Editor: David Reiss
Brooklyn Law School

July 15, 2013

Indiana Supreme Court Allows Citimortgage to Intervene in ReCasa’s Foreclosure Proceeding

By Devon Avallone

In Citi v. Barnabas, 975 N.E.2d 805 (Ind. 2012), the Indiana Supreme Court held that Citimortgage had a right to intervene in ReCasa’s foreclosure proceeding and sale since Citi held a first mortgage on the property, reversing the decision of the Court of Appeals and trial court.

The homeowner, Barnabas, granted a first mortgage on the property in 2005 to Irwin Mortgage Corp. (Irwin) with MERS designated as nominee and mortgagee, which later assigned the mortgage to Citimortgage (Citi). In 2007, Barnabas granted a second mortgage to ReCasa. Barnabas defaulted on the second mortgage and ReCasa commenced foreclosure proceedings in 2009. In response to the foreclosure proceedings, Irwin filed a disclaimer of interest in the property. When Citi learned the property was already sold through ReCasa’s foreclosure sale, Citi filed a motion to intervene, which was denied by the trial court. The Court of Appeals upheld the trial court’s decision.

The Supreme Court found the trial court erred in denying Citi’s motion, as ReCasa didn’t dispute the validity of the assignment from MERS to Citi, but rather argued that MERS lacked a property interest, and therefore so did Citi. However, the court stated that “the assignee of rights under a contract stands in the shoes of the assignor and can assert any rights that the assignor could have asserted,” citing Lake Cnty. Trust Co. v. Household Merch., Inc., 511 N.E.2d 512, 514 (Ind. Ct. App. 1987) giving MERS the same property interest as the original lender.

When examining the mortgage language, the court found MERS’s designation as both “nominee” and “mortgagee” to be conflicting based on standard definitions for both terms, rendering the mortgage ambiguous. To determine MERS’s interest, the court looked to the parties’ intent and found that the legal title held by MERS was sufficient to give MERS foreclosure rights, acting as agent for the lender, Irwin.

ReCasa further argued that Irwin’s disclaimer of interest extinguished MERS’s property rights. The court notes that MERS has an agency relationship not only to Irwin, but also to all its member banks, and therefore does not disclaim the interests of another member bank in the property, such as Citi.

Although Citi’s motion to intervene was untimely, the court held that if Citi were not permitted to intervene, its interest would be destroyed in its entirety, prejudicing Citi. The court further noted that although intervention is typically “disfavored,” it is appropriate in certain “extraordinary and unusual circumstances,” particularly when “the petitioner’s rights cannot otherwise be protected.” Bd. of Comm’rs of Benton Cnty. v. Whistler, 455 N.E.2d 1149, 1153–54 (Ind. Ct. App. 1983). Furthermore, Citi’s delay in filing was a direct result of ReCasa’s failure to notice either Citi or MERS of the foreclosure proceedings. ReCasa argued that notice to an attorney representing Citi in the Barnabas bankruptcy proceeding provided Citi with actual knowledge of the foreclosure. But the court held that “actual knowledge of the suit does not satisfy due process or give the court in personam jurisdiction.” Overhouser v. Fowler, 549 N.E.2d 71, 73 (Ind. Ct. App. 1990) (quoting Glennar Mercury Lincoln, Inc. v. Riley, 167 Ind. App. 144, 152, 338 N.E.2d 670, 675 (1975)).

The court was hesitant to outline MERS’s rights as a mortgagee under Indiana statute, though it noted the original statute might soon require modernization to account for changes in the mortgage industry.

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