Citations Affected: IC 5-14; IC 5-20; IC 32-30; IC 33-37.
January 20, 2011, read first time and referred to Committee on Judiciary.
February 14, 2011, amended, reported favorably _ Do Pass.
February 15, 2011, read second time, amended, ordered engrossed.
for the parties by the clerk of the court or in an attorney trust account; and (2) may be disbursed only upon order of the court. Provides that any payments held shall be credited: (1) to the debtor if the parties subsequently enter into a foreclosure prevention agreement; or (2) against the amount of the judgment entered or the amount owed if a judgment of foreclosure is subsequently entered. In a residential foreclosure action, provides that a court may impose sanctions, including a civil penalty, on any party for a violation of: (1) the statute concerning foreclosure prevention agreements for residential mortgages; or (2) a court order or rule relating to an action subject to the statute. Provides that any civil penalties collected shall be deposited in the home ownership education account to support programs conducted by specified entities to facilitate settlement conferences in residential foreclosure actions. Makes conforming changes.
A BILL FOR AN ACT to amend the Indiana Code concerning
Indiana state department of agriculture, the Indiana finance
authority, an economic development commission, a local
economic development organization (as defined in
IC 5-28-11-2(3)), or a governing body of a political
subdivision with industrial, research, or commercial prospects,
if the records are created while negotiations are in progress.
(B) Notwithstanding clause (A), the terms of the final offer of public financial resources communicated by the Indiana economic development corporation, the ports of Indiana, the Indiana finance authority, an economic development commission, or a governing body of a political subdivision to an industrial, a research, or a commercial prospect shall be available for inspection and copying under section 3 of this chapter after negotiations with that prospect have terminated.
(C) When disclosing a final offer under clause (B), the Indiana economic development corporation shall certify that the information being disclosed accurately and completely represents the terms of the final offer.
(6) Records that are intra-agency or interagency advisory or deliberative material, including material developed by a private contractor under a contract with a public agency, that are expressions of opinion or are of a speculative nature, and that are communicated for the purpose of decision making.
(7) Diaries, journals, or other personal notes serving as the functional equivalent of a diary or journal.
(8) Personnel files of public employees and files of applicants for public employment, except for:
(A) the name, compensation, job title, business address, business telephone number, job description, education and training background, previous work experience, or dates of first and last employment of present or former officers or employees of the agency;
(B) information relating to the status of any formal charges against the employee; and
(C) the factual basis for a disciplinary action in which final action has been taken and that resulted in the employee being suspended, demoted, or discharged.
However, all personnel file information shall be made available to the affected employee or the employee's representative. This subdivision does not apply to disclosure of personnel information generally on all employees or for groups of employees without the request being particularized by employee name.
pertaining to a location or structure owned or protected by a
public agency in the event that an act of terrorism under
IC 35-47-12-1 or an act of agricultural terrorism under
IC 35-47-12-2 has occurred at that location or structure, unless
release of the record or portion of the record would have a
reasonable likelihood of threatening public safety by exposing a
vulnerability of other locations or structures to terrorist attack.
(20) The following personal information concerning a customer of a municipally owned utility (as defined in IC 8-1-2-1):
(A) Telephone number.
(C) Social Security number.
(21) The following personal information about a complainant contained in records of a law enforcement agency:
(A) Telephone number.
(B) The complainant's address. However, if the complainant's address is the location of the suspected crime, infraction, accident, or complaint reported, the address shall be made available for public inspection and copying.
(22) Notwithstanding subdivision (8)(A), the name, compensation, job title, business address, business telephone number, job description, education and training background, previous work experience, or dates of first employment of a law enforcement officer who is operating in an undercover capacity.
(23) Records requested by an offender that:
(A) contain personal information relating to:
(i) a correctional officer (as defined in IC 5-10-10-1.5);
(ii) the victim of a crime; or
(iii) a family member of a correctional officer or the victim of a crime; or
(B) concern or could affect the security of a jail or correctional facility.
(c) Nothing contained in subsection (b) shall limit or affect the right of a person to inspect and copy a public record required or directed to be made by any statute or by any rule of a public agency.
