IC 25-34.1-7-1 Establishment of fund; administration; investments
Sec. 1. (a) The real estate recovery fund is established for the
purpose set out in this chapter. The fund shall be administered by the
real estate commission.
(b) 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 funds may be invested. Interest that accrues
from these investments shall be deposited in the fund.
(c) Money in the fund at the end of a state fiscal year does not
revert to the state general fund, except as provided in section 2.1 of
this chapter. As added by P.L.255-1987, SEC.6. Amended by P.L.143-1990,
SEC.9.
IC 25-34.1-7-2 Surcharge; formula; assessment; application of section
Sec. 2. (a) If the total amount in the real estate recovery fund
(including principal and interest) is less than four hundred fifty
thousand dollars ($450,000) on June 30 in an odd-numbered year
after the payment of all claims and expenses, the real estate
commission shall assess a surcharge according to the following
formula in order to maintain the fund at an approximate level of six
hundred thousand dollars ($600,000):
STEP ONE: Determine the amount remaining in the fund on
June 30 of the current year after all expenses and claims have
been paid.
STEP TWO: Subtract the amount determined under STEP ONE
from six hundred thousand dollars ($600,000).
STEP THREE: Determine the number of licensees who had
licenses in effect on June 30 of the current year.
STEP FOUR: Divide the number determined under STEP TWO
by the number determined under STEP THREE.
(b) The real estate commission shall assess the surcharge
described in subsection (a) against each licensee who:
(1) receives an initial license; or
(2) receives a renewal license.
(c) The real estate commission shall assess the surcharge
described in subsection (a) for the two (2) year period beginning on
July 1 of the current year through June 30 of the next odd-numbered
year.
(d) The surcharge assessed under this section is in addition to any
other fee under this article.
(e) This section does not apply to a person who:
(1) receives an initial license or certificate; or
(2) receives a renewal license or certificate;
under the real estate appraiser licensure and certification program
established under IC 25-34.1-3-8. As added by P.L.255-1987, SEC.6. Amended by P.L.143-1990,
SEC.10; P.L.183-1991, SEC.9.
IC 25-34.1-7-2.1 Reversion of excess funds
Sec. 2.1. If the total amount in the real estate recovery fund
(including principal and interest) exceeds seven hundred fifty
thousand dollars ($750,000) at the end of a state fiscal year after the
payment of all claims and expenses, the amount in excess of seven
hundred fifty thousand dollars ($750,000) reverts to the state general
fund. As added by P.L.143-1990, SEC.11.
IC 25-34.1-7-3 Interest on investments; payment of expenses
Sec. 3. Any interest earned on investment of money in the real
estate recovery fund shall be credited at least annually to the fund.
No money may be appropriated from the general fund for payment
of any expenses incurred under this chapter, and none of these
expenses may be charged against the state. As added by P.L.255-1987, SEC.6.
IC 25-34.1-7-4 Applications for order directing payment out of fund; amount of
loss; limitation on recovery
Sec. 4. (a) If any aggrieved person obtains a final judgment in any
court against a licensee to recover damages for any act of:
(1) embezzlement of money or property; or
(2) unlawfully obtaining money or property by false pretenses,
use of a device, trickery, or forgery;
that results in an actual cash loss to the aggrieved person (as opposed
to loss in market value), the person may, upon termination of all
proceedings including appeals and proceedings supplemental to
judgment for collection purposes, file a verified application in the
court in which the judgment was entered for an order directing
payment out of the real estate recovery fund of the amount of actual
and direct loss in the transaction that remains unpaid upon the
judgment. The amount of actual and direct loss may include court
costs but may not include attorney's fees or punitive damages
awarded. The amount that may be paid from the real estate recovery
fund may not exceed twenty thousand dollars ($20,000) per judgment
and an aggregate lifetime limit of fifty thousand dollars ($50,000)
with respect to any one (1) licensee.
(b) This section applies only to a final judgment that awards
damages for an act by the licensee described in subsections (a)(1)
through (a)(2) that arises directly out of any transaction:
(1) that occurred when the licensee was licensed;
(2) for which a license was required under IC 25-34.1; and
(3) that occurred after December 31, 1987.
