The Indiana Law Blog: Ind. Decisions - Court of Appeals issues 1 today (and 16 NFP)

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Friday, March 27, 2009

Ind. Decisions - Court of Appeals issues 1 today (and 16 NFP)

For publication opinions today (1):

In Richard Moore v. Wells Fargo Construction, a 15-page opinion, Judge Najam writes:

Richard Moore appeals from the trial court's judgment in favor of Wells Fargo Construction (“Wells Fargo”), formerly known as The CIT Group/Equipment Financing, Inc. (“CIT”), on its complaint to recover a deficiency owed under a personal guaranty. Moore raises two issues for review: 1. Whether the evidence is sufficient to support the trial court's finding that Wells Fargo conducted the sale of a repossessed excavator in a commercially reasonable fashion. 2. Whether Wells Fargo provided adequate notice to Moore of the sale of the excavator. We affirm. * * *

[1] We agree with Moore that Section 26-1-9.1-610 requires sales such as the instant one to be commercially reasonable. But the plain language of the Guaranty shows that Moore intended to waive any claim regarding the commercial reasonableness of a sale of the Excavator. Thus, under the Guaranty, Moore has waived that claim. * * *

[2] Specifically, Moore contends that CIT did not inform him of the physical location for the proposed sale of the Excavator through the internet auction website. But, aside from stating simply that a physical location is required when the sale is to be conducted through an internet auction, Moore does not support his argument with cogent reasoning and, therefore, he has waived it. See App. R. 46(A)(8)(a).

Nevertheless, again, the relevant statute provides that the notice shall state the “time and place of a public disposition.” Ind. Code § 26-1-9.1-613. The Second Notice informed Moore that CIT intended to sell the Excavator in a public auction over the internet. The notice listed the date and web address for the auction and the physical address of the auction company. An internet auction has no physical location and is not a situs in the traditional sense. But the web address of the auction and the physical address of the auction company adequately apprised Moore where the auction would be held, allowing him to monitor or even participate in the auction. Thus, we conclude that the Second Notice, containing the web address of the auction and the physical address of the auction company, satisfies the location requirement in Indiana Code Section 26-1-9.1- 613(1)(E). As such, Moore's argument that the Second Notice was inadequate must fail. [ILB emphasis]

NFP civil opinions today (2):

Term. of Parent-Child Rel. of J.C. & A.C.; O.C. v. Indiana Dept. of Child Services (NFP)

The Invol. Term. of Parent-Child Rel. of S.H., Mae Hardison and James Hardison v. Marion Co. Dept. of Child Svcs. (NFP)

NFP criminal opinions today (14):

In the Matter of R.P. v. State of Indiana (NFP)

Vincent Gentile v. State of Indiana (NFP)

Shedrick B. Duckett v. State of Indiana (NFP)

Carl E. Carey v. State of Indiana (NFP)

Derrick Williams v. State of Indiana (NFP)

Jonathan D. Skinner v. State of Indiana (NFP)

Craig Douglas v. State of Indiana (NFP)

Nathaniel Osborne v. State of Indiana (NFP)