Section 750IAC9-5-7. Cease and desist order

   (a) After notice and hearing, the department may order a mortgage loan originator or a person acting on behalf of the mortgage loan originator to cease and desist from engaging in violations of this article. In any civil court with jurisdiction:

(1) a respondent aggrieved by an order of the department may obtain judicial review of the order; and

(2) the department may obtain an order of the court for the enforcement of the department's order.

A proceeding for review or enforcement under this subsection must be initiated by the filing of a petition in the court. Copies of the petition shall be served upon all parties of record.

  (b) Not later than thirty (30) days after service of a petition for review upon the department under subsection (a), or within such further time as the court allows, the department shall transmit to the court the original or a certified copy of the entire record upon which the order that is the subject of the review is based, including any transcript of testimony, which need not be printed. By stipulation of all parties to the review proceeding, the record may be shortened. After conducting a hearing on the matter, the court may:

(1) reverse or modify the order if the findings of fact of the department are clearly erroneous in view of the reliable, probative, and substantial evidence in the whole record;

(2) grant any temporary relief or restraining order the court considers just and enter an order:

(A) enforcing;

(B) modifying;

(C) enforcing as modified; or

(D) setting aside;

in whole or in part, the order of the department; or

(3) enter an order remanding the case to the department for further proceedings.

  (c) An objection not urged at the hearing shall not be considered by the court unless the failure to urge the objection is excused for good cause shown. A party may move the court to remand the case to the department in the interest of justice for the purpose of:

(1) adducing additional specified and material evidence; and

(2) seeking a finding upon the evidence;

upon good cause shown for the failure to previously adduce the evidence before the department.

  (d) The jurisdiction of the court is exclusive and the court's final judgment or decree is subject to review on appeal in the same manner and form and with the same effect as in appeals from a final judgment or decree. The department's copy of the testimony shall be available at reasonable times to all parties for examination without cost.

  (e) A proceeding for review under this section must be initiated not later than thirty (30) days after a copy of the order of the department is received. If a proceeding is not initiated within the time set forth in this subsection, the department may obtain a decree of a civil court with jurisdiction for enforcement of the department's order upon a showing that:

(1) the order was issued in compliance with this section;

(2) a proceeding for review was not initiated within the thirty (30) day period prescribed by this subsection; and

(3) the respondent is subject to the jurisdiction of the court.

  (f) With respect to an unconscionable agreement or fraudulent or unconscionable conduct by a respondent, the department may not issue an order under this section but may bring a civil action for an injunction under section 9 of this rule. (Department of Financial Institutions; 750 IAC 9-5-7; emergency rule filed Jul 23, 2009, 4:14 p.m.: 20090729-IR-750090577ERA; readopted filed Dec 1, 2015, 9:28 a.m.: 20151230-IR-750150336RFA)