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Court affirms judgment with minor recalculation in decade-long dispute

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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.”

 

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  1. 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.

  2. 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.

  3. 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.

  4. 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!

  5. "No one is safe when the Legislature is in session."

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