Did Indiana’s Doctrine Of Merger Apply To Infidelity Clause?

Lesson. Today’s post is not about a foreclosure case. Nevertheless, the case provides insight into why lenders should have “anti-merger” clauses in their deeds-in-lieu of foreclosure. Without anti-merger language, the lender’s prior mortgage may be extinguished by the subsequent deed, jeopardizing the lender’s lien in the real estate. For more, see the “related posts” below.

Case cite. Hemingway v. Scott, 66 N.E.3d 998 (Ind. Ct. App. 2016).

Legal issue. Whether a prior contract relating to rights in real estate merged into a subsequent deed so as to extinguish the contract.

Vital facts. Scott deeded real estate that he owned individually to himself and his girlfriend, Hemingway, as joint tenants. Immediately before the conveyance, the two signed a contract in which Hemingway agreed that, if she cheated on Scott, she would re-convey her interest in the real estate to him. The contract was not recorded with or referenced in the deed, however. Hemingway later was impregnated by someone other than Scott, gave birth to a child and moved out of the house.

Procedural history. Scott sought a court-ordered conveyance of the real estate back to him. The trial court sided with Scott, concluded that Hemingway breached the contract and ordered Hemingway to deed the real estate back to Scott. Hemingway appealed.

Key rules.

1. The Indiana Court of Appeals in Hemingway cited to this general rule: “[w]hen two parties have made a simple contract for any purpose, and afterwards have entered into an identical engagement by deed, the simple contract is merged in the deed and becomes extinct. This extinction of a lesser in a higher security, like that extinction of a lesser in a greater interest in land, is called merger.”
2. The so-called “doctrine of merger” says that “in the absence of fraud or mistake, all prior or contemporaneous negotiations or executory agreements, written or oral, leading to the execution of a deed are merged therein by the grantee’s acceptance of the conveyance in performance thereof.”
3. However, rights or obligations that are “collateral or independent” survive the deed “because their performance is not necessary to the conveyance” and, as such, “there is no need to merge them.”
4. Indiana’s test of merger is the express or implied intention of the parties. “To ascertain the parties’ intent, words and phrases of the contract cannot be read in isolation but must be read in conjunction with the other language contained in the contract.”

Holding. The Indiana Court of Appeals affirmed the trial court and concluded that the doctrine of merger did not apply. Hemingway was required to convey back to Scott all of her right, title and interest in the real estate.

Policy/rationale. The contract executed the day of the deed required the contract to be attached to the deed. Even though that didn’t happen, the language was evidence of the parties’ clear intent for the contract to survive the deed. Further, the obligation of fidelity was not one whose performance was needed for the completion of the conveyance. Instead, the obligation was “prospective in nature” and addressed conduct that would trigger a remedy, namely re-conveyance of the real estate. The contract therefore survived the deed.

Related posts.

• Indiana Supreme Court Speaks To The Doctrine Of Merger And The Remedy Of Strict Foreclosure 
• Deeds In Lieu Of Foreclosure: Who, What, When, Where, Why and How

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I represent parties in commercial mortgage foreclosures and workouts. If you need assistance with a similar matter, please call me at 317-639-6151 or email me at [email protected] You also can follow me on Twitter @JohnDWaller or on LinkedIn, or you can subscribe to posts via RSS or email as noted to your left.

Foreclosing Party, As Owner, May Evict Tenants In Breach

Secured lenders repossessing real estate collateral at a sheriff’s sale normally keep tenants in place to maintain income.  There are instances, however, when a plaintiff lender, or a third-party sheriff’s sale purchaser, may desire to evict a tenant.  Ellis v. M&I Bank, 960 N.E.2d 187 (Ind. Ct. App. 2011) sheds light on a new owner’s rights, following a sheriff’s sale, vis-à-vis tenants. 

Unusual circumstance.  In Ellis, a developer leased the subject real estate to tenants (husband and wife), but then defaulted on its line of credit.  As a result, the developer’s lender foreclosed and ultimately acquired the real estate at a sheriff’s sale.  The court’s decree of foreclosure was against the developer and the husband only, not the wife/co-tenant.  When the lender pursued a writ of assistance to evict the tenants, the wife asserted that her interest in the real estate had not been extinguished in the mortgage foreclosure case.  She was right.   

To terminate, name tenants.  The Court in Ellis noted that, in Indiana, the purchaser at a sheriff’s sale “steps into the shoes of the original holder of the real estate and takes such owner’s interest subject to all existing liens and claims against it.”  Because the lender did not make the wife a party to the foreclosure case, the sheriff’s sale could not be enforced against her.  This is because, in Indiana, “where a mortgagee knows or should know that a person has an interest in property upon which the mortgagee seeks to foreclose, but does not join that person as a party to the foreclosure action, and the interested person is unaware of the foreclosure action, the foreclosure does not abolish the person’s interest.”  See my 10/07/11 and 07/09/10 posts for more on this area of the law.  Because the wife was not named or served in the foreclosure action, the trial court found that her interest was not extinguished by the foreclosure judgment and that the lender’s interest in the real estate remained subject to her leasehold interest. 

How did the lender obtain possession of the real estate from the wife?

Option 1 – strict foreclosure.  One option available to the lender was to terminate the interest of the wife through a strict foreclosure action.  I have written about this remedy, including Indiana’s 2012 legislation, extensively.  Please click on the category Strict Foreclosure to your right for more.  The lender in Ellis did not pursue this option. 

Option 2 - eviction.  The lender elected, as the then-owner of the real estate, to pursue eviction based upon the subject lease agreement.  The eviction action was separate and distinct from the foreclosure action.  The evidence in Ellis was clear that the tenants had breached the lease and that the lender had the corresponding right to terminate.  The trial court entered an order of possession for the lender based on the lease, and the Court of Appeals affirmed. 

Plaintiff lenders, after the entry of the foreclosure decree and sheriff’s sale, usually can evict parties in possession of the subject real estate through the mechanism of a writ of assistance, about which I have written in the past, assuming the mortgage lien is senior to the possessory interest.  That remedy generally is effective only when the targets of the writ of assistance were made parties to the underlying action.  The rub in Ellis was that one of the parties in possession of the real estate (the wife) was not named in the case.  Rather than embarking on what may have been a relatively costly, complicated and lengthy strict foreclosure action, the lender in Ellis chose a simpler approach by filing a straightforward landlord/tenant eviction action based upon the terms of the subject lease.  This turned out to be a good solution to the problem caused by failing to name the wife.

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Part of my practice is to protect the interests of lenders in contested foreclosures.  If you need assistance with such matters in Indiana, please call me at 317-639-6151 or email me at [email protected]  Also, you can receive my blog posts on Twitter @JohnDWaller or on LinkedIn, or you can subscribe to posts via RSS or email as noted on my home page.

