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Indiana Court of Appeals Vacates Trial Court Order Domesticating Illinois Judgment

Lesson. Perhaps the only basis upon which a judgment debtor (defendant) can prevent the domestication in Indiana of a foreign judgment (a judgment entered in another state) is to contest the Indiana court’s jurisdiction (power) to enter the judgment in the first place.

Case cite. Sekerez v. Grund & Leavitt, 77 N.E.3d 193 (Ind. Ct. App. 2017).

Legal issue. Whether an Indiana trial court’s order to domesticate a foreign judgment should be set aside because the order was outside of the trial court’s jurisdiction.

Vital facts. Sekerez was a dispute between an Illinois law firm and an Indiana client regarding payment of attorney fees. The law firm filed an action against the client in Illinois that evolved into an arbitration of their claims in Indiana. The arbitrator awarded the law firm about $50,000 in damages, and the law firm returned to the Illinois court to issue a final judgment. The client objected on the grounds of jurisdiction, but the Illinois court entered the judgment for the law firm anyway. The client then filed an action in Lake Circuit Court (Indiana) to set aside the Illinois judgment under the Indiana Uniform Arbitration Act. While the Lake Circuit Court case was pending, the law firm initiated a separate action in Lake Superior Court (Indiana) to domesticate the Illinois judgment. The Lake Superior Court granted the law firm’s motion and entered final judgment in favor of the law firm and against the client.

Procedural history. The client appealed the Lake Superior Court’s judgment. The Indiana Court of Appeals’ opinion is the subject of today’s post.

Key rules. Indiana common law provides that two courts of concurrent jurisdiction cannot deal with the same subject matter at the same time. “Once jurisdiction over the parties and the subject matter has been secured, it is retained to the exclusion of other courts of equal competence until the case is determined.”

Similarly, Indiana Trial Rule 12(B)(8) prohibits one Indiana court from hearing “the same action pending in another state court of this state.”

Holding. The Court of Appeals reversed the Lake Superior Court with instructions to vacate its judgment.

Policy/rationale. The arbitration order was the exclusive basis for the Illinois judgment . The Court reasoned that the issue of whether the arbitration order was valid was already before the Lake Circuit Court when the Lake Superior Court domesticated the Illinois judgment. The client was litigating whether the Illinois court lacked jurisdiction to confirm the arbitration award when the law firm filed the Lake Superior Court case. The Court of Appeals concluded that the law firm’s effort to have the Lake Superior Court domesticate the Illinois judgment simply was an attempt to circumvent the Lake Circuit Court proceedings.

As a side note, the law firm did not utilize Indiana Code 34-54-11 “Enforcement of Foreign Judgments” to domesticate its judgment. Please click on the link below to learn more. Even if the law firm in Sekerez had followed the statute, however, the client still should have prevailed based upon the jurisdictional attack.

Related posts.

I frequently represent judgment creditors in contested collection actions. If you need assistance with a similar matter, please call me at 317-639-6151 or email me at john.waller@woodenlawyers.com. Also, don’t forget that you can follow me on Twitter @JohnDWaller or on LinkedIn, or you can subscribe to posts via RSS or email as noted on my home page.


Indiana Federal Court Finds De Facto Merger Giving Rise To Successor Liability for Contract Obligations

Lesson. Depending upon the facts, a newly-formed company can be liable for a separate, but related, company’s debts under Indiana’s “successor liability” doctrine.

Case cite. Continental Casualty v. Construct Solutions, 2017 U.S. Dist. LEXIS 76396 (S.D. Ind. 2017) (pdf).

Legal issue. Whether Company 2 was a successor company of Company 1 and thus responsible for Plaintiff’s contract damages because Company 2 was either a “de facto merger” or a “mere continuation” of Company 1.

Vital facts. Continental Casualty was a breach of contract action. About a year after Defendant Company 1 signed the contract, the owner incorporated Defendant Company 2. Both companies were commercial roofing operations. Company 1’s people controlled the operations of Company 2. The same individual was the president of, and owned, both companies. Both operated from the same location. Company 2 assumed the trade name of Company 1.

