DIY: Not Always the Best Plan

        DIY: Not Always the Best Plan     There are many things that I could pay to have someone do that I do myself. Many people pay to have yard work done, but I rather enjoy it, plus being a healthy person who loves the outdoors I cannot justify paying someone to do the work I am perfectly capable of doing myself.             Other things, however, are things I gladly pay someone to do because I know that because of their years of professional training they will be able to do the job effectively and correctly and I do not have to worry about it. Plumbing and changing my car oil are two examples for me personally. While I might be able to learn how to do the particular job myself, in certain areas even if I had taught myself I would feel better having a knowledgeable professional handle it and be able to deal with the intricacies and any unforeseen situations that could arise.             Why am I sharing this in the legal blog? Because a recent case from the Indiana Supreme Court illustrates the potential pitfalls of trying to go it alone in the sometimes complicated world of litigation.  In McCullough v. CitiMortgage, two homeowners unsuccessfully challenged the foreclosure of their home.  While that does not make for a particularly interesting fact pattern, what is interesting is the opinion from the Supreme Court and “reading between the lines” the Court seems to imply that the homeowners may have had some legitimate arguments to make and potentially even win the appeal.             The main...

No Cheating Clause

No Cheating Clause     As anyone who has read this blog before knows, we have often written about the fact that Indiana courts will enforce contracts between parties when those contracts were freely negotiated.  One of the most recent decisions from the Indiana Court of Appeals affirmed this longstanding and well settled principle, but the facts of this case were just too good to pass up.             Rather than rehash all of those facts, I will leave those to the readers, but it is safe to say that not every day in legal opinions do we have to read what the legal term for “cheating” is in the context of a relationship or a court’s rather poignant statements that in this contract which included a “no cheating” clause, the woman “wasted little time in breaching the contract.”             There is no doubt that the Court likely was also swayed by the fact that the real estate at issue formerly was owned by the man’s parents.   In any event, this case shows that not all the things that lawyers have to read are that boring and the lengths people will go to fight after a relationship falls apart.   Name(required) Email(required) Website Comment(required)      ...

BLISSFULLY IGNORANT? NOT GOOD ENOUGH IN A REAL ESTATE DEAL

BLISSFULLY IGNORANT?  NOT GOOD ENOUGH IN A REAL ESTATE DEAL We have often discussed in this blog how the Indiana courts will look at contracts and typically enforce the exact terms that were agreed to by the parties.   The courts will also look at those contracts and hold the parties to the terms that were negotiated.   However, in a recent case, the Court of Appeals went even further, most likely to get to what was in the court’s opinion the best result. The two parties to the dispute had entered into a “property contract” whereby the seller was offering to sell certain real estate “property” to the buyer.   However, the seller did not actually own the property, but in fact had rights under a lease, and another person actually owned the real estate.   Therefore, the contract was not with the actual owner of the property; it was between the buyer and the person who was leasing the property from another person who actually was leasing from the owner. After the buyer defaulted on the contract due to not paying the monthly payments, the seller filed a lawsuit to evict the buyer and to collect the amounts that had not been paid.   At that point, the buyer, for the first time, conducted a title search and realized that the seller did not own the property, but rather only had been leasing it. The buyer then filed a counterclaim against the seller because the buyer claimed to have been defrauded by the seller given that the seller did not own the property and therefore could not sell it to the buyer....

Tax Deeds 1, Adverse Possession 0

Tax Deeds 1, Adverse Possession 0 A recent Indiana Supreme Court decision decided the relative rights of a tax deed purchaser versus a party with an adverse possession claim against real estate.  The result: tax deeds defeat adverse possession claims. In Bonnell v. Cotner et al, a 35 foot wide strip of land was sold at tax sales in 1993 and 2011.  The Pulaski County Board of Commissioners purchased the parcel at the second tax sale, then sold the property to Bonnell.  Bonnell believed that the 35 foot wide strip of land ran along adjacent farmland to the east of an old fence.  However, a survey revealed that the strip of land was actually on the west side of the fence.  The property owners to the west of the strip of land, including Cotner, believed that their properties extended east to the fence line and had treated the 35 foot strip of land as their own property since the 1960s. Under Indiana common law, the doctrine of adverse possession permits a party to take title to a property that the party has treated as its own despite not having held legal title to the property.  In order to take title, the party must demonstrate that (i) it has had control of the property, (i) it has had an intent to own the property, (iii) others had notice of the intent to take ownership of the property, and (iv) the possession has been for a sufficient duration of time.  In Bonnell, it was undisputed that all of these common law requirements were satisfied.  In addition to the common law requirements,...

Priority of Purchase-Money Mortgage

Priority of Purchase-Money Mortgage Under Indiana law, a “purchase-money mortgage” is given as security for a loan used by the mortgagor (buyer) to acquire legal title to a property.  Indiana Code § 32-29-1-4 provides that “[a] mortgage granted by a purchaser to secure purchase-money has priority over a prior judgment against the purchaser.”  Therefore, if a mortgage is considered a purchase-money mortgage, it has priority over a previously recorded judgment lien. This issue was recently addressed by the Indiana Court of Appeals. In Amici Resources, LLC; et al. v. The Alan D. Nelson Living Trust; et al. (http://www.in.gov/judiciary/opinions/pdf/01191602cjb.pdf), Sabine Matthies (“Matthies”) obtained a judgment against Solid Foundation Investment Properties, Inc. (“SFIP”) in December 2012.  In April 2013, SFIP purchased real estate in Indianapolis.  SFIP financed the purchase of the property through a loan from The Alan D. Nelson Living Trust (the “Trust”), and SFIP executed a promissory note and mortgage in favor of the Trust to evidence and secure repayment of that loan.  At the time of the closing, SFIP also entered into an agreement with Amici Resources, LLC (“Amici”) whereby Amici agreed to finance renovations and improvements to the property with a loan to be secured by a second mortgage against the property. Matthies brought an action to enforce her judgment lien, and argued that her judgment lien should be deemed “senior”, or “first”, among all of the liens. Matthies argued that the Trust’s mortgage was not a purchase-money mortgage because it was signed the day before SFIP closed on the purchase of the real estate.  If the Court had agreed with Mattheis, her lien would have been...

Mediation? Arbitration? Same Thing, Right?

Mediation? Arbitration? Same Thing, Right? There is often some confusion on the part of business clients concerning the differences between mediation and arbitration.  Some people tend to use the terms interchangeably, but in actuality mediation and arbitration are quite different. In a mediation, typically the parties hire a third party “neutral” person who, while she may be a lawyer, does not need to be in order to help facilitate settlement discussions.  Sometimes the attorneys involved will suggest a mediation as a way to have their clients listen to a neutral third party describe the strengths of the opponent’s case and the weaknesses of their own client’s case so that the parties can try to reach a resolution before incurring significant costs.  As previously noted in this blog, you are not sacrificing anything legally by engaging in mediation or other forms of settlement negotiations.  That is because if the case does not settle at mediation, any judge or jury who ultimately tries the case in court will never hear what offers of compromise may have been made by the parties. It is important to remember that in a mediation, the mediator makes no decisions.  Rather, all of the ultimate decisions about whether to settle, and for how much, are left to the parties.  The mediator cannot force a settlement on anyone.  The mediator can make suggestions, and the parties can agree on different ways to mediate.  However, ultimately it is up to the parties to decide if the case will settle or not.  This is one of the big advantages of mediation, because the parties control their own destinies.  After...
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