Recent Entries

Indiana Appeals Court Reconciles Statutes to Limit Storage Lien Stemming From Police Impoundment

Published by Nicholas Rohner on March 22, 2012. | 0 Comments

Storage liens in Indiana are governed by a combination of statutes and case law.  In Northwest Towing v. State, 919 N.E.2d 601 (Ind.Ct.App. 2010), the Indiana Court of Appeals reconciled two of those statutes in the context of storage fees stemming from a police impoundment.  This ruling should provide some guidance to vehicle owners, creditors, and garagemen who must determine if a storage lien is capped at $1,500.

Steven Brinkley was involved in a car accident in Muncie and was charged with leaving the scene.  He was driving a vehicle owned by his mother, Frances.  Following the accident, the Muncie Police Department requested that the vehicle be towed to Northwest Towing.  After the criminal case concluded, Frances moved to have the vehicle returned to her, and Northwest Towing responded by claiming a storage lien in excess of $3,600. The trial court ordered the return of the vehicle to Frances, but ordered Frances to pay storage fees. The Court limited Frances’ liability for storage charges to $1,500.

In affirming the trial court’s decision, the Court of Appeals examined two statutes.  I.C. 9-22-5-15, enacted in 1991, grants a lien to a garage that repairs or stores a vehicle at the request of the owner, with no maximum limit on the amount of fees the garage can charge.  I.C. 32-33-10-5, passed in 2002, grants a lien to a garage that repairs or stores a vehicle, but does not specify that it must be at the request of the owner.  Additionally, I.C. 32-33-10-5(b), a 2005 amendment, establishes a $1,500 limit on storage fees.  Here, since the storage was not requested by the vehicle’s owner, the court found that I.C. 9-22-5-15 did not apply.  Therefore, I.C. 32-33-10-5 and its $1,500 storage fee limit applied.

Under the Northwest Towing decision, if a non-owner requests the initial storage, the storage lien is limited to $1,500.  This would apply in the context of a police impoundment or a traditional repair situation.

At Your Service – Part Three

Published by Pam Rearick on February 23, 2012. | 0 Comments

The following is a continuation of the interview that I had with our process server, Joe, regarding the subject of process service [see Parts One and Two of the interview, posted July 5, 2011 and September 20, 2011 respectively].  The items covered in this portion address some of the “ups, downs and run arounds” in the field.

What is the biggest obstacle in attempting to serve summons/Writ of possession on a party?

For the most part, a bad address and getting the party to open their door.  Approaching a residence with an open front door is my best case scenario…a closed door with a party in the house usually means there will be resistance in getting them to open the door.  The current economical times also create a problem inasmuch as individuals are getting smarter at avoiding service and have become numb to the process.

Is there a trick to getting people to answer the door?

I find that using an informal approach works best.  In today’s world there is a higher level of fear for people insofar as answering the door to their home.  It’s been helpful to me to use a friendly attitude from the moment I enter the party’s neighborhood.  Quite often there are neighbors outside, the local postal carrier, home improvement workers…the more I look like I belong there too, the better success that I have.  Without disclosing the nature of my presence, encountering people in the neighborhood also provides me with an opportunity to talk to them and get a feel for the type of individual that I am about to approach as well as get an idea of whether or not the collateral has been seen in the area.  Neighbors talk to each other, so quite often they will convey a message to the party to be served that I am not to be feared.

How do you handle service of a party in a large apartment complex where access may be an issue due to security policies, or, at an employment location?

Making contact with a Security guard and developing a good rapport with them provides for the best advantage in breaking down any barrier or gaining useful information about the party’s existence in the building.  It has also been my experience to just wait around and gain entry by “piggy backing” off another entering party.  Generally, my approach will be dependant on whether or not the party is listed on the directory.  If they are not, then I will speak with the leasing office to determine if further effort is beneficial.  Insofar as employment locations, it gets tricky, because not all employers will allow access to it’s employees, so that’s pretty cut and dry.  Smaller employers are not a problem.  If I sense that an employer is covering for the party, persistence and respect are my best tools for gaining access to the party.

What if the individual being served refuses to accept the summons?

Nothing can be done and other methods of service [certified mail, etc.] are initiated by the attorney handling the case.

What is the typical response from someone who has received a summons?