Procedural history. Continental Casualty was Judge Tonya Walton Pratt’s opinion on Plaintiff’s motion for summary judgment. Plaintiff asked for a judgment against Defendant Company 2 as the successor company for Defendant Company 1. In other words, Plaintiff sought to hold Company 2 liable for Plaintiff’s losses under its contract with Company 1.

Key rules.

Generally, in Indiana, a successor company may liable for the obligations of its predecessor if it’s a “de facto consolidation or merger” or where the successor is a “mere continuation of the seller.”

Indiana looks at the following factors to make such a determination:

1. Continuity of ownership,
2. Continuity of management, personnel and physical operation,
3. Cessation of ordinary business and dissolution of the predecessor as soon as practically and legally possible, and
4. Assumption by the successor of the liabilities ordinarily necessary for the uninterrupted continuation of the business of the predecessor.

Holding. The Court granted summary judgment in favor of Plaintiff.

Policy/rationale. The same person owned both companies. The same person was the president of both companies, which were both operated from the same location. Company 1 dissolved in early 2015, before Company 2 was formed. Plus, the companies adopted each other’s trade names and provided the same roofing services. The Court concluded that these uncontested facts were sufficient to establish that Company 2 was a de facto merger with Company 1 and, thus, was “liable as a successor company to amounts owed under the [subject contract].”

Related post. Indiana Collection Theories Of Piercing The Corporate Veil, Alter Ego, Successor Liability And Mere Continuation: Part II


Changes to Rules/Procedures for Marion County (Indianapolis) Sheriff's Sales

Rachel Winkler of the Marion County Civil Sheriff’s Office recently circulated an email to the local foreclosure community of lawyers, investors and bidders about some immediate changes to the local sheriff’s sale rules and procedures. Since the Office wants to spread the word to future participants in the mortgage foreclosure sale process, consider this a public service announcement.

Below is a verbatim copy of her email, and I’ve provided links to the various .pdf’s and the home page:

Greetings Attorneys/Investors/Bidders,

We want to include all because the adjustments we are working on and toward affect all.

Some highlights of these adjustments to our process are:

Interest will now come from Attorneys; please consider including these on the added cost sheet.

Plaintiff Bid Forms; Treasurer’s Tax Clearance Forms; Removal Letters; Assignment of Judgment/Bids and Added Costs Sheets are due no later 3:00 p.m. two business days prior to the respective sale date.

Cost checks for User Fees, Sheriff’s fees and Publication Fees (including Sheriff’s File Number on checks) are also due and requested no later 3:00 p.m. two business days prior to the respective sale date.

Cost checks will now be cashed and applied as part of the Sheriff Sale process. Please be sure to consider these costs as part of the minimum bid amount and Plaintiff’s written bid as applicable.

Attorneys are responsible for preparing all Sheriff’s Deeds, Clerk Returns and Sales Disclosure Forms for all sales including third party purchases.

All information is included in the document called Marion County Sheriff's Sale Real Estate Rules Requirements for Plaintiffs.Attorneys.Revised 05.04.2018.

Bidders, please come with document Marion County Sheriff's Sale Real Estate Sales Disclosure Information.Revised 05.4.2018 already prepared for each property you plan to purchase. If the property is sold to you, please submit the corresponding document at the completion of the oral auction.

Please visit our website: http://www.indy.gov/eGov/County/MCSD/Services/RealEstate/Pages/home.aspx

Please direct your questions, comments and concerns to myself, Rachel.Winkler@indy.gov 317-327-2420 and Lori, Lori.Wyeth@indy.gov 317-327-2405.

More to follow…

Rachel Winkler
Marion County Sheriff's Office
Judicial Enforcement Division
200 E. Washington St.
Suite 1122
Indianapolis, IN 46204
Office – (317) 327-2420
Fax – (317) 327-2465
rachel.winkler@indy.gov

Here are the other .pdf’s that Ms. Winker attached to her email: