Bill Text: IN HB1122 | 2010 | Regular Session | Amended
Bill Title: Abatement of vacant or abandoned structures.
Spectrum: Slight Partisan Bill (Democrat 3-1)
Status: (Passed) 2010-03-25 - Sections 4 through 5 effective 07/01/2010 [HB1122 Detail]
Download: Indiana-2010-HB1122-Amended.html
Citations Affected: IC 24-5.5; IC 32-29; IC 32-30; IC 36-7.
Effective: Upon passage; July 1, 2010.
January 7, 2010, read first time and referred to Committee on Financial Institutions.
January 25, 2010, amended, reported _ Do Pass.
Digest Continued
PRINTING CODE. Amendments: Whenever an existing statute (or a section of the Indiana Constitution) is being amended, the text of the existing provision will appear in this style type, additions will appear in this style type, and deletions will appear in
Additions: Whenever a new statutory provision is being enacted (or a new constitutional provision adopted), the text of the new provision will appear in this style type. Also, the word NEW will appear in that style type in the introductory clause of each SECTION that adds a new provision to the Indiana Code or the Indiana Constitution.
Conflict reconciliation: Text in a statute in this style type or
A BILL FOR AN ACT to amend the Indiana Code concerning
property.
(1) A person organized or chartered under the laws of this state, any other state, or the United States that relate to a bank, a trust company, a savings association, a savings bank, a credit union, or an industrial loan and investment company.
(2) The Federal National Mortgage Association, the Federal Home Loan Mortgage Corporation, or a Federal Home Loan Bank.
(3) A department or agency of the United States or of Indiana.
(4) A person that is servicing or enforcing a loan that it owns.
(5) A person that is servicing a loan:
(A) for a person described in subdivisions (1) through (4); or
(B) insured by the Department of Housing and Urban Development or guaranteed by the Veterans Administration.
(6) An attorney licensed to practice law in Indiana who is representing a mortgagor.
(1) the period is:
(A) twelve (12) months in a proceeding for the foreclosure of a mortgage executed before January 1, 1958; and
(B) six (6) months in a proceeding for the foreclosure of a mortgage executed after December 31, 1957, but before July 1, 1975; and
(2) if the court or an enforcement authority (as defined in IC 36-7-9-2) finds that the mortgaged real estate is residential real estate and has been abandoned, a judgment or decree of sale may be executed on the date the judgment of foreclosure or decree of sale is entered, regardless of the date the mortgage is executed.
(b) A judgment and decree in a proceeding to foreclose a mortgage that is entered by a court having jurisdiction may be filed with the clerk in any county as provided in IC 33-32-3-2. After the period set forth in subsection (a) expires, a person who may enforce the judgment and decree may file a praecipe with the clerk in any county where the judgment and decree is filed, and the clerk shall promptly issue and certify to the sheriff of that county a copy of the judgment and decree under the seal of the court.
(c) Upon receiving a certified judgment under subsection (b), the sheriff shall, subject to section 4 of this chapter, sell the mortgaged premises or as much of the mortgaged premises as necessary to satisfy the judgment, interest, and costs at public auction at the office of the sheriff or at another location that is reasonably likely to attract higher competitive bids. The sheriff shall schedule the date and time of the sheriff's sale for a time certain between the hours of 10 a.m. and 4 p.m. on any day of the week except Sunday.
(d) Before selling mortgaged property, the sheriff must advertise the sale by publication once each week for three (3) successive weeks in a daily or weekly newspaper of general circulation. The sheriff shall publish the advertisement in at least one (1) newspaper published and
circulated in each county where the real estate is situated. The first
publication shall be made at least thirty (30) days before the date of
sale. At the time of placing the first advertisement by publication, the
sheriff shall also serve a copy of the written or printed notice of sale
upon each owner of the real estate. Service of the written notice shall
be made as provided in the Indiana Rules of Trial Procedure governing
service of process upon a person. The sheriff shall charge a fee of ten
dollars ($10) to one (1) owner and three dollars ($3) to each additional
owner for service of written notice under this subsection. The fee is:
(1) a cost of the proceeding;
(2) to be collected as other costs of the proceeding are collected;
and
(3) to be deposited in the county general fund for appropriation
for operating expenses of the sheriff's department.
