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Monday, March 10, 2014

Ind. Decisions - Court of Appeals issues 2 today (and 4 NFP)

For publication opinions today (2):

In Jeff L. Ewing and Renee Ewing, Household Finance Corporation III v. U.S. Bank, N.A., as Trustee for the Structured Asset Securities Corp., Series 2005-GEL4, an 8-page opinion, Judge Bradford writes:

Appellants-Defendants-Supplemental Plaintiffs Jeff and Renee Ewing (“the Ewings”) appeal from the trial court’s denial of their motion to correct error, arguing that the trial court erred in granting Appellee-Plaintiff-Supplemental Defendant U.S. Bank’s motion for summary judgment in this foreclosure action. The Ewings claim their designated evidence, consisting only of Jeff’s affidavit outlining the Ewings’ past attempts to modify the mortgage loan at issue, establishes a genuine issue of material fact. Because Jeff’s affidavit does not dispute the alleged default or otherwise support an ascertainable defense to U.S. Bank’s foreclosure, we conclude that summary judgment was appropriate.

The Ewings also appeal from the trial court’s grant of U.S. Bank’s motion to dismiss the Ewings’ supplemental complaint for failure to state a claim upon which relief could be granted. In their supplemental complaint, the Ewings alleged that U.S. Bank failed to act in good faith during the parties’ settlement discussions as allegedly required by the Indiana Alternative Dispute Resolution Rules (“the A.D.R. Rules”). Finding that the A.D.R. Rules did not govern the parties’ settlement discussions, we conclude that dismissal was appropriate. The judgment of the trial court is affirmed.

In Brian Bradley v. State of Indiana , a 22-page, 2-1 opinion, Judge Vaikik writes:
Police officers pulled over a car and arrested the driver for possession of marijuana. Officers took her to the county jail, where she revealed that she had purchased the marijuana that day from a man nicknamed Shrek—but whose name was Brian—who lived in a second-floor apartment above the antiques store in town. The officers secured a search warrant for an apartment on the second floor of the building. Upon executing the search warrant, the officers learned that the apartment belonged to a couple, who just happened to have marijuana in their apartment. The couple told police that they had purchased their marijuana earlier that day from Brian a/k/a Shrek, who actually lived on the third floor of the building. The officers then secured a search warrant for Brian Bradley’s1 third-floor apartment. Upon executing this search warrant, the officers found marijuana and other related items.

Brian now appeals his conviction for Class D felony dealing in marijuana. He challenges the first warrant that led to the search of the couple’s apartment as well as the warrant for his apartment, arguing that they lacked probable cause. Because Brian, who lived on the third floor of the building, lacked a reasonable expectation of privacy in the couple’s second-floor apartment, he cannot challenge the search or seizure of property belonging to the couple. Furthermore, although one particular piece of evidence may not have conclusively established probable cause to search Brian’s third-floor apartment, the evidence in the officer’s probable-cause affidavit, when fitted together and viewed collectively, is sufficient to support the trial court’s finding of probable cause. In addition, although the witnesses who provided probable cause changed their stories after the search warrants were issued, the law focuses on the facts known by police and presented to the judge in obtaining the search warrants, not on 20-20 hindsight. We therefore affirm the trial court. * * *

MAY, J., concurs.
RILEY, J., dissents with separate opinion. [thatbegins, at p. 17] While I agree with the majority that Brian does not have standing to challenge the validity of the initial warrant, executed in the apartment of Carroll and Hite, I respectfully dissent from the majority’s decision to affirm Brian’s conviction. Based on the totality of the circumstances, I do not find that there was sufficient probable cause to justify the issuance of the second search warrant.

NFP civil opinions today (1):

In the Matter of L.W. and J.W., Children in Need of Services, and J.W. (Father) and L.W. (Mother) v. Indiana Department of Child Services (NFP)

NFP criminal opinions today (3):

Jerimaine Carter v. State of Indiana (NFP)

Darod A. Wheeler v. State of Indiana (NFP)

Juan Williams v. State of Indiana (NFP)

Posted by Marcia Oddi on March 10, 2014 12:13 PM
Posted to Ind. App.Ct. Decisions