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Court cites 1827 case to affirm mortgage trumps land contract

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A bank that issued a mortgage to a person selling a property on a land contract has the right to foreclose on the loan, the Indiana Court of Appeals ruled, citing caselaw nearly 200 years old.

Judge John Baker cited the “first in time is first in right” doctrine and Chief Justice John Marshall’s ruling in Rankin v. Scott, 25 U.S. (12 Wheat) 177, 179 (1827) to determine that the bank had the senior claim on a property in Cumberland even though a land contract between the owner and buyer had been executed years earlier. The contract wasn’t recorded until after the mortgage was recorded.

In Walter E. Lunsford v. Deutsche Bank Trust Company Americas as Trustee 30A01-1302-MF-63, the appeals panel affirms the summary judgment grant to the bank by Hancock Superior Judge Richard D. Culver.

Lunsford appealed pro se, arguing among other things that Deutsche Bank failed to produce loan documents, that it had no right to acquire a loan as a mortgage-backed security, that it failed to join indispensable parties, that it had no standing to bring the foreclosure action, and that it did not exist. Lunsford also argued on appeal that the bank refused payment from him.

Baker wrote that several of the arguments were waived because they weren’t raised at the trial court, and that the trial court gave Lunsford opportunities to pay the mortgage, but no tender was made.

“The mortgage was recorded on August 25, 2005, by the Recorder of Hancock County,” Baker wrote in an opinion joined by judges Ezra Friedlander and Nancy Vaidik. “Lunsford’s Land Contract was recorded on March 8, 2006, which was over six months after the mortgage was recorded and perfected. … Consequently, the mortgage is senior in priority to Lunsford’s Land Contract.

“Moreover, because Lunsford was made a party to Deutsche Bank’s foreclosure action and given the opportunity to assert his junior interest in the Real Estate, the judgment is conclusive on him,” the panel concluded in affirming the trial court.
 

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  1. I need an experienced attorney to handle a breach of contract matter. Kindly respond for more details. Graham Young

  2. I thought the slurs were the least grave aspects of her misconduct, since they had nothing to do with her being on the bench. Why then do I suspect they were the focus? I find this a troubling trend. At least she was allowed to keep her law license.

  3. Section 6 of Article I of the Indiana Constitution is pretty clear and unequivocal: "Section 6. No money shall be drawn from the treasury for the benefit of any religious or theological institution."

  4. Video pen? Nice work, "JW"! Let this be a lesson and a caution to all disgruntled ex-spouses (or soon-to-be ex-spouses) . . . you may think that altercation is going to get you some satisfaction . . . it will not.

  5. First comment on this thread is a fitting final comment on this thread, as that the MCBA never answered Duncan's fine question, and now even Eric Holder agrees that the MCBA was in material error as to the facts: "I don't get it" from Duncan December 1, 2014 5:10 PM "The Grand Jury met for 25 days and heard 70 hours of testimony according to this article and they made a decision that no crime occurred. On what basis does the MCBA conclude that their decision was "unjust"? What special knowledge or evidence does the MCBA have that the Grand Jury hearing this matter was unaware of? The system that we as lawyers are sworn to uphold made a decision that there was insufficient proof that officer committed a crime. How can any of us say we know better what was right than the jury that actually heard all of the the evidence in this case."

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