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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. Falk said “At this point, at this minute, we’ll savor this particular victory.” “It certainly is a historic week on this front,” Cockrum said. “What a delight ... “Happy Independence Day to the women of the state of Indiana,” WOW. 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.)

  2. congratulations on such balanced journalism; I also love how fetus disposal affects women's health protection, as covered by Roe...

  3. It truly sickens me every time a case is compared to mine. The Indiana Supreme Court upheld my convictions based on a finding of “hidden threats.” The term “hidden threat” never appeared until the opinion in Brewington so I had no way of knowing I was on trial for making hidden threats because Dearborn County Prosecutor F Aaron Negangard argued the First Amendment didn't protect lies. Negangard convened a grand jury to investigate me for making “over the top” and “unsubstantiated” statements about court officials, not hidden threats of violence. My indictments and convictions were so vague, the Indiana Court of Appeals made no mention of hidden threats when they upheld my convictions. Despite my public defender’s closing arguments stating he was unsure of exactly what conduct the prosecution deemed to be unlawful, Rush found that my lawyer’s trial strategy waived my right to the fundamental error of being tried for criminal defamation because my lawyer employed a strategy that attempted to take advantage of Negangard's unconstitutional criminal defamation prosecution against me. Rush’s opinion stated the prosecution argued two grounds for conviction one constitutional and one not, however the constitutional true threat “argument” consistently of only a blanket reading of subsection 1 of the intimidation statute during closing arguments, making it impossible to build any kind of defense. Of course intent was impossible for my attorney to argue because my attorney, Rush County Chief Public Defender Bryan Barrett refused to meet with me prior to trial. The record is littered with examples of where I made my concerns known to the trial judge that I didn’t know the charges against me, I did not have access to evidence, all while my public defender refused to meet with me. Special Judge Brian Hill, from Rush Superior Court, refused to address the issue with my public defender and marched me to trial without access to evidence or an understanding of the indictments against me. Just recently the Indiana Public Access Counselor found that four over four years Judge Hill has erroneously denied access to the grand jury audio from my case, the most likely reason being the transcription of the grand jury proceedings omitted portions of the official audio record. The bottom line is any intimidation case involves an action or statement that is debatably a threat of physical violence. There were no such statements in my case. The Indiana Supreme Court took partial statements I made over a period of 41 months and literally connected them with dots… to give the appearance that the statements were made within the same timeframe and then claimed a person similarly situated would find the statements intimidating while intentionally leaving out surrounding contextual factors. Even holding the similarly situated test was to be used in my case, the prosecution argued that the only intent of my public writings was to subject the “victims” to ridicule and hatred so a similarly situated jury instruction wouldn't even have applied in my case. Chief Justice Rush wrote the opinion while Rush continued to sit on a committee with one of the alleged victims in my trial and one of the judges in my divorce, just as she'd done for the previous 7+ years. All of this information, including the recent PAC opinion against the Dearborn Superior Court II can be found on my blog www.danbrewington.blogspot.com.

  4. On a related note, I offered the ICLU my cases against the BLE repeatedly, and sought their amici aid repeatedly as well. Crickets. Usually not even a response. I am guessing they do not do allegations of anti-Christian bias? No matter how glaring? I have posted on other links the amicus brief that did get filed (search this ezine, e.g., Kansas attorney), read the Thomas More Society brief to note what the ACLU ran from like vampires from garlic. An Examiner pledged to advance diversity and inclusion came right out on the record and demanded that I choose Man's law or God's law. I wonder, had I been asked to swear off Allah ... what result then, ICLU? Had I been found of bad character and fitness for advocating sexual deviance, what result then ICLU? Had I been lifetime banned for posting left of center statements denigrating the US Constitution, what result ICLU? Hey, we all know don't we? Rather Biased.

  5. It was mentioned in the article that there have been numerous CLE events to train attorneys on e-filing. I would like someone to provide a list of those events, because I have not seen any such events in east central Indiana, and since Hamilton County is one of the counties where e-filing is mandatory, one would expect some instruction in this area. Come on, people, give some instruction, not just applause!

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