Indiana Code 28-1-29-10.5. Record keeping and retention; examinations and investigations; payment of costs; court order compelling compliance; confidentiality; department’s investigatory and enforcement authority; cooperative regulatory agreements; …
(b) In administering this chapter and in order to determine whether this chapter is being complied with by a person engaging in acts subject to this chapter, the department may examine the records of a person and may make investigations of a person as necessary to determine compliance. Records subject to examination under this section include the following:
Terms Used In Indiana Code 28-1-29-10.5
- Agreement: means an agreement between a debt management company and a debtor for the performance of debt management services. See Indiana Code 28-1-29-1
- Day: means a calendar day. See Indiana Code 28-1-29-1
- Debt: means an obligation arising out of personal, family, or household use. See Indiana Code 28-1-29-1
- Debt management company: is a ny person doing business as a budget counseling, credit counseling, debt management, or debt pooling service or holding the person out, by words of similar import, as providing services to debtors in the management of their debts, and having a written agreement with the debtor to disburse money or anything of value. See Indiana Code 28-1-29-1
- Department: means the members of the department of financial institutions. See Indiana Code 28-1-29-1
- Evidence: Information presented in testimony or in documents that is used to persuade the fact finder (judge or jury) to decide the case for one side or the other.
- Fee: means the total amount of money charged to a contract debtor by a debt management company for the administration of a debt management plan. See Indiana Code 28-1-29-1
- License: means a license issued under the provisions of this chapter. See Indiana Code 28-1-29-1
- Licensee: means any person to whom a license has been issued pursuant to the provisions of this chapter. See Indiana Code 28-1-29-1
- Person: includes individuals, sole proprietorships, partnerships, limited liability companies, trusts, joint ventures, corporations, unincorporated organizations, other entities, and their affiliates, however organized. See Indiana Code 28-1-29-1
- Subpoena: A command to a witness to appear and give testimony.
- Testimony: Evidence presented orally by witnesses during trials or before grand juries.
(2) Minutes of:
(A) management meetings; and
(B) other meetings.
(3) Other records that the department determines are necessary to perform the department’s investigation or examination.
(c) The department may also administer oaths or affirmations, subpoena witnesses, compel a witness’s attendance, adduce evidence, and require the production of any matter that is relevant to the investigation. The department shall determine whether:
(1) the records maintained are sufficient; and
(2) the person has made the required information reasonably available.
(d) If the department:
(1) investigates; or
(2) examines the books and records of;
a person that is subject to this chapter, the person shall pay all reasonably incurred costs of the investigation or examination in accordance with the fee schedule adopted by the department under IC 28-11-3-5. Any costs required to be paid under this subsection shall be paid not later than sixty (60) days after the person receives a notice from the department of the costs being assessed. The department may impose a fee, in an amount fixed by the department under IC 28-11-3-5, for each day that the assessed costs are not paid, beginning on the first day after the sixty (60) day period described in this subsection.
(e) The department shall be given free access to the records wherever located. If the person’s records are located outside Indiana, at the discretion of the director, 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 the records are maintained.
(f) If a person fails to:
(1) obey a subpoena without a lawful excuse; or
(2) give testimony;
the department may apply to a civil court for an order compelling compliance.
(g) The department shall not make public the name or identity of a person whose acts or conduct the department investigates under this section or the facts disclosed in the investigation. However, this subsection does not apply to disclosures of enforcement proceedings under this chapter.
(h) To discover violations of this chapter or to secure information necessary for the enforcement of this chapter, the department may investigate any:
(1) licensee; or
(2) person that the department suspects to be operating:
(A) without a license, when a license is required under this chapter; or
(B) otherwise in violation of this chapter.
The department has all investigatory and enforcement authority under this chapter 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.
(i) The department may:
(1) enter into a cooperative arrangement with another federal or state agency having authority over debt management companies; and
(2) exchange with the agency information about a person subject to this chapter, including information obtained during an examination of the person.
(j) If a person doing business as a debt management company contracts with an outside vendor to provide a service that would otherwise be undertaken internally by the person doing business as a debt management company and be subject to the department’s routine examination procedures, the person that provides the service to the person doing business as a debt management company 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 person doing business as a debt management company that receives services from the person refusing the examination to:
(1) discontinue receiving one (1) or more services from the person refusing the examination; or
(2) otherwise cease conducting business with the person refusing the examination.
As added by P.L.35-2010, SEC.134. Amended by P.L.137-2014, SEC.25; P.L.5-2015, SEC.61.