Notices of Sheriff’s Sales: Some Reminders

I received an email last week from the Marion County (Indianapolis) Sheriff’s Office advising that the real estate division “is making advancements in technology” that have led to a new notice of sheriff’s sale. Click here for the form in Word that will be required beginning with the June 21, 2024 sale.

For more background on Indiana law surrounding the sale notice requirement, please review these posts:

While I’m at it, remember that the Marion County Sheriff has a great website to help parties navigate through the sale process. The staff provides virtually all the forms and information one needs, and my experience has been that the staff is always been helpful in answering questions attorneys and bidders might have. Click here for that website.

Although not all of Indiana’s 92 counties have a website as extensive as Marion County’s, many of our sheriff’s offices do in fact have a sale web page. Make sure to investigate in advance of your sale. Just as importantly, in my experience every county has a sheriff’s sale contact person willing and able to assist in preparing for a foreclosure sale. Finally, don’t forget that local rules, customs and practices control the nitty gritty of the sale process.
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Part of my practice involves representing parties at sheriff’s sales. If you need assistance with a similar matter, please call me at 317-639-6151 or email me at [email protected]. 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 Claims To Pierce The Corporate Veil Should Be Post-Judgment

Lesson. A veil-piercing claim is a post-judgment collection tool, not a separate cause of action in a lawsuit.

Case cite. Conroad Associates v. Castleton Corner Owners Association et. al. 2023 U.S. Dist. LEXIS 135677 (S.D. Ind. 2023)

Legal issue. Whether a plaintiff in a breach of contract action against a company could simultaneously sue the individual owners of the company for the alleged breach.

Vital facts. This federal court action relates to a state court case about which I wrote in August of 2022. Here is a link to that post, which provides some background about the dispute. In this matter, a plaintiff sued a number of parties for money damages based on several causes of action, one of which was against individuals for their corporate entity’s breach of contract.

Procedural history. The individual defendants filed a motion for judgment on the pleadings seeking dismissal of the case.

Key rules.

To "prevent fraud or unfairness to third parties,” Indiana may allow the corporate veil to be pierced so as to impose liability for a corporation's acts and omissions beyond the corporation itself.

However, "piercing the corporate veil is not a separate cause of action but rather a means of imposing liability for an underlying cause of action, such as breach of contract."

The Piercing Corporate Veil category on this blog has a couple dozen posts identifying the various rules and tests applicable to Indiana’s veil piercing doctrine.

Holding. The Court dismissed the veil piercing count in the complaint.

Policy/rationale. In its complaint, plaintiff argued that it stated "a coherent case for piercing of the corporate veil — including by serious undercapitalization, the failure to keep corporate records and follow other formalities, fraudulent representation by unelected controlling persons, the commingling of assets, and other manipulations of the corporate form to achieve personal ends." While those allegations may have been valid, the Court concluded that the cause of action was premature. If the plaintiff later obtained a judgment, the plaintiff could then seek to pierce the corporate veil, assuming “it has a good faith basis to assert that theory in proceedings supplemental.” In short, the plaintiff in Conroad had the cart before the horse.

Related post. Veil-Piercing Claim Better Left For Proceedings Supplemental

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Part of my practice involves representing parties in post-judgment collection matters. If you need assistance with a similar matter, please call me at 317-639-6151 or email me at [email protected]. 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.


Forbearance Agreements: The Benefits Of A Timeout

The Indiana Bankers Association publishes the Hoosier Banker magazine, which features my article about forbearance agreements in the current issue.  Click here for the online version of the piece.  The full article follows.  I'd like to thank the folks at the IBA for allowing me to contribute to the March/April publication.  

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When facing a loan default, the fundamental question for lenders is whether to exercise their remedies against the borrower and/or guarantors (collectively, “obligors”) or to pursue a settlement (workout). A forbearance agreement is a workout tool—a temporary settlement agreement.

What is a forbearance? Black’s Law Dictionary defines “forbearance” as the “act of abstaining from proceeding against a delinquent debtor; delay in exacting the enforcement of a right; indulgence granted to a debtor.” The idea is that the foreclosing lender agrees to a timeout.

Why would obligors want time? They:

• face a judgment or a foreclosure (loss of their property) and need to restructure their affairs
• desire to sell the loan collateral (such as commercial real estate) to pay off/pay down the loan
• intend to work with another lender to refinance
• want to settle internal partner disputes affecting the loan’s performance
• need to resolve a temporary hardship (i.e. COVID or other impact on revenue)
• seek to cure covenant defaults such as mechanic’s liens or code enforcement violations

Why would lenders consent to a timeout?

