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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. So that none are misinformed by my posting wihtout a non de plume here, please allow me to state that I am NOT an Indiana licensed attorney, although I am an Indiana resident approved to practice law and represent clients in Indiana's fed court of Nth Dist and before the 7th circuit. I remain licensed in KS, since 1996, no discipline. This must be clarified since the IN court records will reveal that I did sit for and pass the Indiana bar last February. Yet be not confused by the fact that I was so allowed to be tested .... I am not, to be clear in the service of my duty to be absolutely candid about this, I AM NOT a member of the Indiana bar, and might never be so licensed given my unrepented from errors of thought documented in this opinion, at fn2, which likely supports Mr Smith's initial post in this thread: http://caselaw.findlaw.com/us-7th-circuit/1592921.html

  2. When I served the State of Kansas as Deputy AG over Consumer Protection & Antitrust for four years, supervising 20 special agents and assistant attorneys general (back before the IBLE denied me the right to practice law in Indiana for not having the right stuff and pretty much crushed my legal career) we had a saying around the office: Resist the lure of the ring!!! It was a take off on Tolkiem, the idea that absolute power (I signed investigative subpoenas as a judge would in many other contexts, no need to show probable cause)could corrupt absolutely. We feared that we would overreach constitutional limits if not reminded, over and over, to be mindful to not do so. Our approach in so challenging one another was Madisonian, as the following quotes from the Father of our Constitution reveal: The essence of Government is power; and power, lodged as it must be in human hands, will ever be liable to abuse. We are right to take alarm at the first experiment upon our liberties. I believe there are more instances of the abridgement of freedom of the people by gradual and silent encroachments by those in power than by violent and sudden usurpations. Liberty may be endangered by the abuse of liberty, but also by the abuse of power. All men having power ought to be mistrusted. -- James Madison, Federalist Papers and other sources: http://www.constitution.org/jm/jm_quotes.htm RESIST THE LURE OF THE RING ALL YE WITH POLITICAL OR JUDICIAL POWER!

  3. My dear Mr Smith, I respect your opinions and much enjoy your posts here. We do differ on our view of the benefits and viability of the American Experiment in Ordered Liberty. While I do agree that it could be better, and that your points in criticism are well taken, Utopia does indeed mean nowhere. I think Madison, Jefferson, Adams and company got it about as good as it gets in a fallen post-Enlightenment social order. That said, a constitution only protects the citizens if it is followed. We currently have a bevy of public officials and judicial agents who believe that their subjectivism, their personal ideology, their elitist fears and concerns and cause celebs trump the constitutions of our forefathers. This is most troubling. More to follow in the next post on that subject.

  4. Yep I am not Bryan Brown. Bryan you appear to be a bigger believer in the Constitution than I am. Were I still a big believer then I might be using my real name like you. Personally, I am no longer a fan of secularism. I favor the confessional state. In religious mattes, it seems to me that social diversity is chaos and conflict, while uniformity is order and peace.... secularism has been imposed by America on other nations now by force and that has not exactly worked out very well.... I think the American historical experiment with disestablishmentarianism is withering on the vine before our eyes..... Since I do not know if that is OK for an officially licensed lawyer to say, I keep the nom de plume.

  5. I am compelled to announce that I am not posting under any Smith monikers here. That said, the post below does have a certain ring to it that sounds familiar to me: http://www.catholicnewworld.com/cnwonline/2014/0907/cardinal.aspx

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