Amendments: Whenever an existing statute (or a section of the Indiana Constitution) is
being amended, the text of the existing provision will appear in this style type, additions
will appear in this style type, and deletions will appear in this style type.
Additions: Whenever a new statutory provision is being enacted (or a new constitutional
provision adopted), the text of the new provision will appear in this style type. Also, the
word NEW will appear in that style type in the introductory clause of each SECTION that
adds a new provision to the Indiana Code or the Indiana Constitution.
Conflict reconciliation: Text in a statute in this style type or this style type reconciles
conflicts between statutes enacted by the 2004 Regular Session of the General Assembly.
AN ACT to amend the Indiana Code concerning trade regulation.
Be it enacted by the General Assembly of the State of
Indiana:
SECTION 1. IC 5-22-1-3 IS AMENDED TO READ AS
FOLLOWS [EFFECTIVE UPON PASSAGE]: Sec. 3. (a)
Except as provided in subsection (b), this article does not
apply to the following types of activities:
(1) A contract between governmental bodies except for a
contract authorized under this article.
(2) A public works project.
(3) A collective bargaining agreement between a
governmental body and its employees.
(4) The employment relationship between a
governmental body and an employee of the
governmental body.
(5) An investment of public funds.
(6) A contract between a governmental body and a body
corporate and politic.
(7) A contract for social services.
(8) A contract with a body corporate and politic.
acquisition if the acquired business entity ceases violating
IC 24-4.7, IC 24-5-12, or IC 24-5-14, even if IC 24-4.7 is
preempted by federal law, as of the date of the
acquisition.
(d) If:
(1) the attorney general notifies the contractor,
department of administration, and budget agency in
writing of the intention of the attorney general to
void a contract; and
(2) the attorney general does not receive a written
objection from the department of administration or
budget agency, sent to both the attorney general and
the contractor, within thirty (30) days of the notice;
a contract between a contractor and a governmental body
is voidable at the election of the attorney general in a civil
action brought under subsection (c). If an objection of the
department of administration or the budget agency is
submitted under subdivision (2), the contract that is the
subject of the objection is not voidable at the election of
the attorney general unless the objection is rescinded or
withdrawn by the department of administration or the
budget agency.
(e) If the attorney general establishes in a civil action
that a contractor is knowingly, intentionally, or recklessly
liable under subsection (c), the contractor is prohibited
from entering into a contract with a governmental body
for three hundred sixty-five (365) days after the date on
which the contractor exhausts appellate remedies.
(f) In addition to any remedy obtained in a civil action
brought under this section, the attorney general may
obtain the following:
(1) All money the contractor obtained through each
telephone call made in violation of the terms of
IC 24-4.7, IC 24-5-12, or IC 24-5-14, even if IC 24-4.7
is preempted by federal law.
(2) The attorney general's reasonable expenses
incurred in:
(A) investigation; and
(B) maintaining the civil action.
SECTION 5. IC 24-4.7-5-1 IS AMENDED TO READ AS
FOLLOWS [EFFECTIVE JULY 1, 2005]: Sec. 1. A
telephone solicitor who fails to comply with any provision of
IC 24-4.7-4 commits a deceptive act that is actionable by the
attorney general under this chapter. In addition, a
contractor who contracts or seeks to contract with the
state:
(1) may be prohibited from contracting with the
state; or
(2) may have an existing contract with the state
voided;
if the contractor, an affiliate or principal of the
contractor, or any agent acting on behalf of the
contractor or an affiliate or principal of the contractor
does not or has not complied with the terms of this article,
even if this article is preempted by federal law.
SECTION 6. IC 24-5-0.5-2 IS AMENDED TO READ AS
FOLLOWS [EFFECTIVE JULY 1, 2005]: Sec. 2. (a) As
used in this chapter:
(1) "Consumer transaction" means a sale, lease,
assignment, award by chance, or other disposition of an
item of personal property, real property, a service, or an
intangible, except securities and policies or contracts of
insurance issued by corporations authorized to transact
an insurance business under the laws of the state of
Indiana, with or without an extension of credit, to a
person for purposes that are primarily personal, familial,
charitable, agricultural, or household, or a solicitation to
supply any of these things. However, the term includes a
transfer of structured settlement payment rights under
IC 34-50-2.
(2) "Person" means an individual, corporation, the state
of Indiana or its subdivisions or agencies, business trust,
estate, trust, partnership, association, nonprofit
corporation or organization, or cooperative or any other
legal entity.
(3) "Supplier" means:
(A) a seller, lessor, assignor, or other person who
regularly engages in or solicits consumer transactions,
including a manufacturer, wholesaler, or retailer,
whether or not he the person deals directly with the
consumer; or
(B) a person who contrives, prepares, sets up,
operates, publicizes by means of advertisements, or
promotes a pyramid promotional scheme.
(4) "Subject of a consumer transaction" means the
personal property, real property services, or intangibles
furnished in a consumer transaction.
(5) "Cure" as applied to a deceptive act, means either:
(A) to offer in writing to adjust or modify the
consumer transaction to which the act relates to
conform to the reasonable expectations of the
consumer generated by such deceptive act and to
perform such offer if accepted by the consumer; or
(B) to offer in writing to rescind such consumer
transaction and to perform such offer if accepted by
the consumer.
The term includes an offer in writing of one (1) or
more items of value, including monetary
compensation, that the supplier delivers to a
consumer or a representative of the consumer if
accepted by the consumer.
