ILNews

COA upholds eviction action

Back to TopE-mailPrintBookmark and Share

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.

ADVERTISEMENT

Sponsored by
ADVERTISEMENT
Subscribe to Indiana Lawyer
  1. From his recent appearance on WRTV to this story here, Frank is everywhere. Couldn't happen to a nicer guy, although he should stop using Eric Schnauffer for his 7th Circuit briefs. They're not THAT hard.

  2. They learn our language prior to coming here. My grandparents who came over on the boat, had to learn English and become familiarize with Americas customs and culture. They are in our land now, speak ENGLISH!!

  3. @ Rebecca D Fell, I am very sorry for your loss. I think it gives the family solace and a bit of closure to go to a road side memorial. Those that oppose them probably did not experience the loss of a child or a loved one.

  4. If it were your child that died maybe you'd be more understanding. Most of us don't have graves to visit. My son was killed on a state road and I will be putting up a memorial where he died. It gives us a sense of peace to be at the location he took his last breath. Some people should be more understanding of that.

  5. Can we please take notice of the connection between the declining state of families across the United States and the RISE OF CPS INVOLVEMENT??? They call themselves "advocates" for "children's rights", however, statistics show those children whom are taken from, even NEGLIGENT homes are LESS likely to become successful, independent adults!!! Not to mention the undeniable lack of respect and lack of responsibility of the children being raised today vs the way we were raised 20 years ago, when families still existed. I was born in 1981 and I didn't even ever hear the term "CPS", in fact, I didn't even know they existed until about ten years ago... Now our children have disagreements between friends and they actually THREATEN EACH OTHER WITH, "I'll call CPS" or "I'll have [my parent] (usually singular) call CPS"!!!! And the truth is, no parent is perfect and we all have flaws and make mistakes, but it is RIGHTFULLY OURS - BY THE CONSTITUTION OF THIS GREAT NATION - to be imperfect. Let's take a good look at what kind of parenting those that are stealing our children are doing, what kind of adults are they producing? WHAT ACTUALLY HAPPENS TO THE CHILDREN THAT HAVE BEEN RIPPED FROM THEIR FAMILY AND THAT CHILD'S SUCCESS - or otherwise - AS AN ADULT.....

ADVERTISEMENT