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Doctrine of res judicata stops property owner’s motion

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A property owner’s attempt to file a separate action against a court-appointed receiver was derailed by the Indiana Court of Appeals under the doctrine of res judicata.

The case originated from a foreclosure action filed by PNC Bank against Luxury Townhomes, LLC and LP XXIV, LLC. As part of the foreclosure, the trial court appointed Kenneth Polsinelli of McKinley Properties, Inc. as the receiver.

After PNC and Luxury reached a settlement, they filed a joint motion requesting dismissal of the foreclosure action, and a separate motion asking that Polsinelli be discharged and the receivership estate be settled.  

Luxury also filed a request for leave to join and assert claims against Polsinelli and McKinley.

At an evidentiary hearing to review Polsinelli’s final report, Luxury objected to the report. The landlord, claiming Polsinelli had negligently performed his duties, wanted permission to recover both his bond and additional funds through a separate negligence action.

The trial court found Polsinelli did not act negligently. It accepted the final report, denied Luxury’s motion for leave, discharged Polsinelli and his bond, and closed the receivership estate.

Luxury then filed a motion to correct error which the trial court denied.

In Luxury Townhomes, LLC/LP XXIV, LLC, et al. v. McKinley Properties, Inc. and Kenneth Polsinelli, 49A05-1210-MF-514, the COA affirmed the denial of Luxury’s motion to correct error. It ruled the trial court’s actions in closing the receivership estate precluded a later determination that Polsinelli acted negligently.

 “Because the trial court has already made a factual determination on Polsinelli’s performance as receiver after a three-day evidentiary hearing and has discharged Polsinelli and closed the receivership estate, we conclude that any subsequent suit by Luxury regarding issue of whether Polsinelli faithfully carried out his duties as receiver is barred by the issue preclusion branch of the doctrine of res judicata,” Judge Cale Bradford wrote for the court.

 

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  1. It appears the police and prosecutors are allowed to change the rules halfway through the game to suit themselves. I am surprised that the congress has not yet eliminated the right to a trial in cases involving any type of forensic evidence. That would suit their foolish law and order police state views. I say we eliminate the statute of limitations for crimes committed by members of congress and other government employees. Of course they would never do that. They are all corrupt cowards!!!

  2. Poor Judge Brown probably thought that by slavishly serving the godz of the age her violations of 18th century concepts like due process and the rule of law would be overlooked. Mayhaps she was merely a Judge ahead of her time?

  3. in a lawyer discipline case Judge Brown, now removed, was presiding over a hearing about a lawyer accused of the supposedly heinous ethical violation of saying the words "Illegal immigrant." (IN re Barker) http://www.in.gov/judiciary/files/order-discipline-2013-55S00-1008-DI-429.pdf .... I wonder if when we compare the egregious violations of due process by Judge Brown, to her chiding of another lawyer for politically incorrectness, if there are any conclusions to be drawn about what kind of person, what kind of judge, what kind of apparatchik, is busy implementing the agenda of political correctness and making off-limits legit advocacy about an adverse party in a suit whose illegal alien status is relevant? I am just asking the question, the reader can make own conclsuion. Oh wait-- did I use the wrong adjective-- let me rephrase that, um undocumented alien?

  4. of course the bigger questions of whether or not the people want to pay for ANY bussing is off limits, due to the Supreme Court protecting the people from DEMOCRACY. Several decades hence from desegregation and bussing plans and we STILL need to be taking all this taxpayer money to combat mostly-imagined "discrimination" in the most obviously failed social program of the postwar period.

  5. You can put your photos anywhere you like... When someone steals it they know it doesn't belong to them. And, a man getting a divorce is automatically not a nice guy...? That's ridiculous. Since when is need of money a conflict of interest? That would mean that no one should have a job unless they are already financially solvent without a job... A photographer is also under no obligation to use a watermark (again, people know when a photo doesn't belong to them) or provide contact information. Hey, he didn't make it easy for me to pay him so I'll just take it! Well heck, might as well walk out of the grocery store with a cart full of food because the lines are too long and you don't find that convenient. "Only in Indiana." Oh, now you're passing judgement on an entire state... What state do you live in? I need to characterize everyone in your state as ignorant and opinionated. And the final bit of ignorance; assuming a photo anyone would want is lucky and then how much does your camera have to cost to make it a good photo, in your obviously relevant opinion?

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