ILNews

Judges: Grant bank’s request for receiver

Back to TopCommentsE-mailPrintBookmark and Share

Because PNC Bank was able to show that the requisite provisions of Indiana Code 32-30-5-1 have been satisfied and it did not relinquish its right to the appointment of a receiver, the trial court order denying PNC’s request for appointment of a receiver was an error, the Indiana Court of Appeals concluded.

In June 2004, the bank and LA Development entered into a loan agreement, with obligations due to the bank secured by two mortgages. In the fall of 2008, LA Development needed more money to complete a housing development; INTA LLC agreed to advance $705,000 to LA Development. A three-party closing occurred between LA Development, INTA and PNC Bank, which included a subordination agreement that made all liens, mortgages, encumbrances, security interests and assignments of every kind granted to the bank subordinated and made secondary to those of INTA.

Two years later, PNC filed a complaint for damages to foreclose on the mortgages and for appointment of receiver against LA Development, INTA, and two individuals who guaranteed the loans. At issue on interlocutory appeal is the denial by the trial court to appoint a receiver.

PNC argued that it satisfied the requirements of I.C. 32-30-5-1(4)(B) and (C), which required the trial court to appoint a receiver. INTA maintained that the bank relinquished its right to the mandatory appointment of a receiver in the subordination agreement.

The Court of Appeals found the subordination agreement is ambiguous, so the judges looked to the parties’ intent when construing the agreement and the other closing documents. The argument that the bank subordinated all of its default rights and remedies in the mortgages by signing the subordination agreement, as INTA argued, can’t be reconciled with the language in the forbearance agreement signed on the same date and at the same closing, wrote Senior Judge Carr Darden.

Also, the extrinsic evidence shows that the parties didn’t intend to subordinate all rights and remedies. The bank foreclosed on the housing development, which INTA concedes is authorized.

“If the Bank waived all of its enforcement rights and remedies under the mortgages by executing the Subordination Agreement, then the right to foreclose on Harrison Crossing would be included. Either the Bank subordinated all of its enforcement rights and remedies in the mortgages or it did not. INTA cannot pick and choose which rights and remedies the Bank subordinated to support its argument,” Darden wrote.

The judges ordered the trial court grant PNC’s request for the appointment of a receiver.

 

ADVERTISEMENT

Post a comment to this story

COMMENTS POLICY
We reserve the right to remove any post that we feel is obscene, profane, vulgar, racist, sexually explicit, abusive, or hateful.
 
You are legally responsible for what you post and your anonymity is not guaranteed.
 
Posts that insult, defame, threaten, harass or abuse other readers or people mentioned in Indiana Lawyer editorial content are also subject to removal. Please respect the privacy of individuals and refrain from posting personal information.
 
No solicitations, spamming or advertisements are allowed. Readers may post links to other informational websites that are relevant to the topic at hand, but please do not link to objectionable material.
 
We may remove messages that are unrelated to the topic, encourage illegal activity, use all capital letters or are unreadable.
 

Messages that are flagged by readers as objectionable will be reviewed and may or may not be removed. Please do not flag a post simply because you disagree with it.

Sponsored by

facebook - twitter on Facebook & Twitter

Indiana State Bar Association

Indianapolis Bar Association

Evansville Bar Association

Allen County Bar Association

Indiana Lawyer on Facebook

facebook
ADVERTISEMENT
Subscribe to Indiana Lawyer
  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.

ADVERTISEMENT