(d) Notwithstanding any other law, a public record that is classified as confidential, other than a record concerning an adoption or patient medical records, shall be made available for inspection and copying seventy-five (75) years after the creation of that record.
(e) Only the content of a public record may form the basis for the adoption by any public agency of a rule or procedure creating an exception from disclosure under this section.
conveyance, including purchase in lieu of foreclosure, or
foreclosure, to own, manage, operate, hold, clear, improve, and
rehabilitate such real property and sell, assign, exchange, transfer,
convey, lease, mortgage, or otherwise dispose of or encumber
such real property where such use of real property is necessary or
appropriate to the purposes of the authority;
(7) to sell, at public or private sale, all or any part of any mortgage or other instrument or document securing a construction loan, a land development loan, a mortgage loan, or a loan of any type permitted by this chapter;
(8) to procure insurance against any loss in connection with its operations in such amounts and from such insurers as it may deem necessary or desirable;
(9) to consent, subject to the provisions of any contract with noteholders or bondholders which may then exist, whenever it deems it necessary or desirable in the fulfillment of its purposes to the modification of the rate of interest, time of payment of any installment of principal or interest, or any other terms of any mortgage loan, mortgage loan commitment, construction loan, loan to lender, or contract or agreement of any kind to which the authority is a party;
(10) to enter into agreements or other transactions with any federal, state, or local governmental agency for the purpose of providing adequate living quarters for such persons and families in cities and counties where a need has been found for such housing;
(11) to include in any borrowing such amounts as may be deemed necessary by the authority to pay financing charges, interest on the obligations (for a period not exceeding the period of construction and a reasonable time thereafter or if the housing is completed, two (2) years from the date of issue of the obligations), consultant, advisory, and legal fees and such other expenses as are necessary or incident to such borrowing;
(12) to make and publish rules respecting its lending programs and such other rules as are necessary to effectuate the purposes of this chapter;
(13) to provide technical and advisory services to sponsors, builders, and developers of residential housing and to residents and potential residents, including housing selection and purchase procedures, family budgeting, property use and maintenance, household management, and utilization of community resources;
(14) to promote research and development in scientific methods
of constructing low cost residential housing of high durability;
(15) to encourage community organizations to participate in residential housing development;
(16) to make, execute, and effectuate any and all agreements or other documents with any governmental agency or any person, corporation, association, partnership, limited liability company, or other organization or entity necessary or convenient to accomplish the purposes of this chapter;
(17) to accept gifts, devises, bequests, grants, loans, appropriations, revenue sharing, other financing and assistance and any other aid from any source whatsoever and to agree to, and to comply with, conditions attached thereto;
(18) to sue and be sued in its own name, plead and be impleaded;
(19) to maintain an office in the city of Indianapolis and at such other place or places as it may determine;
(20) to adopt an official seal and alter the same at pleasure;
(21) to adopt and from time to time amend and repeal bylaws for the regulation of its affairs and the conduct of its business and to prescribe rules and policies in connection with the performance of its functions and duties;
(22) to employ fiscal consultants, engineers, attorneys, real estate counselors, appraisers, and such other consultants and employees as may be required in the judgment of the authority and to fix and pay their compensation from funds available to the authority therefor;
(23) notwithstanding IC 5-13, but subject to the requirements of any trust agreement entered into by the authority, to invest:
(A) the authority's money, funds, and accounts;
(B) any money, funds, and accounts in the authority's custody; and
(C) proceeds of bonds or notes;
in the manner provided by an investment policy established by resolution of the authority;
(24) to make or participate in the making of construction loans, mortgage loans, or both, to individuals, partnerships, limited liability companies, corporations, and organizations for the construction of residential facilities for individuals with a developmental disability or for individuals with a mental illness or for the acquisition or renovation, or both, of a facility to make it suitable for use as a new residential facility for individuals with a developmental disability or for individuals with a mental illness;
(25) to make or participate in the making of construction and
mortgage loans to individuals, partnerships, corporations, limited
liability companies, and organizations for the construction,
rehabilitation, or acquisition of residential facilities for children;
(26) to purchase or participate in the purchase of mortgage loans from:
