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Wednesday, February 03, 2010

Ind. Decisions - Court of Appeals issues 3 today (and 2 NFP)

For publication opinions today (3):

In Phillip Yoder, et al. v. Colonial National Mortgage, et al. , an 8-page opinion, Judge Friedlander writes:

Boyd Gohl appeals from the trial court's denial of his Ind. Trial Rule 60(B)(6) motion to set aside a default judgment entered against him in a foreclosure action instituted by Colonial National Mortgage, a Division of Colonial Savings, F.A. (Colonial). Gohl presents one issue for our review: did the trial court err in finding that he was not entitled to relief pursuant to T.R. 60(B)(6) because he was properly served with notice such that the court had personal jurisdiction over him? We reverse and remand. * * *

After learning that service could not be had on Gohl at the Jeffersonville (Clark County) address, Colonial made no further attempt to locate Gohl, who had lived at the same address in LaGrange County his entire life (except for time spent away at college). Colonial's cursory attempt to locate Gohl does not constitute a diligent search.

Further, as it pertained to effecting service of process by publication as against Gohl, Colonial wholly failed to comply with T.R. 4.13. Having considered all of the circumstances and given our finding that Colonial acted with less than due diligence, we find that service of process by publication as against Gohl was unreasonable. See Goodson v. Carlson, 888 N.E.2d 217 (Ind. Ct. App. 2008). We therefore conclude that the trial court abused its discretion in finding that it had personal jurisdiction over Gohl when it rendered the default judgment against him. Being without personal jurisdiction, the default judgment is void. We reverse and remand with instructions for the trial court to grant Gohl's motion to set aside the default judgment.

In Marilyn Elliott and Michael Elliott v. JPMorgan Chase Bank, et al. , a 10-page opinion, Chief Judge Baker writes:
The Kafkaesque character of this litigation is difficult to deny. Having failed to receive a summons that may have been improperly served upon them, Marilyn and Michael Elliott learned that a default judgment had been entered against them, foreclosing on their home because of a mortgage that was allegedly in default. The home was sold in a sheriff's sale to the lending bank. Feeling confused and suspicious, they turned to the Indiana Attorney General, who directed them to file a complaint with the Comptroller of the Currency. The Comptroller's investigation revealed that Chase Bank, the ostensible plaintiff herein, is entirely unaware of the foreclosure proceeding. Moreover, Chase's records show that the mortgage was paid in full in 2001. Chase, therefore, executed and recorded a satisfaction of mortgage. Notwithstanding the satisfaction of mortgage, Chase's loan servicer—Ocwen Bank—continued to prosecute this action in Chase's name, attempting to force the Elliotts out of their home even though there has never been a trial and the lending bank has declared that the mortgage was paid in full. Finding this situation untenable, we reverse and remand for trial. [Emphasis by ILB]
In Troy Blasko v. State of Indiana, a 5-page opinion, Chief Judge Baker writes:
Appellant-defendant Troy Blasko appeals his conviction for Sexual Misconduct with a Minor, a class B felony. Specifically, Blasko argues that his conviction must be vacated because he was not brought to trial within one year after his arrest for the offense. As a result, Blasko claims that he should have been discharged pursuant to Indiana Criminal Rule 4(C). Concluding that the trial court properly denied Blasko’s motion to dismiss, we affirm. * * *

Unlike the circumstances in Greengrass, there is no evidence that the State refused to extradite Blasko. In fact, the State authorized the extradition and commenced proceedings to transport Blasko back to St. Joseph County in November 2003, following the Florida arrest. There was no refusal or inaction on the State’s part with regard to the extradition, and there is no showing that the State ever canceled the extradition order. Rather, the evidence shows that it was Blasko’s illness that prevented his transport to Indiana for prosecution by November 17, 2003. Blasko knew that he was facing criminal charges in Indiana and did nothing to make himself available for extradition until May 2005, when he was rearrested. Although we acknowledge that Blasko was not at “fault” for his inability to be transported in light of his illness, we decline to attribute such a delay to the State in accordance with Criminal Rule 4(C). Thus, we conclude that the trial court properly denied Blasko’s motion to dismiss.

NFP civil opinions today (0):

NFP criminal opinions today (2):

Keayon K. Scott v. State of Indiana (NFP)

April Campbell v. State of Indiana (NFP)

Posted by Marcia Oddi on February 3, 2010 10:47 AM
Posted to Ind. App.Ct. Decisions