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COA: surety agency's lack of timely action justifies fines

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The Indiana Court of Appeals has affirmed a trial court’s determination that a surety agency failed to comply with Indiana Code and is therefore liable for a deceased man’s bond.

On April 25, 2007, the state charged Manual Gaeta with eight counts of dealing in methamphetamine and one count of conspiracy to commit dealing in methamphetamine, each as a Class A felony, and set his bond at $500,000 surety. Two days later, the trial court reduced the bond to $250,000 surety. On May 7, 2007, Roche Surety & Casualty filed a surety bond in that amount guaranteeing Gaeta’s future appearances in court, and Gaeta was released on bond.
 
In February 2008, the trial court received information that Gaeta had fled to Mexico and issued an order for him to appear on Feb. 15. He failed to appear, and on Feb. 25, the court issued a warrant for his arrest and ordered Roche Surety to produce Gaeta, pursuant to Indiana Code section 27-10-2-12(a).

In Mauel Gaeta; Roche Surety & Casualty v. State of Indiana, No. 79A02-1011-CR-1196, Roche Surety appeals the trial court’s determination that it failed to comply with subsection (b) of Indiana Code section 27-10-2-12, claiming the court had misinterpreted the code.
 
Roche Surety claims the trial court’s decision, which cited Johnson v. State, 567 N.E.2d 146 (Ind. Ct. App. 1991), was incorrect because Johnson was decided before the statute was amended to its current version. The previous version of the code did not contain the language “within … 365 days.” Roche argued that amended code language in subsection (b) means it had 365 days to prove that the defendant’s appearance was prevented before incurring any penalty. The COA disagreed with Roche Surety’s claim.

The appeals court wrote that in Johnson, it held that compliance with subsection (b) applies to when the defendant is produced, or when proof of his inability to appear is made. It does not apply to the timing of the event that prevented his appearance. Therefore, in Gaeta, the appeals court held that the trial court had correctly interpreted the date that the bondsmen proved the client’s inability to appear, and accordingly correctly assessed the late-surrender fee.

Per Indiana code, the appeals court wrote, Roche Surety had a 120-day grace period to either produce the defendant or explain why he had not appeared in court. That grace period expired on June 24, 2008.

On Feb. 23, 2009, 364 days after notice was given, Roche Surety filed its motion of compliance, which stated that Gaeta was terminally ill and located in Mexico and that he was unable to travel. Attached to this motion were medical records dated Jan. 25, 2009, detailing Gaeta’s illness. Also attached was an affidavit from the recovery agent, stating she was retained by Roche Surety on July 16, 2008, and that, although she searched for Gaeta in numerous places in Mexico, she had only found him on Dec. 29, 2008. The appeals court wrote that hiring the recovery agent is the first evidence that Roche Surety had attempted to find Gaeta and that no information existed to show that it  had attempted to ask Gaeta’s family – who lived in Indiana – about his whereabouts.

Medical records that show Gaeta was admitted to a hospital in Mexico in April 2008 do not prove that his failure to appear in February 2008 was prevented by illness.
 
The appeals court therefore concluded that Roche Surety did not comply with Indiana Code section 27-10-2-12(b) within 365 days as required by subsection (d).
 
On cross-appeal, the state asserted that, because Roche Surety failed to comply with subsection (b)(2) within 365 days, Roche Surety is liable for the 80 percent late-surrender fee and forfeiture of 20 percent of the face value of the bond, pursuant to subsection (d). The appeals court agreed and remanded to the trial court with instructions to enter judgment consistent with its opinion.

Gaeta died in August 2009.
 

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  1. Im very happy for you, getting ready to go down that dirt road myself, and im praying for the same outcome, because it IS sometimes in the childs best interest to have visitation with grandparents. Thanks for sharing, needed to hear some positive posts for once.

  2. Been there 4 months with 1 paycheck what can i do

  3. our hoa has not communicated any thing that takes place in their "executive meetings" not executive session. They make decisions in these meetings, do not have an agenda, do not notify association memebers and do not keep general meetings minutes. They do not communicate info of any kind to the member, except annual meeting, nobody attends or votes because they think the board is self serving. They keep a deposit fee from club house rental for inspection after someone uses it, there is no inspection I know becausee I rented it, they did not disclose to members that board memebers would be keeping this money, I know it is only 10 dollars but still it is not their money, they hire from within the board for paid positions, no advertising and no request for bids from anyone else, I atteended last annual meeting, went into executive session to elect officers in that session the president brought up the motion to give the secretary a raise of course they all agreed they hired her in, then the minutes stated that a diffeerent board member motioned to give this raise. This board is very clickish and has done things anyway they pleased for over 5 years, what recourse to members have to make changes in the boards conduct

  4. Where may I find an attorney working Pro Bono? Many issues with divorce, my Disability, distribution of IRA's, property, money's and pressured into agreement by my attorney. Leaving me far less than 5% of all after 15 years of marriage. No money to appeal, disabled living on disability income. Attorney's decision brought forward to judge, no evidence ever to finalize divorce. Just 2 weeks ago. Please help.

  5. For the record no one could answer the equal protection / substantive due process challenge I issued in the first post below. The lawless and accountable only to power bureaucrats never did either. All who interface with the Indiana law examiners or JLAP be warned.

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