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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. Indianapolis employers harassment among minorities AFRICAN Americans needs to be discussed the metro Indianapolis area is horrible when it comes to harassing African American employees especially in the local healthcare facilities. Racially profiling in the workplace is an major issue. Please make it better because I'm many civil rights leaders would come here and justify that Indiana is a state the WORKS only applies to Caucasian Americans especially in Hamilton county. Indiana targets African Americans in the workplace so when governor pence is trying to convince people to vote for him this would be awesome publicity for the Presidency Elections.

  2. Wishing Mary Willis only God's best, and superhuman strength, as she attempts to right a ship that too often strays far off course. May she never suffer this personal affect, as some do who attempt to change a broken system: https://www.youtube.com/watch?v=QojajMsd2nE

  3. Indiana's seatbelt law is not punishable as a crime. It is an infraction. Apparently some of our Circuit judges have deemed settled law inapplicable if it fails to fit their litmus test of political correctness. Extrapolating to redefine terms of behavior in a violation of immigration law to the entire body of criminal law leaves a smorgasbord of opportunity for judicial mischief.

  4. I wonder if $10 diversions for failure to wear seat belts are considered moral turpitude in federal immigration law like they are under Indiana law? Anyone know?

  5. What a fine article, thank you! I can testify firsthand and by detailed legal reports (at end of this note) as to the dire consequences of rejecting this truth from the fine article above: "The inclusion and expansion of this right [to jury] in Indiana’s Constitution is a clear reflection of our state’s intention to emphasize the importance of every Hoosier’s right to make their case in front of a jury of their peers." Over $20? Every Hoosier? Well then how about when your very vocation is on the line? How about instead of a jury of peers, one faces a bevy of political appointees, mini-czars, who care less about due process of the law than the real czars did? Instead of trial by jury, trial by ideological ordeal run by Orwellian agents? Well that is built into more than a few administrative law committees of the Ind S.Ct., and it is now being weaponized, as is revealed in articles posted at this ezine, to root out post moderns heresies like refusal to stand and pledge allegiance to all things politically correct. My career was burned at the stake for not so saluting, but I think I was just one of the early logs. Due, at least in part, to the removal of the jury from bar admission and bar discipline cases, many more fires will soon be lit. Perhaps one awaits you, dear heretic? Oh, at that Ind. article 12 plank about a remedy at law for every damage done ... ah, well, the founders evidently meant only for those damages done not by the government itself, rabid statists that they were. (Yes, that was sarcasm.) My written reports available here: Denied petition for cert (this time around): http://tinyurl.com/zdmawmw Denied petition for cert (from the 2009 denial and five year banishment): http://tinyurl.com/zcypybh Related, not written by me: Amicus brief: http://tinyurl.com/hvh7qgp

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