First Regular Session 117th General Assembly (2011)
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HOUSE ENROLLED ACT No. 1182
AN ACT to amend the Indiana Code concerning trade regulation.
Be it enacted by the General Assembly of the State of Indiana:
SOURCE: IC 24-5-0.5-4; (11)HE1182.1.1. -->
SECTION 1. IC 24-5-0.5-4, AS AMENDED BY P.L.85-2006,
SECTION 4, IS AMENDED TO READ AS FOLLOWS [EFFECTIVE
UPON PASSAGE]: Sec. 4. (a) A person relying upon an uncured or
incurable deceptive act may bring an action for the damages actually
suffered as a consumer as a result of the deceptive act or five hundred
dollars ($500), whichever is greater. The court may increase damages
for a willful deceptive act in an amount that does not exceed the greater
(1) three (3) times the actual damages of the consumer suffering
the loss; or
(2) one thousand dollars ($1,000).
Except as provided in subsection (j), the court may award reasonable
attorney fees to the party that prevails in an action under this
subsection. This subsection does not apply to a consumer transaction
in real property, including a claim or action involving a construction
defect (as defined in IC 32-27-3-1(5)) brought against a construction
professional (as defined in IC 32-27-3-1(4)), except for purchases of
time shares and camping club memberships. This subsection also does
not apply to a violation of IC 24-4.7, IC 24-5-12, or IC 24-5-14. Actual
damages awarded to a person under this section have priority over any
civil penalty imposed under this chapter.
(b) Any person who is entitled to bring an action under subsection
(a) on the person's own behalf against a supplier for damages for a
deceptive act may bring a class action against such supplier on behalf
of any class of persons of which that person is a member and which has
been damaged by such deceptive act, subject to and under the Indiana
Rules of Trial Procedure governing class actions, except as herein
expressly provided. Except as provided in subsection (j), the court may
award reasonable attorney fees to the party that prevails in a class
action under this subsection, provided that such fee shall be determined
by the amount of time reasonably expended by the attorney and not by
the amount of the judgment, although the contingency of the fee may
be considered. Except in the case of an extension of time granted by
the attorney general under IC 24-10-2-2(b) in an action subject to
IC 24-10, any money or other property recovered in a class action
under this subsection which cannot, with due diligence, be restored to
consumers within one (1) year after the judgment becomes final shall
be returned to the party depositing the same. This subsection does not
apply to a consumer transaction in real property, except for purchases
of time shares and camping club memberships. Actual damages
awarded to a class have priority over any civil penalty imposed under
(c) The attorney general may bring an action to enjoin a deceptive
act. However, the attorney general may seek to enjoin patterns of
incurable deceptive acts with respect to consumer transactions in real
property. In addition, the court may:
(1) issue an injunction;
(2) order the supplier to make payment of the money unlawfully
received from the aggrieved consumers to be held in escrow for
distribution to aggrieved consumers;
(3) order the supplier to pay to the state the reasonable costs of
the attorney general's investigation and prosecution related to the
(4) provide for the appointment of a receiver.
(d) In an action under subsection (a), (b), or (c), the court may void
or limit the application of contracts or clauses resulting from deceptive
acts and order restitution to be paid to aggrieved consumers.
(e) In any action under subsection (a) or (b), upon the filing of the
complaint or on the appearance of any defendant, claimant, or any
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 any
other party or parties to give security, or additional security, in such
sum as the court shall direct to pay all costs, expenses, and
disbursements that shall be awarded against that party or which that
party may be directed to pay by any interlocutory order by the final
judgment or on appeal.
(f) Any person who violates the terms of an injunction issued under
subsection (c) 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 an 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 (c) has been violated, the court shall award
reasonable costs to the state.
(g) If a court finds any person has knowingly violated section 3 or
10 of this chapter, other than section 3(a)(19) of this chapter, the
attorney general, in an action pursuant to subsection (c), may recover
from the person on behalf of the state a civil penalty of a fine not
exceeding five thousand dollars ($5,000) per violation.
(h) If a court finds that a person has violated section 3(a)(19) of this
chapter, the attorney general, in an action under subsection (c), may
recover from the person on behalf of the state a civil penalty as follows:
(1) For a knowing or intentional violation, one thousand five
hundred dollars ($1,500).
(2) For a violation other than a knowing or intentional violation,
five hundred dollars ($500).
A civil penalty recovered under this subsection shall be deposited in
the consumer protection division telephone solicitation fund
established by IC 24-4.7-3-6 to be used for the administration and
enforcement of section 3(a)(19) of this chapter.
(i) An elderly person relying upon an uncured or incurable
deceptive act, including an act related to hypnotism, may bring an
action to recover treble damages, if appropriate.
(j) An offer to cure is:
(1) not admissible as evidence in a proceeding initiated under this
section unless the offer to cure is delivered by a supplier to the
consumer or a representative of the consumer before the supplier
files the supplier's initial response to a complaint; and
(2) only admissible as evidence in a proceeding initiated under
this section to prove that a supplier is not liable for attorney's fees
under subsection (k).
If the offer to cure is timely delivered by the supplier, the supplier may
submit the offer to cure as evidence to prove in the proceeding in
accordance with the Indiana Rules of Trial Procedure that the supplier
made an offer to cure.
(k) A supplier may not be held liable for the attorney's fees and
court costs of the consumer that are incurred following the timely
delivery of an offer to cure as described in subsection (j) unless the
actual damages awarded, not including attorney's fees and costs, exceed
the value of the offer to cure.
