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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
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 5 days ago 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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Indiana Sheriff's Sale Buyers Beware: Meth Labs
Yikes. Did you know that Indiana has a set of regulations that deal with the cleanup of properties contaminated by the manufacture of illegal drugs? Did you know that, for instance, an innocent buyer at a sheriff's sale arguably could... Continue reading
Posted Aug 5, 2018 at Indiana Commercial Foreclosure Law
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Post-Foreclosure Attack On Writ Of Assistance (Eviction) Dismissed
Lesson. A borrower-mortgagor’s challenge to a lender-mortgagee’s execution of a writ of assistance needs to occur in the state court foreclosure action, not in a subsequent federal court case. Even then, there’s not much the borrower can do about the... Continue reading
Posted Jul 19, 2018 at Indiana Commercial Foreclosure Law
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Restraining Order To Enjoin Sheriff's Sale Denied
Hollowell v. Bornkempt, 2017 WL 3446676 (N.D. Ind. 2017) (pdf) is an Indiana federal court opinion following an Indiana state court foreclosure case wherein the borrower's property was slated for a sheriff's sale. The pro se borrower filed the federal... Continue reading
Posted Jul 9, 2018 at Indiana Commercial Foreclosure Law
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Indiana Federal Court Dismisses Borrower’s Contract Claim Against Lender Because Lender Never Executed The HAMP Trial Period Plan
Lesson. Absent a fully-executed TPP, signed by a lender or its mortgage loan servicer, no enforceable contract exists, and a borrower’s claim against a lender based upon a TPP, or under HAMP, will be dismissed. In other words, an alleged... Continue reading
Posted Jul 2, 2018 at Indiana Commercial Foreclosure Law
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Indiana Court Finds That Large Crane And Saw For Stone Fabricating Business Were Not "Fixtures"
Lesson. In title and priority disputes surrounding alleged “fixtures,” the parties’ intention is the controlling factor. Case cite. 11438 Highway 50 v. Luttrell, 81 N.E.3d 261 (Ind. Ct. App. 2017). Legal issue. Whether certain pieces of equipment were fixtures subject... Continue reading
Posted Jun 19, 2018 at Indiana Commercial Foreclosure Law
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District Court Denies Fraudulent Transfer and Alter Ego Claims
Fraudulent transfer and alter ego cases seem to almost always be factually dense and, therefore, difficult to summarize in a blog post. Since I've written about the essential elements of Uniform Fraudulent Transfer Act and alter ego claims in the... Continue reading
Posted Jun 8, 2018 at Indiana Commercial Foreclosure Law
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Guarantor Loses Procedural Battle Over Whether He Can Be Sued In Both the United States and Brazil
Lesson. When negotiating guaranties, or litigating rights under them, know that courts will slice and dice the language within the guaranty in order to determine the parties’ intent and reach an appropriate outcome. Every word can be important. Case cite.... Continue reading
Posted Jun 1, 2018 at Indiana Commercial Foreclosure Law
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