Getting a co-signor off a loan

Not the easiest thing to do. Generally, you would have three options:

1. Refinance the property;
2. Payoff;
3. Novation;

Novation meaning a new loan, as in someone assuming your mortgage. You need to check the loan documents to see what is allowed or not, but I would not think a novation likely with the current real estate/mortage market.

New Real Estate Case from the Indiana Court of Appeals

The Indiana Court of Appeals handed down Hays v. Hays (PDF format) yesterday. At issue was interpreting a deed's first-right-of-refusal clause and Indiana's partition statute. The parties involved were the son of the grantors and the wife of a deceased son.

Two things come to mind as I read the case. First, that good drafting follows having a good enough imagination to foresee the reasonable contingencies that might follow out of the relationship of people to the subject of the deal. Lacking any means for deducing the grantors' intentions, they may have considered that one son would die leaving a wife and then, too, maybe not.

The second thing coming to my mind is the operation of the partition process. The property will now be sold. Not part of it, but all of it. From my reading, I think saying that is not the result desired by the son is a gross understatement. Whether selling the property is best for the property is a question that cannot be answered by the opinion.

Sheriff's Sales

Indiana Commercial Foreclosure Law posted Indiana Sheriff's Sales - Local Rules, Customs and Practices Control which provides some good information about sheriff's sales and links to online sources:

Although the Indiana Code covers the fundamentals of the sheriff's sale process, the specific rules and procedures vary by county. I presented at a foreclosure-related seminar last month, and one of my co-presenters accurately stated, in essence, that there are 92 counties in Indiana and therefore 92 different sets of rules applicable to sheriff's sales. My advice is to call or visit the local civil sheriff's office to confirm the hoops through which you must jump, and when, to start and finish a successful sheriff's sale

With Indiana foreclosures still continuing at a good pace, I suspect this area is one that we all need more about.

Mr Waller did not mention Madison County but you can find some useful information about us in my post Foreclosure sales - Madison County, Indiana.

Indiana Commercial Foreclosure Law Blog on Sheriff’s Sales

A shoutout to Indiana Commercial Foreclosure Law Blog and for its post, Sheriff’s Sales Of Separate Tracts: Principal’s Real Estate First, Surety’s Second:

The Keesling v. T.E.K. Partners case has produced a second appellate court opinion. I wrote about Keesling I on March 23, 2007. That post dealt with the liability of sureties (or accommodation parties) when an original obligation is materially altered. The latest opinion, decided March 6 (2008 Ind. App. LEXIS 431) (KeeslingII.pdf), discusses among other things the order (sequence) of the sheriff’s sales when there are multiple tracts to be sold. So, Keesling I discusses liability issues, and Keesling II addresses judgment enforcement-related matters. Commercial lenders may want to note Keesling II in the event they need guidance where there is more than one parcel of real estate subject to a foreclosure sale.

I gauge Indiana Commercial Foreclosure Law Blog as being more of a lawyer blog than for the general public. John Waller does a great job of keeping his blog focused and well-written. His chosen area of law is a bit outside of my own but his writing makes it interesting enough to keep an eye on what his blog.

Mortgage, Refinance Advice | Truthful Lending dot Com

I do not know much about Truthful Lending dot Com but so I offer its Mortgage, Refinance Advice without any endorsement:

"Irvine, California - At Truthful Lending dot Com we believe that the more educated you are about the mortgage and refinance process, the more likely you are to make the best decision. That's why we have a library of mortgage and refinance articles for you to read so that there are no surprises during the loan process and so that you can protect yourself against unscrupulous mortgage and refinance practices."

Mortgage Foreclosure Case for the Guiness Book of World Records

Read Determined Homeowner Staves Off Foreclosure for 11 Years. I am amazed. That beats my personal best by about nine years. I will only say that I do not think this will be easily duplicated.

Indiana Commercial Foreclosure Law: From The New York Times: "Foreclosures Hit A Snag For Lenders"

Indiana Commercial Foreclosure Law has a post that seems to fit into what I wrote earlier about Ohio foreclosures. I still have nto time to read all of From The New York Times: "Foreclosures Hit A Snag For Lenders" but hope to do so this weekend.

"If you deal with mortgage security pools, and in particular the foreclosure of mortgages within such a pool, you should read today's interesting article from The New York Times: 'Foreclosures Hit a Snag For Lenders'. The article addresses federal court foreclosure litigation in Ohio and specifically an opinion by Judge Boyko dismissing fourteen cases because the plaintiff (foreclosing entity) failed to prove it had standing to pursue the cases. I located the Judge's October 1 order referenced in the article: .pdf. My colleague Chris Jacobson helped find the October 31 opinion: BoykoOpinion.pdf.

Homeowners must follow health codes

From last week's Indiana Lawyer Homeowners must follow health codes:

"Owners of houses or mobile homes they construct themselves still must follow Indiana health codes, the Indiana Court of Appeals ruled today. The appellate court overturned a trial court's ruling that a section of Indiana code exempted certain homeowners from obtaining a permit for septic systems."

Ohio Foreclosures - What in the world?

This blog concerns itself (mostly ) with Indiana law and my practice does not include foreclosures (well, not much since I left behind consumer bankruptcy), but I get curious when I run across articles on two different blogs about Ohio and its foreclosures.

Bank Lawyer's Blog (which appears to be a very interesting blog on its subject) published Tale of Two Judges, and what was to me a very interesting and long paragraph:

There's been much back-and-forth over the past few days on various discussion boards about these decisions, especially Judge Boyko's. Some assert that this is evidence of massive documentation deficiencies in the mortgage backed securitization arena. As one commentator alleged in the linked New York Times article, notes may have been "assigned" to more than one loan pool, with no actual written "assignment" ever prepared. Other consumer representatives claim that they've seen instances of what appear to be the mass production of fraudulent assignments, with one claiming that "[w"]e have one woman, with VERY unique name, acting as Notary, officer, and various other positions in six different states for over 20 different companies. Also, dozens of different 'gestations' of her 'mark' which is a simple initial to her first name." That consumer advocate vows that they will wage a scorched earth policy that challenges every bit of evidence of assignment presented, and that "EVERYTHING a lender and their counsel will now do will be questioned in our answers and NOTHING will be accepted as fact until proven up via hard evidence since so many complaints, pleadings, affidavits, and accountings are boilerplate and produced by OTHERS, not the actual LENDER or their servicer, sub servicer or special servicer!"

Now, if the problems described above with assignments do exist then this is a huge problem. I agree wholeheartedly with the sentiment that ends that article.

Meanwhile, over at Business Law Prof has The Home Foreclosure Mess and Ohio Court Stops Foreclosures by SIVs.

I think others have noticed our high foreclosure rate (see Foreclosures Down in East Central Indiana). If the problems happening in Ohio have substance, then we may see a repeat here. I think it may be a good idea to keep an eye on things next door. I will advance a theory of mine about how we handle foreclosures in Indiana. We look to federal bankruptcy law to save our clients, try to work a deal that saves the home, or retreat and let the foreclosure take place (and then send the clients off for a bankruptcy, if need be). Between federal bankruptcy law and the economic dislocations that have wracked my part of the start for most of the past twenty to twenty-five years, we really do not know foreclosure law in any detail. I will certainly want to see any assignments in any future foreclosure cases that come my way.