(A) public utilities (as defined in IC 8-1-2-1); or
(B) municipally owned gas utility systems organized under IC 8-1.5;
if those mortgage loans were made for the purpose of insulating and otherwise weatherizing single family residences in order to conserve energy used to heat and cool those residences;
(27) to provide financial assistance to mutual housing associations (IC 5-20-3) in the form of grants, loans, or a combination of grants and loans for the development of housing for low and moderate income families;
(28) to service mortgage loans made or acquired by the authority and to impose and collect reasonable fees and charges in connection with such servicing;
(29) subject to the authority's investment policy, to enter into swap agreements (as defined in IC 8-9.5-9-4) in accordance with IC 8-9.5-9-5 and IC 8-9.5-9-7;
(30) to promote and foster community revitalization through community services and real estate development;
(31) to coordinate and establish linkages between governmental and other social services programs to ensure the effective delivery of services to low income individuals and families, including individuals or families facing or experiencing homelessness;
(32) to cooperate with local housing officials and plan commissions in the development of projects that the officials or commissions have under consideration;
(33) to develop a list of documents that a creditor and debtor are required to exchange before attending a settlement conference under IC 32-30-10.5-10;
(33) (34) to take actions necessary to implement its powers that
the authority determines to be appropriate and necessary to ensure
the availability of state or federal financial assistance; and
(34) (35) to administer any program or money designated by the
state or available from the federal government or other sources
that is consistent with the authority's powers and duties.
The omission of a power from the list in this subsection does not imply that the authority lacks that power. The authority may exercise any power that is not listed in this subsection but is consistent with the
powers listed in this subsection to the extent that the power is not
expressly denied by the Constitution of the State of Indiana or by
(b) The authority shall ensure that a mortgage loan acquired by the authority under subsection (a)(3) or made by a mortgage lender with funds provided by the authority under subsection (a)(4) is not knowingly made to a person whose adjusted family income, as determined by the authority, exceeds one hundred twenty-five percent (125%) of the median income for the geographic area involved. However, if the authority determines that additional encouragement is needed for the development of the geographic area involved, a mortgage loan acquired or made under subsection (a)(3) or (a)(4) may be made to a person whose adjusted family income, as determined by the authority, does not exceed one hundred forty percent (140%) of the median income for the geographic area involved. The authority shall establish procedures that the authority determines are appropriate to structure and administer any program conducted under subsection (a)(3) or (a)(4) for the purpose of acquiring or making mortgage loans to persons of low or moderate income. In determining what constitutes low income, moderate income, or median income for purposes of any program conducted under subsection (a)(3) or (a)(4), the authority shall consider:
(1) the appropriate geographic area in which to measure income levels; and
(2) the appropriate method of calculating low income, moderate income, or median income levels including:
(A) sources of;
(B) exclusions from; and
(C) adjustments to;
(c) The authority, when directed by the governor, shall administer programs and funds under 42 U.S.C. 1437 et seq.
(d) The authority shall identify, promote, assist, and fund:
(1) home ownership education programs; and
(2) mortgage foreclosure counseling and education programs under IC 5-20-6;
conducted throughout Indiana by nonprofit counseling agencies that the authority has certified, or by any other public, private, or nonprofit entity in partnership with a nonprofit agency that the authority has certified, using funds appropriated under section 27 of this chapter. The attorney general and the entities listed in IC 4-6-12-4(a)(1) through IC 4-6-12-4(a)(10) shall cooperate with the authority in implementing
(e) The authority shall:
(1) oversee and encourage a regional homeless delivery system that:
(A) considers the need for housing and support services;
(B) implements strategies to respond to gaps in the delivery system; and
(C) ensures individuals and families are matched with optimal housing solutions;
(2) facilitate the dissemination of information to assist individuals and families accessing local resources, programs, and services related to homelessness, housing, and community development; and
(3) each year, estimate and reasonably determine the number of the following:
(A) Individuals in Indiana who are homeless.
(B) Individuals in Indiana who are homeless and less than eighteen (18) years of age.
(C) Individuals in Indiana who are homeless and not residents of Indiana.
mortgage foreclosure counselor.
(C) That if the creditor proceeds to file a foreclosure action and obtains a foreclosure judgment, the debtor has a right to do the following before a sheriff's sale is conducted:
(i) Appeal a finding of abandonment by a court under IC 32-29-7-3(a)(2).
