author: VAIDIK, Judge.

text:
    ZIESE & SONS EXCAVATING, INC., Appellant-Plaintiff, v. BOYER CONSTRUCTION CORPORATION and Boyer Construction Group Corporation, Appellee-Petitioner.
    No. 45A03-1104-PL-180.
    Court of Appeals of Indiana.
    March 29, 2012.

      Edward P. Grimmer, Austgen Kuiper & Associates, P.C., Crown Point, IN, Attorney for Appellant.
    Robert F. Parker, Burke Costanza & Carberry LLP, Merrillville, IN, Attorney for Appellee.
   OPINION

VAIDIK, Judge.

Case Summary

Ziese & Sons Excavating, Inc., (“Ziese”) appeals the trial court’s grant of summary judgment in favor of Boyer Construction Group Corporation (“Group”). We conclude that there is a genuine issue of material fact regarding whether Group is the alter ego and successor of Boyer Construction Corporation (“Corporation”). For this reason, the trial court correctly denied Ziese’s motion for summary judgment but erred in granting summary judgment in favor of Group. We affirm in part, reverse in part, and remand for further proceedings.

Facts and Procedural History

Corporation, formed in July 1988, was a general contracting and construction-managing entity. From formation until early 1999, Corporation had three shareholders: Bruce Boyer and James Thomas’ two sons. In January 1999, the sons conveyed then-shares to Thomas. By 2000, Thomas had conveyed those shares to Boyer in exchange for a $29,000 promissory note.

In the summer of 2008, Corporation contracted with Ziese to provide labor and materials for the Knode Creek Retail Development. By 2004, Ziese had fulfilled its obligation under the contract with Corporation. However, Corporation did not pay Ziese.

In January 2006, Group was formed. Group, like Corporation, is a general contracting and construction-managing entity. At the time of incorporation, Group had a single shareholder, Thomas. One month after its formation, Group purchased a selection of Corporation’s assets for $100,000. Appellant’s App. p. 28. Specifically, the purchase agreement provided that Group would purchase two of Corporation’s contracts — one with KT Clay, LLC and another with GJ 9600, LLC. Group also purchased some of Corporation’s personal property. The agreement provided that Group was purchasing Corporation’s assets “free of all liabilities and encumbrances,” “liens,” and “indebtedness.” Id. at 28-29. Excluded from the purchase were “real estate, cash on hand and in bank, prepaid insurance and other prepaid items, accounts receivable, notes receivable, securities, other investments, and all other assets owned by Seller and not described in Section 1 hereof.” Id. at 34.

After purchasing these assets, Group commenced business. Group uses a name nearly identical to Corporation, Corporation’s website address, and Corporation’s trademark and logo, including font, red color, and layout, as shown here:

This logo was displayed on Group’s website:

These assets were utilized by Group despite not acquiring them under the purchase agreement.

On its website, Group claims a building history that dates back to 1988, nearly two decades before it was incorporated. Included in that history is the Knode Creek Retail Development, the very project for which Ziese seeks payment from Group. The remaining projects listed as complete are also Corporation’s building projects. At some point in 2006, Boyer began working for Group. See Tr. p. 12. In January 2007, Thomas sold all of his shares in Group to his sons, but he continued to act as the sole officer and director of Group. One year later, Group issued a check to Ziese for $722.57. Appellant’s App. p. 128. Group made no other payments to Ziese.

Following the asset sale, Corporation ceased business operations. Corporation’s accounts receivable were depleted and Corporation made a series of payments on the contracts purchased by Group. Corporation was administratively dissolved in the spring of 2008.

In August 2009, Ziese filed suit against Corporation and Group, claiming breach of contract, seeking payment for the work performed on the Knode Creek project. Ziese argued that Group was the alter ego of Corporation such that piercing the corporate veil of Group was appropriate. Ziese also argued that Group was Corporation’s successor and therefore liable for Corporation’s debt to Ziese. In March 2010, Group moved for partial summary judgment with respect to Ziese’s claims against it. Ziese filed a motion in opposition to Group’s motion for summary judgment and a cross-motion for summary judgment as to both Group and Corporation. A hearing was held on the matter, and in April 2011, the trial court entered partial summary judgment in favor of Group. The trial court denied Ziese’s cross-motion for summary judgment against Group and Corporation.

Ziese now appeals.

Discussion and Decision

When reviewing a grant or denial of a motion for summary judgment, we stand in the shoes of the trial court and are not limited to reviewing the trial court’s reasons for granting summary judgment. Cmty. Care Ctrs., Inc. v. Hamilton, 774 N.E.2d 559, 564 (Ind.Ct.App.2002), trans. denied. We resolve any doubt about a fact or any inference to be drawn from it in favor of the nonmoving party. Id. We will affirm a grant of summary judgment only if no genuine issues of material fact exist and the movant is entitled to judgment as a matter of law. Id.; see also Ind. Trial Rule 56(C). If we have any doubts concerning the existence of a genuine issue of material fact, we must resolve those doubts in favor of the nonmoving party. Id. Further, piercing the corporate veil is a fact-sensitive inquiry rendering summary judgment appropriate only in extraordinary circumstances. Id. at 570.

On appeal, Ziese contends that the trial court erred in granting Group’s motion for summary judgment as the evidence created a genuine issue of material fact regarding whether Group is the successor and alter ego of Corporation. Ziese further argues that the designated evidence entitles it to judgment as a matter of law. We address each of these claims in turn.

I. Piercing the Corporate Veil

The basic principle of corporate law is that corporate shareholders are liable for acts of the corporation only to the extent of their investment and are not personally liable for the corporation’s acts. Escobedo v. BHM Health Assocs., Inc., 818 N.E.2d 930, 933 (Ind.2004). It is well settled that our courts are reluctant to disregard corporate identity; however, we may do so if it is necessary to prevent fraud or unfairness to third parties. Oliver v. Pinnacle Homes, Inc., 769 N.E.2d 1188, 1191 (Ind.Ct.App.2002) (citations omitted), trans. denied. “When a court exercises its equitable power to pierce a corporate veil, it engages in a highly fact-sensitive inquiry.” Id. Corporate identity may be disregarded “where one corporation is so organized and controlled and its affairs so conducted that it is a mere instrumentality or adjunct of another corporation.” Id. Indiana courts will not recognize corporations as separate entities where evidence shows that several corporations are acting as one. Id. “While no one talismanic fact will justify with impunity piercing the corporate veil, a careful review of the entire relationship between various corporate entities, their directors and officers may reveal that such an equitable action is warranted.” Id.

The party seeking to pierce the corporate veil bears the burden of proof. In determining whether that burden has been met, we consider the following factors: (1) undercapitalization; (2) absence of corporate records; (3) fraudulent representation by corporation shareholders or directors; (4) use of the corporation to promote fraud, injustice, or illegal activities; (5) payment by the corporation of individual obligations; (6) commingling of assets and affairs; (7) failure to observe required corporate formalities; and (8) other shareholder acts or conduct ignoring, controlling, or manipulating the corporate form. Escobedo, 818 N.E.2d at 933 (citing Aronson v. Price, 644 N.E.2d 864, 867 (Ind.1994)).

A subset of piercing the corporate veil is the corporate alter ego doctrine. “The corporate alter ego doctrine is a device by which a plaintiff tries to show that two corporations are so closely connected that the plaintiff should be able to sue one for the actions of the other.” Qreater Hammond Cmty. Servs., Inc., v. Mutko, 735 N.E.2d 780, 785 (Ind.2000) (citation omitted). The purpose of the doctrine is to avoid the inequity that results when one corporation uses another corporation as a shield from liability. Id. When a plaintiff seeks to pierce the corporate veil on this theory, we consider additional factors, including whether: (1) similar corporate names were used; (2) the corporations shared common principal corporate officers, directors, and employees; (3) the business purposes of the corporations were similar; and (4) the corporations were located in the same offices and used the same telephone numbers and business cards. Oliver, 769 N.E.2d at 1192. Corporate identity may be disregarded under the alter ego theory where multiple corporations are operated as a single entity; where they are “manipulated or controlled as a single enterprise through their interrelationship to cause illegality, fraud, or injustice or to enable one economic entity to escape liability arising out of an operation conducted by one corporation for the benefit of the whole enterprise.” Id. Factors indicating that a corporation is the alter ego of another may include the intermingling of business transactions, functions, property, employees, funds, records, and corporate names in dealing with the public. Id.

