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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. What is the one thing the Hoosier legal status quo hates more than a whistleblower? A lawyer whistleblower taking on the system man to man. That must never be rewarded, must always, always, always be punished, lest the whole rotten tree be felled.

  2. I want to post this to keep this tread alive and hope more of David's former clients might come forward. In my case, this coward of a man represented me from June 2014 for a couple of months before I fired him. I knew something was wrong when he blatantly lied about what he had advised me in my contentious and unfortunate divorce trial. His impact on the proceedings cast a very long shadow and continues to impact me after a lengthy 19 month divorce. I would join a class action suit.

  3. The dispute in LB Indiana regarding lake front property rights is typical of most beach communities along our Great Lakes. Simply put, communication to non owners when visiting the lakefront would be beneficial. The Great Lakes are designated navigational waters (including shorelines). The high-water mark signifies the area one is able to navigate. This means you can walk, run, skip, etc. along the shores. You can't however loiter, camp, sunbath in front of someones property. Informational signs may be helpful to owners and visitors. Our Great Lakes are a treasure that should be enjoyed by all. PS We should all be concerned that the Long Beach, Indiana community is on septic systems.

  4. Dear Fan, let me help you correct the title to your post. "ACLU is [Left] most of the time" will render it accurate. Just google it if you doubt that I am, err, "right" about this: "By the mid-1930s, Roger Nash Baldwin had carved out a well-established reputation as America’s foremost civil libertarian. He was, at the same time, one of the nation’s leading figures in left-of-center circles. Founder and long time director of the American Civil Liberties Union, Baldwin was a firm Popular Fronter who believed that forces on the left side of the political spectrum should unite to ward off the threat posed by right-wing aggressors and to advance progressive causes. Baldwin’s expansive civil liberties perspective, coupled with his determined belief in the need for sweeping socioeconomic change, sometimes resulted in contradictory and controversial pronouncements. That made him something of a lightning rod for those who painted the ACLU with a red brush." http://www.harvardsquarelibrary.org/biographies/roger-baldwin-2/ "[George Soros underwrites the ACLU' which It supports open borders, has rushed to the defense of suspected terrorists and their abettors, and appointed former New Left terrorist Bernardine Dohrn to its Advisory Board." http://www.discoverthenetworks.org/viewSubCategory.asp?id=1237 "The creation of non-profit law firms ushered in an era of progressive public interest firms modeled after already established like the National Association for the Advancement of Colored People ("NAACP") and the American Civil Liberties Union ("ACLU") to advance progressive causes from the environmental protection to consumer advocacy." https://en.wikipedia.org/wiki/Cause_lawyering

  5. Mr. Foltz: Your comment that the ACLU is "one of the most wicked and evil organizations in existence today" clearly shows you have no real understanding of what the ACLU does for Americans. The fact that the state is paying out so much in legal fees to the ACLU is clear evidence the ACLU is doing something right, defending all of us from laws that are unconstitutional. The ACLU is the single largest advocacy group for the US Constitution. Every single citizen of the United States owes some level of debt to the ACLU for defending our rights.

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