Weinreb v. TR DEVELOPERS, LLC
943 N.E.2d 856
Ind. Ct. App.2011Background
- Weinreb guaranteed a $4,000,000 loan to WK Timber Ridge; two guaranties bearing Weinreb's signature were executed May 31, 2007, including a limited guaranty for 50% of unpaid principal plus interest and costs.
- Bank attached fully executed loan documents to its complaint; Weinreb answered with a general denial, failing to deny execution under oath as to the guaranties.
- Bank moved for summary judgment; Weinreb and Timber Ridge did not timely respond or designate evidence; court granted summary judgment and foreclosed, with Weinreb and Timber Ridge jointly and severally liable.
- Trial court denied Weinreb’s first Rule 60(B) motion (June 12, 2009) challenging forgery, noting failure to timely respond and lack of due diligence.
- TR Developers later substituted as plaintiff after an assignment; Weinreb filed a second Rule 60(B) motion (January 2010) alleging forged signatures and attorney negligence; trial court denied.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether second Rule 60(B) motion was proper relief | Weinreb sought relief due to forgery and attorney failure. | TR Developers argues grounds were known earlier. | No abuse of discretion; grounds not newly discoverable. |
| Whether grounds were unknown at time of first motion | Weinreb contends forgery and fraud were undiscoverable earlier. | Grounds were or could have been known earlier from evidence. | Grounds not unknown/unknowable; denial affirmed. |
| Effect of attorney negligence on client liability | Weinreb was not responsible for attorney’s neglect. | Client bound by attorney’s actions; no relief. | Client bound; no relief under Rule 60(B)(8) compelled. |
Key Cases Cited
- Siebert Oxidermo, Inc. v. Shields, 446 N.E.2d 332 (Ind. 1983) (repetitive Rule 60 motions improper; new grounds must be timely raised)
- Carvey v. Indiana National Bank, 176 Ind.App. 152, 374 N.E.2d 1173 (1978) (agency neglect binds client; second motion may be proper when based on later-merited grounds)
- International Vacuum, Inc. v. Owens, 439 N.E.2d 188 (Ind. Ct. App. 1982) (discretionary review of 60(B) motions evaluated for abuse of discretion)
- Koval v. Simon Telelect, Inc., 693 N.E.2d 1299 (Ind. Ct. App. 1998) (attorney’s knowledge generally imputed to client)
- Mirka v. Fairfield of America, Inc., 627 N.E.2d 449 (Ind. Ct. App. 1994) (client bound by attorney’s actions absent fraud)