In addition to definitions appearing in
subsequent chapters of this article, the following definitions apply
throughout this article:
(1) "Affiliate", with respect to any person subject to this article,
means a person that, directly or indirectly, through one (1) or
more intermediaries:
(a) controls;
(b) is controlled by; or
(c) is under common control with;
the person subject to this article.
(2) "Agreement" means the bargain of the parties in fact as found
in the parties' language or by implication from other
circumstances, including course of dealing or usage of trade or
course of performance.
(3) "Agricultural products" includes agricultural products,
horticultural products, viticultural products, dairy products,
livestock, wildlife, poultry, bees, forest products, fish and
shellfish, any products raised or produced on farms, and any
products processed or manufactured from products raised or
produced on farms.
(4) "Agricultural purpose" means a purpose related to the
production, harvest, exhibition, marketing, transportation,
processing, or manufacture of agricultural products by a natural
person who cultivates, plants, propagates, or nurtures the
agricultural products.
(5) "Consumer credit sale" is a sale of goods, services, or an
interest in land in which:
(a) credit is granted by a person who engages as a seller in
credit transactions of the same kind;
(b) the buyer is a person other than an organization;
(c) the goods, services, or interest in land are purchased
primarily for a personal, family, or household purpose;
(d) either the debt is payable in installments or a credit service
charge is made; and
(e) with respect to a sale of goods or services, either:
(i) the amount of credit extended, the written credit limit, or
the initial advance does not exceed the exempt threshold
amount, as adjusted in accordance with the annual adjustment
of the exempt threshold amount, specified in Regulation Z
(12 CFR 226.3 or 12 CFR 1026.3(b), as applicable); or
(ii) the debt is secured by personal property used or expected
to be used as the principal dwelling of the buyer.
(6) "Credit" means the right granted by a creditor to a debtor to
defer payment of debt or to incur debt and defer its payment.
(7) "Creditor" means a person:
(a) that regularly engages in the extension of first lien mortgage
transactions that are subject to a credit service charge or loan
finance charge, as applicable, or are payable by written
agreement in more than four (4) installments (not including a
down payment); and
(b) to which the obligation is initially payable, either on the face
of the note or contract, or by agreement if there is not a note or
contract.
The term does not include a person described in subsection
(34)(a) in a tablefunded transaction. A creditor may be an
individual, a limited liability company, a sole proprietorship, a
partnership, a trust, a joint venture, a corporation, an
unincorporated organization, or other form of entity, however
organized.
(8) "Department" refers to the members of the department of
financial institutions.
(9) "Depository institution" has the meaning set forth in the
Federal Deposit Insurance Act (12 U.S.C. 1813(c)) and includes
any credit union.
(10) "Director" refers to the director of the department of financial
institutions or the director's designee.
(11) "Dwelling" means a residential structure that contains one
(1) to four (4) units, regardless of whether the structure is
attached to real property. The term includes an individual:
(a) condominium unit;
(b) cooperative unit;
(c) mobile home; or
(d) trailer;
that is used as a residence.
(12) "Employee" means an individual who is paid wages or other
compensation by an employer required under federal income tax
law to file Form W-2 on behalf of the individual.
(13) "Federal banking agencies" means the Board of Governors
of the Federal Reserve System, the Office of the Comptroller of
the Currency, the Office of Thrift Supervision, the National Credit
Union Administration, and the Federal Deposit Insurance
Corporation.
(14) "First lien mortgage transaction" means:
(a) a consumer loan; or
(b) a consumer credit sale;
that is or will be used by the debtor primarily for personal, family,
or household purposes and that is secured by a mortgage or a land
contract (or another consensual security interest equivalent to a
mortgage or a land contract) that constitutes a first lien on a
dwelling or on residential real estate upon which a dwelling is
constructed or intended to be constructed.
(15) "Immediate family member" means a spouse, child, sibling,
parent, grandparent, or grandchild. The term includes stepparents,
stepchildren, stepsiblings, and adoptive relationships.
(16) "Individual" means a natural person.
(17) "Licensee" means a person licensed to engage in mortgage
transactions as a creditor.
