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COA Overturns Trust Validity Case
COA Overturns Trust Validity Case
Scott Roberts for www.theindianalawyer.com
A redacted copy of a living trust did not stop a woman from challenging and winning her charge that a trial court improperly dismissed her complaint contesting validity of the trust.
In two cases involving Stephanie Schrage and The Audrey R. Seberger Living Trust, the Indiana Court of Appeals found the trust was justified in giving Schrage a redacted version of the trust, but also found a trial court erred in dismissing her complaint contesting validity of the trust.
In the first case, Schrage claimed she was entitled to a full unredacted copy of the trust because she was a remainder beneficiary, but the trial court said she is not because the net income of the trust is not payable to her. She is also not a remainderman, as she is not entitled to principal. She is a specific beneficiary.
The COA agreed with the trial court in its ruling, saying she is a specific distributee. It says Indiana Code 30-4-4-5(e) says just because a person has an interest in the trust does not necessarily make that person a beneficiary of the trust. She is not entitled to trust principal, and the trust would not terminate based upon her specific distribution. She received a certification of trust from the trustee and is entitled to nothing further.
But the redacted copy of the trust did not stop her from winning a charge saying her complaint was improperly dismissed. In the second case, the appeals court reversed a trial court decision which dismissed her complaint contesting the validity of the trust. The COA found the trial court erred because Schrage did not miss any person in her complaint, but instead the appellees said “alleged tortfeasors†were not notified. However, the appellees in the case did not cite any other case where a complaint had been dismissed for this reason. Because of that, the trial court erred.
However, the COA did find that Schrage must amend her complaint to plead her allegations with more specificity, because it agreed with the appellees that her complaint was not specific enough.
Also, the COA found Schrage did not have to docket the trust before bringing a challenge to its validity. It cites I.C 30-4-6-7 which says “if it is necessary to the determination of any issue of law or fact in a proceeding the court may direct a copy of the trust instrument, if any, to be kept in its records.†This language means the decision on whether to docket the trust is within the discretion of the trial court.
The COA also found Schrage commenced her action contesting the validity of the trust within the 90-day time period, and that any failure to docket the trust did not deprive the trial court of subject matter jurisdiction.
The court remanded proceedings consistent with its opinion to the trial court.
The cases are Stephanie A. Schrage v. In the Matter of the Seberger Living Trust u/t/d April 27, 2009,45A03-1506-TR-685; and
Stephanie A. Schrage v. The Audrey R. Seberger Living Trust u/t/d April 27, 2009; John R. O’Drobinak as Successor Trustee; et al., 45A04-1506-TR-686.
Hot Jobs in Evansville
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The Dark Cloud Hanging Over Obama’s Jobs Report
By Joe Guzzardi
Beneath the headlines’ hype about a seemingly improved February Bureau of Labor Statics jobs report lays the uncomfortable truth. Yes, the economy created a higher than anticipated 242,000 jobs, but once again the majority were part-time and/or in low-paying sectors.
Posting the most gains were health care, ambulatory services, and social assistance, an aggregate increase of 82,000 jobs. While health care administrators earn a decent salary, the less glamorous jobs in the field pay a modest hourly wage. Retail, food services, bars, and education also added jobs but, as is the case with health care, the positions are hourly, and subject to management’s discretion—when sales are strong, personnel is added; when sales are weak, people get laid off.
On the whole, adding employment in these sectors will not contribute to a more vibrant economy, especially when wages and the average hours worked per week drop, as they did in February. Stronger hiring in manufacturing and mining means the economy is humming. Unfortunately, manufacturing and mining, which includes oil, lost jobs.
Tara Sinclair, chief economist for Indeed.com, a major job placement site, refers to the phenomena as a bifurcated labor market: robust demand for service employees which pump up jobs’ totals, but weak demand for blue collar jobs. The New York Times called the jobs report proof of “polarization†in the labor market.
