Vanjani v. Federal Land Bank of Louisville, No. 1-982A262

Docket NºNo. 1-982A262
Citation451 N.E.2d 667
Case DateJuly 19, 1983
CourtCourt of Appeals of Indiana

Page 667

451 N.E.2d 667
Chandu R. VANJANI, Padma C. Vanjani, Defendants-Appellants,
v.
The FEDERAL LAND BANK OF LOUISVILLE, Plaintiff-Appellee.
No. 1-982A262.
Court of Appeals of Indiana,
First District.
July 19, 1983.

Page 668

Anne Cavanaugh Thomas, Law Offices of Frank & Thomas, Evansville, for defendants-appellants.

Charles R. Nixon, Fair, Nixon & Stilwell, Princeton, Charles L. Hardin, Louisville, Ky., for plaintiff-appellee.

NEAL, Judge.

STATEMENT OF THE CASE

Defendants-appellants Chandu R. Vanjani (Chandu) and Padma C. Vanjani (Padma) appeal a denial of their motion to set aside a default judgment of mortgage foreclosure under Ind.Rules of Procedure, Trial Rule 60(B), which judgment was entered in favor of the plaintiff-appellee The Federal Land Bank of Louisville (Land Bank).

We affirm.

STATEMENT OF THE FACTS

Vanjanis executed a real estate mortgage on June 21, 1977, to secure a note containing an acceleration clause in the amount of $75,000 to the Land Bank. Annual payments, commencing March 1, 1978 in the amount of $6,819.82, fell in default on March 1, 1980 and March 1, 1981, and the Land Bank, by letter dated April 1, 1981, demanded payment in full by April 17, 1981, or foreclosure would result. Chandu, who now lived in Arizona, responded to the April 1 letter by his own letter dated April 11, 1981, and asked for an extension of the deadline.

The Land Bank filed suit on the note to foreclose the mortgage on July 1, 1981, naming the Vanjanis, Union Mortgage and Loan (a second mortgagee), and the treasurer of Warrick County as defendants. Summons was issued to Chandu and Padma, separately, by certified mail return receipt requested at their Arizona address, 1921 Windson, Sierra Vista, Arizona. The return receipts were received and signed

Page 669

"P.C. Vanjani" and "Padma C. Vanjani" respectively. The date acknowledged on the receipt was July 6, 1981. Additionally, summons by publication was given to Vanjanis in the Boonville Standard three successive weeks, commencing July 5, 1981. No appearance was made by Vanjanis and upon Land Bank's motion, default judgment was entered on October 16, 1981. The judgment awarded Land Bank $86,156, attorney fees and interest; Union Mortgage was awarded $25,706. The mortgage was foreclosed, and the property ordered sold. After advertising, the property was sold by the Sheriff of Warrick County on November 24, 1981 to Land Bank.

Vanjanis filed their T.R. 60(B) motion on March 3, 1982, and a hearing was held on April 23, 1982. In the proceeding, by affidavit and oral testimony, Vanjanis presented evidence as follows: They were naturalized citizens, having been born in India and having lived in the United States for 12 years. While Chandu was the possessor of a Bachelor of Engineering degree earned in the United States, Padma's education was limited to high school in India and she had limited communication skills in English. Padma had received the two certified mail envelopes and had executed the return receipts. According to the customs of her native land women did not meddle in men's business affairs, so she laid the letters aside for perusal by her husband, Chandu. One of the envelopes containing the summons was addressed specifically to her. However, she inadvertently failed to bring them to his attention. Because of her lack of fluency in English the return address of the Clerk of the Warrick Circuit Court meant nothing to her. Chandu, upon discovery of the default in February, 1982, searched and found the envelopes containing the summons in his desk at their home buried in a pile of other papers. He immediately moved to have the default set aside. Vanjani's evidence showed that they did not have actual knowledge of the suit, default, judgment, or sale until late February, 1982. Vanjanis do not contend that they had a meritorious defense to the suit for the note was in default. They contend that had they had notice they could have redeemed the property or otherwise salvaged some of their equity. However, in his testimony, Chandu stated he merely wanted to continue making payments.

The trial court denied the motion. The formal entry made no mention of the trial court's reasons, and no findings of facts or conclusions of law were entered. However comments at the hearing indicated the court was concerned that no meritorious defense had been shown by Vanjanis.

ISSUES

Vanjanis present four issues for review. They contend that:

I. The denial of the 60(B) motion resulted in their property being taken from them without due process;

II. The trial court abused its discretion in denying the 60(B) motion;

III. The trial court abused its discretion in requiring them to show a meritorious defense in a foreclosure action, and

IV. The right of redemption in a foreclosure action is equivalent to a meritorious defense.

All of the issues hinge on the argument by Vanjanis that they did not have adequate notice of the proceedings.

