Bill Text: IN HB1537 | 2013 | Regular Session | Introduced
Bill Title: Abandoned houses.
Spectrum: Slight Partisan Bill (Republican 3-1)
Status: (Introduced - Dead) 2013-01-31 - Representative Riecken added as coauthor [HB1537 Detail]
Download: Indiana-2013-HB1537-Introduced.html
Citations Affected: IC 32-29-7-3; IC 32-30; IC 36-7-36-1.
Synopsis: Abandoned houses. Permits an enforcement authority to file
a praecipe for a sheriff's sale following a foreclosure action if: (1) the
creditor does not file a praecipe within 30 days; and (2) the
enforcement authority has issued an abatement order with respect to the
property. Requires the plaintiff in a mortgage foreclosure action to
notify the appropriate enforcement authority: (1) when the plaintiff
files the complaint; and (2) if the complaint is dismissed. Permits an
enforcement authority to petition a court to determine that a property
is abandoned before a creditor has filed a foreclosure action. Requires
the enforcement authority to serve a copy of its petition on the debtor,
creditor, and any other appropriate party. Provides that, if a court finds
that the property is abandoned, the creditor must file a foreclosure
action within 90 days. Makes conforming amendments.
Effective: July 1, 2013.
January 22, 2013, read first time and referred to Committee on Judiciary.
PRINTING CODE. Amendments: Whenever an existing statute (or a section of the Indiana Constitution) is being amended, the text of the existing provision will appear in this style type, additions will appear in this style type, and deletions will appear in
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A BILL FOR AN ACT to amend the Indiana Code concerning
property.
(1) the period is:
(A) twelve (12) months in a proceeding for the foreclosure of a mortgage executed before January 1, 1958; and
(B) six (6) months in a proceeding for the foreclosure of a mortgage executed after December 31, 1957, but before July 1, 1975; and
(2) if the court finds under IC 32-30-10.6 or IC 32-30-10.7 that the mortgaged real estate has been abandoned, a judgment or decree of sale may be executed on the date the judgment of foreclosure or decree of sale is entered, regardless of the date the mortgage is executed.
(b) A judgment and decree in a proceeding to foreclose a mortgage that is entered by a court having jurisdiction may be filed with the clerk in any county as provided in IC 33-32-3-2. After the period set forth in subsection (a) expires, a person who may enforce the judgment and decree may file a praecipe with the clerk in any county where the judgment and decree is filed, and the clerk shall promptly issue and certify to the sheriff of that county a copy of the judgment and decree under the seal of the court. However, if:
(1) a praecipe is not filed with the clerk within
(A) the period specified in subsection (a) expires; or
(B) the judgment and decree is filed; and
(2) the sale is not:
(A) otherwise prohibited by law;
(B) subject to a voluntary statewide foreclosure moratorium; or
(C) subject to a written agreement that:
(i) provides for a delay in the sale of the mortgaged real estate; and
(ii) is executed by and between the owner of the mortgaged real estate and a party entitled to enforce the judgment and decree;
an enforcement authority that has issued an abatement order under IC 36-7-36-9 with respect to the mortgaged real estate may file a praecipe with the clerk in any county where the judgment and decree is filed. If an enforcement authority files a praecipe under this subsection, the clerk of the county in which the praecipe is filed shall promptly issue and certify to the sheriff of that county a copy of the judgment and decree under the seal of the court.
(c) Upon receiving a certified judgment under subsection (b), the sheriff shall, subject to section 4 of this chapter, sell the mortgaged premises or as much of the mortgaged premises as necessary to satisfy the judgment, interest, and costs at public auction at the office of the sheriff or at another location that is reasonably likely to attract higher competitive bids. The sheriff shall schedule the date and time of the sheriff's sale for:
(1) a date not later than one hundred twenty (120) days after the date on which the judgment and decree under seal of the court are certified to the sheriff by the clerk; and
(2) a time certain between the hours of 10 a.m. and 4 p.m. on any day of the week except Sunday.
(d) Before selling mortgaged property, the sheriff must advertise the
sale by publication once each week for three (3) successive weeks in
a daily or weekly newspaper of general circulation. The sheriff shall
publish the advertisement in at least one (1) newspaper published and
circulated in each county where the real estate is situated. The first
publication shall be made at least thirty (30) days before the date of
sale. At the time of placing the first advertisement by publication, the
sheriff shall also serve a copy of the written or printed notice of sale
upon each owner of the real estate. Service of the written notice shall
be made as provided in the Indiana Rules of Trial Procedure governing
service of process upon a person. The sheriff shall charge a fee of ten
dollars ($10) to one (1) owner and three dollars ($3) to each additional
owner for service of written notice under this subsection. The fee is:
(1) a cost of the proceeding;
(2) to be collected as other costs of the proceeding are collected;
and
(3) to be deposited in the county general fund for appropriation
for operating expenses of the sheriff's department.