• Foreclosure litigation is a last resort
• The loan’s performance stems from a temporary problem that can be solved with time
• There is a positive relationship with the borrower group (trust)
• The obligors are preserving and protecting the loan collateral (i.e. the assets are not in jeopardy of being lost or impaired)
• The collateral position is weak (i.e. there is relatively little value in the property)
• The collateral is defective (i.e. environmental contamination)
• The guarantors are judgment proof
• The loan documents have defects that can be fixed in the forbearance agreement
• Forbearance saves attorney’s fees and litigation expenses
• Temporary settlements avoid the commitment of bank personnel necessary to litigate

Contract.

Under Indiana law, forbearance agreements are contracts. The agreement reduces the situation into a single document that is relatively easy for judges to understand. (An added bonus is that judges tend to look favorably on lenders who resort to court after first affording obligors the opportunity to avoid suit in the first place.) Make sure to clarify in writing all of the essential terms of the deal.

Signatories.

All obligors to the loan should sign the forbearance agreement, or lenders risk releasing the omitted obligors from liability. This is because a forbearance agreement arguably constitutes a “material alteration” of the original obligation. Under Indiana law, a guarantor can be released from liability if the underlying obligation is “material altered” without the guarantor’s knowledge and consent. The simple solution is to have all the obligors sign the agreement. If a guarantor is unwilling to execute, then the lender should proceed to litigation or explore a different workout approach.

Settlement

As with any compromise, everything is negotiable. Also bear in mind that the parties can enter into forbearance agreements virtually at any point—before or during a lawsuit, even after the entry of judgment.

    Release. All forbearance agreements should require the obligors to waive any and all rights, claims and defenses. This will help lenders and their counsel to streamline any future litigation necessary to enforce the loan if the forbearance agreement is breached. Indiana law is settled that forbearance releases are effective to protect against future lender liability claims. If an obligor is not willing to grant a release, then the lender might as well get on with the fight.

    Deal terms. Here is a list of some key contract terms to be considered:

        • Obligors’ admission of:
            o existing loan documents and the ratification of same
            o lien perfection
            o default(s)
            o debt amounts

        • Payment terms:
            o payment of principal and/or interest during the forbearance period versus deferral
            o rate of interest
            o payment of escrow items versus deferral
            o treatment of any past due interest
            o treatment of any past due principal payments
            o payment of attorney’s fees
            o payment of a forbearance fee
            o payment of other out-of-pocket expenses such as appraisal fees

        • Extension of maturity date
        • Stipulated payoff amount upon maturity (end of the forbearance period)
        • Agreed judgment, either filed or escrowed (aka “pocket” judgment)
        • Addition of collateral
        • Addition of guarantors
        • Cure of prior loan document defects
        • Requirement to resolve other liens or junior lien foreclosure suits
        • Waiver of jury trial and covenant not to sue
        • Consent to jurisdiction and venue
        • Release of claims and defenses (see above)

Depending on your particular situation, the benefits of granting obligors more time through a thoughtful and well-written forbearance agreement can exceed the costs of deferring the enforcement of the loan.

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My practice includes representing parties involved in disputes arising out of loans in default. If you need assistance with a similar matter, please call me at 317-639-6151 or email me at [email protected]. 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.


Metes And Bounds Legal Descriptions, As Opposed To Street Addresses, Control The Effectiveness Of Mortgages In Indiana

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, 214 N.E.3d 1017 (Ind. Ct. App. 2023)

Legal issue. Whether the trial court should have granted Lender’s motion for summary judgment in its mortgage foreclosure action.

Vital facts. Spencer was a residential mortgage foreclosure case involving a few twists and turns. This is my fourth and final post about the opinion. For background, please click on my three prior posts: 1/23/24, 2/2/24 and 2/15/24.

Procedural history. The trial court denied Lender’s motion for summary judgment and later entered judgment for the Borrowers that essentially nullified the mortgage.

Key rules.

The Court in Spencer reminds us of some fundamentals surrounding Indiana mortgage foreclosure claims. First, a “mortgage is an interest in real property that secures a creditor's right to repayment.” This means that “an action to foreclose a mortgage is an in rem (i.e., against the property) proceeding."

Yet, upon a borrower’s default, "in addition to the remedy of an in rem action of foreclosure, a creditor may sue to establish the debtor's in personam (i.e., personal) liability for any deficiency on the debt and may enforce a judgment against the debtor's personal assets."