In their effort to paint the rosiest possible picture, analysts overlooked the mathematical reality that 242,000 jobs makes only a tiny dent to offset the 8.2 million unemployed, the millions more under-employed, and the more than 90 million detached from the labor force.
A dire Economic Policy Institute analysis reported that 41.3 million Americans, or 30 percent of the labor pool, receive public assistance. Nearly half of them, 19.3 percent, have full-time jobs. In fact, the jobs they hold are often the ones the Wall Street analysts crowed about in their positive reading of the February data—retail, hospitality, and health care. With profits and chief executive officers’ salaries soaring, the burden of subsidizing underpaid workers through welfare benefits falls to taxpayers.
Another variable in the American hiring picture is rarely discussed, even through the data is important and readily available on BLS Household Employment and Current Population surveys. Since President Obama’s inauguration in 2009, nearly four million foreign-born immigrants have entered the labor market, 4.4 times faster than American-born. In 2009, nearly 15 percent of all working persons were immigrants. Over the next seven years through February 2016, the foreign-born workers’ share rose to nearly 17 percent.
Much of February’s job growth came, it should be noted, in areas that rely heavily on immigrant labor especially hospitality and hospital services. An ever-increasing immigrant population, more than one million legal immigrants annually and 750,000 guest workers each year, have led to the inevitable displacement of American workers from jobs they need to sustain their families.
Since federal immigration policy isn’t tied to the labor market’s health, or to automation advancements, Americans should expect over the coming years, at worst, more job losses or, at best, continued wage stagnation and dilution in their take home pay.
AG Zoeller files lawsuits against four auto dealers for failing to deliver titles to customers, other deceptive actsÂ
Auto complaints to AG’s Office more common than any other retail category INDIANAPOLIS, Ind. – Indiana Attorney General Greg Zoeller today filed lawsuits against four auto dealers and their owners accused of failing to deliver customers’ vehicle titles and other deceptive acts. The auto dealers – all of which have gone out of business – were located in Fort Wayne, Fortville and Indianapolis. Zoeller said without a vehicle title, it is impossible to obtain a state vehicle registration in order to operate a vehicle legally. “The 48 Hoosiers impacted in these cases spent thousands of dollars on cars which they now can’t prove they own,†Zoeller said. “This can be a common problem, especially when used auto dealers go out of business. Our office is able to step in to help these customers get what they purchased.†He said his priority with these legal actions is to secure the titles for these consumers as quickly as possible. In lawsuits filed today, Zoeller alleges the following former auto dealers violated Indiana’s Deceptive Consumer Sales Act, and he seeks restitution for impacted customers – including title delivery – in addition to investigative costs and civil penalties.
Under state law, car dealers and individuals from whom a customer has purchased a vehicle are required to deliver the title to the purchaser at the time of sale or delivery or within 21 days of the date of the sale. Often, the titles to the cars sitting on the lots of used car dealers are owned by a “floor planner†not the dealer. When a customer purchases a car from the dealer, the dealer must pay a portion of that money to the “floor planner†who would then transfer the title to the customer. In cases like these, the auto dealer continues to sell cars but stops paying the “floor planner†for the titles, leaving the customer high and dry. In recent years, the Attorney General’s Office has filed lawsuits regarding title non-delivery in 20 cases, and has resolved numerous other such cases without the need for litigation. Top complaint area The Attorney General’s Office receives more auto sales complaints each year than any other retail category, with 1,340 such complaints filed in 2015. “Each year, auto sales complaints flood into my office,†Zoeller said. “The reality is car buyers will always be at a disadvantage because the seller has more information about the cars and may be in a position to deceive. Car buyers need to know and understand their rights and practice smart strategies to avoid getting scammed.†This week, March 6-12, is National Consumer Protection Week, aimed at educating the public about fraud, scams and strategies to avoid becoming a victim. Zoeller said his office recently created the Auto Buyer’s Bill of Rights to educate consumers and provide a helpful guide for those making a vehicle purchase, whether new or used. He is calling on the auto industry to also alert consumers of their rights and place a higher emphasis on consumer protection. In 2015, the Attorney General’s Office took legal action against 13 auto dealers in Indiana for deceptive practices and secured more than $1.1 million in consumer restitution. More tips for consumers when purchasing a car can be found here. Zoeller thanked Deputy Attorneys General Steven Frank, Ruth Rivera, Martha Showers and Mark Snodgrass for their work on these cases. To file a consumer complaint with the Attorney General’s Office, visit www.IndianaConsumer.com or call 800-382-5516. |
Do We Really Need To ‘Rebuild The Military’?
