« February 2018 | Main | April 2018 »

Quickly: Application for Charging Order Granted

Heading out with the family for Spring Break but wanted to offer a quick post about a motion decided last year in our local federal court.  The opinion is very short, and Magistrate Judge Tim Baker's report and recommendation later was adopted by Judge Pratt.  Click here for the ruling. 

The case involved a twist to a charging order on one tenant's in common half-interest in some real estate.  The interest arose out of a purchase agreement.  The Court concluded that the  tenant's "economic interest in the [real estate] should be charged against any unsatisfied part of [judgment creditor's] judgment" against him.  The Court thus granted the judgment creditor a lien against the judgment debtor's interest in the real estate. 

The debtor claimed that he had no interest in the real estate because he did not actually financially contribute to the purchase, but the purchase agreement listed him as a tenant in common.  In arriving at his decision, Magistrate Judge also addressed the law of contribution.       

Mortgage Liens Survive Chapter 7 Bankruptcy Discharge, Allowing In Rem Foreclosures

Lesson. Although a Chapter 7 bankruptcy discharge eliminates personal liability for a mortgage loan, a discharge does not erase the debt or the mortgage lien. This means that borrowers will not be on the hook for the money, but lenders still can sue to foreclose the mortgage. Discharged debtors still can lose their property.

Case cite. Mccullough v. Citimortgage, 70 N.E.3d 820 (Ind. 2017).

Legal issue. Whether a discharge in bankruptcy precludes a mortgage foreclosure action.

Vital facts. The Borrowers entered into a loan secured by a mortgage on their home. They later defaulted for a failure to make payments when due. They filed a Chapter 13 bankruptcy case that was converted to a Chapter 7. The Borrowers’ debts were discharged in the Chapter 7 case, which was then terminated.

Procedural history. Lender initiated an in rem foreclosure against the Borrowers and filed a motion for summary judgment. The trial court granted the motion and entered an in rem judgment against the mortgaged property. The Borrowers appealed all the way to the Indiana Supreme Court.

Key rules.

A Chapter 13 is a reorganization type bankruptcy in which the debtor’s assets generally are not surrendered or sold. The debtor instead “pays his creditors as much as he can afford over a three or five-year period.”

A Chapter 7 is a liquidation type bankruptcy in which the debtor generally surrenders his assets and in exchange is relieved of his debts.

A Chapter 7 discharge eliminates a homeowner’s personal liability for a mortgage loan. But a discharge has “has no bearing on the validity of the mortgage lien.” A lender’s right to foreclose on the mortgage survives.

Holding. The Indiana Supreme Court affirmed the summary judgment in favor of Lender and against the Borrowers.

Policy/rationale. The Borrowers in Mccullough asserted that the bankruptcy discharge effectively negated the debt and, as a result, Lender could no longer foreclose. However, a mortgage loan has “two different but interrelated concepts, namely: the loan due on the mortgage as evidenced by the Note, and the lien on the property as evidenced by the Mortgage.” A bankruptcy discharge “removes the ability” of a lender to collect against the borrower individually (in personam liability), but liens (in rem rights against property) remain enforceable. In Mccullough, the Supreme Court found that the Borrowers were protected from personal liability as to Lender’s debt, but the mortgage lien was enforceable as an in rem action against the Borrowers’ real estate, for which there remained an outstanding lien balance. Thus the debt survived the bankruptcy. Only the Borrowers’ personal obligation to pay it went away.

Related posts.

Indiana Follows The Lien Theory Of Mortgages

Indiana Deficiency Judgments: Separate Action Not Applicable

What Is Indiana's Definition Of A Lien?

I frequently represent creditors and lenders, as well as their mortgage loan servicers, in contested mortgage foreclosure cases. 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.

Language In Deed Overcomes Presumption Of Tenants By The Entireties Ownership, Allowing Judgment Lien To Attach

Lesson. Indiana law presumes that spouses own real estate as “tenants by the entirety.” In limited instances, however, the presumption can be overcome based upon language in the deed reflecting an intention to establish a different form of ownership.

Case cite. Underwood v. Bunger, 70 N.E.3d 338 (Ind. 2017)

Legal issue. Whether the language in the subject deed was sufficiently clear to overcome the presumption of ownership of tenants by the entirety.

Vital facts. In 2002, the owner of the subject real estate conveyed the property to the new owners through a warranty deed that contained this clause: “[Grantor] conveys and warrants to [Underwood], of legal age, and [Kinney] and [Fulford], husband and wife, all as Tenants-in-Common.” In June 2014, a six-figure damages judgment was entered against Underwood and Kinney. In November 2014, Kinney passed away but remained married to Fulford until his death.

Procedural history. In 2015, Underwood filed an action for partition to sell the real estate and distribute the proceeds, presumably to satisfy, at least in part, the judgment. Underwood claimed that she, Kinney and Fulford owned the real estate as three tenants in common. Kinney’s Estate claimed that it did not own the property and that Kinney’s interest had instead passed to Fulford, his spouse, based upon tenants by the entirety ownership. The trial court agreed with the Estate and concluded that the Kinney/Fulford marital unit was a single tenant in common with Underwood. As such, the judgment lien did not attach to Fulford’s one-half interest because the judgment was only against Kinney (and Underwood), not Fulford. Underwood appealed all the way to the Indiana Supreme Court, which issued the opinion that is the subject of today’s post.

Key rules.

The following prior post provides context for today’s submission: Execution Upon Indiana Real Estate Owned As “Tenancy By The Entireties.”

Under Indiana common law, “conveyance of real property to spouses presumptively creates an estate by the entireties.” However, the presumption “can be overcome if the instrument of conveyance reflects an intention to create some other form of concurrent ownership.”

These rules have now been codified. The operative statute is Ind. Code 32-17-3-1. The key language related to rebutting the presumption is in subsection (d)(2):

if it appears from the tenor of a contract described in subsection (a) that the contract was intended to create a tenancy in common; the contract shall be construed to create a tenancy in common.

In interpreting subsection (d)(2), the Supreme Court in Underwood articulated the following test: “in giving a fair reading to the whole instrument, we will find the presumption is rebutted if its terms reasonably reflect the parties’ intention to establish a different form of tenancy.”

Holding. The Supreme Court reversed the trial court and the Indiana Court of Appeals, which had affirmed the trial court. The Court concluded that the language in the deed specifying that the three grantees, two of whom were married, shall take the real estate “all as Tenants-in-Common" rebutted the presumption.  


The Court felt that the phrase in the deed “all as Tenants-in-Common” showed the parties’ intent to create a tenancy in common among all three grantees. Specifically, the word “all” established that the grantor did not view “Husband and Wife” as a single entity.

    Judgment lien. The main reason I’m writing about Underwood is that the case illustrates the impact of a judgment lien in the context of real estate held by tenants by the entireties vs. tenants in common. The Court found that the interest of Kinney, one of the two judgment debtors, passed to his Estate. Thus the Estate’s one-third share of the partition sale proceeds should go to satisfy the judgment because the judgment lien attached to that third. On the other hand, Fulford, the surviving spouse, would not enjoy the tenancy by the entireties spousal exemption for half of the sale proceeds – only a third. Although the Supreme Court did not address the practical impact of the case, I’m guessing that Underwood’s goals included ensuring that two-thirds (instead of one-half) of the sale proceeds were applied to pay down (or off) the judgment and that Kinney, through his Estate, paid his pro rata share of the debt.
I frequently represent judgment creditors and lenders, as well as their mortgage loan servicers, entangled in lien priority and title claim 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.