Our review of the designated evidence reveals striking similarities between Group and Corporation. Group was created to conduct the same business that Corporation conducted — general contracting and construction management. The names of the two corporations, Boyer Construction Corporation and Boyer Construction Group Corporation, are nearly identical. Group assumed use of Corporation’s website address, trademark, and logo despite not acquiring them in the purchase agreement. Ziese designated evidence establishing that Group publically claimed ownership of Corporation’s building history and projects, all of which were completed before Group was formed. Specifically, Group claims as its own the project that is the subject of this case, the Knode Creek Retail Development. Ziese also presented evidence that Corporation’s financial records after the asset sale show a significant reduction in accounts receivable, which Ziese claimed was proof that Group and Corporation intermingled their assets by using Corporation’s funds to pay Group’s expenses on the contracts purchased in the asset sale. Also notable is the fact that Group, which offered no evidence of a debt to Ziese, nonetheless made a payment to Ziese in 2008.

In response, Group simply contends that the alter-ego theory is inapplicable in this case. Group argues that this is so because Group was not in existence when Ziese contracted with Corporation. As a result, Group claims the common factual scenario triggering the alter-ego analysis — “that a plaintiff thought he was dealing with one entity, and then, after the transaction in issue, discovered he was really dealing with the other” — is not present here. Appellant’s Br. p. 5-6.

Group cites no case law for the proposition that Group cannot be the alter ego of Corporation simply because Group did not exist when Ziese contracted with Corporation. Instead, Group devotes the bulk of its appellate brief to factually distinguishing the cases upon which Ziese relies. In essence, Group claims that because we have not yet applied the alter-ego analysis in a case with facts like those here, the analysis has no application. We do not believe public policy supports such a narrow interpretation of the doctrine. Under Indiana law, piercing the corporate veil is rooted in principles of equity and a decision to disregard corporate entity depends upon the unique facts of each case. Oliver, 769 N.E.2d at 1191. The authority of the courts to disregard corporate identity does not stem from the existence of a specific factual circumstance, but rather from the necessity of preventing fraud or unfairness to third parties.

Ziese set forth evidence that Group adopted Corporation’s former business purpose. Group also uses a nearly identical name to Corporation. Group assumed use of Corporation’s website address, trademark, and logo, and the building history that Group presents to the public as its own is actually Corporation’s. This history includes the project that is the subject of this litigation. This is sufficient evidence to create a genuine issue of material fact with respect to whether Group was the alter ego of Corporation. The trial court erred in granting Group’s motion for summary judgment on this basis.

Our conclusion does not mean, however, that Ziese is entitled to summary judgment on this issue. We believe that the evidence presented by Ziese created a genuine issue of material fact, and as such, summary judgment is inappropriate for both parties. The decision to pierce the corporate veil is ultimately a fact-sensitive inquiry to be determined after consideration of all evidence submitted, and is rarely appropriate on summary judgment. See Cmty. Care Ctrs., Inc., 774 N.E.2d at 570.

II. Successor Liability

Ziese also argues that Group is liable for Corporation’s debt to Ziese under certain exceptions to the general rule against successor liability, namely, fraudulent sale of assets and mere continuation. Group, in response, argues that Ziese has waived this argument by failing to present it to the trial court. Though the bulk of Ziese’s argument to the trial court indeed focused on the alter-ego theory, Ziese referenced successor liability and confirmed its reliance on that theory of recovery when asked by the trial court. See Tr. p. 26 (“It is ... successor corporations that are cited and discussed in ... both my initial brief and my response brief”). For this reason, and because we prefer to decide cases on their merits, we proceed to address the substance of Ziese’s contentions with respect to successor liability.

“When one corporation purchases the assets of another, the buyer does not assume the debts and liabilities of the seller.” Sorenson v. Allied Prods. Corp., 706 N.E.2d 1097, 1099 (Ind.Ct.App.1999) (citations omitted). There are four general exceptions to this rule: (1) an implied or express agreement to assume liabilities; (2) a fraudulent sale of assets done for the purpose of evading liability; (3) a purchase that is a de facto consolidation or merger; or (4) where the purchaser is a mere continuation of the seller. Id. Successor liability is implicated only when the predecessor corporation no longer exists, such as in the case of dissolution or liquidation in bankruptcy. Id.

Ziese contends that the second and fourth exceptions to successor liability apply here. In addressing the second exception, we examine badges of fraud to determine whether a fraudulent asset sale took place. Lee’s Ready Mix and Trucking, Inc. v. Creech, 660 N.E.2d 1033, 1037 (Ind.Ct.App.1996). These badges include:

“1) the transfer of property by a debtor during the pendency of a suit; 2) a transfer of property that renders the debtor insolvent or greatly reduces his estate; 3) a series of contemporaneous transactions which strip the debtor of all property available for execution; 4) secret or hurried transactions not in the usual mode of doing business; 5) any transaction conducted in a manner differing from customary methods; 6) a transaction whereby the debtor retains benefits over the transferred property; 7) little or no consideration in return for the transfer; and 8) a transfer of property between family members.”

Id. When the facts of a case implicate several badges of fraud, an inference of fraudulent intent may be warranted. Id. However, no single badge of fraud constitutes a conclusive showing of fraudulent intent; instead, “the facts must be taken together to determine how many badges of fraud exist and if together they constitute a pattern of fraudulent intent.” Id.

A genuine issue of material fact exists as to whether Ziese may recover under the fraudulent asset sale exception. Group assumed use of Corporation’s website address, trademark, and logo despite not acquiring them under the purchase agreement. Group therefore acquired these assets without giving consideration for them. Further, Ziese set forth evidence showing that Corporation’s accounts receivable were used to make payments on contracts purchased by Group despite also being excluded from the agreement. Finally, though Group disclaimed liability for debts not acquired through the agreement, Group publically claimed ownership of the project at issue in this case. Group later issued a check to Ziese for payment of a debt despite no evidence of such a debt to Ziese. This evidence is sufficient to create a genuine issue of material fact regarding whether a fraudulent sale of assets took place. It is not sufficient, however, to resolve the issue and entitle Ziese to judgment as a matter of law. The trial court correctly denied Ziese’s motion to this effect.

The other exception at issue here, the mere-continuation exception, “asks whether the predecessor corporation should be deemed simply to have re-incarnated itself, largely aside of the business operations.” Cooper Indus., LLC v. City of South Bend, 899 N.E.2d 1274, 1290 (Ind.2009). In making this inquiry, we consider whether there is a continuation of shareholders, directors, and officers into the new corporate entity. Id.

From 1988 through 2010, Corporation and Group were owned or run by four individuals — Boyer, Thomas, and Thomas’ two sons. Different combinations of these individuals owned, ran, or were employed by Group or Corporation. For example, from 1988 to 1999, Boyer and the two sons owned Corporation; in 1999, Boyer and Thomas owned the corporation; in 2006, by the time of the asset transfer between Corporation and Group, Boyer owned Corporation and Thomas owned Group, but Boyer worked for Group. One year later, in 2007, the two sons assumed ownership of Group with Thomas acting as sole officer and director. By 2010, Boyer was an officer of Group. These facts give rise to a genuine issue of material fact regarding whether Group was a mere continuation of Corporation. Neither Ziese nor Group was entitled to summary judgment on this issue.

In conclusion, the trial court erred in granting summary judgment in favor of Group as Ziese presented evidence sufficient to create a genuine issue of material fact regarding whether Group and Corporation are alter egos and whether Group is Corporation’s successor. We remand for further proceedings to determine whether Group’s corporate veil should be pierced and whether the fraudulent sale of assets or mere continuation exceptions apply.

Affirmed in part, reversed in part, and remanded.

ROBB, C.J., and NAJAM, J., concur.

      . At the time of the asset sale, Boyer was the sole shareholder and corporate officer of Corporation.

      . James Thomas' sons are the sole shareholders of GJ 9600, LLC, where Thomas is corporate manager. The sons are also two of the three shareholders of KT Clay, LLC.

      . See Appellant's Br. p. 21.

      . See Appellant's Br. p. 22.

      . Though there is no reference in the memo line to any project or invoice, Ziese contends that this payment is payment of "a portion of the [Corporationj-Ziese liability on Knode Creek.” Appellant’s Br. p. 7.

      . Though Ziese claims that Group and Corporation have the same corporate employees, Appellant's App. p. 6, 19-20, we are unable to determine from the record to whom Ziese is referring. The record does indicate that Boyer began working for Group at some point in 2006. See Tr. p. 12.

      . Courts of other jurisdictions have also considered alter-ego status in scenarios involving a subsequently formed corporation. See Pottschmidt v. Klosterman, 169 Ohio App.3d 824, 865 N.E.2d 111, 121 (2006); Lab. Corp. of Am. v. Prof l Recovery Network, 813 So.2d 266, 269 (Fla.Dist.Ct.App.2002).

