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Judges interpret Probate Code statute in favor of bank

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Finding that a bank did not receive proper notice in order to file a claim against an estate, the Indiana Court of Appeals reversed summary judgment in favor of the estate of Samuel Tolley on the bank’s two claims.

Attorney James Berkshire notified by phone First Merchants Bank on Dec. 17, 2010, that Samuel Tolley died Nov. 17, that he was the attorney for the personal representatives of Tolley’s estate and had filed pleadings and other documents to open administration of the estate, and that proceedings were filed in Miami Superior Court II. First Merchants faxed to Berkshire a document that detailed Tolley’s customer information with a note that he had died in November.

Notice of administration was published Dec. 31, 2010, and Jan. 7, 2011, in the Peru Tribune, but First Merchants never received written notice from the estate. The bank filed two claims against the estate on July 26, 2011. Both parties filed for summary judgment. The estate argued the bank’s claims were untimely as a matter of law; the bank argued they were timely.

In granting summary judgment for the estate, the trial judge noted that First Merchants had actual knowledge of Tolley’s death and there’s no reason for the estate to serve the bank with actual written notice. The court found the bank’s claims untimely.

On appeal, the bank argued that Indiana Code 29-1-7-7(d) requires actual receipt of the notice, like by mail, and that the statute strongly implies the notice must be given in writing. Actual written notice is the bare minimum Due Process requires. The appellate judges agreed.

“Even though First Merchants had actual notice of the decedent’s death, the phone call from the attorney for the personal representatives did not meet the requirement of informing First Merchants of the time period for filing a claim.” Judge Elaine Brown wrote. “Based upon the designated evidence, we cannot say that First Merchants received proper notice. Accordingly, First Merchants’ claims filed on July 26, 2011 which occurred within nine months of Samuel’s death were timely filed.”

The case, In the Matter of the Estate of Samuel L. Tolley, Deceased; First Merchants Bank, N.A. v. Duane Earl Tolley, and Betty June Tolley, 52A02-1208-EU-671, is remanded for further proceedings.  

 

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  1. Good riddance to this dangerous activist judge

  2. What is the one thing the Hoosier legal status quo hates more than a whistleblower? A lawyer whistleblower taking on the system man to man. That must never be rewarded, must always, always, always be punished, lest the whole rotten tree be felled.

  3. I want to post this to keep this tread alive and hope more of David's former clients might come forward. In my case, this coward of a man represented me from June 2014 for a couple of months before I fired him. I knew something was wrong when he blatantly lied about what he had advised me in my contentious and unfortunate divorce trial. His impact on the proceedings cast a very long shadow and continues to impact me after a lengthy 19 month divorce. I would join a class action suit.

  4. The dispute in LB Indiana regarding lake front property rights is typical of most beach communities along our Great Lakes. Simply put, communication to non owners when visiting the lakefront would be beneficial. The Great Lakes are designated navigational waters (including shorelines). The high-water mark signifies the area one is able to navigate. This means you can walk, run, skip, etc. along the shores. You can't however loiter, camp, sunbath in front of someones property. Informational signs may be helpful to owners and visitors. Our Great Lakes are a treasure that should be enjoyed by all. PS We should all be concerned that the Long Beach, Indiana community is on septic systems.

  5. Dear Fan, let me help you correct the title to your post. "ACLU is [Left] most of the time" will render it accurate. Just google it if you doubt that I am, err, "right" about this: "By the mid-1930s, Roger Nash Baldwin had carved out a well-established reputation as America’s foremost civil libertarian. He was, at the same time, one of the nation’s leading figures in left-of-center circles. Founder and long time director of the American Civil Liberties Union, Baldwin was a firm Popular Fronter who believed that forces on the left side of the political spectrum should unite to ward off the threat posed by right-wing aggressors and to advance progressive causes. Baldwin’s expansive civil liberties perspective, coupled with his determined belief in the need for sweeping socioeconomic change, sometimes resulted in contradictory and controversial pronouncements. That made him something of a lightning rod for those who painted the ACLU with a red brush." http://www.harvardsquarelibrary.org/biographies/roger-baldwin-2/ "[George Soros underwrites the ACLU' which It supports open borders, has rushed to the defense of suspected terrorists and their abettors, and appointed former New Left terrorist Bernardine Dohrn to its Advisory Board." http://www.discoverthenetworks.org/viewSubCategory.asp?id=1237 "The creation of non-profit law firms ushered in an era of progressive public interest firms modeled after already established like the National Association for the Advancement of Colored People ("NAACP") and the American Civil Liberties Union ("ACLU") to advance progressive causes from the environmental protection to consumer advocacy." https://en.wikipedia.org/wiki/Cause_lawyering

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