Company not entitled to relief from mortgage foreclosure judgment

December 9, 2015

An Indiana trial court incorrectly ruled a company was entitled to relief under Indiana Trial Rule 60(B)(6) after deciding a mortgage foreclosure action was void based on who owned interests in the mortgage.

Michael Fish had mortgages on properties owned by 2444 Acquisitions LLC. He sought to foreclose on the properties and through an agreed entry between the parties, Fish was granted more than $260,000 plus interest and foreclosed the mortgage.

Prior to the foreclosure action, Fish testified in a bankruptcy hearing involving Acquisitions that he had transferred the mortgage to Indianapolis Restaurant Ventures LLC, in which he owned 40 percent and a trust owned 60 percent.

Acquisitions filed a motion for relief from judgment of the foreclosure and agreed entry, claiming the judgment was void because Fish did not accurately represent his interest in the mortgage and failed to name IRV as a party who holds an interest. Fish, in an objection, said he remained the party in interest and that Acquisitions’ motion is based on misrepresentation under Ind. Trial Rule 60(B)(3) and therefore untimely since it was not filed within a year of the judgment.

The trial court ruled that IRV was a real party and should have been named a party to this matter. It found the judgment and agreed entry to be void.

The Indiana Court of Appeals reversed.

“We conclude that the agreed judgment is not void under Indiana Trial Rule 60(B)(6). This is not a case where the trial court lacked subject matter or personal jurisdiction. Consequently, the trial court erred when it determined that Acquisitions was entitled to relief under Indiana Trial Rule 60(B)(6),” Judge Michael Barnes wrote in Michael Fish v. 2444 Acquisitions, LLC, 49A02-1502-MF-100.

Acquisitions’ other claims that the judgment was properly voided also fail because they were not timely filed under Trial Rule 60(B), the court held.


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