As added by P.L.255-1987, SEC.6.
IC 25-34.1-7-5 Claims against single licensee in excess of dollar limitation;
distribution; joinder of claims; payment; insufficient funds
Sec. 5. (a) If the payment in full of two (2) or more pending valid
claims that have been filed by aggrieved persons against a single
licensee would exceed the fifty thousand dollar ($50,000) limit set
forth in section 4 of this chapter, the fifty thousand dollars ($50,000)
shall be distributed among the aggrieved persons in the ratio that
their respective claims bear to the aggregate of all valid claims or in
any other manner that a court of record may determine equitable.
This money shall be distributed among the persons entitled to share
in it without regard to the order of priority in which their respective
judgments have been obtained or their claims have been filed.
(b) Upon petition of the commission, the court may require all
claimants and prospective claimants against one (1) licensee to be
joined in one (1) action, to the end that the respective rights of all the
claimants to the commission may be equitably adjudicated and
settled.
(c) On June 30 and December 31 of each year, the real estate
commission shall identify each claim that the court orders to be paid
during the six (6) month period that ended on that day. The
commission shall pay the part of each claim that is so identified
within fifteen (15) days after the end of the six (6) month period in
which the claim is ordered paid. However, if the balance in the fund
is insufficient to pay the full payable amount of each claim that is
ordered to be paid during a six (6) month period, the commission
shall pay a prorated portion of each claim that is ordered to be paid
during the period. Any part of the payable amount of a claim left
unpaid due to the prorating of payments under this subsection must
be paid (subject to the fifty thousand dollar ($50,000) limit described
in section 4 of this chapter) before the payment of claims ordered to
be paid during the following six (6) month period. As added by P.L.255-1987, SEC.6.
IC 25-34.1-7-6 Agent for service of process
Sec. 6. Any broker or salesperson who is licensed or renews a
license under this article after December 31, 1987, and upon whom
personal service cannot be made with reasonable diligence shall be
considered to have appointed the commission as the licensee's agent
for service of process for purposes of actions filed under section 4 of
this chapter for recovery from the real estate recovery fund. Service
of process under this section shall be made as nearly as practicable
in the manner prescribed by the Indiana Rules of Trial Procedure for
service on corporations. As added by P.L.255-1987, SEC.6.
IC 25-34.1-7-7 Limitation of actions; notice of commencement of action
Sec. 7. An order for payment from the real estate recovery fund
may not be issued unless the action to recover from the real estate
recovery fund was commenced within one (1) year after the
termination of all proceedings against the licensee for embezzlement
of money or property, or unlawfully obtaining money or property by
false pretenses, use of a device, trickery, or forgery, including
appeals and proceedings supplemental to judgment. When any
person commences an action for a judgment that may result in an
order for payment from the fund, the person shall notify the
commission in writing of the commencement of the action. As added by P.L.255-1987, SEC.6.
IC 25-34.1-7-8 Commission as defendant; hearings; orders directing payment
Sec. 8. When any person files an application for an order directing
payment from the real estate recovery fund, the commission shall be
made a party defendant to the proceedings. The court shall conduct
a hearing on the application, and it may issue an order directing
payment out of the real estate recovery fund, as provided in section
9 of this chapter, subject to the limitation of section 4 of this chapter,
if the court finds:
(1) that there is no collusion between the judgment creditor and
the judgment debtor;
(2) that the judgment creditor is making application not more
than one (1) year after the termination of all proceedings in
connection with the judgment, including appeals and
proceedings supplemental to judgment for collection purposes;
(3) that the judgment creditor has caused to be issued a writ of
execution on the judgment and the officer executing the writ
has made a return showing that no personal or real property of
the judgment debtor liable to be levied upon in satisfaction of
the judgment could be found or that the amount realized on the
sale under the execution was insufficient to satisfy the
judgment;
(4) that the judgment creditor has diligently pursued the
creditor's remedies against all the judgment debtors and all
other persons liable to the creditor in the transaction for which
the creditor seeks recovery from the real estate recovery fund;
(5) that the embezzlement of money or property, or the
unlawfully obtaining of money or property by false pretenses,
use of a device, trickery, or forgery, arose directly out of a
transaction that occurred when the judgment debtor was
licensed and acted in a capacity for which a license is required
under this article and that the transaction occurred after
December 31, 1987; and
(6) that, in the event of a default judgment or a judgment
entered upon stipulation of the parties, the judgment debtor's
acts constituted embezzlement of money or property, or the
unlawful obtaining of money or property by false pretenses, use
of a device, trickery, or forgery. As added by P.L.255-1987, SEC.6.
