Indiana Code 32-30-10.5-8. Presuit notice; contents; notices by creditor and court of debtor’s right to settlement conference; debtor’s contact information; notice to insurance company; exceptions; form of notice
(1) Inform the debtor that:
Terms Used In Indiana Code 32-30-10.5-8
- Appeal: A request made after a trial, asking another court (usually the court of appeals) to decide whether the trial was conducted properly. To make such a request is "to appeal" or "to take an appeal." One who appeals is called the appellant.
- authority: refers to the Indiana housing and community development authority created by IC 5-20-1-3. See Indiana Code 32-30-10.5-1.2
- Bankruptcy: Refers to statutes and judicial proceedings involving persons or businesses that cannot pay their debts and seek the assistance of the court in getting a fresh start. Under the protection of the bankruptcy court, debtors may discharge their debts, perhaps by paying a portion of each debt. Bankruptcy judges preside over these proceedings.
- Complaint: A written statement by the plaintiff stating the wrongs allegedly committed by the defendant.
- creditor: means a person:
Indiana Code 32-30-10.5-2
- Evidence: Information presented in testimony or in documents that is used to persuade the fact finder (judge or jury) to decide the case for one side or the other.
- Foreclosure: A legal process in which property that is collateral or security for a loan may be sold to help repay the loan when the loan is in default. Source: OCC
- foreclosure prevention agreement: means a written agreement that:
Indiana Code 32-30-10.5-4
- Judgment: means all final orders, decrees, and determinations in an action and all orders upon which executions may issue. See Indiana Code 1-1-4-5
- Mortgage: The written agreement pledging property to a creditor as collateral for a loan.
- mortgage: means :
Indiana Code 32-30-10.5-5
- Property: includes personal and real property. See Indiana Code 1-1-4-5
- Settlement: Parties to a lawsuit resolve their difference without having a trial. Settlements often involve the payment of compensation by one party in satisfaction of the other party's claims.
- Sheriff: means the sheriff of the county or another person authorized to perform sheriff's duties. See Indiana Code 1-1-4-5
- Summons: Another word for subpoena used by the criminal justice system.
- United States: includes the District of Columbia and the commonwealths, possessions, states in free association with the United States, and the territories. See Indiana Code 1-1-4-5
(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.
(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 office of judicial 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.
As added by P.L.105-2009, SEC.20. Amended by P.L.68-2010, SEC.3; P.L.170-2011, SEC.8; P.L.116-2011, SEC.4; P.L.6-2012, SEC.212; P.L.102-2012, SEC.2; P.L.161-2018, SEC.44.