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Tuesday, February 09, 2010

Ind. Decisions - "Appeals court sides with Greenfield homeowner"

Marilyn Elliott and Michael Elliott v. JP Morgan Chase Bank, et al., a Feb. 3rd decision by the Court of Appeals (see ILB summary here), was the subject of a story yesterday by Jeff Swiatek that appeared in the printed Indianapolis Star, but somehow missed the online version. Here it is:

In what it called a "Kafkaesque" case involving a Greenfield homeowner and the nation's largest bank, the Indiana Court of Appeals has come out in favor of the homeowner.

The court reversed a default judgment by a Hancock County court against the homeowner and ordered that a trial be held before banking giant JPMorgan Chase can carry out a foreclosure and eviction.

"The Kafkaesque character of this litigation is difficult to deny," the appeals court wrote in its 10-page opinion issued last week.

Evidence in the case shows Chase bank was unaware of the 2006 foreclosure against the plaintiffs, Marilyn and Michael Elliott, Greenfield, and in fact had declared the Elliotts' mortgage to be paid off. The servicer of the Chase mortgage on the Elliotts' house, Ocwen Financial Corp. of West Palm Beach, Fla., pursued an eviction even though Chase indicated the Elliotts had paid off the mortgage, and carried out a sheriff's sale of the property.

There's no proof that the Elliotts were ever told of the sheriff's sale before it occurred, the appeals court said.

The Elliotts' attorney, Thomas E.Q. Williams, Greenfield, said the couple found out about the sale only when an Ocwen representative showed up with a moving van to evict them.

Told of the court's ruling this week, Marilyn Elliott "was in tears" of happiness, Williams said. "She's been through so much trying to keep her home," which her father built many years ago, he said.

Williams said Indiana courts have traditionally favored the lender in foreclosure disputes, so "hopefully this opinion will give some homeowners . . . hope that summary procedures to take their home away from them can be challenged. A homeowner has challenged the largest bank in the country, and a court in Indiana has listened to them."

Chase's Cincinnati attorney, Sarah Okrzynski, didn't return a call for comment.

Posted by Marcia Oddi on February 9, 2010 10:08 AM
Posted to Ind. App.Ct. Decisions