IC 25-34.1-7-9 Payment of claims
Sec. 9. Upon a final order of the court directing that payment be
made out of the real estate recovery fund, the commission shall,
subject to sections 4 through 5 of this chapter, make the payment out
of the real estate recovery fund as provided in section 5 of this
chapter. As added by P.L.255-1987, SEC.6.
IC 25-34.1-7-10 Suspension of judgment debtor's license; repayment of fund;
interest
Sec. 10. If the commission is required to make any payment from
the real estate recovery fund in settlement of a claim or toward the
satisfaction of a judgment under this chapter, the commission shall
suspend the judgment debtor's license and, if the judgment debtor is
licensed under IC 25-34.1-3-3.1, the license of the individual
designated broker, under this article. The licensee is not eligible to
be licensed again as either a broker or a salesperson until the licensee
has repaid in full the amount paid from the real estate recovery fund
with interest of twelve percent (12%) per annum. As added by P.L.255-1987, SEC.6.
IC 25-34.1-7-11 Subrogation
Sec. 11. When upon order of any court, the commission has
caused payment to be made from the real estate recovery fund to a
judgment creditor, the commission is subrogated to the rights of the
judgment creditor with respect to the amount paid. As added by P.L.255-1987, SEC.6.
IC 25-34.1-7-12 Expenditure of interest
Sec. 12. Subject to the approval of the budget agency, the real
estate commission may expend the interest earned by the real estate
recovery fund for:
(1) information concerning the commission's activities and
administrative rulings;
(2) other educational information concerning the real estate
industry; and
(3) expenses related to the continuing education program under
IC 25-34.1-9. As added by P.L.255-1987, SEC.6. Amended by P.L.120-1992,
SEC.2.
IC 25-34.1-7-13 Attorney general; assistance; expenses
Sec. 13. (a) The office of the attorney general shall provide the
staff assistance necessary to:
(1) enable the real estate commission to perform its duties under
this chapter; and
(2) enforce this chapter.
(b) Expenses incurred by the office of the attorney general under
this section shall be paid from the real estate recovery fund. As added by P.L.255-1987, SEC.6.
IC 25-34.1-7-1 Establishment of fund; administration; investments
Sec. 1. (a) The real estate recovery fund is established for the
purpose set out in this chapter. The fund shall be administered by the
real estate commission.
(b) 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 funds may be invested. Interest that accrues
from these investments shall be deposited in the fund.
(c) Money in the fund at the end of a state fiscal year does not
revert to the state general fund, except as provided in section 2.1 of
this chapter. As added by P.L.255-1987, SEC.6. Amended by P.L.143-1990,
SEC.9.
IC 25-34.1-7-2 Surcharge; formula; assessment; application of section
Sec. 2. (a) If the total amount in the real estate recovery fund
(including principal and interest) is less than four hundred fifty
thousand dollars ($450,000) on June 30 in an odd-numbered year
after the payment of all claims and expenses, the real estate
commission shall assess a surcharge according to the following
formula in order to maintain the fund at an approximate level of six
hundred thousand dollars ($600,000):
STEP ONE: Determine the amount remaining in the fund on
June 30 of the current year after all expenses and claims have
been paid.
STEP TWO: Subtract the amount determined under STEP ONE
from six hundred thousand dollars ($600,000).
STEP THREE: Determine the number of licensees who had
licenses in effect on June 30 of the current year.
STEP FOUR: Divide the number determined under STEP TWO
by the number determined under STEP THREE.
