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COA upholds eviction action

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A trial court properly treated a couple's action against the man who agreed to purchase a house from them as an eviction, the Indiana Court of Appeals concluded. The court also analyzed for the first time the nature and effect of a pre-closing possession agreement like the one in the instant case.

In Frank Chiprean v. Brody and Lacy Stock, No. 48A04-0907-CV-389, Frank Chiprean appealed the $6,000 judgment against him in favor of the Stocks. Chiprean executed a purchase agreement for a house owned by the Stocks and completion of the sale was contingent upon Chiprean getting a mortgage to buy the house. The parties also entered into an agreement that allowed Chiprean to take possession of the home and make monthly payments to the Stocks. He also agreed to accept the property in its current condition with no further responsibility to the seller for maintenance or repair and didn't have an inspection done of the home.

While living there, part of the roof collapsed, which caused Chiprean to only be able to live in a small part of the home. He stopped making payments even though the Stocks had made arrangements to have the roof repaired.

The Stocks then filed a small claims action to evict Chiprean; Chiprean filed a counterclaim to recover his $5,000 deposit. The trial court entered judgment in favor of the Stocks and denied Chiprean's counterclaim.

Chiprean argued on appeal that the trial court should have foreclosed his interest in the property, but he waived that argument because he never requested the property be foreclosed. Citing Skendzel v. Marshall, 261 Ind. 226, 301 N.E.2d 641 (1973), the appellate court noted there must be a "consummated" land sale contract with respect to a piece of land and that didn't happen here because completion was contingent upon Chiprean getting financing.

The possession agreement also appears to be more in the nature of a lease than a land sale contract, wrote Judge Michael Barnes, noting the court couldn't find any Indiana cases analyzing the nature and effect of a pre-closing possession agreement like this one.

"We reviewed one case from New York wherein the court held that payments made under a pre-closing possession agreement did not create an equitable interest in the property because there was a lack of 'clear intent between the parties that such property be held, given or transferred as security for an obligation . . . .,'" he wrote. "We conclude that there likewise is a lack of such clear intent in this case."

There's nothing in either agreement indicating that the monthly payments were intended to pay down the contract balance owed to the Stocks. The agreements don't constitute a land sale contract or reflect intent by the parties that Chiprean have an equitable interest in the property, and he's not entitled to the benefit for foreclosure proceedings, wrote the judge.

The appellate court also upheld the denial of Chiprean's counterclaim, ruling he wasn't permitted to avoid liability for payments under the possession agreement, despite his argument the house was largely unlivable after the roof collapsed.

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  1. I just wanted to point out that Congressman Jim Sensenbrenner, Senator Feinstein, former Senate majority leader Bill Frist, and former attorney general John Ashcroft are responsible for this rubbish. We need to keep a eye on these corrupt, arrogant, and incompetent fools.

  2. Well I guess our politicians have decided to give these idiot federal prosecutors unlimited power. Now if I guy bounces a fifty-dollar check, the U.S. attorney can intentionally wait for twenty-five years or so and have the check swabbed for DNA and file charges. These power hungry federal prosecutors now have unlimited power to mess with people. we can thank Wisconsin's Jim Sensenbrenner and Diane Feinstein, John Achcroft and Bill Frist for this one. Way to go, idiots.

  3. I wonder if the USSR had electronic voting machines that changed the ballot after it was cast? Oh well, at least we have a free media serving as vicious watchdog and exposing all of the rot in the system! (Insert rimshot)

  4. Jose, you are assuming those in power do not wish to be totalitarian. My experience has convinced me otherwise. Constitutionalists are nearly as rare as hens teeth among the powerbrokers "managing" us for The Glorious State. Oh, and your point is dead on, el correcta mundo. Keep the Founders’ (1791 & 1851) vision alive, my friend, even if most all others, and especially the ruling junta, chase only power and money (i.e. mammon)

  5. Hypocrisy in high places, absolute immunity handed out like Halloween treats (it is the stuff of which tyranny is made) and the belief that government agents are above the constitutions and cannot be held responsible for mere citizen is killing, perhaps has killed, The Republic. And yet those same power drunk statists just reel on down the hallway toward bureaucratic fascism.

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