2016 Indiana Code TITLE 24. TRADE REGULATION ARTICLE 4.4. FIRST LIEN MORTGAGE LENDING CHAPTER 1. GENERAL PROVISIONS AND DEFINITIONS
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IC 24-4.4
ARTICLE 4.4. FIRST LIEN MORTGAGE LENDING
IC 24-4.4-1
Chapter 1. General Provisions and Definitions
IC 24-4.4-1-101
Short title; rules concerning licensing system for creditors and
mortgage loan originators
Sec. 101. (a) This article shall be known and may be cited as the
First Lien Mortgage Lending Act.
(b) Notwithstanding any other provision of this article or
IC 24-4.5, the department may adopt emergency rules under
IC 4-22-2-37.1, to remain effective until codified in the Indiana
Code, in order to provide for a system of licensing creditors and
mortgage loan originators that meets the requirements of the Secure
and Fair Enforcement for Mortgage Licensing Act of 2008 (H.R.
3221 Title V) and the interpretations of that Act issued by the
Secretary of Housing and Urban Development and the Consumer
Financial Protection Bureau.
As added by P.L.145-2008, SEC.20. Amended by P.L.182-2009(ss),
SEC.369; P.L.27-2012, SEC.2.
IC 24-4.4-1-102
Purposes; rules of construction
Sec. 102. (1) This article shall be liberally construed and applied
to promote its underlying purposes and policies.
(2) The underlying purposes and policies of this article are:
(a) to permit and encourage the development of fair and
economically sound first lien mortgage lending practices; and
(b) to conform the regulation of first lien mortgage lending
practices to applicable state and federal laws, rules, regulations,
policies, and guidance.
(3) A reference to a requirement imposed by this article includes
reference to a related rule of the department adopted under this
article.
(4) A reference to a federal law in this article is a reference to the
law as in effect December 31, 2015.
As added by P.L.145-2008, SEC.20. Amended by P.L.35-2010,
SEC.5; P.L.89-2011, SEC.1; P.L.27-2012, SEC.3; P.L.216-2013,
SEC.1; P.L.137-2014, SEC.1; P.L.186-2015, SEC.6; P.L.73-2016,
SEC.1.
IC 24-4.4-1-103
Unified coverage of subject matter; construction against implied
repeal
Sec. 103. This article:
(1) is a general act intended as a unified coverage of its subject
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matter; and
(2) any part of this article may not be considered to be impliedly
repealed by subsequent legislation if such construction can
reasonably be avoided.
As added by P.L.145-2008, SEC.20.
IC 24-4.4-1-104
Severability
Sec. 104. The provisions of this article are severable, so that if:
(1) any provisions of this article; or
(2) the application of this article to any person or
circumstances;
is held invalid, the invalidity does not affect other provisions or
applications of this article that can be given effect without the invalid
provision or application.
As added by P.L.145-2008, SEC.20.
IC 24-4.4-1-201
Application; nonresident debtor
Sec. 201. (1) Except as provided in subsection (2), this article
applies to a first lien mortgage transaction:
(a) that is secured by an interest in:
(i) a dwelling; or
(ii) residential real estate upon which a dwelling is
constructed or intended to be constructed;
in Indiana; and
(b) the closing for which takes place after December 31, 2008.
(2) This article does not apply to a first lien mortgage transaction
if:
(a) the debtor is not a resident of Indiana at the time the
transaction is entered into; and
(b) the laws of the debtor's state of residence require that the
transaction be made under the laws of the state of the debtor's
residence.
As added by P.L.145-2008, SEC.20. Amended by P.L.1-2009,
SEC.134; P.L.89-2011, SEC.2.
IC 24-4.4-1-202
Exempt transactions and persons
Sec. 202. (a) As used in this section, "balloon payment", with
respect to a mortgage transaction, means any payment:
(1) that the creditor requires the debtor to make at any time
during the term of the mortgage;
(2) that represents the entire amount of the outstanding balance
with respect to the mortgage; and
(3) the entire amount of which is due as of a specified date or at
the end of a specified period;
if the aggregate amount of the minimum periodic payments required
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under the mortgage would not fully amortize the outstanding balance
by the specified date or at the end of the specified period. The term
does not include a payment required by a creditor under a
due-on-sale clause (as defined in 12 U.S.C. 1701j-3(a)) or a payment
required by a creditor under a provision in the mortgage that permits
the creditor to accelerate the debt upon the debtor's default or failure
to abide by the material terms of the mortgage.
(b) This article does not apply to the following:
(1) Extensions of credit to government or governmental
agencies or instrumentalities.
