Appellate panel upholds summary judgment for mortgage lender

March 20, 2018

A St. Joseph County man who defaulted on his mortgage payments is not entitled to a loan modification, the Indiana Court of Appeals ruled after finding the man’s loan provider met its burden of proving it sufficiently considered his eligibility.

In December 2002, Thomas Feehan executed a $170,000 promissory note and a mortgage in favor of ABN AMRO Mortgage Group, Inc. on a property in St. Joseph County. However, Feehan stopped making payments on the note, prompting CitiMortgage, Inc. — ABN AMRO’s successor — to request a nearly $9,000 payment to cure the default by Oct. 29, 2009.

After Feehan failed to cure the default, CitiMortgage filed a mortgage foreclosure complaint in November 2010, alleging an outstanding balance of more than $155,000. The St. Joseph Circuit Court ordered the case to a settlement conference and required that CitiMortgage make “all persons with all authority needed to enter into a loan modification” present at the conference.

In February 2014, however, Feehan’s counsel sent a letter to the settlement conference facilitator claiming CitiMortgage had never offered loan modification terms, nor had it sent representatives with authority to enter a loan modification to a settlement conference. Meanwhile, CitiMortgage moved for summary judgment, and Feehan filed multiple responses in opposition.  

CitiMortgage eventually sent Feehan a letter in March 2015 telling him he was conditionally approved for a short sale, but also said it could not modify his loan because the Federal Home Loan Bank of Chicago — which gave CitiMortgage its instructions — had not provided contractual authority to modify the loan. Feehan received similar letters in September 2016 and January 2017, which also informed him that his income-to-housing expense ratio disqualified him from receiving a private supplemental modification.

CitiMortgage then designated the affidavit of its business operations analyst in charge of Feehan’s loan, which included a serving guide that prohibited the lender from “offering any modification other than a Private Supplement Modification, unless a variance is obtained form (FHLBC).” Feehan moved to strike the entire summary judgment motion, including the affidavit, but the trial court denied that motion and instead granted summary judgment to CitiMortgage.

The Indiana Court of Appeals upheld that decision Tuesday in Thomas J. Feehan and Michelle Ceuterick-Feehan v. CitiMortgage, Inc., 71A03-1710-MF-2480, with Judge Elaine Brown writing that the terms of the mortgage did not require CitiMortgage to consider a modification. Regardless, Brown also wrote there was evidence showing the lender had considered modification and determined Feehan was not eligible.

“While Thomas Feehan may have submitted financial documents and other information at various stages in seeking a loan modification, the record indicates that CitiMortgage provided explanations as to the reasons that he was not eligible for a modification,” Brown wrote. “CitiMortgage has satisfied its burden of establishing that, even if another foreclosure-prevention settlement conference was scheduled and a personal representative of CitiMortgage with the authority to enter a loan modification or make a loan modification offer was present at the conference, Thomas Feehan is not eligible for or entitled to a loan modification, a loan modification offer, or further consideration of the possible loan modification options.”


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