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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
Subsequent Federal And State Income Tax Liens: Priority And Redemption
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 yesterday at Indiana Commercial Foreclosure Law
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Indiana No-Nos: Confessions Of Judgment And Cognovit Notes
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
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Properly Filed Lis Pendens Notices Do Not Slander Title
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
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Indiana Has Two Statutes Of Limitations For Promissory Notes
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
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Indiana Court of Appeals Adopts Reasonableness Test For Promissory Note Statute of Limitations
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
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No Harm No Foul – 7th Circuit Dismisses RESPA Case
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
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7th Circuit Prevents Lender From Enforcing Promissory Notes Held By Third Parties
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
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County Sale Agent SRI Not Liable To Tax Sale Purchaser In Wake Of Overturned Sale
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
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Mortgage Loan Servicer Sued For Race Discrimination After Denying Loan Assumption
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
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Enforcement Of Wisconsin Judgment In Indiana Defeated
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
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Residential Borrower Denied Second Settlement Conference
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
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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
Commented May 15, 2019 on Sampling Of Indiana Deed Law, And Judgment Lien Attachment Issues at Indiana Commercial Foreclosure Law
Sampling Of Indiana Deed Law, And Judgment Lien Attachment Issues
Lesson. A judgment lien on real estate attaches only to the judgment debtor’s ownership interest in the real estate. If the property is owned by tenants in common, and one of the tenants is not a judgment debtor, then the lien will not impact the innocent party’s partial interest. Case cite. U...
Indiana General Assembly Update
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
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If the SBA had a mortgage on the property, then yes. If not, then no.
Commented May 1, 2019 on Can The SBA's Right Of Redemption Be Purchased After A Sheriff's Sale? at Indiana Commercial Foreclosure Law
Can The SBA's Right Of Redemption Be Purchased After A Sheriff's Sale?
The situation. A client engaged me to bid for a commercial property at a recent sheriff’s sale, but another party outbid us. However, the sale was unusual in that the Small Business Association (SBA), which was a junior mortgagee, retained a post-sale one-year statutory right redemption under ...
Seventh Circuit Reminds Us That Federal Law, And Not Indiana State Law, May Apply To Some Successor/Alter-Ego Claims
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
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Who Owes The Taxes After An Indiana Tax Sale, And When?
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
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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
Commented Apr 12, 2019 on Judgment Lien Principles Courtesy Of The Indiana Supreme Court at Indiana Commercial Foreclosure Law
Judgment Lien Principles Courtesy Of The Indiana Supreme Court
This week’s post should be read along with last week’s post: Indiana Supreme Court Tackles Lis Pendens Law. The topic of discussion is JPMorgan Chase v. Claybridge, 39 N.E.3d 666 (Ind. 2015). Today’s question surrounds whether a judgment, which was not properly docketed/indexed, was nonethele...
Indiana General Assembly: Nothing Cooking This Year
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
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Perplexing Result In “Bona Fide Mortgagee” Case
Lesson. The bona fide mortgagee defense, where a lender claims priority in title over another lender or an owner, may be a difficult on which to win on summary judgment. These cases can be somewhat fact sensitive. If filing an... Continue reading
Posted Apr 1, 2019 at Indiana Commercial Foreclosure Law
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Lender Moves For Default Judgment Only To See Its Foreclosure Case Dismissed
Lesson. Technical inconsistencies between the promissory note and the mortgage may not doom the enforcement of the loan. Case cite. U.S. Bank Trust v. Spurgeon, 99 N.E.3d 671 (Ind. Ct. App. 2018) Legal issue. Whether a mortgage still can be... Continue reading
Posted Mar 25, 2019 at Indiana Commercial Foreclosure Law
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Court of Appeals Reduces Appeal Bond In Indiana Foreclosure Case
Lesson. In Indiana, a defendant mortgagor generally will be required to post a bond in order to stay a sheriff’s sale during its appeal of an adverse foreclosure decree. Without a bond and a corresponding order of stay, the sheriff’s... Continue reading
Posted Mar 15, 2019 at Indiana Commercial Foreclosure Law
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Indiana Court Releases Mortgage On Parents' Farmland Based On Material Alteration Of Kids' Loan
Lesson. Sometimes a lender will loan money to a borrower that is secured with collateral, such as a mortgage, pledged by a third party. These third parties are known as sureties. If a lender materially changes the terms of the... Continue reading
Posted Mar 6, 2019 at Indiana Commercial Foreclosure Law
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IBJ's Andrews on Creditors' Lawsuit Against Bankrupt HHGregg Insiders
Here is interesting read from the Indiana Business Journal's Greg Andrews: $50M HHGregg suit attacks insiders for accepting customer deposits to very end. Continue reading
Posted Mar 2, 2019 at Indiana Commercial Foreclosure Law
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The Indiana Lawyer: Commercial Courts Update
Earlier this week, The Indiana Lawyer reported that Indiana's commercial court pilot project may become a permanent system on June 1: Supreme Court deciding commercial courts’ fate. I wrote about the pilot project and the interim rules in 2016: link. Continue reading
Posted Feb 23, 2019 at Indiana Commercial Foreclosure Law
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Lender Overcomes Borrower’s Allegations Of Misconduct Surrounding Settlement Negotiations
Lesson. In the wake of an undisputed consumer/residential mortgage loan default, lenders and their servicers generally are not compelled to enter into loan modification agreements with their borrowers. Lenders really must only participate in a settlement conference, if requested, or... Continue reading
Posted Feb 21, 2019 at Indiana Commercial Foreclosure Law
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