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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
Lesson. So long as the legal description in a mortgage provides notice of the boundaries and location of the subject real estate, discrepancies regarding the street address are of no moment. Case cite. United States Bank Nat'l Ass'n v. Spencer,... Continue reading
Posted 7 days ago at Indiana Commercial Foreclosure Law
Lesson. A lender’s motion for voluntary dismissal of a foreclosure lawsuit, without prejudice, generally leaves the door open to file a subsequent action. Case cite. United States Bank Nat'l Ass'n v. Spencer, 214 N.E.3d 1017 (Ind. Ct. App. 2023) Legal... Continue reading
Posted Feb 15, 2024 at Indiana Commercial Foreclosure Law
Various media outlets are reporting that our firm's office building in downtown Indianapolis is being foreclosed upon. (We're just a tenant and paying our rent, so this isn't our fault!) The articles, in part, suggest looming problems with the office... Continue reading
Posted Feb 6, 2024 at Indiana Commercial Foreclosure Law
Lesson. In Indiana, the equitable defense of unclean hands requires proof of intentional misconduct. Case cite. United States Bank Nat'l Ass'n v. Spencer, 214 N.E.3d 1017 (Ind. Ct. App. 2023) Legal issue. Whether Lender had unclean hands that precluded foreclosure.... Continue reading
Posted Feb 2, 2024 at Indiana Commercial Foreclosure Law
Lesson. If a security interest involves both real and personal property, then the secured party may accept certain of the collateral in partial satisfaction of the obligation it secures. Case cite. United States Bank Nat'l Ass'n v. Spencer, 214 N.E.3d... Continue reading
Posted Jan 23, 2024 at Indiana Commercial Foreclosure Law
Happy New Year. Forgive me for the extended break in the action here. Year-end projects, holidays, a bout of the flu, etc. prevented me from writing recently. Lesson. If you’re an assignee of a judgment, file a motion for substitution... Continue reading
Posted Jan 10, 2024 at Indiana Commercial Foreclosure Law
Lesson. A money judgment that includes an award of attorney’s fees accrues statutory post-judgment interest. Case cite. Piccadilly Mgmt. v. Abney, 215 N.E.3d 1078 (Ind. Ct. App. 2023) Legal issue. Whether an award of attorney’s fees is separate from a... Continue reading
Posted Dec 11, 2023 at Indiana Commercial Foreclosure Law
Lesson. Indiana recognizes the remedy of prejudgment attachment, but the hoops through which plaintiffs must jump are challenging. Case cite. Vukadinovich v. Posner, 2023 U.S. Dist. LEXIS 114854 (N.D. Ind. 2023) Legal issue. Whether a plaintiff’s motion for prejudgment attachment... Continue reading
Posted Nov 20, 2023 at Indiana Commercial Foreclosure Law
Lesson. In Indiana, a judgment debtor (defendant) generally will be required to post a bond in order to stay (stop) proceedings supplemental (post-judgment collection efforts) during an appeal. Without a bond and a corresponding order of stay, proceedings supplemental can... Continue reading
Posted Nov 2, 2023 at Indiana Commercial Foreclosure Law
My Indianapolis colleagues in our Firm's commercial real estate transactional group authored a nice article for IBJ.com, the online platform of the Indianapolis Business Journal: From Dreams to Deals: Avoiding Pitfalls in Commercial Real Estate Financing. The piece is informative... Continue reading
Posted Oct 18, 2023 at Indiana Commercial Foreclosure Law
Lesson. Depending upon the contractual language, courts may not necessarily award lenders all of their attorney’s fees in loan disputes. Case cite. Cent. Mkt. of Ind. v. Hinsdale Bank N.A. 207 N.E.3d 1215 (Ind. Ct. App. 2023) Legal issue. Whether,... Continue reading
Posted Oct 5, 2023 at Indiana Commercial Foreclosure Law
Lesson. In Indiana, borrowers generally cannot use oral statements of lenders to contradict or alter the written terms of a promissory note. Case cite. Cent. Mkt. of Ind. v. Hinsdale Bank N.A., 207 N.E.3d 1215 (Ind. Ct. App. 2023) Legal... Continue reading
Posted Sep 26, 2023 at Indiana Commercial Foreclosure Law
