Tuesday, May 17, 2011
Ind. Decisions - Court of Appeals issues 2 today (and 5 NFP)
For publication opinions today (2):
In Citimortgage, Inc. v. Shannon S. Barabas, et al. , a 15-page, 2-1 opinion by Judge Riley, the MERS "mortage" question is the main issue. Here the mortgage states in pertinent part:
"This Security Instrument is given to Mortgage Electronic Registration Systems, Inc. (“MERS”), (solely as nominee for Lender, as hereinafter defined, and Lender's successors and assigns), as mortgagee. MERS is organized and existing under the laws of Delaware, and has an address and telephone number of P.O. Box 2026, Flint, MI 48501-2026, tel. (888) 679-MERS. Irwin Mortgage Corporation."Judge Riley writes, starting at p. 8:
[I]t is clear that the trial court did not abuse its discretion when it found that I.C. § 32-29-8-3 precluded Citi's claim because it failed to intervene until more than a year after it first acquired interest in the Property.ILB: for more on MERS, start with this ILB entry from March 5, 2011, headed "MERS? It May Have Swallowed Your Loan".
However, our analysis does not end here. Citi goes on to argue that I.C. § 32-29-8-3 does not apply because MERS — as the mortgagee on record — should have been given notice of ReCasa's initial foreclosure lawsuit instead of Irwin Mortgage. As a result, Citi maintains that its interest in the Property was not eliminated by ReCasa's foreclosure. This argument requires us to look at the relationship between MERS and Irwin Mortgage, which is a matter of first impression in Indiana. ReCasa and Sanders direct us to a factually similar case outside of our jurisdiction. [The case is Landmark Nat’l Bank v. Kesler, 216 P.3d 158, 161 (Kan. 2009).] While we note that this case is not binding on our court, we nevertheless find it instructive to our analysis. * * *
We choose to follow the persuasive reasoning of the Landmark case because it is factually similar to the present case. Like Landmark, Citi seeks to have the default judgment set aside based on the fact that it received its interest from MERS, which served as the mortgagee “solely as nominee” for Irwin Mortgage. (Appellant's App. p. 88). Thus, when Irwin Mortgage filed a petition and disclaimed its interest in the foreclosure, MERS, as mere nominee and holder of nothing more than bare legal title to the mortgage, did not have an enforceable right under the mortgage separate from the interest held by Irwin Mortgage. With respect to notice, just as the mortgage in Landmark referenced all notice to be sent to the lender, here, too, the mortgage states that notice to the lender should be sent to the lender's address, or “10500 Kincaid Drive, Fishers, IN 46038,” which is the address of Irwin Mortgage. (Appellant's App. p. 88). Thus, we find that the trial court did not abuse its discretion when it declined to set aside ReCasa's amended default judgment. * * *
ROBB, C.J., concurs.
BROWN, J., dissents with separate opinion. [that begins, at p. 12 of 15] I respectfully dissent from the majority opinion with respect to its application of Ind. Code § 32-29-8-3 and its conclusion that MERS did not have an enforceable right under the mortgage.
In R.P. & L.P., Alleged to be C.H.I.N.S.; N.P. v. I.D.C.S. , a 17-page opinion, Judge Riley concludes:
Based on the foregoing, we conclude that (1) the trial court had jurisdiction even though the trial court failed to conduct a factfinding hearing within the 60-day statutory time limit; (2) DCS presented sufficient evidence to prove by a preponderance of the evidence that R.P. and L.P. are CHINS; and (3) the trial court did not deny Mother due process.NFP civil opinions today (2):
NFP criminal opinions today (3):
Posted by Marcia Oddi on May 17, 2011 11:33 AM
Posted to Ind. App.Ct. Decisions