines 2 through 14.
Page 6, line 34, delete ":".
Page 6, delete lines 35 through 39.
Page 6, line 40, delete "(B)".
Page 6, run in lines 34 through 40.
Page 6, line 41, delete "(i)" begin a new line double block indented
and insert:
" (A)".
Page 7, line 1, delete "(ii)" begin a new line double block indented
and insert:
" (B)".
Page 7, line 2, delete "(iii)" begin a new line double block indented
and insert:
" (C)".
Page 7, line 4, delete "(iv)" begin a new line double block indented
and insert:
" (D)".
Page 7, line 5, delete "(v)" begin a new line double block indented
and insert:
" (E)".
Page 7, line 6, delete "(vi)" begin a new line double block indented
and insert:
" (F)".
Page 7, line 8, delete "(vii)" begin a new line double block indented
and insert:
" (G)".
Page 7, delete lines 20 through 22.
Page 7, line 23, delete "Sec. 9." and insert " Sec. 8.".
Page 7, line 26, delete "written" and insert " presuit".
Page 7, line 26, delete "does the following:" and insert " informs the
debtor that the creditor intends to initiate a foreclosure and that
the debtor may obtain assistance from a foreclosure counselor and
that provides information on how to contact a housing counselor.".
Page 7, delete lines 27 through 42.
Page 8, delete lines 1 through 30.
Page 8, delete lines 36 through 42, begin a new paragraph and
insert:
" (c) If a creditor files an action to foreclose a mortgage, the
creditor shall include with the complaint served on the debtor a
notice of right to participate in a settlement conference. The notice
must inform the debtor that the debtor may schedule a settlement
conference by notifying the court of the debtor's intent to
participate in a settlement conference not later than thirty (30)
days after the complaint is served.".
Page 9, delete lines 1 through 39.
Page 9, line 40, delete "Sec. 10." and insert " Sec. 9.".
Page 9, line 40, delete "creditor may not proceed" and insert " court
may not issue a judgment of foreclosure under IC 32-30-10 on a
mortgage subject to this chapter".
Page 9, delete line 41.
Page 9, line 42, delete "by filing a complaint in a court having
jurisdiction".
Page 10, line 3, delete "9(a)" and insert " 8(c)".
Page 10, line 5, delete "creditor" and insert " court".
Page 10, line 6, delete "9(a)(4)" and insert " (8)(c)".
Page 10, line 7, after "a" insert " settlement".
Page 10, line 7, delete "offered by the debtor".
Page 10, line 8, delete "9(a)(2)" and insert " (8)(c)".
Page 10, line 9, delete "creditor" and insert " court".
Page 10, line 10, delete "9(a)(4)" and insert " (8)(c)".
Page 10, line 10, after "a" insert " settlement".
Page 10, line 11, delete "offered by the debtor".
Page 10, line 11, delete "9(a)(2)" and insert " (8)(c)".
Page 10, line 12, delete "such" and insert " the".
Page 10, delete lines 15 through 16.
Page 10, line 17, delete "subsection (a)," and insert
" IC 32-30-10-3,".
Page 10, line 19, delete "9(a)" and insert " (8)(a)".
Page 10, line 21, delete "under subsection (a)".
Page 10, line 22, delete ":".
Page 10, line 23, delete "(1)".
Page 10, line 23, delete "in the" and insert " if".
Page 10, run in lines 22 through 23.
Page 10, line 24, delete "case of a complaint filed under".
Page 10, line 24, delete "(a)(2)(A); or" and insert " (a)(2)(A)
applies.".
Page 10, delete lines 25 through 26.
Page 10, line 28, delete "(c)(1)" and insert " (c)".
Page 10, line 32, delete "9(a)" and insert " 8(c)".
Page 10, line 42, delete "9(a)" and insert " 8(c)".
Page 11, line 6, delete "such" and insert " the".
Page 11, delete lines 10 through 42.
Page 12, delete lines 1 through 6, begin a new paragraph, and insert:
" Sec. 10. (a) Unless a settlement conference is not required
under this chapter, the court shall issue a notice of a settlement
conference. The court's notice of a settlement conference must do
the following:".
Page 12, line 16, delete "and for any other mortgage" and insert " .".
Page 12, delete lines 17 through 18.
Page 12, line 33, delete "The transaction".
Page 12, delete lines 34 through 42.
Page 13, delete lines 1 through 4.
Page 13, line 7, after "or" insert " assisted by".
Page 13, delete lines 29 through 42.
Page 14, delete lines 1 through 6.
Page 14, line 7, delete "(e)" and insert " (b)".
Page 14, line 10, delete "(f)" and insert " (c)".
Page 14, line 11, delete "(c)(6)" and insert " (a)(6)".
Page 14, line 13, delete "(g)" and insert " (d)".
Page 14, line 15, delete "(c);" and insert " (a);".
Page 14, delete lines 22 through 28.
Page 14, line 29, delete "(i)" and insert " (e)".
Page 14, line 35, delete "and the reporting agency, on a".
Page 14, line 36, delete "form prescribed by the reporting agency,".
Page 14, delete lines 38 through 42, begin a new paragraph and
insert:
" Sec. 11. (a) This section applies to a mortgage foreclosure
action with respect to which the creditor has filed the complaint in
the proceeding before July 1, 2009, and the court having
jurisdiction over the proceeding has not rendered a judgment of
foreclosure before July 1, 2009.
(b) In a mortgage foreclosure action to which this section
applies, the court having jurisdiction of the action:
(1) shall serve notice of a settlement conference described in
section 10 of this chapter on the parties to the action not later
than August 1, 2009; and
(2) may not proceed to render a judgment of foreclosure in an
action described in subsection (a) unless, upon the conclusion
of a settlement conference described in this section, the parties
are unable to agree on the terms of a foreclosure prevention
agreement.
SOURCE: IC 32-30-12-1; (09)CR049201.8. -->
SECTION 8. IC 32-30-12-1 IS AMENDED TO READ AS
FOLLOWS [EFFECTIVE JULY 1, 2009]: Sec. 1.
Except as provided
in IC 32-30-10.5 for first lien mortgage transactions, it is not
necessary in any action upon a mortgage or lien to give time for:
(1) the payment of money; or
(2) performing any other act.
Final judgment may be given in the first instance.".
Delete page 15.
Renumber all SECTIONS consecutively.
(Reference is to SB 492 as introduced.)
and when so amended that said bill do pass.
Committee Vote: Yeas 8, Nays 2.
____________________________________
Bray
CR049201/DI 106 2009