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John Waller
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
Lesson. If borrowers fail to appear at a court-ordered, pre-judgment settlement conference that they requested, then their post-judgment request for a second conference will be denied. Borrowers – appear at the conference. Lenders – move toward a judgment if borrowers... Continue reading
Posted 3 days ago at Indiana Commercial Foreclosure Law
Joe - Good question. I've not researched that issue. My thought is that, if the judgment debtor's name is on the recorded deed, then the judgment lien would attach to the judgment debtor's interest in the real estate. If I'm right - and I could be wrong - then perhaps the more interesting question becomes whether the lien survives the death of the judgment debtor. In other words, would the residual owner be stuck with the lien? I wouldn't think so, but the outcome might depend upon when the residual owner's interest arose, among other factors. I smell a future blog post.... John
1 reply
This follows up my April 12th post Indiana General Assembly: Nothing Cooking This Year. The sheriff's sale notice legislation I mentioned last month got new life but ultimately did not pass. The Indiana Lawyer mentions that development (see, "Newspapers survive... Continue reading
Posted May 8, 2019 at Indiana Commercial Foreclosure Law
If the SBA had a mortgage on the property, then yes. If not, then no.
1 reply
Lesson. If you’re trying to collect a judgment in federal court based upon veil-piercing theories, make sure you’re applying the correct legal standard. If the underlying claim arises out of a federal statute, Indiana’s state law tests may not apply.... Continue reading
Posted Apr 29, 2019 at Indiana Commercial Foreclosure Law
Lesson. As a tax sale buyer, be prepared to pay the real estate taxes that accrue in the year of the sale. Case cite. Picket Fence v. Davis, 109 N.E.3d 1021 (Ind. Ct. App. 2018) (pdf) Legal issue. Whether a... Continue reading
Posted Apr 17, 2019 at Indiana Commercial Foreclosure Law
Chris - My understanding is that post-judment interest should accrue as a matter of law. This generally means that it automatically is built into the debt amount. John
1 reply
My understanding is that there is no currently-pending legislation that would directly impact Indiana's foreclosure-related laws. At one point, there was debate about sheriff's sale notices, but a Senate panel voted down the sheriff's sale notification bill. Whether that bill... Continue reading
Posted Apr 12, 2019 at Indiana Commercial Foreclosure Law
Lesson. The bona fide mortgagee defense, where a lender claims priority in title over another lender or an owner, may be a difficult on which to win on summary judgment. These cases can be somewhat fact sensitive. If filing an... Continue reading
Posted Apr 1, 2019 at Indiana Commercial Foreclosure Law
Lesson. Technical inconsistencies between the promissory note and the mortgage may not doom the enforcement of the loan. Case cite. U.S. Bank Trust v. Spurgeon, 99 N.E.3d 671 (Ind. Ct. App. 2018) Legal issue. Whether a mortgage still can be... Continue reading
Posted Mar 25, 2019 at Indiana Commercial Foreclosure Law
Lesson. In Indiana, a defendant mortgagor generally will be required to post a bond in order to stay a sheriff’s sale during its appeal of an adverse foreclosure decree. Without a bond and a corresponding order of stay, the sheriff’s... Continue reading
Posted Mar 15, 2019 at Indiana Commercial Foreclosure Law
Lesson. Sometimes a lender will loan money to a borrower that is secured with collateral, such as a mortgage, pledged by a third party. These third parties are known as sureties. If a lender materially changes the terms of the... Continue reading
Posted Mar 6, 2019 at Indiana Commercial Foreclosure Law
Here is interesting read from the Indiana Business Journal's Greg Andrews: $50M HHGregg suit attacks insiders for accepting customer deposits to very end. Continue reading
Posted Mar 2, 2019 at Indiana Commercial Foreclosure Law
Earlier this week, The Indiana Lawyer reported that Indiana's commercial court pilot project may become a permanent system on June 1: Supreme Court deciding commercial courts’ fate. I wrote about the pilot project and the interim rules in 2016: link. Continue reading
Posted Feb 23, 2019 at Indiana Commercial Foreclosure Law
Lesson. In the wake of an undisputed consumer/residential mortgage loan default, lenders and their servicers generally are not compelled to enter into loan modification agreements with their borrowers. Lenders really must only participate in a settlement conference, if requested, or... Continue reading
Posted Feb 21, 2019 at Indiana Commercial Foreclosure Law
I've been tied up with my day job of late but wanted to post some material this weekend. The links below should answer most basic questions about Indiana's lis pendens rules: For Indiana's lis pendens statute, Indiana Code 32-30-11, click... Continue reading
Posted Feb 3, 2019 at Indiana Commercial Foreclosure Law
Lesson. Although Indiana does not permit cognovit notes (confessions of judgment), our state will enforce properly-entered foreign judgments based upon the otherwise prohibited language. The key is to determine whether cognovit notes are legal in the state that entered underlying... Continue reading
Posted Jan 18, 2019 at Indiana Commercial Foreclosure Law
Lesson. For lenders and servicers filing motions for summary judgment, always remain mindful of the elements of the Evidence Rule 803(6) business records exception to the hearsay rule. An insufficient supporting affidavit could doom the motion. Case cite. Holmes v.... Continue reading
Posted Jan 13, 2019 at Indiana Commercial Foreclosure Law
Over the last couple weeks, I've been working with the good folks at Typepad to "tune up" my blog. You'll notice the new look and feel, which generally mirrors that of my Firm's website. I've fixed several links that were... Continue reading
Posted Dec 31, 2018 at Indiana Commercial Foreclosure Law
Lesson. A mortgage loan servicer in a RESPA case can successfully defend the matter if it can show that it did not injure the borrower/mortgagor, even if the defendant did not adequately respond to the qualified written request (QWR). Case... Continue reading
Posted Dec 24, 2018 at Indiana Commercial Foreclosure Law
Lesson. Following the entry of a money judgment, there may be innocent third parties who have money in their possession that they owe to the defendant (aka judgment debtor). If any such third party receives notice of the plaintiff’s (judgment... Continue reading
Posted Dec 11, 2018 at Indiana Commercial Foreclosure Law
This follows-up last week's post. Yesterday, I bumped into a lawyer who reads my blog and reminded me that we always must check the local rules of a particular county, including the local smalls claims court rules, for their potential... Continue reading
Posted Nov 28, 2018 at Indiana Commercial Foreclosure Law
How long must the holder of an Indiana judgment wait before executing on the judgment? The answer depends on whether the case is in state or federal court. Two opinions by Magistrate Judge Cherry address that issue and other proceedings... Continue reading
Posted Nov 21, 2018 at Indiana Commercial Foreclosure Law
Click on the following link for an article from the Jacksonville Daily Record about the status of the recovery from the housing market collapse: Black Knight data shows the housing recovery finally is complete The conclusions in the story are... Continue reading
Posted Nov 16, 2018 at Indiana Commercial Foreclosure Law
Lesson. Look for a filed satisfaction of judgment to conclusively determine whether a judgment lien has been extinguished. A small claims court judgment, properly indexed and unreleased, will have senior priority over a subsequently-recorded mortgage. Case cite. Herron v. First... Continue reading
Posted Nov 5, 2018 at Indiana Commercial Foreclosure Law