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If you’ve heard colleagues or your lawyer mention a “motion for summary judgment” and wondered what exactly it was, allow me to shed some light on the subject in the context of an Indiana commercial foreclosure.  A motion is a request by a party for the trial judge to do something – in this case grant a summary judgment.  A summary judgment is an expedited final ruling by the judge on a claim of a party. 

The basics.  Here are some summary judgment nuts and bolts:

• Courts use summary judgment to address legal issues and reach legal conclusions when the facts are not disputed and only their legal meaning is in question.

• There are two critical elements of a successful motion for summary judgment:  (a) the evidentiary materials of record show that there is no genuine issue as to any material fact and (b) the party filing the motion is entitled to judgment as a matter of law.

• The purpose of summary judgment is to terminate litigation about which there can be no factual dispute and which may be determined as a matter of law. 

William F. Harvey, Indiana Practice Series, Volume 3A. 

Faster.  There is no real difference between a “judgment” and a “summary judgment.”  In both instances, the court adjudicates (determines) a claim or claims.  The main distinction between the two is this – a summary judgment avoids a trial.  A lender can repossess and therefore dispose of the collateral much faster (and with much less expense) than if it had to try the case.

Rule 56.  Motions for summary judgment are governed by Rule 56 of the Indiana Rules of Trial ProcedureBlack’s Law Dictionary explains “summary judgment” as:  “Rule of Civil Procedure 56 permits any party to a civil action to move for a summary judgment on a claim . . . when he believes that there is no genuine issue of material fact and that he is entitled to prevail as a matter of law….”   A “genuine issue of material fact” for purposes of summary judgment is:

In determining what constitutes a genuine issue as to any material fact for purposes of summary judgment, an issue is ‘material’ if the facts alleged are such as to constitute a legal defense or are such nature as to affect the result of the action.  A fact is ‘material’ and precludes grant of summary judgment if proof of that fact would have effect of establishing or refuting one of essential elements of a cause of action or defense asserted by the parties, and would necessarily affect application of appropriate principle of law to the rights and obligations of the parties.  Black’s.

In a typical commercial foreclosure case, there are two fundamental issues for the court to determine:  (1) whether there has been a default under the operative loan documents and (2) what the damages are.  If there is no dispute as to either of those issues, lenders can file a motion for summary judgment. The borrower has thirty days within which to respond to the motion.  It is not unusual for this period to be extended for another thirty days or so.  The plaintiff lender then may file a reply brief, and the court thereafter usually will hold a hearing. 

Supporting materials.  In support of the motion, you need an affidavit (1) to authenticate the loan documents and establish a default and (2) to outline of the amount of money to which the lender is entitled.  Unless the borrower can demonstrate that no default has occurred or that the lender has miscalculated the amount of damages, the court will be compelled to enter summary judgment.  A properly-supported motion for summary judgment could result in the reduction of the lender’s claims to a money judgment/foreclosure decree within a few months.  A resolution of the claims will not be dependent upon the court’s availability to hold a trial, which takes several months if not years. 

The objective.  Should a defendant borrower appear in the suit and answer the complaint, the plaintiff lender will be confronted with a contested, or at least a delayed, foreclosure.  (If there is no appearance in the case or answer to the complaint, lenders can achieve an even quicker judgment by applying for a default judgment under Trial Rule 55.)  In order to turn collateral into cash as quickly as possible, and if a default judgment is unavailable, the lender and its counsel should aggressively pursue summary judgment.  But make sure there will be no factual disputes in connection with proving a default (a breach of the loan documents) or the amount of the debt.  If lenders take debatable or extreme positions as to either of those issues, the motion could be defeated, resulting in delays and compounding financial losses.


Those aren't my words, nor is that a quote from a lawyer.  In a column today from The New York Times entitled "Don't Underestimate Value of an Attorney",  which column appears in The Indianapolis Star, a small-business owner talks about the benefits of seeking legal counsel in connection with business transactions, including specifically secured loans.


