ILNews

Couple should have jury trial on legal claims

Back to TopE-mailPrintBookmark and Share

A couple whose home is being foreclosed on is entitled to a jury trial on their legal claims against the mortgage holder and loan servicer, the Indiana Court of Appeals ruled today.

In Mary Beth and Perry Lucas v. U.S. Bank, N.A., et al., No. 28A01-0910-CV-482, Mary Beth and Perry Lucas filed an interlocutory appeal after their request for a jury trial on several counterclaims and third-party claims raised against U.S Bank and Litton Loan Servicing was denied. The Lucases had problems almost immediately after closing their mortgage. They claimed the loan rate and monthly payments were incorrect and there were disputes about the purchase of hazard insurance and escrow amount problems.

The Lucases filed for Chapter 7 bankruptcy protection a little over a year after entering into the loan. The bankruptcy was discharged after four months, but there were issues about fees between the Lucases and Litton. The couple even sought assistance from Indiana Legal Services.

U.S. Bank filed a complaint to foreclose on the mortgage in early 2009; the Lucases alleged that Argent, the company they originally had the loan through, violated the Real Estate Settlement and Procedures Act, that U.S. Bank committed conversion and deception under the Civil Damages Statute, and that U.S. Bank breached its contractual obligations and its duty of good faith and fair dealing. They also sued Litton for breach of contract, breach of duty of good faith and fair dealing, and claimed Litton violated the Fair Debt Collection Practices Act, and RESPA. The couple also claims they are entitled to damages because Litton committed conversion.

Using Songer v. Civitas Bank, 771 N.E.2d 61, 63 (Ind. 2002), the appellate court analyzed the instant case and found the Lucases to be entitled to a jury trial on their legal claims. While a foreclosure action is essentially equitable and it’s well settled that equitable claims are tried to a court instead of a jury, the fact that a cause contains a foreclosure action doesn’t necessarily draw the entire cause into equity, wrote Chief Judge John Baker.

The claims against the bank and loan servicer are grounded in federal and state statutory law, and state common law, all of which are legal causes of action. The majority of relief requested by the Lucases is money damages, a legal remedy, wrote the chief judge. In addition, the nature of many of their claims is different from the bank’s request to foreclose as they are grounded in consumer protection statutes.

“In light of the nature of the claims, the rights and interests involved, and the majority of the relief requested, we cannot say that the essential features of this cause are equitable,” he wrote.

The cause was remanded with instructions to grant the Lucases’ motion for a jury trial on their legal claims.
 

ADVERTISEMENT

Sponsored by
ADVERTISEMENT
Subscribe to Indiana Lawyer
  1. Ah ha, so the architect of the ISC Commission to advance racial preferences and gender warfare, a commission that has no place at the inn for any suffering religious discrimination, see details http://www.theindianalawyer.com/nominees-selected-for-us-attorney-in-indiana/PARAMS/article/44263 ..... this grand architect of that institutionalized 14th amendment violation just cannot bring himself to utter the word religious discrimination, now can he: "Shepard noted two questions rise immediately from the decision. The first is how will trial courts handle allegations of racism during jury deliberations? The second is does this exception apply only to race? Shepard believes the exception to Rule 606 could also be applied to sexual orientation and gender." Thus barks the Shepard: "Race, gender, sexual orientation". But not religion, oh no, not that. YET CONSIDER ... http://www.pewforum.org/topics/restrictions-on-religion/ Of course the old dog's inability to see this post modern phenomena, but to instead myopically focus on the sexual orientation issues, again betrays one of his pet protects, see here http://www.in.gov/judiciary/admin/files/fair-pubs-summit-agenda.pdf Does such preference also reveal the mind of an anti-religious bigot? There can be no doubt that those on the front lines of the orientation battle often believe religion their enemy. That certainly could explain why the ISC kicked me in the face and down the proverbial crevice when I documented religious discrimination in its antechambers in 2009 .... years before the current turnover began that ended with a whole new court (hallelujah!) in 2017. Details on the kick to my face here http://www.wnd.com/2011/08/329933/ Friends and countrymen, harbor no doubt about it .... anti-religious bias is strong with this old dog, it is. One can only wonder what Hoosier WW2 hero and great jurist Justice Alfred Pivarnik would have made of all of this? Take this comment home for us, Gary Welsh (RIP): http://advanceindiana.blogspot.com/2005/05/sex-lies-and-supreme-court-justices.html

  2. my sister hit a horse that ran in the highway the horse belonged to an amish man she is now in a nurseing home for life. The family the horse belonged to has paid some but more needs to be paid she also has kids still at home...can we sue in the state f Indiana

  3. Or does the study merely wish they fade away? “It just hasn’t risen substantially in decades,” Joan Williams, director of the Center for WorkLife Law at the University of California Hastings College of the Law told Law360. “What we should be looking for is progress, and that’s not what we’re seeing.” PROGRESS = less white males in leadership. Thus the heading and honest questions here ....

  4. One need not wonder why we are importing sex slaves into North America. Perhaps these hapless victims of human trafficking were being imported for a book of play with the Royal Order of Jesters? https://medium.com/@HeapingHelping/who-are-the-royal-order-of-jesters-55ffe6f6acea Indianapolis hosts these major pervs in a big way .... https://www.facebook.com/pages/The-Royal-Order-of-Jesters-National-Office/163360597025389 I wonder what affect they exert on Hoosier politics? And its judiciary? A very interesting program on their history and preferences here: https://www.youtube.com/watch?v=VtgBdUtw26c

  5. Joseph Buser, Montgomery County Chief Prosecutor, has been involved in both representing the State of Indiana as Prosecutor while filing as Representing Attorney on behalf of himself and the State of Indiana in Civil Proceedings for seized cash and merchandise using a Verified Complaint For Forfeiture of Motor Vehicle, Us Currency And Reimbursement Of Costs, as is evident in Montgomery County Circuit Court Case Number 54C01-1401-MI-000018, CCS below, seen before Judge Harry Siamas, and filed on 01/13/2014. Sheriff Mark Castille is also named. All three defendants named by summons have prior convictions under Mr. Buser, which as the Indiana Supreme Court, in the opinion of The Matter of Mark R. McKinney, No. 18S00-0905-DI-220, stated that McKinney created a conflict of interest by simultaneously prosecuting drug offender cases while pocketing assets seized from defendants in those cases. All moneys that come from forfeitures MUST go to the COMMON SCHOOL FUND.

ADVERTISEMENT