Indiana’s Strict Foreclosure Statute Applied Retroactively: Senior Mortgage Interest Resurrected

Lesson.  If your foreclosure lawyer omits a junior lienholder in the foreclosure suit, Indiana’s statutory remedy of strict foreclosure should prevent the junior lienholder from leapfrogging into a senior lien position, even if the omission occurred before the enactment of the statute in 2012. 

Case cite.  U.S. Bank v. Miller, 44 N.E.3d 730 (Ind. Ct. App. 2015).

Legal issue.  Whether a junior lien slid into first position based upon the common law doctrine of merger.  Or, could the senior lender’s first priority mortgage be resurrected by Indiana’s strict foreclosure statute, Ind. Code 32-29-8-4?

Vital facts.  The complicated but thorough U.S. Bank opinion decided a lien priority dispute between a senior lender/mortgagee and a junior lender/mortgagee.  Senior lender obtained a foreclosure judgment against its borrower and a junior lender, which held a mortgage securing the borrower’s home equity line of credit.  The problem was that the senior lender’s default judgment against the junior lender was defective due to improper service of process.  In other words, the junior lender was not bound by the original decree of foreclosure.  Thinking that the junior mortgage had been terminated, the senior lender bought the property at the sheriff’s sale and then resold the property to a third party. 

Procedural history.  Once the junior lender became aware of the situation, it sought to set aside the default judgment and assert a senior position in the property.  At the same time, the senior lender pursued a strict foreclosure action to clear title.  The trial court consolidated the matters and ruled in favor of the junior lender based upon the doctrine of merger.  The senior lender appealed, essentially claiming that the case instead should be decided by I.C. 32-29-8-4.   

Key rules. 

U.S. Bank rubbed off the scab from the Citizens State Bank case dealing with the competing law of “merger” and “strict foreclosure” – issues I addressed in detail in 2011 and 2012 (see posts below).  For nerd lawyers, Judge Kirsch’s opinion in U.S. Bank summarizes all sorts of Indiana foreclosure-related principles in addition to the merger doctrine and strict foreclosure.  Because the case involved events both before and after the enactment of the 2012 legislation, one of the core questions was whether the strict foreclosure statute could be applied retroactively. 

Very generally, the doctrine of merger operates to extinguish a senior lender’s mortgage lien upon the purchase of the mortgaged property at the sheriff’s sale and re-sale to a third party.  In turn, neither the senior lender nor the third party would have priority in title over a junior lender omitted from the foreclosure proceeding.  On the other hand, common law strict foreclosure provides an avenue for the senior lender to clear title over an omitted junior lienholder by filing suit to demand redemption of the senior lien.  Failing such redemption, the court could decree the junior lien terminated. 

I.C. 32-29-8-4 resolved the conflict under Indiana law. 

Holding.  The Indiana Court of Appeals reversed the trial court’s summary judgment in favor of the junior lender.  The Court remanded the case to the trial court to decide the case based upon I.C. 32-29-8-4.  This basically meant that the senior lender won the case. 

Policy/rationale.  The Court’s reading of the 2012 legislation led to the conclusion that the statute should be applied retroactively.  The result was an equitable one.  The facts were undisputed that the junior lender funded the HELOC knowing that the senior lender’s far larger purchase money mortgage pre-existed it.  In addition, despite the changes to Indiana law during the course of events, the Court noted that “considerations of the doctrines of merger and strict foreclosure played no part in the expectations that [the junior lender] had when it granted [the borrowers] their loan.”  And, the application of Indiana’s new strict foreclosure statute would not impair the junior lender’s rights when it acted, or otherwise affect its duties or liabilities.  In short, “the application of [I.C. 32-29-8-4] will return [the junior lender] to the position that it knew it occupied – that of a junior lienholder.”   

Related posts. 

• Indiana Legislation, 2012: Part 3 Of 3 – Sheriff’s Sale Buyers And Omitted Junior Lien Holders Impacted By Creation Of Strict Foreclosure Statute
• Indiana’s New Strict Foreclosure Statute: Dangling Issues
• Indiana Supreme Court Speaks To The Doctrine Of Merger And The Remedy Of Strict Foreclosure

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I frequently represent lenders and their mortgage loan servicers in lien priority disputes, and we have successfully utilized I.C. 32-29-8-4 to protect a senior lender’s lien.  If you need assistance with a similar case, 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 along the left side of this page.

Foreclosing Party, As Owner, May Evict Tenants In Breach

Secured lenders repossessing real estate collateral at a sheriff’s sale normally keep tenants in place to maintain income.  There are instances, however, when a plaintiff lender, or a third-party sheriff’s sale purchaser, may desire to evict a tenant.  Ellis v. M&I Bank, 960 N.E.2d 187 (Ind. Ct. App. 2011) sheds light on a new owner’s rights, following a sheriff’s sale, vis-à-vis tenants. 

Unusual circumstance.  In Ellis, a developer leased the subject real estate to tenants (husband and wife), but then defaulted on its line of credit.  As a result, the developer’s lender foreclosed and ultimately acquired the real estate at a sheriff’s sale.  The court’s decree of foreclosure was against the developer and the husband only, not the wife/co-tenant.  When the lender pursued a writ of assistance to evict the tenants, the wife asserted that her interest in the real estate had not been extinguished in the mortgage foreclosure case.  She was right.   

To terminate, name tenants.  The Court in Ellis noted that, in Indiana, the purchaser at a sheriff’s sale “steps into the shoes of the original holder of the real estate and takes such owner’s interest subject to all existing liens and claims against it.”  Because the lender did not make the wife a party to the foreclosure case, the sheriff’s sale could not be enforced against her.  This is because, in Indiana, “where a mortgagee knows or should know that a person has an interest in property upon which the mortgagee seeks to foreclose, but does not join that person as a party to the foreclosure action, and the interested person is unaware of the foreclosure action, the foreclosure does not abolish the person’s interest.”  See my 10/07/11 and 07/09/10 posts for more on this area of the law.  Because the wife was not named or served in the foreclosure action, the trial court found that her interest was not extinguished by the foreclosure judgment and that the lender’s interest in the real estate remained subject to her leasehold interest. 

How did the lender obtain possession of the real estate from the wife?

Option 1 – strict foreclosure.  One option available to the lender was to terminate the interest of the wife through a strict foreclosure action.  I have written about this remedy, including Indiana’s 2012 legislation, extensively.  Please click on the category Strict Foreclosure to your left for more.  The lender in Ellis did not pursue this option. 

