John Waller's Profile

Lender Entitled To Full Amount Of Insurance Proceeds From Fire Loss: Borrower Responsible For Own Attorney Fees

Lesson. If a borrower engages an attorney to help with an insurance claim arising out of a loss to mortgaged property, generally the attorney will not be paid from the insurance proceeds, which belong to the lender as a loss... Continue reading

Posted 5 hours ago at Indiana Commercial Foreclosure Law

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Date Of Sheriff Sale Fee Increase Varying By County

In follow-up to my post on Monday the 27th - County Sheriff Sale Fees Increasing to $300 - it appears the actual date upon which the fee increase will apply may vary by county. The quote below is an email... Continue reading

Posted 7 days ago at Indiana Commercial Foreclosure Law

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County Sheriff Sale Fees Increasing to $300

I've been peppered with emails from various Indiana county sheriff's departments advising that the foreclosure sale fees are about to increase to $300. This is consistent with the enactment of House Bill 1048, about which I wrote back in March:... Continue reading

Posted Jun 27, 2022 at Indiana Commercial Foreclosure Law

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Presumption Of Ownership Through Tenants By The Entirety Can Be Rebutted By Contract

Lesson. Since ownership of real estate by a husband and wife creates a presumption of a tenancy by the entirety, typically a creditor cannot collect the debt of one spouse from the marital real estate. However, the presumption is rebuttable... Continue reading

Posted Jun 21, 2022 at Indiana Commercial Foreclosure Law

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Lender’s Redirection Of Rents Does Not Constitute “Unclean Hands” When Supported By Loan Documents

Note: This is the fourth post about the 410 case, cited below, that grants a lender’s motion for summary judgment against a borrower (and other defendants), despite the defendants’ assertions of multiple defenses and counterclaims. For background and context, here... Continue reading

Posted Jun 2, 2022 at Indiana Commercial Foreclosure Law

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Borrower’s Loan Reinstatement-Related Promissory Estoppel Defense Dismissed

Note: on 5/6/22 and 5/20/22, I wrote about the 410 case cited below. Today’s post addresses more issues from the same opinion. In particular, the 5/20/22 article provides context for today’s installment, which follows up on the “loan balance statement”... Continue reading

Posted May 27, 2022 at Indiana Commercial Foreclosure Law

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Loan Reinstatement Communication Did Not Bind Lender In Workout Negotiations

Note: on 5/6/22, I wrote about the 410 case cited below. Today’s post addresses additional subject matter from the same opinion. Please review my previous post for background. Lesson. In workout negotiations, if banks wish to avoid communications that could... Continue reading

Posted May 20, 2022 at Indiana Commercial Foreclosure Law

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Pooling And Servicing Agreement Did Not Divest Trustee Of Ability To Foreclose

Lesson. With securitized loans, the trustee on behalf of the trust (the lender) is a “real party in interest” for purposes of filing a foreclosure suit, despite the existence of a special servicer appointed by a pooling and servicing agreement.... Continue reading

Posted May 6, 2022 at Indiana Commercial Foreclosure Law

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ATTOM: U.S. Foreclosure Activity Sets Post Pandemic Highs in First Quarter of 2022

The following article by ATTOM from 4/21/22 shows that foreclosure starts, bank repossessions are at the highest levels in two years but still well below normal: LINK. Continue reading

Posted Apr 23, 2022 at Indiana Commercial Foreclosure Law

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Indiana’s COVID Orders Interpreted: Interest-Tolling Provisions Not Applicable To Mortgage Loans

Lesson. COVID did not provide a defense to the accrual of interest on mortgage loans in 2020. Case cite. PNC v. Page, 2022 Ind. App. LEXIS 92 (Ind. Ct. App. 2022). Legal issue. Whether certain provisions in Indiana’s COVID-related Emergency... Continue reading

Posted Apr 14, 2022 at Indiana Commercial Foreclosure Law

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Upcoming Changes To Indiana Sheriff's Sales

In this year’s Indiana legislative session, the General Assembly enacted House Bill 1048, which becomes effective July 1, 2022. Here are some of the changes that will impact Indiana foreclosure law. Electronic sales. HB 1048 amended I.C. 32-29-7-3 to provide... Continue reading

Posted Mar 27, 2022 at Indiana Commercial Foreclosure Law

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Criminal Restitution Order Is Like A Tax Lien

United States v. Ervin 2022 U.S. Dist. LEXIS 7344 (N.D. Ind. 2022) dealt with a criminal conviction and resulting order to pay restitution. Why is a criminal case the subject of a post on Indiana Commercial Foreclosure Law? Because the... Continue reading

Posted Mar 17, 2022 at Indiana Commercial Foreclosure Law

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Indiana Legislation Proposed To Shut Bad Acting Landlords Out Of Foreclosure Sales

Indiana House Bill 1048 proposes to some adjustments to the sheriff's sale process. Here is the latest synopsis of the bill: Allows the sheriff to conduct a public auction electronically. Prohibits certain persons and entities from purchasing a tract at... Continue reading

Posted Mar 6, 2022 at Indiana Commercial Foreclosure Law

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Indiana Court Of Appeals Reverses Fraudulent Transfer Judgment And Remands For Remedy Determination

Lesson. The devil’s in the details when looking at fraudulent intent, and various statutory remedies are available in Indiana fraudulent transfer actions. Case cite. Holland v. Ketcham, 2021 Ind. App. LEXIS 404 (Ct. App. Dec. 27, 2021) Legal issue. Whether... Continue reading

Posted Feb 22, 2022 at Indiana Commercial Foreclosure Law

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Firm News: Rob Schein Joins Dinsmore

I'm very happy to report that my good friend Rob Schein is now one of my partners here in Indianapolis. Read more about it here. Continue reading

Posted Feb 18, 2022 at Indiana Commercial Foreclosure Law

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Reinstated Federal Tax Liens On Property Owned Pre-Bankruptcy

Lesson. An erroneously-released federal tax lien can be reinstated, and the lien can reattach to a debtor’s pre-petition property, even in the wake of a bankruptcy discharge. Case cite. United States v. Shadoan, 2021 U.S. Dist. LEXIS 219003 (S.D. Ind.... Continue reading

Posted Feb 9, 2022 at Indiana Commercial Foreclosure Law

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Legal Reader: How Best To Prepare When Facing A Foreclosure

I thought this article by Samantha Higgins on legalreader.com was quite informative for borrowers: How Best to Prepare When Facing a Foreclosure. Although the piece is designed for residential/consumer foreclosures, many of the tips identified by Higgins apply with equal... Continue reading

Posted Feb 2, 2022 at Indiana Commercial Foreclosure Law

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Indiana Federal Court Dismisses Alter Ego Claim Against Affiliated Company

Lesson. Common presidents and physical locations alone is insufficient evidence to render two companies one enterprise in disguise. Case cite. Vasquez v. Steiner Enters. 2021 U.S. Dist. LEXIS 211903 (N.D. Ind. Nov. 2 2021) Legal issue. Whether Company A was... Continue reading

Posted Jan 28, 2022 at Indiana Commercial Foreclosure Law

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No Surprise: Report Concludes That Nation's Foreclosure Activity Dropped To All-Time Low In 2021

From IT News Online: IRVINE, Calif., Jan. 13, 2022 /PRNewswire/ -- ATTOM, licensor of the nation's most comprehensive foreclosure data and parent company to RealtyTrac, the largest online marketplace for foreclosure and distressed properties, today released its Year-End 2021 U.S.... Continue reading

Posted Jan 13, 2022 at Indiana Commercial Foreclosure Law

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Indianapolis Bar Association COVID Update: Marion County Courts

Courtesy of the IBA today: Updated COVID Marion Superior and Circuit Court Measures regarding Facial Coverings and Suspension of Jury Trials The Executive Committee of the Marion Superior Court and the Judge of the Circuit Court have continued to monitor... Continue reading

Posted Jan 6, 2022 at Indiana Commercial Foreclosure Law

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Damages Under Indiana’s UCC For Breaching The Peace: Treatment Of Deficiency

Lesson. A Borrower’s UCC damages arising out of a secured lender’s breach of the peace can be reduced by the loan deficiency, assuming the disposition of the collateral was commercially reasonable. Case cite. Horizon Bank v. Huizar, 2021 Ind. App.... Continue reading

Posted Dec 24, 2021 at Indiana Commercial Foreclosure Law

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Liability Under Indiana’s Uniform Commercial Code For Breaching The Peace

Lesson. A Lender (secured creditor) could be exposed to liability for breaching the peace (“disturbing the public tranquility or order”) if it refuses to halt a repossession after a borrower voices an objection to the seizure. Case cite. Horizon Bank... Continue reading

Posted Dec 10, 2021 at Indiana Commercial Foreclosure Law

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Indiana Supreme Court’s COVID Order Interpreted: Post-Judgment Interest

Lesson. Post-judgment interest was not tolled by the Indiana Supreme Court’s 2020 COVID-related emergency orders. Case cite. Denman v. St. Vincent Med. Grp., Inc., 2021 Ind. App. LEXIS 254 (Ind. Ct. App. 2021) Legal issue. Whether the Indiana Supreme Court’s... Continue reading

Posted Nov 24, 2021 at Indiana Commercial Foreclosure Law

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Does A Deed-In-Lieu Of Foreclosure Automatically Release A Borrower From Personal Liability?

A deed-in-lieu of foreclosure (DIL) is one of many alternatives to foreclosure. For background, review my post Deeds In Lieu Of Foreclosure: Who, What, When, Where, Why And How. Today I discuss the Indiana Court of Appeals’ opinion in GMAC... Continue reading

Posted Nov 12, 2021 at Indiana Commercial Foreclosure Law

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The Rooker-Feldman Doctrine Is Alive And Well In The 7th Circuit

In Banister v. U.S. Bank Nat'l Ass'n, 2021 U.S. App. LEXIS 28565 (7th Cir. 2021), the United States Court of Appeals for the Seventh Circuit (that includes Indiana) affirmed an Illinois district court's decision to dismiss on jurisdictional grounds a... Continue reading

Posted Oct 26, 2021 at Indiana Commercial Foreclosure Law

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