      . Group’s appellate brief states, "Bruce Boyer has never been a shareholder of Group, and only became an officer or director of Group in September, 2010.” Appellee’s Corrected Br. p. 3. We were unable to find support for this at the record cite provided by Group, but assume for purposes of our analysis that this statement is true.


source: Caselaw Access Project

author: BAILEY, Judge.

license: Public Domain

text:
    IMPERIAL INSURANCE RESTORATION & REMODELING, INC., Appellant-Plaintiff, v. James COSTELLO, Appellee-Defendant.
    No. 10A05-1109-SC-478.
    Court of Appeals of Indiana.
    March 30, 2012.

      A. David Hutson, Smith Carpenter Thompson Fondrisi, Cummins & Lewis, LLC, Jeffersonville, IN, Attorney for Appellant.
   OPINION

BAILEY, Judge.

Case Summary

Imperial Insurance Restoration & Remodeling, Inc. (“Imperial”) appeals the trial court’s order granting judgment in favor of James Costello (“Costello”) on its small claims action for breach of contract. Imperial raises three issues for our review, which we consolidate and restate as the following single issue: whether the trial court erred by granting judgment in favor of Costello. We reverse and remand.

Facts and Procedural History

Imperial is in the business of repairing and restoring residential and commercial property after it has been damaged by fire, water, wind, or other causes. It receives business referrals from insurance companies or from other intermediaries when insurance policyholders file property damage claims. James Costello lives with his wife, Lisa Costello (“Lisa”), (collectively, “the Costellos”) in a house in Charles-town, Indiana that is owned by Lisa and covered by an insurance policy in her name.

On November 21, 2010 or November 22, 2010, a pipe in the Costellos’ house burst and released large amounts of water. When Costello returned from work that day, he turned the water line off and he and Lisa placed fans and a dehumidifier in their basement to control the water damage. Lisa contacted the insurance company, who then contacted Imperial and provided the Costellos’ contact information. Imperial called the Costellos and scheduled a time to go to their house and perform emergency services.

Imperial arrived at the Costellos’ home to make repairs on November 26, 2010. Before Imperial began work, Costello signed a “Work Authorization” contract authorizing Imperial to make repairs to the Costellos’ home. Exhibit A. The Work Authorization contained the following clauses:

Customer understands that Contractor has no connection with customer’s insurance company or its adjuster and that the customer alone agrees that customer is solely responsible for payment of the total cost, including contractor’s fee for stated repairs.
Final payment of the total cost is due to contractor upon completion of project. I (we), the customer(s) receive the check from the insurance company; I (we) hereby agree to promptly endorse said payment to [Imperial] for disbursement. Customer agrees that any payments not made in accordance with this agreement when due shall be considered delinquent after ten (10) days and agrees to pay interest thereon to contractor at 2% per month (or the maximum rate allowed by law) until contractor is paid in full. It is the intent of the parties signing the agreement that the contractor be a third party beneficiary of any and all insurance contracts covering this job.

Exhibit A.

The back of the Work Authorization also contained several terms and conditions, but the agreement did not describe the proposed home improvements, completion dates, contingencies, or price. Although Costello signed the document, he testified that he did not read it, and that it was presented to him as merely an authorization to let Imperial into his house to begin work.

On November 26, 2010, Imperial workers checked the water damage, removed a section of the basement ceiling, set out two air movers and a dehumidifier, and sprayed mold and mildew neutralizer. The next day, Imperial sent a crew to do a moisture check, which entailed measuring indoor and outdoor temperatures and humidity. The parties had an appointment scheduled for November 28, 2010, but neither of the Costellos were at the appointment. Imperial sent a crew to the Costel-los’ house for a final time on December 2, 2010, and determined that the house was dry.

Before Imperial removed its equipment, Costello signed a “Certificate of Satisfaction” stating that Imperial’s repairs were fully completed to his absolute satisfaction as stated in the contractual agreement and that he authorized payment to be made, in full, directly to Imperial. Exhibit B. Costello testified that he did not read this document either. It was his understanding that, by signing the form, he was merely authorizing Imperial to remove its equipment.

The total charge for Imperial’s work was $669.86. The Costellos’ insurance company sent, and the Costellos received, a check for the money due to Imperial for its work. The Costellos cashed the check shortly before Christmas of 2010. After numerous attempts to collect from the Costellos, Imperial filed a small claims action on March 17, 2011, seeking the money for services it provided, plus interest, as well as court costs and attorney fees.

A small claims hearing was held on August 1, 2011. After receiving testimony from Imperial’s owner and Costello, the trial court made the following statement from the bench to Costello:

My perspective is you know how to read. You have an obligation under the law to read what you sign before you sign it because you’re going to be responsible for what it says you agreed to do. It says you agree to pay them money. It says you’re satisfied with the work that was done ... You got the money for the work that was done.

Tr. 49-50.

The trial court then made the following statement to Imperial:

You’re responsible for[,] uh[,] providing a contract that implies [sic] with Indiana State law regardless whether you knew about it or not. Uh[,] my understanding of Indiana law is if there is no contract up front that specifies what’s going to be charged then a reasonable fee is determined by a fact finder is [sic] what you’re entitled to. I’m the fact finder ... Now I will give your attorney five minutes if you want to present some evidence to me as to[,] um[,] how this is reasonable since there wasn’t an agreement up front. Uh[,] then I will make a ruling as to what’s reasonable.

Tr. 50.

The trial court adjourned the hearing without issuing an order and offered the parties the opportunity to submit briefs on the applicability of the Indiana Home Improvement Contracts Act (HICA). After both parties submitted briefs, the court issued an order on August 30, 2011 granting judgment for Costello.

Imperial now appeals.

Discussion and Decision

Standard of Review

“Our standard of review is particularly deferential in small claims actions, where ‘the trial shall be informal, with the sole objective of dispensing speedy justice between the parties according to the rules of substantive law.’ ” Mayflower Transit, Inc. v. Davenport, 714 N.E.2d 794, 797 (Ind.Ct.App.1999) (quoting Ind. Small Claims Rule 8(A)). Imperial had the burden of proof at trial on its small claims action, and accordingly we apply a negative judgment standard of review. LTL Truck Service, LLC v. Safeguard, Inc., 817 N.E.2d 664, 667 (Ind.Ct.App.2004). On appeal, we will not reverse a negative judgment unless it is contrary to law. Id. To determine whether a judgment is contrary to law, we consider the “‘evidence in the light most favorable to the appellee, together with all the reasonable inferences to be drawn therefrom.’” Id. (quoting Hinojosa v. Board of Public Works & Safety for Hammond, Ind., 789 N.E.2d 533, 542 (Ind.Ct.App.2003)).

We also observe that Costello has not filed an appellee’s brief. When the appellee has failed to submit a brief we need not undertake the burden of developing arguments on the appellee’s behalf. Trinity Homes, LLC v. Fang, 848 N.E.2d 1065, 1068 (Ind.2006). Rather, we will reverse the trial court’s judgment if the appellant’s brief presents a case of prima facie error. Id. Prima facie error in this context is defined as “ ‘at first sight, on first appearance, or on the face of it.’ ” Id. (quoting Santana v. Santana, 708 N.E.2d 886, 887 (Ind.Ct.App.1999)). Where the appellant is unable to meet this burden, we will affirm. Id.

Home Improvement Contracts Act

Crucial to resolving Imperial’s appeal is the application of the Indiana HICA, the purpose of which

is to protect consumers by placing specific minimum requirements on the contents of home improvement contracts ... [because] few consumers are knowledgeable about the home improvement industry or of the techniques that must be employed to produce a sound structure. The consumer’s reliance on the contractor coupled with well-known abuses found in the home improvement industry, served as an impetus for the passage of [HICA], and contractors are therefore held to a strict standard.

Hayes v. Chapman, 894 N.E.2d 1047, 1052 (Ind.Ct.App.2008) (quoting Benge v. Miller, 855 N.E.2d 716, 720 (Ind.Ct.App.2006)), trans. denied.

HICA therefore requires home improvement suppliers performing any alteration, repair, or modification to the residential property of a consumer for an amount greater than $150 to provide the consumer with a written home improvement contract. I.C. §§ 24-5-11-1, -8, -4, -10(a); Homer v. Burman, 743 N.E.2d 1144, 1148 (Ind.Ct.App.2001). The home improvement contract must contain certain information before it is signed by the consumer. I.C. § 24-5-ll-10(a). When a home improvement contract is entered into as a result of damage, loss, or expense that is covered by the proceeds of an insurance policy, certain other specifications must be included in contracts. I.C. §§ 24-5-11-10(c)(1) — (4). A consumer may elect, in wilting, to authorize the commencement of work covered by insurance before receiving complete specifications, but the consumer will only be obligated for the home improvements specified and agreed to by the insurance carrier. I.C. § 24-5-11-10(c)(5).