Ninety five percent of the individuals acknowledge that they knew the summons was coming.  Many of the individuals are actually repeat offenders and known to me from previous service attempts, so they greet me as a person familiar to them.

I did have an occasion where an individual actually called me to thank me for treating him with respect and dignity at a difficult time in his life…he had my contact information that I had previously left with a neighbor.  When I finally served him, he told me that he was getting cancer treatments and wondered if he could have additional time to resolve the matter and I assisted in getting him the information he needed to contact the party who initiated the matter pending against him.

Is The Sheriff Giving You Fits? Consider Amercement As An Alternative Route To Recovery.

Published by Nicholas Rohner on December 13, 2011. | 0 Comments

By Nicholas K. Rohner, Esq. & James J. Todd

Nearly every creditor has encountered the same problem when attempting to recovery property under a Judgment: slow Sheriff work. Whether it is for reasons of backlog, neglect, or nefarious motives, Sheriff’s offices seem to be getting slower and slower at executing and returning writs these days. Did you know, however, that many states have an age-old statutory remedy for just this problem? It is called amercement, and it allows for a judgment creditor to hold a Sheriff liable for failing to enforce a writ of execution or possession against a judgment debtor within his statutory time limits, normally 30-60 days.[1]  The Sheriff can be liable to the judgment creditor for either the value of the property subject to execution or the amount of the judgment, plus additional damages against the Sheriff. In some cases these damages can extend upwards of 30% over the judgment amount.[2]

To amerce a Sheriff does not normally require an entirely new lawsuit.  It is normally accomplished by a notice and motion in the current case. A judgment creditor would need to plead that the Sheriff neglectfully or intentionally failed to execute on a writ issued by the judgment creditor.[3]  This neglect can come in the form of failing to actually seize the property, failing to sell the property (in the case of writs of execution on money judgments), or failing to turn over the property and/or proceeds to the judgment creditor in a timely manner. A Sheriff can defend against this action normally by a show of either exigent circumstances or that good faith efforts were made to levy the execution.[4]  The Sheriff normally may not defend against this action by claiming that the judgment creditor did not suffer actual damages, normally as a result of there not existing property to execute against. Since the remedy is statutory in nature, the judgment creditor does not need to prove injury in order to succeed in an amercement action.[5] Regardless, if the facts can be successfully argued, amercement can be a very viable alternative to recovery on judgments.

It is extremely important to note that amercement is seen as penal in nature by most courts, and should only be considered a last resort.  Remember, both you and your law firm will more than likely need to work with this Sheriff in the future, and making them pay a judgment against someone else will not exactly foster cuddly future relations.  Still, when the Sheriff seems to be a big part of the failure to recover your collateral, and all other options have failed, speak with a Weltman attorney about whether amercement is a possibility.

[1] See e.g. ORC Ann. §2707.00, et seq.; KRS §426.350, et seq.; Ind. Code Ann. §344-55-7-1, et seq.
[2] KRS §426.350 (1).
[3] ORC Ann. §2707.01.
[4] Takacs v. Baldwin (1995), 106 Ohio App. 3d 196, 665 N.E. 2d 736.
[5] Rodgers v. Rodgers (1991), 74 Ohio App. 3d 580, 599 N.E.2d 751

Deconstructing The Vin

Published by James Warmbrodt on November 30, 2011. | 0 Comments

The Vehicle Identification Number, or VIN, is an identification number which, like a snowflake, is unique to each vehicle.  The stated purpose of the VIN, whose format has been standardized since 1981, is to “simplify vehicle identification retrieval and increase the accuracy and efficiency of vehicle recall campaigns”.[1]  However, the VIN is also an important tool for law enforcement in the prevention of stolen vehicles and vehicle parts.  Moreover, the VIN of a 1993 Nissan Pathfinder was instrumental in leading to the capture of the “Times Square Bomber”, Faisal Shahzad.[2]  Of course, the VIN is also an important tool of the secured creditor in recovering collateral and preventing fraud.