Lesson. The Bankruptcy Code’s provisions barring the discharge of a debt can extend to an innocent business partner. Case cite. Bartenwerfer v. Buckley 143 S. Ct. 665 (2023) Legal issue. Whether the bar to dischargeability in 11 U. S. C.... Continue reading
Posted Sep 5, 2023 at Indiana Commercial Foreclosure Law
Lesson. Statutory attorney’s charging liens are not valid unless a judgment has been entered. However, a common law equitable lien for the recovery of fees may attach to settlement proceeds paid into court. Case cites. Browne v. Waldo, 2023 U.S.... Continue reading
Posted Aug 16, 2023 at Indiana Commercial Foreclosure Law
I’m sometimes asked by clients and new associates about the idea of “constructive notice” in the context of real estate litigation generally and commercial foreclosures specifically. The concept of constructive notice is a recurring theme on my blog. Indeed the... Continue reading
Posted Jul 25, 2023 at Indiana Commercial Foreclosure Law
Today's post is a bit off topic but still has relevance to the commercial foreclosure area. This is because construction problems can lead to mechanic's liens, which can lead to priority disputes between contractors and lenders/mortgagees. Here is a PDF... Continue reading
Posted Jul 14, 2023 at Indiana Commercial Foreclosure Law
Lesson. Foreclosure and commercial collection cases are often resolved through an agreement that includes the payment of money to the lender/creditor. If you, as the plaintiff, want the right to collect interest on the settlement payment(s), then you should articulate... Continue reading
Posted Jun 29, 2023 at Indiana Commercial Foreclosure Law
Lesson. To collect a debt that is not otherwise documented in a promissory note or credit agreement, make sure there is evidence of a promise, either express or implied, for the debtor to pay the balance to the creditor. Case... Continue reading
Posted Jun 20, 2023 at Indiana Commercial Foreclosure Law
The Statute. The Protecting Tenants at Foreclosure Act (the "Act"), 12 U.S.C. Section 5220, is a 2018 federal law that offers security for renters living in foreclosed properties. The Act imposes certain obligations on "immediate successors in interest" (presumably including... Continue reading
Posted Jun 9, 2023 at Indiana Commercial Foreclosure Law
Lesson. Personal guaranties come in all shapes and sizes. The document need only evidence a conditional promise to answer for the debt of another upon the debtor/borrower’s failure to pay. Case cite. Innovative Water Consulting LLC v. SA Hosp. Acquisition... Continue reading
Posted Jun 2, 2023 at Indiana Commercial Foreclosure Law
This follows-up my post: Indiana’s Mortgage Release Obligations. Today’s post relates, not to real property mortgage liens, but rather to personal property Uniform Commercial Code liens (security interests). Duty to terminate. Unlike mortgages, the applicable Indiana statutes do not automatically... Continue reading
Posted May 15, 2023 at Indiana Commercial Foreclosure Law
Duty to release. Indiana’s General Assembly has made it clear that lenders/mortgagees must release their mortgages when the underlying debt has been paid in full, including interest. First, Indiana Code 32-29-1-6 provides: After a mortgagee [lender] of property whose mortgage... Continue reading
Posted Apr 30, 2023 at Indiana Commercial Foreclosure Law
Lesson. In Indiana auction sales of goods, the auction is final by the fall of the auctioneer’s hammer or other customary manner. Case cite. Terrault v. Scheere, 200 N.E.3d 490 (Ind. Ct. App. 2022) Legal issue. Whether a second auction... Continue reading
Posted Apr 14, 2023 at Indiana Commercial Foreclosure Law
Lesson. Judgment debtors (defendants) concerned about liability for a post-sheriff’s sale deficiency judgment should closely monitor the sale process and, if possible, take action to maximize the value of the real estate. Case cite. United States v. Fozzard, 2022 U.S.... Continue reading
Posted Mar 23, 2023 at Indiana Commercial Foreclosure Law
Lesson. In Indiana, foreclosure sales are not designed, nor required, to net the fair market value of the real estate. Case cite. United States v. Fozzard 2022 U.S. Dist. LEXIS 226668 (N.D. Ind. Dec. 16 2022) Legal issue. Whether a... Continue reading
Posted Mar 8, 2023 at Indiana Commercial Foreclosure Law