Deutsche Bank National Trust Company appeals summary judgment for Mark Dill Plumbing Company, Mark E. Neff, and Invironmental Technologies, LLC. (collectively, “Appellees”). We affirm.
The parties do not dispute the relevant facts. James Welch owned real estate at 702 E. Maple Street in Boonville, Indiana. Appellees separately received judgment liens against Welch’s property. Deutsche Bank owned a mortgage on Welch’s property. Deutsche Bank filed a mortgage foreclosure action against Welch, but did not join any of the Appellees as parties. The foreclosure proceeded to judgment. On October 12, 2006, Deutsche Bank purchased Welch’s real estate at a Sheriff’s sale.
Thereafter, Deutsche Bank learned of the judgment liens belonging to Appellees, and filed an action to remove their liens. Appellees individually answered, and Neff and Invironmental counterclaimed to foreclose their liens. Deutsche Bank then filed a motion for summary judgment, claiming the Appellees’ liens were subordinate to Deutsche Bank’s interest and claiming Appellees’ rights and equity should be cut off. Neff filed a cross-motion for summary judgment, which Dill Plumbing and Invironmental joined, that requested Deutsche Bank’s equity of redemption be foreclosed and another Sheriff’s sale be held to satisfy the amounts owed to Appellees. After a hearing, the court denied Deutsche Bank’s motion and granted Appellees’ motion.
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Deutsche Bank asserts the court should have granted the “strict foreclosure” it requested against the Appellees. To address Deutsche Bank’s argument, we must first determine what “strict foreclosure” means under Indiana law and whether it applies to the facts before us. At English common law, “strict foreclosure” was: “A rare procedure that gives the mortgagee title to the mortgaged property–without first conducting a sale–after a defaulting mortgagor fails to pay the mortgage debt within a court-specified period.” Black’s Law Dictionary 658 (7th ed. 1999). However, Indiana, like many American jurisdictions, rejected this proceeding in lieu of foreclosure by judicial sale, Skendzel v. Marshall, 261 Ind. 226, 240, 301 N.E.2d 641, 649 (1973), cert. denied 415 U.S. 921 (1974), because forfeiture “is often offensive to our concepts of justice and inimical to the principles of equity.” Id. at 240, 301 N.E.2d at 650. This cannot be the “strict foreclosure” sought by Deutsche Bank against Appellees, as Deutsche Bank already had title to Welch’s property via the statutory foreclosure proceeding. Although it has been discussed only a few times, our Indiana courts appear to have recognized another definition of strict foreclosure:
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A strict foreclosure proceeds upon the theory that the mortgagee or purchaser has acquired the legal title, and obtained possession of the mortgaged estate, but that the right and equity of redemption, of some judgment creditor, junior mortgagee, or other person similarly situate, has not been cut off or barred. In such a case, the legal title of the mortgagor having been acquired, the remedy by strict foreclosure is appropriate to cut off the equity and right of junior encumbrancers to redeem.
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Jefferson v. Coleman, 110 Ind. 515, 517-18, 11 N.E. 465, 466-67 (1887) (citations omitted) (emphasis added). Based thereon, Deutsche Bank asserts the trial court should have simply removed the Appellees’ liens from the title to the property, in essence asking to have Appellees’ liens forfeited.
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Deutsche Bank foreclosed its mortgage without making Appellees parties. Deutsche Bank acknowledges Appellees’ liens were properly recorded; its agent that conducted the title search presumably missed them. Accordingly, Deutsche Bank should have known about Appellees’ liens. The trial court ordered the property sold to satisfy the liens belonging to Appellees. In light of Watson, the trial court reached the proper result.
Because there are no genuine issues of material fact and the law is in Appellees’ favor, we affirm the summary judgment for Dill Plumbing, Neff, and Invironmental.
BRADFORD, J., and FREIDLANDER, J., concur.
We acknowledge there is authority for the proposition that the only circumstance under which a grandparent may seek visitation rights is by filing a proper petition under the Act. See In re Guardianship of K.T., 743 N.E.2d 348, 351 (Ind. Ct. App. 2001) (finding trial court error in granting grandparents visitation in conjunction with terminating a guardianship without the grandparents following the procedures of the Act); In re Guardianship of J.E.M., 870 N.E.2d 517, 519 (Ind. Ct. App. 2007) (“[W]e have consistently held that the [Grandparent Visitation Act] is the exclusive method for grandparents to seek visitation with their grandchildren. . . .”). However, the parties have already expended substantial time and resources litigating this matter. Therefore we conclude that for the sake of judicial economy the filing of a separate petition for grandparent visitation is unnecessary in this case.
Deutsche Bank Nat'l Trust Co. v. Mark Dill Plumbing Co., No. 87A01-0807-CV-307, ___ N.E.2d ___ (Ind. Ct. App., Mar. 25, 2009)