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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. It appears the police and prosecutors are allowed to change the rules halfway through the game to suit themselves. I am surprised that the congress has not yet eliminated the right to a trial in cases involving any type of forensic evidence. That would suit their foolish law and order police state views. I say we eliminate the statute of limitations for crimes committed by members of congress and other government employees. Of course they would never do that. They are all corrupt cowards!!!

  2. Poor Judge Brown probably thought that by slavishly serving the godz of the age her violations of 18th century concepts like due process and the rule of law would be overlooked. Mayhaps she was merely a Judge ahead of her time?

  3. in a lawyer discipline case Judge Brown, now removed, was presiding over a hearing about a lawyer accused of the supposedly heinous ethical violation of saying the words "Illegal immigrant." (IN re Barker) http://www.in.gov/judiciary/files/order-discipline-2013-55S00-1008-DI-429.pdf .... I wonder if when we compare the egregious violations of due process by Judge Brown, to her chiding of another lawyer for politically incorrectness, if there are any conclusions to be drawn about what kind of person, what kind of judge, what kind of apparatchik, is busy implementing the agenda of political correctness and making off-limits legit advocacy about an adverse party in a suit whose illegal alien status is relevant? I am just asking the question, the reader can make own conclsuion. Oh wait-- did I use the wrong adjective-- let me rephrase that, um undocumented alien?

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  5. You can put your photos anywhere you like... When someone steals it they know it doesn't belong to them. And, a man getting a divorce is automatically not a nice guy...? That's ridiculous. Since when is need of money a conflict of interest? That would mean that no one should have a job unless they are already financially solvent without a job... A photographer is also under no obligation to use a watermark (again, people know when a photo doesn't belong to them) or provide contact information. Hey, he didn't make it easy for me to pay him so I'll just take it! Well heck, might as well walk out of the grocery store with a cart full of food because the lines are too long and you don't find that convenient. "Only in Indiana." Oh, now you're passing judgement on an entire state... What state do you live in? I need to characterize everyone in your state as ignorant and opinionated. And the final bit of ignorance; assuming a photo anyone would want is lucky and then how much does your camera have to cost to make it a good photo, in your obviously relevant opinion?

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