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. This is ridiculous. Most JDs not practicing law don't know squat to justify calling themselves a lawyer. Maybe they should try visiting the inside of a courtroom before they go around calling themselves lawyers. This kind of promotional BS just increases the volume of people with JDs that are underqualified thereby dragging all the rest of us down likewise.

  2. I think it is safe to say that those Hoosier's with the most confidence in the Indiana judicial system are those Hoosier's who have never had the displeasure of dealing with the Hoosier court system.

  3. I have an open CHINS case I failed a urine screen I have since got clean completed IOP classes now in after care passed home inspection my x sister in law has my children I still don't even have unsupervised when I have been clean for over 4 months my x sister wants to keep the lids for good n has my case working with her I just discovered n have proof that at one of my hearing dcs case worker stated in court to the judge that a screen was dirty which caused me not to have unsupervised this was at the beginning two weeks after my initial screen I thought the weed could have still been in my system was upset because they were suppose to check levels n see if it was going down since this was only a few weeks after initial instead they said dirty I recently requested all of my screens from redwood because I take prescriptions that will show up n I was having my doctor look at levels to verify that matched what I was prescripted because dcs case worker accused me of abuseing when I got my screens I found out that screen I took that dcs case worker stated in court to judge that caused me to not get granted unsupervised was actually negative what can I do about this this is a serious issue saying a parent failed a screen in court to judge when they didn't please advise

  4. I have a degree at law, recent MS in regulatory studies. Licensed in KS, admitted b4 S& 7th circuit, but not to Indiana bar due to political correctness. Blacklisted, nearly unemployable due to hostile state action. Big Idea: Headwinds can overcome, esp for those not within the contours of the bell curve, the Lego Movie happiness set forth above. That said, even without the blacklisting for holding ideas unacceptable to the Glorious State, I think the idea presented above that a law degree open many vistas other than being a galley slave to elitist lawyers is pretty much laughable. (Did the law professors of Indiana pay for this to be published?)

  5. Joe, you might want to do some reading on the fate of Hoosier whistleblowers before you get your expectations raised up.