What is Indiana’s Foreclosure Process?

by Stan Wruble on March 13, 2008

Foreclosure is all the rage these days, as banks are foreclosing on homes at a record rate.  (Just recently, one lender even got in trouble for instigating foreclosure proceedings on the wrong property.)  All of this foreclosure activity is obviously not a good thing, but if you are ever faced with foreclosure, here are the basics you should know:

Foreclosure Lawsuit

The foreclosure process begins when a lender files a lawsuit in court against the borrower because the borrower has defaulted on the loan (default is just a fancy term for “not paying”).  Indiana law does not require a lender to send a default notice to the borrower before filing the lawsuit, but most lenders do that as a practical matter (after all, it’s cheaper and easier to get a borrower to pay without going through the legal process—lawyers are expensive!).

The date the mortgage was executed controls the pre-foreclosure period between filing the lawsuit and the foreclosure sale date.  The pre-foreclosure period is a time when action can be taken to avoid the foreclosure, which they have been warned is coming. Most often this is three months, but for older mortgages it can be six or twelve months.  This of course depends on the terms of the mortgage.  (However, there is no waiting period for foreclosure on abandoned properties.)

Order of Foreclosure and Redemption Rights

After the pre-foreclosure period expires and the Court orders the foreclosure, a copy of the Court’s order is issued to the sheriff.  After receiving the order, the sheriff proceeds with the foreclosure sale.

At any time before the foreclosure sale, a borrower may “satisfy” the judgment by paying the debt, interest, and costs owed.  If this happens, the complaint must then be dismissed, and the lender remains in his/her home.  The foreclosure proceedings stop completely. This is called a borrower’s “redemption right” – everyone gets the chance to redeem his/her credit!

Mechanics of the Notice of Sale and Auction 

If the borrower does not exercise her right of redemption after the Court enters a final judgment of foreclosure, the sheriff appoints an auctioneer to conduct the foreclosure sale.  The notice of sale must be published once a week for three weeks in a local newspaper, and the first publication must occur 30 days before the sale to give ample notice.  The sheriff also must post the notice in a least three public places, as well as the county courthouse.  Finally, the sheriff must notify the borrower of the notice of sale. The owner may reside in the property, rent free, until the foreclosure sale, provided the owner is not committing “waste,” which essentially means tearing up the property.

Immediately after the foreclosure sale, the sheriff transfers the property ownership to the winning bidder.  If a lender postpones the sale, another sheriff’s sale request must be filed, and the notices must be re-served and republished.  (Some lenders will postpone sheriff’s sales to try and work out a resolution with the borrower.)  Once the sale is complete, however, a borrower no longer has redemption rights. The property is foreclosed upon, and the process is over.

Indiana Foreclosure Laws

The laws that govern Indiana foreclosures are found in the Indiana Code, Article 29 (Mortgages), Chapter 7 (Foreclosure, Redemption, Sale, Right to Retain Possession). You can view these statutes on the Web.

editor’s note:
This web-site is not a lawyer, but Stan Wruble is. Comments are open, but if you need specific legal advice,  please contact him directly.


{ 6 comments… read them below or add one }

Anonymous March 13, 2008 at 12:03 pm

RealtyTrac returns 1,373 results for South Bend today, most presumably foreclosures. I think many people are going to be familiar with this process by the time the markets stabilize.

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Mike March 14, 2008 at 7:26 pm

What if there is a serious breach of a mortgage clause not regarding the amount due? Must the damage be reduced to a dollar amount or can the property be taken over?

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Mike March 14, 2008 at 7:28 pm

Or for example the mortgage included serious restrictions and the owner ignored those causing serious harm?

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gary dixon December 21, 2009 at 12:31 pm

my house just went into foreclosure with bank of america ,i tried to give them the keys to the property but they said i didnt qualify. whats up with that .dont they have to take the house. i told them i would sign waivers for a quick sale .what should i do! if anything

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Robert January 2, 2012 at 4:57 pm

If I let the house go back for a forclouser and agree to sign a waiver for quick sale do i have to pay the balance of morgage remaining after sale. does Bank of America usually accept this process?
Thank you for your time
Robert

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allen davis January 29, 2012 at 7:59 pm

i fell into forclosure in early 2006. it was finalized in late 2006. but they never put it up for sale or sherrifs auction. in 2009 i should have been eligible for a mortgage. but since they never sold it, i couldnt do anything. it was still in my name. in 2009 when they had me put it up for sale so i could get it out of my name. i wasnt even allowed on the premisses. i still cant get a home loan because it was still in my name in 2009. even though the forclosure had been fina lfor three years. is there anything i can do? my life has been on hold for six years and counting

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