(e) The sheriff also shall post written or printed notices of the sale
at the door of the courthouse of each county in which the real estate is
located.
(f) If the sheriff is unable to procure the publication of a notice
within the county, the sheriff may dispense with publication. The
sheriff shall state that the sheriff was not able to procure the
publication and explain the reason why publication was not possible.
(g) Notices under subsections (d) and (e) must contain a statement,
for informational purposes only, of the location of each property by
street address, if any, or other common description of the property other
than legal description. A misstatement in the informational statement
under this subsection does not invalidate an otherwise valid sale.
(h) The sheriff may charge an administrative fee of not more than
two hundred dollars ($200) with respect to a proceeding referred to in
subsection (b) for actual costs directly attributable to the administration
of the sale under subsection (c). The fee is:
(1) payable by the person seeking to enforce the judgment and
decree; and
(2) due at the time of filing of the praecipe;
under subsection (b).
the mortgagee or the mortgagee's assigns may proceed in the circuit
court of the county where the real estate is located to foreclose the
equity of redemption contained in the mortgage.
(b) If the real estate is located in more than one (1) county, the
circuit court of any county in which the real estate is located has
jurisdiction for an action for the foreclosure of the equity of redemption
contained in the mortgage.
(c) If a person brings an action to foreclose a mortgage under
this section, the person shall, not later than the time of filing, serve
a copy of the complaint on the enforcement authority (as defined
in IC 36-7-9-2) that has jurisdiction in the location of the property
that is the subject of a mortgage foreclosure action.
(d) If a mortgage foreclosure action is withdrawn or dismissed
(with or without prejudice), the plaintiff shall, not later than three
(3) days after the action is withdrawn or dismissed, notify in
writing:
(1) the enforcement authority that has jurisdiction in the
location of the property that is the subject of a mortgage
foreclosure action that the action has been dismissed; and
(2) the property owner.
(1) Inform the debtor that:
(A) the debtor is in default;
(B) the debtor is encouraged to obtain assistance from a mortgage foreclosure counselor; and
(C) if the creditor proceeds to file a foreclosure action and obtains a foreclosure judgment, the debtor has a right to do the following before a sheriff's sale is conducted:
(i) Appeal a finding of abandonment by a court under IC 32-30-10.6 or IC 32-30-10.7.
(ii) Redeem the real estate from the judgment under IC 32-29-7-7.
(iii) Retain possession of the property under IC 32-29-7-11(b), subject to the conditions set forth in IC 32-29-7-11(b).
(2) Provide the contact information for the Indiana Foreclosure Prevention Network.
(3) Include the following statement printed in at least 14 point boldface type:
"NOTICE REQUIRED BY STATE LAW
Mortgage foreclosure is a complex process. People may approach you about "saving" your home. You should be careful about any such promises. There are government agencies and nonprofit organizations you may contact for helpful information about the foreclosure process. For the name and telephone number of an organization near you, please call the Indiana Foreclosure Prevention Network.".
(b) The notice required by subsection (a) shall be sent to:
(1) the address of the mortgaged property; or
(2) the last known mailing address of the debtor if the creditor's records indicate that the mailing address of the debtor is other than the address of the mortgaged property.
If the creditor provides evidence that the notice required by subsection (a) was sent by certified mail, return receipt requested, and in accordance with this subsection, it is not necessary that the debtor accept receipt of the notice for an action to proceed as allowed under this chapter.
(c) Except as provided in subsection (e) and section 10(g) of this chapter, if a creditor files an action to foreclose a mortgage, the creditor shall:
(1) in the case of a foreclosure action filed after June 30, 2009, but before July 1, 2011, include with the complaint served on the debtor, on a form prescribed by the authority; and
(2) subject to subsection (f), in the case of a foreclosure action filed after June 30, 2011, include on the first page of the summons that is served on the debtor in conjunction with the complaint;
a notice that informs the debtor of the debtor's right to participate in a settlement conference, subject to section 9(b) of this chapter. The notice under subdivision (1) or (2) must inform the debtor that the debtor may schedule a settlement conference by notifying the court, not later than thirty (30) days after the complaint is served on the debtor, of the debtor's intent to participate in a settlement conference.
(d) If a creditor files an action to foreclose a mortgage, the creditor shall do the following:
(1) Include with the complaint filed with the court:
(A) except as provided in subsection (e) and section 10(g) of this chapter, a copy of the notices sent to the debtor under
subsections (a) and (c), if the foreclosure action is filed after
June 30, 2009, but before July 1, 2011; or
(B) the following, if the foreclosure action is filed after June
30, 2011:
(i) Except as provided in subsection (e) and section 10(g) of
this chapter, a copy of the notice sent to the debtor under
subsection (a).