Imperial does not argue that its contract complied with HICA and instead concedes that its contract was non-conforming. A home improvement supplier that violates the HICA commits a “deceptive act” that is actionable by the attorney general or the consumer and subject to the remedies and penalties available to victims of deceptive consumer sales under the Indiana Deceptive Consumer Sales Act (DCSA). I.C. § 24-5-11-14. Specifically, “[a] person relying upon an uncured or incurable deceptive act may bring an action for the damages actually suffered as a consumer as a result of the deceptive act or five hundred dollars ($500), whichever is greater.” I.C. § 24-5-0.5-4(a). Also, “the court may void or limit the application of contracts or clauses resulting from deceptive acts and order restitution to be paid to aggrieved customers.” I.C. § 24-5-0.5-4(d).

Here, Costello did not initiate an action based on Imperial’s deceptive act, and did not file a counterclaim against Imperial. Instead, Costello asserted the contract’s non-compliance with HICA as a defense to Imperial’s breach of contract claim, arguing that the contract is unenforceable against him. Imperial contends that the contract’s non-compliance does not, by itself, justify declaring the contract unenforceable. Rather, according to Imperial, if Costello wanted to void the contract, he was required to assert a counterclaim to pursue that remedy.

As a general matter, contracts made in violation of a statute are void. Johnson v. Anderson, 590 N.E.2d 1146, 1149 (Ind.Ct.App.1992). However, “because we value the freedom to contract so highly, we will not find that a contract contravenes a statute unless the language of the implicated statute is clear and unambiguous that the legislature intended that the courts not be available for either party to enforce a bargain made in violation thereof.” Continental Basketball Ass’n v. Ellenstein Enterprises, Inc., 669 N.E.2d 134, 140 (Ind.1996). The Indiana General Assembly has made clear and unambiguous its intent that certain types of contracts not be enforced by declaring them “void” or “unenforceable.” Id.

HICA specifies certain minimum requirements that must be included in home improvement contracts in order to protect consumers. It is silent, however, as to whether contracts that do not meet the requirements are void or unenforceable, although it does provide that modifications are unenforceable against the consumer if not in -writing and signed by the consumer. I.C. § 24-5-ll-10(d). Instead, HICA declares a non-conforming contract to be a deceptive act and affords the aggrieved consumer the remedies available to victims of deceptive consumer sales under the DCSA. I.C. § 24-5-11-14. Under the DCSA, however, a contract that violates the statute and is a deceptive act is not necessarily void; rather, it creates a cause of action for which one of the remedies is to declare the contract void. Johnson, 590 N.E.2d at 1149.

We must therefore conclude from both our opinion in Johnson and the legislature’s failure to use words like “void” or “unenforceable” in HICA to describe contracts made in violation thereof, as well as the inclusion of remedial provisions to be invoked in the event of a violation, one of which is voiding the contract, that the General Assembly did not intend that every contract made in violation of HICA to automatically be void. See Continental Basketball Ass’n, 669 N.E.2d at 140 (concluding that a contract made in violation of the Indiana Franchise Acts was not automatically void because the legislature did not use the terms “void” or “unenforceable” in the statute and included a remedial provision for violations). Instead, we apply a balancing approach and examine the factors that courts use to determine whether or not a contract contravenes declared public policy. Id.; also Ahuja v. Lynco Ltd. Med. Research, 675 N.E.2d 704, 708 (Ind.Ct.App.1996), trans. denied. The considerations to be balanced are (1) the nature of the subject matter of the contract, (2) the strength of the public policy underlying the statute, (3) the likelihood that refusal to enforce the bargain or term with further that policy, (4) how serious or deserved would be the forfeiture suffered by the party attempting to enforce the bargain, and (5) the parties’ relative bargaining power and freedom to contract. Id. (citing Fresh Cut, Inc. v. Fazli, 650 N.E.2d 1126, 1130 (Ind.1995)).

The nature and subject matter of the contract at issue here is home improvement. As such, it is governed by HICA, a law enacted to protect consumers by requiring home improvement suppliers to provide detailed information in home improvement contracts. Costello, with only a ninth grade education, was in an inferior bargaining position with Imperial, an experienced home improvement company.

Nevertheless, we cannot conclude that the contract should be unenforceable against Costello. If we were to so hold, Imperial would suffer both a serious and undeserved forfeiture outweighing the other factors. Imperial provided services to Costello at Costello’s request. Costello signed a certificate of satisfaction after Imperial finished its work, and did not testify at the hearing that Imperial failed to perform under the contract. Instead, Costello’s explanation for not paying Imperial was that he thought the insurance company would pay for Imperial’s services. The insurance company has paid for Imperial’s services by sending a check to the Costellos, who cashed the check instead of paying Imperial, even though Costello agreed that Imperial was a third party beneficiary to any insurance contract covering the repairs.

Refusing to enforce the contract, moreover, would do little to further the policy behind HICA. Despite any deficiencies in the contract or disparities in the parties’ relative bargaining power, Costello ultimately received the benefit of Imperial’s services as well as a check to cover its fees. He does not, therefore, need the protections of HICA, and has instead re-eeived a windfall, which the law disfavors. Crider & Crider, Inc. v. Downen, 873 N.E.2d 1115, 1119 (Ind.Ct.App.2007). Under the circumstances of this case, we cannot conclude that the parties’ agreement should be unenforceable against Costello.

Conclusion

Although Imperial provided a contract to Costello that it concedes did not satisfy requirements of HICA, that non-compliance did not automatically render the contract void. Instead, the issue required examination of several factors to determine whether the contract should be enforced. After examining those factors, we conclude that the contract is enforceable and should not be voided. Imperial has thus demonstrated prima facie error in the trial court’s judgment. It is reversed and remanded with instructions to enter judgment in favor of Imperial for $669.86 and to hold a hearing to determine the contractual interest due on the contract and whether attorney fees or other costs are warranted and, if so, in what amount.

Reversed and remanded.

BAKER, J., and DARDEN, J., concur.

      .One of the terms of the Work Authorization is that Kentucky law governs the contract and that its terms will be enforced pursuant to Kentucky law. However, neither party raised a choice of law issue for the trial court, and Imperial makes no such argument on appeal and cites exclusively to Indiana authority in its brief. We therefore surmise that the parties agree that Indiana law governs their contract and resolve Imperial’s appeal accordingly.

      . A "home improvement supplier” is a "person who engages in or solicits home improvement contracts[.]” I.C. § 24-5-11-6. Imperial does not dispute on appeal that it is a home improvement supplier subject to HICA.

      . A “consumer" means an individual who owns, leases, or rents the residential property that is the subject of a home improvement contract. I.C. § 24-5-11-2. Imperial does not dispute that Costello is a consumer.

      . An "uncured deceptive act” means a deceptive act of which the consumer gave proper notice to the supplier and either the supplier made no offer to cure within thirty (30) days, or the act has not been cured within a reasonable time after the consumer's acceptance of the offer to cure. I.C. § 24-5-0.5-2(a)(7). An "incurable deceptive act” means a deceptive act done by a supplier as part of a scheme, artifice, or device with intent to defraud or mislead. I.C. § 24-5-0.5-2(a)(8).


author: DARDEN, Judge.

text:
    Kristine A. and Larry G. DAWSON, Appellants, v. FIFTH THIRD BANK, Appellee.
    No. 49A02-1107-PL-704.
    Court of Appeals of Indiana.
    March 30, 2012.

      Clifford T. Rubenstein, Maurer Rifkin & Hill, P.C., Carmel, IN, Attorney for Appellants.
    Jason A. Mosbaugh, Weltman Weinberg & Reis Co., L.P.A., Cincinnati, OH, Attorney for Appellee.
   OPINION

DARDEN, Judge.

STATEMENT OF THE CASE

Kristine A. Dawson and Larry G. Dawson (collectively “the Dawsons”) appeal the trial court’s order denying the Dawsons’ motion for summary judgment and granting Fifth Third Bank’s cross-motion for summary judgment.

We affirm.

ISSUE

Whether the trial court erred by granting summary judgment to Fifth Third and by denying the Dawsons’ motion for summary judgment.

FACTS

This case arose after the Dawsons responded to a posting on Craigslist and purchased a Harley Davidson motorcycle (“the Motorcycle”) from Jacob Magish. Although Magish gave the Dawsons a certificate of title that showed it was free of any lienholders, the Dawsons later learned that Magish had fraudulently obtained this apparent “clean” certifícate of title and that the most current certificate of title issued by and on file with the Indiana Bureau of Motor Vehicles (“BMV”) listed Fifth Third as a lienholder on the Motorcycle.