(2) A first lien mortgage transaction in which the debt is
incurred primarily for a purpose other than a personal, family,
or household purpose.
(3) An extension of credit primarily for a business, a
commercial, or an agricultural purpose.
(4) Except for IC 24-4.4-2-401(2), IC 24-4.4-2-402.3,
IC 24-4.4-2-405(4), and IC 24-4.4-2-405(5), a first lien
mortgage transaction made:
(a) in compliance with the requirements of; and
(b) by a community development corporation (as defined in
IC 4-4-28-2) acting as a subrecipient of funds from;
the Indiana housing and community development authority
established by IC 5-20-1-3.
(5) Except for IC 24-4.4-2-401(2), IC 24-4.4-2-402.3,
IC 24-4.4-2-405(4), and IC 24-4.4-2-405(5), a first lien
mortgage transaction made by an entity that exclusively uses
funds provided by the United States Department of Housing and
Urban Development under Title 1 of the federal Housing and
Community Development Act of 1974, Public Law 93-383, as
amended (42 U.S.C. 5301 et seq.).
(6) An extension of credit originated by the following:
(a) A depository institution. However, a federal savings bank
may voluntarily register with the department for the purpose
of sponsoring, under an exclusive written agreement,
individuals who are licensed as mortgage loan originators
under this article and 750 IAC 9-3, who perform mortgage
loan origination activities as independent agents under the
federal savings bank's direct supervision and control, who
hold a current, valid insurance producer license under
IC 27-1-15.6, and who sell, solicit, or negotiate insurance
under an exclusive written agreement for a licensed
insurance company that is a subsidiary of a company that
also owns or controls the federal savings bank, if the federal
savings bank does the following:
(i) Assumes responsibility for and reasonably supervises
the activities of all licensed mortgage loan originators
sponsored by the federal savings bank under this clause.
(ii) Registers with and maintains a valid unique identifier
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issued by the NMLSR as required by IC 24-4.4-2-401(2),
maintains a surety bond in accordance with
IC 24-4.4-2-402.3, submits to the NMLSR reports of
condition in accordance with IC 24-4.4-2-405(4) (subject
to IC 24-4.4-2-402.4), and files financial statements with
the department in accordance with IC 24-4.4-2-405(5).
(iii) Cooperates with the department, and provides access
to records and documents, as required by the department
in carrying out examinations of the activities of the
licensed mortgage loan originators sponsored by the
federal savings bank under this clause, as described in
IC 24-4.4-2-405(1).
(iv) Agrees to comply with all law, rules, directives, and
orders in connection with the activities of the licensed
mortgage loan originators sponsored by the federal savings
bank, as the director determines necessary to ensure
compliance with the federal Secure and Fair Enforcement
for Mortgage Licensing Act of 2008 (12 U.S.C. 5101 et
seq.) and with Indiana law.
(b) Subsidiaries that are not licensed under this article and
that are:
(i) owned and controlled by a depository institution; and
(ii) regulated by a federal banking agency.
(c) An institution regulated by the Farm Credit
Administration.
(7) Except for IC 24-4.4-2-401(2), IC 24-4.4-2-402.3,
IC 24-4.4-2-405(4), and IC 24-4.4-2-405(5), a credit union
service organization that is majority owned, directly or
indirectly, by one (1) or more credit unions.
(8) A first lien mortgage transaction originated by a registered
mortgage loan originator, when acting for an entity described in
subsection (6). However, a privately insured state chartered
credit union shall comply with the system of mortgage loan
originator registration developed by the Federal Financial
Institutions Examinations Council under Section 1507 of the
federal Secure and Fair Enforcement for Mortgage Licensing
Act of 2008 (SAFE).
(9) An individual who offers or negotiates terms of a mortgage
transaction with or on behalf of an immediate family member
of the individual.
(10) An individual who offers or negotiates terms of a mortgage
transaction secured by a dwelling that served as the individual's
residence.
(11) Unless the attorney is compensated by:
(a) a lender;
(b) a mortgage broker;
(c) another mortgage loan originator; or
(d) any agent of the lender, mortgage broker, or other
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mortgage loan originator described in clauses (a) through
(c);
a licensed attorney who negotiates the terms of a mortgage
transaction on behalf of a client as an ancillary matter to the
attorney's representation of the client.
(12) The United States, any state or local government, or any
agency or instrumentality of any governmental entity, including
United States government sponsored enterprises.
(13) A person in whose name a tablefunded transaction is
closed, as described in section 301(34)(a) of this chapter.