(e) The sheriff also shall post written or printed notices of the sale
at the door of the courthouse of each county in which the real estate is
located.
(f) If the sheriff is unable to procure the publication of a notice
within the county, the sheriff may dispense with publication. The
sheriff shall state that the sheriff was not able to procure the
publication and explain the reason why publication was not possible.
(g) Notices under subsections (d) and (e) must contain a statement,
for informational purposes only, of the location of each property by
street address, if any, or other common description of the property other
than legal description. A misstatement in the informational statement
under this subsection does not invalidate an otherwise valid sale.
(h) The sheriff may charge an administrative fee of not more than
two hundred dollars ($200) with respect to a proceeding referred to in
subsection (b) for actual costs directly attributable to the administration
of the sale under subsection (c). The fee is:
(1) payable by the person seeking to enforce the judgment and
decree; and
(2) due at the time of filing of the praecipe;
under subsection (b).
(1) Expenses of the offer and sale, including expenses incurred under IC 32-29-7-4 or section 9 of this chapter (or IC 34-1-53-6.5 or IC 32-15-6-6.5 before their repeal).
(2) The amount of any property taxes on the property sold:
(A) that are due and owing; and
(B) for which the due date has passed as of the date of the sheriff's sale.
The sheriff shall transfer the amounts collected under this subdivision to the county treasurer not more than ten (10) days after the date of the sheriff's sale.
(3) For a sale that occurs after June 30, 2010, the amount of any unpaid civil penalties against the foreclosure judgment holder under IC 36-7-36-10(g).
In all cases in which the proceeds of sale exceed the amounts described in subdivisions (1) through
(1) Inform the debtor that:
(A) the debtor is in default;
(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 or an enforcement authority under IC 32-29-7-3(a)(2).
(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:
(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 as prescribed by 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 include with the complaint served on the debtor a notice that informs the debtor of the debtor's right to participate in a settlement conference. The notice must be in a form prescribed by the Indiana housing and community development authority created by IC 5-20-1-3. The notice must inform the debtor that the debtor may schedule a settlement conference by notifying the court, not later than thirty (30) days after the notice is served, of the debtor's intent to participate in a settlement conference.
(d) In a foreclosure action filed under IC 32-30-10-3 after June 30, 2009, the creditor shall attach to the complaint filed with the court a
copy of the notices sent to the debtor under subsections (a) and (c).
(e) A creditor is not required to send the notices described in this
section if:
(1) the loan mortgage is secured by a dwelling that is not the
debtor's primary residence;
(2) the loan 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 loan.
mortgage.
(b) Under all enforcement and civil actions designated under subsection (a), the enforcement authority is entitled to recover court costs and attorney's fees.
(b) Money for the unsafe building fund may be received from any source, including appropriations by local, state, or federal governments, and donations. The following money shall be deposited in the fund:
(1) Money received as payment for or settlement of obligations or judgments established under sections 9 through 13 and 17 through 22 of this chapter.
(2) Money received from bonds posted under section 7 of this chapter.
(3) Money received in satisfaction of receivers' notes or certificates that were issued under section 20 of this chapter and were purchased with money from the unsafe building fund.
(4) Money received for payment or settlement of civil penalties or fines imposed under section 7 of this chapter or under IC 36-7-36-10.
(5) Money received from the collection of special assessments under section 13.5 of this chapter.
(c) Money in the unsafe building fund may be used for the expenses incurred in carrying out the purposes of this chapter or IC 36-7-36, including:
(1) the cost of obtaining reliable information about the identity and location of each person who owns a substantial property interest in unsafe premises;
(2) the cost of an examination of an unsafe building by a registered architect or registered engineer not employed by the department;
(3) the cost of surveys necessary to determine the location and dimensions of real property on which an unsafe building is located;
(4) the cost of giving notice of orders, notice of statements of rescission, notice of continued hearing, and notice of statements that public bids are to be let in the manner prescribed by section 25 of this chapter;
(5) the bid price of work by a contractor under section 10 or sections 17 through 22 of this chapter;
(6) the cost of emergency action under section 9 of this chapter;
(7) the cost of notes or receivers' certificates issued under section 20 of this chapter; and
(8) any costs incurred under IC 36-7-36 with respect to a vacant structure or an abandoned structure under IC 36-7-36.
