All Forum Posts by: Jason Duhn

(Not legal advice)

Excellent post, good information there.

I practice in Indiana, so the below may not be relevant/correct for other jurisdictions.

Some additional caveats/tips I would add:

- if you have a bankruptcy filer filing multiple bankruptcies to stave off a foreclosure sale, especially after the second/third bankruptcy filing within a year, and you attempt to seek In Rem relief, it is a good idea to get a certified copy of the Order for Relief and record it with the county. This is a potential block against a bankruptcy filer transferring the property to another person/entity who then files another bankruptcy to continue staving off the foreclosure sale.

- at least in Indiana, when a debtor has a previous bankruptcy dismissed in the last year, there is case law to support that the 30 day stay after the first dismissed bankruptcy within a year, cannot be extended after the expiration of the 30 days.  So in other words, the bankruptcy filer has to get an order extending the stay within those 30 days, or stay cannot be extended.

- be wary of Chapter 11 bankruptcy filings, on a pacer search it may look like a Chapter 11 was dismissed/closed, but often times the Court may close Chapter 11's for administrative reasons, while the Chapter 11 is pending, so it isn't really dismissed/closed. That could play into the analysis of the timing of the if the bankruptcy filer files a string of bankruptcies under different chapters.

In Indiana it is.  Maybe different depending on the State your in.  Process varies a lot by State, and even by County.

Hello,

I'd be happy to try to answer questions about Indiana real estate you may have.

Thanks,

Jason Duhn

Law Office of Jason Duhn

Hello,

@Chris Seveney , I suspect you are absolutely correct in that it isn't worth the cost of potentially thousands to chase down hundreds, and then the cost of collecting may ultimately be determined by the Court to be noncollectable.  Of course it always depends on the specifics though.

I've been a practicing attorney in Indiana for close to 14 years (4 years on Debtor BK side, 10 years on Creditor side).  Unfortunately in Indiana bk, there aren't very clear guidelines when it comes to fees/costs in Notices of Post-Petition Fees. It would be nice if there were, but it can vary greatly depending on which Court/Trustee/Debtor Counsel is involved. I've seen one or two Indiana BK Courts' opinions on the issue, and the opinions basically indicated they will not issue rulings as to the reasonableness of the amounts without evidence gather, witnesses, hearing, etc.  So it is usually more economical to try to come to agreement with the other side as to an amount vs going down that path.   This is especially true for the Indiana Northern BK Trustees (and some of the Northern Debtor Counsels), as several of them closely monitor Notices of Post-Petition Fees, and they object knowing the reality that most creditors will make the economical decision to reduce the fee/charge.

I have great respect for the BK Trustee's in my State of Indiana, and my Colleagues representing Debtors in Bankruptcy on the opposite side.  I share your frustration though, as I feel this part of the bankruptcy process gets abused sometimes against Creditors with perfectly valid/reasonable fees or charges they are attempting to collect on.

Thanks,

Jason Duhn

Law Office of Jason Duhn

Hello,

I haven't had any dealings with any local title companies in Whitley county.  Most of my Clients, usually provide their own titlework (as they have their own associated title company).  I've often seen the two title companies list below frequently, which I believe are national and/or Indiana statewide.  You may want to research them, check reviews, and make sure they will meet your needs.  

Also, I always tell people, with titlework you get what you pay for, i.e. not always good to go with the cheapest.

Meridian Title

Vylla Title

Thanks,

Jason Duhn

Law Office of Jason Duhn

Hello,

Since I primarily handle residential real estate issues, I haven't had cause to have dealings with many attorneys focused on commercial issues.  You might try researching one of the below law firms.  I cannot speak as to how good they are, only that I've heard of them before.  Perhaps someone else in the forums can share their experiences.

Kroger Gardis & Regas, LLP

Rubino, Ruman, Crosmer & Polen

Thanks,

Jason Duhn

Law Office of Jason Duhn

Hello,

If you can provide some additional details, I can make a recommendation for you.  The legal field has become very specialized.  Are you looking for something related to commercial or residential properties, debtor side or creditor side, federal or state court, corporation setup or debt collection, etc ?

Thanks,

Jason Duhn

Law Office of Jason Duhn

Hello,

Again I'm using Indiana as the hypothetical, NJ could be different.  

It is not guaranteed that your offer will be higher than what the homeowner owes. Too many variables to predict.  But you can get an idea of what they owe from the signed judgment and what the good through date of the figures were for that judgment.  

As to a shortage of foreclosures, at least in the short term for Indiana I think there will be.  It may be the same situation in other States.  I attended a Sheriff sale in Indiana in January 2021.  In a normal Sheriff sale for that county, they hold around 50-200 sales on the date of the Sheriff sale.  Usually something like 30% sell to a third party.  But at the January 2021 sale, 100% of the sales sold to a third party.  I have never seen that before in my 14 years practicing law.

Thanks,

Jason Duhn
Law Office of Jason Duhn

Hello,

I practice in Indiana, which is a judicial foreclosure State, so my response below is based on Indiana practices/law.  I'm not sure which State your properties are in.  The answer could vary greatly depending on what jurisdiction the properties are in.  The answer could also vary depending on what type of lien is being foreclosed (i.e. mortgage vs. a land contract).

At least for Indiana, not all foreclosure activities are halted currently.  i.e. conventional mortgage loans are still proceeding in many cases.  If a Sheriff sale is set, then subject mortgage is probably not a government backed loan, and the foreclose is likely proceeding.

For Indiana though, assuming it is mortgage being foreclosed, the bank has no ownership in the property unless it becomes the owner by being the highest bidder at the Sheriff Sale.  So no point in reaching out to the bank directly, and they probably would not speak to you anyways, due to privacy reasons.  You can reach out to the current owner and make an offer.  

If the offer is enough to satisfy the mortgage, the borrower can obtain a payoff quote for the mortgage.  By paying off the mortgage that is being foreclosed on, then the foreclosure sale should get cancelled.  But watch out for additional liens on the property, they may also be foreclosing, and since the Sheriff didn't happen, those liens probably survive.

If the offer is not enough to satisfy the mortgage, then the borrower can take your offer and submit an application for a short sale to the bank.  The bank does not have to accept, and depending on what type of mortgage it is, they may not be able to accept a short sale. If there is already a sheriff sale set, then the homeowner will have to act quickly, as it takes time for a short sale packet to be reviewed/accepted.

Again this information is just for Indiana, but if there is an upcoming Sheriff sale, you might get the property cheaper if you buy it at the Sheriff Sale, and that has the added benefit of potentially wiping out other liens on the property.

Thanks,

Jason Duhn

Indiana Attorney

Last night I watched a live free webinar presented by BiggerPockets and hosted by Brandon Turner on How to Invest in Small Multifamily Properties.  Brandon did an excellent job.  I thought there was a lot of really good information in it, with some great practical tips on how to get started in real estate (which I think are applicable to more than just Multifamily, but Brandon makes a good case for focusing on Multifamily Properties).  

Thank you for hosting Brandon!

@Brandon Turner

@Brandon Turner