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COA: Wife is liable for mortgages

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The Indiana Court of Appeals affirmed a judgment against a woman who denied signing for mortgages that are now in foreclosure; however, the judges disagreed whether the mortgage holder proved default under the terms of the notes.

This is the second appeal in the matter of Alicia Bonilla v. Commercial Services of Perry Inc., et al., No. 45A03-0803-CV-105. Initially, a trial court granted Alicia Bonilla's motion for judgment on the evidence as to whether she was liable for her deceased husband's two mortgages. Bonilla's signature was on both of the mortgages, but she denied signing. The Court of Appeals reversed and remanded for a new trial.

The trial court admitted samples of Bonilla's handwriting and found a difference between the samples and the mortgage documents, but still ruled in favor of Commercial Services of Perry, which was a successor in interest to the original mortgages signed in 1984 and 1985. A judgment was entered against Bonilla for more than $540,000 on both loans.

Under Indiana Code, Bonilla's notarized signatures on the two mortgages are presumptive evidence that she signed them, wrote Chief Judge John Baker. Once she presented rebutting evidence that she signed the documents, the presumption effectively became an inference, which the trial court could weigh against her testimony and handwriting samples, the judge continued. The trial court concluded her evidence was inadequate to rebut the presumption and the Court of Appeals declined to address Bonilla's argument the trial court erred because that would require reweighing the evidence and addressing credibility.

Chief Judge Baker and Judge Paul Mathias affirmed the award of damages against Bonilla even though Perry didn't introduce the actual promissory notes underlying the mortgages. Citing the Indiana Supreme Court's holding in Yanoff v. Muncy, 688 N.E.2d 1259 (Ind. 1997), and the previous appellate ruling in this matter, the majority held Perry isn't required to introduce the promissory notes into evidence to recover the debt. In addition, the record does contain evidence establishing the terms, dates, other information on the two mortgages, and indicates Bonilla conceded no payments had been made on either mortgage.

Judge Elaine Brown dissented from the majority in regards to the damages, writing that evidence on the essential terms of the notes - term payment requirements, when the notes were due - was missing.

"Although the majority infers default because Bonilla testified that no payments had been made, without the terms of the notes and the payment requirements, I am unable to agree that the evidence presented proved that the loans are in default," she wrote.

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  1. Linda, I sure hope you are not seeking a law license, for such eighteenth century sentiments could result in your denial in some jurisdictions minting attorneys for our tolerant and inclusive profession.

  2. Mazel Tov to the newlyweds. And to those bakers, photographers, printers, clerks, judges and others who will lose careers and social standing for not saluting the New World (Dis)Order, we can all direct our Two Minutes of Hate as Big Brother asks of us. Progress! Onward!

  3. My daughter was taken from my home at the end of June/2014. I said I would sign the safety plan but my husband would not. My husband said he would leave the house so my daughter could stay with me but the case worker said no her mind is made up she is taking my daughter. My daughter went to a friends and then the friend filed a restraining order which she was told by dcs if she did not then they would take my daughter away from her. The restraining order was not in effect until we were to go to court. Eventually it was dropped but for 2 months DCS refused to allow me to have any contact and was using the restraining order as the reason but it was not in effect. This was Dcs violating my rights. Please help me I don't have the money for an attorney. Can anyone take this case Pro Bono?

  4. If justice is not found in a court room, it's time to clean house!!! Even judges are accountable to a higher Judge!!!

  5. The small claims system, based on my recent and current usage of it, is not exactly a shining example of justice prevailing. The system appears slow and clunky and people involved seem uninterested in actually serving justice within a reasonable time frame. Any improvement in accountability and performance would gain a vote from me. Speaking of voting, what do the people know about judges and justice from the bench perspective. I think they have a tendency to "vote" for judges based on party affiliation or name coolness factor (like Stoner, for example!). I don't know what to do in my current situation other than grin and bear it, but my case is an example of things working neither smoothly, effectively nor expeditiously. After this experience I'd pay more to have the higher courts hear the case -- if I had the money. Oh the conundrum.

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