Commercial Banking, Collections, and Bankruptcy

Dist. Ct. did not err in granting defendant’s motion for summary judgment in two-count action alleging that defendant breached non-disparagement provision in 2006 settlement of prior lawsuit by alleging in subsequent Texas lawsuit that plaintiff was involved in racketeering. Indiana’s absolute privilege protecting statements made in course of judicial proceedings applied to preclude plaintiff from obtaining any recovery in said count. Moreover, Dist. Ct. did not err in entering judgment in defendant’s favor in second count alleging that defendant’s act of removing plaintiff from trade show that was witnessed by business associates also violated non-disparagement provision since said provision only covered acts that served to denigrate plaintiff’s economic, business or professional interests and not acts that merely caused plaintiff personal embarrassment.

Record failed to contain sufficient evidence to support jury's award of $5.6 million to plaintiff in breach of contract action calling for plaintiff to market new software program generated by defendant used to identify potential car buyers for auto dealerships. While jury assessed damages based on projected enrollment of auto dealerships, defendant was entitled to new damages hearing where record failed to support expert witness' assumptions regarding either number of projected buyer leads or appropriate ratio of wholesale leads to retail sales. Fact that plaintiff had proven track record of sales for different software program was insufficient to support instant damages award where parties were dealing with new and unproven software program.

Dist. Ct. did not err in affirming Bankruptcy Ct. order denying debtor's second motion to reopen his Chapter 13 proceeding that had been filed one year after first motion to reopen had been denied and five years after said bankruptcy proceedings had been closed. While debtor argued that reopening of bankruptcy proceeding was warranted because creditor was attempting to collect on pre-petition debts by issuing mortgage pay-off letter and by seeking foreclosure on debtor's property, second motion to reopen was untimely. Moreover, creditor's actions did not violate terms of approved bankruptcy plan since: (1) mere issuance of pay-off letter was not attempt to collect on pre-petition debt; and (2) filing of foreclosure action did not did not violate any bankruptcy court plan calling for debtor's continued payment of mortgage since automatic stay was not in effect at time debtor defaulted on said mortgage for second time.

Dist. Ct. did not err in dismissing for failure to state cause of action plaintiffs’ Truth in Lending Act (TILA) lawsuit seeking rescission of plaintiffs’ mortgage based on defendant allegedly misstating certain charges on mortgage disclosure statement. Ordinary three-day period allowed for rescission under TILA did not apply, and plaintiffs failed to show how 10 different discrepancies on their TILA statement were material as defined under 12 CFR section 226.23(a)(3), where plaintiffs failed to assert how any alleged misstated figures on statement related to either their finance charge, APR or amount financed.

Dist. Ct. erred in granting defendant’s motion for summary judgment in action alleging that defendant breached contract calling for defendant’s transfer of its interest in mortgage to plaintiff where defendant failed to provide plaintiff with original or copy of mortgage note. Plaintiff presented sufficient evidence to create triable fact as to whether defendant’s production of note was part of instant contract. Fact that plaintiff’s evidence (which included uncontested affidavit from individual testifying that parties had agreed that defendant would produce note) was open to differing interpretations did not require different result. Moreover, plaintiff presented sufficient proof of damages arising out of alleged breach of contract where state court had previously denied its request to foreclose on instant mortgage due to plaintiff’s failure to produce copy of said note.