Option 2 - eviction.  The lender elected, as the then-owner of the real estate, to pursue eviction based upon the subject lease agreement.  The eviction action was separate and distinct from the foreclosure action.  The evidence in Ellis was clear that the tenants had breached the lease and that the lender had the corresponding right to terminate.  The trial court entered an order of possession for the lender based on the lease, and the Court of Appeals affirmed. 

Plaintiff lenders, after the entry of the foreclosure decree and sheriff’s sale, usually can evict parties in possession of the subject real estate through the mechanism of a writ of assistance, about which I have written in the past, assuming the mortgage lien is senior to the possessory interest.  That remedy generally is effective only when the targets of the writ of assistance were made parties to the underlying action.  The rub in Ellis was that one of the parties in possession of the real estate (the wife) was not named in the case.  Rather than embarking on what may have been a relatively costly, complicated and lengthy strict foreclosure action, the lender in Ellis chose a simpler approach by filing a straightforward landlord/tenant eviction action based upon the terms of the subject lease.  This turned out to be a good solution to the problem caused by failing to name the wife.

Indiana’s New Strict Foreclosure Statute: Dangling Issues

This post should be read in conjunction with my April 12th post:  Indiana Legislation, 2012:  Part III of III – Sheriff’s Sale Buyers And Omitted Junior Lienholders Impacted By Creation Of Strict Foreclosure Statute.  The good news is that the legislation resolved many important foreclosure and title-related issues that bubbled up over the last few years.  Like most legislation, however, Senate Bill 298, which amends Ind. Code § 32-29-8 by adding a new section 4, contains a handful of holes:

1. Interested persons.  Section 4’s “interested person” (the “Buyer” in my April 12th post) does not appear to include a plaintiff mechanic’s lien holder.  This suggests that the strict foreclosure remedy may not be available in the wake of a sheriff’s sale resulting from a mechanic’s lien action.  Does the Section 4 action apply only to mortgage foreclosure sales?  
 
2. Omitted parties.  Section 4’s definition of “omitted party” (the “Junior Lienor” in my prior post) appears to exclude senior mortgagees.  Thus the strict foreclosure remedy may not relate to situations in which a plaintiff junior mortgagee sues to foreclose, leading to a sheriff’s sale subject to a senior lien not included in the suit.  See my 05-07-08 post regarding sheriff’s sales subject to senior mortgage liens.  Does Section 4 impact the Indi Investments holding?

3. Forever?  The strict foreclosure action can be filed “at any time” after the entry of a foreclosure judgment.  Does this mean until the end of time, without any restrictions?  

4. No merger, ever?  Similarly, Section 4’s anti-merger language provides that “until an omitted party’s interest is terminated . . . any owner of the property as holder of a sheriff’s deed [Buyer] . . . or any person claiming by, through or under such owner is an equitable owner of the senior lien upon which the foreclosure action was based and has all rights against an omitted party as existed before the judicial sale.”  The terminology “claiming by, through or under such owner” suggests that the equitable, senior lien endlessly runs with the land or, in other words, inures to the benefit of all subsequent owners holding a link in the chain of title starting with the sheriff’s deed.  Is that the intent, with no limitations? 

5. Right of payment, generally.  The “omitted party” (Junior Lienor) is entitled to payment for any sheriff’s sale proceeds on which it lost out.  But the statue does not identify who must pay.  My 01-13-11 post notes that any post-sale surplus (a rarity) is paid to the clerk and, in turn, to the mortgagor/owner.  Is that who pays?  Good luck collecting from that party.  Does the “interested person” (Buyer) bear the loss?  Will a title policy cover the loss?

6. Right of payment, parity.  Mechanic’s lien holders can be Junior Lienors (“omitted parties”) under Section 4.  As noted in my 07-03-07 post, in certain circumstances a mechanic’s lien holder and a mortgagee will have equal priority.  Section 4 contemplates problems related to senior and junior liens but does not appear to explicitly deal with parity scenarios.  Unlike a surplus, sales where parity should have applied are more common and thus could be fertile ground for the losses identified in the statute.  Is a clearer identification in the statute of who should pay warranted? 

Finally, I’m also left to wonder how strategies of foreclosing lenders and prospective sheriff’s sale buyers, as well as title insurance coverage, might be shaped by the new protections offered by the statute.  For example, speed is always a compelling issue for plaintiff lenders.  In cases involving multiple liens and thus multiple defendants, Indiana’s judicial foreclosure process can get bogged down, to the chagrin of secured lenders seeking prompt payment or possession.  A plaintiff mortgagee theoretically could bypass such delays and foreclose only against the owner/mortgagor so as to more quickly reduce the debt to a money judgment and repossess the property.  To clear up title, a subsequent post-sale strict foreclosure action could then be instituted.  These and other new approaches could arise out of Section 4. 

Indiana Legislation, 2012: Part 3 Of 3 – Sheriff’s Sale Buyers And Omitted Junior Lien Holders Impacted By Creation Of Strict Foreclosure Statute

Senate Bill 298, which amends Ind. Code § 32-29-8, creates a new section: 4. The legislation responds to the Indiana Supreme Court’s opinion in Citizens State Bank of New Castle v. Countrywide Home Loans, Inc. and the Court of Appeals’ holding in Deutche Bank v. Mark Dill Plumbing. The amendments hit on technical subjects related to Indiana’s strict foreclosure remedy and doctrine of merger. The practical effect is a solution to problems associated with junior liens missed during the foreclosure process.

Citizens and Deutche revised. These are dense topics tough to cover in a single post. For background, please read my 10-07-11 and 07-20-09 posts on Citizens and Deutche, respectively. In Citizens, the Supreme Court applied the doctrine of merger and permitted the omitted junior lien holder to leap frog into a senior priority position. In Deutche, the Court of Appeals concluded there was no merger (leap frog) and discussed remedies for the post-sale title defect. With the new Section 4, it appears that the Citizens merger (and leap frog) would not have occurred. The result in Deutche also would have been different because courts now have a statutory road map for dealing with the aftermath of a foreclosure suit that improperly excluded a junior lien holder.

Section 4. The new statute appears to be effective immediately and can be found at this link: Section 4. Here are the highlights as I read them:

A. Applicable parties: Section 4 applies to two groups, defined as “interested persons” and “omitted parties.” An “interested person,” which I’ll label a “Buyer,” basically includes (1) plaintiff mortgagees, (2) purchasers at a sheriff’s sale or (3) assignees of (1) or (2). An “omitted party,” which I’ll call a “Junior Lienor,” essentially is a junior lien holder improperly omitted from foreclosure proceedings .