(b) The real estate commission shall assess the surcharge
described in subsection (a) against each licensee who:
(1) receives an initial license; or
(2) receives a renewal license.
(c) The real estate commission shall assess the surcharge
described in subsection (a) for the two (2) year period beginning on
July 1 of the current year through June 30 of the next odd-numbered
year.
(d) The surcharge assessed under this section is in addition to any
other fee under this article.
(e) This section does not apply to a person who:
(1) receives an initial license or certificate; or
(2) receives a renewal license or certificate;
under the real estate appraiser licensure and certification program
established under IC 25-34.1-3-8. As added by P.L.255-1987, SEC.6. Amended by P.L.143-1990,
SEC.10; P.L.183-1991, SEC.9.
IC 25-34.1-7-2.1 Reversion of excess funds
Sec. 2.1. If the total amount in the real estate recovery fund
(including principal and interest) exceeds seven hundred fifty
thousand dollars ($750,000) at the end of a state fiscal year after the
payment of all claims and expenses, the amount in excess of seven
hundred fifty thousand dollars ($750,000) reverts to the state general
fund. As added by P.L.143-1990, SEC.11.
IC 25-34.1-7-3 Interest on investments; payment of expenses
Sec. 3. Any interest earned on investment of money in the real
estate recovery fund shall be credited at least annually to the fund.
No money may be appropriated from the general fund for payment
of any expenses incurred under this chapter, and none of these
expenses may be charged against the state. As added by P.L.255-1987, SEC.6.
IC 25-34.1-7-4 Applications for order directing payment out of fund; amount of
loss; limitation on recovery
Sec. 4. (a) If any aggrieved person obtains a final judgment in any
court against a licensee to recover damages for any act of:
(1) embezzlement of money or property; or
(2) unlawfully obtaining money or property by false pretenses,
use of a device, trickery, or forgery;
that results in an actual cash loss to the aggrieved person (as opposed
to loss in market value), the person may, upon termination of all
proceedings including appeals and proceedings supplemental to
judgment for collection purposes, file a verified application in the
court in which the judgment was entered for an order directing
payment out of the real estate recovery fund of the amount of actual
and direct loss in the transaction that remains unpaid upon the
judgment. The amount of actual and direct loss may include court
costs but may not include attorney's fees or punitive damages
awarded. The amount that may be paid from the real estate recovery
fund may not exceed twenty thousand dollars ($20,000) per judgment
and an aggregate lifetime limit of fifty thousand dollars ($50,000)
with respect to any one (1) licensee.
(b) This section applies only to a final judgment that awards
damages for an act by the licensee described in subsections (a)(1)
through (a)(2) that arises directly out of any transaction:
(1) that occurred when the licensee was licensed;
(2) for which a license was required under IC 25-34.1; and
(3) that occurred after December 31, 1987.
As added by P.L.255-1987, SEC.6.
IC 25-34.1-7-5 Claims against single licensee in excess of dollar limitation;
distribution; joinder of claims; payment; insufficient funds
Sec. 5. (a) If the payment in full of two (2) or more pending valid
claims that have been filed by aggrieved persons against a single
licensee would exceed the fifty thousand dollar ($50,000) limit set
forth in section 4 of this chapter, the fifty thousand dollars ($50,000)
shall be distributed among the aggrieved persons in the ratio that
their respective claims bear to the aggregate of all valid claims or in
any other manner that a court of record may determine equitable.
This money shall be distributed among the persons entitled to share
in it without regard to the order of priority in which their respective
judgments have been obtained or their claims have been filed.
(b) Upon petition of the commission, the court may require all
claimants and prospective claimants against one (1) licensee to be
joined in one (1) action, to the end that the respective rights of all the
claimants to the commission may be equitably adjudicated and
settled.
