This follows-up my post: Indiana’s Mortgage Release Obligations. Today’s post relates, not to real property mortgage liens, but rather to personal property Uniform Commercial Code liens (security interests). Duty to terminate. Unlike mortgages, the applicable Indiana statutes do not automatically...      Related Stories Damages Under Indiana’s UCC For Breaching The Peace: Treatment Of Deficiency Liability under Indiana’s Uniform Commercial Code For Breaching The Peace   ..read more

Duty to release. Indiana’s General Assembly has made it clear that lenders/mortgagees must release their mortgages when the underlying debt has been paid in full, including interest. First, Indiana Code 32-29-1-6 provides: After a mortgagee [lender] of property whose mortgage...      Related Stories Lender Entitled To Full Amount Of Insurance Proceeds From Fire Loss: Borrower Responsible For Own Attorney Fees Indiana Court Holds That Contract For Purchase Of Loan Was Not Breached Criminal Fraud Arising Out of Civil Title/Foreclosure Disputes   ..read more

Lesson. In Indiana auction sales of goods, the auction is final by the fall of the auctioneer’s hammer or other customary manner. Case cite. Terrault v. Scheere, 200 N.E.3d 490 (Ind. Ct. App. 2022) Legal issue. Whether a second auction...      Related Stories Apparent Windfall Not Enough to Set Aside Federal Foreclosure Sale or Negate Deficiency Judgment Federal Foreclosure Sale Upheld – 15% Of Fair Market Value Did Not “Shock The Conscience” Lender Permitted To Praecipe For Sheriff’s Sale 12 Years Post-Judgment   ..read more

Lesson. Judgment debtors (defendants) concerned about liability for a post-sheriff’s sale deficiency judgment should closely monitor the sale process and, if possible, take action to maximize the value of the real estate. Case cite. United States v. Fozzard, 2022 U.S....      Related Stories Federal Foreclosure Sale Upheld – 15% Of Fair Market Value Did Not “Shock The Conscience” Lender Permitted To Praecipe For Sheriff’s Sale 12 Years Post-Judgment Memo To Mortgage Lenders/Servicers/Counsel: Stop Naming County Treasurers In Indiana Mortgage Foreclosure Cases   ..read more

Lesson. In Indiana, foreclosure sales are not designed, nor required, to net the fair market value of the real estate. Case cite. United States v. Fozzard 2022 U.S. Dist. LEXIS 226668 (N.D. Ind. Dec. 16 2022) Legal issue. Whether a...      Related Stories Lender Permitted To Praecipe For Sheriff’s Sale 12 Years Post-Judgment Memo To Mortgage Lenders/Servicers/Counsel: Stop Naming County Treasurers In Indiana Mortgage Foreclosure Cases Indiana Receiver Sales: Why ... Why Not?   ..read more

Lesson. An arbitrary “partial” award of attorney fees to a lender may be reversible error. Trial courts must assess what is a reasonable amount of attorney’s fees, taking into account all services rendered up to the entry of such an...      Related Stories An Award Of Unpaid Interest And Late Fees Due Under An Absolute Guaranty Is Not Discretionary Indiana Court of Appeals Denies Guarantor’s “Material Alteration” Defense Before You File, Review For “Personally Identifiable Information” and Redact: Indiana Overview   ..read more

Lesson. Contract language is a court’s road map for calculating a lender’s damages, including accrued interest and late fees, which are not discretionary. Case cite. Shoaff v. First Merchs. Bank, 2022 Ind. App. LEXIS 395 (Ind. Ct. App. 2022) Legal...      Related Stories Indiana Court of Appeals Denies Guarantor’s “Material Alteration” Defense Forged Power Of Attorney In Set Of Loan Documents Did Not Render Personal Guaranty Unenforceable   ..read more

Lesson. While it still is advisable for lenders to have guarantors sign off on any loan modifications, such paperwork may not always be required. Indiana courts will look closely at both the nature of the alterations and any waiver/consent language...      Related Stories Forged Power Of Attorney In Set Of Loan Documents Did Not Render Personal Guaranty Unenforceable   ..read more

Quick post today to start the New Year. My routine case law search uncovered a criminal case related to some procedural technicalities that admittedly have no relevance to my blog: United States v. Yoder, No. 3:17-CR-30 JD, 2022 U.S. Dist....      Related Stories Lender Entitled To Full Amount Of Insurance Proceeds From Fire Loss: Borrower Responsible For Own Attorney Fees ATTOM: U.S. Foreclosure Activity Sets Post Pandemic Highs in First Quarter of 2022 Upcoming Changes To Indiana Sheriff's Sales   ..read more

Lesson. A BK debtor’s civil claims for damages remain exclusively with the BK trustee. Case cite. Capalla v. Best, 198 N.E.3d 26 (Ind. Ct. App. 2022). Legal issue. Whether a state court lawsuit for damages should be dismissed because the...      Related Stories Reinstated Federal Tax Liens On Property Owned Pre-Bankruptcy   ..read more