(ii) The following most recent contact information for the
debtor that the creditor has on file: all telephone numbers
and electronic mail addresses for the debtor and any mailing
address described in subsection (b)(2). The contact
information provided under this item is confidential under
IC 5-14-3-4(a)(13).
(2) For a foreclosure action filed after June 30, 2011, at the time
the complaint is filed with the court, send:
(A) by certified mail, return receipt requested; and
(B) to the last known mailing address of the insurance
company;
a copy of the complaint filed with the court to the insurance
company of record for the property that is the subject of the
foreclosure action.
It is not necessary that the insurance company accept receipt of the
copy of the complaint for the creditor to satisfy the requirement of
subdivision (2). A creditor's failure to provide a copy of the complaint
as required by subdivision (2) does not affect the foreclosure action or
subject the creditor to any liability. Subject to section 9(b) of this
chapter, in the case of a foreclosure action filed after June 30, 2011,
upon the filing of the complaint by the creditor, the court shall send to
the debtor, by United States mail and to the address of the mortgaged
property, or to an address for the debtor provided by the creditor under
subdivision (1)(B)(ii), if applicable, a notice that informs the debtor of
the debtor's right to participate in a settlement conference. The court's
notice must inform the debtor that the debtor may schedule a settlement
conference by notifying the court of the debtor's intent to participate in
a settlement conference. The court's notice must specify a date by
which the debtor must request a settlement conference, which date
must be the date that is thirty (30) days after the date of the creditor's
service of the complaint on the debtor under subsection (c), as
determined by the court from the service list included with the
complaint filed with the court. The court may not delegate the duty to
send the notice the court is required to provide under this subsection to
the creditor or to any other person.
(e) A creditor is not required to send the notices described in this section if:
(1) the mortgage is secured by a dwelling that is not occupied by the debtor as the debtor's primary residence;
(2) the mortgage has been the subject of a prior foreclosure prevention agreement under this chapter and the debtor has defaulted with respect to the terms of that foreclosure prevention agreement; or
(3) bankruptcy law prohibits the creditor from participating in a settlement conference under this chapter with respect to the mortgage.
(f) Not later than June 1, 2011, the authority, in consultation with the division of state court administration, shall prescribe language for the notice required under subsection (c)(2) to be included on the first page of the summons that is served on the debtor in a foreclosure action filed after June 30, 2011. The language must convey the same information as the form prescribed by the authority under subsection (c)(1) for foreclosure actions filed after June 30, 2009, but before July 1, 2011. The authority shall make the language prescribed under this subsection available on the authority's Internet web site. A creditor complies with subsection (c)(2) in a foreclosure action filed after June 30, 2011, if the creditor includes on the first page of the summons served on the debtor:
(1) the language that is prescribed by the authority under this subsection and made available on the authority's Internet web site; or
(2) language that conveys the same information as the language that is prescribed by the authority under this subsection and made available on the authority's Internet web site.
Chapter 10.7. Judicial Determination of Abandonment
Sec. 1. This chapter does not apply to a property with respect to which a foreclosure action has been filed under IC 32-30-10-3.
Sec. 2. As used in this chapter, "enforcement authority" refers to the enforcement authority (as defined in IC 36-7-9-2) that has jurisdiction in the location of the property that is the subject of a mortgage foreclosure action.
Sec. 3. At any time before a mortgage foreclosure action has been filed, the enforcement authority that has jurisdiction in the location of a mortgaged property may petition a court for a
determination that the mortgaged property is abandoned. A
petition filed with the court under this section must:
(1) include a statement of the enforcement authority's
jurisdiction in the location of the mortgaged property;
(2) allege that the mortgaged property is abandoned; and
(3) include evidence that one (1) or more of the conditions set
forth in section 5(a) or 5(b) of this chapter apply.
A petition under this section shall be served on the creditor, debtor,
and any other appropriate party in the manner prescribed by the
Indiana Rules of Trial Procedure.
Sec. 4. (a) Upon receiving a request for a determination of
abandonment from an enforcement authority through a petition
filed with the court and served on the required parties in
accordance with section 3 of this chapter, the court shall issue an
order to show cause as to why the property should not be found to
be abandoned and directing the petitioner, the debtor, the creditor,
and any other person or party the court considers appropriate to
appear before the court on a date and time specified in the order
under subdivision (1). The court's order under this subsection must
do the following:
(1) Direct the parties subject to the order to appear before the
court on a date and time specified by the court. The date
specified under this subdivision must not be:
(A) earlier than fifteen (15) days; or
(B) later than twenty-five (25) days;
after the date of the court's order under this section.
