or advisable for the more complete protection of the interests
of the public.
(3) Charge as costs of investigation or examination all reasonable expenses, including a per diem prorated upon the salary of the commissioner or employee and actual traveling and hotel expenses. All reasonable expenses are to be paid by the party or parties under investigation or examination if the party has violated this chapter.
(4) Issue notices and orders, including cease and desist notices and orders, after making an investigation or examination under subdivision (2).
The commissioner may also bring an action on
behalf of the state to enjoin a person from violating this chapter.
The commissioner shall notify the person that an order or notice
has been issued, the reasons for it, and that a hearing will be set
not later than fifteen (15) business days after the commissioner
receives a written request from the person requesting a hearing if
the original order issued by the commissioner was a summary
suspension, summary revocation, or denial of a license and not
later than forty-five (45) business days after the commissioner
receives a written request from the person requesting a hearing for
all other orders.
(5) Sign all orders, official certifications, documents, or papers issued under this chapter or delegate the authority to sign any of those items to a deputy.
(6) Hold and conduct hearings.
(7) Hear evidence.
(8) Conduct inquiries with or without hearings.
(9) Receive reports of investigators or other officers or employees of the state of Indiana or of any municipal corporation or governmental subdivision within the state.
(10) Administer oaths, or cause them to be administered.
(11) Subpoena witnesses, and compel them to attend and testify.
(12) Compel the production of books, records, and other documents.
(13) Order depositions to be taken of any witness residing within or without the state. The depositions shall be taken in the manner prescribed by law for depositions in civil actions and made returnable to the commissioner.
(14) Order that each witness appearing under the commissioner's order to testify before the commissioner shall receive the fees and mileage allowances provided for witnesses in civil cases.
(15) Provide interpretive opinions or issue determinations that the commissioner will not institute a proceeding or an action under this chapter against a specified person for engaging in a specified act, practice, or course of business if the determination is consistent with this chapter. The commissioner may adopt rules
to establish fees for individuals requesting an interpretive opinion
or a determination under this subdivision. A person may not
request an interpretive opinion or a determination concerning an
(A) occurred before; or
(B) is occurring on;
the date the opinion or determination is requested.
(16) Subject to subsection (f), designate a multistate automated licensing system and repository, established and operated by a third party, to serve as the sole entity responsible for:
(A) processing applications for:
(i) licenses under this chapter; and
(ii) renewals of licenses under this chapter; and
(B) performing other services that the commissioner determines are necessary for the orderly administration of the division's licensing system.
A multistate automated licensing system and repository described in this subdivision may include the Nationwide Mortgage Licensing System and Registry established by the Conference of State Bank Supervisors and the American Association of Residential Mortgage Regulators. The commissioner may take any action necessary to allow the division to participate in a multistate automated licensing system and repository.
(b) If a witness, in any hearing, inquiry, or investigation conducted under this chapter, refuses to answer any question or produce any item, the commissioner may file a written petition with the circuit or superior court in the county where the hearing, investigation, or inquiry in question is being conducted requesting a hearing on the refusal. The court shall hold a hearing to determine if the witness may refuse to answer the question or produce the item. If the court determines that the witness, based upon the witness's privilege against self-incrimination, may properly refuse to answer or produce an item, the commissioner may make a written request that the court grant use immunity to the witness. Upon written request of the commissioner, the court shall grant use immunity to a witness. The court shall instruct the witness, by written order or in open court, that:
(1) any evidence the witness gives, or evidence derived from that evidence, may not be used in any criminal proceedings against that witness, unless the evidence is volunteered by the witness or is not responsive to a question; and
(2) the witness must answer the questions asked and produce the items requested.
A grant of use immunity does not prohibit evidence that the witness gives in a hearing, investigation, or inquiry from being used in a prosecution for perjury under IC 35-44-2-1. If a witness refuses to give the evidence after the witness has been granted use immunity, the court
may find the witness in contempt.
(c) In any prosecution, action, suit, or proceeding based upon or arising out of this chapter, the commissioner may sign a certificate showing compliance or noncompliance with this chapter by any person. This shall constitute prima facie evidence of compliance or noncompliance with this chapter and shall be admissible in evidence in any action at law or in equity to enforce this chapter.