Among other things, “for a mortgage to be effective, it must contain a description of the land intended to be covered sufficient to identify it.” The test for determining the sufficiency of a legal description “is whether the tract intended to be mortgaged can be located with certainty by referring to the description.”

Holding. The Indiana Court of Appeals reversed the trial court’s summary judgment ruling.

Policy/rationale. To prevail on the summary judgment motion, Lender had to show Borrowers were in default under the terms of the promissory note and mortgage. Borrowers did not really contest that they were in default and in violation of the terms of the mortgage. No payments had been made for several years.

Despite Borrowers’ arguments to the contrary, the Court declined to hold that there was a “material” issue of fact (which would have prevented summary judgment) related to some confusion about the correct street address for the subject real estate. This is because the metes and bounds legal description in the relevant deeds and mortgage was consistent and put “potentially interested parties on notice as to the boundaries and location of the property.” In Indiana, legal descriptions, not street addresses (aka common addresses), generally control the enforceability of a mortgage. As such, the Court found that summary judgment as to liability must be entered, although it remanded the case back to the trial court to determine the amount of Lender’s damages, including reasonable attorney’s fees.

Related posts.

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Part of my practice involves mortgage-related litigation and title disputes. If you need assistance with a similar matter, please call me at 317-639-6151 or email me at [email protected]. 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.


Lender Permitted To Pursue Third Foreclosure Case Because The Two Prior Actions Were Dismissed “Without Prejudice”

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 issue. Whether Lender’s action – its third - was barred by a voluntary motion for dismissal in a prior foreclosure action.

Vital facts. This is my third post about Spencer. For background on the case, please click on my two prior posts: 1/23/24 and 2/2/24. Again, the Spencer opinion stemmed from Lender’s third foreclosure suit. Lender terminated its first foreclosure case through a T.R. 41(A)(1)(a) voluntary motion to dismiss “without prejudice” that the trial court granted over Borrowers’ objection. Lender had filed the second case about two weeks before the first case was dismissed. Apparently due in part to title issues concerning the mortgaged real estate, Lender filed a motion to dismiss, without prejudice, under T.R. 41(A)(2). The trial court granted the motion over Borrowers’ objection that the dismissal should have been “with prejudice.”

Procedural history. Lender filed a motion for summary judgment that the trial court denied. Lender appealed following an adverse result at trial.

Key rules. Click here for Indiana Trial Rule 41(A) “Voluntary Dismissal: Effect thereof,” upon which the trial court relied in granting judgment for Borrowers at the Spencer trial.

As it relates to this case, Indiana courts have articulated that a purpose of Rule 41(A)(2), which deals with dismissals by court order, is “to eliminate evils resulting from the absolute right of a plaintiff to take a voluntary nonsuit at any stage in the proceedings before the pronouncement of judgment and after the defendant had incurred substantial expense or acquired substantial rights.”

That said, dismissals should be permitted “unless the defendant will suffer some legal prejudice other than the mere prospect of a second lawsuit.”

Holding. The Indiana Court of Appeals reversed the trial court’s decision to deny Lender’s summary judgment motion.

Policy/rationale. Borrowers asserted that the prior Rule 41 dismissal either did or should have operated as a dismissal “with prejudice” that barred the third action. In the end, the Rule 41 argument failed because Section (A)(1), which deals with dismissals entered without the need for a court order, did not apply. Section (A)(2) did, however, apply. Lender, in the second action, asked for leave to dismiss without prejudice, and the trial court granted the request. Despite what may have been compelling arguments to the contrary, the trial court’s order of dismissal without prejudice was “not a judgment on the merits of the dismissed claims … [and did] not bar a future case raising those same claims.” The Court of Appeals concluded that the “parties stand as if the prior suit had never been filed, restored to their original positions, free to file the suit again. [Borrowers] offer no compelling reason to abrogate that long settled principle.”

Related posts.

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Part of my practice involves representing parties in foreclosure-related litigation. If you need assistance with a similar matter, please call me at 317-639-6151 or email me at [email protected]. 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.


One Indiana Square (aka Regions Tower) Subject Of Foreclosure Action

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 building sector of commercial real estate.

Here are links to a couple stories:  IBJ.com and Yahoo.com.

To see a copy of the foreclosure complaint, click here  

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I represent parties involved in disputes about loans. If you need assistance with a similar matter, please call me at 317-639-6151 or email me at [email protected]. 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.