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Thursday, September 19, 2013

Ind. Decisions - Court of Appeals issues 4 today (and 9 NFP)

For publication opinions today (4):

In Beneficial Financial 1 Inc., Successor in Interest to Beneficial Mortgage Co. of Indiana v. Sharon Hatton, a/k/a Sharon J. Hatton, First Select, Inc., Calvary SPV, II, LLC, and Discover Bank, an 11-page opinion, Judge Friedlander writes:

In this mortgage foreclosure action, Beneficial Financial I, Inc. (Beneficial), successor in interest to Beneficial Mortgage Company of Indiana, appeals an order of the trial court dismissing its amended complaint, pursuant to Indiana Trial Rule 12(B)(6), against, among others, Sharon J. Hatton. Beneficial presents the following restated issues for review: 1. Did the trial court err in dismissing with prejudice Beneficial’s amended complaint pursuant to T.R 12(B)(6)? 2. Did Beneficial state a claim upon which relief can be granted in alleging that it was entitled to enforce the promissory note and mortgage security instrument by virtue of the merger of Beneficial Mortgage Co. of Indiana into the surviving entity, Beneficial Financial I, Inc.? We reverse and remand. * * *

In summary, Beneficial’s complaint, complete with its attached materials, was sufficient to state a claim, thus rendering dismissal under T.R. 12(B)(6) erroneous. Moreover, Beneficial’s proof of status as surviving entity in its merger with Beneficial Mortgage Company of Indiana was sufficient to establish its standing to pursue an action to foreclose the security interest set out in the mortgage. This cause is remanded with instructions to reinstate Beneficial’s complaint for damages.

In In Re: the Paternity of: N.C.G., B.G., v. N.G., a 9-page opinion, Judge Baker writes:
In the instant case, after appellant-respondent B.G. (Father) established paternity over his son, he and appellee-petitioner N.G. (Mother), through mediation, agreed on almost every issue except N.C.G.’s surname, which was fervently contested. The issue of N.C.G.’s surname was deferred until Father filed a verified petition to change his name. After a hearing on the petition, the trial court entered findings of fact, essentially determining that the parents were in equipoise but denying Father’s petition because the child had been known by Mother’s surname for about two and one-half years, which was the approximate time that the issue had been under some form of mediation between the contentious parties.

An examination of our evolving caselaw indicates that so long as a father pays child support, exercises parenting time, and actively participates in the child’s life, then the best interests of the child may be served by giving the child the father’s surname to reinforce the bond between father and his nonmarital child, particularly if father is the noncustodial parent. Because Father has paid child support, exercised parenting time, actively participated in N.C.G’s life, and demonstrated that he wants his son to have his name to solidify the bond that Father has with his noncustodial son, we reverse the judgment of the trial court.

In Justine D. Maurer v. Crystal Cobb-Maurer, a 12-page opinion, Chief Judge Robb writes:
Justin Maurer appeals the trial court’s issuance of an Order for Protection against him in favor of Crystal Cobb-Maurer. Justin raises the following issue for our review: whether there was sufficient evidence to support the issuance of the protective order. Concluding there was not sufficient evidence for the trial court to issue the protective order, we reverse. * * *

After a review of the record, we are left with the firm conviction that there was not sufficient probative evidence presented at the hearing to support a finding that the contacts in evidence would cause a reasonable person and in fact caused Crystal to feel terrorized, frightened, intimidated, or threatened. Therefore, there was not sufficient evidence to support the trial court’s issuance of a protective order.

In Lily, Inc. d/b/a Weinbach Cafeteria and Fernando Tudela v. Silco, LLC., a 34-page, 2-1 opinion in a case involving a commercial lease, Judge Brown concludes:
For the foregoing reasons, we affirm in part the trial court’s order granting summary judgment to Silco, and reverse and remand for consideration of the issues related to attorney fees, mitigation of damages, and accounting. Affirmed in part, reversed in part, and remanded.

BRADFORD, J., concurs.
RILEY, J., concurs and dissents with separate opinion.

NFP civil opinions today (1):

In Re The Adoption of K.T.; J.T. v. A.A.B. (NFP)

NFP criminal opinions today (8):

Richard Reese v. State of Indiana (NFP)

Ronald Pearson v. State of Indiana (NFP)

James R. Dieterle v. State of Indiana (NFP)

Ivan Luis Vazquez v. State of Indiana (NFP)

J.D.M. v. State of Indiana (NFP)

Miles Toran v. State of Indiana (NFP)

Curtis F. Sample, Jr., v. State of Indiana (NFP)

Gregory Allen v. State of Indiana (NFP)

Posted by Marcia Oddi on September 19, 2013 11:01 AM
Posted to Ind. App.Ct. Decisions