(c) On June 30 and December 31 of each year, the real estate
commission shall identify each claim that the court orders to be paid
during the six (6) month period that ended on that day. The
commission shall pay the part of each claim that is so identified
within fifteen (15) days after the end of the six (6) month period in
which the claim is ordered paid. However, if the balance in the fund
is insufficient to pay the full payable amount of each claim that is
ordered to be paid during a six (6) month period, the commission
shall pay a prorated portion of each claim that is ordered to be paid
during the period. Any part of the payable amount of a claim left
unpaid due to the prorating of payments under this subsection must
be paid (subject to the fifty thousand dollar ($50,000) limit described
in section 4 of this chapter) before the payment of claims ordered to
be paid during the following six (6) month period. As added by P.L.255-1987, SEC.6.
IC 25-34.1-7-6 Agent for service of process
Sec. 6. Any broker or salesperson who is licensed or renews a
license under this article after December 31, 1987, and upon whom
personal service cannot be made with reasonable diligence shall be
considered to have appointed the commission as the licensee's agent
for service of process for purposes of actions filed under section 4 of
this chapter for recovery from the real estate recovery fund. Service
of process under this section shall be made as nearly as practicable
in the manner prescribed by the Indiana Rules of Trial Procedure for
service on corporations. As added by P.L.255-1987, SEC.6.
IC 25-34.1-7-7 Limitation of actions; notice of commencement of action
Sec. 7. An order for payment from the real estate recovery fund
may not be issued unless the action to recover from the real estate
recovery fund was commenced within one (1) year after the
termination of all proceedings against the licensee for embezzlement
of money or property, or unlawfully obtaining money or property by
false pretenses, use of a device, trickery, or forgery, including
appeals and proceedings supplemental to judgment. When any
person commences an action for a judgment that may result in an
order for payment from the fund, the person shall notify the
commission in writing of the commencement of the action. As added by P.L.255-1987, SEC.6.
IC 25-34.1-7-8 Commission as defendant; hearings; orders directing payment
Sec. 8. When any person files an application for an order directing
payment from the real estate recovery fund, the commission shall be
made a party defendant to the proceedings. The court shall conduct
a hearing on the application, and it may issue an order directing
payment out of the real estate recovery fund, as provided in section
9 of this chapter, subject to the limitation of section 4 of this chapter,
if the court finds:
(1) that there is no collusion between the judgment creditor and
the judgment debtor;
(2) that the judgment creditor is making application not more
than one (1) year after the termination of all proceedings in
connection with the judgment, including appeals and
proceedings supplemental to judgment for collection purposes;
(3) that the judgment creditor has caused to be issued a writ of
execution on the judgment and the officer executing the writ
has made a return showing that no personal or real property of
the judgment debtor liable to be levied upon in satisfaction of
the judgment could be found or that the amount realized on the
sale under the execution was insufficient to satisfy the
judgment;
(4) that the judgment creditor has diligently pursued the
creditor's remedies against all the judgment debtors and all
other persons liable to the creditor in the transaction for which
the creditor seeks recovery from the real estate recovery fund;
(5) that the embezzlement of money or property, or the
unlawfully obtaining of money or property by false pretenses,
use of a device, trickery, or forgery, arose directly out of a
transaction that occurred when the judgment debtor was
licensed and acted in a capacity for which a license is required
under this article and that the transaction occurred after
December 31, 1987; and
(6) that, in the event of a default judgment or a judgment
entered upon stipulation of the parties, the judgment debtor's
acts constituted embezzlement of money or property, or the
unlawful obtaining of money or property by false pretenses, use
of a device, trickery, or forgery. As added by P.L.255-1987, SEC.6.
IC 25-34.1-7-9 Payment of claims
Sec. 9. Upon a final order of the court directing that payment be
made out of the real estate recovery fund, the commission shall,
subject to sections 4 through 5 of this chapter, make the payment out
of the real estate recovery fund as provided in section 5 of this
chapter. As added by P.L.255-1987, SEC.6.
IC 25-34.1-7-10 Suspension of judgment debtor's license; repayment of fund;
interest
Sec. 10. If the commission is required to make any payment from
the real estate recovery fund in settlement of a claim or toward the
satisfaction of a judgment under this chapter, the commission shall
suspend the judgment debtor's license and, if the judgment debtor is
licensed under IC 25-34.1-3-3.1, the license of the individual
designated broker, under this article. The licensee is not eligible to
be licensed again as either a broker or a salesperson until the licensee
has repaid in full the amount paid from the real estate recovery fund
with interest of twelve percent (12%) per annum. As added by P.L.255-1987, SEC.6.