(1) a person disobeys any lawful:
(A) subpoena issued under this chapter; or
(B) order or demand requiring the production of any books, accounts, papers, records, documents, or other evidence or information as provided in this chapter; or
(2) a witness refuses to:
(A) appear when subpoenaed;
(B) testify to any matter about which the witness may be lawfully interrogated; or
(C) take or subscribe to any oath required by this chapter;
the circuit or superior court of the county in which the hearing, inquiry, or investigation in question is held, if demand is made or if, upon written petition, the production is ordered to be made, or the commissioner or a hearing officer appointed by the commissioner, shall compel compliance with the lawful requirements of the subpoena, order, or demand, compel the production of the necessary or required books, papers, records, documents, and other evidence and information, and compel any witness to attend in any Indiana county and to testify to any matter about which the witness may lawfully be interrogated, and to take or subscribe to any oath required.
(e) If a person fails, refuses, or neglects to comply with a court order under this section, the person shall be punished for contempt of court.
(f) The commissioner's authority to designate a multistate automated licensing system and repository under subsection (a)(16) is subject to the following:
(1) The commissioner may not require any person that is not required to be licensed under this chapter, or any employee or agent of a person that is not required to be licensed under this chapter, to:
(A) submit information to; or
(B) participate in;
the multistate automated licensing system and repository.
(2) The commissioner may require a person required under this chapter to submit information to the multistate automated licensing system and repository to pay a processing fee considered reasonable by the commissioner.
1, 2010]: Sec. 11.5. (a) If the commissioner believes that a person
has engaged, is engaging, or is about to engage in an act, practice,
or course of business constituting a violation of this chapter or a
rule adopted or order issued under this chapter or that a person
has, is, or is about to engage in an act, practice, or course of
business that materially aids a violation of this chapter or a rule
adopted or order issued under this chapter, the commissioner may
maintain an action in the circuit or superior court in the county
where the investigation or inquiry in question is being conducted
to enjoin the act, practice, or course of business and to enforce
compliance with this chapter or a rule adopted or order issued
under this chapter.
(b) In an action under this section and on a proper showing, the court may:
(1) issue a permanent or temporary injunction, restraining order, or declaratory judgment;
(2) order other appropriate or ancillary relief, which may include:
(A) an asset freeze, accounting, writ of attachment, writ of general or specific execution, and appointment of a receiver or conservator;
(B) ordering a receiver or conservator appointed under clause (A) to:
(i) take charge and control of a respondent's property, including investment accounts and accounts in a depository institution, rents, and profits;
(ii) collect debts; and
(iii) acquire and dispose of property;
(C) imposing a civil penalty of up to ten thousand dollars ($10,000) per violation and an order of rescission, restitution, or disgorgement directed to a person that has engaged in an act, practice, or course of business constituting a violation of this chapter or a rule adopted or order issued under this chapter; and
(D) ordering the payment of prejudgment and postjudgment interest; or
(3) order such other relief as the court considers appropriate.
(c) The commissioner may not be required to post a bond in an action or proceeding under this chapter.
(d) Penalties collected under this section shall be deposited in the securities division enforcement account created under IC 23-19-6-1(f).
corrupt or improperly influence the independent judgment of a
real estate appraiser with respect to the value of any real estate
offered as security for a residential mortgage loan, as prohibited
by section 9.1(d) of this chapter.
(10) Violate any of the following:
(A) The federal Truth in Lending Act (15 U.S.C. 1601 et seq.).
(B) The federal Real Estate Settlement Procedures Act (12 U.S.C. 2601 et seq.), as amended.
(C) The federal Equal Credit Opportunity Act (15 U.S.C. 1691 et seq.).
(D) Any other federal law or regulation concerning residential mortgage lending.
(b) A person who commits an act described in subsection (a) is subject to sections 10, 11.5, 14, 15, and 16 of this chapter.
noon on the forty-fifth day after the filing of any amendment
completing the application.
(d) (e) A registration is effective until midnight on December 31 of
the year for which the application for registration is filed. Unless an
order is in effect under section 12 of this chapter, a registration may be
automatically renewed each year by filing such records as are required
by rule adopted or order issued under this article, by paying the fee
specified in section 10 of this chapter, and by paying costs charged by
the designee of the commissioner for processing the filings.
