2013 Indiana Code TITLE 24. TRADE REGULATION ARTICLE 4.6. SPECIAL PROVISIONS CONCERNING CERTAIN TRANSACTIONS CHAPTER 6. SENIOR CONSUMER PROTECTION
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IC 24-4.6-6
Chapter 6. Senior Consumer Protection
IC 24-4.6-6-1
Senior consumer protection act; application
Sec. 1. (a) This chapter shall be known and may be cited as the
senior consumer protection act.
(b) This chapter does not apply to deception, intimidation, or
other exploitation of a senior consumer in relation to insurance
coverage or an insurance product that is regulated by the Indiana
department of insurance. A senior consumer who is a victim of an act
that is:
(1) described in section 4(a) or 4(b) of this chapter; and
(2) related to insurance coverage or an insurance product;
may report the act to the Indiana department of insurance for action
by the insurance commissioner under IC 27. If the insurance
commissioner determines that the person who committed the act is
not subject to regulation by the Indiana department of insurance, the
insurance commissioner shall immediately refer the senior consumer
to the attorney general and the senior consumer may pursue remedies
available under this chapter.
(c) This chapter does not apply to the exploitation of a senior
consumer in relation to securities fraud that is regulated by the
secretary of state's office. A senior consumer who is a victim of an
act that is:
(1) described in section 4(a) or 4(b) of this chapter; and
(2) related to the Indiana uniform securities act under IC 23-19;
shall report the act to the secretary of state under IC 23-19. If the
secretary of state's office determines the person who committed the
act is not subject to the regulation of the secretary of state's office,
the secretary of state's office shall immediately refer the senior
consumer to the attorney general and the senior consumer may
pursue remedies available under this chapter.
As added by P.L.250-2013, SEC.1.
IC 24-4.6-6-2
Purposes and policies
Sec. 2. (a) This chapter shall be liberally construed and applied to
protect senior consumers.
(b) The purposes and policies of this chapter are to:
(1) simplify, clarify, and modernize the law concerning the
ownership, control, and use of property or assets of senior
consumers; and
(2) protect senior consumers from financial exploitation from
persons, who by deception or intimidation, obtain control over
the property or assets of a senior consumer.
As added by P.L.250-2013, SEC.1.
IC 24-4.6-6-3
Definitions
Sec. 3. The following definitions apply throughout this chapter:
(1) "Deception" means:
(A) misrepresentation or omission of any material fact
relating to the terms of a contract or agreement entered into
with a senior consumer or to the existing or pre-existing
condition of any of the property involved in such a contract
or agreement; or
(B) the use or employment of any misrepresentation, false
pretense, or false promise in order to induce, encourage, or
solicit a senior consumer to enter into a contract or
agreement.
(2) "Intimidation" means the conduct or communication by a
person directed toward a senior consumer informing or
implying to the senior consumer that the senior consumer will
be deprived of food and nutrition, shelter, prescribed
medication, or medical care and treatment if the senior
consumer does not comply with the person's demands.
(3) "Person" means an individual, a corporation, the state of
Indiana or its subdivisions or agencies, a business trust, an
estate, a trust, a partnership, an association, a nonprofit
corporation or organization, a cooperative, or any other legal
entity.
(4) "Person in a position of trust and confidence" means a
person, in relation to a senior consumer, who:
(A) is a parent, spouse, adult child, or other relative by blood
or marriage of the senior consumer;
(B) is a joint tenant or tenant in common with the senior
consumer;
(C) has a legal or fiduciary relationship with the senior
consumer;
(D) is a financial planning or investment professional; or
(E) is a paid or unpaid caregiver for the senior consumer.
(5) "Senior consumer" means an individual who is at least sixty
(60) years of age.
As added by P.L.250-2013, SEC.1.
IC 24-4.6-6-4
Financial exploitation of a senior consumer
Sec. 4. (a) A person commits financial exploitation of a senior
consumer when the person knowingly and by deception or
intimidation obtains control over the property of a senior consumer
or illegally uses the assets or resources of a senior consumer.
(b) The illegal use of the assets or resources of a senior consumer
includes, but is not limited to, the misappropriation of those assets or
resources by undue influence, breach of a fiduciary relationship,
fraud, deception, extortion, intimidation, or use of the assets or
resources contrary to law.