SOURCE: IC 24-10; (11)HE1182.1.2. -->
SECTION 2. IC 24-10 IS ADDED TO THE INDIANA CODE AS
A NEW ARTICLE TO READ AS FOLLOWS [EFFECTIVE UPON
ARTICLE 10. CONSUMER PROTECTION ASSISTANCE
Chapter 1. Definitions
Sec. 1. As used in this article, "fund" refers to the consumer
protection assistance fund established by IC 24-10-2-1.
Sec. 2. As used in this article, "office" refers to the office of
attorney general created by IC 4-6-1-2.
Sec. 3. As used in this article, "qualifying claim" means a claim
(1) subject to IC 24-10-2-2(b), is filed with the office on a form
prescribed by the office;
(2) is based on a court order that:
(A) is issued in a case instituted or maintained by the office
in connection with a violation of a statute set forth in
IC 24-10-2-1(c); and
(B) awards restitution to one (1) or more qualifying
(3) identifies each qualifying individual who:
(A) has been awarded restitution in the order described in
subdivision (2); and
(B) seeks payment from the fund through the claim
(4) attests that the party ordered to pay the restitution has not
paid the full amount ordered with respect to each qualifying
individual identified under subdivision (3); and
(5) seeks payment from the fund of any amount of the
(A) ordered by the court; and
(B) not paid by the party ordered to pay the restitution;
with respect to each qualifying individual identified under
Sec. 4. As used in this article, "qualifying individual" means an
Indiana resident who:
(1) is awarded restitution by a court in a case that:
(A) is instituted or maintained by the office; and
(B) involves a violation by one (1) or more other persons of
a statute set forth in IC 24-10-2-1(c); and
(2) assists or otherwise cooperates with the office in the
investigation, prosecution, or enforcement of the case.
Chapter 2. Establishment and Purposes of Fund
Sec. 1. (a) The consumer protection assistance fund is
established for the purpose of compensating qualifying individuals
who submit qualifying claims to the office. The fund shall be
administered by the office.
(b) The fund consists of:
(1) appropriations made to the fund by the general assembly;
(2) grants, gifts, and donations intended for deposit in the
(3) at the discretion of the office, money recovered or received
by the office for consumer protection purposes if use of the
money is not otherwise restricted.
(c) Money in the fund may be used to make payments to
qualifying individuals who file qualifying claims with the office in
connection with a case involving a violation by one (1) or more
other persons of any of the following statutes, including rules
adopted under the authority of the following statutes:
(1) IC 24-4.7 (concerning telephone solicitation of consumers)
if the case concerns a violation involving telephone
solicitations made in connection with any practice or
transaction governed by a statute described in subdivisions (2)
(2) IC 24-5-15 (concerning credit services organizations).
(3) IC 24-5.5 (concerning mortgage rescue fraud).
(4) IC 24-9 (concerning home loan practices).
(d) The expenses of administering the fund shall be paid from
money in the fund.
(e) The treasurer of state shall invest the money in the fund not
currently needed to meet the obligations of the fund in the same
manner as other public money may be invested. Interest that
accrues from these investments shall be deposited in the fund.
(f) Money in the fund at the end of a state fiscal year does not
revert to the state general fund.
Sec. 2. (a) The office may not make a payment to a qualifying
individual under section 1(c) of this chapter unless the party
ordered to pay restitution to the qualifying individual has not paid
the full amount of the restitution ordered by the court in the order
described in IC 24-10-1-3(2).
(b) A qualifying individual who seeks payment from the fund of
any amount of the restitution:
(1) ordered by the court to be paid to the individual; and
(2) not paid by the party ordered to pay the restitution;
may file a claim with the office on a form prescribed by the office.
A claim filed under this section must be received by the office not
later than one hundred eighty (180) days after the date of the order
described in IC 24-10-1-3(2). The office may grant an extension of
time for good cause shown by the individual filing the claim.
However, the office may not accept a claim that is received more
than two (2) years after the date of the order described in
(c) The personal information (as defined in IC 4-1-11-3) of an
individual who files a claim with the office under subsection (b) is
confidential and may not be disclosed or distributed outside the
office, except as may be required by law.
(d) Upon receiving a qualifying claim, the office may pay, from
money available in the fund, to each qualifying individual
identified in the claim under IC 24-10-1-3(3), an amount that:
(1) is determined at the discretion of the office;
(2) may be up to the amount of the restitution awarded to the
qualifying individual and not paid by the party ordered to pay
the restitution; and
(3) may not exceed three thousand dollars ($3,000).
(e) The limits set forth in subsection (d) do not prohibit a
qualifying individual from seeking to recover, in any action or
through any other lawful remedy available to the individual, any
amount of the restitution that:
(1) is awarded to the qualifying individual in the order
described in IC 24-10-1-3(2);
(2) is not paid by the party ordered to pay the restitution; and
(3) exceeds the amount paid to the qualifying individual by the
office under subsection (d).
Sec. 3. The state is not liable for a determination or an award
made by the office under this chapter except to the extent that
money is available in the fund on the date the award is determined
by the office under this chapter.
Sec. 4. The office may adopt rules under IC 4-22-2 to implement
SOURCE: ; (11)HE1182.1.3. -->
SECTION 3. An emergency is declared for this act.
HEA 1182 _ Concur
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