2023 Indiana Code › Title 24. Trade Regulation › Article 4.4. First Lien Mortgage Lending › Chapter 3. Administration › 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

Sec. 104. (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.
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.