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COA reverses ruling in right of contribution case

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The Indiana Court of Appeals used common law today to reverse a judgment in favor of a man suing his business partner for failing to contribute to guarantee payments.

Frank Rogers co-owned two businesses with Equicor Development, in which Gregory Small is president – Plainfield Place and Patriot’s Place. In Plainfield Place, Equicor owned about 40 percent membership interests, Rogers had nearly 54 percent and another man had nearly 6 percent. Equicor and Rogers each owned a 50 percent membership interest in Patriot’s Place.

The men purchased property to develop and entered into loan agreements with Busey Bank on the Plainfield Place land and with Monroe Bank for the Patriot’s Place land. The men executed personal guaranties as security for the promissory notes.

They defaulted on the notes; Rogers paid some money to the banks, but Small did not. Rogers sued Small, asserting a “right of contribution” against him for the amount paid by Rogers in excess of his pro rata share and for the disproportionate benefit received by Small through Equicor’s management fees and real estate commissions. Both men filed for summary judgment; the trial court ruled in favor of Rogers, finding it wasn’t necessary for Rogers to have paid the liability in full and the law finds the right of contribution when one party pays more than his share of the common obligation. It awarded $43,050.47 in damages to Rogers.

But the trial court erred in ruling in favor of Rogers, the appellate court held in Gregory M. Small v. Frank A. Rogers, No. 29A02-1001-PL-30. Using common law because Indiana Code is silent as to the liability between co-guarantors, the Court of Appeals applied the same theory of contribution that has been applied to co-sureties – “the right of contribution operates to make sure those who assume a common burden carry it in equal portions.”  

In order to be entitled to contribution, Rogers had to have paid the debt or more than his proportionate share of it. But the evidence showed he only paid a portion of the amounts due under the promissory notes and far less than his share of the debts.

Judge Carr Darden wrote that Rogers’ reliance on Balvich v. Spicer, 894 N.E.2d 235, 243 (Ind. Ct. App. 2008), is misplaced. In Balvich, the banks reduced the co-guarantors’ debt to two judgments and the Spicers had paid more than their proportionate share, thereby satisfying the judgments. In the instant case, the debt owed by Rogers and Small hadn’t been reduced to judgment, so there can be no satisfaction of the judgment and no discharge of the debt, wrote Judge Darden.

“Rather, in this case, the debt still exists. Rogers did not discharge the debt, either by paying the debt or a judgment on the debt. Furthermore, the amounts paid by Rogers do not constitute more than his proportionate share of the more than $5,000,000.00 of debt incurred,” wrote the judge.

“To hold otherwise would result in a claim for contribution being asserted upon each and every payment made toward a debt until the debt is discharged,” he wrote in a footnote. “Of course, this is not to say that the amounts paid toward a debt cannot, or will not, be credited to the party asserting the right of contribution once the guaranteed debt is discharged.”
 

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  1. Call it unauthorized law if you must, a regulatory wrong, but it was fraud and theft well beyond that, a seeming crime! "In three specific cases, the hearing officer found that Westerfield did little to no work for her clients but only issued a partial refund or no refund at all." That is theft by deception, folks. "In its decision to suspend Westerfield, the Supreme Court noted that she already had a long disciplinary history dating back to 1996 and had previously been suspended in 2004 and indefinitely suspended in 2005. She was reinstated in 2009 after finally giving the commission a response to the grievance for which she was suspended in 2004." WOW -- was the Indiana Supreme Court complicit in her fraud? Talk about being on notice of a real bad actor .... "Further, the justices noted that during her testimony, Westerfield was “disingenuous and evasive” about her relationship with Tope and attempted to distance herself from him. They also wrote that other aggravating factors existed in Westerfield’s case, such as her lack of remorse." WOW, and yet she only got 18 months on the bench, and if she shows up and cries for them in a year and a half, and pays money to JLAP for group therapy ... back in to ride roughshod over hapless clients (or are they "marks") once again! Aint Hoosier lawyering a great money making adventure!!! Just live for the bucks, even if filthy lucre, and come out a-ok. ME on the other hand??? Lifetime banishment for blowing the whistle on unconstitutional governance. Yes, had I ripped off clients or had ANY disciplinary history for doing that I would have fared better, most likely, as that it would have revealed me motivated by Mammon and not Faith. Check it out if you doubt my reading of this, compare and contrast the above 18 months with my lifetime banishment from court, see appendix for Bar Examiners report which the ISC adopted without substantive review: https://www.scribd.com/doc/299040839/2016Petitionforcert-to-SCOTUS

  2. Wow, over a quarter million dollars? That is a a lot of commissary money! Over what time frame? Years I would guess. Anyone ever try to blow the whistle? Probably not, since most Hoosiers who take notice of such things realize that Hoosier whistleblowers are almost always pilloried. If someone did blow the whistle, they were likely fired. The persecution of whistleblowers is a sure sign of far too much government corruption. Details of my own personal experience at the top of Hoosier governance available upon request ... maybe a "fake news" media outlet will have the courage to tell the stories of Hoosier whistleblowers that the "real" Hoosier media (cough) will not deign to touch. (They are part of the problem.)

  3. So if I am reading it right, only if and when African American college students agree to receive checks labeling them as "Negroes" do they receive aid from the UNCF or the Quaker's Educational Fund? In other words, to borrow from the Indiana Appellate Court, "the [nonprofit] supposed to be [their] advocate, refers to [students] in a racially offensive manner. While there is no evidence that [the nonprofits] intended harm to [African American students], the harm was nonetheless inflicted. [Black students are] presented to [academia and future employers] in a racially offensive manner. For these reasons, [such] performance [is] deficient and also prejudice[ial]." Maybe even DEPLORABLE???

  4. I'm the poor soul who spent over 10 years in prison with many many other prisoners trying to kill me for being charged with a sex offense THAT I DID NOT COMMIT i was in jail for a battery charge for helping a friend leave a boyfriend who beat her I've been saying for over 28 years that i did not and would never hurt a child like that mine or anybody's child but NOBODY wants to believe that i might not be guilty of this horrible crime or think that when i say that ALL the paperwork concerning my conviction has strangely DISAPPEARED or even when the long beach judge re-sentenced me over 14 months on a already filed plea bargain out of another districts court then had it filed under a fake name so i could not find while trying to fight my conviction on appeal in a nut shell people are ALWAYS quick to believe the worst about some one well I DID NOT HURT ANY CHILD EVER IN MY LIFE AND HAVE SAID THIS FOR ALMOST 30 YEARS please if anybody can me get some kind of justice it would be greatly appreciated respectfully written wrongly accused Brian Valenti

  5. A high ranking Indiana supreme Court operative caught red handed leading a group using the uber offensive N word! She must denounce or be denounced! (Or not since she is an insider ... rules do not apply to them). Evidence here: http://m.indianacompanies.us/friends-educational-fund-for-negroes.364110.company.v2#top_info

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