This is John Waller's TypePad Profile.
Join TypePad and start following John Waller's activity
John Waller
Indianapolis
John Waller is an Indianapolis attorney who represents parties involved in the foreclosure of commercial mortgages, the enforcement of security interests and collection of business debts.
Recent Activity
2013 Legislation Ends Post-Sale Redemption Discussion
Last year, the Indiana General Assembly amended Ind. Code 32-29-8-3. For more, please read my 3-29-12 post. But the Court of Appeals' 2011 opinion in CitiMortgage v. Barabas and 2012 statutory amendment left open the question of whether Indiana had... Continue reading
Posted May 12, 2013 at Indiana Commercial Foreclosure Law
Comment
0
Failure To Docket Judgment Lien Dooms Creditor And Opens Door For Bona Fide Purchaser Defense
This follows up last week’s post about Hair v. Schellenberger, 2012 Ind. App. LEXIS 158 (Ind. Ct. App. 2012) and digs deeper into the bona fide purchaser doctrine. The purported judgment lien holder (“Judgment Creditor”) in Hair contended that the... Continue reading
Posted May 1, 2013 at Indiana Commercial Foreclosure Law
Comment
0
Indiana Fraudulent Transfer Act: Statute Of Limitations And Bona Fide Purchaser Defenses
Fraudulent transfer claims have a shelf life and do not necessarily extend to all subsequent transferees. Hair v. Schellenberger, 2012 Ind. App. LEXIS 158 (Ind. Ct. App. 2012), which dealt with Indiana’s Uniform Fraudulent Transfer Act, Ind. Code § 32-18-2... Continue reading
Posted Apr 25, 2013 at Indiana Commercial Foreclosure Law
Comment
0
Carl - I recommend that you formally seek the advice of, and engage, a local attorney. The situation appears to be complicated. I'm sorry to hear about your problems and wish you luck with the case. John
Commented Apr 16, 2013 on Indiana Sheriff's Sales: Local Rules, Customs and Practices Control at Indiana Commercial Foreclosure Law
Indiana Sheriff's Sales: Local Rules, Customs and Practices Control
This replaces my April 14, 2008 post and includes the most current links to various Indiana county sheriff's offices. In Indiana, mortgage foreclosures must be judicial or, in other words, through the court system. As a general proposition, real estate collateral must be sold, pursuant to a ju...
Innocent Purchaser Of Motorcycle Loses To Secured Party In Replevin Action
The vernacular of “foreclosure” typically relates to real estate, while “replevin” normally pertains to personal property. For more, click on my prior post What Is Replevin? In Dawson v. Fifth Third Bank, 965 N.E.2d 730 (Ind. Ct. App. 2012), the... Continue reading
Posted Apr 16, 2013 at Indiana Commercial Foreclosure Law
Comment
0
I believe the sale should be stayed given that the debtor has an interest in the property being sold. John
Commented Apr 8, 2013 on Does A Guarantor’s Bankruptcy Stop A Foreclosure Case Against the Borrower? at Indiana Commercial Foreclosure Law
Does A Guarantor’s Bankruptcy Stop A Foreclosure Case Against the Borrower?
Sometimes when secured lenders file suit to enforce a note and a guaranty and to foreclose a commercial mortgage, the guarantor (but not the borrower) files a bankruptcy petition. Pursuant to 11 U.S.C. 362, the collection action, as to the debtor (the guarantor), is stayed. Some wonder whether ...
Indiana Collection Theories Of Piercing The Corporate Veil, Alter Ego, Successor Liability And Mere Continuation: Part II
This follows-up Part I, from March 29th, dealing with veil piercing from one company to another (alter ego doctrine) in order to recover a debt. Please click on Part I for introductory information about the subject case, Ziese & Sons... Continue reading
Posted Apr 8, 2013 at Indiana Commercial Foreclosure Law
Comment
0
Indiana Collection Theories Of Piercing The Corporate Veil, Alter Ego, Successor Liability And Mere Continuation: Part I
Secured lenders and other creditors sometimes obtain useless judgments against assetless companies. But occasionally there is hope for a recovery. Ziese & Sons v. Boyer, 965 N.E.2d 713 (Ind. Ct. App. 2012) very nicely summarizes Indiana law on the matter... Continue reading
Posted Mar 29, 2013 at Indiana Commercial Foreclosure Law
Comment
1
In Indiana Veil-Piercing Cases, There Must Be A “Causal Connection” Between The Misuse Of The Corporate Form And The Alleged Fraud
CBR v. Gates, 962 N.E.2d 1276 (Ind. Ct. App. 2012) is an important opinion on the issue of veil piercing, a method by which creditors can recover corporate debts from principals of the corporation. The CBR decision is unique in... Continue reading
Posted Mar 20, 2013 at Indiana Commercial Foreclosure Law
Comment
0
Garnishment Of Joint Bank Accounts In Indiana
If, following an Indiana mortgage foreclosure and sheriff’s sale, a deficiency judgment exists, plaintiffs/secured lenders have the option, in proceedings supplemental, to garnish certain property of the defendants/judgment debtors (such as a guarantor). Trustees of the Teamsters v. Brown, 2012... Continue reading
Posted Mar 11, 2013 at Indiana Commercial Foreclosure Law
Comment
0
7th Circuit Holding Impacts Single Asset Entity Chapter 11 Bankruptcy Cases
While sophisticated bankruptcy issues fall outside the scope of my blog, the February 14th opinion by the Seventh Circuit in the matter of Castleton Plaza, LP, No. 12-2639 (.pdf) warrants a mention. Castleton dealt with the absolute-priority rule in 11... Continue reading
Posted Mar 3, 2013 at Indiana Commercial Foreclosure Law