The Dawsons subsequently filed a complaint against Fifth Third, arguing that Fifth Third’s lien against the Motorcycle should be unenforceable because, under a theory of equitable estoppel, Fifth Third should bear the loss of Magish’s fraud on the Dawsons because Fifth Third’s acts and omissions made the loss possible. Fifth Third filed a counterclaim, seeking replevin of the Motorcycle.

Thereafter the parties filed cross-motions for summary judgment and stipulated to the following facts:

1) In May 2006, Jacob J. Magish (“Magish”) agreed to purchase a certain 2001 Harley-Davidson motorcycle, VIN 1HD1FCW151Y633745 (“Motorcycle”), from Christine and Larry Logsdon (“Logsdons”) for $14,635.
2) Also on May 31, 2006, at a Fifth Third branch in Indianapolis, Magish executed a Simple Interest Note and Security Agreement in favor of Fifth Third in order to borrow $15,000 (“Transaction”). The Security Agreement granted Fifth Third a security interest in the Motorcycle....
3) On May 31, 2006 and as part of the Transaction, Magish presented to Fifth Third the Logsdons’ original Certificate of Title (“Logsdon Original Title”)....
4) On May 31, 2006 and as part of the Transaction, Magish executed, amongst other documents, an Application for Certificate of Title (“May 31 Application”) and a Power of Attorney (“Magish File POA”)....
5) Pursuant to Fifth Third’s procedure at that time, Fifth Third’s Closing Representative John Wargel (“War-gel”) copied the Logsdon Original Title and then gave the Logsdon Original Title back to Magish and instructed Magish to apply for a new title at the Bureau of Motor Vehicles (“BMV”). Wargel kept the May 31 Application and the Magish File POA in the loan file.
6) Shortly after the Transaction, Magish, using deception, approached the Logsdons and requested that they sign paperwork to obtain a duplicate title. The Logsdons, who had no knowledge that Magish had financed the purchase of the Motorcycle through Fifth Third, unwittingly signed an application to obtain a duplicate title and gave the application to Magish.
7) On or about June 8, 2006, Magish obtained a Duplicate Title from the BMV in the name of the Logsdons (“Logsdon Duplicate Title”). The Logsdons signed the Logsdon Duplicate Title as Sellers. The Logs-don Duplicate Title inactivated the Logsdon Original Title in the BMV records.
8) On or about June 20, 2006, Magish, using the Logsdon Duplicate Title, submitted an application to the BMV for a new title in his name (“June 20 Application”). Magish intentionally omitted Fifth Third from the June 20 Application and did not list a lienholder. Magish concurrently tendered the Logsdon Duplicate Title to the BMV and failed to notate Fifth Third as Lienholder in the Purchaser’s Information section ....
9)On June 28, 2006, the BMV issued a new title in Magish’s name (“First Magish Title”). There was no lien notated on the First Magish Title. The First Magish Title inactivated the Logsdon Duplicate Title in the BMV records....
10) On or about October 16, 2006, Fifth Third[ ] used the Magish File POA and submitted an application for an amended title (“Fifth Third Application”) to the BMV ... Fifth Third did not have the Logsdon Original Title nor the First Magish Title in its possession and so did not tender to the BMV either with the Fifth Third application.
11) On October 18, 2006, the BMV issued a new title listing Magish as owner and Fifth Third as Lienholder (“Second Magish Title”). The Second Magish Title inactivated the First Magish Title in the BMV records. The whereabouts of the Second Magish Title are unknown and Fifth Third has no record of receiving it. The possible reasons for the missing Second Magish Title are: (1) it was mailed by the BMV but lost in the mail; (2) Fifth Third received it and lost it before making a record of receiving it; (3) the BMV printed the title but did not send it; or (4) the BMV sent it to Magish. The BM^s Title and Lien Record reflects the issuance of the Second Magish Title....
12) In 2008, Magish defaulted under the terms of the Note by failing to make payments as they became due. On September 25, 2008, Fifth Third, by its undersigned counsel, filed a Complaint on Promissory Note and For Replevin under Marion Circuit Court Cause No. 49C01-0808-CC-043604 (“Replevin Case”).
13) Magish appeared in the Replevin Case by attorney Steven Crell (“Attorney Crell”) and filed a general denial Answer. On January 26, 2009, Fifth Third filed a Motion for Summary Judgment.
14) In response to the Motion for Summary Judgment, on February 24, 2009, Attorney Crell sent Fifth Third’s counsel an email letter stating that the Motorcycle had been sold in South Carolina in 2007 after an accident and that, according to Magish, there was no lien on the title at the time the title was transferred (“Email Letter”)....
15) Based on the representations made in the Email Letter and without further investigation, Fifth Third and Magish entered into a monthly payment arrangement on the outstanding balance of the note and the Replevin Case was subsequently dismissed via Stipulation, without prejudice.
16) On June 18, 2009, Magish sold and delivered the Motorcycle to the Dawsons after posting an advertisement on Craigslist. The Dawsons paid Magish $13,050.00 for the Motorcycle.
17) At the sale, Magish provided the Dawsons with the First Magish Title. The Dawsons did not check the BMV records prior to the sale to verify the current status of the title to the Motorcycle.
18) After the sale, the Dawsons submitted an application for a new title to the Motorcycle to the BMV. The BMV advised the Dawsons that, according to the BMV records, the title the Dawsons had was not the most current title. For privacy reasons the BMV would not tell the Dawsons exactly what the issue was, but said it was either there was a duplicate title or a lienholder on the title. After discussions with Magish and his wife, the Dawsons determined that Fifth Third was a lien-holder. The BMV refused to issue a new title to the Motorcycle to the Dawsons.
19) The Dawsons called Magish (who at the time was terminally ill) and spoke with Magish’[s] wife who said that Magish would “take care” of the problem. Magish died on or about August 5, 2009. No estate was opened.
20) The Dawsons are still in possession of the Motorcycle.
21) The Dawsons filed the within Complaint to have Fifth Third’s hen declared unenforceable so that they can get a clear title to the Motorcycle. Fifth Third has filed a Counterclaim for Replevin. Both parties assert a superior interest in the Motorcycle.

(App. 18-20). The parties also stipulated that the question of law before the trial court on summary judgment was the following: “Based on the facts set forth above, and as a result of the fraud of Magish in obtaining multiple titles to the Motorcycle, which party is entitled to possession and title of the Motorcycle, free and clear of all liens and encumbrances?” (App. 20).

The trial court held a hearing on the summary judgment motions on November 22, 2010. The trial court ultimately denied the Dawsons’ summary judgment motion, granted Fifth Third’s summary judgment motion, awarded permanent possession of the Motorcycle to Fifth Third, and ordered that the Dawsons maintain possession of the Motorcycle pending their appeal.

DECISION

The Dawsons argue that the trial court erred by granting Fifth Third’s motion for summary judgment and by denying their motion for summary judgment. Specifically, the Dawsons argue that Fifth Third failed to satisfy all the elements of its counterclaim for replevin and that they are entitled to summary judgment on their claim of equitable estoppel.

The standard of review of a summary judgment is the same as that used in the trial court. Kopczynski v. Barger, 887 N.E.2d 928, 930 (Ind.2008). Summary judgment is appropriate only where there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Id. “[T]he party seeking summary judgment has the initial burden of proving the absence of a genuine issue of material fact as to an outcome-determinative issue. Only then must the non-movant come forward with contrary evidence demonstrating the existence of genuine factual issues that should be resolved at trial.” Kroger Co. v. Plonski, 930 N.E.2d 1, 9 (Ind.2010) (citing Jarboe v. Landmark Cmty. Newspapers of Ind., Inc., 644 N.E.2d 118, 123 (Ind.1994), reh’g denied). “A genuine issue of material fact exists where facts concerning an issue which would dispose of the litigation are in dispute or where undisputed facts are capable of supporting conflicting inferences on such an issue.” Mahan v. Am. Standard Ins. Co., 862 N.E.2d 669, 675 (Ind.Ct.App.2007), trans. denied. Even if the facts are undisputed, as they are in this appeal, summary judgment is inappropriate where the record reveals an incorrect application of the law. Masten v. AMCO Ins. Co., 953 N.E.2d 566, 569 (Ind.Ct.App.2011), trans. denied.

The fact that the parties filed cross-motions for summary judgment does not alter our standard of review. Pond v. McNellis, 845 N.E.2d 1043, 1053 (Ind.Ct.App.2006), trans. denied. We consider each motion separately to determine whether the moving party is entitled to judgment as a matter of law. Id.

