Domesticating Foreign Judgments Under Indiana's New Electronic Filing System

If you own a money judgment entered in a state other than Indiana, and if you believe that the judgment debtor (the defendant) has assets in Indiana that might be available to satisfy the judgment, then you can take steps to domesticate that “foreign judgment” in Indiana and enforce it through the Indiana court system. 

Indiana’s Statute.  Indiana Code § 34-54-11 provides the procedural roadmap for Indiana’s domestication process.  First, you must wait 21 days after the judgment was entered in the original jurisdiction before filing in Indiana.  Once the 21 days have passed, you need to file a copy of the foreign judgment, authenticated in accordance with 28 U.S.C. 1963 or any applicable Indiana statutes, in the clerk’s office of any Indiana county.  Generally, it makes sense to file in a county where some or all the judgment debtor’s assets are located.  At the same time, you will need to file an affidavit, executed by the judgment creditor (the plaintiff), which states (a) the name and last known address of the judgment debtor and (b) the name and address of the judgment creditor.  Finally, you will need to mail notice of the filing of the foreign judgment to the judgment debtor and file proof of that mailing with the clerk of the Indiana court.

Electronic Filing Glitches.  All of this should be a fairly straightforward process, but under Indiana’s relatively new electronic filing system, there are a couple of potential problems to avoid if your goal is to seek the court’s help in enforcing your domesticated judgment or, in other words, if you anticipate so-called proceedings supplemental.

    Tip 1:  Always file your case under the “MI” designation if you plan to use the Indiana court to execute on the judgment.  

        If your purpose for domesticating the foreign judgment is to enlist the help of the Indiana court in executing on the judgment, as opposed to merely perfecting a judgment lien on real estate, it is essential that you choose the “MI” (miscellaneous) case type during the electronic filing process.  This can be confusing because the list of available case types indicates that foreign judgments should be filed under the “CB” (court business) case type.  You should not choose the “CB” filing type.

        “CB” filings are used for informational purposes only.  We have learned that, if you file your case under a “CB” designation, you will be notifying the Indiana court that you own a judgment, but you will not be able to enlist the court’s help in executing on that judgment.  In other words, no further proceedings may be conducted in that action (lawsuit).  If your goal in domesticating the foreign judgment is to initiate proceedings supplemental and, ultimately, to reach the judgment debtor’s Indiana assets in order to satisfy the judgment, a “CB” filing will get you nowhere.    

    Tip 2:  Always check to make sure that your judgment is reflected on the court’s docket as a final judgment.

        Once you have followed the steps established in I.C. 34-54-11-2, your foreign judgment has the same effect and is subject to the same procedures as any other judgment entered by an Indiana court.  However, you want to ensure that your judgment is formally “of record” and thus creates a perfected lien on any real estate owned by the judgment debtor in that county.  The judgment thus needs to be officially entered on the court’s docket.  In Indiana, this docket is known as the “CCS” or the chronological case summary.  You want the judgment to pop up on public record searches and provide the requisite notice to the world that there is an unsatisfied money judgment against the debtor/defendant.  Here is an example.

    The rub.  Before electronic filing, staff at the county court’s or clerk’s offices manually entered domesticated judgments into an actual hard copy index (public record).  Now, under electronic filing, our experience is that such manual entry no longer occurs in many if not all counties.  It seems that there is no established automatic mechanism for 21^st Century judgments to make their way into an official judgment docket.  Therefore, in order to ensure that your judgment can be found in a title or debtor search, we recommend that you follow-up with the clerk of the court to ensure someone takes the final step of creating the entry of judgment on the CCS so that it is visible online.  We have had cases where this has not occurred as a matter of course and have had to either ask that it be done by phone or file a motion to prompt the court to take the final step. 

As a practical matter, the previously established laws and systems simply have not caught up electronic filing.  We would expect this glitch to be sorted out by the Indiana General Assembly or the Indiana Supreme Court at some point down the road, however. 

