APPEAL FROM THE MADISON SUPERIOR COURT, The Honorable Stephen D. Clase, Judge, Cause No. 48D04-0901-SC-143.
The opinion of the court was delivered by: Barnes, Judge
Frank Chiprean appeals the trial court‟s judgment against him in the amount of $6000 in favor of Brody and Lacy Stock. We affirm.
The restated issue before us is whether the trial court properly treated the Stocks‟ action against Chiprean as an eviction and not as an equitable foreclosure.
On February 7, 2007, Chiprean executed a "Purchase Agreement" for a house in Anderson owned by the Stocks. App. p. 9. The agreed purchase price was $103,995, and the completion of the sale was contingent upon Chiprean obtaining a mortgage to purchase the house. Because Chiprean was not able to obtain the necessary financing at that time but wanted to obtain immediate possession of the property, he and the Stocks had executed a "Pre-Closing Possession Agreement" ("possession agreement") on February 6, 2007. Id. at 14. The possession agreement permitted Chiprean to take possession of the house in March 2007, provided he made monthly payments of $895 to the Stocks; this amount later was increased in March 2008 with Chiprean‟s consent to $962 per month.
Final closing for purchase of the house was to occur no later than eighteen months after Chiprean obtained possession, with the possibility of a six-month extension for closing if Chiprean had been making timely payments under the possession agreement. The possession agreement stated that "Buyer agrees to accept Property at time of possession in its current condition with no further responsibility by Seller for its maintenance or repair." Id. at 14. It also required Chiprean to deposit $5000 with the listing broker. If Chiprean did not close the transaction, that amount was to be "forfeited by Buyer & Seller." Id.
Chiprean did not make an independent inspection of the house before taking possession of it. At some point during Chiprean‟s possession of the house, the roof over the great room entirely collapsed. The Stocks arranged through their insurance company to have the roof repaired while Chiprean continued living there, albeit confined primarily to the master bedroom and without heat or air conditioning.*fn1 Chiprean was dissatisfied with the contractor‟s progress on the repairs. He made regular payments under the possession agreement until December 2007, apparently after the roof had collapsed, when he began making either no payments or only partial payments. The Stocks‟ insurance company reimbursed them for four missed rental payments in 2008. In January 2009, an appraiser hired by Chiprean valued the house at $81,900.
On January 15, 2009, the Stocks filed a small claims action to have Chiprean evicted from the house. The chronological case summary reveals that on February 17, 2009, Chiprean consented to an "Immediate Order of Eviction." Id. at 2. The trial court then set a separate hearing on damages for March 25, 2009. Chiprean filed a counterclaim against the Stocks, seeking recovery of the $5000 deposit. On March 27, 2009, the trial court entered a $6000 judgment in favor of the Stocks.*fn2 As for the counterclaim, there was testimony presented at the damages hearing that the $5000 ...