Newhouse v. Farmers Nat. Bank of Shelbyville, 30A01-8804-CV-103

• Citation: 532 N.E.2d 26
• Case Date: January 05, 1989
• Court: Court of Appeals of Indiana

Page 26

532 N.E.2d 26 James NEWHOUSE and Carol Newhouse, Plaintiffs-Appellants,
v.
The FARMERS NATIONAL BANK OF SHELBYVILLE, Defendant-Appellee. No. 30A01-8804-CV-103. Court of Appeals of Indiana,
First District. Jan. 5, 1989.

Patrick C. Badell, Badell & Wilson, P.C., Rushville, for plaintiffs-appellants.

C. Jack Clarkson, Clarkson Law Offices, Rushville, for defendant-appellee.

RATLIFF, Chief Judge.

STATEMENT OF THE CASE

James and Carol Newhouse appeal from the Hancock Superior Court's grant of summary judgment in favor of the Farmers National Bank of Shelbyville. We reverse.

FACTS

The facts as viewed most favorably to James and Carol Newhouse, the non-movants, reveal that the Farmers National Bank of Shelbyville (hereinafter Bank) obtained a foreclosure judgment against Gary and Carole Miller on certain real estate

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located in Rush County. Pursuant to the foreclosure decree, the Bank's attorney, John Murphy, prepared a notice of foreclosure sale of the property. The notice provided that the sale would be held at the Rush County Sheriff's office on March 5, 1987, between the hours of 10:00 a.m. and 1:00 p.m. Murphy hand-delivered the notice of sale to the Rushville Republican, a local newspaper, which published the notice on January 23, 30, and February 6 of 1987.

On March 5, 1987, the Newhouses were present at the Rush County Sheriff's office between the hours published for the sale, and placed a bid of Three Thousand Dollars ($3,000). At 1:00 p.m. the sheriff accepted the Newhouses' bid as the highest and only bid, sold the property to the Newhouses, and ended the sale. At approximately 1:35 p.m. Murphy arrived at the sheriff's office and attempted to tender the Bank's bid of Thirty-Four Thousand Two Hundred Dollars ($34,200) on the property. The sheriff refused the bid and stated that the property had been sold to the Newhouses. Murphy then attempted to persuade the Newhouses to sell their interest in the property. The Newhouses refused. Murphy promised that the Bank would challenge the sale.

On March 6, 1987, a Sheriff's Deed was executed and delivered to the Newhouses. The deed was recorded at 3:00 p.m. the same day. After the Newhouses received title to the property, they received a copy of the Bank's Verified Motion to Set Aside the Sheriff's Sale which was filed on March 6, 1987, and received by the sheriff on March 9, 1987. The motion cited mistake on the part of Murphy, who believed that the time of the sale was between 10:00 a.m. and 3:00 p.m. as was the practice in Shelby County. The motion also stated that the price was inadequate and requested that the trial court set aside the sheriff's sale.

In April of 1987, the Bank filed a Motion for Summary Judgment accompanied by an affidavit. The affidavit indicated that Murphy had been at a cook-out with friends in Rush County prior to 1:00 p.m. on the date of the sale. The affidavit also indicated that Murphy believed that the sale would be held between the hours of 10:00 a.m. and 4:00 p.m. The Newhouses opposed the Motion for Summary Judgment and requested a change of venue which was granted on July 10, 1987. Venue was changed to the Superior Court of Hancock County on July 23, 1987. On December 11, 1987, the Hancock Superior Court granted the Bank's Motion for Summary Judgment. The Newhouses appeal from this judgment.

ISSUE

While the Newhouses presented two (2) issues in their brief, we rephrase them into the following issue:

Whether the trial court improperly...