Do We Really Need To ‘Rebuild The Military’?
By Ron Paul
The Republican presidential debates have become so heated and filled with insults, it almost seems we are watching a pro wrestling match. There is no civility, and I wonder whether the candidates are about to come to blows. But despite what appears to be total disagreement among them, there is one area where they all agree. They all promise that if elected they will “rebuild the military.â€
What does “rebuild the military†mean? Has the budget been gutted? Have the useless weapons programs like the F-35 finally been shut down? No, the United States still spends more on its military than the next 14 countries combined. And the official military budget is only part of the story. The total spending on the U.S. empire is well over $1 trillion per year. Under the Obama Administration the military budget is still 41 percent more than it was in 2001, and seven percent higher than at the peak of the Cold War.
Russia, which the neocons claim is the greatest threat to the United States, spends about one-tenth what we do on its military. China, the other “greatest threat,†has a military budget less than 25 percent of ours.
Last week the Pentagon announced it is sending a small naval force of U.S. warships to the South China Sea because, as Commander of the U.S. Pacific Command Adm. Harry Harris told the House Armed Services Committee, China is militarizing the area. Yes, China is supposedly militarizing the area around China, so the U.S. is justified in sending its own military to the area. Is that a wise use of the U.S. military?
The U.S. military maintains over 900 bases in 130 countries. It is actively involved in at least seven wars right now, including in Iraq, Syria, Pakistan, and elsewhere. U.S. Special Forces are deployed in 134 countries across the globe. Does that sound like a military that has been gutted?
I do not agree with the presidential candidates, but I do agree that the military needs to be rebuilt. I would rebuild it in a very different way, however. I would not rebuild it according to the demands of the military-industrial complex, which cares far more about getting rich than about protecting our country. I would not rebuild the military so that it can overthrow more foreign governments who refuse to do the bidding of Washington’s neocons. I would not rebuild the military so that it can better protect our wealthy allies in Europe, NATO, Japan, and South Korea. I would not rebuild the military so that it can better occupy countries overseas and help create conditions for blowback here at home.
No. The best way to really “rebuild†the U.S. military would be to stop abusing the military in the first place. The purpose of the U.S. military is to defend the United States. It is not to make the world safe for oil pipelines, or corrupt Gulf monarchies, or NATO, or Israel. Unlike the neocons who are so eager to send our troops to war, I have actually served in the U.S. military. I understand that to keep our military strong we must constrain our foreign policy. We must adopt a policy of non-intervention and a strong defense of this country. The neocons will weaken our country and our military by promoting more war. We need to “rebuild†the military by restoring as its mission the defense of the United States, not of Washington’s overseas empire.
Failing To Deliver Car Titles Brings Lawsuits From Attorney General
Failing To Deliver Car Titles Brings Lawsuits From Attorney General
Marilyn Odendahl for www.theindianalawyer.com
Four out-of-business auto dealerships and their owners are the target of lawsuits filed by the Indiana attorney general for violating the state’s Deceptive Consumer Sales Act.
Attorney General Greg Zoeller filed the complaints March 10 in state courts against former used-car lots in Fort Wayne, Fortville and Indianapolis for deceptive acts and failing to deliver titles to nearly 50 customers. Without the titles, owners cannot get their cars registered in the state and cannot legally drive their vehicles.
“The 48 Hoosiers impacted in these cases spent thousands of dollars on cars which they can’t prove they own,†Zoeller said. “This can be a common problem, especially when used auto dealers go out of business.â€
In addition to seeking restitution for the customers, including delivery of the titles, the lawsuits are asking for civil penalties and reimbursement for investigative costs.