(e) (f) A rule adopted or order issued under this article may impose
other conditions, not inconsistent with the National Securities Markets
Improvement Act of 1996. An order issued under this article may
waive, in whole or in part, specific requirements in connection with
registration as are in the public interest and for the protection of
initiatives, the commissioner may collaborate with public and nonprofit
organizations with an interest in investor education. The commissioner
may accept a grant or donation from a person that is not affiliated with
the securities industry or from a nonprofit organization, regardless of
whether the organization is affiliated with the securities industry, to
develop and implement investor education initiatives. This subsection
does not authorize the commissioner to require participation or
monetary contributions of a registrant in an investor education
(f) Fees and funds of whatever character accruing from the administration of this article shall be accounted for by the secretary of state and shall be deposited with the treasurer of state to be deposited by the treasurer of the state in either the state general fund or the enforcement account referenced below. Subject to IC 4-2-6-15, expenses incurred in the administration of this article shall be paid from the state general fund upon appropriation being made for the expenses in the manner provided by law for the making of those appropriations. However, grants and donations received under subsection (e), costs of investigations recovered under section 4(e) of this chapter, and civil penalties recovered under sections 3(b) and 4(d) of this chapter shall be deposited by the treasurer of state in a separate account to be known as the securities division enforcement account. Subject to IC 4-2-6-15, the funds in the enforcement account shall be available, with the approval of the budget agency:
(1) to augment and supplement the funds appropriated for the administration of this article; and
(2) for grants and awards to nonprofit entities for programs and activities that will further investor education and financial literacy in the state.
The funds in the enforcement account do not revert to the state general fund at the end of any state fiscal year.
(g) In connection with the administration and enforcement of this article, the attorney general shall render all necessary assistance to the commissioner upon the commissioner's request, and to that end, the attorney general shall employ legal and other professional services as are necessary to adequately and fully perform the service under the direction of the commissioner as the demands of the securities division shall require. Expenses incurred by the attorney general for the purposes stated in this subsection shall be chargeable against and paid out of funds appropriated to the attorney general for the administration of the attorney general's office. The attorney general may authorize the commissioner and the commissioner's designee to represent the commissioner and the securities division in any proceeding involving enforcement or defense of this article.
(h) Neither the secretary of state, the commissioner, nor an employee of the securities division shall be liable in their individual
capacity, except to the state, for an act done or omitted in connection
with the performance of their respective duties under this article.
(i) The commissioner shall take, prescribe, and file the oath of office prescribed by law. The commissioner, chief deputy commissioner, and each attorney or investigator designated by the commissioner are police officers of the state and shall have all the powers and duties of police officers in making arrests for violations of this article, or in serving any process, notice, or order connected with the enforcement of this article by whatever officer, authority, or court issued and shall comprise the enforcement department of the division and are considered a criminal justice agency for purposes of IC 5-2-4 and IC 10-13-3.
(j) The provisions of this article delegating and granting power to the secretary of state, the securities division, and the commissioner shall be liberally construed to the end that:
(1) the practice or commission of fraud may be prohibited and prevented;
(2) disclosure of sufficient and reliable information in order to afford reasonable opportunity for the exercise of independent judgment of the persons involved may be assured; and
(3) the qualifications may be prescribed to assure availability of reliable broker-dealers, investment advisers, and agents engaged in and in connection with the issuance, barter, sale, purchase, transfer, or disposition of securities in this state.
It is the intent and purpose of this article to delegate and grant to and vest in the secretary of state, the securities division, and the commissioner full and complete power to carry into effect and accomplish the purpose of this article and to charge them with full and complete responsibility for its effective administration.
(k) Copies of any statement and documents filed in the office of the secretary of state and of any records of the secretary of state certified by the commissioner shall be admissible in any prosecution, action, suit, or proceeding based upon, arising out of, or under this article to the same effect as the original of such statement, document, or record would be if actually produced.
(l) IC 4-21.5 is not applicable to any of the proceedings under this article.
discretion of the commissioner. However, a payment may not be
made under this section to an employee of the securities division.
A determination under this section is final and is not subject to
Renumber all SECTIONS consecutively.
(Reference is to HB 1332 as printed January 29, 2010.)