While the Indiana Executive Order(s) prohibiting the initiation of foreclosures and evictions expired on August 15, 2020, delays persist in otherwise valid and ripe causes of action. One cause of delay is due to the legal community’s confusion and misconceptions of past and current moratoriums. While default counsel can provide opposing memorandums to the court to clear up any confusion, the delay is already suffered, and educating the courts requires the court to be in session and operating at a sufficient capacity.
Beyond the general misconceptions, a greater cause of delay is attributed to the COVID-19 crisis and response thereto. Pursuant to Indiana Supreme Court orders (the most recent being issued on November 10, 2020, Case No. 20S-CB-123), trial courts have inherent authority to manage their facilities, staff, and proceedings in accordance with their own local health department guidelines. Like many states, Indiana saw an alarming rise in COVID-19 cases beginning in the third quarter of 2020, and the trend has only increased through the winter months. As a result, many of Indiana’s ninety-two counties have been recently or are currently in the state’s highest health advisory level. This requires Judges to take the severest of precautions in preventing the spread, which conversely reduces staff and resources to process cases, and allows courts to suspend non-essential matters such as mortgage foreclosures and evictions. These measures have been utilized in many of the state’s trial courts, and create inconsistent procedures even within the same county, dependent on the fluctuating health environment. For this same reason, default servicers may see inconsistent sheriff sale processes throughout the state.
Finally, MDK continues to see a handful of courts require Plaintiffs to remove interest from judgments if that interest accrued during the state’s previous moratoriums. The perceived authority arises from previous Administrative Rule 17 orders that all counties petitioned for, and were granted in March 2020, and which the Indiana Supreme Court ordered blanket approval for later in the pandemic. The legal authority for this provision as applied to causes of action based on contract such as mortgage foreclosures remains unclear and default servicers should continue to work with their default counsels to determine the best course of action for proceeding cases wherein this issue arises.