Indiana Follows The Lien Theory Of Mortgages
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An interesting dispute in the United States Bankruptcy Court for the Northern District of Indiana resulted in a March 27, 2007 opinion by Judge Harry C. Dees, Jr. about a borrower’s attempt to transfer ordinance citations, fines and other property-related liabilities to a lender. The issue was whether a mortgagor’s/borrower’s unilateral execution and recordation of a quit-claim deed effectively transferred the real estate to the mortgagee/lender. Although the case involved residential property, the rules and holding are equally applicable to commercial real estate and business borrowers. The lesson of Phillips v. City of South Bend, 2007 Bankr. LEXIS 1503 (N.D. Ind. 2007) is: a borrower simply can’t unload its real estate-based problems onto a secured lender without some kind of agreement or consent.