(ii) Redeem the real estate from the judgment under IC 32-29-7-7.
(iii) Retain possession of the property under IC 32-29-7-11(b), subject to the conditions set forth in IC 32-29-7-11(b).
(2) Provide the contact information for the Indiana Foreclosure Prevention Network.
(3) Include the following statement printed in at least 14 point boldface type:
"NOTICE REQUIRED BY STATE LAW
Mortgage foreclosure is a complex process. People may approach you about "saving" your home. You should be careful about any such promises. There are government agencies and nonprofit organizations you may contact for helpful information about the foreclosure process. For the name and telephone number of an organization near you, please call the Indiana Foreclosure Prevention Network.".
(b) The notice required by subsection (a) shall be sent to:
(1) the address of the mortgaged property; or
(2) the last known mailing address of the debtor if the creditor's records indicate that the mailing address of the debtor is other than the address of the mortgaged property.
If the creditor provides evidence that the notice required by subsection (a) was sent by certified mail, return receipt requested, and
prescribed by in accordance with this subsection, it is not necessary
that the debtor accept receipt of the notice for an action to proceed as
allowed under this chapter.
(c) Except as provided in subsection (e) and section
10(g) 10(h) of
this chapter, if a creditor files an action to foreclose a mortgage, the
creditor shall include with the complaint served on the debtor a notice
that informs the debtor of the debtor's that, for a foreclosure action
filed after June 30, 2009, but before July 1, 2011, the debtor has the
right to participate in a settlement conference, subject to section 9(b)
of this chapter. The notice must be in a form prescribed by the Indiana
housing and community development authority created by IC 5-20-1-3.
The notice must inform the debtor that the debtor may schedule a
settlement conference by notifying the court, not later than thirty (30)
days after the notice required by this subsection is served, of the
debtor's intent to participate in a settlement conference.
In a foreclosure action filed under IC 32-30-10-3 after June 30,
2009, If a creditor files an action to foreclose a mortgage, the
creditor shall attach to include with the complaint filed with the court:
(1) except as provided in subsection (e) and section 10(h) of this chapter, a copy of the notices sent to the debtor under subsections (a) and (c), if the foreclosure action is filed after June 30, 2009, but before July 1, 2011; or
(2) the following, if the foreclosure action is filed after June 30, 2011:
(A) Except as provided in subsection (e) and section 10(h) of this chapter, a copy of the notices sent to the debtor under subsections (a) and (c).
(B) The most recent contact information for the debtor that the creditor has available or on file, including:
(i) all telephone numbers and electronic mail addresses used by the debtor; and
(ii) any mailing address described in subsection (b)(2).
Notices and debtor contact information required to be included with a complaint under this subsection are confidential.
(e) A creditor is not required to send the notices described in this section if:
(1) the mortgage is secured by a dwelling that is not the debtor's primary residence;
(2) the mortgage has been the subject of a prior foreclosure prevention agreement under this chapter and the debtor has defaulted with respect to the terms of that foreclosure prevention agreement; or
(3) bankruptcy law prohibits the creditor from participating in a settlement conference under this chapter with respect to the mortgage.
(f) This section does not apply if a creditor is not required under subsection (e) to send the notices described in this section. As soon as practicable after a creditor files an action to foreclose a mortgage, the court shall send a notice informing the defendant that:
(1) a settlement conference between the defendant and plaintiff will be scheduled by the court under section 10 of this chapter; and
(2) the foreclosure action may not proceed until the settlement
conference has taken place, subject to the defendant's right to
opt out of the settlement conference under section 10(b)(2) of
this chapter subject to section 9(b) of this chapter.
shall be disbursed to the creditor and credited against the amount
of the judgment entered against the debtor or the amount
otherwise owed by the debtor.
conference on or before a date and time specified in the notice,
which date must not be earlier than
twenty-five (25) forty (40)
days after the date of the notice under this section or later than
sixty (60) days after the date of the notice under this section, for
the purpose of attempting to negotiate a foreclosure prevention
(2) Encourage the debtor to contact a mortgage foreclosure counselor before the date of the settlement conference. The notice must provide the contact information for the Indiana Foreclosure Prevention Network.