DISCUSSION AND DECISION

Issue I. Due process

Vanjanis concede that the Land Bank strictly complied with the requirements of the Indiana foreclosure statutes and the rules of procedure. They argue, however, that if they had notice of the sale they could have redeemed the property by paying the judgment at any time prior to the sale. The equitable right of redemption, they argue, attaches to the mortgage as a separate incident. This right is property, and cannot be extinguished without due process of law including notice and an opportunity to be heard. They cite McCormick v. First National Bank of Miami, (S.D.Fla.1971) 322 F.Supp. 604; Huie v. Smith,

Page 670

(1938) 236 Ala. 516, 183 So. 661; Robbins v. Blanc, (1932) 105 Fla. 625, 142 So. 223; Mooney v. Miller, (1922) 195 N.Y.S. 437, 119 Misc. 134; and State v. Holtcamp, (1912) 245 Mo. 655, 151 S.W. 153, to support their position. We accept the contention that the right of redemption is property and is protected by due process. However, Vanjanis predicate their whole argument on the assumption that no legal notice was given them at all. Excusable neglect will be discussed infra.

Summons by certified mail is authorized for non-resident defendants for in rem actions by Ind.Rules of Procedure, Trial Rule 4.9(B)(2). Such...

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13 practice notes
  • Thompson v. Thompson, No. 29A04-0307-CV-366.
    • United States
    • Indiana Court of Appeals of Indiana
    • July 15, 2004
    ...[wife] to suffer the consequences of any errors of judgment made by the attorney she hired."); Vanjani v. Fed. Land Bank of Louisville, 451 N.E.2d 667, 671 (Ind.Ct.App.1983) (noting that numerous cases hold that the negligence of an attorney does not amount to excusable neglect as a matter ......
  • In re Kerns, No. TH 89-85-C
    • United States
    • United States District Courts. 7th Circuit. United States District Court (Southern District of Indiana)
    • March 8, 1990
    ...right of redemption because this right "is property and is protected by due process." Vanjani v. Federal Land Bank of Louisville, 451 N.E.2d 667, 669-70 (Ind.App.1983). Thus, because Mr. Kerns attempted to obtain a stay of the order and because he has a protected property interest in the la......
  • Shotwell v. Cliff Hagan's Ribeye Franchise, Inc., No. 10A04-8905-CV-183
    • United States
    • Indiana Court of Appeals of Indiana
    • April 30, 1990
    ...case was retried on the merits a different Page 210 result would be reached. Vanjani v. Federal Land Bank of Louisville (1983), Ind.App., 451 N.E.2d 667, 672. Indiana requires a party seeking to set aside a default judgment to make a prima facie showing of a good and meritorious defense. Id......
  • In re Demoff, Bankruptcy No. 87-61378.
    • United States
    • United States Bankruptcy Courts. Seventh Circuit. U.S. Bankruptcy Court — Northern District of Indiana
    • August 31, 1988
    ...In re Lynch, 12 B.R. 533, 534-35 (Bankr.W.D. Wis.1981), and for applicable Indiana law, see Vanjani v. Federal Land Bank of Louisville, 451 N.E.2d 667, 672, n. 1 (Ind. App. 1st Therefore, Indiana and Wisconsin foreclosure laws are identical in all relevant aspects. The court is mindful that......
  • Request a trial to view additional results
13 cases
  • Thompson v. Thompson, No. 29A04-0307-CV-366.
    • United States
    • Indiana Court of Appeals of Indiana
    • July 15, 2004
    ...[wife] to suffer the consequences of any errors of judgment made by the attorney she hired."); Vanjani v. Fed. Land Bank of Louisville, 451 N.E.2d 667, 671 (Ind.Ct.App.1983) (noting that numerous cases hold that the negligence of an attorney does not amount to excusable neglect as a matter ......
  • In re Kerns, No. TH 89-85-C
    • United States
    • United States District Courts. 7th Circuit. United States District Court (Southern District of Indiana)
    • March 8, 1990
    ...right of redemption because this right "is property and is protected by due process." Vanjani v. Federal Land Bank of Louisville, 451 N.E.2d 667, 669-70 (Ind.App.1983). Thus, because Mr. Kerns attempted to obtain a stay of the order and because he has a protected property interest in the la......
  • Shotwell v. Cliff Hagan's Ribeye Franchise, Inc., No. 10A04-8905-CV-183
    • United States
    • Indiana Court of Appeals of Indiana
    • April 30, 1990
    ...case was retried on the merits a different Page 210 result would be reached. Vanjani v. Federal Land Bank of Louisville (1983), Ind.App., 451 N.E.2d 667, 672. Indiana requires a party seeking to set aside a default judgment to make a prima facie showing of a good and meritorious defense. Id......
  • In re Demoff, Bankruptcy No. 87-61378.
    • United States
    • United States Bankruptcy Courts. Seventh Circuit. U.S. Bankruptcy Court — Northern District of Indiana
    • August 31, 1988
    ...In re Lynch, 12 B.R. 533, 534-35 (Bankr.W.D. Wis.1981), and for applicable Indiana law, see Vanjani v. Federal Land Bank of Louisville, 451 N.E.2d 667, 672, n. 1 (Ind. App. 1st Therefore, Indiana and Wisconsin foreclosure laws are identical in all relevant aspects. The court is mindful that......
  • Request a trial to view additional results

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