Inaccurate property description does not render mortgage invalid

February 9, 2016

Despite errors, a mortgage still contained a “facially valid” description and the mortgage holder was protected from foreclosure.

Berney and Laurie Garlick had a three-lot subdivision designated as Copper Ridge Secondary Plat near Zionsville. In 2007, they sold one of the lots and gave a mortgage to Saxon Mortgage Inc. to secure a loan.

The metes and bounds legal description of the mortgage property actually described the land the Garlicks no longer owned.

Saxon subsequently assigned the mortgage to Deutsche Bank.

In 2010, the Garlicks gave a mortgage to Robert Samuels and Simon Lynes to secure a loan. In 2012, Samuels and Lynes filed a complaint against the Garlicks, Deutsche Bank and the Indiana Department of Revenue, seeking, among other things, the foreclosure of their mortgage.

Deutsche Bank asserted that the Saxon mortgage was prior and therefore superior to the Samuels and Lynes mortgage. The Marion Superior Court agreed, giving priority to Saxon.

On appeal, Samuels and Lynes argued the Saxon mortgage is invalid. It does not accurately describe the mortgage property which makes it impossible to determine which property was intended to be mortgaged.

The Indiana Court of Appeals found the description in the Saxon mortgage was a facially valid legal description in Robert Samuels and Simon Lynes v. Berney W. Garlick, Laurie A. Garlick, Deutsche Bank National Trust Company, as Trustee for Saxon Asset-Securities Trust 2007-4, and Ind. Dept. of Revenue, 49A05-1509-MF-1348.  

Pointing to Matter of Estate of Lawrence, 565 N.E.2d 357, 359 (Ind. Ct. App. 1991), the unanimous panel ruled the fact that the premises described in the Saxon mortgage encompasses more (and/or less) real estate than was owned by the Garlicks “is relevant only to the issue whether there is a valid and enforceable lien on the non-owned premises; it does not impair the validity of the lien on the mortgaged premises.”


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