(2) Notify the parties subject to the order that any party
ordered to appear:
(A) may present evidence or objections on the issue of
abandonment to the court:
(i) in writing before the appearance date specified by the
court under subdivision (1); or
(ii) in writing or by oral testimony on the date and at the
time specified by the court under subdivision (1);
in the manner specified by the court; and
(B) has the right to be represented by an attorney when
appearing before the court.
(3) Notify the parties subject to the order that if a party fails
to:
(A) submit written evidence or objections to the court
before the appearance date specified by the court under
subdivision (1); or
(B) appear before the court on the date and at the time
specified by the court under subdivision (1);
the failure to submit evidence or objections or to appear
before the court may result in a finding of abandonment by
the court.
(b) A party subject to an order issued by the court under this
section has the following rights, as described in the court's order
under subsection (a):
(1) The right to present evidence or objections on the issue of
abandonment to the court:
(A) in writing before the appearance date specified in the
court's order under subsection (a)(1); or
(B) in writing or by oral testimony on the date and at the
time specified in the court's order under subsection (a)(1);
in the manner specified by the court.
(2) The right to be represented by an attorney when
appearing before the court.
Sec. 5. (a) Subject to subsection (b), for purposes of an
abandonment determination under this chapter, one (1) or more of
the following constitute prima facie evidence that mortgaged
property is abandoned:
(1) The enforcement authority that has jurisdiction in the
location of the mortgaged property has issued an order under
IC 36-7-36-9 with respect to the property.
(2) Windows or entrances to the mortgaged property are
boarded up or closed off.
(3) Multiple window panes on the mortgaged property are
broken and unrepaired.
(4) One (1) or more doors to the mortgaged property are
smashed through, broken off, unhinged, or continuously
unlocked.
(5) Gas service, electric service, water service, or other utility
service to the mortgaged property has been terminated.
(6) Rubbish, trash, or debris has accumulated on the
mortgaged property.
(7) The mortgaged property is deteriorating and is either
below or in imminent danger of falling below minimum
community standards for public safety and sanitation.
(8) The creditor has changed the locks on the mortgaged
property and for at least fifteen (15) days after the changing
of the locks the owner has not requested entrance to the
mortgaged property.
(9) One (1) or more written statements, including documents
of conveyance, exist that have been executed by the debtor, or
by the debtor's personal representatives or assigns, and that
indicate a clear intent to abandon the mortgaged property.
(10) Other evidence exists indicating a clear intent to abandon
the mortgaged property.
(b) Regardless of whether any of the conditions described in
subsection (a) are found to apply, the failure to either:
(1) present evidence or objections on the issue of
abandonment to the court in writing before the appearance
date specified in the court's order under section 4(a)(1) of this
chapter; or
(2) appear before the court on the date specified in the court's
order under section 4(a)(1) of this chapter;
constitutes prima facie evidence that the mortgaged property is
abandoned.
(c) If the court finds that:
(1) one (1) or more of the conditions described in subsection
(a) apply; or
(2) the circumstances described in subsection (b) apply;
the court shall issue an order finding that the mortgaged property
is abandoned.
Sec. 6. If a court has issued an order under this chapter finding
that the mortgaged property is abandoned, the creditor shall file
an action to foreclose the mortgage not later than ninety (90) days
from the date the court issues its order.
(1) Commercial real property or a vacant structure on commercial real property that is used or was previously used for industrial or commercial purposes, and:
(A) that the owner of the property or structure has declared in writing to be abandoned; or
(B) for which the owner of the property or structure has been given a written order by an enforcement authority to rehabilitate or demolish, and the owner:
(i) has not applied for a permit to rehabilitate or demolish the property or structure; or
(ii) applied for and was granted a permit, but rehabilitation or demolition work has not commenced on the property or
structure within thirty (30) days after the date the permit was
granted.
(2) Real property that has not been used for a legal purpose for at
least six (6) consecutive months and:
(A) in the judgment of an enforcement authority, is in need of
completion, rehabilitation, or repair, and completion,
rehabilitation, or repair work has not taken place on the
property for at least six (6) consecutive months;
(B) on which at least one (1) installment of property taxes is
delinquent; or
(C) that has been declared a public nuisance by a hearing
authority.
(3) Real property that has been declared in writing to be
abandoned by the owner, including an estate or a trust that
possesses the property.
(4) Vacant real property on which a municipal lien has remained
unpaid for at least one (1) year.
(5) Real estate that a court has determined to be abandoned under
IC 32-30-10.6 or IC 32-30-10.7.