We first review the trial court’s grant of summary judgment to Fifth Third on its counterclaim for replevin. “A re-plevin action is a speedy statutory remedy designed to allow one to recover possession of property wrongfully held or detained as well as any damages incidental to the detention.” United Farm Family Mut. Ins. Co. v. Michalski, 814 N.E.2d 1060, 1066 (Ind.Ct.App.2004). See also Ind.Code § 32-35-2-1 (providing that where property is wrongfully taken or unlawfully detained from the owner or person claiming possession of the property, the owner or claimant may bring an action for possession of the property). To recover in an action for replevin, a plaintiff must prove his title or right to possession; that the property is unlawfully detained; and that the defendant wrongfully holds possession. United Farm Family, 814 N.E.2d at 1067; Deere & Co. v. New Holland Rochester, Inc., 935 N.E.2d 267, 269 (Ind.Ct.App.2010).

The stipulated facts show that Fifth Third obtained a security interest in the Motorcycle in 2006 after Magish signed the Simple Interest Note and Security Agreement (“Security Agreement”) and pledged the Motorcycle as collateral for his loan with Fifth Third. The stipulated facts also indicate that the most current certificate of title to the Motorcycle that was issued by and on file with the BMV reflects that security interest, and it indicates that Fifth Third is a lienholder on the Motorcycle. The Dawsons acknowledge that, pursuant to the terms of the Security Agreement, Fifth Third has a right to repossess the Motorcycle upon default by Magish, and the parties stipulated to the fact that Magish defaulted on the Security Agreement in 2008 when he failed to make payments to Fifth Third. The parties do not dispute that Fifth Third has not released its lien on the Motorcycle. At the time the Dawsons purchased the Motorcycle, they did not check with the BMV to verify that the certificate of title that Magish gave them was the most recent one; thus, they were unaware of Fifth Third’s lien on the Motorcycle. However, after learning that Fifth Third was a lien-holder on the Motorcycle, the Dawsons have not paid Fifth Third to release the lien but have retained possession of the Motorcycle.

“It is black letter law that, upon default, a secured creditor has the right to take possession of the collateral securing its claim and the rights set forth in the agreement with the defaulting party.” Deere, 935 N.E.2d at 269 (citing Ind.Code §§ 26-l-9.1-601(a), 26-l-9.1-609(a)(l)). Therefore, when Magish defaulted on his loan, Fifth Third, as the secured party, had a right to take possession of the Motorcycle. See Ind.Code § 26-1-9.l-609(a); see also Allen v. First Nat. Bank of Monterey, 845 N.E.2d 1082, 1085 (Ind.Ct.App.2006).

The Dawsons do not dispute the fact that Fifth Third had a right to possession of the Motorcycle based on its security interest and lien on the Motorcycle. Instead, they contend that their purchase, and resulting ownership, of the Motorcycle, precludes Fifth Third from being able to prove that the Dawsons wrongfully held possession of the Motorcycle. Fifth Third does not contest the Dawsons’ ownership of the Motorcycle but contends that such ownership is subject to Fifth Third’s lien, which upon Magish’s default, entitles Fifth Third to replevin the Motorcycle. We agree with Fifth Third.

A security agreement is effective against purchasers of the collateral. See I.C. § 26-1-9.1-201; see also Deere, 935 N.E.2d at 269 (holding that a business that had a perfected security interest in farm equipment was entitled to replevin of equipment from third-party purchaser of the collateral equipment when debtor defaulted); Allen, 845 N.E.2d at 1085 (holding that the bank’s perfected security interest in farm equipment was superior to the debtor’s father who took over payments on the collateral equipment and that bank had right to possession of collateral upon default of the debtor).

The stipulated facts show that Magish pledged the Motorcycle as collateral for his loan with Fifth Third; that the certificate of title, which had been on file with the BMV since October 18, 2006 and was on file when the Dawsons purchased the Motorcycle on June 18, 2009, reflected Fifth Third as lienholder; that Magish defaulted on the loan; and that the lien has not been released. Despite subsequently learning of Fifth Third’s lien and acknowledging its right to repossess the Motorcycle, the Dawsons have maintained possession of the Motorcycle. While the Dawsons had an interest in the Motorcycle as purchasers of the collateral, their interest was not superior to Fifth Third’s perfected security interest in the Motorcycle. See Allen, 845 N.E.2d at 1085; see also Deere, 935 N.E.2d at 269. Accordingly, we conclude that the trial court did not err by concluding that Fifth Third, as lienholder of the Motorcycle, had a right to replevin of the Motorcycle from the Dawsons. Thus, we affirm the trial court’s grant of summary judgment to Fifth Third on its counterclaim for replevin.

We next turn to the Dawsons’ argument that the trial court erred by denying their summary judgment motion on their claim for equitable estoppel. The Dawsons argue that, despite Fifth Third’s lien, they are entitled to own the Motorcycle free and clear of such lien based on equitable principles. Specifically, the Dawsons assert that the following equitable principles should apply: (1) when one of two innocent parties must suffer a loss, that loss must be borne by the party whose act or omission made the loss possible; and (2) equity aids the vigilant, not those who slumber on their rights. In other words, the Dawsons contend that Fifth Third should bear the loss of the fraud Magish perpetrated on them because Fifth Third’s acts or omissions allowed Magish to obtain a certificate of title that did not reflect Fifth Third’s lien and thereafter allowed him to sell the Motorcycle to the Dawsons without their knowledge of Fifth Third’s lien. In so arguing, the Dawsons list various things that they contend Fifth Third did or did not do — such as returning the original certificate of title (or the Original Logsdon Title) to Magish so that he could apply for a certificate of title and failing in its duty to protect its own interests in the lien — and argue that Fifth Third could have prevented the Daw-sons’ loss.

The Dawsons do not cite to any authority that Fifth Third was required to retain the Original Logsdon Title or that it was required to apply for the new certificate of title itself. Indeed, the statutes pertaining to procedure for obtaining certificates of title do not require a bank to apply for the certificate of title, and we have explained that “[o]ur law neither requires nor expressly authorizes one lending money on the security of a motor vehicle to take up and hold the certificate of title until the lien has been discharged.” Community State Bank v. Crissinger, 120 Ind.App. 25, 29, 89 N.E.2d 78, 80 (1949).

Here, the stipulated facts reveal that on May 31, 2006, when Magish signed the security agreement with Fifth Third and pledged the Motorcycle as collateral, Fifth Third noted its lien on both the Original Logsdon Title and the application for the certificate of title and returned them to Magish so that he could get a new certificate of title, which he never did. Within four and one-half months, after apparently learning that Magish had not obtained a certificate of title that reflected its security interest, Fifth Third applied for an amended certificate of title, and the BMV issued a new title that listed Fifth Third as a lienholder on the Motorcycle. Thus, Fifth Third took appropriate action to protect its lien as well as make others aware of the lien. See Flynn, 716 N.E.2d at 991 (“The requirement that vehicles be titled serves the purpose of protecting the owners of motor vehicles, persons holding liens thereon, and the public in transactions involving vehicles.”). It is undisputed that Fifth Third never released its lien, and the Dawsons do not present any evidence or argue that it was required to do so.

Furthermore, contrary to the Dawsons’ contention otherwise, the stipulated facts do not show that it was merely Fifth Third’s acts that made the Dawsons’ loss— which was their purchase of the Motorcycle without knowledge of Fifth Third’s lien — possible. To be sure, when looking at the Dawsons’ acts and omissions, we cannot say that the trial court erred by denying their summary judgment motion based on equitable estoppel. The record reveals that the Dawsons purchased the Motorcycle after seeing Magish’s post on Craigslist, and there is no evidence presented that they knew Magish or had any previous dealings or interactions with him. Despite this apparent lack of familiarity with Magish, the Dawsons did not check the BMV to verify the status of the certificate of title that Magish presented to them. Indeed, there would have been little effort on their part to do so, and the record suggests that the Dawsons were in a better position to protect themselves from a loss. “As a general rule, we find that it is unreasonable to rely on the statements of third parties — or the debtor— about the current status of security interests.” Deere, 935 N.E.2d at 270.

Given the stipulated facts presented in this case, we cannot say that the Dawsons have met their burden of proving that they were entitled to summary judgment. Aside from the fact that they have cited little to no caselaw to support their arguments, they have failed to show that Fifth Third’s acts or omissions were responsible for their loss by purchasing the Motorcycle without knowledge of Fifth Third’s lien to the extent that equity should be granted to them. Accordingly, we affirm the trial court’s denial of the Dawsons’ motion for summary judgment.

Affirmed.

FRIEDLANDER, J., and VAIDIK, J., concur.

      . The record before us does not contain a transcript of the summary judgment hearing.

      . The entry of a final judgment and the filing of the notice of appeal were delayed by some procedural irregularities that are not being challenged and are not at issue in this appeal.