_______________

I'd like to thank my colleague Jere Rosebrock for her valuable research, investigation and input into this post. Among many other things, Jere helps me and others at the Firm to domesticate foreign judgments for our clients and out-of-state counsel.  If you need assistance with a similar matter, please call us at 317-639-6151 or email me at john.waller@woodenlawyers.com. Also, don’t forget that you can follow me on Twitter @JohnDWaller or on LinkedIn, or you can subscribe to posts via RSS or email as noted on my home page.

In Property Revitalization Case, Court Declines To Impose Receivership On Owner Of Common Areas

Lesson. A receivership can be a powerful remedy but only will be granted in unique situations, unless it is a mortgage foreclosure case.

Case cite. Towne & Terrace v. City of Indianapolis, 122 N.E.3d 846 (Ind. Ct. App. 2019).

Legal issue. Whether a receiver should have been appointed in a nuisance/unsafe property case.

Vital facts. Towne & Terrace involved a dispute between the City of Indianapolis (City) and Town and Terrace (T&T), a corporation that developed a condominium complex at 42nd and Post in 1964. Due to crime in the area, in 2014 the City filed a public nuisance suit against T&T for, among other things, safety-related concerns in the complex, including poor conditions in the common areas. The litigation later evolved into a receivership proceeding in which both sides sought the appointment of a receiver for various purposes. The litigation was complicated by the fact that, at the time of the courts’ decisions, the City owned portions of the property, T&T owned portions (mainly common areas), and third parties owned other portions. Please read the opinion for a more in-depth summary of the factual and legal issues in the case, of which there were many. One element of the case dealt with the trial court’s effort to create a public-private partnership to rebuild and recreate “a safe and thriving T&T neighborhood.”

Procedural history. This post relates to the trial court’s order granting the City's motion to appoint a receiver over the property owned and controlled by T&T within the complex.  The trial court ordered both the City and T&T to pay for the receiver’s services, which were to upgrade, repair, and restore the common areas in the complex.

Key rules. Indiana Code 32-30-5 is our state’s general receivership statute. Subsection (7) [aka the “catch all” provision] provides that a receiver may be appointed in cases “as may be provided by law or where, in the discretion of the court, it may be necessary to secure ample justice to the parties.”

Indiana common law provides that "a receiver should not be appointed if the plaintiff has an adequate remedy at law [basically, money damages] or by way of temporary injunction.”

Holding. The Indiana Court of Appeals reversed the appointment of a receiver over T&T, specifically the property T&T owned.

Policy/rationale. T&T did not own any structures in the complex. Thus, T&T’s involvement was limited to common areas that it managed. There was no evidence that those common areas were “so deteriorated that they contribute to the undesirable activities at the complex….” Moreover, T&T had not violated any ordinances or statutes. Because the “extreme necessity” for a receiver did not exist, the Court declined to appoint one. My guess is that an unstated rationale in play was that T&T did not want to fund the receivership and was able to convince the Court of Appeals that it should not have to. Receivers do not work for free.

Related posts.

• If Requested, Receiverships In Indiana Commercial Mortgage Foreclosure Actions Are Mandatory
• Some Tips For Indiana Receivers

__________
My practice includes the representation of lenders and borrowers, as well as receivers, entangled in real estate-related cases. If you need assistance with a similar matter, please call me at 317-639-6151 or email me at john.waller@woodenlawyers.com. Also, don’t forget that you can follow me on Twitter @JohnDWaller or on LinkedIn, or you can subscribe to posts via RSS or email as noted on my home page.

Indiana's Mortgage Foreclosure Redemption Laws

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, to the fact that, unlike Indiana, twenty-six states have non-judicial foreclosures. Even judicial foreclosure states have different laws regarding when and how to redeem. Anyway, I thought a quick reminder about Indiana’s right of redemption was in order.

Pre-sale. If a borrower defaults, and if a secured lender exercises its rights under a mortgage to foreclose, the borrower still is able to avoid losing the real estate collateral. This is because, in Indiana, borrowers have a right of redemption. “Redeem” means “to buy back. To free property from mortgage . . . by paying the debt for which it stood as security.” Black’s Law Dictionary. Redemption (basically, a payoff) is the way for a borrower to keep the property, end the litigation and free itself of the lender’s mortgage interest.