B. New cause of action: “At any time” after the entry of a foreclosure judgment, either the Buyer or the Junior Lienor can file an action, the purposes of which are (1) to determine the extent of a Junior Lienor’s lien and (2) to terminate such lien on the mortgaged property sold at a sheriff’s sale. Generally, the action – a lawsuit – is a statutory strict foreclosure case, though the statute does not use that terminology.

C. Junior Lienor’s right to payment: If a Junior Lienor had a right to receive any proceeds from the sheriff’s sale, its lien cannot be terminated until the Junior Lienor is paid for such losses. (The statute does not spell out who must pay. For now, I’ll simply note that sheriff’s sale surpluses are incredibly rare due to the absence of equity in most foreclosed-upon real estate.)

D. Junior Lienor’s right to purchase: There are three key factors a court must consider when determining a Junior Lienor’s right of redemption in the strict foreclosure action. (The “redemption” language used in Section 4 refers to a Junior Lienor’s right to pay off the Buyer and thus acquire title to the property.) Here are the factors: (1) whether the Junior Lienor had actual knowledge of the foreclosure proceedings and an opportunity to intervene, (2) the value of any post-sale improvements made by the Buyer to the property and (3) the amount of the post-sale taxes and interest paid by the Buyer. Factor (1) seems to provide a basis for the right of redemption to be terminated outright, and factors (2) and (3) help make the Buyer whole for any ownership-related carrying costs incurred.

E. Junior lien terminated: If the court concludes the Junior Lienor was entitled to redeem, then the amount the Junior Lienor must pay for redemption cannot be less than the sheriff’s sale price plus statutory interest (8%). (The court also must consider the factors in (D) when determining the amount the Junior Lienor must pay.) The Junior Lienor has ninety days to submit the payoff. If the Junior Lienor does not submit such payment, then the Junior Lienor’s rights will be terminated without compensation, just as they would have been in the foreclosure process.

F. Anti-merger statute: Section 4 specifically provides that there is no merger of the senior lien and title to the property until a Junior Lienor’s interest is terminated. This new legislation appears to resolve many uncertainties surrounding Indiana’s common law doctrine of merger. Thus the Buyer, which presumes that it’s acquiring title free and clear, has protections it did not previously have.

G. Other Buyer safeguards: Section 4 also states that the Buyer’s senior interest in the property cannot be denied even if the Buyer had (1) had actual or constructive notice of the Junior Lienor’s interest, (2) been negligent in examining county title records, (3) been engaged in the business of lending or (4) obtained a title insurance policy commitment. This language constitutes a preemptive strike against any defenses to the strict foreclosure action, and without these carve outs Section 4 would be meaningless.

I’m planning a follow-up post to identify some holes in SB 298. For today, it’s important for secured lenders and other lien holders to know that Indiana now has a statutory method to clear up title when a buyer learns that a junior lien survived a sheriff’s sale. While Section 4 is not perfect, I agree with my partner Tom Dinwiddie that this was a necessary and fair bill that protects both buyers and junior lien holders.

Indiana Supreme Court Speaks To The Doctrine Of Merger And The Remedy Of Strict Foreclosure

The doctrine of merger and the remedy of strict foreclosure have been hot topics in Indiana’s appellate courts over the last couple of years. The development of the law has centered upon two cases: Deutche Bank v. Mark Dill Plumbing and Citizens State Bank of New Castle v. Countrywide Home Loans, Inc. In 2009, I posted four articles about Deutche Bank: April 17, April 24, May 4 and July 20. In 2010, I wrote about Citizens State Bank. Earlier this year, the Indiana Supreme Court vacated the Court of Appeals’ opinion in Citizens State Bank and issued its own decision, seemingly closing the books for the foreseeable future on this area of the law (.pdf) . The subject – big picture – relates to the impact of a foreclosing mortgagee’s failure to include a junior lien holder in a foreclosure case.

At issue. I outlined the key facts of the Citizens State Bank in my September 20, 2010 post. The Supreme Court distilled the dispute to its essence:

A mortgage holder foreclosed its mortgage, took title to the subject property at a sheriff’s sale, and then sold the property to a third party. The foreclosing mortgagee subsequently discovered it had inadvertently failed to name a junior lienholder in the foreclosure action. We granted transfer to shed light on the status of the original first mortgage in this context.

Merger. On pages 3 through 5 of the opinion, the Court provides an excellent discussion of Indiana’s doctrine of merger, including an explanation of the “equity of redemption.” The idea of “merger,” as noted by the Court, typically means that the mortgagee, in a foreclosure, acquires both the lien and legal title to the real estate so as to “merge” those two interests. That is, “the mortgage merges with the legal title, and the lien is thereby extinguished.”

Strict foreclosure. As suggested in the line of Deutche Bank’s cases, in my opinion the remedy of strict foreclosure (forfeiture, really) technically doesn’t exist in Indiana, even though lawyers and lenders frequently use that terminology. Here’s what the Indiana Supreme Court said about the remedy as it applied in Citizens State Bank:

But there is nothing particularly sacrosanct about a strict foreclosure action. That is to say, simply alleging that strict foreclosure would be a proper remedy does not make it so, nor does such allegation resolve the question of merger. In the end strict foreclosure as used in this case is merely a mechanism to place before the court the question of whether the doctrine of merger should be enforced.

Presumption. Regarding the enforceability of the doctrine of merger, the Court stated:

As indicated earlier in this opinion our case authority declares, “[w]hether the conveyance of the fee to the mortgagee results in a merger of the mortgage and the fee depends primarily upon the intention of the parties, particularly that of the mortgagee.” This is not, in our view, an “anti-merger” rule. Instead, we view it simply as an exception to the [merger] rule, providing a starting point in determining whether merger occurred in the first instance.

The “presumption” is that a mortgagee intends to do that which is most advantageous to itself. But the presumption is not conclusive and may be rebutted by evidence showing “that a merger had been expressly agreed to, or that the mortgagee’s conduct and action were such as could fairly be ascribed only to an intention to merge.” In basic terms, the question is whether the parties desired to extinguish the mortgage lien.

Holding. The Court ultimately found that the evidence in Citizens State Bank rebutted the presumption that the mortgagee wanted the two estates (mortgage and title) to remain separate. The Court focused on the limited warranty deed that transferred the property to the third party, FNMA. “Countrywide’s intent was manifest: conveyance of title in fee simple, free of all encumbrances.” The Court reasoned that “simply because in retrospect it might not have been in Countrywide’s ‘best interest’ to extinguish its mortgage lien when it conveyed the property to FNMA cannot change Countrywide’s intent after the fact.” The Court held that the third party, FNMA, acquired the property subject to the valid judgment lien. (This result may have been prevented had the mortgagee and FNMA used the “anti-merger” language typically used in deeds-in-lieu of foreclosure.)