      . Indiana Code section 26-1-9.1-601(a) provides, in relevant part, that ''[ajfter default, a secured party ... may reduce a claim to judgment, foreclose, or otherwise enforce the claim, security interest ... by any available judicial procedure^]” Indiana Code section 26 — 1—9.1—609(a)(1) provides that ''[ajfter default, a secured party ... may take possession of the collateral.”

      . As part of their own motion for summary judgment, the Dawsons suggest that Fifth Third had not perfected its security interest. Specifically, the Dawsons contend that Fifth Third did not comply with Indiana Code section 9-17-2-4 because it failed to submit the previously issued certificate of title with its application for a new certificate of title. Indiana Code section 9-17-2-4 provides that if a certificate of title "has been previously issued for a vehicle in Indiana, an application for a certificate of title must be accompanied by the previously issued certificate of title, unless otherwise provided [.] ” (Emphasis added). Indiana Code § 9-17-3-2 provides that a duplicate copy of a certificate of title may be obtained without submitting a previously issued title, such as when the certificate of title is lost. See I.C. § 9-17-3-2. The stipulated facts reveal that when Fifth Third applied for a new certificate of title that would correctly reflect it as the lienholder, it did not have the previously issued certificate of title. Thereafter, the BMV issued a new certificate of title, noting Fifth Third as a first lienholder. Because the certificate of title indicates that Fifth Third has a lien on the Motorcycle, Fifth Third has perfected its security interest. See 26-1-9.1-311(a) (explaining that the filing of a financing statement is not necessary to perfect a security interest in an automobile because the certificate of tide statute covering automobiles "provides for a security interest to be indicated on a certificate of title as a condition or result of perfection”); see also Conseco Fin. Servicing Corp. v. Old Nat'l Bank, 754 N.E.2d 997, 1001 (Ind.Ct.App.2001) (interpreting Indiana Code section 26-1-9.1-311(a)(2) and explaining that perfection occurs when the security interest is indicated on the certificate of title); Sterling v. Capital

        Fin. Servs., Inc., 480 N.E.2d 605, 606 (Ind.Ct.App.1985) (suggesting that a security interest in a motor vehicle is perfected when a secured party is identified as a lienholder on a certificate of title submitted to the BMV), reh’g denied, trans. denied. Furthermore, Indiana Code § 26-1-9.1-311(b) provides that once a security interest in goods covered by a certificate of title is perfected, “a security interest so perfected remains perfected notwithstanding a change in the use or transfer of possession of the collateral.” Finally, we reject the Dawsons' attempt to raise in this appeal, what is in essence, a challenge to the BMV's discretion to issue a certificate of title. See Flynn v. Ind. Bureau of Motor Vehicles, 716 N.E.2d 988, 992 (Ind.Ct.App.1999) (explaining that a party may challenge the BMV's discretion to issue a certificate of title by seeking judicial review of an agency action), trans. denied.

      . The Dawsons fail to cite to any caselaw discussing this equitable principle.

      . The Dawsons also argue that, pursuant to the Indiana Uniform Fraudulent Transfer Act ("IUFTA”), Magish's sale of the Motorcycle to the Dawsons was not voidable. We need not review this claim because the IUFTA applies to creditors. See Ind.Code §§ 32-18-2 et seq.; see also Rice v. Com’r, Ind. Dep't. of Envtl. Mgmt., 782 N.E.2d 1000, 1005 (Ind.Ct.App.2003) (explaining that a motion to set aside fraudulent conveyances pursuant to the IUF-TA is equitable remedy available to “frustrated creditors”).


author: BAKER, Judge.

text:
    Lewis J. RICHARDSON, and Laurel Richardson, Appellants-Petitioners, v. BOARD OF COMMISSIONERS OF OWEN COUNTY, Appellee-Respondent.
    No. 60A01-1106-PL-228.
    Court of Appeals of Indiana.
    March 30, 2012.

      Russell L. Brown, Michael P. Maxwell, Clark, Quinn, Moses, Scott & Grahn, LLP, Indianapolis, IN, Attorneys for Appellants.
    Richard W. Lorenz, Hickam & Lorenz, PC, Indianapolis, IN, Attorney for Appel-lee.
   OPINION

BAKER, Judge.

Today we consider whether the petitioners were aggrieved parties and had standing to challenge the County Commissioners’ decision to vacate a portion of a roadway that provided an access to a cemetery where their daughter was buried. We hold that the petitioners did not suffer a special or unique injury above that which the general public sustained. Moreover, the evidence established that there were alternate entrances to the cemetery so the petitioners were not hindered within the meaning of the statute from gaining access to their daughter’s grave. Thus, the petitioners were not entitled to challenge the County Commissioners’ decision to vacate a portion of the roadway.

Appellants-petitioners Lewis and Laurel Richardson (collectively, the Richardsons), appeal the trial court’s judgment that vacated a portion of a roadway, in favor of the Board of Commissioners of Owen County (Commissioners). More particularly, the Richardsons maintain that the trial court erred in determining that they were not aggrieved parties and, therefore, could not appeal the vacation ordinance under Indiana Code section 36-7-3-12(f).

We conclude that because the Richard-sons are not abutting landowners to the vacated roadway, the trial court correctly determined that they lacked standing as an aggrieved party to remonstrate against the vacation of the roadway. In other words, the Richardsons have failed to demonstrate that they have sustained an injury that is unique or special to them.

Thus, we affirm the judgment of the trial court.

FACTS

The Richardsons own burial rights for ten plots in Splinter Ridge Cemetery (Cemetery) in Owen County. Then-daughter, Kirsten, is at the Cemetery.

Sometime in 2009, the Richardsons requested that the Cemetery be placed on the list of historic cemeteries. The Cemetery is located along the east side of Splinter Ridge Road (Splinter Ridge), which was, or is, a county road that appeared on the county maps and records for years. The records that the County maintained initially reflected that Splinter Ridge ran from Vandalia or Chapman Road in a southerly direction to a point known as Patricksburg Road.

However, as early as 1937, the road map that was submitted into evidence showed that Splinter Ridge appeared as a solid line, which meant there was a continuously maintained county road from Patricksburg Road to Fish Creek or about one third of its original length. The remainder of Splinter Ridge appeared as a dotted line, meaning that the county roadbed had been abandoned for the rest of the way north to Vandalia.

In 1997 or 1998, Junior Sips had inherited a large portion of the property just north of the Cemetery on both sides of Splinter Ridge. At some point, without the permission of any county authority, Sips installed a gate across Splinter Ridge just north of the property line to the Cemetery.

On May 1, 2009, Sips and Danzer Forest Land, Inc., (Danzer), as owners of all the property adjacent to a portion of Splinter Ridge, filed a petition to permanently vacate the adjacent portion of the road. It is undisputed that Sips and Danzer were the only landowners abutting the portion of the road sought to be vacated. In relevant part, the petition requested

4. [That the] roadway be permanently vacated as the same was in fact abandoned by [the] county approximately 60 plus years ago and has not been maintained by the County during that entire period of time and has not been used by the public as a roadway for the same period of time. In fact said roadway has generally disappeared and is not at all visible in many portions of the area petitioners are requesting be formally vacated.
5. The formal vacation of said section of roadway is in the public and economic interest of Owen County ... in that it would not interfere with the flow of traffic as it has existed for the past 60 plus years, the clearing of timber, grading and reestablishment of a roadbed would be necessary for the road to actually be used by the public.
7. The formal vacation of the roadway would not change the circumstances of any other landowner aside from the petitioner or negatively impact the traffic flow and pattern of transportation in Owen County from what it has been for the past 60 plus years.

Appellants’ App. p. 105-06.

Thereafter, the Richardsons filed a request with the Commissioners, asking for the removal of the gate that Sips had installed, and that overgrown portions of the road be repaired. At the Commissioners’ meeting on May 4, 2009, the Richard-sons presented argument about the importance of reopening the entire length of Splinter Ridge because of their ownership in the Cemetery plots. The Sips’s attorney then addressed the Commissioners regarding the pending application to vacate a portion of Splinter Ridge and presented Sips’s testimony in response to the Rich-ardsons’ request.

The evidence established that Sips, who was born in 1939, remembered the road being an unimproved path when he was approximately ten years old. The County had not maintained the road since around 1950, and Sips testified that he and his family had graded it and placed gravel on it for decades. The only house located on the road was Sips’s father’s former residence, which had not been occupied since the late 1990s. Sips testified that the road was impassable in much of its length north of the Cemetery. Moreover, a bridge over a nearby creek was no longer there.