(d) Payment of money from the unsafe building fund must be made in accordance with applicable law.
(1) may adopt this chapter by ordinance; and
(2) if the legislative body adopts this chapter by ordinance, shall adopt rules and procedures for its enforcement.
(b) This subsection applies to a legislative body that, under
subsection (a) and before July 1, 2010, has adopted:
(1) an ordinance to adopt this chapter, as in effect July 1,
2009; and
(2) rules and procedures for the enforcement of this chapter,
as in effect July 1, 2009.
Not later than January 1, 2011, a legislative body to which this
subsection applies shall amend the rules and procedures that,
before July 1, 2010, were adopted under subsection (a). The
amended rules and procedures must comply with sections 9 and 10
of this chapter, both as in effect July 1, 2010. This subsection
expires July 1, 2011.
(b) Under all enforcement and civil actions designated under subsection (a), the enforcement authority is entitled to recover court costs and attorney's fees.
(1) IC 36-7-9-5(a)(2).
(2) IC 36-7-9-5(a)(3).
(3) IC 36-7-9-5(a)(4).
(4) IC 36-7-9-5(a)(8), with respect to the exterior of the vacant structure or abandoned structure.
(b) Subject to subsection (c), an abatement notice and order described in subsection (a) may be issued to a foreclosure judgment holder if the enforcement authority determines that:
(1) a judgment and decree of sale concerning the vacant structure or abandoned structure has been issued after June 30, 2010, in a mortgage foreclosure proceeding subject to IC 32-30-10.5; and
(2) the foreclosure judgment holder has not filed a praecipe with the county clerk to initiate a sheriff's sale, in accordance with the procedure set forth in IC 32-29-7-3(b), not later than one hundred eighty (180) days after the entry of the judgment by the court.
(c) A foreclosure judgment holder, or any director, officer, manager, employee, or agent of a foreclosure judgment holder, that performs, or causes to be performed, any work or other action required by an abatement notice and order issued to the foreclosure judgment holder under subsection (b) is not liable to any of the following upon any claim, legal or equitable, whether arising out of contract or tort, with respect to the work or action performed:
(1) The owner of the property.
(2) The enforcement authority.
(3) Any other person.
(1) documentation has been filed and approved by the enforcement authority that indicates :
(A) the owner's or foreclosure judgment holder's intent to eliminate the vacant structure or abandoned structure status of
the property;
or
(B) the owner or the foreclosure judgment holder has
taken the actions described in IC 36-7-9-5(a)(8), with
respect to the exterior of the vacant structure or
abandoned structure, if the vacant structure or abandoned
structure will be sealed for a period of more than ninety
(90) days;
(2) the owner is current on all there are no property taxes and or
special assessments:
(A) that are due and owing; and
(B) for which the due date has passed;
with respect to the property; and
(3) at least one (1) of the following applies:
(A) The structure is the subject of a valid building permit for
repair or rehabilitation and the owner or foreclosure
judgment holder is proceeding diligently and in good faith to
complete the repair or rehabilitation of the structure as defined
in the enforcement order.
(B) The structure is:
(i) maintained in compliance with this chapter; and
(ii) actively being offered for sale, lease, or rent.
(C) The owner or foreclosure judgment holder can
demonstrate that the owner or foreclosure judgment holder
made a diligent and good faith effort to implement actions
approved by the enforcement authority.
(b) Subject to subsections (c) and (d), if the abatement notice
and order has been issued to a foreclosure judgment holder, the
foreclosure judgment holder is not liable for any civil penalty that
may be imposed under subsection (a) or (e) if the foreclosure
judgment holder files, not later than one hundred eighty (180) days
after the date of issuance of the abatement notice and order, a
praecipe with the county clerk to initiate a sheriff's sale, in
accordance with the procedure set forth in IC 32-29-7-3(b). The
foreclosure judgment holder may avoid the civil penalties for
which the foreclosure judgment would otherwise be liable by
providing, not later than one hundred eighty (180) days after the
date of issuance of the abatement notice and order, evidence to the
enforcement authority that the foreclosure judgment holder has
met either or both of the following:
(1) The exception set forth in this subsection.
