GMAC Mortgage, LLC v. Dyer

965 N.E.2d 762, 2012 WL 1134030, 2012 Ind. App. LEXIS 163
CourtIndiana Court of Appeals
DecidedApril 5, 2012
Docket28A04-1107-MF-404
StatusPublished
Cited by2 cases

This text of 965 N.E.2d 762 (GMAC Mortgage, LLC v. Dyer) is published on Counsel Stack Legal Research, covering Indiana Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
GMAC Mortgage, LLC v. Dyer, 965 N.E.2d 762, 2012 WL 1134030, 2012 Ind. App. LEXIS 163 (Ind. Ct. App. 2012).

Opinions

OPINION

VAIDIK, Judge.

Case Summary

Ronald Glenn Dyer had an FHA-insured loan that he defaulted on. Dyer and GMAC Mortgage, LLC, attended a settlement conference at which they agreed to proceed with a deed in lieu of foreclosure. After the settlement conference, GMAC drafted a written agreement. The agreement included a provision using language required by the U.S. Department of Housing and Urban Development (HUD) that neither GMAC nor HUD would pursue a deficiency judgment against Dyer. Dyer, however, was not happy with this provision because he did not think that it gave him enough protection. Accordingly, he refused to sign the agreement. Instead, [764]*764Dyer wanted the agreement to provide that he was released from all personal liability. The trial court agreed with Dyer and ordered GMAC to rewrite the agreement. Because under federal law and HUD regulations deeds in lieu of foreclosure release the borrower from any obligation under the mortgage, the standard language used by GMAC was sufficient to release Dyer from all personal liability. We therefore reverse the trial court.

Facts and Procedural History

On November 14, 2008, Dyer and his now-deceased wife Ella Faye Dyer1 executed a note in the principal amount of $74,277.00 with Lend America for their Greene County, Indiana, home. The loan was an FHA-insured loan subject to federal statutes and HUD regulations. To secure payment of the note, Dyer and his wife executed a mortgage. The mortgage was eventually assigned to GMAC. Dyer later defaulted under the terms of the note and mortgage.

On January 19, 2010, GMAC filed a Complaint on Note and to Foreclose Mortgage. Dyer filed an answer and counterclaim, and GMAC filed an answer to Dyer’s counterclaim. In addition, GMAC informed Dyer of his right to participate in a settlement conference, which is now required by Indiana law. See Ind.Code § 32-30-10.5-8. Dyer requested a settlement conference,2 and the trial court scheduled one for June 24, 2010. See id. § 32-30-10.5-10.

At the settlement conference, the parties decided to proceed with a deed in lieu of foreclosure. This is one of many options available to a defaulting homeowner. As one treatise explains:

Often the parties to a mortgage prefer to avoid normal foreclosure procedures. This can be accomplished if the mortgagor is willing to convey the secured property to the mortgagee as a substitute for foreclosure. In turn, the mortgagor in default is completely excused from the underlying obligation. The parties cannot promise in the original note and mortgage documents to resolve a default in this manner. Any such provision would be an unacceptable clog on the mortgagor’s equity of redemption. After default occurs, however, the parties are permitted to resolve their relationship by means of a deed in lieu of foreclosure.

4 Powell on Real Property § 37.44[1] (Michael Allan Wolf ed., 1997) (footnotes omitted).3

On December 30, 2010, GMAC sent Dyer a deed in lieu of foreclosure agreement to sign and return. Appellant’s App. [765]*765p. 113.4 The agreement provided, in pertinent part:

10.Provided all terms and conditions of this Agreement are met and this transaction concluded, GMAC Mortgage, LLC, agrees that neither it nor the U.S. Department of Housing and Urban Development [will] pursue a deficiency-judgment from the Mortgagor.

Id. at 118. GMAC gave Dyer a January 10, 2011, deadline. Id. at 113. Because Dyer did not believe that paragraph 10 released him from personal liability nor complied with HUD regulations, he never signed and returned the agreement.

Instead, on February 4, 2011, Dyer requested leave to supplement his answer to GMAC’s complaint as well as a declaratory judgment. Id. at 48. The request provides, in relevant part:

8. On June 24, 2010, the Plaintiff and Mr. Dyer had a settlement conference pursuant to I.C. 32-30-10.5-8(c) by telephone. The Plaintiff agreed to accept a deed in lieu of foreclosure from Mr. Dyer in exchange for a release of personal liability.
9. On September 17, 2010, Mr. Dyer’s counsel, by email, confirmed Mr. Dyer’s agreement to move out of his home in exchange for delivering a deed in lieu of foreclosure including a specific waiver of any deficiency owed.
10. On September 20, 2010, Matt Wach, a Legal Loss Mitigation Analyst for GMAC, by email, agreed to the confirmation.
11. On October 4, 2010, in reliance on Plaintiffs agreement to accept a deed in lieu of foreclosure that released him from liability, Mr. Dyer moved out of his home of 21 years.
12. Plaintiff delayed until November 30, 2010 to send to Mr. Dyer drafts of Plaintiffs deed in lieu documents which consisted of an Agreement (setting forth terms of the deed in lieu arrangement), a General Warranty Deed, an Estoppel Affidavit and (a later emailed) Conditional Delivery of Deed (hereinafter, collectively the “DIL Documents”).
13. The DIL Documents provided by the Plaintiff do not release Mr. Dyer from personal liability.
14. The DIL Documents including this misleading provision about not pursuing a deficiency judgment:
Provided all terms and conditions of this Agreement are met and this transaction concluded, GMAC Mortgage, LLC agrees that neither it nor the U.S. Department of Housing and Urban Development [will] pursue a deficiency judgment from the Mortgagor.
15. The above provision is misleading because pursuant to The Deficit Reduction Act of 1984 ..., HUD does not need to get a deficiency judgment to collect from Mr. Dyer.
16. Mr. Dyer’s counsel, by email of January 10, 2011, notified Plaintiff that the DIL Documents were unsatisfactory and did not conform to HUD’s requirements.

Id. at 49-51.

A few days later, GMAC filed a Supplemental Report of Settlement Conference Results and Motion to Proceed with Foreclosure. Id. at 46. GMAC’s report advised the court

that a telephonic Settlement Conference was held on June 24, 2010, in which Plaintiff, by counsel, and Defendant, Ronald Glenn Dyer individually and by [766]*766counsel, appeared. The parties hereto attempted to negotiate a Deed-In-Lieu of foreclosure, however an agreement was never reached on the terms.
Therefore, the Settlement Conference has resulted in no agreement or resolution and Plaintiff moves the Court for permission to proceed with the foreclosure action.

Id.

The trial court held a telephonic conference to address the motions and granted Dyer’s request for leave to supplement his answer. Id. at vi (CCS).5 The court gave GMAC a deadline to respond. Id.

On the deadline, GMAC filed its response to Dyer’s request for leave to supplement its answer and request for declaratory judgment. Id. at 86.

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Related

GMAC Mortgage, LLC v. Dyer
965 N.E.2d 762 (Indiana Court of Appeals, 2012)

Cite This Page — Counsel Stack

Bluebook (online)
965 N.E.2d 762, 2012 WL 1134030, 2012 Ind. App. LEXIS 163, Counsel Stack Legal Research, https://law.counselstack.com/opinion/gmac-mortgage-llc-v-dyer-indctapp-2012.