Nightmare in Indiana

[tascott]

I bought a home in Indiana in 1995. Had an appraisal, inspection, survey, pest inspection, and was required to get title insurance. Everything was done that was requested by the Credity Union. The person that sold me the home was left as the personal representivive of the estate when the original owners passed away. This lady that sold me this home was a retired real estate agent and a lawyer. I lost my job of 7 years in April of 2000. A few months later when I was putting my house up for sale, the state discovered some leaking UST tanks that ran across my property. The contamination level is too high and I have been paying for the cleanup and removal of a tank that I had no Idea was on or around my property. It was NOT on the disclosure and everything I have states that there is no hazardous material on or around the area... I have fell behind on my mortgage and they are threatening to forclose on a house that I'm not able to sell due to the contamination level and lack of approval from IDEM. How can they forclose on me when I have been paying all my money on the cleanup that I was going to be fined on 10,000 per tank / and per day...? Should I just let them take this house? This is in Indiana. also, how is responsible for all of this? THis shouldn't be considered my tank. It was supposed to be romoved in 1980's. I found the previous owners deed on the property at the court house and they knew there were UST on the property. To make things worse, the personal representitve of the estate passed away about a year after selling me this home. She also was aware when she sold it to me, but lied on the disclosere.. SOMEONE HELP... If I could sell this home now, I would be able to come out with atleast 20,000 and start over, but no realator will take it and no bank will finance it until all contamination is gone.

Thanks for any advice

 

[HomeGuru]

You situation is complicated due to EPA regulations. Hire an attorney.

 

[tascott]

New information about title... Help

Okay, I finally found the new holder of my title insurance. The original company was closed and left no new contacts.... I have searched for my title company from my original documents forever. Here is the problem now...... My home was over half way paid off when I lost my job. I tried to sell it, but 2 couples backed out because they were worried about the underground contamination effecting their children's health and the water. The single man without children tried to get a loan, but was turned down due to the underground contamination from the underground storage tanks. If I could have sold my house in2000, I would have been able to pay off all my credit cards and bills and started over. The Credit Union waited until Nov of 2002 to forclose on it. I have been asking them to just take the house back in 2000 because I was going to be unable to pay for it. I called the Environment Management to let them know that they were auctioning the home without disclosing the tank information and when I went to the sheriff sale the next day, IT WAS CANCELLED.... I still have the home. I owe more for the home now than what I paid for it because of interest and etc. If the title company would have looked back on the previous title, they would have seen that there were tanks in my yard. They ordered soil samples last week and I was told that if the samples are low enough, they can clear the title and are free of paying damages. Can they get away with this? I would have been okay financially if I could have been able to sell this home in 2000?

 

[HomeGuru]

Re: New information about title... Help

Okay, I finally found the new holder of my title insurance. The original company was closed and left no new contacts.... I have searched for my title company from my original documents forever. Here is the problem now...... My home was over half way paid off when I lost my job. I tried to sell it, but 2 couples backed out because they were worried about the underground contamination effecting their children's health and the water. The single man without children tried to get a loan, but was turned down due to the underground contamination from the underground storage tanks. If I could have sold my house in2000, I would have been able to pay off all my credit cards and bills and started over. The Credit Union waited until Nov of 2002 to forclose on it. I have been asking them to just take the house back in 2000 because I was going to be unable to pay for it. I called the Environment Management to let them know that they were auctioning the home without disclosing the tank information and when I went to the sheriff sale the next day, IT WAS CANCELLED.... I still have the home. I owe more for the home now than what I paid for it because of interest and etc. If the title company would have looked back on the previous title, they would have seen that there were tanks in my yard. They ordered soil samples last week and I was told that if the samples are low enough, they can clear the title and are free of paying damages. Can they get away with this? I would have been okay financially if I could have been able to sell this home in 2000?

**A: ok, so what did your attorney say about all of this?
9/2001 you were advised to hire one. It is now 1/2003.

 

[rhinchee]

I am not a lawyer, but I am an engineer and I have done UST work, but not in Indiana. HomeGuru is right, this is a complex issue and a good lawyer will have to help you sort it out. A few things I can tell you:

1 In most cases as the landowner you are primarily responsible for doing something. If the tanks were not yours and you did not indemnify the sellers you may be able to find a previous owner or operator who will take over that responsibility or has a deep enough pocket to be worth suing, but you own the problem.