The four defendants are:
•   Prestige Auto in Fortville (lawsuit filed in Hancock County). The dealership is accused of failing to deliver titles to at least 10 customers and failing to provide a purchased warranty to one customer. Also Prestige allegedly did not follow through on paying off the remaining loans on three trade-in vehicles, leaving customers on the hook for loans of $23,800 and $3,500.
•   AnyCredit Auto Superstore Inc. in Fort Wayne (lawsuit filed in Allen County). The business is accused of not delivering titles to at least 10 customers, misrepresenting the price of a vehicle and failing to perform repairs.
•   Southport Motors in Indianapolis (lawsuit filed in Marion County). The car lot is accused of failing to deliver 21 titles to customers. Also, Southport allegedly did not pay-off the remaining loan balance of $16,500 on one customer’s trade-in vehicle.
•   US Fleet Liquidators LLC in Indianapolis (lawsuit filed in Marion County). The dealership is accused of not providing titles to seven customers.
Under state law, car dealers are required to deliver the title to the buyer either at the time of the sale or delivery or within 21 days of the date of the sale.
According to Zoeller, his office receives more auto sales complaints each year than any other retail category. A total of 1,340 complaints were filed in 2015 and, in recent years, the attorney general has filed lawsuits against 20 dealerships for not delivering titles.
ADEA does not apply to company who fired 61-year-old employee
Scott Roberts for www.theindianalawyer.com
The 7th Circuit Court of Appeals affirmed summary judgment for New Holland Logansport in a wrongful termination suit after it found the company did not meet the definition of employer under the Age Discrimination in Employment Act.
William Bridge worked at New Holland Logansport from March 2000 to March 2011 before he was terminated at age 61. Bridge sued New Holland Logansport in June of 2012 under the ADEA, and the District Court granted summary judgment to New Holland Logansport, concluding the company did not have enough employees to qualify under the Act. Bridge appealed.
The case hinged on whether three employees for New Holland Rochester also had employment relationships with New Holland Logansport, since those three employees would push Logansport into a spot where it the ADEA would be applicable; and whether employees from Logansport and Rochester should be lumped together.
Bridge argued they were employees of both because they were not independent businesspeople. However, the 7th Circuit said that was not the issue, because everyone agreed they worked for New Holland companies. The question is whether they had relationships with both companies or just Rochester.
The 7th Circuit used a five-factor test from Knight v. United Farm Bureau Mut. Ins. Co., 950 F.2d 377, 378-79 (7th Cir. 1991). The first factor is the extent to which the employer controlled the alleged employee. It’s not clear whether the director of the plant would have had authority to fire the three employees nor dictated their duties, schedules or anything else.
The second and third factors concerned the type of occupation and nature of skills required for the job and responsibility for operating costs. There was no evidence any of the three employees got instruction from Logansport or that Logansport provided special equipment for their work.
The fourth factor considers whether the employer was responsible for providing payment or benefits. There was no evidence Logansport ever paid any of the three for their work and while they all had the same group health insurance plan, there was no indication Logansport provided any direct benefits.
The final factor addresses length of job commitment. While Logansport may have expected work from the three, there was no indication that there was any expectation of length of time. Other evidence also showed the three were not employees.
However, Logansport could still fall under the ADEA if all of the employees were aggregated together. That could be true if a creditor of one corporation sued its affiliate or the affiliate directed the discriminatory act. Bridge argued both were at play.
However, the 7th Circuit said veil piercing did not exist because there was no misuse of corporate form. The companies were separate in a number of ways, including paying separate taxes and being run by separate people.
Also, the 7th Circuit said the affiliate did not direct the discriminatory act because the leader of Rochester also worked as the leader of Logansport, and when he directed the termination, he could have been acting as a member of Logansport, not Rochester.
The case is William Bridge v New Holland Logansport, 15-1935.