(2) The conditions set forth in subsection (a).
(c) During the one hundred eighty (180) day period described in
subsection (b), the enforcement authority may not impose any civil
penalty against a foreclosure judgment holder that would
otherwise apply under subsection (a) or (e). If, after the one
hundred eighty (180) day period described in subsection (b), the
foreclosure judgment has not provided evidence to the enforcement
authority that the foreclosure judgment holder has met:
(1) the exception set forth in subsection (b);
(2) the conditions set forth in subsection (a); or
(3) both subdivisions (1) and (2);
the enforcement authority may impose any civil penalty that would
have applied under subsection (a) or (e) during the one hundred
eighty (180) day period described in subsection (b), in addition to
any civil penalties that accrue after the one hundred eighty (180)
day period described in subsection (b), subject to the annual limit
on civil penalties set forth in subsection (e).
(d) Except as provided in subsection (h), if a foreclosure
judgment holder files a praecipe with the county clerk to initiate a
sheriff's sale within the time specified in subsection (b) and
subsequently cancels the sale at any time before the date of the
scheduled sale, the foreclosure judgment holder is liable for any
civil penalties that otherwise would have applied under subsection
(a) or (e) during the one hundred eighty (180) day period described
in subsection (b), in addition to any civil penalties that accrue after
the one hundred eighty (180) day period described in subsection
(b), subject to the annual limit on civil penalties set forth in
subsection (e). In addition, the foreclosure judgment holder may be
liable for any costs that:
(1) are actually incurred by the sheriff in preparing for the
sheriff's sale before its cancellation;
(2) are not covered by the administrative fee described in
IC 32-29-7-3(h); and
(3) would have been payable from the proceeds of the sale
under IC 32-30-10-14(1).
(b) (e) If the structure continues to remain a vacant structure beyond
the initial ninety (90) days described in subsection (a) and the owner
or foreclosure judgment holder does not meet any of the exceptions
set forth in this section, subsection (a) or (b), the enforcement
authority may continue to assess penalties each year on each structure
in the following amounts:
(1) One thousand dollars ($1,000) for the second ninety (90)
calendar day period each structure remains a vacant structure or
an abandoned structure.
(2) One thousand five hundred dollars ($1,500) for the third ninety (90) calendar day period each structure remains a vacant structure or an abandoned structure.
(3) Two thousand dollars ($2,000) for the fourth
(4) Five thousand dollars ($5,000) for the fifth and each subsequent ninety (90) calendar day period thereafter each structure remains a vacant structure or an abandoned structure.
A civil penalty under this subsection may not exceed five thousand dollars ($5,000) per structure per year, as measured from the date of the abatement notice and order issued under section 9 of this chapter.
(f) A civil penalty collected under subsection (a) or (e) shall be deposited in:
(1) an unsafe building fund established under IC 36-7-9-14; or
(2) any other fund or account specified in the rules and procedures adopted by the legislative body under section 7 of this chapter.
(g) If any civil penalties assessed against a foreclosure judgment holder under subsection (a) or (e) remain unpaid after a subsequent sheriff's sale of the property is conducted in connection with the foreclosure action, the unpaid civil penalties shall be paid from the proceeds of the sheriff's sale, as specified in IC 32-30-10-14.
(h) Subsection (d) does not apply if a sheriff's sale is canceled because:
(1) the owner of the vacant structure or abandoned structure has filed for bankruptcy, or the sale of the vacant structure or abandoned structure is otherwise prohibited by federal bankruptcy law;
(2) the sale of the vacant structure or abandoned structure is prohibited by a moratorium on foreclosure actions or proceedings imposed by a federal or state law, regulation, rule, or order; or
(3) the foreclosure judgment holder and the owner of the vacant structure or abandoned structure have entered into a written agreement that:
(A) provides for the refinancing, restructuring, or workout of the owner's indebtedness under the mortgage that was the subject of the foreclosure action; and
(B) is filed with the clerk of the court in which the judgment and decree is filed.