(18) "Loan" includes:
(a) the creation of debt by:
(i) the creditor's payment of or agreement to pay money to the
debtor or to a third party for the account of the debtor; or
(ii) the extension of credit by a person who engages as a
seller in credit transactions primarily secured by an interest
in land;
(b) the creation of debt by a credit to an account with the
creditor upon which the debtor is entitled to draw immediately;
and
(c) the forbearance of debt arising from a loan.
(19) "Loan brokerage business" means any activity in which a
person, in return for any consideration from any source, procures,
attempts to procure, or assists in procuring, a mortgage
transaction from a third party or any other person, whether or not
the person seeking the mortgage transaction actually obtains the
mortgage transaction.
(20) "Loan processor or underwriter" means an individual who
performs clerical or support duties as an employee at the direction
of, and subject to the supervision and instruction of, a person
licensed to engage in mortgage transactions or a person exempt
from licensing. For purposes of this subdivision, the term "clerical
or support duties" may include, after the receipt of an application,
the following:
(a) The receipt, collection, distribution, and analysis of
information common for the processing or underwriting of a
mortgage transaction.
(b) The communication with a consumer to obtain the
information necessary for the processing or underwriting of a
loan, to the extent that the communication does not include:
(i) offering or negotiating loan rates or terms; or
(ii) counseling consumers about mortgage transaction rates or
terms.
The term "loan processor or underwriter" does not include an
individual who is an employee of a person that is not engaged in
mortgage transactions as a creditor if that person is permitted to
voluntarily register with the department to sponsor the individual
under section 202(b)(8) of this chapter to engage solely in the
activities described in this subdivision.
(21) "Mortgage loan originator" means an individual who, for
compensation or gain, or in the expectation of compensation or
gain, regularly engages in taking a mortgage transaction
application or in offering or negotiating the terms of a mortgage
transaction that either is made under this article or under IC 24-4.5 or is made by an employee of a person licensed to engage
in mortgage transactions or by an employee of a person that is
exempt from licensing, while the employee is engaging in the loan
brokerage business. The term does not include the following:
(a) An individual engaged solely as a loan processor or
underwriter as long as the individual works exclusively as an
employee of a person licensed to engage in mortgage
transactions or as an employee of a person exempt from
licensing. However, the term includes an individual who is
licensed as a mortgage loan originator under this article and
750 IAC 9-3 and who is an employee of a person that is not
engaged in mortgage transactions as a creditor if that person
voluntarily registers with the department to sponsor the
individual under section 202(b)(8) of this chapter to engage
solely as a third party processor or underwriter.
(b) Unless the person or entity is compensated by:
(i) a creditor;
(ii) a loan broker;
(iii) another mortgage loan originator; or
(iv) any agent of a creditor, a loan broker, or another
mortgage loan originator described in items (i) through (iii);
a person or entity that performs only real estate brokerage
activities and is licensed or registered in accordance with
applicable state law.
(c) A person solely involved in extensions of credit relating to
timeshare plans (as defined in 11 U.S.C. 101(53D)).
(22) "Mortgage servicer" means the last person to whom a
mortgagor or the mortgagor's successor in interest has been
instructed by a mortgagee to send payments on a loan secured by
a mortgage.
(23) "Mortgage transaction" means:
(a) a consumer loan; or
(b) a consumer credit sale;
that is or will be used by the debtor primarily for personal, family,
or household purposes and that is secured by a mortgage or a land
contract (or another consensual security interest equivalent to a
mortgage or a land contract) on a dwelling or on residential real
estate upon which a dwelling is constructed or intended to be
constructed.
(24) "Nationwide Multistate Licensing System and Registry" (or
"Nationwide Mortgage Licensing System and Registry" or
"NMLSR") means a multistate licensing system owned and
operated by the State Regulatory Registry, LLC, or by any
successor or affiliated entity, for the licensing and registration of
creditors, mortgage loan originators, and other persons in the
mortgage or financial services industries. The term includes any
other name or acronym that may be assigned to the system by the
State Regulatory Registry, LLC, or by any successor or affiliated
entity.
(25) "Nontraditional mortgage product" means any mortgage
product other than a thirty (30) year fixed rate mortgage.
