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Rule 69 – Execution, Proceedings Supplemental to Execution, Foreclosure Sales

May 13, 2021 | Civil Procedure, Indiana

(A) Execution sales. Process to enforce a judgment or a decree for the payment of money shall be by writ of execution, unless the court directs otherwise and except as provided herein. Notwithstanding any statute to the contrary, real estate shall not be sold until the elapse of six [6] months from the time the judgment or execution thereon becomes a lien upon the property.

Except for any requirement of appraisal and that the property sell for two-thirds (2/3) or more of its appraised value, the sale of real estate shall be conducted under the same rules and the same procedures applicable to foreclosure of mortgages, including subdivision (C) of this rule, without right of redemption after the sale but subject to the judgment debtor’s right to care for and remove crops growing at the time the lien attached as in the case of mortgage foreclosure. Unless otherwise ordered by the court, the sheriff or person conducting the sale of any property upon execution shall not be required to offer it for sale in any particular order, in parcels, or first offer rents and profits and shall be required to sell real and personal property separately pursuant to the law applicable. Execution upon any property shall not suspend the right and duty to levy upon other property.

(B) Judgment and execution liens on after-acquired property. In the case of property acquired by the debtor after prior judgment or execution liens have been perfected, such liens shall share pro rata with each other without further levy.
(C) Foreclosure of liens upon real estate. Unless otherwise ordered by the court, judicial foreclosure of all liens upon real estate shall be conducted under the same rules and the same procedures applicable to foreclosure of mortgages upon real estate, including without limitation redemption rights, manner and notice of sale, appointment of a receiver, execution of deed to purchaser and without valuation and appraisement. Judicial lien foreclosures including mortgage foreclosures may be held at any reasonable place stated in the notice of sale. In all cases where a foreclosure or execution sale of realty is not confirmed by the court, the sheriff or other officer conducting the sale shall make a record of his actions therein in his return to be filed promptly with the record of the case and also in the execution docket maintained in the office of the clerk.
(D) Other judicial sales. Unless otherwise ordered by the court all public judicial sales of real estate, other than lien and mortgage foreclosures and execution sales, shall, to the extent possible, be sold in the same manner that real estate is sold in the administration of decedents’ estates, and subject to the same rules applicable to the manner and effect thereof. This provision shall apply, without limitation, to judicial sales by trustees, guardians, receivers, assignees for the benefit of creditors and sales in partition proceedings.
(E) Proceedings supplemental to execution. Notwithstanding any other statute to the contrary, proceedings supplemental to execution may be enforced by verified motion or with affidavits in the court where the judgment is rendered alleging generally:

(1) that the plaintiff owns the described judgment against the defendant;
(2) that the plaintiff has no cause to believe that levy of execution against the defendant will satisfy the judgment;
(3) that the defendant be ordered to appear before the court to answer as to his non-exempt property subject to execution or proceedings supplemental to execution or to apply any such specified or unspecified property towards satisfaction of the judgment; and,
(4) if any person is named as garnishee, that garnishee has or will have specified or unspecified nonexempt property of, or an obligation owing to the judgment debtor subject to execution or proceedings supplemental to execution, and that the garnishee be ordered to appear and answer concerning the same or answer interrogatories submitted with the motion.

If the court determines that the motion meets the foregoing requirements it shall, ex parte and without notice, order the judgment debtor, other named parties defendant and the garnishee to appear for a hearing thereon or to answer the interrogatories attached to the motion, or both.

The motion, along with the court’s order stating the time for the appearance and hearing or the time for the answer to interrogatories submitted with the motion, shall be served upon the judgment debtor as provided in Rule 5, and other parties and the garnishee shall be entitled to service of process as provided in Rule 4. The date fixed for appearance and hearing or answer to interrogatories shall be not less than twenty [20] days after service. No further pleadings shall be required, and the case shall be heard and determined and property ordered applied towards the judgment in accordance with statutes allowing proceedings supplementary to execution. In aid of the judgment or execution, the judgment creditor or his successor in interest of record and the judgment debtor may utilize the discovery provisions of these rules in the manner provided in these rules for discovery or as provided under the laws allowing proceedings supplemental.

(F) Title opinion or insurance required in all judicial sales of land. In the case of any judicial sale of land, including without limitation mortgage and lien foreclosures, execution sales, sales by receivers, assignees for the benefit of creditors, guardians or trustees, or partition sales, upon motion the court in its discretion may order the judgment creditor, person seeking the sale, or officer conducting the sale to procure a qualified title opinion or a title insurance policy from a title insurance company authorized to do business in Indiana with respect to the interest of the person whose land is being sold. The policy must be conditioned to cover the purchase price at the sale and may be given with any necessary exclusions. The opinion or policy shall run to all parties interested in the litigation and to any purchaser or purchasers at the sale. The opinion or policy or copy thereof shall be available for inspection in the court from which the sale is being conducted or in the office of the court officer conducting the sale at the first notice of sale and shall be made available for inspection at the sale. Expenses of the opinion or policy shall be taxed as costs like other expenses of the sale and paid from the first proceeds of the sale. The opinion or policy shall not cover defects arising in the conduct of the sale.

Ind. R. Civ. P. 69