2023 Indiana Code › Title 24. Trade Regulation › Article 4.4. First Lien Mortgage Lending › Chapter 1. General Provisions and Definitions › 24-4.4-1-301. Definitions

Sec. 301. 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 subsection, 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 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.
As added by P.L.145-2008, SEC.20. Amended by P.L.35-2010, SEC.9; P.L.42-2011, SEC.48; P.L.89-2011, SEC.4; P.L.27-2012, SEC.5; P.L.216-2013, SEC.2; P.L.137-2014, SEC.3; P.L.73-2016, SEC.2; P.L.69-2018, SEC.3; P.L.197-2023, SEC.3.