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IBA E-News 3-22-19



Senate Bill 380 - Supported Decision-Making

Author: Sen. Eric Koch, R-Bedford / Rep. Wendy McNamara, R-Evansville

Summary of legislation: This bill requires that a person who files a petition for the appointment of a guardian for an incapacitated person or minor must inform the court what less-restrictive alternatives were considered or implemented and, if less restrictive alternatives were not considered or implemented, the reason for the failure to consider or implement less-restrictive alternatives. It also provides for the use of supported decision-making agreements for adults who need support and accommodations in making, communicating and effectuating decisions.

Latest action: The bill passed the House Judiciary Committee on March 18 by a vote of 12-0 and is now eligible for second reading amendments.

House Bill 1406 - Water Infrastructure Assistance Fund and Program

Author: Rep. Edmond Soliday, R-Valparaiso / Sen. Ed Charbonneau, R-Valparaiso

Summary of legislation: Water Infrastructure Assistance Fund: The bill provides that money from certain sources in the Water Infrastructure Assistance Fund (fund) is continuously appropriated for the purposes of the law concerning the Water Infrastructure Assistance Program. The bill authorizes the IFA to establish: (1) the interest rate; or (2)parameters for establishing the interest rate; on each loan made from the fund. It provides that a participant, to receive a loan, grant or other financial assistance from the fund: (1) must have an asset management program; and (2) must demonstrate to the authority that it has a plan to participate with one or more other participants in cooperative activities. It requires the IFA to establish a project prioritization system and project priority list for the purposes of awarding loans and grants from the fund. It requires the IFA to set aside 40% of the fund for purposes of providing grants, loans and other financial assistance to or for the benefit of utilities serving less than 3,200 customers. It authorizes the IFA to provide advisory services to participants in connection with loans from the fund. It provides that, if appropriate, the IFA shall require a participant receiving a loan or other financial assistance from the fund to establish and maintain sufficient user charges, fees, taxes, special assessments or revenues to: (1) operate and maintain; and (2) pay the obligations of; its water or wastewater collection and treatment system. It authorizes the IFA to make loans or provide other financial assistance from the fund to or for the benefit of a participant to establish guaranties, reserves, or sinking funds or for other purposes. The bill also authorizes the IFA to use the money in the fund to provide a leveraged loan program and other financial assistance programs to or for the benefit of participants. The bill provides that a participant, after receiving a loan or grant from the fund, must maintain its asset management program: (1) as long as the loan remains unpaid; or (2) during the useful life of the asset financed with the loan or grant. It requires a participant, if appropriate, to conduct or participate in efforts to determine and eliminate the causes of non-revenue water in its water distribution system.

Latest action: The bill passed the Senate Utilities Committee on March 21 by a vote of 10-0 and is now eligible for second reading amendments.

