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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
Lender Moves For Default Judgment Only To See Its Foreclosure Case Dismissed
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 yesterday at Indiana Commercial Foreclosure Law
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Court of Appeals Reduces Appeal Bond In Indiana Foreclosure Case
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
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Indiana Court Releases Mortgage On Parents' Farmland Based On Material Alteration Of Kids' Loan
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
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IBJ's Andrews on Creditors' Lawsuit Against Bankrupt HHGregg Insiders
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
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The Indiana Lawyer: Commercial Courts Update
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
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Lender Overcomes Borrower’s Allegations Of Misconduct Surrounding Settlement Negotiations
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
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Your Source For Indiana Lis Pendens 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
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New York Confession Of Judgment From Cognovit Note Enforceable In Indiana
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
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Lender’s Summary Judgment Affidavit Flawed - Business Records Inadmissible
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
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Tune Up To 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
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Borrower’s Failure To Prove Actual Damages Leads To Summary Judgment In RESPA Case
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
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Indiana County Clerk Liable To Judgment Creditor For Bail Bond Proceeds Released To Judgment Debtor
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
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Post Script: When Can Post-Judgment Collection Efforts Begin In Indiana?
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
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When Can Post-Judgment Collection Efforts Begin In Indiana?
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
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Data Suggests Housing Recovery Complete
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
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Mortgage Lien Second In Line, Because Small Claims Court Judgment Never Fully Satisfied
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
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12 Years And Counting
On November 1, 2006, at age 38, I placed my first four posts on this blog. (I was on fire that month, with 12 posts.) Although my production varies from month to month, on Monday, at age 50, I'll submit... Continue reading
Posted Nov 1, 2018 at Indiana Commercial Foreclosure Law
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From Marion County Sheriff's Sale Team - Recording of Plaintiff's Deeds
I received the attached email blast from the MCSO Sheriff’s Sale Real Estate Team today: The Marion County Sheriff’s Office (“MCSO”) requires that the successful bidder notify the MCSO Sheriff’s Sale Real Estate team within one week of the recording... Continue reading
Posted Oct 31, 2018 at Indiana Commercial Foreclosure Law
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Commercial Foreclosure Refresher: Some Basics
A prospective client, who holds a promissory note, which requires an upcoming balloon payment, and a mortgage on commercial real estate securing the note, had these questions for us: 1. Could the client (effectively, a lender) pursue a default the... Continue reading
Posted Oct 12, 2018 at Indiana Commercial Foreclosure Law
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As A Matter Of First Impression, Indiana Adopts Rule That A Debtor Lacks Standing To Challenge An Assignment
Lesson. Generally, defendants in foreclosure actions - such as borrowers, guarantors or mortgagors - cannot contest the validity of a loan assignment. Case cite. Duty v. CIT, 86 N.E.3d 214 (Ind. Ct. App. 2017) Legal issue. Whether a borrower had... Continue reading
Posted Oct 5, 2018 at Indiana Commercial Foreclosure Law
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Unusual Deed In Lieu Of Foreclosure Agreement Failed To Guarantee Sale Proceeds to Borrower/Mortgagor
Lesson. Creativity with settlement agreements is fine so long as the language clearly and unambiguously articulates the terms of the intended deal. Case cite. Bobick’s Pro Shop v. 1st Source Bank, 84 N.E.3d 1238 (Ind. Ct. App. 2017) Legal issue.... Continue reading
Posted Sep 23, 2018 at Indiana Commercial Foreclosure Law
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Mortgagor/Owner Compelled To Turnover Tax Sale Surplus Funds To Mortgagee/Judgment Creditor
Lesson. Indiana law may obligate an owner/mortgagor to turnover real estate tax sale surplus funds to his judgment lien creditor or mortgagee. Case cite. 2444 Acquisitions v. Fish, 84 N.E.3d 1211 (Ind. Ct. App. 2017). Legal issue. Whether a lender/mortgagee... Continue reading
Posted Sep 10, 2018 at Indiana Commercial Foreclosure Law
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Housing Crisis Revisited In Long-Form Article, With Video
First, credit goes to the Indianapolis Business Journal's "Eight @8" daily eNewletter for alerting me to this content. The eight stories from yesterday, compiled by Mason King, included this in-depth piece from The Penny Hoarder: "The Amercian Nightmare," which "examines... Continue reading
Posted Sep 6, 2018 at Indiana Commercial Foreclosure Law
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Reminder Of Indiana's View Of MERS
I've been pressed for time of late but wanted to post some material today. The article that follows is from my October, 2012 post prepared in the wake of the Indiana Supreme Court's landmark decision involving Mortgage Electronic Registration Systems,... Continue reading
Posted Aug 19, 2018 at Indiana Commercial Foreclosure Law
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Indiana’s “Lender Exception” Applicable To Leasehold Mortgage In Priority Dispute With Mechanic’s Lien
Lesson. A leasehold mortgage constitutes a valid mortgage lien and can be senior to a mechanic’s lien, if the facts otherwise meet the so-called “Lender Exception.” Case cite. Kellam Excavating v. Community State Bank, 82 N.E.3d 928 (Ind. Ct. App.... Continue reading
Posted Aug 12, 2018 at Indiana Commercial Foreclosure Law
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