Do you work for a financial institution that collects debts?  If so, do you know whether the Fair Debt Collection Practices Act, 15 U.S.C. 1692 (the “Act”), regulates what you do?  Do you fear that your collection practices might subject you or your company to liability?  Relax.  The Act generally does not apply to commercial foreclosures or the collection of commercial debts.  (See my 11-1-06 article “Just What Is Commercial Foreclosure Law?” for more background.)

Personal, Family or Household Purposes.  The Act focuses on obligations arising from consumer transactions.  Bass v. Stolper, et al., 111 F.3d 1322 (7th Cir. 1997).   “Debt,” for purposes of the Act, is defined as an obligation to pay money arising out of a transaction that is “primarily for personal, family, or household purposes…” 15 U.S.C. 1692a(5).  A nice article in the American Law Reports Federal explains the concept in detail: “What Constitutes ‘Debt’ for Purposes of Fair Debt Collection?”  159 A.L.R. FED. 121 (2000).  Even individual guarantors of an obligation do not fall within the scope of the Act if the guaranty is part of a commercial transaction.  See the Federal Trade Commission’s website for more discussion.  My practice and blog are dedicated primarily to commercial deals, not consumer loans.  If you’re in the same boat, then essentially all you need to know about the Act is (1) it’s out there, (2) a violation of it is a bad thing, but (3) it generally doesn’t apply to you. 

Behave Appropriately. The legal industry has some very creative attorneys, as well as judges inclined to protect debtors.  There are gray areas in the law.  Legal principles evolve, as can the interpretation of statutes like the Act.   For instance, the ALR article cites a case from Mississippi in which a commercial debt essentially was transformed into a consumer debt covered by the Act when the debt collector made “harsh, abusive, foul, obscene, indecent, uncouth, violent, threatening, intimidating, and harassing” phone calls to the debtor.  So don’t be reckless.  Be mindful of the spirit of the Act, which Congress designed to eliminate abusive, deceptive, and unfair debt collection practices.   

As a general proposition, however, you need not sweat the details of the Act if you’re confident that you’re dealing with a commercial transaction.  When in doubt, however, follow the Act.  Or, contact your lawyer for advice.  In the past few years, there has been plenty of litigation involving the application and enforcement of the Act, so recent case law exists to help you or your lawyer determine whether your actions may be regulated. 


The Indianapolis Star has an AP story this morning that states corporate bankruptcy filings "should hit courts in a wave within six to 18 months...."  The report comes from an analysis by the American Bankruptcy Institute and Dow Jones' Daily Bankruptcy Review.  Loan default rates are expected to move up, due in part to the effect of higher interest rates.  The industries seen as most at risk are real estate and construction.


Need a handle on how long it will take to liquidate your borrower’s collateral in Indiana?  Since the foreclosure process officially starts with the filing of a complaint, my timelines start there.  A complaint cannot be filed until there has been a default under the terms of the real estate mortgage or personal property security agreement.  Needless to say, many weeks if not months might pass between the initial loan default and the decision to file suit. 

The timing of the foreclosure process largely depends upon whether and to what extent the borrower contests the proceeding:   

Uncontested Foreclosure:  4½ - 6 months minimum.  If a business debtor does not contest foreclosure (but will not agree to a deed in lieu), the process can move relatively quickly.  Here are the major steps and applicable ranges of time:

1. Filing of the Complaint
2. Service of process on the debtor:  occurs in 5-10 days unless service by publication
3. Application for default judgment:  can be sought 21-24 days after service of process
4. Entry of default judgment and decree of foreclosure:  should occur within approximately 30 days after the Application is filed
5. Praecipe for Sheriff’s sale, including notice of same:  by statute, cannot be filed until 3 months after the Complaint
6. Sheriff’s sale:  happens about 45-90 days from Praecipe, depending on the county

Contested Foreclosure:  6-9 months minimum.  Given the vagaries of litigation, it’s virtually impossible to conclusively estimate how long a contested foreclosure case may last.  Much depends upon how clear the default and the damages are.  Perhaps the most significant factor relates to the time associated with workout negotiations.  In that regard, each case is different.  Here are the main steps of a fairly quick contested foreclosure:

