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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
I attended the American Legal & Financial Network’s informative and productive “Foreclosure Intersect” Conference in Dallas this week. One of the many issues that struck me was how wide ranging the country’s redemption laws are. This is due, in part,... Continue reading
Shame on me for not more quickly updating the link to the Marion County Civil Sheriff's foreclosure sale website to your left (under the heading "Indiana Courts/Govt."). We're good now. Marion County has a slick new website with lots of... Continue reading
Posted Nov 7, 2019 at Indiana Commercial Foreclosure Law
Nick - Thanks for your comments and questions. We agree there are uncertainties. I'm planning on using your comment as a springboard for a future post later this month. Stand by. John
1 reply
Lesson. Once a lender files an Indiana mortgage foreclosure suit, the lender should move the case along and prosecute it to the end. In the event a post-filing loan modification, workout or intervening bankruptcy occurs, however, the lender should either... Continue reading
Posted Oct 18, 2019 at Indiana Commercial Foreclosure Law
The Indianapolis Business Journal is reporting that Marion County (Indianapolis) has canceled its fall real estate tax sales (with a combined value of at least $6MM) due to a clerical error. The 2019 sales will occur 2/14/20. Here is the... Continue reading
Posted Oct 11, 2019 at Indiana Commercial Foreclosure Law
The Indiana Lawyer posted this article yesterday about this Indiana Court of Appeals opinion. I will study the case and write about it next week. Update: Third In Rem Foreclosure Action Barred Due to Rule 41(E) Dismissal Of First Action Continue reading
Posted Oct 10, 2019 at Indiana Commercial Foreclosure Law
Lesson. Property settlement agreements in divorce cases can create judgment liens on real estate owned by the spouse holding title to the real estate post-dissolution. If an owner intendeds for the ex-spouse only to be a secured creditor, then the... Continue reading
Posted Sep 26, 2019 at Indiana Commercial Foreclosure Law
Do federal or state income tax liens trump your Indiana mortgage lien? Not if you recorded your mortgage first. In Indiana, first in time is first in right. Priority of state income tax liens. Indiana is a “first to file”... Continue reading
Posted Sep 22, 2019 at Indiana Commercial Foreclosure Law
Does Indiana allow “confessions of judgment?” Some states permit these, but Indiana is not one of them. Definition. Black’s Law Dictionary defines a “confession of judgment,” in part, as: The act of a debtor [borrower] in permitting judgment to be... Continue reading
Posted Sep 15, 2019 at Indiana Commercial Foreclosure Law
Lesson. The filing of a lis pendens notice to protect one’s unrecorded interest in real estate will not give rise to liability for slander of title provided there was a basis for filing the notice. Case cite. RCM v. 2007... Continue reading
Posted Aug 30, 2019 at Indiana Commercial Foreclosure Law
This follows-up my last post, Indiana Court of Appeals Adopts Reasonableness Test For Promissory Note Statute of Limitations, where there was cliffhanger about an alternative statute of limitations that may have altered the outcome of the lender's case, which was... Continue reading
Posted Aug 15, 2019 at Indiana Commercial Foreclosure Law
Lesson. To be absolutely safe, in Indiana a lender’s suit to enforce a promissory note should be filed within six years of the borrower’s last payment. At a minimum, assuming the note has an optional acceleration clause, the debt should... Continue reading
Posted Aug 5, 2019 at Indiana Commercial Foreclosure Law
Lesson. A mortgage loan servicer can achieve summary judgment in a RESPA qualified written request case if the borrower fails to establish that the statutory violations caused any actual damage. Case cite. Moore v. Wells Fargo, 908 F.3d 1050 (7th... Continue reading
Posted Jul 18, 2019 at Indiana Commercial Foreclosure Law
Lesson. Lenders must always prove that they are entitled to enforce their promissory notes under the applicable UCC provisions. Normally, this is a simple excercise, but creative financing like that in the Tissue v. TAK case can complicate the issue.... Continue reading
Posted Jul 3, 2019 at Indiana Commercial Foreclosure Law
Lesson. A chagrined tax sale purchaser, whose tax deed is set aside for notice-related deficiencies, cannot sue the county’s sale contractor for alleged lost profits. Case cite. M Jewell v. Bainbridge 113 N.E.3d 685 (Ind. Ct. App. 2018) Legal issues.... Continue reading
Posted Jun 24, 2019 at Indiana Commercial Foreclosure Law
Lesson. Creditors cannot discriminate against an applicant for a credit transaction based on race, but a plaintiff applicant needs to put forth evidence of discrimination in order to survive a creditor’s motion for summary judgment. Case cite. Sims v. New... Continue reading
Posted Jun 7, 2019 at Indiana Commercial Foreclosure Law
Lesson. When enforcing an out-of-state judgment in Indiana, the law presumes that the foreign judgment is valid. That presumption can be overcome with proof that the plaintiff failed to properly serve the defendant with a summons and complaint in the... Continue reading
Posted May 29, 2019 at Indiana Commercial Foreclosure Law
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 May 21, 2019 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