Not always. The Court noted that there may be circumstances under which the equitable remedy of strict foreclosure (actually quiet title relief, in my view) still may be appropriate. Certainly a mortgagee’s intent is of primary importance. An example of this would be a case in which a junior lien was not joined in the foreclosure action due to an indexing error that prevented the lien from appearing in court records. Under the facts of Citizens State Bank, however, the record was clear that the junior lien on the real estate was properly recorded and indexed, and the lien simply was overlooked due to the senior mortgagee’s mistake and/or inadvertence.

Citizens State Bank is another one of those decisions that drives home the point that an owner’s policy of title insurance is a wise investment for foreclosing lenders.

NOTE: Legislation in 2012 impacted these issues.

Strict Foreclosure Unavailable Once Foreclosing Mortgagee Transfers Property To Third Party

Last year, in the wake of the Indiana Court of Appeals’ opinions in Deutsche Bank v. Mark Dill Plumbing, I described in four separate posts on April 17, April 24, May 4 and July 20, 2009 what happens if your title company or your foreclosure lawyer misses a junior lien in the lawsuit to enforce your mortgage.  Deutsche Bank did not definitively answer the question raised in my April 24th post, namely what happens if the foreclosing lender conveys the property before clearing title.  The federal court decision in Brightwell v. United States of America, 805 F.Supp. 1464 (S.D. Ind. 1992) dealt with that very issue, but not until the 2010 decision in Citizens State Bank of New Castle v. Countrywide Home Loans, 922 N.E.2d 655 (Ind. Ct. App. 2010) (.pdf) did Indiana formally adopted the Brightwell analysis. 

Order of events.  Here’s what happened in Citizens State Bank:

04/27/05: Lender obtained mortgage.
06/09/06: Money judgment entered against owners; Judgment Creditor perfected judgment lien on property.
08/28/06: Lender filed complaint to foreclose mortgage but did not name Judgment Creditor in action.
10/30/06: Lender obtained foreclosure judgment without terminating Judgment Creditor’s lien.
02/22/07: Lender obtained title to property at sheriff’s sale.
03/15/07: Lender recorded sheriff’s deed.
05/03/07: Lender transferred title to property to Federal National Mortgage Association (FNMA).
10/02/07: Upon learning of prior judgment lien, Lender filed complaint against Judgment Creditor for strict foreclosure.

Initially, no merger.  Citing to and following Deutsche Bank, the Court in Citizens State Bank concluded that Lender’s mortgage lien and title to the property did not merge when Lender acquired the property through the sheriff’s sale.  At that point, Lender’s mortgage lien had been preserved.  Unlike Deutsche Bank, however, Lender took the additional step, before clearing title, of transferring the property to FNMA, a third party. 

Applying Brightwell.  Indiana’s anti-merger rule benefits only the foreclosing mortgagee:   

By transferring the property to FNMA, [Lender] has already had “first crack” at a full recovery ahead of any junior lien holders . . . and the purpose of the anti-merger rule has been satisfied.  After the transfer to FNMA, [Lender] no longer had any interest in the property to protect, and there was no basis for its mortgage-assertion right to pass to FNMA.

The Court declared that Lender’s right to assert the mortgage against the Judgment Creditor was extinguished upon subsequent transfer of the property to FNMA.  As such, the third party, FNMA, took the property subject to the valid judgment lien. 

Message.  The Court, in footnote 4, echoed a theme from all of my 2009 posts on Deutsche Bank regarding the importance of obtaining appropriate title work before, during and after the foreclosure process:

We feel compelled to state the obvious.  All of this could have been avoided had [Lender] conducted a thorough title search of the property prior to the original foreclosure or had FNMA done the same prior to purchasing the property from [Lender], as such searches surely would have revealed [Judgment Creditor’s] properly recorded judgment lien.  While [Lender] and FNMA fancy these mistakes as “technicalities,” they are significant when applying principles of equity.

NOTE:  On June 29, 2011, the Indiana Supreme Court issued its opinion on transfer in  Citizens State Bank.  Accordingly, please refer to my October 7, 2011 post. 

Indiana Court Of Appeals Clarifies Its Decision About Strict Foreclosure

I recently posted three articles about Indiana's strict foreclosure remedy in the wake of the Court of Appeals' March 25, 2009 opinion in Deutche Bank v. Mark Dill Plumbing, 2009 Ind. App. LEXIS 524: Part I, Part II and Part III. On July 14th, the Court, on rehearing, clarified its earlier opinion and, by doing so, spelled out what should happen when a secured lender's title company or counsel misses a perfected junior lien in the process of foreclosing a senior mortgage. Here's a .pdf of the new opinion. We now know that, in most cases, the error will not be fatal.

Priority. With respect to the order of priority for payment among the parties on remand (when the case gets back to the trial court for further handling), the Court relied on the Brightwell decision about which I wrote in Part II. The Court agreed with Deutche Bank that a merger of the mortgage with title, which extinguishes the mortgage lien, did not occur upon the bank's purchase of the property at the prior foreclosure sale. Thus the bank's first lien is preserved, and there is no leapfrog in priority by the junior lienors, which is something that initially concerned me upon first reading the March 25th opinion. Significantly, the Court held that, "on remand, Deutsche Bank and the three junior lien holders remain in the priority positions they had before the first sheriff's sale."

Remedy. The second matter clarified by the Court concerned the trial court's options as to how to clear title to the real estate. The Court left to the trial court "the decision whether to order another sheriff's sale or provide another remedy equitable to the parties." As such, there could be a second sheriff's sale of the property, although that could prove to be costly, in terms of both time and expense. Deutche Bank wanted the Court to explain to the trial court that it could order the junior lienors to redeem the real estate from the bank rather than order another sheriff's sale. The Court granted Deutche Bank's wish: "The [trial court] could ... simply give the junior lien holders an opportunity to purchase the property from Deutche Bank...." Basically, there could be (and probably will be) a decree entered by the trial court requiring the junior lienors to either pay the bank to "redeem" the property or lose their liens. This seems to be the cheaper and faster way to solve the problem.

Payment amount. The Court stated that, if the trial court decides to offer the junior lienors an opportunity to redeem, "the amount a junior lien holder should be required to pay is the 'full amount payable under the mortgage,' not the amount of the foreclosure judgment and not the amount the mortgagee bid at the first sheriff's sale." This would include attorney fees, unpaid principal and interest. While I understand and agree that the redemption amount should not be the purchase price paid at the first sheriff's sale, I'm somewhat confused as to why the amount would not be the same as the foreclosure judgment, which includes such things as unpaid principal, interest and attorney fees. I suppose there could be situations when the judgment will not include all items recoverable under the mortgage, and perhaps the Court simply wanted to be clear. But in most cases, I think the amount of the foreclosure judgment and the redemption amount should be the same, unless I'm missing something. (Please email or comment.)

