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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. I grew up on a farm and live in the county and it's interesting that the big industrial farmers like Jeff Shoaf don't live next to their industrial operations...

  2. So that none are misinformed by my posting wihtout a non de plume here, please allow me to state that I am NOT an Indiana licensed attorney, although I am an Indiana resident approved to practice law and represent clients in Indiana's fed court of Nth Dist and before the 7th circuit. I remain licensed in KS, since 1996, no discipline. This must be clarified since the IN court records will reveal that I did sit for and pass the Indiana bar last February. Yet be not confused by the fact that I was so allowed to be tested .... I am not, to be clear in the service of my duty to be absolutely candid about this, I AM NOT a member of the Indiana bar, and might never be so licensed given my unrepented from errors of thought documented in this opinion, at fn2, which likely supports Mr Smith's initial post in this thread: http://caselaw.findlaw.com/us-7th-circuit/1592921.html

  3. When I served the State of Kansas as Deputy AG over Consumer Protection & Antitrust for four years, supervising 20 special agents and assistant attorneys general (back before the IBLE denied me the right to practice law in Indiana for not having the right stuff and pretty much crushed my legal career) we had a saying around the office: Resist the lure of the ring!!! It was a take off on Tolkiem, the idea that absolute power (I signed investigative subpoenas as a judge would in many other contexts, no need to show probable cause)could corrupt absolutely. We feared that we would overreach constitutional limits if not reminded, over and over, to be mindful to not do so. Our approach in so challenging one another was Madisonian, as the following quotes from the Father of our Constitution reveal: The essence of Government is power; and power, lodged as it must be in human hands, will ever be liable to abuse. We are right to take alarm at the first experiment upon our liberties. I believe there are more instances of the abridgement of freedom of the people by gradual and silent encroachments by those in power than by violent and sudden usurpations. Liberty may be endangered by the abuse of liberty, but also by the abuse of power. All men having power ought to be mistrusted. -- James Madison, Federalist Papers and other sources: http://www.constitution.org/jm/jm_quotes.htm RESIST THE LURE OF THE RING ALL YE WITH POLITICAL OR JUDICIAL POWER!

  4. My dear Mr Smith, I respect your opinions and much enjoy your posts here. We do differ on our view of the benefits and viability of the American Experiment in Ordered Liberty. While I do agree that it could be better, and that your points in criticism are well taken, Utopia does indeed mean nowhere. I think Madison, Jefferson, Adams and company got it about as good as it gets in a fallen post-Enlightenment social order. That said, a constitution only protects the citizens if it is followed. We currently have a bevy of public officials and judicial agents who believe that their subjectivism, their personal ideology, their elitist fears and concerns and cause celebs trump the constitutions of our forefathers. This is most troubling. More to follow in the next post on that subject.

  5. Yep I am not Bryan Brown. Bryan you appear to be a bigger believer in the Constitution than I am. Were I still a big believer then I might be using my real name like you. Personally, I am no longer a fan of secularism. I favor the confessional state. In religious mattes, it seems to me that social diversity is chaos and conflict, while uniformity is order and peace.... secularism has been imposed by America on other nations now by force and that has not exactly worked out very well.... I think the American historical experiment with disestablishmentarianism is withering on the vine before our eyes..... Since I do not know if that is OK for an officially licensed lawyer to say, I keep the nom de plume.

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