1. Filing of the Complaint
2. Service of process on the debtor:  occurs in 5-10 days unless service by publication
3. Appearance of debtor’s attorney and motion for one or more 30-day extensions of time to respond to the Complaint:  filed 20-23 days after service of process
4. Answer to Complaint:  filed 30 days after filing of Appearance and expiration of last motion for extension
5. Motion for summary judgment:  can be filed immediately after the filing of the Answer
6. Objection to motion for summary judgment:  due 30 days after the filing of the motion for summary judgment
7. Summary judgment hearing:  usually held 75-120 days after the motion is filed
8. Entry of judgment and decree of foreclosure:  occurs on day of hearing, or soon thereafter, unless the motion is vigorously contested with viable defenses
9. Praecipe for Sheriff’s sale:  can be submitted immediately after the entry of judgment assuming more than 3 months have passed since the complaint was filed
10. Sheriff’s sale:  takes place 45-90 days from Praecipe, depending on the county

Judicial sales.  Indiana law requires a judicial sale in order to foreclose a mortgage.  I.C. 32-29-7-4 is a nice option for creditors looking to expedite a sale.  The statute permits, under certain limited circumstances, the sheriff’s sale to be conducted by a private auctioneer on the civil sheriff’s behalf.  This may be advisable in counties without regularly-scheduled sheriff’s sales.  (I should note that, as to personal property security interests, UCC/Article 9.1 and/or the terms of a security agreement may allow the creditor to repossess the collateral without a sheriff’s sale.) 

Be prepared for delays.  Although the basic procedure is the same throughout Indiana, the timing can be impacted dramatically by the dockets of the individual courts and/or the schedules of the individual civil Sheriffs’ offices.  The periods described are the minimum time periods.  The actual time usually is longer.  This is especially true if there are multiple creditors named in the lawsuit.  Further, in contested cases involving debtors represented by counsel, opposing attorneys can prolong the process in a variety of ways, including multiple motions for extensions of time, requests for discovery and vigorous challenges to a motion for summary judgment.  In the event a trial must occur, a resolution of the case can be delayed several months if not years.  In addition, a bankruptcy can be filed up until the time when the Sheriff’s sale begins, and that can delay the foreclosure process indefinitely.

Depending on the goals of the lender, the lawyer representing the lender can push the case aggressively toward a sale.  Or, counsel can be more passive to give the parties time to assess whether a refinancing arrangement may be warranted.  The parties can settle, or the debtor can redeem - real estate / I.C. § 2-29-7-7; personal property / I.C. § 26-1-9.1-623 - right up to the sale or disposition of the collateral.  Debtors’ attorneys know this, so don’t be surprised if a borrower waits until the eve of sale either to file for bankruptcy protection, redeem or yield to the lender’s loan modification terms.


If you deal with receiverships, this case will be of interest to you.  A lender, a borrower and a court-appointed receiver have been battling one another in an Indiana federal court in connection with a failed construction project.  Problems arose when a partially-constructed apartment complex deteriorated so much during a foreclosure suit that a judge condemned the property and ordered it to be demolished, resulting in damages alleged by the borrower of $4,167,881 (representing the purported value of the property pre-suit minus the value of the foundations of the buildings after demolition).  In Judge Philip P. Simon’s words, “assessing who is at fault for this mess is at the center of the action currently before the Court.”  In rulings filed September 18, 2006 and October 16, 2006, the Northern District’s Judge Simon brought some order to the chaos in case no. 2:02cv368, Four Winds v. American Express Tax and Consulting Services, et al.  The cite to the September Opinion, which relates to the borrower’s claims against the receiver, is 2006 U.S. Dist. LEXIS 71349.  The October Opinion, which addresses the receiver’s cause of action against the lender, can be found at 2006 U.S. Dist. LEXIS 75581.

Lender spanked.  The litigation began when the lender decided to foreclose.  The borrower filed a counterclaim asserting wrongful foreclosure because there had been no default.  The borrower convinced the court that no default occurred, so the court dismissed the foreclosure aspect of the case.  The lender then settled with the borrower for a “hefty amount” on the counterclaims.   

