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Opinions Aug. 14, 2014

August 14, 2014
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7th Circuit Court of Appeals
Elliott D. Levin, as trustee in bankruptcy for Irwin Financial Corp. v. William I. Miller, et al.
12-3474
U.S. District Court, Southern District of Indiana, Indianapolis Division, Judge Sarah Evans Barker.
Civil. Affirms dismissal with respects to counts 1, 2, 4 and 5 that claim bank managers violated their fiduciary duties to Irwin because those claims are now owned by the FDIC.  Vacates dismissal of counts 3 – that managers allowed Irwin to pay dividends in amounts that left it short of capital - and 7 – that two of the managers breach their duties of care and loyalty – and and remands for further proceedings because those claims are categorized as direct claims that must be pursued by the bank, not the FDIC. Judge Hamilton concurs in result.

Fortres Grand Corp. v. Warner Bros. Entertainment Inc.
13-2337
U.S. District Court, Northern District of Indiana, South Bend Division, Judge Philip P. Simon.
Civil. Affirms finding that Fortres Grand Corp. failed to state a claim under the traditional confusion or reverse confusion theory and that Warner Bros.’ use of the words “clean slate” was protected by the First Amendment.

Indiana Court of Appeals
Michael H. Kretschmer v. Bank of America, N.A.
20A05-1312-MF-600
Mortgage foreclosure. Reverses the denial of Kretschmer’s motion to set aside a default judgment in favor of Bank of America. Finds that Kretschmer has demonstrated grounds for setting aside the entry of default judgment pursuant to Trial Rule 60(B)(1) and (3) and has alleged a meritorious defense.

Amy L. Falatovics v. Imre L. Falatovics
46A04-1401-DR-20
Domestic relation. Reverses divorce decree and remands with instructions to include in the marital estate the husband’s interest in two parcels of real estate he owns as a joint tenant with his brother subject to a life estate in his mother. Husband’s interest in the real estate was improperly excluded because he has a present pecuniary interest in the properties.

Stephanie Lucas v. State of Indiana
03A01-1309-CR-389
Criminal. Reverses on interlocutory appeal the denial of Lucas’ motion to suppress evidence obtained in the course of a traffic stop. The traffic stop was more intrusive than authorized for a permissible investigatory stop because the police officer did not articulate a legitimate reason as to why he could not complete his investigation standing alongside Lucas’ vehicle instead of having her sit in his police vehicle. Judge Bradford concurs in result in a separate opinion.

Trent A. Burnworth v. State of Indiana (NFP)
35A02-1401-CR-85
Criminal. Affirms conviction and sentence for Class D felony theft and finding that Burnworth is a habitual offender.

Arthur B. Greco, Jr. v. State of Indiana (NFP)
45A03-1401-CR-7
Criminal. Affirms sentence for Class D felonies intimidation and escape, and Class A misdemeanor resisting law enforcement.

Charles J. Dean v. State of Indiana (NFP)
22A01-1402-CR-98
Criminal. Affirms sentence following guilty plea to Class B felony dealing in a Schedule I controlled substance.

In the Matter of the Voluntary Termination of the Parent-Child Relationship of: M.C., Jr., M.C., Sr., Father v. Indiana Department of Child Services (NFP)
84A01-1302-JT-51
Juvenile. Affirms denial of motion for relief from judgment following the termination of father’s parental rights.

Kyle J. Eckstein v. State of Indiana (NFP)
19A01-1312-CR-536
Criminal. Affirms convictions of Class B felony burglary and Class D felony theft.

In the Matter of the Termination of the Parent-Child Relationship of: G.S.T. & C.T. (Minor Children), and G.T. (Father) v. The Indiana Department of Child Services (NFP)
82A04-1312-JT-603
Juvenile. Affirms termination of father’s parental rights.

Jason S. Aliff v. State of Indiana (NFP)

41A05-1401-CR-4
Criminal. Affirms conviction of Class C felony escape.

Tremayne Terry v. State of Indiana (NFP)
49A02-1312-CR-1072
Criminal. Affirms convictions of Class C felony burglary and Class D felony theft.

In the Matter of the Termination of the Parent-Child Relationship of: G.V. (Minor Child) and M.V. (Mother) v. Indiana Department of Child Services (NFP)
45A03-1312-JT-502
Juvenile. Affirms termination of mother’s parental rights.
 

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  1. I like the concept. Seems like a good idea and really inexpensive to manage.

