The Indiana Court of Appeals affirmed most of the $627,570 judgment in favor of a Fort Wayne restaurant operator sued by former mortgagors in a rehearing of litigation dating back more than a decade, but it ordered recalculation of a judgment based on the restaurant’s earnings.
In Wells Fargo Bank, N.A., Successor in interest to The Money Store Investment Corp., f/d/b/a First Union Small Business Capital v. Neal A. Summers, et al. 02A04-1103-CP-112, the Court of Appeals remanded to the trial court of revise the amount due to Paula Phillips, who obtained the property housing Paula’s on Main at a tax sale after former owner Neal Summers and mortgagors failed to make property tax payments.
The COA in a 35-page ruling granted Wells Fargo’s request for rehearing, but sided with the former mortgagor on only one of its claims – that the trial court miscalculated the amount the judgment should have been offset by profits the operation earned.
“Wells Fargo’s counsel stated ‘if they set off the profit against their debt that they did at accounting of every year or in January the close of the year, . . . they would have off set the amount so that the interest didn’t grow as rapidly,’” Judge Elaine Brown wrote for the unanimous panel. “We cannot say that Wells Fargo waived this issue, and agree with its position.
“On remand, we order the court to consider on an annual basis the amount by which Phillips’s lien would have been reduced by the profits and instruct the trial court to offset the loss in the first year against the profit in the second year and to offset the loss in the final year against the profit of the preceding year.”