Receiver faces trial.  The borrower also is pursuing the receiver for negligently failing to protect and preserve the project.  An agreed order governed the receiver’s conduct, and the issue is whether the receiver was grossly negligent.  The receiver sought a dismissal of the claim by submitting evidence that it did not act with gross negligence.  In fact, the receiver undertook at least some measures to protect the property.  But Judge Simon ruled that the case must go to the jury to decide factual issues, including:  (1) how the project would have faired had the receiver not undertaken the protective measures that it did, (2) how much damage would more extensive protective measures have prevented, (3) why the receiver did not apply to the court for permission to complete the project or for funding to implement more extensive measures, (4) how many times should the receiver have visited the project and (5) whether the receiver was grossly negligent in fulfilling its duties as the receiver.  The case is set for a jury trial on February 20, 2007. 

Receiver v. lender dismissed.  The receiver, in turn, had its own negligence claim against the lender, which claim really was about seeking reimbursement for any damages the receiver might have to pay to the borrower.  The receiver pointed the finger at the lender, arguing that the lender controlled the receiver’s actions through the funding (or lack thereof) of the receivership.  Judge Simon held there was no legal basis for the receiver’s position, however, and dismissed the claim.  If any negligence-based duties flowed between the parties, they flowed from the receiver to the lender, not vice versa.  Thus the receiver, if found to be grossly negligent, cannot recoup any losses from the lender (although the receiver may be entitled to a credit/set-off for the money the lender paid to the borrower.)

Interestingly, the agreed order appointing the receiver required the receiver to preserve and protect the property with receivership funds, even though there were no “receivership funds” to do so because the property generated no income.  That catch-22 may have been the property’s downfall.  The receiver was responsible for directing the preservation of the property, but on whose dime?  Evidently there was an informal arrangement whereby the lender funded the receivership.  That went okay at the beginning, but the problems and costs later seemed to snowball out of control.  I gather that, if and to the extent the receiver was negligent, it was due in part to inadequate funding by the lender.  The confidential “substantial” settlement the lender paid to the borrower supports my speculation. 

Lessons.  Even though the lender won its legal battle with the receiver, the lender had already lost when the project failed and the borrower forced the lender to settle.  There are some lessons here for lenders (and receivers):

  • Ensure there is a default before a foreclosure case is initiated
  • Spell out in the receivership order exactly how the receivership will be funded
  • Clarify in the order the duties of the receiver, and the borrower or lender as warranted
  • If the lender agrees to fund the preservation of the property, it should take reasonable steps to do so and should not unreasonably permit a project to deteriorate substantially in value

But perhaps the greatest lesson is - in cases of construction loans where the collateral is being built - lenders should foreclose and appoint a receiver only as a last resort.


I designed this blog to provide a resource for individuals in the banking and commercial lending industry who deal with Indiana-related commercial foreclosure issues.  Today, November 1, 2006, my blog debuts with the goal of publishing posts at least weekly in one of four categories:  Court Commentary, Notable News, Practical Pointers and Statutes Say.

Court Commentary will have content analyzing recent Indiana state and federal court opinions on the substantive law and procedural rules that govern this field.

Notable News will provide Indiana-related news, from various media outlets, impacting commercial lenders generally and the work-out/foreclosure side of their businesses specifically.

Practical Pointers will include articles designed to assist secured lender representatives who are, or are about to be, involved in a commercial foreclosure lawsuit. 

Statutes Say will publish posts about Indiana statutory law applicable to commercial foreclosures and secured collections.

I’m excited about developing a resource for commercial lending institutions faced with under-performing or non-performing loans.

  Because this is a new blog, I hope to receive feedback on how I can make it more useful.  I welcome suggestions, which you can e-mail to me by clicking on the “E-Mail Me” link.  My contact information in its entirety can be found by clicking on the “About” link. 


The cast of characters.  Everyone knows what a bank is.  Most of us understand what a lender is – an institution from whom money is borrowed.  Adding the word “commercial” to describe a lender simply means that the financial entity deals with businesses as opposed to individuals.  Black’s Law Dictionary defines “commercial loans” as:  “loans made to businesses as distinguished from personal-consumer credit loans.”  Although a lender could make both commercial and consumer loans, this blog is dedicated primarily to commercial matters. 