IC 25-34.1-7-11 Subrogation
Sec. 11. When upon order of any court, the commission has
caused payment to be made from the real estate recovery fund to a
judgment creditor, the commission is subrogated to the rights of the
judgment creditor with respect to the amount paid. As added by P.L.255-1987, SEC.6.
IC 25-34.1-7-12 Expenditure of interest
Sec. 12. Subject to the approval of the budget agency, the real
estate commission may expend the interest earned by the real estate
recovery fund for:
(1) information concerning the commission's activities and
administrative rulings;
(2) other educational information concerning the real estate
industry; and
(3) expenses related to the continuing education program under
IC 25-34.1-9. As added by P.L.255-1987, SEC.6. Amended by P.L.120-1992,
SEC.2.
IC 25-34.1-7-13 Attorney general; assistance; expenses
Sec. 13. (a) The office of the attorney general shall provide the
staff assistance necessary to:
(1) enable the real estate commission to perform its duties under
this chapter; and
(2) enforce this chapter.
(b) Expenses incurred by the office of the attorney general under
this section shall be paid from the real estate recovery fund. As added by P.L.255-1987, SEC.6.
IC 25-34.1-7-1 Establishment of fund; administration; investments
Sec. 1. (a) The real estate recovery fund is established for the
purpose set out in this chapter. The fund shall be administered by the
real estate commission.
(b) 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 funds may be invested. Interest that accrues
from these investments shall be deposited in the fund.
(c) Money in the fund at the end of a state fiscal year does not
revert to the state general fund, except as provided in section 2.1 of
this chapter. As added by P.L.255-1987, SEC.6. Amended by P.L.143-1990,
SEC.9.
IC 25-34.1-7-2 Surcharge; formula; assessment; application of section
Sec. 2. (a) If the total amount in the real estate recovery fund
(including principal and interest) is less than four hundred fifty
thousand dollars ($450,000) on June 30 in an odd-numbered year
after the payment of all claims and expenses, the real estate
commission shall assess a surcharge according to the following
formula in order to maintain the fund at an approximate level of six
hundred thousand dollars ($600,000):
STEP ONE: Determine the amount remaining in the fund on
June 30 of the current year after all expenses and claims have
been paid.
STEP TWO: Subtract the amount determined under STEP ONE
from six hundred thousand dollars ($600,000).
STEP THREE: Determine the number of licensees who had
licenses in effect on June 30 of the current year.
STEP FOUR: Divide the number determined under STEP TWO
by the number determined under STEP THREE.
(b) The real estate commission shall assess the surcharge
described in subsection (a) against each licensee who:
(1) receives an initial license; or
(2) receives a renewal license.
(c) The real estate commission shall assess the surcharge
described in subsection (a) for the two (2) year period beginning on
July 1 of the current year through June 30 of the next odd-numbered
year.
(d) The surcharge assessed under this section is in addition to any
other fee under this article.
(e) This section does not apply to a person who:
(1) receives an initial license or certificate; or
(2) receives a renewal license or certificate;
under the real estate appraiser licensure and certification program
established under IC 25-34.1-3-8. As added by P.L.255-1987, SEC.6. Amended by P.L.143-1990,
SEC.10; P.L.183-1991, SEC.9.
IC 25-34.1-7-2.1 Reversion of excess funds
Sec. 2.1. If the total amount in the real estate recovery fund
(including principal and interest) exceeds seven hundred fifty
thousand dollars ($750,000) at the end of a state fiscal year after the
payment of all claims and expenses, the amount in excess of seven
hundred fifty thousand dollars ($750,000) reverts to the state general
fund. As added by P.L.143-1990, SEC.11.
IC 25-34.1-7-3 Interest on investments; payment of expenses
Sec. 3. Any interest earned on investment of money in the real
estate recovery fund shall be credited at least annually to the fund.
