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Appeals court: Requests for modification don’t nullify foreclosure

March 10, 2014

The Indiana Court of Appeals affirmed summary judgment in favor of a mortgage servicer despite the property owners’ attempts at modifying the mortgage.

Plaintiffs Jeff and Renee Ewing did not dispute evidence showing they had defaulted.

“The Ewings claim their designated evidence, consisting only of Jeff’s affidavit outlining the Ewings’ past attempts to modify the mortgage loan at issue, establishes a genuine issue of material fact,” Judge Cale Bradford wrote for the panel. “Because Jeff’s affidavit does not dispute the alleged default or otherwise support an ascertainable defense to U.S. Bank’s foreclosure, we conclude that summary judgment was appropriate.”

The Ewings also argued that their loan servicer failed to act in good faith and that settlement discussions were governed by the Indiana Alternative Dispute Resolution Rules. But the panel found those rules do not govern settlement discussions.

“Because the A.D.R. Rules did not govern the parties’ settlement discussions, the trial court did not err in dismissing the Ewings’ supplemental complaint for failure to state a claim,” Bradford wrote.

The case is Jeff L. Ewing and Renee Ewing, Household Finance Corporation III v. U.S. Bank, N.A., as Trustee for the Structured Asset Securities Corp., Series 2005-GEL4, 50A03-1308-MF-327.


 

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