In Indiana, as in most states, a mortgage must be properly acknowledged in order to be valid. This means that the notary present at the mortgage closing must make a written statement confirming that the notary witnessed the mortgagors sign the mortgage documents. If the notary acknowledgement is incomplete or improperly formatted, the mortgage is invalid.
Bankruptcy trustees use their powers under 11 U.S.C. § 544 to avoid mortgages that are defective. In 2007, the Indiana legislature passed an amendment to the recording statute that provided mortgages with certain technical defects would be treated as properly recorded mortgages (a ‘curative’ statute). Despite this amendment, bankruptcy trustees continued to file actions to avoid defective mortgages, arguing that the 2007 Amendment only applied to mortgages executed after July 1, 2007, the date of the amendment.
The 7th Circuit Court of Appeals issued a decision on February 19, 2010 that clarified this issue. The Court held that the 2007 Amendment applied to all mortgages, regardless of when they were executed. This is a positive result for creditors. It means that, in cases filed after July 1, 2007, the bankruptcy trustees are unable to avoid mortgages based on technical defects in the notary acknowledgement. This case applies to mortgages filed in the state of Indiana.
If you have any questions, please contact Laura Faulkner at lfaulkner@weltman.com.
The Southern District of Indiana and the Southern District of Ohio are revising their Local Rules effective December 1, 2009. Both jurisdictions are revising their Rules to require creditors to attach a post-petition payment history to motions for relief from stay in Chapter 13 cases.
Additionally, the Southern District of Ohio will require additional documentation to be supplied with motions for relief from stay on real estate. Creditors will be required to attach a copy of the recorded deed upon which the debtor acquired the property to the motion for relief from stay.
Please include these additional documents when referring motions for relief form stay to our office in order for us to more quickly process the motion.
Effective December 1, 2009, the Federal Rules of Bankruptcy Procedure will be updated. The most significant change that affects creditors is the change in various time periods. The Rules set forth a number of deadlines for filing pleadings or responses to pleadings. These deadlines are not consistent and oftentimes fall on weekends or holidays. The updated Rules streamline these deadlines to multiples of seven. For example, a 15-day objection period will be shortened to 14 days, while a 20-day objection period will be extended to 21 days.
Similarly, the 10-day stay under Rule 4001 will be extended to 14 days. Under the current rule, an order granting relief from stay is effective 10 days after the date of the order. Starting December 1, 2009, an order granting relief from stay will not be effective until 14 days after the date of the order. Some judges permit a waiver or modification of this rule. Weltman, Weinberg & Reis will continue to seek these waivers and modifications in the jurisdictions that permit it.
The Federal Rules of Bankruptcy Procedure are adopted in all courts, so these changes will affect creditors in every jurisdiction in which they file bankruptcy pleadings. Although they create additional burdens for creditors, the underlying goal is to protect debtors’ sensitive financial information and identities.
