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Court can’t modify mortgage without both parties’ consent

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A trial court doesn’t have the authority to modify a mortgage agreement without the consent of both parties participating in a settlement conference if they don’t agree to the terms of a foreclosure prevention agreement, the Indiana Court of Appeals ruled.

In Nationstar Mortgage, LLC v. Jeffrey A. Curatolo, et al., 45A03-1211-MF-469, Nationstar Mortgage LLC appealed the trial court order modifying its mortgage agreement with Jeffrey Curatolo. Curatolo executed the $245,000 mortgage in 2006, which was assigned to Nationstar in 2010. It filed its complaint to foreclosure in September 2011.

The parties entered into a foreclosure settlement conference, as allowed under I.C. 32-30-10.5, in which Curatolo successfully completed a three-month plan set up by Nationstar. But the mortgage company wanted new financial documents because of a discrepancy in Curatolo’s stated income and then sought to have Curatolo pay an additional $300 for a three-month period.

The trial court deemed these actions as a bad faith maneuver and modified the mortgage agreement.

“[N]owhere does the statute give a trial court the authority to enter a final order modifying the mortgage agreement,” Chief Judge Margret Robb wrote. “The fact that the legislature itself could not have impaired the contractual obligations of the parties lends further support to our conclusion it did not intend to give the courts that authority. Because the mortgage agreement was based upon the parties’ mutual assent, they must both agree to any permanent modification. Nor is this a case where the court was merely interpreting or enforcing a previously entered into agreement.”

Curatolo argued that the modification was a proper sanction for Nationstar’s misconduct.

“And while the trial court found that Nationstar’s behavior evidenced bad faith, we cannot agree that requesting additional documentation in response to a change of income or requesting an additional $300 per month from Curatolo was bad faith. Curatolo was not entitled to a final foreclosure prevention agreement with terms to his liking,” Robb wrote.

The COA ordered more proceedings on the matter consistent with this opinion. Robb noted that this decision should not be read to limit the ability of the parties to enter into a mutually agreed upon foreclosure prevention agreement. In that case, the trial court may dismiss or stay the foreclosure as provided by I.C. 32-30-10.5-10(e).  

 

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  1. by the time anybody gets to such files they will probably have been totally vacuumed anyways. they're pros at this at universities. anything to protect their incomes. Still, a laudable attempt. Let's go for throat though: how about the idea of unionizing football college football players so they can get a fair shake for their work? then if one of the players is a pain in the neck cut them loose instead of protecting them. if that kills the big programs, great, what do they have to do with learning anyways? nada. just another way for universities to rake in the billions even as they skate from paying taxes with their bogus "nonprofit" status.

  2. Um the affidavit from the lawyer is admissible, competent evidence of reasonableness itself. And anybody who had done law work in small claims court would not have blinked at that modest fee. Where do judges come up with this stuff? Somebody is showing a lack of experience and it wasn't the lawyers

  3. My children were taken away a year ago due to drugs, and u struggled to get things on track, and now that I have been passing drug screens for almost 6 months now and not missing visits they have already filed to take my rights away. I need help.....I can't loose my babies. Plz feel free to call if u can help. Sarah at 765-865-7589

  4. Females now rule over every appellate court in Indiana, and from the federal southern district, as well as at the head of many judicial agencies. Give me a break, ladies! Can we men organize guy-only clubs to tell our sob stories about being too sexy for our shirts and not being picked for appellate court openings? Nope, that would be sexist! Ah modernity, such a ball of confusion. https://www.youtube.com/watch?v=QmRsWdK0PRI

  5. LOL thanks Jennifer, thanks to me for reading, but not reading closely enough! I thought about it after posting and realized such is just what was reported. My bad. NOW ... how about reporting who the attorneys were raking in the Purdue alum dollars?

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