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Casenotes

Indiana

Mortgages

Welch v Heavelin, 917 NE2d 152 (Ind Ct App, 2009).

Facts:Clark Welch and Verlie Gillespie divorced in 1993. The court gave their marital residence to Welch and ordered him to pay $16,500 to Gillespie. As security, the court ordered Welch to give Gillespie a mortgage on the property. Welch defaulted, but Gillespie never enforced the mortgage. Gillespie died in 2003, leaving her interest in the mortgage to her children, Connie and David.

In January 2008, Connie and David sought to foreclose the mortgage. Welch argued that under the statute of limitations for IC 34-55-9-2 governing judgment liens, Gillespie's lien expired in 2003, ten years after its formation in 1993. The trial court rejected Welch's argument and ordered the enforcement of the foreclosure. Welch appealed.

Holding:Affirmed. Welch's sole argument on appeal was that the statute of limitations had run on the lien. However, the court found that the applicable code section was IC 32-28-4-1 governing mortgage liens, which has a twenty-year statute of limitations. Although an action to enforce a judgment lien has a ten-year statute of limitations, an action to foreclose a mortgage created to secure such a note has a twenty-year statute of limitations. Therefore, Connie and David's foreclosure was timely.

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[Last update: 5-26-10]