The Bamberger Blog » real property

Slander of Title

kjewell — Wed, 05 May 2010 14:22:14 +0000

When taking a lien on real estate, you should be wary of the concept of “slander of title.” Slander of title results when a false and malicious statement is made against a person’s title to real property. In some circumstances, a mortgage lien could be the subject of a slander of title lawsuit.

You are protected from liability if your lien is a consensual lien from all of the owners of a tract of real estate. Thus, before taking a lien against real estate, it is crucial that you determine the exact location and all owners of the real estate. This determination is best made by obtaining a title insurance commitment and survey.

A title insurance commitment will disclose all owners and the recorded legal description of the real estate. The survey will identify the location of the real estate and all encroachments and overlaps which affect the real estate. After reviewing the commitment and survey, you should properly draft the mortgage so that the lien is limited to the real estate owned by your borrowers.

If you have any questions about locations of boundaries, owners or other items disclosed by your commitment or survey, please contact your attorney to review the transaction.

Author: Jason P. Lueking (bio)
Phone: 317.464.1591
email: jlueking@bamberger.com

Automatic Judgment Liens in Indiana

kjewell — Wed, 07 Apr 2010 20:18:56 +0000

Under Indiana law, a final judgment for the recovery of money or costs constitutes a lien on the judgment debtor’s real property located in the county where the judgment has been entered and indexed in the judgment docket. The lien attaches automatically when the judgment is entered and indexed.

If the debtor owns real property in more than one county, after the judgment has been entered in the first county, the judgment creditor must submit it to be indexed in the judgment docket in the other county or counties where the debtor owns real property in order for the automatic lien to attach to the debtor’s real property in those counties. The automatic judgment lien against real property remains valid for a period of only ten years, in most cases, thus the judgment creditor must foreclose the lien during the ten-year period in order to execute the judgment against real property.

After the judgment lien expires, the creditor is limited to executing the judgment against other property of the debtor. The Indiana Code provides for the automatic lien to attach only to real property and not to personal property of the judgment debtor.

Author: Jason P. Lueking (bio)
Phone: 317.464.1591
email: jlueking@bamberger.com

Judgment Liens in Kentucky

kjewell — Mon, 08 Mar 2010 13:53:34 +0000

In some states, such as Indiana, a judgment automatically becomes a lien upon real property located in the county in which the judgment was obtained. In these states, if a judgment is obtained in one county, and real property is located in another county, then the bank must docket the judgment in the county in which the real property is located in order to obtain a lien upon the land.

In Kentucky, however, obtaining a judgment is not enough. A bank must also prepare and record a notice of judgment lien in the county in which the borrower’s real property is located. The notice includes the legal description of the real property, the amount of the judgment, and the name of the borrower. By recording the notice, the bank effectively puts the world on notice that it has a judgment lien upon the described real property.

Author: Chris Wischer (bio)
Phone: 812.452.3595
email: cwischer@bamberger.com