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Judges find certain property not included in sheriff's sale

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The Indiana Court of Appeals relied on a decision from Colorado to rule on a case involving the sale of business personal property at a sheriff’s sale when the notice only mentioned the sale of real property.

Lorenzo and Joette Surrisi appealed the Marshall Circuit Court order that said their real and business personal property were sold to James Bremner at a sheriff’s sale. The Surrisis owned City Tavern in Culver and lived on the premises. Bremner loaned the couple money in return for a security interest in their alcohol beverage permit and a real estate mortgage, security agreement and fixture filing – all of which granted in the case of a default, a mortgage on the property and security interest in all personal property and fixtures, including those owned by the Surrisis for their personal use.

The Surrisis defaulted and the parties agreed that the real property and personal property would be sold at a sheriff’s sale. But the praecipe for sheriff’s sale and the notice posted about the sheriff’s sale only mentioned real property. Before the sale, the Surrisis removed all their personal property. Bremner was the highest bidder at the sale.

At a hearing, the trial court judge found that the sale of the business personal property was adequately supported by the agreed judgment, the post-judgment agreements of the party and the bill of sale issued by the sheriff.

In Lorenzo Surrisi, Individually and d/b/a City Tavern and Joette Surrisi, Individually and d/b/a City Tavern v. James D. Bremner, No. 50A04-1102-MF-83, the appellate court agreed with the Surrisis that the bill of sale was faulty because according to the praecipe of sale, notice of sale and tax documentation, only the real property was subject to the sheriff’s sale. The judges couldn’t find an Indiana case with similar facts, so it turned to the Colorado appellate court decision Van Egmond v. Horsman, 10 P.3d 715 (Colo. App. 2000). Just as in the instant case, those parties agreed that the real and personal property used to secure a promissory note would be sold at a sheriff’s sale, but only the real property was every listed. The highest bidder, Van Egmond, argued that the personal property subject to the settlement agreement was sold as part of the sheriff’s sale, but the Colorado Court of Appeals disagreed because no notice of sale was given with respect to the personal property.

“The Surrisis knew their personal property could be subject to a sheriff’s sale, but the notice of this sale listed only the real property. Nothing in the settlement agreement requires that the real and personal property be sold at the same sale, so a person reading the Notice, even one aware of the Agreed Judgment, would presume that only the real property was to be sold,” wrote Judge Melissa May.

The COA remanded for the vacation of the portion of the court order indicating that the sheriff’s sale included the business personal property. The COA told the court to determine the amount of compensation due to the Surrisis for the loss of their business personal property since Bremner had sold the restaurant and business personal property to a third party.
 

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  1. Where may I find an attorney working Pro Bono? Many issues with divorce, my Disability, distribution of IRA's, property, money's and pressured into agreement by my attorney. Leaving me far less than 5% of all after 15 years of marriage. No money to appeal, disabled living on disability income. Attorney's decision brought forward to judge, no evidence ever to finalize divorce. Just 2 weeks ago. Please help.

  2. For the record no one could answer the equal protection / substantive due process challenge I issued in the first post below. The lawless and accountable only to power bureaucrats never did either. All who interface with the Indiana law examiners or JLAP be warned.

  3. Hi there I really need help with getting my old divorce case back into court - I am still paying support on a 24 year old who has not been in school since age 16 - now living independent. My visitation with my 14 year old has never been modified; however, when convenient for her I can have him... I am paying past balance from over due support, yet earn several thousand dollars less. I would contact my original attorney but he basically molest me multiple times in Indy when I would visit.. Todd Woodmansee - I had just came out and had know idea what to do... I have heard he no longer practices. Please help1

  4. Yes diversity is so very important. With justice Rucker off ... the court is too white. Still too male. No Hispanic justice. No LGBT justice. And there are other checkboxes missing as well. This will not do. I say hold the seat until a physically handicapped Black Lesbian of Hispanic heritage and eastern religious creed with bipolar issues can be located. Perhaps an international search, with a preference for third world candidates, is indicated. A non English speaker would surely increase our diversity quotient!!!

  5. First, I want to thank Justice Rucker for his many years of public service, not just at the appellate court level for over 25 years, but also when he served the people of Lake County as a Deputy Prosecutor, City Attorney for Gary, IN, and in private practice in a smaller, highly diverse community with a history of serious economic challenges, ethnic tensions, and recently publicized but apparently long-standing environmental health risks to some of its poorest residents. Congratulations for having the dedication & courage to practice law in areas many in our state might have considered too dangerous or too poor at different points in time. It was also courageous to step into a prominent and highly visible position of public service & respect in the early 1990's, remaining in a position that left you open to state-wide public scrutiny (without any glitches) for over 25 years. Yes, Hoosiers of all backgrounds can take pride in your many years of public service. But people of color who watched your ascent to the highest levels of state government no doubt felt even more as you transcended some real & perhaps some perceived social, economic, academic and professional barriers. You were living proof that, with hard work, dedication & a spirit of public service, a person who shared their same skin tone or came from the same county they grew up in could achieve great success. At the same time, perhaps unknowingly, you helped fellow members of the judiciary, court staff, litigants and the public better understand that differences that are only skin-deep neither define nor limit a person's character, abilities or prospects in life. You also helped others appreciate that people of different races & backgrounds can live and work together peacefully & productively for the greater good of all. Those are truths that didn't have to be written down in court opinions. Anyone paying attention could see that truth lived out every day you devoted to public service. I believe you have been a "trailblazer" in Indiana's legal community and its judiciary. I also embrace your belief that society's needs can be better served when people in positions of governmental power reflect the many complexions of the population that they serve. Whether through greater understanding across the existing racial spectrum or through the removal of some real and some perceived color-based, hope-crushing barriers to life opportunities & success, movement toward a more reflective representation of the population being governed will lead to greater and uninterrupted respect for laws designed to protect all peoples' rights to life, liberty & the pursuit of happiness. Thanks again for a job well-done & for the inevitable positive impact your service has had - and will continue to have - on countless Hoosiers of all backgrounds & colors.

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