13-12-18. Investigations, subpoenas, and examination authority
In addition to any authority allowed under this chapter, the commissioner may conduct
investigations and examinations as follows:
1. The department of financial institutions in its discretion:
a. May make a public or private investigation or examination within or outside this
state as it deems necessary to determine whether a person has violated or is
about to violate any provision of this chapter or rule, or to aid in the enforcement
of this chapter or in the prescribing of rules and forms hereunder. The licensee
shall pay an investigation or examination fee and must be charged by the
department of financial institutions at an hourly rate to be set by the
commissioner, sufficient to cover all reasonable expenses of the department
associated with the visitation provided for by this section. Fees must be deposited
in the financial institutions regulatory fund.
b. May require or permit any person to file a statement in writing, under oath, or
otherwise as the department determines, as to all the facts and circumstances
concerning the matter to be investigated or examined.
c. May publish information concerning any violation of this chapter or any rule or
order under this chapter.
2. For the purpose of any investigation, examination, or proceeding under this chapter,
the department of financial institutions may administer oaths and affirmations,
subpoena witnesses, compel their attendance, take evidence, and require the
production of any books, papers, correspondence, memoranda, agreements, or other
documents or records which the department deems relevant or material to the inquiry.
3. In case of contumacy by, or refusal to obey a subpoena issued to, any person, the
district court, upon application by the department of financial institutions, may issue to
the person an order requiring the person to appear before the department there to
produce documentary evidence if so ordered or to give evidence touching the matter in
question under investigation or examination. Failure to obey the order of the court may
be punished by the court as a contempt of court.
4. A person is not excused from attending and testifying or from producing any document
or record before the department of financial institutions, or in obedience to the
subpoena of the department, or in any proceeding instituted by the department, on the
grounds that the testimony or evidence, documentary or otherwise, required of a
person may tend to incriminate the person or subject the person to a penalty forfeiture.
An individual may not be prosecuted or subjected to any penalty or forfeiture for or on
account of any transaction, matter, or thing concerning which the person is compelled,
after claiming the privilege against self-incrimination, to testify or produce evidence,
documentary or otherwise, except that the individual testifying is not exempt from
prosecution and punishment for perjury or contempt committed in testifying.
5. For purposes of initial licensing, license renewal, license suspension, license
conditioning, license revocation or termination, or general or specific inquiry or
investigation to determine compliance with this chapter, the commissioner may
access, receive, and use any books, accounts, records, files, documents, information,
or evidence, including:
a. Criminal, civil, and administrative history information, including nonconviction
data;
b. Personal history and experience information, including independent credit reports
obtained from a consumer reporting agency described in section 603(p) of the
Fair Credit Reporting Act [15 U.S.C. 1681 et seq.]; and
c. Any other documents, information, or evidence the commissioner deems relevant
to the inquiry or investigation regardless of the location, possession, control, or
custody of such documents, information, or evidence.
6. For purposes of investigating violations or complaints arising under this chapter, or for
purposes of examination, the commissioner may review, investigate, or examine any
licensee or person subject to this chapter, as often as necessary in order to carry out
the purposes of this chapter.
7. Upon request, each licensee or person subject to this chapter shall make available to
the commissioner the books and records relating to the operations of the licensee or
person subject to this chapter. The commissioner shall have access to the books,
records, and interviews of the officers, principals, mortgage loan originators,
employees, independent contractors, agents, and customers of the licensee or person
subject to this chapter concerning their business.
8. Each licensee or person subject to this chapter shall make or compile reports or
prepare other information as directed by the commissioner in order to carry out the
purposes of this section, including:
a. Accounting compilations;
b. Information lists and data concerning loan transactions in a format prescribed by
the commissioner; or
c. Other information deemed necessary to carry out the purposes of this section.
9. In making any investigation or examination authorized by this chapter, the
commissioner may control access to any documents and records of the licensee or
person under investigation or examination. The commissioner may take possession of
the documents and records or place a person in exclusive charge of the documents
and records in the place where they are usually kept. During the period of control, a
person may not remove or attempt to remove any of the documents and records
except pursuant to a court order or with the consent of the commissioner. Unless the
commissioner has reasonable grounds to believe the documents or records of the
licensee have been, or are at risk of being altered or destroyed for purposes of
concealing a violation of this chapter, the licensee or owner of the documents and
records may have access to the documents or records as necessary to conduct its
ordinary business affairs.
10. In order to carry out the purposes of this section, the commissioner may:
a. Retain accountants, or other professionals and specialists as examiners,
auditors, or investigators to conduct or assist in the conduct of examinations or
investigations;
b. Enter into agreements or relationships with other government officials or
regulatory associations in order to improve efficiencies and reduce regulatory
burden by sharing resources, standardized or uniform methods or procedures,
and documents, records, information, or evidence obtained under this section;
c. Use, hire, contract, or employ publicly or privately available analytical systems,
methods, or software to examine or investigate the licensee, individual, or person
subject to this chapter;
d. Accept and rely on examination or investigation reports made by other
government officials, within or without this state; and
e. Accept audit reports made by an independent certified public accountant for the
licensee or person subject to this chapter in the course of that part of the
examination covering the same general subject matter as the audit and may
incorporate the audit report in the report of the examination, report of
investigation, or other writing of the commissioner.
11. The authority of this section remains in effect, whether a licensee or person subject to
this chapter acts or claims to act under any licensing or registration law of this state or
claims to act without such authority.
12. A licensee or person subject to investigation or examination under this section may not
knowingly withhold, abstract, remove, mutilate, destroy, or secrete any books, records,
computer records, or other information.
