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Couple should have jury trial on legal claims

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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.
 

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  2. Indianapolis Bar Association President John Trimble and I are on the same page, but it is a very large page with plenty of room for others to join us. As my final Res Gestae article will express in more detail in a few days, the Great Recession hastened a fundamental and permanent sea change for the global legal service profession. Every state bar is facing the same existential questions that thrust the medical profession into national healthcare reform debates. The bench, bar, and law schools must comprehensively reconsider how we define the practice of law and what it means to access justice. If the three principals of the legal service profession do not recast the vision of their roles and responsibilities soon, the marketplace will dictate those roles and responsibilities without regard for the public interests that the legal profession professes to serve.

  3. I have met some highly placed bureaucrats who vehemently disagree, Mr. Smith. This is not your father's time in America. Some ideas are just too politically incorrect too allow spoken, says those who watch over us for the good of their concept of order.

  4. Lets talk about this without forgetting that Lawyers, too, have FREEDOM OF SPEECH AND ASSOCIATION

  5. Baer filed with the U.S. Court of Appeals Seventh Circuit on April 30 2015. When will this be decided? How many more appeals does this guy have? Unbelievable this is dragging on like this.

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