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COA: Mortgage lien holder has priority

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The Indiana Court of Appeals determined today that two contractors with mechanic's liens did not have priority over the mortgage lien held by the bank in a foreclosure action, discussing a law in a ruling for only the second time since it was enacted in 1999.

At issue in Harold McComb & Son, Inc. and American Renovations of Indiana, Inc. v. JPMorgan Chase Bank, NA, No. 02A04-0802-CV-60, is whether Harold McComb & Son and American Renovations of Indiana, who held mechanic's liens on work they did as general contractors on a property JPMorgan Chase foreclosed on, should have priority over Chase's mortgage lien.

In a consolidated action, the trial court granted partial summary judgment to Chase, finding Harold McComb had no legal standing to challenge Chase's foreclosure action because it wasn't party to the construction loan agreement or the note between Chase and the commercial property owner.

But the general contractors believed the trial court erred in its prioritizing of the liens of the parties, granting Chase priority over the mechanic's liens.

The Court of Appeals examined Indiana Code Section 32-28-3-5(d), which the General Assembly passed in 1999 to fill a statutory gap identified by the Indiana Supreme Court in 1910 regarding mechanic's liens. The appellate court looked to Judge John Sharpnack's dissent in Provident Bank v. Tri-County Southside Asphalt, Inc., 804 N.E.2d 161, 163 (Ind. Ct. App. 2004) - which is the only other time the Court of Appeals has discussed that section of Indiana Code - and determined the judge's discussion of the section was correct, wrote Judge Patricia Riley.

Because the statutes in existence when Ward v. Yarnelle, 173 Ind. 535, 91 N.E. 7 (1910), was decided didn't address the lien priority between a mortgage executed to raise funds for construction of improvements on a property and the mechanic's liens of those who provided the labor and supplies, the General Assembly adopted Section (d) to say that when the funds from the loan secured by the mortgage are for the project that gave rise to the mechanic's lien, then the mortgage lien has priority over the mechanic's liens recorded after the mortgage, wrote Judge Riley citing Judge Sharpnack's dissent.

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  1. It appears the police and prosecutors are allowed to change the rules halfway through the game to suit themselves. I am surprised that the congress has not yet eliminated the right to a trial in cases involving any type of forensic evidence. That would suit their foolish law and order police state views. I say we eliminate the statute of limitations for crimes committed by members of congress and other government employees. Of course they would never do that. They are all corrupt cowards!!!

  2. Poor Judge Brown probably thought that by slavishly serving the godz of the age her violations of 18th century concepts like due process and the rule of law would be overlooked. Mayhaps she was merely a Judge ahead of her time?

  3. in a lawyer discipline case Judge Brown, now removed, was presiding over a hearing about a lawyer accused of the supposedly heinous ethical violation of saying the words "Illegal immigrant." (IN re Barker) http://www.in.gov/judiciary/files/order-discipline-2013-55S00-1008-DI-429.pdf .... I wonder if when we compare the egregious violations of due process by Judge Brown, to her chiding of another lawyer for politically incorrectness, if there are any conclusions to be drawn about what kind of person, what kind of judge, what kind of apparatchik, is busy implementing the agenda of political correctness and making off-limits legit advocacy about an adverse party in a suit whose illegal alien status is relevant? I am just asking the question, the reader can make own conclsuion. Oh wait-- did I use the wrong adjective-- let me rephrase that, um undocumented alien?

  4. of course the bigger questions of whether or not the people want to pay for ANY bussing is off limits, due to the Supreme Court protecting the people from DEMOCRACY. Several decades hence from desegregation and bussing plans and we STILL need to be taking all this taxpayer money to combat mostly-imagined "discrimination" in the most obviously failed social program of the postwar period.

  5. You can put your photos anywhere you like... When someone steals it they know it doesn't belong to them. And, a man getting a divorce is automatically not a nice guy...? That's ridiculous. Since when is need of money a conflict of interest? That would mean that no one should have a job unless they are already financially solvent without a job... A photographer is also under no obligation to use a watermark (again, people know when a photo doesn't belong to them) or provide contact information. Hey, he didn't make it easy for me to pay him so I'll just take it! Well heck, might as well walk out of the grocery store with a cart full of food because the lines are too long and you don't find that convenient. "Only in Indiana." Oh, now you're passing judgement on an entire state... What state do you live in? I need to characterize everyone in your state as ignorant and opinionated. And the final bit of ignorance; assuming a photo anyone would want is lucky and then how much does your camera have to cost to make it a good photo, in your obviously relevant opinion?

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