Foreclosures

Indiana Foreclosure 

We offer complete legal representation for clients with mortgage, real property sale contracts, judgments, construction, mechanic’s and other liens against real property. From demand, pre-suit workouts, filing of a lawsuit, appointment of a receiver, all the way through Sheriff’s sale and eviction if necessary, we can assist every step of the way.

Complying Carefully with Foreclosure Law 

Indiana foreclosure law requires that certain procedures be followed precisely in order to properly effectuate a real property foreclosure.  Fail to follow these procedures can result in a defective attempt to gain the property, and, in some instances, may give rise against a claimant seeking foreclosure.

As Indiana foreclosure lawyers, we have foreclosed upon thousands of properties on behalf of our clients.  We are not only experienced in fully complying with all required procedures, we have also developed internal foreclosure processes to minimize client cost and expedite the foreclosure process.

 

Deed In Lieu of Foreclosure

In some cases, such as a home that is about to be foreclosed upon, the debtor may be willing to provide a Deed in Lieu of Foreclosure, whereby the title to the property is legally transferred to the lender (such as the bank holding the mortgage).  We assist in representing lenders in these circumstances by advising them as to whether this option makes sense, and if it does, preparing the necessary documentation for title transfer.

A Deed in Lieu of Foreclosure may not make sense in all circumstances, such as if there are other known or potential lienholders.  If other lienholders exist (or may exist), it may be preferable to undertake a judicial foreclosure to make sure that other lien interests are terminated.  We help creditor clients determine what approach will make sense based upon the facts of a case.

Frequently Asked Questions

Do we need to file suit to foreclose our mortgage?

Yes. Indiana requires judicial foreclosure of all mortgages; meaning a lawsuit must be filed and judgment obtained before the real estate can be sold at Sheriff’s sale. In some cases, the property can be sold by private auctioneer instead of the sheriff, but there still must be a judgment and decree of foreclosure before the sale can be requested by the creditor.

What risks are associated with a Deed in Lieu of Foreclosure?

A Deed in Lieu of Foreclosure will not extinguish junior liens on the real estate. Therefore, if junior liens exist on the real estate, the lender will still need to go through the foreclosure process to have those liens extinguished. In addition, the Deed must contain “anti-merger language” to ensure that the lender’s mortgage does not merge into the lender’s ownership of the real estate thereby inadvertently advancing junior liens ahead of the lender’s mortgage. The lender will want to obtain an appraisal on the real estate to make sure that the value of the real estate and may want to negotiate whether the Deed in Lieu is in satisfaction of the debt or if a deficiency balance should remain after the transaction.  In the case of residential property, accepting a Deed in Lieu will be deemed to satisfy the debt unless a separate agreement for deficiency is signed.

Can a judgment lien be foreclosed like a mortgage?

Yes. A judgment docketed in the county where the real estate is located creates a lien on real estate owned or acquired by the judgment debtor in that county for up to ten (10) years.

A title search must be obtained and reviewed carefully to determine the existence and priority of the judgment lien before foreclosing, and the value of the real estate must also be ascertained to determine if foreclosure is viable and worthwhile for the creditor.

Do we have to bid the full dollar amount of our judgment at the Sheriff’s sale?

No, the creditor can bid less than the full amount of the judgment, leaving a deficiency balance to be collected from the borrower. Our firm handles a significant amount of collections and can provide an opinion on whether further collection efforts are advisable or allowed. If the debt has been discharged in bankruptcy, for example, then the creditor will be limited to pursuing the real estate.

Does the creditor have to pay cash to bid at the Sheriff’s sale?

The foreclosing creditor may credit bid from the amount of its judgment and does not need to bring cash to the sale, however the costs of sale, publication expenses, and all past due property taxes must be paid before the sheriff will proceed with a sale. The amounts paid for property taxes may typically be added to the amount of the judgment, and if a third-party is the successfully bidder then the sale and publication costs will be deducted from that bid amount and/or returned to the foreclosing creditor.

If real estate is sold on land contract, must the seller foreclose on the contract like a mortgage?

Usually, the seller is required to file suit to foreclose like a mortgage lender. However, under certain limited circumstances, a real estate contract can be treated like a lease and the creditor may be able to pursue eviction of the defaulting purchaser rather than foreclosure. We can assist in determining which is appropriate for you.

If the borrowers or tenants remain in possession of the foreclosed real estate, how can they be removed?

The county Sheriff’s assistance can be obtained in evicting those wrongfully in possession. State and federal law may place some restrictions on the ability of a purchaser at sheriff sale to evict “bona fide” tenants, meaning that they have a lease requiring them to pay rent and are not related to the prior owner. We would be glad to discuss the options available and requirements placed upon a foreclosing creditor in those instances.

Once we file suit, how quickly can we schedule the real estate for Sheriff’s sale?

Even if judgment is obtained immediately, sale cannot be requested until at least 90 days have passed from when the lawsuit is filed. Sheriff sales are typically set 60-90 days from date the request for sale is filed, and cannot be held until at least 30 days after the first publication of the notice of sale.

 

 

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