§ 24-4.4-3-104 — Department's examination and investigatory authority; record retention; director's authority to control access to records; court order compelling compliance; confidentiality; costs; vendors

Indiana § 24-4.4-3-104

• Jurisdiction: Indiana
• Art. 4.4: FIRST LIEN MORTGAGE LENDING
• Ch. 3: Administration

Text

(1) In administering this article and in
order to determine whether the provisions of this article are being
complied with by persons engaging in acts subject to this article, the
department may examine the records of persons and may make
investigations of persons as may be necessary to determine compliance.
Records subject to examination under this section include the
following:
(a) Training, operating, and policy manuals.
(b) Minutes of:
(i) management meetings; and
(ii) other meetings.
(c) Financial records, credit files, and data bases.
(d) Other records that the department determines are necessary to
perform its investigation or examination.
The department may also administer oaths or affirmations, subpoena
witnesses, and compel the attendance of witnesses, including officers,
principals, mortgage loan originators, employees, independent
contractors, agents, and customers of licensees, and other individuals
or persons subject to this article. The department may also adduce
evidence and require the production of any matter that is relevant to an
investigation. The department shall determine the sufficiency of the
records maintained and whether the person has made the required
information reasonably available. The records concerning any
transaction subject to this article shall be retained for two (2) years
after the making of the final entry relating to the first lien mortgage
transaction, but in the case of a revolving first lien mortgage
transaction the two (2) year period is measured from the date of each
entry.
(2) The department's examination and investigatory authority under
this article includes the following:
(a) The authority to require a creditor to refund overcharges
resulting from the creditor's noncompliance with the terms of a
first lien mortgage transaction.
(b) The authority to require a creditor to comply with the penalty
provisions set forth in IC 24-4.4-2-201.
(c) The authority to investigate complaints filed with the
department by debtors.
(3) The department shall be given free access to the records
wherever the records are located. In making any examination or
investigation authorized by this article, the director may control access
to any documents and records of the licensee or person under
examination or investigation. The director may take possession of the
documents and records or place a person in exclusive charge of the
documents and records in the place where the documents are usually
kept. During the period of control, a licensee or person may not remove
or attempt to remove any of the documents and records except under
a court order or with the consent of the director. Unless the director has
reasonable grounds to believe the documents or records of the licensee
or person have been, or are, at risk of being altered or destroyed for
purposes of concealing a violation of this article, the licensee or person
shall have access to the documents or records as necessary to conduct
the licensee's or person's ordinary business affairs. If the person's
records are located outside Indiana, the records shall be made available
to the department at a convenient location within Indiana, or the person
shall pay the reasonable and necessary expenses for the department or
the department's representative to examine the records where they are
maintained. The department may designate comparable officials of the
state in which the records are located to inspect the records on behalf
of the department.
(4) Upon a person's failure without lawful excuse to obey a
subpoena or to give testimony and upon reasonable notice by the
department to all affected persons, the department may apply to any
civil court with jurisdiction for an order compelling compliance.
(5) The department shall not make public:
(a) the name or identity of a person whose acts or conduct the
department investigates under this section; or
(b) the facts discovered in the investigation.
However, this subsection does not apply to civil actions or enforcement
proceedings under this article.
(6) To discover violations of this article or to secure information
necessary for the enforcement of this article, the department may
investigate any:
(a) licensee; or
(b) person that the department suspects to be operating:
(i) without a license, when a license is required under this
article; or
(ii) otherwise in violation of this article.
The department has all investigatory and enforcement authority under
this article that the department has under IC 28-11 with respect to
financial institutions. If the department conducts an investigation under
this section, the licensee or other person investigated shall pay all
reasonably incurred costs of the investigation in accordance with the
fee schedule adopted under IC 28-11-3-5. Any costs required to be paid
under this section shall be paid not later than sixty (60) days after the
person being assessed the costs receives a notice from the department
of the costs assessed. The department may impose a fee, in an amount
fixed by the department under IC 28-11-3-5, for each day the assessed
costs are not paid, beginning on the first day after the sixty (60) day
period described in this subsection.
(7) If a creditor contracts with an outside vendor to provide a service
that would otherwise be undertaken internally by the creditor and be
subject to the department's routine examination procedures, the person
that provides the service to the creditor shall, at the request of the
director, submit to an examination by the department. If the director
determines that an examination under this subsection is necessary or
desirable, the examination may be made at the expense of the person
to be examined. If the person to be examined under this subsection
refuses to permit the examination to be made, the director may order
any creditor that is licensed by the department to engage in mortgage
transactions and that receives services from the person refusing the
examination to:
(a) discontinue receiving one (1) or more services from the
person; or
(b) otherwise cease conducting business with the person.

Legislative History

As added by P.L.145-2008, SEC.20. Amended by P.L.35-2010, SEC.29; P.L.216-2013, SEC.4; P.L.186-2015, SEC.9; P.L.69-2018, SEC.11.