The field of law.  To me, commercial foreclosure law refers to the rules and procedures applicable when a business defaults on a loan secured by some kind of collateral.  So, if you work for an institution that loaned money to a business, and if the borrower defaulted under the terms of the loan agreement, then commercial foreclosure law provides the judicial framework for the protection of your rights.  Typically, those rights involve the ability to collect money owed by the borrower through the sale of the loan collateral. 

Collateral.  Black’s states that collateral is property pledged as security for the satisfaction of a debt.  If a business defaults on a loan, the lender can initiate a foreclosure action to compel the sale of the loan collateral and therefore collect the amounts owed by the borrower through proceeds from the sale.  There are all kinds of business-related collateral.  Perhaps the most recognizable is real estate – the land a business owns.  Some of the most interesting cases, however, deal with personal property collateral, which can be any property imaginable that is owned by a business – a fleet of cars, office furniture or intangibles such as accounts receivable. 

Lien.  A lien is a description of an encumbrance on property:  “a claim . . . on property for payment of some debt.”  Black’s.  In the context of my blog, a lien arises by written contract between a lender and a borrower – either a real estate mortgage agreement or a personal property security agreement.  The lien granted by a borrower to a lender gives a lender the right to foreclose upon the subject property (collateral) for payment of the debt in the event of a default.

Commercial foreclosure.  Turning again to Black’s, a foreclosure is defined, in part, as the “enforcement of a lien . . . or mortgage . . ..”  Paraphrasing Black’s, foreclosure is the legal process by which real or personal property subject to a lien is sold in satisfaction of a debt.  To foreclose means to terminate a borrower’s rights in the subject property.  A foreclosure that is commercial merely refers to the termination of a business borrower’s rights in its property. 

A form of collection.  Commercial foreclosure law is a special kind of collection law.  It’s a body of rules governing how banks and financial institutions recover money by asserting rights in, and selling, collateral that a business granted to secure the loan.  It’s the set of legal principles applicable to a lender needing to collect money owed by a business, which failed to make its loan payments or otherwise defaulted under the terms of the loan documents. 

If any of these matters are relevant to what you do for a living, I welcome your visits to my blog and hope that you will e-mail me with your questions or comments.


A statute is a law, or a set of laws, established by the legislative branch of the government.  In Indiana, the General Assembly is our state’s legislature.  Indiana’s statutes are contained in the Indiana Code, abbreviated as Ind. Code or I.C.  The list of statutes that could apply to a commercial foreclosure matter is far too long to outline here.  But the most relevant statutes can be found in the links on the left side of my blog’s home page.  They include:

·                    Mortgages, Generally (I.C. 32-29)

·                    Mortgage Foreclosure Actions (I.C. 32-30-10)

·                    Indiana Uniform Commercial Code – Secured Transactions (I.C. 26-1-9.10); there are seven “parts” of this statute; Part 6 “Default” is most applicable to my blog because it furnishes rules about defaults and the enforcement of a security interests upon defaults

·                    Judgments in Mortgage and Lien Actions (I.C. 32-30-12)

·                    Execution of Judgments (I.C. 34-55)

·                    Receiverships (I.C. 32-30-5)

·                    Indiana’s Uniform Fraudulent Transfer Act (I.C. 32-18-2)

·                    Lis Pendens (I.C. 32-30-11) 

·                    Judgment Liens (I.C. 32-30-13)

·                    Adverse Claims Act (I.C. 28-9)

·                    Attachment (I.C. 34-25-2)

·                    Garnishment (I.C. 34-25-3) 

In the statutory cites, the first number designates the title, the second the article, the third the chapter, and the fourth the section.  For example, the statute applicable to redemption by an owner of real estate before a sheriff’s sale is Title 32, Article 29, Chapter 7, Section 7 (I.C. 32-29-7-7).  In future posts, I’ll describe many of these statutes in more detail.

If you have a legal question about a particular commercial foreclosure situation, the first place to turn is the Indiana Code.  You might find a statute that directly addresses the issue.  If so, the statute arguably is the definitive authority on the matter.  In other words, the statute ultimately controls the legal rights and obligations of the parties.  Frequently, to the dismay of parties involved in litigation, there is no statute on point or, if there is one, the statute may be less than clear.  That’s when case law (the common law) must be studied because written court decisions often interpret statutes.

