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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.

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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

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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.

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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.