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COA reverses in foreclosure dispute

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The Indiana Court of Appeals reversed the denial of a couple’s motion for relief from judgment and request for attorney fees in a foreclosure dispute, finding the couple established the party seeking to foreclose on their property acted in bad faith.

Through a business transaction, John Nowak gave Brett Gibson a promissory note in the amount of $350,000 for stock. To secure payment of the note, Nowak granted Gibson a second mortgage against his home in Indianapolis and against his vacation property in Michigan. Irwin Mortgage Corp. held a prior mortgage on the Indiana real estate. Nowak sold the Indiana property six months later to Thomas and Elizabeth Neu. A title search did not reveal Gibson’s mortgage on the property.

Nowak defaulted on the promissory note to Gibson, so Gibson sought to foreclose on the Indiana and Michigan properties. Gibson obtained a judgment foreclosure in the Michigan case and purchased the property at a public auction. When Gibson filed a motion in 2007 requesting the Indiana trial court grant him a foreclosure judgment against the Neus’ property, he mentioned the Michigan property but did not say that a sheriff’s sale had taken place and he was the winning bidder.

The Indiana trial court eventually entered a judgment of foreclosure against the Indiana property in favor of Gibson for more than $380,000 plus interest, attorney fees and costs. The trial court also denied the Neus’ request for a sheriff’s sale. The Indiana Supreme Court affirmed. The Neus then filed a motion for relief from judgment and for attorney fees, asking the court to deem Gibson’s foreclosure decree fully satisfied because Gibson had reduced his promissory note to judgment in Michigan and bid the full amount of that judgment to acquire his Michigan collateral at a sheriff’s sale.

After deducting the amount of Gibson’s bid to purchase the Michigan real estate, the trial court ordered the balance due on his judgment was $74,716.

In Thomas A. Neu and Elizabeth A. Neu, and Wells Fargo Bank, N.A. v. Brett Gibson, No. 49A02-1109-MF-842, the appellate court found that the proceedings dealing with the Indiana property became fully satisfied when Gibson got the foreclosure judgment on the Michigan property and submitted a full credit bid based on the same promissory note that was the basis of the Indiana foreclosure proceedings. The judges also found the Neus established bad faith when Gibson failed to disclose the Michigan foreclosure judgment and sheriff’s sale. They ordered the trial court determine reasonable attorney fees in favor of the Neus starting from Aug. 8, 2007, the date of the Michigan sheriff’s sale.


 

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  1. A traditional parade of attorneys? Really Evansville? Y'all need to get out more. When is the traditional parade of notaries? Nurses? Sanitation workers? Pole dancers? I gotta wonder, do throngs of admiring citizens gather to laud these marching servants of the constitution? "Show us your billing records!!!" Hoping some video gets posted. Ours is not a narcissistic profession by any chance, is it? Nah .....

  2. My previous comment not an aside at court. I agree with smith. Good call. Just thought posting here a bit on the if it bleeds it leads side. Most attorneys need to think of last lines of story above.

  3. Hello everyone I'm Gina and I'm here for the exact same thing you are. I have the wonderful joy of waking up every morning to my heart being pulled out and sheer terror of what DCS is going to Throw at me and my family today.Let me start from the !bebeginning.My daughter lost all rights to her 3beautiful children due to Severe mental issues she no longer lives in our state and has cut all ties.DCS led her to belive that once she done signed over her right the babies would be with their family. We have faught screamed begged and anything else we could possibly due I hired a lawyer five grand down the drain.You know all I want is my babies home.I've done everything they have even asked me to do.Now their saying I can't see my grandchildren cause I'M on a prescription for paipain.I have a very rare blood disease it causes cellulitis a form of blood poisoning to stay dormant in my tissues and nervous system it also causes a ,blood clotting disorder.even with the two blood thinners I'm on I still Continue to develop them them also.DCS knows about my illness and still they refuse to let me see my grandchildren. I Love and miss them so much Please can anyone help Us my grandchildren and I they should be worrying about what toy there going to play with but instead there worrying about if there ever coming home again.THANK YOU DCS FOR ALL YOU'VE DONE. ( And if anyone at all has any ideals or knows who can help. Please contact (765)960~5096.only serious callers

  4. He must be a Rethuglican, for if from the other side of the aisle such acts would be merely personal and thus not something that attaches to his professional life. AND ... gotta love this ... oh, and on top of talking dirty on the phone, he also, as an aside, guess we should mention, might be important, not sure, but .... "In addition to these allegations, Keaton was accused of failing to file an appeal after he collected advance payment from a client seeking to challenge a ruling that the client repay benefits because of unreported income." rimshot

  5. I am not a fan of some of the 8.4 discipline we have seen for private conduct-- but this was so egregious and abusive and had so many points of bad conduct relates to the law and the lawyer's status as a lawyer that it is clearly a proper and just disbarment. A truly despicable account of bad acts showing unfit character to practice law. I applaud the outcome.

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