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COA: Wife is liable for mortgages

January 27, 2009

The Indiana Court of Appeals affirmed a judgment against a woman who denied signing for mortgages that are now in foreclosure; however, the judges disagreed whether the mortgage holder proved default under the terms of the notes.

This is the second appeal in the matter of Alicia Bonilla v. Commercial Services of Perry Inc., et al., No. 45A03-0803-CV-105. Initially, a trial court granted Alicia Bonilla's motion for judgment on the evidence as to whether she was liable for her deceased husband's two mortgages. Bonilla's signature was on both of the mortgages, but she denied signing. The Court of Appeals reversed and remanded for a new trial.

The trial court admitted samples of Bonilla's handwriting and found a difference between the samples and the mortgage documents, but still ruled in favor of Commercial Services of Perry, which was a successor in interest to the original mortgages signed in 1984 and 1985. A judgment was entered against Bonilla for more than $540,000 on both loans.

Under Indiana Code, Bonilla's notarized signatures on the two mortgages are presumptive evidence that she signed them, wrote Chief Judge John Baker. Once she presented rebutting evidence that she signed the documents, the presumption effectively became an inference, which the trial court could weigh against her testimony and handwriting samples, the judge continued. The trial court concluded her evidence was inadequate to rebut the presumption and the Court of Appeals declined to address Bonilla's argument the trial court erred because that would require reweighing the evidence and addressing credibility.

Chief Judge Baker and Judge Paul Mathias affirmed the award of damages against Bonilla even though Perry didn't introduce the actual promissory notes underlying the mortgages. Citing the Indiana Supreme Court's holding in Yanoff v. Muncy, 688 N.E.2d 1259 (Ind. 1997), and the previous appellate ruling in this matter, the majority held Perry isn't required to introduce the promissory notes into evidence to recover the debt. In addition, the record does contain evidence establishing the terms, dates, other information on the two mortgages, and indicates Bonilla conceded no payments had been made on either mortgage.

Judge Elaine Brown dissented from the majority in regards to the damages, writing that evidence on the essential terms of the notes - term payment requirements, when the notes were due - was missing.

"Although the majority infers default because Bonilla testified that no payments had been made, without the terms of the notes and the payment requirements, I am unable to agree that the evidence presented proved that the loans are in default," she wrote.

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