RIP, strict foreclosure. "With these clarifications," the Court ultimately affirmed its original opinion. The Court left no doubt that it was "denying Deutche Bank's request to simply remove the liens of the junior lien holders from Deutche Bank's title to the property." For that reason, my view is that the remedy of strict foreclosure as we knew it is dead. Senior (first) mortgagees still have a remedy, but labeling it "strict foreclosure" (to the extent labels matter) may be inaccurate, as the Court outlined in its original opinion. The two Deutche Bank opinions from the Indiana Court of Appeals seem to tell us that, if a junior lien was overlooked, then the remedy is to file a suit to quiet title, which will provide the junior lien holder an opportunity to redeem its lien and acquire the property. Only after the junior lien holder fails to redeem will its lien be extinguished from title.

But let us not forget the larger lesson of Deutche Bank: when secured lenders and their counsel foreclose a mortgage in Indiana, be sure to order a title insurance policy commitment, order a date down (update) of the commitment through the date of the filing of the complaint and purchase the owner's policy after acquiring title at the sheriff's sale. If you do these things, then the negative consequences associated with missing junior liens primarily will be the title company's problem, not yours.

(I'd like to thank Dean Leazenby, an attorney in Elkhart and periodic reader of my blog, who first alerted me to both Deutche Bank opinions shortly after the Court issued them. Indianapolis attorney John Carr also has contributed to the discussion, and I've appreciated his emails.)

NOTE: Legislation in 2012 impacted these issues.

If Strict Foreclosure Isn’t The Remedy, What Is?

Today’s article provides further guidance to secured lenders facing situations in which your title company or foreclosure counsel missed a perfected junior lien during the suit to enforce your mortgage.  This is Post III of my ongoing analysis of Indiana strict foreclosure law in the wake of Deutsche Bank.  Here are links to Parts I and II:  April 17 Post and April 24 Post. 

Worst case.  In the event the Indiana Supreme Court on appeal of the Deutsche Bank case were to either disregard or not apply the anti-merger rule addressed in Brightwell, things could get ugly for attorneys and title companies.  Rather than simply dealing with the time and expense of clearing up title with litigation post-sale, there could be financially devastating consequences if a junior creditor were to leapfrog a senior mortgagee.  Recently, I handled a case involving a debt of about $1,500,000.  As we proceeded to a foreclosure judgment, we ordered a date down of our title work that disclosed for the first time two judgment liens on the property totaling about $12,000,000.  We quickly amended our complaint and included the interests of the judgment lien holders.  Had we failed to do so, or if our title company had missed the liens, the judgment creditors could try to spin Deutsche Bank and ask the court to trump our client’s senior mortgage lien, effectively negating our client’s interest in the collateral.  Our client would realize no recovery whatsoever on its $1,500,000 debt.  Before Deutsche Bank, had we missed the junior liens, we would’ve filed a strict foreclosure suit to remedy the situation.  Now, it’s unclear exactly what we’d do, or the cheapest way to do it. 

How to clear title.  The Court in Deutsche Bank held that the property must be sold to satisfy the liens belonging to the judgment creditors.  The court’s ordering of this execution sale helped, or will help, to bring the title issues to a head.  (Generally, an execution sale is a tool to collect a money judgment previously entered in a lawsuit and involves a judicial sale of the real estate of a defendant/judgment debtor.  There are, however, differences between an execution sale and a foreclosure sale that go beyond the scope of today’s post.)  The point is - in Deutsche Bank, the question of lien priority will be determined as a result of action taken by the junior lien holders.

But what if a junior lienor doesn’t incur the time and expense of pursing its lien and forcing an execution sale?  It’s not unusual for liens to remain dormant.  Indeed some liens are recorded in error.  Title could remain clouded indefinitely.  Upon discovery of the encumbrances, usually when it’s time to resell the property, the senior mortgagee will want to clear title.  At this point, I’m not sure anyone knows for certain what to do, but there appear to be at least two avenues for relief. 

    Second bite at the apple.  First, assuming the lender/mortgagee is in title, it might be able to bring a second mortgage foreclosure suit.  Admittedly, I haven’t comprehensively researched this.  But Brightwell seems to support the notion that the mortgagee, assuming the mortgage hasn’t merged with title, could bring a new, albeit unconventional, mortgage foreclosure proceeding solely against the overlooked junior lien holders.  The foreclosure action would lead to a determination of priority in title, lien amounts, etc., followed by another sheriff’s sale giving the junior lienors an opportunity to recover any sale proceeds or to make a credit/judgment bid at the sale. 

    Do-over.  A second, and perhaps more viable, possibility would be to set aside the first sheriff’s sale and obtain an amended judgment in the original case that includes the overlooked junior lien holders.  Indiana law recognizes setting aside sheriff’s sales and, in essence, having a do-over of that phase.  The Court in Deutsche Bank said: 

Accordingly, trial courts have considerable equitable discretion to set aside sales of property resulting from their foreclosure judgments.  In addition, trial courts have full discretion to fashion equitable remedies that are complete and fair to all parties involved.

Both the second foreclosure sale and the do-over sale “remedies” raise all sorts of procedural and evidentiary problems about which I could write for pages and pages.  My only real point is that there may be feasible alternatives to a strict foreclosure suit.  Perhaps the Deutsche Bank case, or a subsequent decisions, will fashion an equitable remedy tied to Indiana’s statutory action to quiet title, Ind. Code § 32-30-3-13 to 21.   

Where to go from here?  Whatever the legal theory, secured lenders, foreclosure lawyers, trial courts and title companies need direction from Indiana’s appellate courts concerning how to solve these problems.  My hope is that the Indiana Supreme Court accepts the Deutsche Bank case and clarifies, once and for all, the proper method for senior mortgagees to clear title after a foreclosure sale.  For now, it’s simply important for lenders to be reminded that accurate date-downs are critical and that Indiana’s strict foreclosure remedy is either dead or is in the process of being reformed.
 

The Demise of Indiana’s Strict Foreclosure Remedy, Part II: Trying To Peel The Onion That Is Deutsche Bank

This follows-up my April 17 post discussing how the recent Deutsche Bank (.pdf) case calls into question whether Indiana recognizes the remedy of strict foreclosure.  Despite the remedy’s potential demise, there appears to be an argument that, under certain circumstances, a senior lender/purchaser at a mortgage foreclosure sale, which didn’t include junior lienors, may not lose the property after all - - it’ll just lose time and money. 