2 The original owner/installer/operator of the tanks can usually be held liable for the contamination. Do you know who they were? If so are their pockets deep? I once worked on a case like yours where we were able to locate old building permits issued to a major oil company for the tanks who was ultimately held liable. If the tanks are excavated look for serial numbers, you may be able to determine who put them in that way.

3 Depending on what the Indiana UST regulations were in 1995 the previous owner may have been out of compliance before the property was sold to you. Again if their pockets are deep enough they may be able to help you out, or you may be able to sue them.

4 Were these tanks ever operated under a permit? If so the state may have a UST cleanup fund that could help with some of you costs. See http://www.in.gov/idem/guides/permit/waste/ust.html#closure for information and maybe a contact you can talk to.

5 Normally the regulators go after you as the owner, but they want the situation resolved. I have found that if the regulators can see that a previous owner or operator who has a deeper pocket can be held liable they will often help. In California if you can provide the regulators with evidence of some previous owner or operator's liability the state will often name these people in clean up and abatement orders. That can be a big help.

Find an attorney who knows the Indiana UST laws and regs and ask some of these questions. I am just passing ideas to you; you need someone with Indiana expertise and who knows more about your situation to advise you.

Good Luck

 

[tascott]

Thank You for your help. You have made some interesting questions for me to ask. I'll look into the superfund as well. Thanks Again

 

[HomeGuru]

Are you going to ask your attorney?

 

[rhinchee]

Superfund will do you no good, it is a federal program and usually only funds cleanup after the resources of any property owners are exhausted. Besides there is a petroleum exemption under Superfund and since most USTs are fuel tanks and therefore not covered under Superfund. The UST fund I mentioned is different; many states have a state backed insurance fund that pays some or all the costs of clean up of some UST contamination. It is possible this could help you, but it may not.

As I said before these are just my ideas, I am not a lawyer, and I have not done UST work in Indiana.

You need professional advice.

Good Luck

 

[tascott]

I spoke with my attorney again yesterday. He said it is more of a lost litigation suit because I have been unable to sell this home since I was released from my job of 7 years. I had over half of this home payed off and if I could have sold it, I would have payed the mortgage off and would have had $27,000. in my pocket to pay off credit card and start fresh with something I could afford with my new income. These tanks were brought to my attention on April 26, 2000. I was released from my job on April 12, 2000. Some Luck....... I cashed out of my 401k instead of rolling it over just to make payments on this house. After about 6 months and the state IDEM and EPA told me that until cleanup was complete they could not approve the property as "CLEAN". I would be held responsible. Banks wouldn't lend for the home either until cleanup was approved...

 

[HomeGuru]

Makes sense.

 

[rhinchee]

One thing that may work in your favor is that banks can be reluctant to foreclose on or take title to a contaminated property. Particularly if the clean up and liability of the contamination may exceed the value of the property. I don't know what the financial or legal implacations for you might be but you may be able to go on living in the house no matter what you owe or pay. IDEM and EPA can't get blood out of a turnip and the bank maybe afraid of the property.

Good Luck

 

[HomeGuru]

One thing that may work in your favor is that banks can be reluctant to foreclose on or take title to a contaminated property. Particularly if the clean up and liability of the contamination may exceed the value of the property. I don't know what the financial or legal implacations for you might be but you may be able to go on living in the house no matter what you owe or pay. IDEM and EPA can't get blood out of a turnip and the bank maybe afraid of the property.

Good Luck

**A: this has actually happened in some cases.

 

[tascott]

Your exactly right rhinchee..... It has been about 2 years since I have tried to get the bank to take it back. I told them that I could no longer afford the payments and because of the contamination, I have been unable to sell it. The Credit Union didn't even try to contact their Title company. They just let it go for the last 2 years and after I had the tanks removed, they tried to say it would be okay to auction. I went to the Sheriffs sale on Nov 22nd 2002, and the Credit Union's forclosure attorney had backed out because IDEM and my attorney contacted him about the contamination...... So, it wasn't sold and I still have the house right now waiting to see what my Title company does about. Once we know what their plans are, my lawyer will tell me more about what actions we are going take.

 

[HomeGuru]

Has your lawyer contacted the lender about a deed in lieu of foreclosure?

 

[tascott]

I'm not sure what all was discussed. I just know that my lawyer gave the attorney in charge of the forclosure some of the facts about my property and everything was stopped. Can you explain a little about the deed in lieu of forclosure, or what that would do? I will be sure and ask him.