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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. My mother got temporary guardianship of my children in 2012. my husband and I got divorced 2015 the judge ordered me to have full custody of all my children. Does this mean the temporary guardianship is over? I'm confused because my divorce papers say I have custody and he gets visits and i get to claim the kids every year on my taxes. So just wondered since I have in black and white that I have custody if I can go get my kids from my moms and not go to jail?

  2. Someone off their meds? C'mon John, it is called the politics of Empire. Get with the program, will ya? How can we build one world under secularist ideals without breaking a few eggs? Of course, once it is fully built, is the American public who will feel the deadly grip of the velvet glove. One cannot lay down with dogs without getting fleas. The cup of wrath is nearly full, John Smith, nearly full. Oops, there I go, almost sounding as alarmist as Smith. Guess he and I both need to listen to this again: https://www.youtube.com/watch?v=CRnQ65J02XA

  3. Charles Rice was one of the greatest of the so-called great generation in America. I was privileged to count him among my mentors. He stood firm for Christ and Christ's Church in the Spirit of Thomas More, always quick to be a good servant of the King, but always God's first. I had Rice come speak to 700 in Fort Wayne as Obama took office. Rice was concerned that this rise of aggressive secularism and militant Islam were dual threats to Christendom,er, please forgive, I meant to say "Western Civilization". RIP Charlie. You are safe at home.

  4. It's a big fat black mark against the US that they radicalized a lot of these Afghan jihadis in the 80s to fight the soviets and then when they predictably got around to biting the hand that fed them, the US had to invade their homelands, install a bunch of corrupt drug kingpins and kleptocrats, take these guys and torture the hell out of them. Why for example did the US have to sodomize them? Dubya said "they hate us for our freedoms!" Here, try some of that freedom whether you like it or not!!! Now they got even more reasons to hate us-- lets just keep bombing the crap out of their populations, installing more puppet regimes, arming one faction against another, etc etc etc.... the US is becoming a monster. No wonder they hate us. Here's my modest recommendation. How about we follow "Just War" theory in the future. St Augustine had it right. How about we treat these obvious prisoners of war according to the Geneva convention instead of torturing them in sadistic and perverted ways.

  5. As usual, John is "spot-on." The subtle but poignant points he makes are numerous and warrant reflection by mediators and users. Oh but were it so simple.

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