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COA rules on service of summons issues

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The Indiana Court of Appeals addressed service of summons issues in foreclosure actions in two decisions today, finding the servicing parties needed to do more to ensure the recipients actually get notice.

In Phillip Yoder, et al. v. Colonial National Mortgage, No. 32A01-0908-CV-393, the appellate judges reversed the denial of Boyd Gohl's Indiana Trial Rule 60(B)(6) motion to set aside default judgment entered against him in a foreclosure action because Gohl wasn't properly served with notice. Gohl held a second mortgage on property of Phillip and Megan Yoder and Colonial attempted to foreclose on a note secured by a different mortgage executed by the couple.

Gohl's mortgage indicated he lived in LaGrange County but didn't provide an address. The judges noted that the applicable statute has since been amended to require a mailing address in order to record the conveyance of real property.

Colonial used one people-search tool to local Gohl and came up with a B. Gohl in southern Indiana. Summons sent to the southern Indiana address came back undeliverable. Colonial filed a praecipe for service by publication against the Yoders and included Gohl as a defendant.

Gohl filed his motion arguing the judgment against him was void for lack of service of process. The Court of Appeals judges agreed and reversed, finding the trial court didn't have personal jurisdiction over Gohl when it rendered the default judgment against him. Colonial failed to specifically comply with T.R. 4.13 as it pertained to effecting service of process of publication against Gohl, and it didn't perform a diligent search to determine Gohl's whereabouts. The company relied on one search that turned up a B. Gohl on the opposite end of the state from what county was listed on the mortgage. The Court of Appeals remanded with instructions for the trial court to grant Gohl's motion.

In Marilyn L. Elliott and Michael S. Elliott v. JPMorgan Chase Bank, et al., No. 30A01-0907-CV-356, the appellate judges reversed the denial of the Elliotts' motion for relief from judgment on a foreclosure complaint of JPMorgan Chase, which also included a failure to properly serve notice to the pair.

In what Chief Judge John Baker described as "Kafkaesque," the Elliotts learned default judgment had been entered against them to foreclose on their home and it was sold in a sheriff's sale, but they never received notice. They contacted the Indiana Attorney General, who referred them to the Comptroller of the Currency. It was discovered Chase was unaware of the foreclosure proceedings and found the mortgage was paid in full several years earlier. It was Chase's loan servicer, Ocwen Bank, that initiated the foreclosure proceedings because their records showed more than $85,000 was due on the mortgage.

The Elliotts sought relief from the judgment pursuant to T.R. 60(B) because they believed because Chase had released the mortgage and denied knowledge of the foreclosure action, the underlying judgment was void. The trial court denied their motion.

The fact Chase showed the mortgage fully paid and executed and recorded a full satisfaction of the mortgage allowed the Elliotts to implicitly aver that an accord and satisfaction had taken place, wrote the chief judge. In addition, the pair filed the motion within a reasonable time. The appellate court reversed and remanded for retrial.

The service of summons on the Elliotts didn't follow T.R. 4.1 because the sheriff who served a copy of the foreclosure action at the house didn't also send a copy by first-class mail. The appellate court didn't rule on the issue of whether it was improper because it had found in the Elliotts' favor based on other reasoning. But the judges did caution practitioners, trial courts, and law enforcement personnel to be mindful of the requirements of Trial Rule 4.1(B).

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  1. Unfortunately, the court doesn't understand the difference between ebidta and adjusted ebidta as they clearly got the ruling wrong based on their misunderstanding

  2. A common refrain in the comments on this website comes from people who cannot locate attorneys willing put justice over retainers. At the same time the judiciary threatens to make pro bono work mandatory, seemingly noting the same concern. But what happens to attorneys who have the chumptzah to threatened the legal status quo in Indiana? Ask Gary Welch, ask Paul Ogden, ask me. Speak truth to power, suffer horrendously accordingly. No wonder Hoosier attorneys who want to keep in good graces merely chase the dollars ... the powers that be have no concerns as to those who are ever for sale to the highest bidder ... for those even willing to compromise for $$$ never allow either justice or constitutionality to cause them to stand up to injustice or unconstitutionality. And the bad apples in the Hoosier barrel, like this one, just keep rotting.

  3. I am one of Steele's victims and was taken for $6,000. I want my money back due to him doing nothing for me. I filed for divorce after a 16 year marriage and lost everything. My kids, my home, cars, money, pension. Every attorney I have talked to is not willing to help me. What can I do? I was told i can file a civil suit but you have to have all of Steelers info that I don't have. Of someone can please help me or tell me what info I need would be great.

  4. It would appear that news breaking on Drudge from the Hoosier state (link below) ties back to this Hoosier story from the beginning of the recent police disrespect period .... MCBA president Cassandra Bentley McNair issued the statement on behalf of the association Dec. 1. The association said it was “saddened and disappointed” by the decision not to indict Ferguson police officer Darren Wilson for shooting Michael Brown. “The MCBA does not believe this was a just outcome to this process, and is disheartened that the system we as lawyers are intended to uphold failed the African-American community in such a way,” the association stated. “This situation is not just about the death of Michael Brown, but the thousands of other African-Americans who are disproportionately targeted and killed by police officers.” http://www.thestarpress.com/story/news/local/2016/07/18/hate-cops-sign-prompts-controversy/87242664/

  5. What form or who do I talk to about a d felony which I hear is classified as a 6 now? Who do I talk to. About to get my degree and I need this to go away it's been over 7 years if that helps.

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