ILNews

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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  2. The practitioners and judges who hail E-filing as the Saviour of the West need to contain their respective excitements. E-filing is federal court requires the practitioner to cram his motion practice into pigeonholes created by IT people. Compound motions or those seeking alternative relief are effectively barred, unless the practitioner wants to receive a tart note from some functionary admonishing about the "problem". E-filing is just another method by which courts and judges transfer their burden to practitioners, who are the really the only powerless components of the system. Of COURSE it is easier for the court to require all of its imput to conform to certain formats, but this imposition does NOT improve the quality of the practice of law and does NOT improve the ability of the practitioner to advocate for his client or to fashion pleadings that exactly conform to his client's best interests. And we should be very wary of the disingenuous pablum about the costs. The courts will find a way to stick it to the practitioner. Lake County is a VERY good example of this rapaciousness. Any one who does not believe this is invited to review the various special fees that system imposes upon practitioners- as practitioners- and upon each case ON TOP of the court costs normal in every case manually filed. Jurisprudence according to Aldous Huxley.

  3. Any attorneys who practice in federal court should be able to say the same as I can ... efiling is great. I have been doing it in fed court since it started way back. Pacer has its drawbacks, but the ability to hit an e-docket and pull up anything and everything onscreen is a huge plus for a litigator, eps the sole practitioner, who lacks a filing clerk and the paralegal support of large firms. Were I an Indiana attorney I would welcome this great step forward.

  4. Can we get full disclosure on lobbyist's payments to legislatures such as Mr Buck? AS long as there are idiots that are disrespectful of neighbors and intent on shooting fireworks every night, some kind of regulations are needed.

  5. I am the mother of the child in this case. My silence on the matter was due to the fact that I filed, both in Illinois and Indiana, child support cases. I even filed supporting documentation with the Indiana family law court. Not sure whether this information was provided to the court of appeals or not. Wish the case was done before moving to Indiana, because no matter what, there is NO WAY the state of Illinois would have allowed an appeal on a child support case!

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