(6) "Offer to cure" as applied to a deceptive act is a
cure that:
(A) is reasonably calculated to remedy a loss
claimed by the consumer; and
(B) includes a minimum additional amount that is
the greater of:
(i) ten percent (10%) of the value of the remedy
under clause (A), but not more than four
thousand dollars ($4,000); or
(ii) five hundred dollars ($500);
as compensation for attorney's fees, expenses, and
other costs that a consumer may incur in relation
to the deceptive act.
(6) (7) "Uncured deceptive act" means a deceptive act:
(A) with respect to which a consumer who has been
damaged by such act has given notice to the supplier
under section 5(a) of this chapter; and
(B) either:
(i) no offer to cure has been made to such consumer
within thirty (30) days after such notice; or
(ii) the act has not been cured as to such consumer
within a reasonable time after his the consumer's
acceptance of the offer to cure.
(7) (8) "Incurable deceptive act" means a deceptive act
done by a supplier as part of a scheme, artifice, or device
with intent to defraud or mislead. The term includes a
failure of a transferee of structured settlement payment
rights to timely provide a true and complete disclosure
statement to a payee as provided under IC 34-50-2 in
connection with a direct or indirect transfer of structured
settlement payment rights.
(8) (9) "Pyramid promotional scheme" means any
program utilizing a pyramid or chain process by which a
participant in the program gives a valuable consideration
exceeding one hundred dollars ($100) for the
opportunity or right to receive compensation or other
things of value in return for inducing other persons to
become participants for the purpose of gaining new
participants in the program. The term does not include
ordinary sales of goods or services to persons who are
not purchasing in order to participate in such a scheme.
(9) (10) "Promoting a pyramid promotional scheme"
means:
(A) inducing or attempting to induce one (1) or more
other persons to become participants in a pyramid
promotional scheme; or
consumer transaction in real property, including a claim or
action involving a construction defect (as defined in
IC 32-27-3-1(5)) brought against a construction
professional (as defined in IC 32-27-3-1(4)), except for
purchases of time shares and camping club memberships.
This subsection also does not apply to a violation of
IC 24-4.7, IC 24-5-12, or IC 24-5-14. Actual damages
awarded to a person under this section have priority over any
civil penalty imposed under this chapter.
(b) Any person who is entitled to bring an action under
subsection (a) on the person's own behalf against a supplier
for damages for a deceptive act may bring a class action
against such supplier on behalf of any class of persons of
which that person is a member and which has been damaged
by such deceptive act, subject to and under the Indiana Rules
of Trial Procedure governing class actions, except as herein
expressly provided. Except as provided in subsection (j),
the court may award reasonable attorney fees to the party that
prevails in a class action under this subsection, provided that
such fee shall be determined by the amount of time
reasonably expended by the attorney and not by the amount
of the judgment, although the contingency of the fee may be
considered. Any money or other property recovered in a class
action under this subsection which cannot, with due
diligence, be restored to consumers within one (1) year after
the judgment becomes final shall be returned to the party
depositing the same. This subsection does not apply to a
consumer transaction in real property, except for purchases of
time shares and camping club memberships. Actual damages
awarded to a class have priority over any civil penalty
imposed under this chapter.
(c) The attorney general may bring an action to enjoin a
deceptive act. However, the attorney general may seek to
enjoin patterns of incurable deceptive acts with respect to
consumer transactions in real property. In addition, the court
may:
FOLLOWS [EFFECTIVE JULY 1, 2005]: Sec. 7. As used in
this chapter, "warranty date" means the date of the first
occupancy of the new home as a residence by the initial home
buyer. one (1) of the following:
(1) The builder.
(2) An individual or individuals renting the home
from the builder.
(3) An individual or individuals living in the home at
the request of the builder.
(4) The initial home buyer.
SECTION 10. IC 32-27-2-8 IS AMENDED TO READ AS
FOLLOWS [EFFECTIVE JULY 1, 2005]: Sec. 8. (a) In
selling a completed new home, and in contracting to sell a
new home to be completed, the builder may warrant to the
initial home buyer the following:
(1) During the two (2) year period beginning on the
warranty date, the new home will be free from defects
caused by faulty workmanship or defective materials.
(2) During the two (2) year period beginning on the
warranty date, the new home will be free from defects
caused by faulty installation of:
(A) plumbing;
(B) electrical;
(C) heating;
(D) cooling; or
(E) ventilating;
systems, exclusive of fixtures, appliances, or items of
equipment.
(3) During the four (4) year period beginning on the
warranty date, the new home will be free from defects
caused by faulty workmanship or defective materials in
the roof or roof systems of the new home.
(4) During the ten (10) year period beginning on the
warranty date, the new home will be free from major
structural defects.
(b) The warranties provided in this section (or
IC 34-4-20.5-8 or IC 32-15-7 before their repeal) survive the
passing of legal or equitable title in the new home to a home
buyer.
(c) An individual identified in section 7(1), 7(2), or 7(3)
of this chapter who is selling a new home shall notify the
purchaser of the home in writing on or before the date of
closing or transfer of the new home of:
(1) the warranty date (as defined in section 7 of this
chapter); and
(2) the amount of time remaining under the
warranty.
SECTION 11. [EFFECTIVE UPON PASSAGE]
IC 5-22-1-3, IC 5-22-2-1, IC 24-4.7-5-1, and
IC 24-5-12-23, all as amended by this act, and
IC 5-22-3-7, as added by this act, apply only to a contract
entered into or renewed after the effective date of this act.
SECTION 12. An emergency is declared for this act.
Approved: