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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
Recent Indiana Mortgage Foreclosure Opinion, Post I of III: Liability – First Material Breach Doctrine
Lesson. Indiana’s “first to breach” defense would appear to be an exceedingly difficult theory for borrowers to establish in most foreclosure cases. Case cite. Hussain v. Salin Bank, 143 N.E.3d 322 (Ind. Ct. App. 2020) Legal issue. Whether the lender... Continue reading
Posted 6 days ago at Indiana Commercial Foreclosure Law
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“Economics Of The Transaction” Establish Land Contract Rather Than Lease
Lesson. When determining whether a real estate agreement is a lease or a land sale contract, follow the money. Case cite. Vic’s Antiques v. J. Elra Holdingz, 143 N.E.3d 300 (Ind. Ct. 2020) Legal issue. Whether an agreement was a... Continue reading
Posted Nov 13, 2020 at Indiana Commercial Foreclosure Law
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Bank Loses 100k After Failing To Appear At Garnishment Hearing To Prove Right Of Set-Off
Lesson. A bank, as a garnishee-defendant, may claim a right to set-off funds on deposit against amounts its customer owes the bank. However, the bank should appear in court and prove its right. Merely asserting set-off in answers to interrogatories... Continue reading
Posted Oct 29, 2020 at Indiana Commercial Foreclosure Law
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U.S. Supreme Court: FDCPA Statute Of Limitations
The Supreme Court of the United States, in Rotkiske v. Klemm, 140 S.Ct. 355 (2019), held that the Fair Debt Collection Practices Act's one-year statute of limitations "begins to run on the date on which the alleged FDCPA violation occurs,... Continue reading
Posted Oct 23, 2020 at Indiana Commercial Foreclosure Law
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Wife Was A “Creditor” In Alleged Fraudulent Transfer Case And Proved The Necessary Fraudulent Intent To Prevail Over Husband In Divorce Case
Lesson. Dumping real estate assets for no value shortly before a judgment, even in a divorce case, could lead to a court order unwinding the transfers under Indiana’s UFTA. Case cite. Hernandez-Velazquez v. Hernandez, 136 N.E.3d 1130 (Ind. Ct. App.... Continue reading
Posted Oct 9, 2020 at Indiana Commercial Foreclosure Law
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The Indiana Lawyer: Bankruptcy Flood Coming?
This article in The Indiana Lawyer predicts a "flood" of COVID-related bankruptcy filings and quotes a number of local BK lawyers. That flood, which many predicted in March and April would have occurred by now, has not happened - yet.... Continue reading
Posted Oct 2, 2020 at Indiana Commercial Foreclosure Law
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Credit Card's Summary Judgment Reversed Due To Flawed Affidavit
In Zelman v. Capital One, 133 N.E.3d 244 (Ind. Ct. App. 2019), the Indiana Court of Appeals reversed the trial court's summary judgment in favor of a credit card lender based upon the lender's failure to "lay a proper foundation... Continue reading
Posted Sep 25, 2020 at Indiana Commercial Foreclosure Law
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Is The Label “Indiana Lender Liability Act” A Misnomer?
In the past, I’ve heard things from secured lenders like: “you don’t see any exposure to our bank under the Lender Liability Act, do you?” or “surely the borrower won’t countersue us under Indiana’s lender liability statute.” People are sometimes... Continue reading
Posted Sep 18, 2020 at Indiana Commercial Foreclosure Law
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Indiana Sheriff's Sale Update
The COVID-related impact upon Indiana sheriff's sales has had a few layers: 1. The first involved Governor Holcomb's moratorium on residential foreclosure activity. Click here for more on that subject. That ended July 31, 2020, and some sheriff’s sales occurred... Continue reading
Posted Sep 8, 2020 at Indiana Commercial Foreclosure Law
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REAL ESTATE FINANCING TIDBITS: Consistency In Both the Form and Substance Of An Indiana Land Contract Is Essential To Post-Breach Enforcement
Standard Operating Procedure. Traditional real estate financing involves a purchase evidenced by a deed, coupled with a promissory note secured by a mortgage. The seller typically (but not always) is out of the picture because title transfers at closing. The... Continue reading
Posted Aug 22, 2020 at Indiana Commercial Foreclosure Law
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Email Evidence Of Alleged Loan Modification And Promissory Estoppel Defeats Auto Dealer Lender’s Summary Judgment Motion
Lesson. Lenders, particularly those that are not conventional banks, should proceed carefully when entering into and executing upon loan modification or workout discussions. An innocent or well-intended email or phone call could come back to haunt you. Case cite. SWL... Continue reading
Posted Aug 11, 2020 at Indiana Commercial Foreclosure Law
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Tax Deed Denied Because Redemption Notice Suggested The Amount To Redeem Included Surplus Funds
Lesson. A tax sale purchaser may not obtain a tax deed if the statutory redemption notice inflates the redemption amount. Such notices should not include any overbid/surplus funds as being required for redemption. Case cite. Pinch-N-Post, LLC v. McIntosh, 132... Continue reading
Posted Jul 31, 2020 at Indiana Commercial Foreclosure Law
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Court Invalidates Mortgages In Favor Of Creditor In Judgment Lien Foreclosure Action
Lesson. If you are trying to collect a judgment and suspect the judgment debtor granted a bogus mortgage to neutralize the judgment lien, then study the description of the purported debt in the mortgage and investigate the debt’s nature. You... Continue reading
Posted Jul 20, 2020 at Indiana Commercial Foreclosure Law
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Indiana's Recording Law Change, Effective July 1
I'm passing along information distributed by the Indiana State Bar Association. For today's content, all the credit goes to the ISBA: On July 1, 2020, an obscure change to an Indiana recording statute becomes effective, requiring lawyers to change how... Continue reading
Posted Jul 6, 2020 at Indiana Commercial Foreclosure Law
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Governor Holcomb's June 30 Order Extending Residential Foreclosure Moritoriaum
Section 1 of the Governor's order addresses residential mortgage foreclosures and follows-up his order order from March 19th, which was the subject of my March 28th post. Here are the highlights: Residential mortgage foreclosure actions based upon nonpayment cannot be... Continue reading
Posted Jul 2, 2020 at Indiana Commercial Foreclosure Law
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Lender’s Failure To Comply With HUD’s Face-To-Face Meeting Requirement Dooms Indiana Mortgage Foreclosure Action
Lesson. A borrower/mortgagor may be able to defeat a foreclosure action if a lender/mortgagee does not comply with HUD regulations designed to be conditions precedent to foreclosure. For example, in certain cases, a failure to have an in-person meeting with... Continue reading
Posted Jun 29, 2020 at Indiana Commercial Foreclosure Law
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Marion County (Indianapolis) Sheriff's Sales Will NOT Start Back Up In July
Following-up last week's post (below), we learned this morning that the sheriff's office has postponed the July sale "due to the extended evictions and foreclosures issued by Gov Eric Holcomb through August 1st." No sale in July. _______________ Following the... Continue reading
Posted Jun 23, 2020 at Indiana Commercial Foreclosure Law
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“Debtor” In Alleged Fraudulent Transfer Must Be Liable For Creditor’s Underlying Claim
Lesson. If there is no underlying claim, then there can be no fraudulent transfer. Case cite. Underwood v. Fulford, 128 N.E.3d 519 (Ind. Ct. App. 2019) Legal issue. What is a “debtor” under Indiana’s Uniform Fraudulent Transfer Act? Vital facts.... Continue reading
Posted Jun 5, 2020 at Indiana Commercial Foreclosure Law
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Indiana Supreme Court's 5/29/20 Order Extending Its 3/16/20 Order Related to COVID Relief And Procedures
On May 29, 2020, the Supreme Court entered the following order: Order Extending Trial Courts' Emergency Tolling Authority and Setting Expiration of Other Emergency Orders. The latest order follows-up the original order entered March 16, 2020, which I discussed in... Continue reading
Posted Jun 2, 2020 at Indiana Commercial Foreclosure Law
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Status Of Marion County Indiana Sheriff's Sales
The Marion County Civil Sheriff's Office issued the following email last week: The Marion County Sheriff sale for June 17th has been cancelled. These sales will be moved to August. However, your sales that moved from April to the June... Continue reading
Posted May 18, 2020 at Indiana Commercial Foreclosure Law
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Judgment Creditor Entitled To Recover Entire Value Of Real Estate Fraudulently Conveyed
Lesson. Although the transferee of real estate fraudulently conveyed theoretically could retain, or receive credit for, money spent to improve or otherwise increase the value of the subject property, the credit will only apply to improvements made after the fraudulent... Continue reading
Posted May 14, 2020 at Indiana Commercial Foreclosure Law
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Indiana Court Of Appeals Clarifies Bond Requirement In Corvette Receivership
Burelli v. Martin, 130 N.E.3d 661 (Ind. Ct. App. 2019) approved the appointment of a receiver to sell an expensive item of personal property, subject to the posting of a bond. At a judgment creditor’s request, the trial court appointed... Continue reading
Posted Apr 29, 2020 at Indiana Commercial Foreclosure Law
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Reminder: Receivership CLE Next Wednesday, April 22nd
I'll be co-presenting (via Zoom) an hour-long continuing legal education program for the IndyBar on Wednesday, 4/22/20, from 4-5 p.m EDT. For more information, click here: Vignettes from Receivership Cases and Comparisons to Bankruptcy. Jason Burke of Blackwell Burke &... Continue reading
Posted Apr 15, 2020 at Indiana Commercial Foreclosure Law
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Status Of Indiana Sheriff's Sales
For what it's worth, the Marion County (Indianapolis) Civil Sheriff's Office announced last week that its May 2020 sale has been cancelled. (The sheriff previously cancelled the April sale.) The email from Marion County indicated that the June 2020 sale... Continue reading
Posted Apr 13, 2020 at Indiana Commercial Foreclosure Law
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The Federal CARES Act - Multifamily Properties With Federally Backed Loans
Here is a verbatim quote of Section 4023: FORBEARANCE OF RESIDENTIAL MORTGAGE LOAN PAYMENTS FOR MULTIFAMILY PROPERTIES WITH FEDERALLY BACKED LOANS (a) IN GENERAL.—During the covered period, a multifamily borrower with a Federally backed multifamily mortgage loan experiencing a financial... Continue reading
Posted Apr 6, 2020 at Indiana Commercial Foreclosure Law
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