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Top 10 Foreclosure Blogs

The Founder of Feedspot has advised that Indiana Commercial Foreclosure Law is ranked second in its Top 10 listing of foreclosure-related blogs.  Here is a link to the site's list:  Top 10 Foreclosure Blogs & Websites To Follow in 2019.  Thanks to the folks at Feedspot for recognizing my work. 

Merry Christmas and Happy New Year to those who regularly read, or surf to, this blog.  Let's keep it going in 2020....

John   


Reminder - On 1/1/20, Amended Indiana Trial Rule 9.2(A) Becomes Effective - But Uncertainty Remains

Hard to believe it's already been two years since the Indiana Supreme Court amended Rule 9.2(A).  The amendment goes into effect in matter of days.  Given that the clock is ticking, lately clients and colleagues have been talking about its potential impact, but my understanding is that nothing substantive has changed with the rule since the outcome in 2017. 

With respect to mortgage foreclosures, I'm not sure anyone has a great handle on what to do.  I personally still feel that a strong argument can be made that the affidavits called for under the new rule only need to be filed with complaints articulating an action “on account” and that a mortgage foreclosure, or any other action to enforce a promissory note, is no such action. 

What follows is a verbatim re-print of my 11/17/17 post, which includes a link to my initial post of 5/11/17 on the rule.

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Back in May, I submitted this post: Claim “On An Account” Vs. Enforcement Of A Loan: Comments On Proposed Amendment to Indiana Trial Rule 9.2(A). One of my points was that the proposal left open the question of whether the rule applied solely to accounts, or to both loans and accounts. Indeed my post doubled as a submission to the Rules Committee recommending, among other things, language clarifying that the new rule does not (and should not) apply to loans, other than perhaps credit card debt.

New rule. On October 31st, the Indiana Supreme Court entered its official Order Amending Indiana Rules of Trial Procedure that included amendments to Rule 9.2. Here is the order signed by Chief Justice Rush. Regrettably, the amendment did not incorporate our proposed limiting language or otherwise resolve the matter of whether a plaintiff must file the new affidavit of debt in mortgage foreclosure cases. For reasons spelled out in my May 11th post, a strong argument still can be made that the affidavits only need to be filed with complaints articulating an action “on account” and that a mortgage foreclosure, or any other action to enforce a promissory note, is no such action. Admittedly, however, the situation remains clouded.

Consumer debts only. One critical change the Supreme Court made from the proposed rule was to limit the pleading requirement in Section (A)(2) to consumer debts. The rule’s requirement for the new affidavit applies only “if … the claim arises from a debt that is primarily for personal, family, or household purposes…” This is a common phrase in the law that identifies consumer claims and that excludes commercial/business debts. See my 12/18/09 and 11/16/06 posts. Thus the Supreme Court’s insertion of that language definitively means that Rule 9.2(A)(2) does not apply to commercial foreclosures or to the collection of business debts.

Effective date. It will be interesting to see how lawyers and judges interpret and apply Rule 9.2(A)(2), which is brand new. Again, and meaning no disrespect whatsoever, I think the Supreme Court left the scope of that subsection open for debate. We have time to digest this further as the amendment does not take effect for over two years - until January 1, 2020.

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My practice includes the representation of parties in disputes arising out of loans. 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. 


Domesticating Foreign Judgments Under Indiana's New Electronic Filing System

If you own a money judgment entered in a state other than Indiana, and if you believe that the judgment debtor (the defendant) has assets in Indiana that might be available to satisfy the judgment, then you can take steps to domesticate that “foreign judgment” in Indiana and enforce it through the Indiana court system. 

Indiana’s StatuteIndiana Code § 34-54-11 provides the procedural roadmap for Indiana’s domestication process.  First, you must wait 21 days after the judgment was entered in the original jurisdiction before filing in Indiana.  Once the 21 days have passed, you need to file a copy of the foreign judgment, authenticated in accordance with 28 U.S.C. 1963 or any applicable Indiana statutes, in the clerk’s office of any Indiana county.  Generally, it makes sense to file in a county where some or all the judgment debtor’s assets are located.  At the same time, you will need to file an affidavit, executed by the judgment creditor (the plaintiff), which states (a) the name and last known address of the judgment debtor and (b) the name and address of the judgment creditor.  Finally, you will need to mail notice of the filing of the foreign judgment to the judgment debtor and file proof of that mailing with the clerk of the Indiana court.

Electronic Filing Glitches.  All of this should be a fairly straightforward process, but under Indiana’s relatively new electronic filing system, there are a couple of potential problems to avoid if your goal is to seek the court’s help in enforcing your domesticated judgment or, in other words, if you anticipate so-called proceedings supplemental.

    Tip 1:  Always file your case under the “MI” designation if you plan to use the Indiana court to execute on the judgment.  

        If your purpose for domesticating the foreign judgment is to enlist the help of the Indiana court in executing on the judgment, as opposed to merely perfecting a judgment lien on real estate, it is essential that you choose the “MI” (miscellaneous) case type during the electronic filing process.  This can be confusing because the list of available case types indicates that foreign judgments should be filed under the “CB” (court business) case type.  You should not choose the “CB” filing type.

        “CB” filings are used for informational purposes only.  We have learned that, if you file your case under a “CB” designation, you will be notifying the Indiana court that you own a judgment, but you will not be able to enlist the court’s help in executing on that judgment.  In other words, no further proceedings may be conducted in that action (lawsuit).  If your goal in domesticating the foreign judgment is to initiate proceedings supplemental and, ultimately, to reach the judgment debtor’s Indiana assets in order to satisfy the judgment, a “CB” filing will get you nowhere.    

    Tip 2:  Always check to make sure that your judgment is reflected on the court’s docket as a final judgment.

        Once you have followed the steps established in I.C. 34-54-11-2, your foreign judgment has the same effect and is subject to the same procedures as any other judgment entered by an Indiana court.  However, you want to ensure that your judgment is formally “of record” and thus creates a perfected lien on any real estate owned by the judgment debtor in that county.  The judgment thus needs to be officially entered on the court’s docket.  In Indiana, this docket is known as the “CCS” or the chronological case summary.  You want the judgment to pop up on public record searches and provide the requisite notice to the world that there is an unsatisfied money judgment against the debtor/defendant.  Here is an example.

    The rub.  Before electronic filing, staff at the county court’s or clerk’s offices manually entered domesticated judgments into an actual hard copy index (public record).  Now, under electronic filing, our experience is that such manual entry no longer occurs in many if not all counties.  It seems that there is no established automatic mechanism for 21st Century judgments to make their way into an official judgment docket.  Therefore, in order to ensure that your judgment can be found in a title or debtor search, we recommend that you follow-up with the clerk of the court to ensure someone takes the final step of creating the entry of judgment on the CCS so that it is visible online.  We have had cases where this has not occurred as a matter of course and have had to either ask that it be done by phone or file a motion to prompt the court to take the final step. 

As a practical matter, the previously established laws and systems simply have not caught up electronic filing.  We would expect this glitch to be sorted out by the Indiana General Assembly or the Indiana Supreme Court at some point down the road, however. 

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I'd like to thank my colleague Jere Rosebrock for her valuable research, investigation and input into this post. Among many other things, Jere helps me and others at the Firm to domesticate foreign judgments for our clients and out-of-state counsel.  If you need assistance with a similar matter, please call us 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.