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Court orders more proceedings in foreclosure action

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An Elkhart County man successfully convinced the Indiana Court of Appeals to reverse the denial of his motion to set aside default judgment in a foreclosure action. The man argued he relied on information from the bank that he could proceed with a short sale and the foreclosure proceeding would be put on hold.

Bank of America N.A. attempted to foreclose on Michael H. Kretschmer’s property in Elkhart County in 2012. When Kretschmer didn’t reply to the complaint, the trial court awarded default judgment to the bank. When Kretschmer learned of the judgment, he filed a motion to set it aside, alleging that Bank of America had agreed to a short sale of the real estate. He said he spoke with someone in the bank’s counsel’s office who told him, “not to worry about anything and to continue with the short sale.” Based on that conversation, Kretschmer did not hire an attorney or appear in court.

The matter went to a settlement conference, in which the parties agreed to stay the foreclosure pending Kretschmer’s submission of a possible short sale offer and the bank’s review of the offer. But the bank claimed it never received any offers and the trial court later ruled in favor of the bank on Kretschmer’s motion to set aside the default judgment.

But the trial court erred by denying his motion, the Court of Appeals ruled Thursday in Michael H. Kretschmer v. Bank of America, N.A., 20A05-1312-MF-600. The judges found that his failure to timely answer BANA’s complaint was the result of excusable neglect under Trial Rule 60(B)(1) and (3) due to the information provided by the bank’s counsel’s office.

Kretschmer claimed that he presented two short sale offers to the bank, but the bank failed to consider the offers. If true, these allegations could show that the bank engaged in contractual sabotage or other acts of bad faith, the appeals court held.

“If Kretschmer’s assertions that BANA promised to allow him more time to attempt to obtain an acceptable short sale offer are credited, then it was incumbent upon BANA to give due consideration to any short sale offers Kretschmer submitted for approval. Finally, we observe that Ind. Code § 24-4.4-2-201 provides in part that a creditor who fails to respond to a short sale offer may be liable in an action under 12 U.S.C. 2605(f), and the fact that Kretschmer may be entitled to damages under certain circumstances supports the conclusion that, if the case were tried on the merits, a different result may be reached,” Judge Elaine Brown wrote.

The case is remanded for further proceedings.
 

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  1. Just an aside, but regardless of the outcome, I 'm proud of Judge William Hughes. He was the original magistrate on the Home place issue. He ruled for Home Place, and was primaried by Brainard for it. Their tool Poindexter failed to unseat Hughes, who won support for his honesty and courage throughout the county, and he was reelected Judge of Hamilton County's Superior Court. You can still stand for something and survive. Thanks, Judge Hughes!

  2. CCHP's real accomplishment is the 2015 law signed by Gov Pence that basically outlaws any annexation that is forced where a 65% majority of landowners in the affected area disagree. Regardless of whether HP wins or loses, the citizens of Indiana will not have another fiasco like this. The law Gov Pence signed is a direct result of this malgovernance.

  3. I gave tempparry guardship to a friend of my granddaughter in 2012. I went to prison. I had custody. My daughter went to prison to. We are out. My daughter gave me custody but can get her back. She was not order to give me custody . but now we want granddaughter back from friend. She's 14 now. What rights do we have

  4. This sure is not what most who value good governance consider the Rule of Law to entail: "In a letter dated March 2, which Brizzi forwarded to IBJ, the commission dismissed the grievance “on grounds that there is not reasonable cause to believe that you are guilty of misconduct.”" Yet two month later reasonable cause does exist? (Or is the commission forging ahead, the need for reasonable belief be damned? -- A seeming violation of the Rules of Profession Ethics on the part of the commission) Could the rule of law theory cause one to believe that an explanation is in order? Could it be that Hoosier attorneys live under Imperial Law (which is also a t-word that rhymes with infamy) in which the Platonic guardians can do no wrong and never owe the plebeian class any explanation for their powerful actions. (Might makes it right?) Could this be a case of politics directing the commission, as celebrated IU Mauer Professor (the late) Patrick Baude warned was happening 20 years ago in his controversial (whisteblowing) ethics lecture on a quite similar topic: http://www.repository.law.indiana.edu/cgi/viewcontent.cgi?article=1498&context=ilj

  5. I have a case presently pending cert review before the SCOTUS that reveals just how Indiana regulates the bar. I have been denied licensure for life for holding the wrong views and questioning the grand inquisitors as to their duties as to state and federal constitutional due process. True story: https://www.scribd.com/doc/299040839/2016Petitionforcert-to-SCOTUS Shorter, Amici brief serving to frame issue as misuse of govt licensure: https://www.scribd.com/doc/312841269/Thomas-More-Society-Amicus-Brown-v-Ind-Bd-of-Law-Examiners

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