Lesson. Personal guaranties come in all shapes and sizes. The document need only evidence a conditional promise to answer for the debt of another upon the debtor/borrower’s failure to pay. Case cite. Innovative Water Consulting LLC v. SA Hosp. Acquisition
Indiana Commercial Foreclosure Law
Since 2006, dedicated to Indiana mortgage foreclosure, lien enforcement, title and servicing issues.
The Indiana Commercial Foreclosure Law blog, published by Dinsmore & Shohl LLP, focuses on legal issues related to commercial foreclosure and real estate finance in Indiana. It covers topics such as personal guaranty disputes, tenant by the entirety protections, land contract forfeiture versus foreclosure, and the impact of amendments on guaranty obligations. The blog analyzes relevant Indiana case law and statutory provisions, providing practical insights for parties involved in loan defaults, real estate transactions, and creditor-debtor disputes. It also addresses procedural and substantive aspects of foreclosure litigation and related remedies under Indiana law.
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Indiana’s UCC Financing Statement Termination Obligations
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…
Indiana’s Mortgage Release Obligations
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 has been…
Replevin Action To Repossess Model Of Picasso Sculpture Succeeds
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 of…
Apparent Windfall Not Enough to Set Aside Federal Foreclosure Sale or Negate Deficiency Judgment
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. Dist.
Federal Foreclosure Sale Upheld – 15% Of Fair Market Value Did Not “Shock The Conscience”
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 foreclosure…
Indiana Court Discusses Test For Recovery Of Attorney’s Fees In Action Against Guarantor
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…
An Award Of Unpaid Interest And Late Fees Due Under An Absolute Guaranty Is Not Discretionary
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…
Indiana Court of Appeals Denies Guarantor’s “Material Alteration” Defense
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…
Indiana Court Holds That Contract For Purchase Of Loan Was Not Breached
Lesson. When dealing with the purchase or sale of a loan, be mindful that the borrower could pay off the loan before closing, so consider including language in the agreement to account for that contingency. Case cite. Singleton St. Pierre…