Sips reported that there were at least two alternate routes to access the Cemetery. In fact, Sips stated that no one had accessed the Cemetery by way of Splinter Ridge for decades because a portion of it had been abandoned and overgrown. Various exhibits were presented to the Commissioners showing the roadway existing on a 1937 highway map and later maps showing the dotted line where the roadbed used to exist in 1950, 1972, and 2002. At the conclusion of the meeting, the Commissioners took the matter under advisement.

The petition to vacate was placed on the Commissioners’ May 18th meeting agenda. At that meeting, Sips’s counsel again offered to reiterate the evidence that was presented at the earlier meeting in response to the Richardsons’ request. The Commissioners implicitly agreed to incorporate the prior evidence by reference and asked no further questions. Sips’s counsel pointed out at the meeting that both parties had previously presented evidence that between 1950 and 1980, Splinter Ridge had completely dropped off the county road system.

The evidence established that the Rich-ardsons were not landowners who abutted the road requested to be vacated. The Richardsons then presented evidence and argument against the petition to vacate. The Richardsons maintained that they were entitled to oppose the petition because vacating the road would hinder public access to a church, school, or other public buildings or places. The Richard-sons alleged that the gate had encouraged vandalism, littering, and loitering at the Cemetery, and that removing the gate and reopening Splinter Ridge would reduce the risk of further desecration to the Cemetery. Appellants’ App. p. 89, 90,120.

One of the commissioners pointed out that placing a bridge over the creek to access the Cemetery would cost anywhere from $500,000.00 to $1,000,000. The Rich-ardsons’ counsel suggested that the County was maintaining Splinter Ridge, but the highway superintendent indicated that Sips was the only person who was maintaining the roadbed.

After considering the evidence and argument, the Commissioners voted 3-0 to approve the vacation of the road. On August 17, 2009, the Commissioners signed Ordinance No.2009-15, vacating the requested portion of Splinter Ridge.

On September 16, 2009, the Richardsons filed their complaint in the trial court requesting damages and an order to set aside the vacation ordinance. At a hearing on July 23, 2010, the Commissioners filed a motion to dismiss the Richardsons’ complaint, claiming that they had failed to follow proper procedures, including the filing of an appeal bond under Indiana Code section 36-2-2-28. Moreover, the Commissioners maintained that the Richard-sons could not appeal the decision because they are not aggrieved persons as defined in Indiana Code section 36-7-3-12(f).

On May 20, 2011, the trial court dismissed the Richardsons’ complaint, based on a determination that the Richardsons are not aggrieved persons under the statute and, therefore, are not eligible to appeal. More particularly, the trial court ruled that

The Richardsons do allege that they would be inconvenienced by the vacation, but they do not allege a special injury that would completely deprive them of access to their daughter’s grave and their plots.
Taking as true that the Richardsons own the plots and their daughter is buried in one of their plots, the evidence presented does not cut them off from those plots. An alternate entrance to the cemetery is available and the inconvenience of using the alternate interest is not a special injury.
The Richardsons’ injury falls under the doctrine of damnum, absque injuria, which means that while they may have suffered damage, they were without legal injury.... Based on the pleadings and other evidence submitted by the Richardsons, the Court finds that they have not suffered a special injury.
IV. Conclusion
Based on the complaint, briefs, and other submissions by the Parties, the Rich-ardsons did not suffer a special injury as defined by law and, therefore, cannot appeal the vacation ordinance under I.C. 36-7-3-12.

Appellants’ App. p. 16-17. The Richard-sons now appeal.

DISCUSSION AND DECISION

I. Standard of Review

Where, as here, the facts are not in dispute, the question of subject matter jurisdiction is a pure question of law and the trial court’s decision should be reviewed de novo. H.D. v. BHC Meadows Hosp., 884 N.E.2d 849, 852 (Ind.Ct.App.2008). Deference is not afforded to the trial court’s conclusion because we evaluate the issues that are deemed questions of law. Bader v. Johnson, 732 N.E.2d 1212, 1216 (Ind.2000). Here, because the facts were undisputed and the trial court ruled on a pure question of law, namely, whether the Richardsons were aggrieved persons under Indiana Code section 36-7-3-12, we will apply a de novo standard of review as to the trial court’s determination that the Richardsons cannot challenge the ordinance vacating a portion of Splinter Ridge.

II. The Richardsons’ Contentions

In addressing the issue as to whether the trial court’s determination that the Richardsons were aggrieved parties and should be permitted to challenge the vacation ordinance, we quote, in part, from McFarland v. Pierce, 151 Ind. 546, 548, 45 N.E. 706, 706-07 (1897), where it was observed that

The word ‘aggrieved’ ... refers to a substantive grievance, a denial of some personal or property right or imposition upon a party of a burden or obligation .... [Citations omitted]. To be aggrieved is to have legal right the infringement of which by the decree complained of will cause pecuniary injury. [Citations omitted].... The Appellees must have a legal interest which will be enlarged or diminished by the result of the appeal. [Citations omitted].

In this case, the Richardsons claim that they were entitled to challenge the vacation proceeding in accordance with Indiana Code section 36-7-3-12 and -13. Indiana Code section 36-7-3-12 provides that

(a) Persons who:
(1) own or are interested in any lots or parts of lots; and
(2) want to vacate all or part of a public way or public place in or contiguous to those lots or parts of lots; may file a petition for vacation with the legislative body of:
(A) a municipality, if all or any part of the public way or public place to be vacated is located within the corporate boundaries of that municipality; or
(B) the county, if all or the only part of the public way or public place to be vacated is located outside the corporate boundaries of a municipality.
(b) Notice of the petition must be given in the manner prescribed by subsection
(c). The petition must:
(1) state the circumstances of the case;
(2) specifically describe the property proposed to be vacated; and
(3) give the names and addresses of all owners of land that abuts the property proposed to be vacated.
(c) The legislative body shall hold a hearing on the petition within thirty (30) days after it is received. The clerk of the legislative body shall give notice of the petition and of the time and place of the hearing....
(d) The hearing on the petition is subject to IC 5-14-1.5. At the hearing, any person aggrieved by the proposed vacation may object to it as provided by section 13 of this chapter.
(e) After the hearing on the petition, the legislative body may, by ordinance, vacate the public way or public place. The clerk of the legislative body shall furnish a copy of each vacation ordinance to the county recorder for recording and to the county auditor.
(f) Within thirty (30) days after the adoption of a vacation ordinance, any aggrieved person may appeal the ordinance to the circuit court of the county. The court shall try the matter de novo and may award damages.

Indiana Code section 36-7-3-13, states in relevant part that

A remonstrance or objection permitted by section 12 of this chapter may be filed or raised by any person aggrieved by the proposed vacation, but only on one (1) or more of the following grounds:
(3) The vacation would hinder the public’s access to a church, school, or other public building or place.

In applying these statutes to the circumstances here, the evidence presented to the Board demonstrates that the northern 2/3 of Splinter Ridge has been closed and impassable for decades. Sips testified that there had been no traffic north of his parents’ home since before 1950. Appellants’ App. p. 73. Photographs of the road were submitted showing gravel on the path, while others showed a creek with no bridge traversing it, farm fields where the road ran in the past, and completely impassable areas that were overgrown with brush and trees. Id. at 107-19.

Sips also testified that the County had not maintained the road for years and that any gravel that was there had been placed on it by him or his family. Id. at 86. Ironically, the Richardsons’ petition to reopen the road infers that the Richardsons recognized and appreciated that the road was impassable and would need significant remediation to restore it to any level of operation which would satisfy County and State specifications.

In essence, the County’s abandonment and decades of non-use have disengaged this roadbed from the active county highway system. Indeed, the Richardsons’ petition seeks to reopen the roadbed by removing the undergrowth, excavating an appropriate roadbed and surface, and building a bridge using specifications that are consistent with a highway servicing this area. However, we cannot say that the Richardson’s petition is adequate to compel the Commissioners to build the new road and it does not serve as justification for opposing the vacation.

As discussed above, the Commissioners identified a number of alternative routes of travel to the Cemetery from the north and other directions. And there is no evidence demonstrating that the Richardsons have ever needed to use the overgrown, abandoned part of Splinter Ridge to access the cemetery where their daughter is buried and where the remainder of their plots are located.

In short, the Richardsons have continued to visit the gravesites without the availability of the specific route that they are seeking to reopen. The evidence demonstrates that the ability of the general public is not interfered or hindered anymore than it has been for the last five decades, or more. Finally, we note that the injury of which the Richardsons complain is not unique or special to them but rather is the same as the general public as a group. For all of these reasons, we conclude that the trial court properly dismissed the Richardsons’ complaint.

The judgment of the trial court is affirmed.

DARDEN, J., and BAILEY, J., concur.