(3) Require the debtor
to bring to the settlement conference and
the creditor to exchange, at least thirty (30) days before the
date of the settlement conference, the documents contained on
the Indiana housing and community development authority's
settlement list under IC 5-20-1-4. the following documents
needed to engage in good faith negotiations with the creditor:
(A) Documentation of the debtor's present and projected
including documentation of the debtor's employment history.
(B) Any other documentation or information that the court
determines is needed for the debtor to engage in good faith
negotiations with the creditor. The court shall identify any
documents required under this clause with enough specificity
to allow the debtor to obtain the documents before the
scheduled settlement conference.
(4) Require the creditor to bring to the settlement conference the
following transaction history for the mortgage:
(A) A copy of the original note and mortgage.
(B) A payment record substantiating the default.
(C) An itemization of all amounts claimed by the creditor as
being owed on the mortgage.
(D) Any other documentation that the court determines is
(5) (4) Inform the parties that:
(A) each party has the right to be represented by an attorney or assisted by a mortgage foreclosure counselor at the settlement conference; and
(B) subject to subsection (c), an attorney or a mortgage
foreclosure counselor may participate in the settlement
conference in person or by telephone.
(6) (5) Inform the parties that the settlement conference will be
conducted at the county courthouse, or at another place
designated by the court, on the date and time specified in the
notice under subdivision (1) unless the parties submit to the court
a stipulation to:
(A) modify the date, time, and place of the settlement conference; or
(B) hold the settlement conference by telephone at a date and time agreed to by the parties.
If the parties stipulate under clause (B) to conduct the settlement conference by telephone, the parties shall ensure the availability of any technology needed to allow simultaneous participation in the settlement conference by all participants.
(b) (c) An attorney for the creditor shall attend the settlement
conference, and an authorized representative of the creditor shall be
available by telephone during the settlement conference. In addition,
the court may require any person that is a party to the foreclosure
action to appear at or participate in a settlement conference held under
this section, chapter, and, for cause shown, the court may order the
creditor and the debtor to reconvene a settlement conference at any
time before judgment is entered. Any costs to a creditor associated
with the use of a third party mediator or civil penalty imposed on
a creditor under subsection (j) may not be charged to or collected
from the debtor, either directly or indirectly.
(c) (d) At the court's discretion, a settlement conference may or may
not be attended by a judicial officer.
(d) (e) The creditor shall ensure that any person representing the
(1) at a settlement conference scheduled under subsection (a); or
(2) in any negotiations with the debtor designed to reach agreement on the terms of a foreclosure prevention agreement;
has authority to represent the creditor in negotiating a foreclosure prevention agreement with the debtor.
(e) (f) If, as a result of a settlement conference held under this
section, chapter, the debtor and the creditor agree to enter into a
foreclosure prevention agreement, the agreement shall be reduced to
writing and signed by both parties, and each party shall retain a copy
of the signed agreement. Not later than seven (7) business days after
the signing of the foreclosure prevention agreement, the creditor shall
file with the court a copy of the signed agreement. At the election of the
creditor, the foreclosure shall be dismissed or stayed for as long as the
debtor complies with the terms of the foreclosure prevention
(f) (g) If, as a result of a settlement conference held under this
section, chapter, the debtor and the creditor are unable to agree on the
terms of a foreclosure prevention agreement:
(1) the creditor shall, not later than seven (7) business days after the conclusion of the settlement conference, file with the court a notice indicating that the settlement conference held under this
section chapter has concluded and a foreclosure prevention
agreement was not reached; and
(2) the foreclosure action filed by the creditor may proceed as otherwise allowed by law, subject to the court's right under subsection (c) to order the creditor and the debtor to reconvene a settlement conference at any time before judgment is entered.
(g) (h) If:
(1) a foreclosure is dismissed by the creditor under subsection
(f) after a foreclosure prevention agreement is reached; and
(2) a default in the terms of the foreclosure prevention agreement later occurs;
the creditor or its assigns may bring a foreclosure action
IC 32-30-10-3 with respect to the mortgage that is the subject of the
foreclosure prevention agreement without sending the notices
described in section 8 of this chapter.