However, the exemption provided by this subsection does not
apply if:
(a) the transaction:
(i) is secured by a dwelling that is a mobile home, a
manufactured home, or a trailer; and
(ii) is not also secured by an interest in land; and
(b) the person in whose name the transaction is closed, as
described in section 301(34)(a) of this chapter, sells the
dwelling to the debtor through a retail installment contract
or other similar transaction.
(14) A bona fide nonprofit organization not operating in a
commercial context, as determined by the director, if the
following criteria are satisfied:
(a) Subject to clause (b), the organization originates only one
(1) or both of the following types of mortgage transactions:
(i) Zero (0) interest first lien mortgage transactions.
(ii) Zero (0) interest subordinate lien mortgage
transactions.
(b) The organization does not require, under the terms of the
mortgage or otherwise, balloon payments with respect to the
mortgage transactions described in clause (a).
(c) The organization is exempt from federal income taxation
under Section 501(c)(3) of the Internal Revenue Code.
(d) The organization's primary purpose is to serve the public
by helping low income individuals and families build, repair,
and purchase housing.
(e) The organization uses only:
(i) unpaid volunteers; or
(ii) employees whose compensation is not based on the
number or size of any mortgage transactions that the
employees originate;
to originate the mortgage transactions described in clause
(a).
(f) The organization does not charge loan origination fees in
connection with the mortgage transactions described in
clause (a).
(15) A bona fide nonprofit organization (as defined in section
301(37) of this chapter) if the following criteria are satisfied:
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(a) For each calendar year that the organization seeks the
exemption provided by this subdivision, the organization
certifies, not later than December 31 of the preceding
calendar year and on a form prescribed by the director and
accompanied by such documentation as required by the
director, that the organization is a bona fide nonprofit
organization (as defined in section 301(37) of this chapter).
(b) The director determines that the organization originates
only mortgage transactions that are favorable to the debtor.
For purposes of this clause, a mortgage transaction is
favorable to the debtor if the director determines that the
terms of the mortgage transaction are consistent with terms
of mortgage transactions made in a public or charitable
context, rather than in a commercial context.
As added by P.L.145-2008, SEC.20. Amended by P.L.35-2010,
SEC.6; P.L.89-2011, SEC.3; P.L.9-2011, SEC.1; P.L.6-2012,
SEC.164; P.L.27-2012, SEC.4; P.L.13-2013, SEC.65; P.L.137-2014,
SEC.2; P.L.103-2014, SEC.1.
IC 24-4.4-1-202.5
Persons also engaging in loan brokerage business; applicability of
loan broker statutes; examination by department; cooperation with
securities division
Sec. 202.5. (1) If a person licensed or required to be licensed
under this article also engages in the loan brokerage business, the
person's loan brokerage business is subject to the following sections
of the Indiana Code and any rules adopted to implement these
sections:
(a) IC 23-2-5-9.
(b) IC 23-2-5-9.1.
(c) IC 23-2-5-15.
(d) IC 23-2-5-16.
(e) IC 23-2-5-17.
(f) IC 23-2-5-18.
(g) IC 23-2-5-18.5.
(h) IC 23-2-5-20.
(i) IC 23-2-5-23, except for IC 23-2-5-23(2)(B).
(j) IC 23-2-5-24.
(2) Loan broker business transactions engaged in by persons
licensed or required to be licensed under this article are subject to
examination by the department and to the examination fees described
in IC 24-4.4-2-402(8)(c). The department may cooperate with the
securities division of the office of the secretary of state in the
department's examination of loan broker business transactions and
may use the securities division's examiners to conduct examinations.
As added by P.L.35-2010, SEC.7. Amended by P.L.186-2015, SEC.7.
IC 24-4.4-1-203
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Repealed
(As added by P.L.145-2008, SEC.20. Repealed by P.L.35-2010,
SEC.209.)
IC 24-4.4-1-204
Entities that also conduct loan broker business; regulatory
cooperation with securities commissioner
Sec. 204. In the department's examination and regulatory activities
related to licensees under this article, the department may cooperate
with the Indiana securities commissioner in the regulation of entities
that, in addition to conducting business regulated under this article,
also conduct a loan brokerage business subject to IC 23-2-5.
As added by P.L.35-2010, SEC.8.
IC 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;
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(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
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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 as a creditor under this
article.
(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 or exempt from licensing under this article.
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
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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.
(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 or
exempt from licensing under this article or under IC 24-4.5,
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 or exempt from licensing
under this article.
(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
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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
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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)(15) of this chapter) and
comparable to mortgage transactions and housing assistance
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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.
Indiana Code 2016
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