(c) Nothing in this section shall be construed to impose civil
liability on a person who has made a good faith effort to assist a
senior consumer in the management of the senior consumer's
property, but through no fault of the person has been unable to
provide such assistance.
(d) It is not a defense in an action under this chapter that a person
reasonably believed that the victim was not a senior consumer.
As added by P.L.250-2013, SEC.1.
IC 24-4.6-6-5
Action by senior consumer victim; remedies; action by attorney
general
Sec. 5. (a) A senior consumer who is a victim of an act described
in section 4(a) or 4(b) of this chapter may bring an action against the
person who commits the act.
(b) In an action brought against a person under this section, the
court may order the person to:
(1) return property or assets improperly obtained, controlled, or
used; and
(2) reimburse the senior consumer for any damages incurred or
for the value of the property or assets lost as a result of the
violation or violations of this chapter.
(c) In addition to the remedy provided in subsection (b), a court
may order the following:
(1) For knowing violations committed by a person who is not in
a position of trust and confidence:
(A) payment of two (2) times the amount of damages
incurred or value of property or assets lost; and
(B) payment of a civil penalty not exceeding five thousand
dollars ($5,000).
(2) For knowing violations committed by a person in a position
of trust and confidence:
(A) payment of treble damages; and
(B) payment of a civil penalty not exceeding ten thousand
dollars ($10,000).
(d) The court may award reasonable attorney's fees to a senior
consumer that prevails in an action under this section. Actual
damages awarded to a person under this section have priority over
any civil penalty imposed under this chapter.
(e) The burden of proof in proving that a person committed
financial exploitation of a senior consumer under section 4 of this
chapter is by a preponderance of the evidence.
(f) The attorney general may bring an action to enjoin an alleged
commission of financial exploitation of a senior consumer and may
petition the court to freeze the assets of the person allegedly
committing financial exploitation of a senior consumer in an amount
equal to but not greater than the alleged value of lost property or
assets for purposes of restoring to the victim the value of the lost
property or assets. The burden of proof required to freeze the assets
of a person allegedly committing financial exploitation of a senior
consumer is by a preponderance of the evidence. In addition, the
court may:
(1) issue an injunction;
(2) order the person to make payment of the money unlawfully
received from the senior consumer or senior consumers, to be
held in escrow for distribution to the aggrieved senior consumer
or senior consumers;
(3) for knowing violations, increase the amount of restitution
ordered under subdivision (2) in any amount up to three (3)
times the amount of damages incurred or value of property or
assets lost;
(4) order the person to pay to the state the reasonable costs of
the attorney general's investigation and prosecution related to
the action;
(5) provide for the appointment of a receiver;
(6) for knowing violations by a person who is not in a position
of trust and confidence, order the person to pay a civil penalty
of up to five thousand dollars ($5,000) per violation; and
(7) for knowing violations by a person in a position of trust and
confidence, order the person to pay a civil penalty of up to ten
thousand dollars ($10,000) per violation.
(g) In an action under subsection (a) or (f), the court may void or
limit the application of contracts or clauses resulting from the
financial exploitation.
(h) In an action under subsection (a), upon the filing of the
complaint or on the appearance of any defendant, claimant, or other
party, or at any later time, the trial court, the supreme court, or the
court of appeals may require the plaintiff, defendant, claimant, or
other party or parties to give security, or additional security, in a sum
the court directs to pay all costs, expenses, and disbursements that
are awarded against that party or that the party may be directed to
pay by any interlocutory order, by the final judgment, or on appeal.
(i) Any person who violates the terms of an injunction issued
under subsection (f) shall forfeit and pay to the state a civil penalty
of not more than fifteen thousand dollars ($15,000) per violation. For
the purposes of this section, the court issuing the injunction shall
retain jurisdiction, the cause shall be continued, and the attorney
general acting in the name of the state may petition for recovery of
civil penalties. Whenever the court determines that an injunction
issued under subsection (f) has been violated, the court shall award
reasonable costs to the state.
As added by P.L.250-2013, SEC.1.
IC 24-4.6-6-6
Other rights and remedies available to senior consumers
Sec. 6. This chapter does not limit the rights or remedies that are
otherwise available to a senior consumer under any other applicable
provision of law.
As added by P.L.250-2013, SEC.1.
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