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Court won’t void ‘defective’ mortgage

Law of the Land
Published on Mar 24, 2010

In the case Miller v. LaSalle Bank National Association, homeowner Linda Miller took out a mortgage for $49,300 in 2001 and executed a deed of trust securing the mortgage with her home. Lender LaSalle (via its predecessor, Alliance) recorded the trust deed at the Miami County Recorder's office in Indiana. However, the mortgage document recorded was defective; it did not identify the individuals who had executed it before the notary. In 2008, the borrowers filed a petition for relief under Chapter 13 of the Bankruptcy Code, and the bankruptcy trustee initiated a proceeding to avoid the mortgage under Indiana's recording statute, Section 32-21-4-1 of the Indiana Code. At the time the mortgage was recorded, Indiana Code Section 32-21-4-1 provided that an improperly recorded, technically defective mortgage like the one at issue in this case was avoidable (void or invalid), because it failed to give constructive notice of the mortgage's existence to subsequent bona fide purchas...

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