Vehicles which must be assigned a VIN include passenger cars, multipurpose passenger vehicles, trucks, buses, trailers, incomplete vehicles, low speed vehicles and motorcycles.[3]  The VIN is assigned by the vehicle manufacturer, and consists of 17 characters consisting of both letters (not including I, O, or Q to avoid confusion with numeric characters) and numbers.[4]  Each character conveys specific information about the vehicle, according to various published tables.  The VIN is divided into four sections.  The first section is comprised of characters 1-3, which identify the manufacturer and type of vehicle.[5]  The second section consists of characters 4-8, which identify the various attributes of the vehicle, such as make, body type, engine type, gross vehicle weight and, for passenger vehicles, restraint devices.[6]  The third section consists of only one character, the ninth, also referred to as the “check digit”, whose purpose is to provide a means of verifying the accuracy of any VIN transcription.[7]  A further discussion of the “check digit” is set forth below.  The remaining characters (10-17) make up the fourth section, which provide a further specific description of the vehicle.  The tenth character indicates the vehicle’s model year.  The eleventh digit indicates the vehicle’s plant of manufacture.  Finally, characters 12-17 consist of a number sequentially assigned by the manufacturer in the production process.[8]

The ninth, or “check digit”, is determined after all of the other 16 characters have been assigned by the manufacturer.  Certain to be embraced by math majors and enthusiasts of Sudoku, calculation of the “check digit” requires the completion of an algorithm.  Each of those 16 characters assigned by the manufacturer are given a specific number, its “assigned value” (numbers retain their face value; alphabetic characters are assigned a value according to a table published in the regulation).  Each of those 16 characters is also assigned a second number, a “weight factor”, based upon each respective character’s position in the VIN (e.g., the weight factor for the first character is always 8, the seventeenth is always 2, etc.).  Each character’s “assigned value” is then multiplied by that character’s “weight factor”.  The resulting products for each of the 16 characters are then added together, and that sum is divided by 11.  The resulting remainder (0 through 10) is then assigned its “check digit” number from a table, which becomes the ninth character.  (For the sake of brevity, the various tables utilized in these calculations are not reproduced in this article).  A “check” of any VIN is possible by taking the 16 characters in positions 1-8 and 10-17, and the tables contained in the regulations, and repeating the mathematical computation described above.  If the resulting number is the same as the ninth digit, the accuracy of the VIN is verified.  A check that does not produce the ninth digit indicates that the VIN has been altered or incorrectly transcribed.[9]

Questions concerning the VIN and calculation of the “check digit” can be referred to your WWR attorney.  Our calculators are at the ready.

[1] 49 CFR 565.10

[2] The New York Times, May 5, 2010.

[3] 49 CFR 565.11

[4] 49 CFR 565.13

[5] 49 CFR 565.15(a)

[6] 49 CFR 565.15(b)

[7] 49 CFR 565.15(c)

[8] 49 CFR 565.15(d)

[9] 49 CFR 565.15(c)(1)-(5)

At Your Service – Part Two

Published by Pam Rearick on September 20, 2011. | 0 Comments

The following is a continuation of the interview that I recently had with our process server, Joe, regarding the subject of process service [see Part One of the interview, posted July 5, 2011]. The items covered in this portion address some of the most frequently asked questions that I have had posed to me on this topic.

Is there any day or time of day that you are prohibited from serving papers?
No, but, I generally do not serve papers after 9:00 p.m. in the city limits due to the risks involved with encountering street gangs and persons of that nature, especially in the summer months. Mornings and early evenings are the best times for making contact with people.

Can a third party accept service of summons for the party to be served?
If the third party acknowledges that the party to be served does live there, is willing to identify themselves and accept service and is over the age of 18, then, yes, it would be considered residence service as opposed to personal service.

Are there a maximum number of times that you attempt to make contact with an individual to complete service?
While there is no specific number of times, after 3-4 times, I have developed enough information and gut feeling to determine if I am wasting my time or not. Often, it takes just the one time to confirm that the property is vacant or the party has moved.

Do you wait at a subject address to make contact for purpose of serving summons or monitor for appearance of a subject vehicle?
That is standard procedure for all cases. I do use caution in both efforts, however, due to potential complaints from neighbors. Waiting too long, too often, can also draw a fine line with local law enforcement which would create a problem in returning to the subject address.

What information is key to successful service? Is there additional information that can be provided to you to enable successful service?
The obvious answer is a good address, however, it may be helpful to provide information to me that would indicate known times that the party is at the address, especially if I am asked to serve someone at their employer.