How long does it take to foreclose a commercial mortgage in Indiana?
The timing of the foreclosure process primarily depends upon whether and to what extent the borrower/mortgagor contests the proceeding. Obviously, this is difficult to predict. But in very general terms, a contested foreclosure takes 6 to 9 months at a minimum to complete, from the date the Complaint is filed to the date of the sheriff sale.
Step by step, the process is:
1. Commence the foreclosure with a Complaint. Indiana is a judicial foreclosure state, so the foreclosure process officially starts with the filing of a complaint, which must allege the existence of a promissory note or other obligation payable to the plaintiff, a mortgage that secures its repayment, and that the mortgagor has defaulted. McEntee v. Wells Fargo Bank, N.A., 970 N.E.2d 178, 182 (Ind. App. 2012), citing Ind. Code § 32-30-10-3(a). In addition to the borrower/mortgagor, all other defendants who may have an interest in the mortgaged property must be named.
2. Service of process: issued by the clerk of the court. If process is by certified mail, process server, or sheriff, service is typically completed 5-10 days after the Complaint is filed. Service by publication takes at least 30 days, and must be supported by affidavit. See generally Indiana Trial Rule 4.
3. Appearance of counsel: a notice of appearance for mortgagor/borrower (and any other defendants) must be filed 20-23 days after service of process, and will typically be accompanied by an initial 30-day extensions of time to respond to the Complaint. In some counties, the first 30-day extension is granted automatically by notice. Subsequent motions to extend the deadline to respond to the complaint must be filed before the expiration of the prior deadline.
4. Answer to Complaint: must be filed not more than 30 days after expiration of order granting extension, or if no extension, 20–23 days after service of process.
5. Motion for summary judgment: any party can file not sooner than 20-23 days after service of process, but usually not filed until after any defendant files a response to the Complaint.
6. Response to motion for summary judgment: due 30 days after the filing of the motion for summary judgment, but the deadline can be extended upon motion. No response is required, and a lack of response does not guarantee the motion for summary judgment will be granted.
7. Summary judgment hearing: if scheduled, usually held 75-120 days after the motion for summary judgment is filed. In some courts, a hearing will be held only if a party requests.
8. Entry of judgment and decree of foreclosure: unless the motion for summary judgment is contested with evidence showing a genuine issue of material fact as to the allegations, judgment and a decree of foreclosure is typically entered on the day of hearing, or within 30 days after the motion is filed if there is no hearing.
9. Request for Sheriff’s sale (called a Praecipe): can be submitted to the Court immediately after the entry of judgment (but cannot be filed until 3 months after the date the Complaint was filed).
10. Sheriff’s sale: conducted by county sheriff or designee* 45-90 days after Praecipe. Each county separately schedules sales, and sets deadlines for submission. For all sales, a notice of sale must be published 3 times, starting at least 30 days prior to sale. The mortgagor’s right of redemption expires as of the day of sale.
* Although Indiana law requires a judicial sale to foreclose a mortgage, in limited circumstances, the sale can be conducted by a licensed auctioneer. See I.C. 32-29-7-4
If the borrower/mortgagor does not respond to the Complaint, the foreclosure process can be completed in 4 ½ to 6 months.
Although the above steps are the same in every county in Indiana, the timing from one county to the next, and even from one judge to the next within a county, can vary dramatically. These time frames are the minimum time you should expect, but your proceeding will probably take longer, especially if there are multiple creditors named in the lawsuit.
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