House Bill 1123 - Telephone Solicitation

Author: Rep. Jeff Ellington, R-Bloomington / Sen. Randy Head, R-Logansport

Summary of legislation: Do Not Call Registry: The bill adds the following to the list of telephone calls that are exempt from the state’s “do not call” statute (statute): (1) Any telephone call made to a consumer by a communications service provider that has an established business relationship with the consumer. (2) Any telephone call made to a consumer by: (A) a financial institution; or (B) a person licensed by the Department of Financial Institutions(DFI) to engage in first lien mortgage transactions or consumer credit transactions; that has an established business relationship with the consumer. In addition to requiring the Consumer Protection Division of the Attorney General’s Office to notify Indiana residents of the right of any eligible consumer to place a telephone number on the state’s “do not call” listing, the bill requires the Division to notify residents of the following: (1) The prohibition under federal law against a person making any call using an: (A) automatic telephone dialing system; or (B) artificial or prerecorded voice; to any telephone number assigned to a mobile telecommunications service. (2) The prohibition under federal law against a person initiating any telephone call to any residential telephone line using an artificial or prerecorded voice to deliver a message without the prior consent of the called party. (3) Information concerning the placement of a telephone number on the National Do Not Call Registry operated by the Federal Trade Commission. Expansion of Telephone Solicitation Fund: The bill allows the Division to use the Consumer Protection Division Telephone Solicitation Fund to: (1) administer the statutes concerning: (A) the registration of telephone solicitors; and (B) the regulation of automatic dialing machines; and (2) reimburse county prosecutors for expenses incurred in extraditing violators of these and other state and federal statutes concerning telephone solicitations. (Current law provides that the fund may only be used to administer: (1) the state’s “do not call” statute; (2) the federal statute concerning restrictions on the use of telephone equipment; and (3) the state statute concerning misleading or inaccurate caller identification.) Executive Officer: The bill defines “executive” for purposes of the statute. It provides that an executive of person that violates the statute commits a separate deceptive act actionable by the Division. Expanded Seller Registration: The bill amends the definition of “seller” for purposes of the statute requiring telephone solicitors to register with the division, so that the definition includes any person making a telephone solicitation. (Current law includes only persons that making specified false representations in a telephone solicitation.) It provides that all sellers that make telephone solicitations must register with the Division. (Under current law, registration is required only if the solicitation involves consideration of more than $100 and less than $50,000.) Attorney General Revenue: The bill provides that certain civil penalties recovered by the Attorney General for violations of the statutes concerning: (1) the registration of telephone solicitors; and (2) the regulation of automatic dialing machines; shall be deposited in the Consumer Protection Division Telephone Solicitation Fund. It provides that the Attorney General can collect attorney fees and costs in a civil action for a violation of the statute prohibiting misleading or inaccurate caller identification (caller ID statute). Caller ID: The bill makes technical changes to the deceptive consumer sales act concerning violations of the caller ID statute. Study Committee: The bill urges the Legislative Council to assign to the Interim Study Committee on Corrections and Criminal Code the task of studying the following: (1) Whether existing criminal penalties for violations of specified telephone solicitation statutes should be increased. (2) The potential effects of increasing criminal penalties for violations of the statutes on: (A) the ability of the Office of the Attorney General to enforce compliance with the statutes; and (B) the state's criminal justice system.

Latest action: The bill passed the Senate Utilities Committee on March 21 by a vote of 10-0 and is now eligible for second reading amendments.




Supreme Court: Foreclosure Firms Not Considered Debt Collectors Under FDCPA

The Supreme Court on Wednesday ruled unanimously in the case of Obduskey v. McCarthy & Holthus LLP that a business engaged only in nonjudicial foreclosure proceedings is not a “debt collector” under the Fair Debt Collection Practices Act (FDCPA).

The case arose when a Colorado homeowner in 2009 defaulted on his Wells Fargo mortgage, and the bank hired the law firm of McCarthy & Holthus LLP to carry out a nonjudicial foreclosure on the property. During the foreclosure process, the homeowner alleged that the bank violated the FDCPA’s debt validations procedures. While the law firm is subject to the FDCPA’s provisions specifically related to enforcing a security interest, the Supreme Court in its decision relied on the FDCPA text and legislative history to conclude that it is not a “debt collector” and therefore not subject to the remaining FDCPA provisions.

Cannabis-Banking Bill Set for Committee Vote

The House Financial Services Committee is scheduled to vote next week on legislation to help enable banks to serve cannabis-related businesses. The SAFE Banking Act (H.R. 1595) would establish a safe harbor from federal sanctions for financial institutions and ancillary companies that serve cannabis-related businesses in states where cannabis is legal. The panel is set to convene for the markup at 2 p.m. (Eastern time) on March 26.

OCC Proposes Partial Assessment Refunds for Banks Leaving its Supervision

The Office of the Comptroller of the Currency on Thursday proposed to amend its assessment rules to provide partial refunds to national banks, federal thrifts and federal branches of foreign banks that leave OCC jurisdiction before the end of the six-month assessment period. Assessments are currently due on March 31 and Sept. 30 of each year, with the deadlines falling halfway between the semiannual assessment periods of Jan. 1 through June 30 and July 1 through Dec. 31.

Under the proposed rule, banks leaving OCC jurisdiction on or before the March or September payment due dates would be eligible to receive a refund for the second three months of the assessment period. The proposal also includes technical amendments to the assessment rules. Comments on the proposed rule are due by April 19.

Read the proposed rule.

FDIC Formally Rescinds Duplicative Disclosure Requirement

The Federal Deposit Insurance Corp. last Friday issued a final rule to rescind Part 350 from the Code of Federal Regulations, removing an annual disclosure requirement that was duplicated by data publicly available on the FDIC’s website.

The 1987 requirement – flagged as outdated by the banking agencies in their most recent decennial Economic Growth and Regulatory Paperwork Reduction Act review – called for FDIC-insured state non-member banks and foreign branches, but not state thrifts, to prepare annual disclosures of Call Report and other data.

Read the final rule.