(h) (i) Participation in a settlement conference under this section
chapter satisfies any mediation or alternative dispute resolution
requirement established by court rule.
(j) Subject to subsection (c), the court may impose sanctions, including a civil penalty in an amount determined by the court, on any party to a foreclosure action subject to this chapter for any violation of:
(1) this chapter; or
(2) an order or rule of the court that is issued in connection with, or that otherwise applies to, a foreclosure action subject to this chapter.
foreclosure before July 1, 2009.
(b) In a mortgage foreclosure action to which this section applies, the court having jurisdiction of the action shall serve notice of the availability of a settlement conference under
section 8(c) of this
chapter. The notice required by this section must inform the debtor
that the debtor:
(1) has the right to participate in a settlement conference, subject to section 9(b) of this chapter; and
(2) may schedule a settlement conference by notifying the court, not later than thirty (30) days after the notice required by this section is served, of the debtor's intent to participate in a settlement conference.
auditor the following:
(1) One hundred percent (100%) of the support and maintenance fees for cases designated as non-Title IV-D child support cases in the Indiana support enforcement tracking system (ISETS) collected under IC 33-37-5-6.
(2) The percentage share of the support and maintenance fees for cases designated as IV-D child support cases in ISETS collected under IC 33-37-5-6 that is reimbursable to the county at the federal financial participation rate.
The county clerk shall distribute monthly to the office of the secretary of family and social services the percentage share of the support and maintenance fees for cases designated as Title IV-D child support cases in ISETS collected under IC 33-37-5-6 that is not reimbursable to the county at the applicable federal financial participation rate.
(h) The clerk of a circuit court shall distribute monthly to the county auditor the following:
(1) One hundred percent (100%) of the small claims service fee under IC 33-37-4-6(a)(1)(B) or IC 33-37-4-6(a)(2) for deposit in the county general fund.
(2) One hundred percent (100%) of the small claims garnishee service fee under IC 33-37-4-6(a)(1)(C) or IC 33-37-4-6(a)(3) for deposit in the county general fund.
(i) This subsection does not apply to court administration fees collected in small claims actions filed in a court described in IC 33-34. The clerk of a circuit court shall semiannually distribute to the auditor of state for deposit in the state general fund one hundred percent (100%) of the following:
(1) The public defense administration fee collected under IC 33-37-5-21.2.
(2) The judicial salaries fees collected under IC 33-37-5-26.
(3) The DNA sample processing fees collected under IC 33-37-5-26.2.
(4) The court administration fees collected under IC 33-37-5-27.
(j) The clerk of a circuit court shall semiannually distribute to the auditor of state for deposit in the judicial branch insurance adjustment account established by IC 33-38-5-8.2 one hundred percent (100%) of the judicial insurance adjustment fee collected under IC 33-37-5-25.
(k) The proceeds of the service fee collected under IC 33-37-5-28(b)(1) or IC 33-37-5-28(b)(2) shall be distributed as follows:
(1) The clerk shall distribute one hundred percent (100%) of the service fees collected in a circuit, superior, county, or probate
court to the county auditor for deposit in the county general fund.
(2) The clerk shall distribute one hundred percent (100%) of the service fees collected in a city or town court to the city or town fiscal officer for deposit in the city or town general fund.
(l) The proceeds of the garnishee service fee collected under IC 33-37-5-28(b)(3) or IC 33-37-5-28(b)(4) shall be distributed as follows:
(1) The clerk shall distribute one hundred percent (100%) of the garnishee service fees collected in a circuit, superior, county, or probate court to the county auditor for deposit in the county general fund.
(2) The clerk shall distribute one hundred percent (100%) of the garnishee service fees collected in a city or town court to the city or town fiscal officer for deposit in the city or town general fund.
(m) The clerk of the circuit court shall distribute semiannually to the auditor of state for deposit in the home ownership education account established by IC 5-20-1-27 one hundred percent (100%) of the following:
(1) The mortgage foreclosure counseling and education fees collected under IC 33-37-5-30 (before its expiration on January 1, 2013).
(2) Any civil penalties imposed and collected by the court under IC 32-30-10.5-10(j).