(26) "Organization" means a corporation, a government or
government subdivision, an agency, a trust, an estate, a
partnership, a limited liability company, a cooperative, an
association, a joint venture, an unincorporated organization, or
any other entity, however organized.
(27) "Payable in installments", with respect to a debt or an
obligation, means that payment is required or permitted by written
agreement to be made in more than four (4) installments not
including a down payment.
(28) "Person" includes an individual or an organization.
(29) "Principal" of a mortgage transaction means the total of:
(a) the net amount paid to, receivable by, or paid or payable for
the account of the debtor; and
(b) to the extent that payment is deferred, amounts actually paid
or to be paid by the creditor for registration, certificate of title,
or license fees if not included in clause (a).
(30) "Real estate brokerage activity" means any activity that
involves offering or providing real estate brokerage services to the
public, including the following:
(a) Acting as a real estate agent or real estate broker for a buyer,
seller, lessor, or lessee of real property.
(b) Bringing together parties interested in the sale, purchase,
lease, rental, or exchange of real property.
(c) Negotiating, on behalf of any party, any part of a contract
relating to the sale, purchase, lease, rental, or exchange of real
property (other than in connection with providing financing
with respect to the sale, purchase, lease, rental, or exchange of
real property).
(d) Engaging in any activity for which a person engaged in the
activity is required to be registered or licensed as a real estate
agent or real estate broker under any applicable law.
(e) Offering to engage in any activity, or act in any capacity,
described in this subsection.
(31) "Registered mortgage loan originator" means any individual
who:
(a) meets the definition of mortgage loan originator and is an
employee of:
(i) a depository institution;
(ii) a subsidiary that is owned and controlled by a depository
institution and regulated by a federal banking agency; or
(iii) an institution regulated by the Farm Credit
Administration; and
(b) is registered with, and maintains a unique identifier through,
the NMLSR.
(32) "Residential real estate" means any real property that is
located in Indiana and on which there is located or intended to be
constructed a dwelling.
(33) "Revolving first lien mortgage transaction" means a first lien
mortgage transaction in which:
(a) the creditor permits the debtor to obtain advances from time
to time;
(b) the unpaid balances of principal, finance charges, and other
appropriate charges are debited to an account; and
(c) the debtor has the privilege of paying the balances in
installments.
(34) "Tablefunded" means a transaction in which:
(a) a person closes a first lien mortgage transaction in the
person's own name as a mortgagee with funds provided by one
(1) or more other persons; and
(b) the transaction is assigned, not later than one (1) business
day after the funding of the transaction, to the mortgage creditor
providing the funding.
(35) "Unique identifier" means a number or other identifier
assigned by protocols established by the NMLSR.
(36) "Land contract" means a contract for the sale of real estate in
which the seller of the real estate retains legal title to the real
estate until the total contract price is paid by the buyer.
(37) "Bona fide nonprofit organization" means an organization
that does the following, as determined by the director, under
criteria established by the director:
(a) Maintains tax exempt status under Section 501(c)(3) of the
Internal Revenue Code.
(b) Promotes affordable housing or provides home ownership
education or similar services.
(c) Conducts the organization's activities in a manner that
serves public or charitable purposes.
(d) Receives funding and revenue and charges fees in a manner
that does not encourage the organization or the organization's
employees to act other than in the best interests of the
organization's clients.
(e) Compensates the organization's employees in a manner that
does not encourage employees to act other than in the best
interests of the organization's clients.
(f) Provides to, or identifies for, debtors mortgage transactions
with terms that are favorable to the debtor (as described in
section 202(b)(16) of this chapter) and comparable to mortgage
transactions and housing assistance provided under government
housing assistance programs.
(g) Maintains certification by the United States Department of
Housing and Urban Development or employs counselors who
are certified by the Indiana housing and community
development authority.
(38) "Regularly engaged", with respect to a person who extends
or originates first lien mortgage transactions, refers to a person
who:
(a) extended or originated more than five (5) first lien mortgage
transactions in the preceding calendar year; or
(b) extends or originates, or will extend or originate, more than
five (5) first lien mortgage transactions in the current calendar
year if the person did not extend or originate more than five (5)
first lien mortgage transactions in the preceding calendar year.