Brown, J.
In this interlocutory appeal, L. Ray Yeager and Phyllis L. Yeager (collectively, the “Yeagers”) appeal the trial court’s provisional order for payment of mortgage, taxes, and insurance premiums (the “Provisional Order”) in a foreclosure action. The Yeagers raise one issue which we revise and restate as whether the court abused its discretion by failing to conduct an inquiry into the Yeagers’ ability to pay prior to issuing the Provisional Order. We reverse and remand.
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The record reveals that the court did not hold a hearing or otherwise conduct any inquiry on which to base its determination of the monthly payment prior to issuing the Provisional Order. Indeed, the court granted the Bank’s motion before the Yeagers responded to it. The statute expressly provides that, in issuing a provisional order under subsection (b), “[t]he amount of the monthly payment . . . shall be determined by the court, which may base its determination on the debtor’s ability to pay” and that the amount of the monthly payment “may not exceed the debtor’s monthly obligation under the mortgage at the time the action is filed.” While the statute does not expressly require a hearing, it is implicit that the court have the necessary information on which to base its determination, including the debtor’s current financial information. The record contains no evidence of the Yeagers’ current financial situation, such as earnings from any employment, income from other sources, or other assets. The Indiana legislature enacted Indiana Code §§ 32-30-10.5 to “avoid unnecessary foreclosures” and to facilitate “the modification of residential mortgages in appropriate circumstances.” Nationstar Mortg., LLC v. Curatolo, 990 N.E.2d 491, 493-94 (Ind. Ct. App. 2013) (citing Ind. Code § 32- 30-10.5-1(b)). Under these circumstances, we conclude that the trial court abused its discretion when it failed to hold a hearing or to otherwise obtain information to determine the amount of the Yeagers’ provisional monthly payment. [Footnote omitted.]
Conclusion
For the foregoing reasons we reverse and remand for further proceedings consistent with this decision.
Reversed and remanded. Robb, J., concurs. Mathias, J., dissents with opinion.
Mathias, Judge, dissenting.
I respectfully dissent from the majority’s conclusion that the trial court abused its discretion by ruling on the Bank’s motion without a hearing.
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This, however, presumes that the trial court is required to consider the debtor’s ability to pay. The language of section 32-30-10.5-8.6, however, imposes no such obligation. To be sure, the statute provides that amount of the monthly payment “shall” be determined by the trial court. However, it also clearly provides that the trial court “may base its determination on the debtor’s ability to pay.” I.C. § 32-30-10.5-8.6(b)(1). This is permissive, not mandatory, language. United Rural Elec. Membership Corp. v. Indiana & Michigan Elec. Co., 549 N.E.2d 1019, 1022 n.9 (Ind. 1990).
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I, therefore, read the statute as stating that the trial court permissively “may” consider the debtor’s ability to pay but is not required to do so, so long as the monthly payment determined by the trial court does not exceed the debtor’s monthly mortgage obligation at issue.
Here, the trial court determined that the monthly payment should be equal to the monthly mortgage obligation. This was within the trial court’s discretion under the statute, and I see no reason to remand for a hearing to require the trial court to consider something, i.e., the debtor’s ability to pay, which the controlling statute does not require the trial court to consider. Although it might be a better policy to require the trial court to consider the debtor’s ability to pay, the statute does not require this, and I do not believe we are at liberty to engraft such a requirement onto the clear language of the statute.