§ 32-29-8-4 — Interested persons and omitted parties; right of action to determine extent of and terminate omitted party's interest; right to redeem

Indiana § 32-29-8-4

• Jurisdiction: Indiana
• Title 32: PROPERTY
• Art. 29: MORTGAGES
• Ch. 8: Parties to Foreclosure Suit; Redemption

Text

(a) As used in this section, "interested person",
with respect to an action to foreclose a mortgage on an interest in real
property in Indiana, means:
(1) the holder of the evidence of debt secured by the mortgage
being foreclosed;
(2) a person:
(A) who purchases the property at a judicial sale after a
judgment and decree of sale is entered in the action; and
(B) to whom a deed is executed and delivered by the sheriff
under IC 32-29-7-10; or
(3) any person claiming by, through, or under a person described
in subdivision (1) or (2).
(b) As used in this section, "omitted party", with respect to an action
to foreclose a mortgage on an interest in real property in Indiana,
means a person who:
(1) before the commencement of the action has acquired in the
property an interest that:
(A) is junior or subordinate to the mortgage being foreclosed;
and
(B) would otherwise be extinguished by the foreclosure; and
(2) is either:
(A) not named as a party defendant in the action or, if named as
a party defendant, is not served with process; or
(B) not served with a notice of sale under IC 32-29-7-3(e) after
a judgment and decree of sale is entered in the action.
The term includes any person claiming by, through, or under a person
described in this subsection.
(c) At any time after a judgment and decree of sale is entered in an
action to foreclose a mortgage on an interest in real property in Indiana,
an interested person or an omitted party may bring a civil action to:
(1) determine the extent of; and
(2) terminate;
the interest of an omitted party in the property subject to the sale.
(d) Except as provided in subsection (e) and subject to subsections
(f) and (g), upon the filing of an action described in subsection (c), the
court shall determine the extent of the omitted party's interest in the
property and issue a decree terminating that interest, subject to the right
of the omitted party to redeem the property on terms as the court
considers equitable under the circumstances after considering the
factors set forth in subsection (f), if the omitted party would have had
redemption rights:
(1) before the sale under IC 32-29-7-7; or
(2) after the sale, as described in IC 34-55-4-8(a)(2).
(e) If the omitted party proves that the omitted party has a right to
receive proceeds actually paid at the judicial sale, the omitted party's
interest in the property is not subject to termination by an action
brought under this section unless the proceeds that the omitted party
would have received at the judicial sale are paid to the omitted party.
(f) In an action brought under this section, if the court determines
that the omitted party is entitled to redemption under subsection (d),
the court shall consider the following in deciding the terms of the
redemption:
(1) Whether the omitted party:
(A) was given or had actual notice or knowledge of the
foreclosure; and
(B) had opportunity to intervene in the foreclosure action or
otherwise exercise any right to redeem the property.
(2) Whether any interested person in good faith has made
valuable improvements to the property and, if so, the value of all
lasting improvements made to the property before the
commencement of the action under this section.
(3) The amount of any taxes and assessments, along with any
related interest payments, related to the property and paid by an
interested person or by any person under whose title to the
property an interested person claims.
(g) If the court determines that the omitted party is entitled to
redemption under subsection (d), and after considering the factors set
forth in subsection (f), the court shall grant redemption rights to the
omitted party that the court considers equitable under the
circumstances, subject to the following:
(1) The amount to be paid for redemption may not be less than the
sale price resulting from the foreclosure of the interested person's
senior lien, plus interest at the statutory judgment rate.
(2) The time allowed for payment of the redemption amount may
not exceed ninety (90) days after the date of the court's decree
under subsection (d).
(h) The senior lien upon which the foreclosure action was based is
not extinguished by merger with the title to the property conveyed to
a purchaser through a sheriff's deed executed and delivered under IC 32-29-7-10 until the interest of any omitted party has been terminated:
(1) through an action brought under this section; or
(2) by operation of law.
Until an omitted party's interest is terminated as described in this
subsection, any owner of the property as a holder of a sheriff's deed
executed and delivered under IC 32-29-7-10, or any person claiming
by, through, or under such an owner, is the equitable owner of the
senior lien upon which the foreclosure action was based and has all
rights against an omitted party as existed before the judicial sale.
(i) An interested person may not terminate an omitted party's
interest in real property that is the subject of a foreclosure action except
through an action brought under this section. An interested person's
rights under this section may not be denied because the interested
person:
(1) had actual or constructive notice of the omitted party's interest
in the property;
(2) was negligent in examining county records;
(3) was engaged in the business of lending; or
(4) obtained a title search or commitment or a title insurance
policy.

Legislative History

As added by P.L.130-2012, SEC.7. Amended by P.L.13-2013, SEC.80; P.L.112-2022, SEC.5.