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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
Indiana Reverses Controversial Recording Requirement
Title companies and many other parties routinely dealing with real estate transactions in Indiana are applauding Governor Holcomb’s signature of HB 1056 into law, which is effective immediately. The act reverses the recording law change on July 1, 2020, about... Continue reading
Posted Feb 19, 2021 at Indiana Commercial Foreclosure Law
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Northern District of Indiana Court Dismisses Borrower’s FDCPA Claim Concerning Force-Placed Insurance Notices
Lesson. Force-placed insurance letters issued to a borrower following a Chapter 7 BK discharge generally should not violate the FDCPA. Case cite. Mohr v. Newrez_ 448 F. Supp. 3d 956 (N.D. Ind. 2020) Legal issue. Whether a mortgage loan servicer’s... Continue reading
Posted Feb 12, 2021 at Indiana Commercial Foreclosure Law
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Another Indiana Court Of Appeals Opinion Regarding Admissibility Of Lender’s Loan and Business Records
Lesson. A lender’s proposed witness who was not present when the original loan documents were executed, or for that matter when any materials relevant to the loan were created, does not in and of itself preclude the witness from testifying... Continue reading
Posted Jan 27, 2021 at Indiana Commercial Foreclosure Law
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Marion County (Indianapolis) Sales Disclosure Forms Effective 1/1/21
The Marion County Assessor’s Office is employing a new procedure for the completion of a sales disclosure form (SDF). This is relevant to the foreclosure process because parties pursuing sheriff’s sales in Marion County must tender SDFs as part of... Continue reading
Posted Jan 15, 2021 at Indiana Commercial Foreclosure Law
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Firm News: Dinsmore-Wooden Merger
I'm excited to announce that Wooden McLaughlin is now a part of Dinsmore. Our two firms merged January 1, 2021. Click here for more. Continue reading
Posted Jan 4, 2021 at Indiana Commercial Foreclosure Law
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2021 Marion County (Indianapolis) Sheriff's Sale Calendar, Procedure Reminders
The Marion County Sheriff's Office recently circulated its 2021 calendar, which sets out the relevant pre-sale and sale dates. Click here for the Excel spreadsheet issued by the Sheriff. The Office reminded parties that, through March, the sales will be... Continue reading
Posted Dec 30, 2020 at Indiana Commercial Foreclosure Law
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Indiana Commercial Court Expanding, Succeeding
I attended a continuing ed webinar last week related to the recent-announced expansion of Indiana's commercial court system. Effective January 2021, there will be four new counties in the program. There will now be ten counties (and ten judges) total.... Continue reading
Posted Dec 21, 2020 at Indiana Commercial Foreclosure Law
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Indiana Supreme Court Suspends All Jury Trials Until 3/1/21
Click here for today's Order Suspending Jury Trials entered by our state's high court. The Indiana Lawyer reported on this development, and you can read the article here. For more on this topic, see my June post: Indiana Supreme Court's... Continue reading
Posted Dec 14, 2020 at Indiana Commercial Foreclosure Law
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Indiana Court of Appeals Mortgage Foreclosure Opinion, III of III: Damages Evidence After Lenders Merge
Lesson. Even if the original lender no longer exists due to a merger, as long as the proper foundation is laid, the necessary liability and damages evidence should be admissible based upon the business records exception to the hearsay rule.... Continue reading
Posted Dec 10, 2020 at Indiana Commercial Foreclosure Law
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Indiana Court of Appeals Mortgage Foreclosure Opinion, II of III: Liability – Evidence Teachings
Lesson. In contested motions for summary judgment, lenders should not forget to point to the entire record before the court. Often borrowers will have admitted key facts in their pleadings or offered detrimental evidence themselves while trying to defend certain... Continue reading
Posted Dec 2, 2020 at Indiana Commercial Foreclosure Law
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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 Nov 22, 2020 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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