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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. The practitioners and judges who hail E-filing as the Saviour of the West need to contain their respective excitements. E-filing is federal court requires the practitioner to cram his motion practice into pigeonholes created by IT people. Compound motions or those seeking alternative relief are effectively barred, unless the practitioner wants to receive a tart note from some functionary admonishing about the "problem". E-filing is just another method by which courts and judges transfer their burden to practitioners, who are the really the only powerless components of the system. Of COURSE it is easier for the court to require all of its imput to conform to certain formats, but this imposition does NOT improve the quality of the practice of law and does NOT improve the ability of the practitioner to advocate for his client or to fashion pleadings that exactly conform to his client's best interests. And we should be very wary of the disingenuous pablum about the costs. The courts will find a way to stick it to the practitioner. Lake County is a VERY good example of this rapaciousness. Any one who does not believe this is invited to review the various special fees that system imposes upon practitioners- as practitioners- and upon each case ON TOP of the court costs normal in every case manually filed. Jurisprudence according to Aldous Huxley.

  2. Any attorneys who practice in federal court should be able to say the same as I can ... efiling is great. I have been doing it in fed court since it started way back. Pacer has its drawbacks, but the ability to hit an e-docket and pull up anything and everything onscreen is a huge plus for a litigator, eps the sole practitioner, who lacks a filing clerk and the paralegal support of large firms. Were I an Indiana attorney I would welcome this great step forward.

  3. Can we get full disclosure on lobbyist's payments to legislatures such as Mr Buck? AS long as there are idiots that are disrespectful of neighbors and intent on shooting fireworks every night, some kind of regulations are needed.

  4. I am the mother of the child in this case. My silence on the matter was due to the fact that I filed, both in Illinois and Indiana, child support cases. I even filed supporting documentation with the Indiana family law court. Not sure whether this information was provided to the court of appeals or not. Wish the case was done before moving to Indiana, because no matter what, there is NO WAY the state of Illinois would have allowed an appeal on a child support case!

  5. "No one is safe when the Legislature is in session."

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