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Indiana Upholds Dismissal Of Residential Borrower’s Tort Claims Arising Out Of Alleged HAMP Violations

Lesson.  Assorted counterclaims filed by borrowers arising out of alleged failings by lenders to modify mortgages following defaults generally will be dismissed.

Case cite.  Jaffri v. JPMorgan Chase, 26 N.E.3d 635 (Ind. Ct. App. 2015)

Legal issue.  Whether the borrower’s counterclaims for negligence, constructive fraud and intentional infliction of emotional distress should have been dismissed for a failure to state a claim.

Vital facts.  Borrower defaulted on her residential mortgage loan.  Borrower and lender entered into discussions about the possibility of modifying the mortgage based upon the federal government’s Home Affordable Modification Program (“HAMP”).  The loan mod never occurred, and borrower contended that lender “intentionally did not dedicate the resources to HAMP modifications that were necessary to properly comply with the federal program.” 

Procedural history.  Lender filed a Trial Rule 12(B)(6) motion to dismiss borrower’s counterclaims, which motion the trial court granted.  Borrower appealed.

Key rules. 

  • When parties have, by contract, arranged their respective risks of loss, tort law should not interfere.  One cannot negligently breach a contract. 
  • Contractual relationships do not give rise to a fiduciary relationship creating a duty.  Generally, the relationship between a bank and a customer is insufficient to establish a constructive fraud claim. 
  • Intention of infliction of emotional distress claims require proof that the defendant:  (1) engaged in extreme and outrageous conduct, (2) which intentionally or recklessly, (3) caused, (4) severe emotional distress to another. 

Holding.  The Indiana Court of Appeals affirmed the trial court’s dismissal of borrower’s tort claims against lender. 

Policy/rationale.  The Court in Jaffri referred to the widely-recognized rule that alleged violations of HAMP do not give rise to a private right of action.  In other words, HAMP does not establish a duty of care owed by a lender to a mortgagee seeking a modification.  The Court said:  “We cannot perceive that by enacting HAMP, the federal government intended for persons rejected for HAMP assistance to have a private cause of action against the mortgage lender or servicer, unless a contract actually was entered into under HAMP.” 

Related posts. 


Indiana's Current Lending Climate

The Indianapolis Business Journal has a good report this week with respect to what's cooking in the local lending world.  Here is a link to the piece:  Hoosier banks put bad-loan woes in rearview mirror.  Jared Council's article has some insightful quotes from a handful of Indiana's bank executives and analysts.  In short, unsurprisingly commercial foreclosures are way down, but growth appears to be slower than expected.    


No Service On Calvin Hair = Void Judgment Against Hair Calvin

Lesson.  Before obtaining a foreclosure judgment, make sure you perfect service of process against all defendants. 

Case cite.  Hair v. Deutsche Bank, 18 N.E.3d 1019 (Ind. Ct. App. 2014).

Legal issue.  Whether a foreclosure judgment in favor of the lender/mortgagee was void as to a junior lien holder due to ineffectual service of process.   

Vital facts.  Hair obtained a judgment against Adejare in 2006 that resulted in judgment lien on Adejare’s real estate.  In 2002, Adejare granted to Deutsche a mortgage on the same property.  Deutsche filed a foreclosure action in 2011 and served Hair via publication.  Deutsche’s lawyers had tried to serve Hair by using the name “Hair Calvin,” which was consistent with how his judgment had been docketed by the county clerk.  His actual name was “Calvin Hair”, however, and his address was readily ascertainable through internet searches using that name.  Hair did not respond to Deutsche’s suit, and the trial court issued judgment, which included a decree terminating Hair’s judgment lien.  Deutsche bought the property at a sheriff’s sale in 2012 and quickly sold it to a third party. 

Procedural history.  In 2013, Hair filed a motion to set aside the foreclosure judgment.  He claimed that service of process by publication was not warranted and that the court entered judgment against him without first having personal jurisdiction.  The trial court denied the motion, and Hair appealed.

Key rules. 

  • Upon obtaining a judgment by an Indiana county court, a plaintiff automatically obtains a judgment lien against any real estate the defendant owns in that county.  Ind. Code 34-55-9-2
  • Junior lien holders in mortgaged property must be named in a foreclosure action before the judgment will be binding on them. 
  • Trial Rule 4.13(A) deals with service by publication, and the law generally requires “due diligence in attempting to locate a [junior lien holder] before proceeding with a foreclosure by publication only.”
  • A “void” judgment may be attacked through Trial Rule 60(B)(6).  If a judgment is void, the party seeking to set it aside is not required to demonstrate the so-called “meritorious defense” to such judgment. 

Holding.  The Indiana Court of Appeals in Hair reversed the trial court’s denial of Hair’s motion to set aside judgment.  “Hair’s judgment lien … still exists….”

Policy/rationale.  The opinion in Hair goes into great detail about how and why Deutsche should have figured out that it was suing Calvin Hair instead of Hair Calvin and that Deutsche should have served Hair personally instead of by publication.  In the final analysis, the Court concluded that Deutsche failed to give Hair proper notice of the foreclosure proceedings.    

Related posts.