Comment
2
Discrimination Allegations Unavailing For Borrower In Post-Foreclosure Eviction
Today’s post follows-up on a theme from my February 15th post with respect to evictions following a sheriff’s sale. That post dealt with eviction of tenants. Today’s post, regarding United States of America v. Cotton, 2012 U.S. Dist. LEXIS 341... Continue reading
Posted Feb 25, 2013 at Indiana Commercial Foreclosure Law
Comment
0
Foreclosing Party, As Owner, May Evict Tenants In Breach
Secured lenders repossessing real estate collateral at a sheriff’s sale normally keep tenants in place to maintain income. There are instances, however, when a plaintiff lender, or a third-party sheriff’s sale purchaser, may desire to evict a tenant. Ellis v.... Continue reading
Posted Feb 15, 2013 at Indiana Commercial Foreclosure Law
Comment
0
More On Indiana’s Service Of Process Rules and Pitfalls
My December, 2010 post “Service Of Process” Fundamental For The Plaintiff Lender addressed the matter of inadequate service of process, which can result in defective judgments. The subsequent decision in Norris v. Personal Finance, 957 N.E.2d 1002 (Ind. Ct. App.... Continue reading
Posted Feb 2, 2013 at Indiana Commercial Foreclosure Law
Comment
0
Successor-In-Interest Banks As Plaintiffs In Foreclosure Actions
With bank mergers and takeovers, we sometimes see cases where the name of the plaintiff lender will not be the same as that reflected in the note and mortgage. This is because, normally, there are not loan assignment documents like... Continue reading
Posted Jan 25, 2013 at Indiana Commercial Foreclosure Law
Comment
0
Are Borrowers Entitled To Jury Trials On Their Counterclaims?
In my post Contractual Waiver Of Right To Jury Trial, I explain why Indiana mortgage foreclosure actions are not tried to a jury but rather to a judge. But what about a borrower’s counterclaim? The Indiana Supreme Court in Lucas... Continue reading
Posted Jan 17, 2013 at Indiana Commercial Foreclosure Law
Comment
0
WSJ: "The States Of Foreclosure"
Today's Wall Street Journal contains an interesting opinion that "housing prices stabilize when lenders can enforce contracts" (in other words, foreclose). Click here for the piece. Although the article focuses upon residential real estate, its theme and theory apply with... Continue reading
Posted Jan 9, 2013 at Indiana Commercial Foreclosure Law
Comment
0
Must Banks Provide Advice To Their Customers During Loan Transactions?
When making a commercial loan, do lenders have a fiduciary duty to their Indiana borrowers or guarantors? The Indiana Court of Appeals, in Paul v. Home Bank, 953 N.E.2d 497 (Ind. Ct. App. 2011), said no. The loans. Paul dealt... Continue reading
Posted Jan 4, 2013 at Indiana Commercial Foreclosure Law
Comment
0
Commercial Construction Mortgages Stand Tall Over Later-Recorded Mechanic’s Liens In Indiana
The law is well settled in Indiana concerning the priority of mechanic’s liens and commercial construction mortgages. The 2011 opinion of City Savings Bank v. Eby Construction, 954 N.E.2d 459 (Ind. Ct. App. 2011) reaffirmed the Court’s 2008 decision in... Continue reading
Posted Dec 21, 2012 at Indiana Commercial Foreclosure Law
Comment
4
Tax Sale Bullet Strikes Property Owner
This follows up my earlier post Property Owner May Dodge Tax Sale Bullet dealing with Marion County Auditor v. Sawmill Creek and tax sales, specifically the notice requirements surrounding petitions for tax deeds. The Indiana Supreme Court, in an opinion... Continue reading
Posted Dec 14, 2012 at Indiana Commercial Foreclosure Law
Comment
0
Please Forgive The Delay - New Posts To Resume Next Week
Posted Dec 8, 2012 at Indiana Commercial Foreclosure Law
Comment
0
“Collection” Vs. “Payment” Guaranties: Dearth Of Indiana Law
The other day, one of my transactional partners and I were discussing whether a particular written instrument constituted an enforceable guaranty. He raised an issue that admittedly I have not yet litigated, namely whether the instrument was a “guaranty of... Continue reading
Posted Nov 20, 2012 at Indiana Commercial Foreclosure Law
Comment
1
How Should A Junior Lender/Mortgagee Respond To An Indiana Foreclosure Suit?
One of our bank clients, which has a home equity line of credit portfolio, recently asked me to give a presentation on how best to deal with foreclosure suits filed by senior lenders (first mortgagees). Whether junior mortgages are residential... Continue reading
Posted Nov 12, 2012 at Indiana Commercial Foreclosure Law
Comment
1
Is The Citimortgage Opinion Flawed For Not Requiring Proof Of Assignment Documents?
This is my final post about the Indiana Supreme Court’s opinion in Citimortgage v. Barabas, 2012 Ind. LEXIS 802 (Ind. 2012). Here are my other three: 10-26, 10-19, 10-12. The Court’s decision to grant Citimortgage’s motion to intervene was understandable... Continue reading
Posted Nov 3, 2012 at Indiana Commercial Foreclosure Law
Comment
0
In Indiana, Name MERS In Foreclosure Suit If Mortgage Does
This follows-up last week’s post regarding the Citimortgage opinion, which circumvented two foreclosure statutes that supported a conclusion opposite of the one the Court reached. The result preserved the lien rights of the purported senior mortgagee, Citimortgage, even though Citimortgage... Continue reading
Posted Oct 26, 2012 at Indiana Commercial Foreclosure Law
Comment
0
More...
Subscribe to John Waller’s Recent Activity
Around The Web
