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LLC v. Fish

Court of Appeals of Indiana

September 26, 2017

2444 Acquisitions, LLC, Appellant-Defendant,
v.
Michael Fish, Appellee-Plaintiff.

         Appeal from the Marion Superior Court The Honorable Michael D. Keele, Judge Trial Court Cause No. 49D07-1103-MF-10806

          Attorney for Appellant Christopher J. McElwee Monday McElwee & Albright

          Attorney for Appellee Abraham Murphy

          Riley, Judge.

         STATEMENT OF THE CASE

         [¶1] Appellant-Defendant, 2444 Acquisitions, LLC (2444 Acquisitions), appeals the trial court's Order granting Appellee-Plaintiff's, Michael Fish (Fish), motion for turnover.

         [¶2] We affirm.

         ISSUE

         [¶3] 2444 Acquisitions raises five issues on appeal, which we consolidate and restate as the following single issue: Whether the trial court properly granted Fish's motion for turnover of the tax sale surplus funds.

         FACTS AND PROCEDURAL HISTORY

         [¶4] In 2008, Fish loaned a certain amount of money to 2444 Acquisitions in exchange for a mortgage security interest in several parcels of real estate. On July 5, 2011, the trial court entered a default judgment of foreclosure and agreed entry against 2444 Acquisitions and in favor of Fish in the amount of $263, 308.73. On January 24, 2012, Fish filed his praecipe for sheriff's sale of the real estate and the following month, on February 23, 2012, Fish filed his motion for proceedings supplemental. However, on March 5, 2012, 2444 Acquisitions filed a Chapter 11 petition for bankruptcy protection with the bankruptcy court. This cause was dismissed on July 31, 2012.

         [¶5] On March 5, 2014, Fish again filed his praecipe for sheriff sale of the real estate. The next day, 2444 Acquisitions filed a second Chapter 11 petition for bankruptcy protection under cause no. 14-01578-RLM-7. On September 19, 2014, Fish filed his adversarial complaint for turnover property in the bankruptcy court under cause no. 14-50173. After a hearing on Fish's complaint, the bankruptcy court ordered the Marion County Auditor to turn over the tax sale surplus funds to counsel for 2444 Acquisitions to be held in counsel's trust account. On October 15, 2014, 2444 Acquisitions' counsel filed a motion to approve procedure for interim fee payments, to which Fish objected on October 17, 2014. Over Fish's objection, the bankruptcy court granted counsel's motion for payment of interim fees. On March 19, and again on November 2, 2015, counsel for 2444 Acquisitions filed a notice of draw seeking payment of attorney fees and expenses in the amount of $14, 707.95 and $9, 224.22 respectively. The bankruptcy court approved each notice over Fish's objections.

         [¶6] On February 3, 2016, Fish filed a motion to dismiss 2444 Acquisitions' bankruptcy case based upon his contention that the business was not operating or earning income. The bankruptcy court dismissed the case on February 26, 2016, which also resulted in the dismissal of Fish's adversarial complaint for turnover property. Following the dismissal, 2444 Acquisitions' counsel transferred the tax sale surplus funds from his trust account to his client.

         [¶7] On March 29, 2016, Fish filed with the trial court his motion for turnover of surplus funds from the tax sale that are in the possession of 2444 Acquisitions, and for a request to issue an order preserving the status quo pending an expedited hearing. 2444 Acquisitions filed its response in opposition on April 12, 2016. On May 9, 2016, after conducting a hearing, the trial court granted Fish's motion for turnover, concluding that "[a]s a matter of law, [Fish] has a substantial interest in said aforementioned properties; [Acquisition 2444] has no entitlement to said tax surplus funds and no protectable ...


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