Devil’s in the details - Brightwell.  I shared my prior post with a handful of creditor’s rights lawyers, some of whom pointed out the significance of footnote 5, buried at the end of the Deutsche Bank opinion, which provided:

Because issues regarding division of proceeds may arise during further proceedings in the trial court, we note that, in Brightwell, the Federal District Court, applying Indiana law, explained the procedure for determining the relative rights of the parties in a case like that before us.

That’s all Deutsche Bank really told us about the priority issue – arguably the most important issue in the case.  It’s only after studying the 1992 Brightwell v. United States of America, 805 F. Supp. 1464 (S.D. Ind. 1992) (.pdf) opinion that we can piece together the upshot of Deutsche Bank.  In Brightwell, Judge McKinney more directly tackled the issue of priority and, unlike the Court in Deutsche Bank, discussed Indiana’s “anti-merger” rule.  According to Brightwell, the subsequent execution sale contemplated in Deutsche Bank should be subject to the senior mortgagee’s lien, and the underlying mortgage foreclosure judgment should permit the mortgagee to make a first-priority credit bid at the second sale.  (Beware:  if the foreclosing lender sells the property before clearing title, Brightwell suggests that the mortgagee’s right to assert the mortgage lien against junior lien holders does not pass to subsequent purchasers – a post for another day.)     

Anti-merger.  To fully understand the implications of Deutsche Bank and Brightwell, lenders and their foreclosure counsel need to be aware of Indiana’s “anti-merger” rule: 

• The general rule is that a mortgagee’s acquisition of title to mortgaged property will result “in a merger of the mortgage with the title, thus extinguishing the mortgage lien.”
• The exception to this rule where merger would harm the interests of the mortgagee, thus permitting the lien to be preserved.
• The “key factor” in deciding whether a merger has occurred “is determining what the parties to the sale – primarily the mortgagee – intended.”
• If intent is not express, Indiana courts will presume that no merger was intended if the circumstances indicate that preservation of the lien would “benefit” the mortgagee.
• The exception/presumption allows mortgagees to prevent junior lien holders from stepping-up in priority, foreclosing and reducing the mortgagee’s “already diminished recovery . . . guarantees the mortgagee’s priority in any proceeds.” 

In a nutshell, “anti-merger” is a priority-protection rule:

Put simply, the anti-merger rule gives a mortgagee first crack at any money generated by foreclosures on the property, ahead of any junior lien holders, until it has been paid what it is owed in full. 

Judge McKinney held that there was no evidence in the Brightwell case to overcome the presumption that the mortgagee intended to preserve its lien, so the mortgage was preserved after the mortgagee bought the property at foreclosure.

All may not be lost.  Admittedly, it would appear that I jumped the gun when I stated that the Deutsche Bank “opinion’s implication is that the subsequent sale is not subject to the prior mortgage lien/interest.”  Assuming courts read Deutsche Bank and Brightwell in tandem, the plaintiff/senior lender-mortgagee, who purchases property at a foreclosure sale, ultimately should not lose the property, unless the missed junior lienor or a third party first pays the mortgage debt as established in the underlying foreclosure action.  Having said that, with the elimination of the strict foreclosure remedy by Deutsche Bank, lenders still face substantial headaches, delays and expenses to clear title. 

How senior lenders should proceed under circumstances involving missed junior liens, as well as other practical considerations arising out of the Deutsche Bank case, will be addressed next week in yet another strict foreclosure-related post.  For now, lenders and their counsel should remain mindful of the importance of ordering date downs of title work before proceeding to judgment, and any title insurance representatives reading this should be very sensitive to the consequences of missing perfected junior liens.  More next week…. 

Does Indiana’s Strict Foreclosure Remedy Still Exist?

What happens if your title company or your foreclosure lawyer missed a junior lien in the lawsuit to enforce your mortgage?  Past practice has been to file a strict foreclosure case to extinguish the overlooked interests from title, as mentioned in my March 3, 2008 post.  The validity of that remedy is now in doubt because, on March 25, 2009, in Deutsche Bank National Trust Co. v. Mark Dill Plumbing Co., 2009 Ind. App. LEXIS 524 (.pdf), the Indiana Court of Appeals issued a decision that appears to stand for the proposition that a senior lender/mortgagee, which acquired property at a sheriff’s sale, takes the real estate subject to any junior liens that existed pre-suit, without recourse.  Although I’m still digesting the opinion, which is significant on many levels, my interpretation is that Deutsche Bank basically kills the strict foreclosure remedy in Indiana.  

The litigation.  In the underlying lawsuit, the lender/mortgagee filed suit against the borrower/mortgagor and ultimately took title to the property at a sheriff’s sale.  However, the lender failed to name three judgment lien holders as parties to the foreclosure action, even though the “junior liens were properly recorded.”  Lender thus brought a strict foreclosure action against the judgment lien holders to cut off the rights of the junior lienors to the subject property.  The judgment lien holders countered that the lender’s equity of redemption should be foreclosed and that another sheriff’s sale should be held in order to satisfy the amounts owed to them. 

English law-forfeiture.  At English common law, “strict foreclosure” basically constituted a forfeiture:

 A rare procedure that gives the mortgagee title to the mortgaged property –
 without first conducting a sale – after a defaulting mortgagor fails to pay the
 mortgage debt within a court-specified period.

The Court reasoned that Deutsche Bank could not be deemed a “strict foreclosure” case because the lender already had title to the mortgagor’s property by virtue of Indiana’s statutory foreclosure proceeding.  (But, as noted in the next section, an Indiana strict foreclosure isn’t really a forfeiture because the lien isn’t really being voided outright – the lienor maintains the equity of redemption.) 

Indiana law-remedy.  Interestingly, the Court’s opinion also addressed the definition of strict foreclosure recognized previously by Indiana courts (and me):

 A strict foreclosure proceeds upon the theory that the mortgagee or purchaser
 has acquired the legal title, and obtained possession of the mortgaged estate,
 but that the right and equity of redemption, of some judgment creditor, junior
 mortgagee, or other person similarly situated, has not been cut off or barred. 
 In such a case, the legal title of the mortgagor having been acquired, the
 remedy by strict foreclosure is appropriate to cut off the equity and right of
 junior encumbrances to redeem.

 Such persons have a mere lien upon, or an equity in, the land which is
 subordinate to the right of the owner of the legal title.  A statutory foreclosure,
 in such a case, would be manifestly inappropriate.  The owner of the legal title
 may, with propriety, maintain a proceeding in the nature of a strict foreclosure,
 to bar the interest of persons who have a mere lien upon or right of redemption
 in the land.

