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Reversal: Trust bears liability for builder’s nonpayment despite lien notice discrepancies

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A trust that won summary judgment at the trial court against a supplier of building materials for construction of a home on Lake Michigan got the opposite result from an appeals court Friday. The trust is liable, even though it paid builders who failed to reimburse the supplier for materials provided on credit.

A panel of the Indiana Court of Appeals reversed summary judgment granted by LaPorte Superior Judge Jennifer Koethe in favor of the Margaret Lynn West trust. The panel remanded with an order to grant summary judgment for the company that supplied material in Von Tobel Corporation, Individually, and d/b/a Von Tobel Lumber & Hardware; and Von Tobel Lumber & Home Center, Inc. v. Chi-Tec Construction & Remodeling, Inc.; John F. Ziola, Jr.; Et Al.
46A03-1301-MI-18.

At issue is a mechanic’s lien Von Tobel recorded on the property that it sought to foreclose for nonpayment. The trial court ruled the lien was invalid because it designated “the wrong claimant” in the pre-lien notice.

“The Trust received the Pre-lien Notice from ‘Von Tobel Lumber & Home Center, Inc.’ and the Lien Notice from ‘Von Tobel Corporation,’” Judge James Kirsch wrote for the unanimous panel that also included Judge Patricia Riley and Chief Judge Margret Robb.

“The Trust does not contend that it was misled or confused by the discrepancy,” Kirsch wrote, noting the difference in names was minimal, didn’t undermine statutory policy regarding notice, and did not cause prejudice to the property owner or any third party. Indeed, the panel held that notice regarding the lien could have been used to assure “the party may take measures and direct funds accordingly.”

The trust paid homebuilder Chi-Tech Construction and its owner John Ziola, but the opinion says those payments weren’t forwarded to Von Tobel. Chi-Tech and Ziola since have declared bankruptcy, according to the court.

“Here, the property owner had notice of the potential lien early in the construction process, but failed to take appropriate measures to see that funds were properly directed. We reverse the summary judgment entered in favor of the trust and remand with instructions to enter summary judgment in favor of Von Tobel Corporation.”


 
 

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  1. For many years this young man was "family" being my cousin's son. Then he decided to ignore my existence and that of my daughter who was very hurt by his actions after growing up admiring, Jason. Glad he is doing well, as for his opinion, if you care so much you wouldn't ignore the feelings of those who cared so much about you for years, Jason.

  2. Good riddance to this dangerous activist judge

  3. 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.

  4. 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.

  5. 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.

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