No money may be appropriated from the general fund for payment
of any expenses incurred under this chapter, and none of these
expenses may be charged against the state. As added by P.L.255-1987, SEC.6.
IC 25-34.1-7-4 Applications for order directing payment out of fund; amount of
loss; limitation on recovery
Sec. 4. (a) If any aggrieved person obtains a final judgment in any
court against a licensee to recover damages for any act of:
(1) embezzlement of money or property; or
(2) unlawfully obtaining money or property by false pretenses,
use of a device, trickery, or forgery;
that results in an actual cash loss to the aggrieved person (as opposed
to loss in market value), the person may, upon termination of all
proceedings including appeals and proceedings supplemental to
judgment for collection purposes, file a verified application in the
court in which the judgment was entered for an order directing
payment out of the real estate recovery fund of the amount of actual
and direct loss in the transaction that remains unpaid upon the
judgment. The amount of actual and direct loss may include court
costs but may not include attorney's fees or punitive damages
awarded. The amount that may be paid from the real estate recovery
fund may not exceed twenty thousand dollars ($20,000) per judgment
and an aggregate lifetime limit of fifty thousand dollars ($50,000)
with respect to any one (1) licensee.
(b) This section applies only to a final judgment that awards
damages for an act by the licensee described in subsections (a)(1)
through (a)(2) that arises directly out of any transaction:
(1) that occurred when the licensee was licensed;
(2) for which a license was required under IC 25-34.1; and
(3) that occurred after December 31, 1987.
As added by P.L.255-1987, SEC.6.
IC 25-34.1-7-5 Claims against single licensee in excess of dollar limitation;
distribution; joinder of claims; payment; insufficient funds
Sec. 5. (a) If the payment in full of two (2) or more pending valid
claims that have been filed by aggrieved persons against a single
licensee would exceed the fifty thousand dollar ($50,000) limit set
forth in section 4 of this chapter, the fifty thousand dollars ($50,000)
shall be distributed among the aggrieved persons in the ratio that
their respective claims bear to the aggregate of all valid claims or in
any other manner that a court of record may determine equitable.
This money shall be distributed among the persons entitled to share
in it without regard to the order of priority in which their respective
judgments have been obtained or their claims have been filed.
(b) Upon petition of the commission, the court may require all
claimants and prospective claimants against one (1) licensee to be
joined in one (1) action, to the end that the respective rights of all the
claimants to the commission may be equitably adjudicated and
settled.
(c) On June 30 and December 31 of each year, the real estate
commission shall identify each claim that the court orders to be paid
during the six (6) month period that ended on that day. The
commission shall pay the part of each claim that is so identified
within fifteen (15) days after the end of the six (6) month period in
which the claim is ordered paid. However, if the balance in the fund
is insufficient to pay the full payable amount of each claim that is
ordered to be paid during a six (6) month period, the commission
shall pay a prorated portion of each claim that is ordered to be paid
during the period. Any part of the payable amount of a claim left
unpaid due to the prorating of payments under this subsection must
be paid (subject to the fifty thousand dollar ($50,000) limit described
in section 4 of this chapter) before the payment of claims ordered to
be paid during the following six (6) month period. As added by P.L.255-1987, SEC.6.
IC 25-34.1-7-6 Agent for service of process
Sec. 6. Any broker or salesperson who is licensed or renews a
license under this article after December 31, 1987, and upon whom
personal service cannot be made with reasonable diligence shall be
considered to have appointed the commission as the licensee's agent
for service of process for purposes of actions filed under section 4 of
this chapter for recovery from the real estate recovery fund. Service
of process under this section shall be made as nearly as practicable
in the manner prescribed by the Indiana Rules of Trial Procedure for
service on corporations. As added by P.L.255-1987, SEC.6.
IC 25-34.1-7-7 Limitation of actions; notice of commencement of action
Sec. 7. An order for payment from the real estate recovery fund
may not be issued unless the action to recover from the real estate
recovery fund was commenced within one (1) year after the
termination of all proceedings against the licensee for embezzlement
of money or property, or unlawfully obtaining money or property by
false pretenses, use of a device, trickery, or forgery, including
appeals and proceedings supplemental to judgment. When any
person commences an action for a judgment that may result in an
order for payment from the fund, the person shall notify the
commission in writing of the commencement of the action. As added by P.L.255-1987, SEC.6.
