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Supreme Court posts foreclosure best practices

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The Indiana Supreme Court has posted best practices regarding mortgage foreclosures filed in Indiana. The Indiana attorney general also filed a petition  Monday with the Supreme Court supporting the best practices and asking for the Supreme Court to require those recommendations in mortgage foreclosure proceedings.

These guidelines were developed by a foreclosure-prevention task force established by the Indiana Supreme Court, which included the attorney general’s office, judges, Supreme Court staff, legal services attorneys, and attorneys for mortgage lenders.

The guidelines are based on observations of the functions and results of settlement conferences that have taken place around the state under a statute that went into effect July 1, 2009, and settlement conferences that have taken place as part of the Mortgage Foreclosure Trial Court Assistance Project.

Among the Supreme Court’s recommendations are standards for lenders who file pleadings against borrowers, best practices regarding settlement conferences, and that notice be given to borrowers if something changes post-judgment.

Best practices for pleadings include explanation as to why the plaintiff should be classified as a “person entitled to enforce” the instrument; that the original instrument should be readily available if the court requests it; that any endorsements or transfers of loan instruments should be readily available if the court requests them; if the original instrument has been lost, counsel should follow the correct procedures; and that the plaintiff should provide contact information for every defendant debtor, including potentially illegal “rescue agencies” that may be linked to the mortgage.

Best practices for settlement conferences include separate notice from the trial court to each defendant debtor; if the plaintiff claims the defendant is not eligible for settlement conference, the plaintiff should present proof of why (including whether the borrower does not live in the residence or that the borrower previously failed to comply with a foreclosure prevention agreement); and if additional documentation is needed at settlement conference, the settlement conference should reconvene to give borrowers a chance to provide any missing information.

The best practices also include possible sanctions for lenders who do not follow trial court directives regarding settlement conferences. This includes a plaintiff’s failure to appear at a settlement conference or asking the defendant to waive his or her right to a settlement conference. Sanctions imposed by judges in Allen and St. Joseph counties have ranged from $150 to $2,500, according to the document.

In addition to the Supreme Court’s recommendations, the petition submitted by Attorney General Greg Zoeller and Abby Kuzma, chief counsel and director of the Consumer Protection Division of the AG’s office, includes additional recommendations, including a requirement that “Plaintiffs shall include a Verified Affidavit describing Defendant’s compliance with federal requirements to engage Plaintiff in loss mitigation efforts and the reason for denial of loss mitigation.”

Zoeller’s petition also requests the Supreme Court to make the best practices requirements rather than recommendations, suggesting that “should” be changed to “shall” in all of the Supreme Court’s recommendations.
 

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  1. "So we broke with England for the right to "off" our preborn progeny at will, and allow the processing plant doing the dirty deeds (dirt cheap) to profit on the marketing of those "products of conception." I was completely maleducated on our nation's founding, it would seem. (But I know the ACLU is hard at work to remedy that, too.)" Well, you know, we're just following in the footsteps of our founders who raped women, raped slaves, raped children, maimed immigrants, sold children, stole property, broke promises, broke apart families, killed natives... You know, good God fearing down home Christian folk! :/

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  3. Whilst it may be true that Judges and Justices enjoy such freedom of time and effort, it certainly does not hold true for the average working person. To say that one must 1) take a day or a half day off work every 3 months, 2) gather a list of information including recent photographs, and 3) set up a time that is convenient for the local sheriff or other such office to complete the registry is more than a bit near-sighted. This may be procedural, and hence, in the near-sighted minds of the court, not 'punishment,' but it is in fact 'punishment.' The local sheriffs probably feel a little punished too by the overwork. Registries serve to punish the offender whilst simultaneously providing the public at large with a false sense of security. The false sense of security is dangerous to the public who may not exercise due diligence by thinking there are no offenders in their locale. In fact, the registry only informs them of those who have been convicted.

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  5. A common refrain in the comments on this website comes from people who cannot locate attorneys willing put justice over retainers. At the same time the judiciary threatens to make pro bono work mandatory, seemingly noting the same concern. But what happens to attorneys who have the chumptzah to threatened the legal status quo in Indiana? Ask Gary Welch, ask Paul Ogden, ask me. Speak truth to power, suffer horrendously accordingly. No wonder Hoosier attorneys who want to keep in good graces merely chase the dollars ... the powers that be have no concerns as to those who are ever for sale to the highest bidder ... for those even willing to compromise for $$$ never allow either justice or constitutionality to cause them to stand up to injustice or unconstitutionality. And the bad apples in the Hoosier barrel, like this one, just keep rotting.

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