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Friday, September 08, 2006

Ind. Decisions - Court of Appeals issues 4 today (and 10 NFP)

For publication opinions today (4):

In Cash in a Flash v. Henry McCullough, a 10-page opinion, Judge Baker writes:

Appellant-plaintiff Cash in a Flash, Inc. (CIF), appeals from the trial court’s judgment denying CIF statutory attorney fees and treble damages following appellant-defendant Henry McCullough’s failure to repay a small, or “payday,” loan in a timely fashion.1 Finding that CIF failed to prove that McCullough acted fraudulently, we affirm the judgment of the trial court. * * *

Merely alleging that a borrower passed a bad check without proving that he executed the check “knowing” that he would not place sufficient funds in his account to honor the check is insufficient to prove fraud. See McCullough, 841 N.E.2d at 642 (holding that lender failed to establish fraud where it failed to prove that borrower executed check knowing that it was going to stop payment). Here, there is no evidence in the record supporting a conclusion that McCullough knew, at the time he executed the check, that he would not place sufficient funds in his account to pay for the loan at the time it came due.6 Indeed, the only evidence in the record establishes that he intended and hoped to be able to repay the loan but was unable to do so because of mounting medical bills resulting from his wife’s terminal cancer. Moreover, McCullough’s attempts to arrange a payment plan and the two payments that he made to CIF reflect his good faith and tend to refute any suggestion of fraudulent intent. Thus, the trial court properly concluded that CIF failed to prove that McCullough committed fraud on a financial institution and properly refused to award CIF statutory attorney fees and treble damages. The judgment of the trial court is affirmed.

[Note: The opinion includes an overview of Indiana payday loan practice and law.]

In Ken Hecht, et al. v. State of Indiana, Indiana Bureau of Motor Vehicles, et al., a 12-page opinion, Judge Barnes writes:

Ken Hecht brings this interlocutory appeal of the trial court’s order transferring his class action against Joel Silverman, in his capacity as the Commissioner of the Indiana Bureau of Motor Vehicles, and the Indiana Bureau of Motor Vehicles (collectively, the “BMV”) to the Indiana Tax Court. We reverse and remand with instructions.

Issue. Whether Hecht was required to exhaust administrative remedies under Indiana Code section 6-8.1-9-1.2. * * *

Hecht asserts that neither the Tax Court nor the Department of Revenue has jurisdiction over his case, and therefore, the trial court erred in transferring venue to the Tax Court. * * *

Here, there has been no final determination made by the Department of Revenue. Hecht, however, argues that he could not obtain a final determination from the Department of Revenue, and therefore, was not required to exhaust any administrative remedy prior to filing his class action. We disagree. * * *

Thus, until Hecht files a claim for refund with the Department of Revenue, “the judiciary of this state lacks subject matter jurisdiction over the cause of action.” Zayas, 676 N.E.2d at 365. Accordingly, we hereby reverse and remand with instructions to the trial court to dismiss Hecht’s case.

Kenneth Holeton v. State of Indiana

Preston D. Stringer v. State of Indiana

NFP civil opinions today (2):

Patrick Bruggeman v. James Simon, et al. (NFP)

Kevin Fry v. Rex Hagen, et al (NFP)

NFP criminal opinions today (10) (link to cases):

Daniel K. Kelly v. State of Indiana (NFP)

Anthony Bush v. State of Indiana (NFP)

Leland Wall v. State of Indiana (NFP)

Jerry F. Bowling v. State of Indiana (NFP)

Chad E. Strong v. State of Indiana (NFP) - "The Indiana Court of Appeals has affirmed a Goshen man's conviction for a notorious child-abuse murder in 2004." South Bend Tribune story, 9/9/06

Ronnie Drane v. State of Indiana (NFP)

Michael White v. State of Indiana (NFP)

Haskell E. Moore v. State of Indiana (NFP)

Aaron K. Richardson v. State of Indiana (NFP)

Timothy K. Bott v. State of Indiana (NFP)

Posted by Marcia Oddi on September 8, 2006 09:48 AM
Posted to Ind. App.Ct. Decisions