Indiana Code § 32-29-7-7 “Redemption by owner before sheriff’s sale” outlines this right:

Before the [sheriff’s] sale under this chapter, any owner or part owner of the real estate may redeem the real estate from the judgment by payment to the:

(1) clerk before the issuance to the sheriff of the judgment and decree; or
(2) sheriff after the issuance to the sheriff of the judgment and decree;

of the amount of the judgment, interest, and costs for the payment or satisfaction of which the sale was ordered. If the owner or part owner redeems the real estate under this section, process for the sale of the real estate under judgment may not be issued or executed, and the officer receiving the redemption payment shall satisfy the judgment and vacate order of sale . . ..

Post-sale. There is, however, no post-sale right of redemption for a borrower/owner/mortgagor. I.C. § 32-29-7-13 states: "There may not be a redemption from the foreclosure of a mortgage executed after June 30, 1931, on real estate except as provided in this chapter [Section 7 noted above and 32-9-8 noted below]." Well-settled Indiana case law provides that "a foreclosure sale cuts off a mortgagor's rights of redemption." Patterson v. Grace, 661 N.E.2d 580, 585 (Ind. Ct. App. 1996); Overmyer v. Meeker, 661 N.E.2d 1271, 1275 (Ind. Ct. App. 1996); Vanjani v. Federal Land Bank of Louisville, 451 N.E.2d 667, 672, n.1 (Ind. Ct. App. 1983).

Basically, a borrower must pay the debt amount (pre-judgment) or the judgment amount (post-judgment) before the sheriff’s sale. Otherwise, in Indiana. the right to redeem terminates with the sale. In Re Collins, 2005 Bankr. LEXIS 1800 (S.D. Bankr. 2005). “Once a sheriff’s sale takes place, a mortgage-debtor is no longer the title holder . . ..” Id. Judge Coachys concluded, in Collins, that a sheriff’s sale is complete when the hammer falls and that the actual delivery of the sheriff’s deed is purely ministerial. Id.  At the sale, when the sheriff's deputy or the auctioneer says "Sold!" the party's over.

Post-sale exception. There is narrow exception to the post-sale rule, but the exception does not apply to borrowers. As explained in detail in my April 12, 2012 post, certain lienholders mistakenly omitted from the foreclosure process have limited remedies under I.C. § 32-9-8. 

__________
I represent lenders, loan servicers, borrowers, and guarantors in foreclosure and real estate-related disputes. If you need assistance with a similar matter, please call me at 317-639-6151 or email me at john.waller@woodenlawyers.com. Also, don’t forget that you can follow me on Twitter @JohnDWaller or on LinkedIn, or you can subscribe to posts via RSS or email as noted on my home page.   

Marion County (Indianapolis) Sheriff's Sale Website And Other Tidbits

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 useful information about the local sheriff's sale process.  The site also has links to many critical form documents.    Any party or lawyer navigating through a sheriff's sale in Indianapolis should study this website.  Click here for the full site.

As a reminder, in Indiana, mortgage foreclosures are judicial or, in other words, through the court system.  As a general proposition, real estate collateral must be sold, pursuant to a judge's decree, by the county civil sheriff's office.  Although the Indiana Code covers the fundamentals of the sheriff's sale process, the specific rules and procedures vary by county.  I once presented at a foreclosure-related seminar, and one of my co-presenters accurately stated, in essence, that there are 92 counties in Indiana and therefore 92 different sets of rules applicable to sheriff's sales. 

My advice is to call or visit the local civil sheriff's office to confirm the hoops through which you must jump, and when, to start and finish a successful sheriff's sale.  Many if not most counties now have websites similar to Marion County's that are very helpful or at a minimum provide contact information.  Despite information that may be available on the internet, I've found it to be invaluable to talk to, and form a working relationship with, the sheriff's staff member who will be handling your sale.

__________
My practice includes the representation of parties involved in, or who wish to bid at, sheriff's sales.  If you need assistance with a similar matter, please call me at 317-639-6151 or email me at john.waller@woodenlawyers.com.  You can follow me on Twitter @JohnDWaller or on LinkedIn, or you can subscribe to posts via RSS or email as noted on the top left of my home page.

Third In Rem Foreclosure Action Barred Due to Rule 41(E) Dismissal Of First Action

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 dismiss the case without prejudice or get an order staying the action. Otherwise, the lender runs the risk of a dismissal for failure to prosecute that could prevent subsequent efforts to foreclose the mortgage, especially in the absence of a new default.

Case cite. Mannion v. Wilmington Savings Fund, Case No. 19A-MF-446.  See, The Indiana Lawyer - "Reversal: Bank loses in lengthy foreclosure battle".

Legal issue. Whether the dismissal of an in rem foreclosure action under Ind. Trial Rule 41(E) bars a subsequent in rem foreclosure on the same note and mortgage.

Vital facts. In this residential case, the borrower filed for bankruptcy in 2007. The borrower received a personal discharge from the mortgage debt in February 2009 and made no further payments on the loan. In April 2009, lender’s predecessor filed an in rem foreclosure action against the borrower, or more specifically the borrower’s property. Due to a failure by the lender to take any action in the case, the trial court dismissed the suit in April 2011 under Rule 41(E). A second action was filed in 2012 and dismissed in 2017 at the plaintiff’s request. Then, in April 2018, the current lender, an assignee of the mortgage loan, filed a third in rem foreclosure action.

Procedural history. The parties filed cross-motions for summary judgment in the third case. The trial court ruled in favor of the lender and entered a decree of foreclosure. The borrower appealed.

Key rules. Under Rule 41(E), a dismissal for a failure to prosecute is “with prejudice.” Unless the order of dismissal states otherwise, the dismissal operates as an adjudication on the merits.

Indiana law is settled that a dismissal with prejudice “is conclusive of the rights of the parties and res judicata as to the questions that might have been litigated.”

Indiana’s doctrine of res judicata “serves to prevent repetitious litigation of disputes that are essentially the same.”

Holding. The Indiana Court of Appeals reversed the trial court’s summary judgment for the lender and instructed the trial court to enter judgment for the borrower.

Policy/rationale. Since the order of dismissal in the first foreclosure action was not limited and did not otherwise indicate that it was “without” prejudice, the order was deemed an adjudication on the merits.

The lender in Mannion argued that the first and third foreclosure actions were not the same “because they [were] based on different acts of default and because they [sought] different amounts.” The Court surmised that the lender was trying to argue that a “new and independent default” had arisen since the dismissal of the first case. The Court rejected that contention and reasoned that, because the borrower’s personal liability under the mortgage loan had been discharged in bankruptcy, “both foreclosure actions were based upon the nonpayment of the mortgage due to the [borrower’s] discharge in bankruptcy.” The increase in the amount of the debt through growing interest and attorney fees was immaterial.

The bottom line was that the relief sought in both cases was the same and based on the same default.  So, the borrower got to keep his property free and clear of the mortgage. The Court rationalized the outcome, in part, by saying “the creditor created the situation as a direct result of its failure to prosecute, and … the [dismissal order] should have its full res judicata effect….”

Related posts.

• Following Rule 41(E) Dismissal For Failure To Prosecute, Can A Second Suit Be Filed?
• Following A Dismissal, Lenders Generally Are Able To Refile Foreclosure Actions Based On New Defaults
• An “In Rem” Judgment Limits Collection To The Mortgaged Property

__________
I represent lenders, loan servicers, borrowers, and guarantors in loan and real estate-related disputes.  If you need assistance with a similar matter, please call me at 317-639-6151 or email me at john.waller@woodenlawyers.com. Also, don’t forget that you can follow me on Twitter @JohnDWaller or on LinkedIn, or you can subscribe to posts via RSS or email as noted on my home page.

IBJ.com: Marion County reschedules canceled tax sale for early 2020

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 story.  Click here for a post of mine from earlier this year talking about Indiana tax sales and notice-related issues.  The "clerical error" leading to the postponement of the sales appears to be related to perfecting the statutory notice required for the sales to be valid.  Better to have a do over now instead of dealing with potentially hundreds of tainted sales later.