Many of the rules applicable to real estate mortgages and personal property security interests, as well as the procedures for foreclosure actions, are contained in the Indiana Code.  One of the goals of my blog is to provide links to all the pertinent statutes.  So, if you are wondering whether there is an Indiana statute that speaks to a particular matter, please email me.  I'm happy to supply links to all the noteworthy statutes.


Do you understand the difference between “case law” and “statutory law”?  Have you ever wondered what the term “common law” meant?  If you struggle with these legal terms, this article will help. 

Judge-made law.  Statutes come from the legislative branch of the government, while case law is the product of the judicial branch.  Black’s Law Dictionary defines “case law” as “the aggregate of reported cases as forming a body of jurisprudence, where the law of a particular subject . . . is formed by the adjudged cases . . ..”  The definition of “common law” in Black’s states, in part:  "the body of those principles . . . which derive their authority solely from usages and customs . . . or from judgments and decrees of the courts recognizing, affirming and enforcing such usages and customs . . .."  The labels of common law and case law essentially are interchangeable. 

Legal precedent/ stare decisis.  These concepts play an important role in the development of case law.  Borrowing again from Black’s, legal precedent is a prior decision of a court that furnishes authority for a similar, future case involving a similar question of law.  Courts decide cases largely on the basis of principles established in prior cases, which are close in facts or legal principles to the case at hand.  A court’s decision on a new matter will create a rule of law for a particular type of case that will be referred to in the future when a similar case is decided. The doctrine of stare decisis, which is defined by Black’s as “to abide by, or adhere to, decided cases,” is a significant principle in the creation of case law.  Trial courts and courts of appeals stand by precedent so as not to disturb a settled point. Note Black’s: "when court has laid down a principle of law applicable to a certain state of facts, it will adhere to that principle, and apply it to all future cases, where facts are substantially the same; regardless of whether the parties and property are the same."

From where does a case come?  Much of the case law applicable to Indiana foreclosures comes from the Indiana Court of Appeals the Indiana Supreme Court .  This is how case law is born:  Lawsuits are filed and litigated in trial courts (circuit and superior courts in each Indiana county).  Parties who are the subject of an adverse ruling by a trial court, either in connection with a pre-trial motion or at trial, can appeal the decision to the Indiana Court of Appeals.  The Indiana Court of Appeals studies the trial court’s record of proceedings and then decides the appeal.  Often the appellate court will issue a written opinion, commonly called a case (hence, “case law”).  The opinion typically summarizes the facts, states the issues, outlines the applicable legal rules and provides an analysis applying the rules to the facts.  The opinion ends with a conclusion, sometimes called a “holding,” which states whether a party won or lost on the question(s) presented.  A party can appeal the Indiana Court of Appeals’ decision to the Indiana Supreme Court.  The Indiana Supreme Court, if it accepts the appeal, then will issue its own written opinion.  These written, appellate opinions are published in hard-bound law books (reporters) and electronically (for instance, through LexisNexis).  They also can be accessed through the Court’s websites: Court of Appeals Opinions and Supreme Court Opinions.

Cases equal education.  The appellate court’s opinions, which collectively constitute case law, deal with a wide range of issues from specific rights and obligations of a party, to the interpretation of a statute and how it applies to a given circumstance.  Because the opinions provide the reasoning behind the court’s conclusion, they offer insight into a particular rule of law.  That reasoning is valuable to lawyers and parties, who use it as guidance for future conduct and decisions.  This is why providing "court commentary" on my blog is so important.  Relevant decisions by courts teach banks and commercial lenders, who deal with loans in default and the collection of commercial debts, about their rights and duties.  If you need to know whether Indiana law previously has addressed a particular question, lawyers like myself are trained to do the legal research necessary to find the answer, assuming a definitive answer exists.  But don't be surprised if there isn't a case on point.  Frequently, there are gaps in the law that create uncertainty.  Lawyers often are called upon by their clients to advise how a specific matter may be determined when there is neither a case nor a statute directly on point.