IC 25-34.1-7-8 Commission as defendant; hearings; orders directing payment
Sec. 8. When any person files an application for an order directing
payment from the real estate recovery fund, the commission shall be
made a party defendant to the proceedings. The court shall conduct
a hearing on the application, and it may issue an order directing
payment out of the real estate recovery fund, as provided in section
9 of this chapter, subject to the limitation of section 4 of this chapter,
if the court finds:
(1) that there is no collusion between the judgment creditor and
the judgment debtor;
(2) that the judgment creditor is making application not more
than one (1) year after the termination of all proceedings in
connection with the judgment, including appeals and
proceedings supplemental to judgment for collection purposes;
(3) that the judgment creditor has caused to be issued a writ of
execution on the judgment and the officer executing the writ
has made a return showing that no personal or real property of
the judgment debtor liable to be levied upon in satisfaction of
the judgment could be found or that the amount realized on the
sale under the execution was insufficient to satisfy the
judgment;
(4) that the judgment creditor has diligently pursued the
creditor's remedies against all the judgment debtors and all
other persons liable to the creditor in the transaction for which
the creditor seeks recovery from the real estate recovery fund;
(5) that the embezzlement of money or property, or the
unlawfully obtaining of money or property by false pretenses,
use of a device, trickery, or forgery, arose directly out of a
transaction that occurred when the judgment debtor was
licensed and acted in a capacity for which a license is required
under this article and that the transaction occurred after
December 31, 1987; and
(6) that, in the event of a default judgment or a judgment
entered upon stipulation of the parties, the judgment debtor's
acts constituted embezzlement of money or property, or the
unlawful obtaining of money or property by false pretenses, use
of a device, trickery, or forgery. As added by P.L.255-1987, SEC.6.
IC 25-34.1-7-9 Payment of claims
Sec. 9. Upon a final order of the court directing that payment be
made out of the real estate recovery fund, the commission shall,
subject to sections 4 through 5 of this chapter, make the payment out
of the real estate recovery fund as provided in section 5 of this
chapter. As added by P.L.255-1987, SEC.6.
IC 25-34.1-7-10 Suspension of judgment debtor's license; repayment of fund;
interest
Sec. 10. If the commission is required to make any payment from
the real estate recovery fund in settlement of a claim or toward the
satisfaction of a judgment under this chapter, the commission shall
suspend the judgment debtor's license and, if the judgment debtor is
licensed under IC 25-34.1-3-3.1, the license of the individual
designated broker, under this article. The licensee is not eligible to
be licensed again as either a broker or a salesperson until the licensee
has repaid in full the amount paid from the real estate recovery fund
with interest of twelve percent (12%) per annum. As added by P.L.255-1987, SEC.6.
IC 25-34.1-7-11 Subrogation
Sec. 11. When upon order of any court, the commission has
caused payment to be made from the real estate recovery fund to a
judgment creditor, the commission is subrogated to the rights of the
judgment creditor with respect to the amount paid. As added by P.L.255-1987, SEC.6.
IC 25-34.1-7-12 Expenditure of interest
Sec. 12. Subject to the approval of the budget agency, the real
estate commission may expend the interest earned by the real estate
recovery fund for:
(1) information concerning the commission's activities and
administrative rulings;
(2) other educational information concerning the real estate
industry; and
(3) expenses related to the continuing education program under
IC 25-34.1-9. As added by P.L.255-1987, SEC.6. Amended by P.L.120-1992,
SEC.2.
IC 25-34.1-7-13 Attorney general; assistance; expenses
Sec. 13. (a) The office of the attorney general shall provide the
staff assistance necessary to:
(1) enable the real estate commission to perform its duties under
this chapter; and
(2) enforce this chapter.
(b) Expenses incurred by the office of the attorney general under
this section shall be paid from the real estate recovery fund. As added by P.L.255-1987, SEC.6.
