ILNews

Judges find certain property not included in sheriff's sale

Back to TopCommentsE-mailPrintBookmark and Share

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.
 

ADVERTISEMENT

Post a comment to this story

COMMENTS POLICY
We reserve the right to remove any post that we feel is obscene, profane, vulgar, racist, sexually explicit, abusive, or hateful.
 
You are legally responsible for what you post and your anonymity is not guaranteed.
 
Posts that insult, defame, threaten, harass or abuse other readers or people mentioned in Indiana Lawyer editorial content are also subject to removal. Please respect the privacy of individuals and refrain from posting personal information.
 
No solicitations, spamming or advertisements are allowed. Readers may post links to other informational websites that are relevant to the topic at hand, but please do not link to objectionable material.
 
We may remove messages that are unrelated to the topic, encourage illegal activity, use all capital letters or are unreadable.
 

Messages that are flagged by readers as objectionable will be reviewed and may or may not be removed. Please do not flag a post simply because you disagree with it.

Sponsored by
ADVERTISEMENT
Subscribe to Indiana Lawyer
  1. Thank you, John Smith, for pointing out a needed correction. The article has been revised.

  2. The "National institute for Justice" is an agency for the Dept of Justice. That is not the law firm you are talking about in this article. The "institute for justice" is a public interest law firm. http://ij.org/ thanks for interesting article however

  3. I would like to try to find a lawyer as soon possible I've had my money stolen off of my bank card driver pressed charges and I try to get the information they need it and a Social Security board is just give me a hold up a run around for no reason and now it think it might be too late cuz its been over a year I believe and I can't get the right information they need because they keep giving me the runaroundwhat should I do about that

  4. It is wonderful that Indiana DOC is making some truly admirable and positive changes. People with serious mental illness, intellectual disability or developmental disability will benefit from these changes. It will be much better if people can get some help and resources that promote their health and growth than if they suffer alone. If people experience positive growth or healing of their health issues, they may be less likely to do the things that caused them to come to prison in the first place. This will be of benefit for everyone. I am also so happy that Indiana DOC added correctional personnel and mental health staffing. These are tough issues to work with. There should be adequate staffing in prisons so correctional officers and other staff are able to do the kind of work they really want to do-helping people grow and change-rather than just trying to manage chaos. Correctional officers and other staff deserve this. It would be great to see increased mental health services and services for people with intellectual or developmental disabilities in the community so that fewer people will have to receive help and support in prisons. Community services would like be less expensive, inherently less demeaning and just a whole lot better for everyone.

  5. Can I get this form on line,if not where can I obtain one. I am eligible.

ADVERTISEMENT