  2. I don't agree that this is an extreme case. There are more of these people than you realize - people that are vindictive and/or with psychological issues have clogged the system with baseless suits that are costly to the defendant and to taxpayers. Restricting repeat offenders from further abusing the system is not akin to restricting their freedon, but to protecting their victims, and the court system, from allowing them unfettered access. From the Supreme Court opinion "he has burdened the opposing party and the courts of this state at every level with massive, confusing, disorganized, defective, repetitive, and often meritless filings."

  3. So, if you cry wolf one too many times courts may "restrict" your ability to pursue legal action? Also, why is document production equated with wealth? Anyone can "produce probably tens of thousands of pages of filings" if they have a public library card. I understand this is an extreme case, but our Supreme Court really got this one wrong.

  4. He called our nation a nation of cowards because we didn't want to talk about race. That was a cheap shot coming from the top cop. The man who decides who gets the federal government indicts. Wow. Not a gentleman if that is the measure. More importantly, this insult delivered as we all understand, to white people-- without him or anybody needing to explain that is precisely what he meant-- but this is an insult to timid white persons who fear the government and don't want to say anything about race for fear of being accused a racist. With all the legal heat that can come down on somebody if they say something which can be construed by a prosecutor like Mr Holder as racist, is it any wonder white people-- that's who he meant obviously-- is there any surprise that white people don't want to talk about race? And as lawyers we have even less freedom lest our remarks be considered violations of the rules. Mr Holder also demonstrated his bias by publically visiting with the family of the young man who was killed by a police offering in the line of duty, which was a very strong indicator of bias agains the offer who is under investigation, and was a failure to lead properly by letting his investigators do their job without him predetermining the proper outcome. He also has potentially biased the jury pool. All in all this worsens race relations by feeding into the perception shared by whites as well as blacks that justice will not be impartial. I will say this much, I do not blame Obama for all of HOlder's missteps. Obama has done a lot of things to stay above the fray and try and be a leader for all Americans. Maybe he should have reigned Holder in some but Obama's got his hands full with other problelms. Oh did I mention HOlder is a bank crony who will probably get a job in a silkstocking law firm working for millions of bucks a year defending bankers whom he didn't have the integrity or courage to hold to account for their acts of fraud on the United States, other financial institutions, and the people. His tenure will be regarded by history as a failure of leadership at one of the most important jobs in our nation. Finally and most importantly besides him insulting the public and letting off the big financial cheats, he has been at the forefront of over-prosecuting the secrecy laws to punish whistleblowers and chill free speech. What has Holder done to vindicate the rights of privacy of the American public against the illegal snooping of the NSA? He could have charged NSA personnel with violations of law for their warrantless wiretapping which has been done millions of times and instead he did not persecute a single soul. That is a defalcation of historical proportions and it signals to the public that the government DOJ under him was not willing to do a damn thing to protect the public against the rapid growth of the illegal surveillance state. Who else could have done this? Nobody. And for that omission Obama deserves the blame too. Here were are sliding into a police state and Eric Holder made it go all the faster.

  5. JOE CLAYPOOL candidate for Superior Court in Harrison County - Indiana This candidate is misleading voters to think he is a Judge by putting Elect Judge Joe Claypool on his campaign literature. paragraphs 2 and 9 below clearly indicate this injustice to voting public to gain employment. What can we do? Indiana Code - Section 35-43-5-3: Deception (a) A person who: (1) being an officer, manager, or other person participating in the direction of a credit institution, knowingly or intentionally receives or permits the receipt of a deposit or other investment, knowing that the institution is insolvent; (2) knowingly or intentionally makes a false or misleading written statement with intent to obtain property, employment, or an educational opportunity; (3) misapplies entrusted property, property of a governmental entity, or property of a credit institution in a manner that the person knows is unlawful or that the person knows involves substantial risk of loss or detriment to either the owner of the property or to a person for whose benefit the property was entrusted; (4) knowingly or intentionally, in the regular course of business, either: (A) uses or possesses for use a false weight or measure or other device for falsely determining or recording the quality or quantity of any commodity; or (B) sells, offers, or displays for sale or delivers less than the represented quality or quantity of any commodity; (5) with intent to defraud another person furnishing electricity, gas, water, telecommunication, or any other utility service, avoids a lawful charge for that service by scheme or device or by tampering with facilities or equipment of the person furnishing the service; (6) with intent to defraud, misrepresents the identity of the person or another person or the identity or quality of property; (7) with intent to defraud an owner of a coin machine, deposits a slug in that machine; (8) with intent to enable the person or another person to deposit a slug in a coin machine, makes, possesses, or disposes of a slug; (9) disseminates to the public an advertisement that the person knows is false, misleading, or deceptive, with intent to promote the purchase or sale of property or the acceptance of employment;

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