This is what I understood the strict foreclosure remedy to mean in Indiana - a lender could file a quiet title (strict foreclosure) suit to give the junior lien holder the opportunity (right) to redeem (to payoff the judgment/buyer).  Absent a payoff, the junior lienor’s equity of redemption is foreclosed, causing the lien on the property to be terminated.

Applying the law:  fairness?  The Court, however, steered away from prior Indiana law and instead focused on the forfeiture concept, stating:  “courts must always approach forfeitures with great caution, being forever aware of the possibility of inequitable dispossession of property and exorbitant monetary loss.”  The Court felt there was nothing fair or just about ordering forfeited the judgment liens “when their junior liens were properly recorded and when the failure to join them as parties in the forfeiture action resulted from the negligence of Deutsche Bank or its agent.”  (But, what about the windfall associated with allowing a subordinate lien to leapfrog a senior mortgage lien?)   

No strict foreclosure.  In Indiana, foreclosure by a senior mortgagee does not affect the rights of a junior lien holder who was not made a party to the foreclosure action.  (See my 12-21-06 post.)  In its analysis, the Court in Deutsche Bank relied upon the following rule applicable to foreclosures and sales:

 Junior lien holders who are not made parties to the foreclosure action were
 not bound by such foreclosure, and their situation “after the foreclosure
 remained the same as it had been before.”  The purchaser at the foreclosure
 sale “simply stepped into the shoes of the original holder of the real estate and
 took such owners’ interest subject to all existing liens and claims against it.”

The Court ultimately agreed with the judgment lien holders’ argument that it would be erroneous to allow their interests to be eliminated without notice and due process.  (But, doesn’t the subsequent strict foreclosure suit present junior interest holders with notice and due process?)

The upshot - stunning.  According to Deutsche Bank, Indiana junior lien holders, who are not named in a foreclosure suit, have valid liens against the title held by the purchaser at a sheriff’s sale and can have the real estate sold to satisfy their liens.  The opinion’s implication is that the subsequent sale is not subject to the prior mortgage lien/interest.  So, unless the foreclosure sale purchaser (usually, the mortgagee) buys off the junior liens, the purchaser, like the borrower/mortgagor before it, will lose the property.   Deutsche Bank seems to signal a dramatic change in Indiana foreclosure law and practice, but the party’s not over because I’m told the lender is appealing the Court of Appeals’ decision.  Stay tuned and, because I can’t tackle all issues in one post, I intend to write a follow-up article addressing some of the more practical implications of this case next week.  Please call, email or post a comment with your thoughts.

An Indiana Federal Court Discusses Strict Foreclosure

If you’re wondering what “strict foreclosure” means in Indiana, look no further than Judge Barker’s opinion in the CIT Group v. United States of America, 2007 U.S.Dist. LEXIS 96180 (S.D. Ind. 2007) (CITOpinion.pdf) case. The opinion provides a straightforward discussion of strict foreclosure, with a federal tax lien twist.

What happened. Lender entered into a purchase money mortgage transaction with borrower. Borrower defaulted, and lender foreclosed. The real estate was sold at a sheriff’s sale, and the lender was the successful bidder. Unbeknownst to the lender, a federal tax lien had been filed against the borrower and had been recorded before the filing of the foreclosure action, albeit after the recording of the lender’s mortgage. Presumably due to inadvertence, the lender failed to name the United States in its foreclosure action, so the tax lien survived the foreclosure case. The lender brought an action for strict foreclosure against the federal government with the goal of cutting off the federal tax lien.

Strict foreclosure, generally. In Indiana, strict foreclosure is defined as “the means by which a party, who acquires title through or after a foreclosure sale (or by deed in lieu of foreclosure), may cut off the interests of any junior lienholders who, for some reason, were not parties to the foreclosure action.” Strict foreclosure is a remedy that operates to cut off the right of junior lienholders to redeem. In CIT, seemingly the lender (senior lien holder) should have been entitled to strict foreclosure because it purchased the property at the sheriff’s sale after foreclosure of the borrower’s/owner’s/mortgagor’s interests.

The rub. Only later did the lender discover that the United States had recorded a tax lien on the property. Even though the lien undoubtedly was junior to the lender’s mortgage lien, the United States argued that its lien should not be extinguished in the strict foreclosure action given its unique, statutorily-protected nature. The statue at issue was 26 U.S.C. § 7425(a) entitled “Discharge of Liens.” The United States argued, based on the statute, that because the government was not joined as a party to the action, the judicial sale should be subject to the federal tax lien. Judge Barker adopted this “defense” and concluded that the federal tax lien should survive and continue to encumber title to the property, no matter who holds title, until it is satisfied. Judge Barker stated “but for the fact that, by federal statute, primacy is given to the federal tax lien, we believe strict foreclosure likely would be available to a mortgagee so as to extinguish any other junior lienholders’ interests.”

Survival. As explained in CIT, strict foreclosure normally provides a remedy to senior lienholders, after the sale of the property at a foreclosure sale, to bring an action for the purposes of clearing title and extinguishing any subordinate liens or interests. But the CIT case illustrates a unique scenario involving the treatment of a federal tax lien. Here is Judge Barker’s explanation of, in essence, the upshot of her decision:

Provided [lender] continues to hold title to the real estate it acquired by Sheriff’s Deed at the foreclosure sale, equity allows it to assert its mortgage lien position as against the United States even though the United States was not named in the foreclosure action. If title to the property is thereafter conveyed to a third-party purchaser, however, that purchaser would no longer be able to assert [lender’s] mortgage lien priority so as to extinguish the federal tax lien. So long as [lender] continues to hold legal title to the real estate, the United States’s lien remains in effect, but inchoate – dormant, as it were – because it is uncollectible against [lender]. Should the property be sold by [lender] to a third party, the government is entitled to execute on its lien and be paid, presumably from the proceeds of the sale.

Do due diligence. This was a bad result for the lender because it acquired the property at the sheriff’s sale subject to a $10,200 lien, which will have to be satisfied when the lender liquidates the property. It is my understanding the result could have been avoided had the United States been made a party to the foreclosure action, although rules and exceptions surrounding federal tax liens could be (and someday will be) the subject of their own blog post. The failure to name the United States in CIT probably stemmed from a defective title insurance policy commitment (title search) or possibly the lender’s failure to order a title search to begin with. Lenders and Indiana counsel should remain mindful to purchase a title insurance policy commitment before filing a complaint, with a “date down” thereafter, which commitment will help identify all parties, with interests in the property, that should be named in the suit. If that was in fact done by the lender in CIT, and if the title company missed the federal tax lien, then the lender may have been indemnified by the title insurance company for the loss associated with the $10,200 tax lien.

NOTE: Legislation in 2012 impacted strict foreclosures in Indiana.