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1-year limit toll not extended by appeal

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The one-year limit to file a motion for relief from judgment under Indiana Trial Rule 60(B) is not from the time an appeals court rules on the matter, but must be made within one year after the trial court enters its order, the Indiana Court of Appeals ruled today in an issue of first impression.

Indiana’s appellate courts haven’t addressed the argument that the one-year limit is calculated from the date of any appellate decision or that an appeal extends or tolls that one-year limit for motions filed pursuant to T.R. 60(B)(1)-(4). Pro se appellant Luiz Alves made this argument in his appeal of the denial of his T.R.60(B) motion for relief from judgment in Luiz Alves v. Old National Bank f/k/a St. Joseph Capital Bank, No. 71A03-0909-CV-416.

Alves claimed to have newly discovered evidence and a fraud argument against the bank and filed a motion for relief from judgment pursuant to T.R. 60(B)(2) in June 2009. This was nearly two years after the trial court entered summary judgment in Old National Bank’s favor in Alves’ suit against the bank. He sued in 2006 claiming the bank owed him a duty, it worked with his former business partner to undermine his role in the company, breached its duty to him, and the breach caused him to suffer financial ruin and face possible deportation.

Alves appealed the trial court’s decision, in which the Court of Appeals affirmed in June 2008. The trial court denied his 2009 T.R. 60(B) motion.

He claimed the one-year limit to file the motion for relief from judgment started after the appellate decision. Because the issue hasn’t come up in state appellate courts yet, the Court of Appeals looked to the 7th Circuit Court of Appeals case, Bershad v. McDonough, 469 F.2d 1333, 1336 (7th Cir. 1972). That ruling held a motion can be made only within one year after the judgment has been entered and the taking of an appeal doesn’t extend this one-year period.

Federal Rule of Civil Procedure 60 is nearly identical to the state’s rule, and like the federal rule, the Court of Appeals concluded that an appeal does not extend the one-year limit contained in T.R. 60(B).
 

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  2. Thank you for this post . I just bought a LG External DVD It came with Cyber pwr 2 go . It would not play on Lenovo Idea pad w/8.1 . Your recommended free VLC worked great .

  3. All these sites putting up all the crap they do making Brent Look like A Monster like he's not a good person . First off th fight actually started not because of Brent but because of one of his friends then when the fight popped off his friend ran like a coward which left Brent to fend for himself .It IS NOT a crime to defend yourself 3 of them and 1 of him . just so happened he was a better fighter. I'm Brent s wife so I know him personally and up close . He's a very caring kind loving man . He's not abusive in any way . He is a loving father and really shouldn't be where he is not for self defense . Now because of one of his stupid friends trying to show off and turning out to be nothing but a coward and leaving Brent to be jumped by 3 men not only is Brent suffering but Me his wife , his kids abd step kidshis mom and brother his family is left to live without him abd suffering in more ways then one . that man was and still is my smile ....he's the one real thing I've ever had in my life .....f@#@ You Lafayette court system . Learn to do your jobs right he maybe should have gotten that year for misdemeanor battery but that s it . not one person can stand to me and tell me if u we're in a fight facing 3 men and u just by yourself u wouldn't fight back that you wouldn't do everything u could to walk away to ur family ur kids That's what Brent is guilty of trying to defend himself against 3 men he wanted to go home tohisfamily worse then they did he just happened to be a better fighter and he got the best of th others . what would you do ? Stand there lay there and be stomped and beaten or would u give it everything u got and fight back ? I'd of done the same only I'm so smallid of probably shot or stabbed or picked up something to use as a weapon . if it was me or them I'd do everything I could to make sure I was going to live that I would make it hone to see my kids and husband . I Love You Brent Anthony Forever & Always .....Soul 1 baby

  4. Good points, although this man did have a dog in the legal fight as that it was his mother on trial ... and he a dependent. As for parking spaces, handicap spots for pregnant women sure makes sense to me ... er, I mean pregnant men or women. (Please, I meant to include pregnant men the first time, not Room 101 again, please not Room 101 again. I love BB)

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