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Courts consider foreclosure issues

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Indiana Lawyer Rehearing

To address recent news regarding foreclosures – including a handful of national banks putting holds on foreclosure proceedings regarding their lenders – participants in the foreclosure prevention efforts of the Indiana Supreme Court, including judges in pilot programs around the state for settlement conferences, held a conference call Oct. 19 to address these issues.

During the call, the participants addressed two main issues, according to Elizabeth Daulton, project manager of the Mortgage Foreclosure Trial Court Assistance Project, which is overseen by the Indiana Supreme Court Division of State Court Administration.

The first concern is the “robo-signing,” where it was reported in the media in the last few weeks that some banks had someone who wasn’t the correct person sign off on foreclosure paperwork without giving it enough attention to make sure it was done properly.

“However, this is just the tip of the iceberg,” Daulton said via e-mail Oct. 21. “A second problem is the fact that many plaintiff lenders have filed suit and proceeded to judgment without sufficient documentation establishing that they are a holder in due course of the underlying debt. Judy Fox, who serves as a facilitator in St. Joseph County (and also leads a legal clinic at Notre Dame Law School) says that her clinic doesn’t handle that many foreclosure cases, but a staggering number of them involve insufficient documentation – so she believes the problem is widespread.”

She added that lenders that had “robo-signed” paperwork have been “re-certifying” pending foreclosure cases, “but this only involves checking the accuracy of the amounts owed (and checking the computer system for errors). Recertifying does not involve investigation of the note’s ownership or tracking back the various assignments, many of which are undated,” she said.

While no definite cause of action was decided during the call, a number of ideas have been shared, and there will be a follow-up call Oct. 28, the same day Indiana Continuing Legal Education Forum will host a daylong CLE about mortgage foreclosures as a follow-up to CLE seminars that took place over the summer of 2009.

Daulton said new guidelines would be decided on in the coming weeks that “should apply to all pending cases, as well as post-judgment, pre-sheriff’s sale cases. After the sheriff’s sale has taken place, there may not be much recourse for the borrower (though this is something else we’re looking into),” she said.
 

Rehearing "New approach to foreclosure prevention successful" IL Sept. 15-28, 2010

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  1. What is this, the Ind Supreme Court thinking that there is a separation of powers and limited enumerated powers as delegated by a dusty old document? Such eighteen century thinking, so rare and unwanted by the elites in this modern age. Dictate to us, dictate over us, the massess are chanting! George Soros agrees. Time to change with times Ind Supreme Court, says all President Snows. Rule by executive decree is the new black.

  2. I made the same argument before a commission of the Indiana Supreme Court and then to the fedeal district and federal appellate courts. Fell flat. So very glad to read that some judges still beleive that evidentiary foundations matter.

  3. KUDOS to the Indiana Supreme Court for realizing that some bureacracies need to go to the stake. Recall what RWR said: "No government ever voluntarily reduces itself in size. Government programs, once launched, never disappear. Actually, a government bureau is the nearest thing to eternal life we'll ever see on this earth!" NOW ... what next to this rare and inspiring chopping block? Well, the Commission on Gender and Race (but not religion!?!) is way overdue. And some other Board's could be cut with a positive for State and the reputation of the Indiana judiciary.

  4. During a visit where an informant with police wears audio and video, does the video necessary have to show hand to hand transaction of money and narcotics?

  5. I will agree with that as soon as law schools stop lying to prospective students about salaries and employment opportunities in the legal profession. There is no defense to the fraudulent numbers first year salaries they post to mislead people into going to law school.

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