Right to a presuit notice at least 30 days before a foreclosure is filed
Ind. Code § 32-30-10.5-8(a)
In plain words
Before a lender can file a foreclosure on your Indiana home, it must send you a presuit notice by certified mail at least 30 days ahead. The notice explains your rights, including the right to a settlement conference, and how to find housing counseling.
Who is protected
Indiana debtors on first-lien residential mortgages.
When it applies
- Only in Indiana.
- Only while you are behind but have no foreclosure notice yet or after a notice of default.
What you can do
Put the deadline on your calendar
Use this time to contact a housing counselor and apply for help.
Deadline: 30 days from the presuit notice
Open the toolAsk in writing
Ask the servicer in writing for a loss-mitigation application and a reinstatement figure.
Open the toolRead the Indiana guide
Our Indiana page explains the whole process step by step, with its sources and free local help.
Open the tool
Honest limits
- There are exceptions (for example, some loans already in a prior case).
- This is general education, not legal advice. Laws change and details depend on your papers and your court; check the current law or ask a lawyer or legal aid.
The law
- State lawPresuit notice
Ind. Code § 32-30-10.5-8(a)
Exact part: (a)
What it says: At least 30 days before filing, the creditor must send the debtor a presuit notice by certified mail.
Read the official texthttps://law.justia.com/codes/indiana/title-32/article-30/chapter-10-5/section-32-30-10-5-8/
Court cases
- Homeowner lostSame topicMartins v. BAC Home Loans Servicing, L.P.
Martins v. BAC Home Loans Servicing, L.P., 722 F.3d 249 (5th Cir. 2013)
a mortgage servicer acting for a properly assigned mortgagee may foreclose in Texas without possessing the original note, and an oral promise to modify a large loan is not enforceable
- Homeowner lostSame topicLage v. Ocwen Loan Servicing LLC
Lage v. Ocwen Loan Servicing LLC, 839 F.3d 1003 (11th Cir. 2016)
a servicer's duty to evaluate a loss-mitigation application depends on its being submitted more than 37 days before the sale date scheduled at that time
- Homeowner lostSame topicGresham v. Wells Fargo Bank, N.A.
Gresham v. Wells Fargo Bank, N.A., 642 F. App'x 355 (5th Cir. 2016) (per curiam) (unpublished)
the federal dual-tracking bar applies only when the servicer receives a complete loss-mitigation application more than 37 days before the foreclosure sale
- Homeowner lostSame topicBoren v. U.S. National Bank Ass'n
Boren v. U.S. Nat'l Bank Ass'n, 807 F.3d 99 (5th Cir. 2015)
a lender may abandon a prior acceleration by giving notice that it seeks less than the full accelerated balance, which restarts the four-year limitations period
- Homeowner lostSame topicWhittier v. Ocwen Loan Servicing, L.L.C.
Whittier v. Ocwen Loan Servicing, L.L.C., 594 F. App'x 833 (5th Cir. 2014) (per curiam) (unpublished)
a RESPA claim against a servicer fails without evidence of actual damages caused by the violation
- Homeowner lostSame topicMilton v. U.S. Bank National Ass'n
Milton v. U.S. Bank Nat'l Ass'n, 508 F. App'x 326 (5th Cir. 2013) (per curiam) (unpublished)
an agreement to delay a Texas foreclosure falls within the statute of frauds and must be in writing to be enforced
Related rights
Right to a settlement conference — ask the court within 30 days of service
Ind. Code § 32-30-10.5-8
Indiana homeowners in foreclosure can ask the court for a settlement conference with the lender to look for a way to keep the home, such as a loan modification. You must tell the court you want to take part no later than 30 days after you are served with the complaint.
Read this rightRight to defend the court case; no sheriff’s sale for 3 months after filing
Ind. Code § 32-29-7-3
Indiana foreclosures go through court, so you can file an answer and raise defenses. In most cases the sheriff’s sale cannot be carried out until three months after the complaint was filed. The sale must also be advertised, with the first notice at least 30 days before the sale.
Read this rightFHA loans: a meeting before foreclosure
24 C.F.R. § 203.604(a)(1)
If you have an FHA-insured mortgage, your lender must meet with you — or make a reasonable effort to arrange a meeting — before three full monthly payments are unpaid and at least 30 days before starting foreclosure. A reasonable effort means at least two verifiable attempts to contact you. HUD now decides how the meeting may be held.
Read this rightFHA loans: the lender must look at ways to avoid foreclosure
24 C.F.R. § 203.605(a)
If you have an FHA-insured mortgage, your lender must review loss-mitigation options every month before four full payments are unpaid, and take the appropriate action. FHA options can include special forbearance, loan modification, a partial claim (an interest-free second loan from HUD to cover arrears), a pre-foreclosure sale, or a deed in lieu.
Read this rightNo foreclosure filing until you are more than 120 days behind
12 C.F.R. § 1024.41(f)(1)
Your servicer cannot make the first notice or filing to start a foreclosure until your loan is more than 120 days delinquent. This gives you time to apply for help. There are narrow exceptions, such as a due-on-sale violation.
Read this rightNo foreclosure while your complete application is being reviewed ("dual tracking")
12 C.F.R. § 1024.41(f)(2)
If you send a complete application for help before the foreclosure is started, the servicer cannot start the foreclosure until it has decided and any appeal is over. If you send it after the foreclosure started but more than 37 days before the sale, the servicer cannot ask for a foreclosure judgment or order of sale, or hold the sale, until it has finished the review — unless you are denied and the appeal is over, you reject the offers, or you do not follow an agreement.
Read this right