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Court can’t modify mortgage without both parties’ consent

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A trial court doesn’t have the authority to modify a mortgage agreement without the consent of both parties participating in a settlement conference if they don’t agree to the terms of a foreclosure prevention agreement, the Indiana Court of Appeals ruled.

In Nationstar Mortgage, LLC v. Jeffrey A. Curatolo, et al., 45A03-1211-MF-469, Nationstar Mortgage LLC appealed the trial court order modifying its mortgage agreement with Jeffrey Curatolo. Curatolo executed the $245,000 mortgage in 2006, which was assigned to Nationstar in 2010. It filed its complaint to foreclosure in September 2011.

The parties entered into a foreclosure settlement conference, as allowed under I.C. 32-30-10.5, in which Curatolo successfully completed a three-month plan set up by Nationstar. But the mortgage company wanted new financial documents because of a discrepancy in Curatolo’s stated income and then sought to have Curatolo pay an additional $300 for a three-month period.

The trial court deemed these actions as a bad faith maneuver and modified the mortgage agreement.

“[N]owhere does the statute give a trial court the authority to enter a final order modifying the mortgage agreement,” Chief Judge Margret Robb wrote. “The fact that the legislature itself could not have impaired the contractual obligations of the parties lends further support to our conclusion it did not intend to give the courts that authority. Because the mortgage agreement was based upon the parties’ mutual assent, they must both agree to any permanent modification. Nor is this a case where the court was merely interpreting or enforcing a previously entered into agreement.”

Curatolo argued that the modification was a proper sanction for Nationstar’s misconduct.

“And while the trial court found that Nationstar’s behavior evidenced bad faith, we cannot agree that requesting additional documentation in response to a change of income or requesting an additional $300 per month from Curatolo was bad faith. Curatolo was not entitled to a final foreclosure prevention agreement with terms to his liking,” Robb wrote.

The COA ordered more proceedings on the matter consistent with this opinion. Robb noted that this decision should not be read to limit the ability of the parties to enter into a mutually agreed upon foreclosure prevention agreement. In that case, the trial court may dismiss or stay the foreclosure as provided by I.C. 32-30-10.5-10(e).  

 

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  1. A traditional parade of attorneys? Really Evansville? Y'all need to get out more. When is the traditional parade of notaries? Nurses? Sanitation workers? Pole dancers? I gotta wonder, do throngs of admiring citizens gather to laud these marching servants of the constitution? "Show us your billing records!!!" Hoping some video gets posted. Ours is not a narcissistic profession by any chance, is it? Nah .....

  2. My previous comment not an aside at court. I agree with smith. Good call. Just thought posting here a bit on the if it bleeds it leads side. Most attorneys need to think of last lines of story above.

  3. Hello everyone I'm Gina and I'm here for the exact same thing you are. I have the wonderful joy of waking up every morning to my heart being pulled out and sheer terror of what DCS is going to Throw at me and my family today.Let me start from the !bebeginning.My daughter lost all rights to her 3beautiful children due to Severe mental issues she no longer lives in our state and has cut all ties.DCS led her to belive that once she done signed over her right the babies would be with their family. We have faught screamed begged and anything else we could possibly due I hired a lawyer five grand down the drain.You know all I want is my babies home.I've done everything they have even asked me to do.Now their saying I can't see my grandchildren cause I'M on a prescription for paipain.I have a very rare blood disease it causes cellulitis a form of blood poisoning to stay dormant in my tissues and nervous system it also causes a ,blood clotting disorder.even with the two blood thinners I'm on I still Continue to develop them them also.DCS knows about my illness and still they refuse to let me see my grandchildren. I Love and miss them so much Please can anyone help Us my grandchildren and I they should be worrying about what toy there going to play with but instead there worrying about if there ever coming home again.THANK YOU DCS FOR ALL YOU'VE DONE. ( And if anyone at all has any ideals or knows who can help. Please contact (765)960~5096.only serious callers

  4. He must be a Rethuglican, for if from the other side of the aisle such acts would be merely personal and thus not something that attaches to his professional life. AND ... gotta love this ... oh, and on top of talking dirty on the phone, he also, as an aside, guess we should mention, might be important, not sure, but .... "In addition to these allegations, Keaton was accused of failing to file an appeal after he collected advance payment from a client seeking to challenge a ruling that the client repay benefits because of unreported income." rimshot

  5. I am not a fan of some of the 8.4 discipline we have seen for private conduct-- but this was so egregious and abusive and had so many points of bad conduct relates to the law and the lawyer's status as a lawyer that it is clearly a proper and just disbarment. A truly despicable account of bad acts showing unfit character to practice law. I applaud the outcome.

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