Subscriber Benefit
As a subscriber you can listen to articles at work, in the car, or while you work out. Subscribe Now
A man and his wife violated the Indiana Senior Consumer Protection Act by gaining control of his mother’s property after threatening to place her in a nursing home if she didn’t sign the property over to them, the Court of Appeals of Indiana has ruled in affirming a lower court’s decision.
Jimmy and Cheryl McIntosh agreed to provide more care for Jimmy’s mother, Roberta, who fell twice in 2017 and injured herself. Jimmy and Cheryl moved into Roberta’s house in December 2017.
In early 2018, Jimmy attempted to draft a warranty deed conveying ownership of the Commiskey home to him and his wife.
Roberta signed the deed, but it was unrecordable because it lacked a complete legal description of the property.
About 2 1/2 years later, Jimmy turned to an attorney for help.
The attorney drafted a quitclaim deed transferring ownership of Roberta’s home to Jimmy and Cheryl.
One of Roberta’s other children, Nilah Simmons, learned of the deed and told Jimmy that Roberta didn’t want to sign it. Jimmy was also told Roberta’s will had been lost.
He became “very angry,” Simmons testified, and yelled some “pretty harsh things” to Roberta.
In September 2020, Jimmy and Cheryl took Robert to the attorney’s office, and they executed a quitclaim deed.
The next day, Jimmy took the deed to the recorder’s office to be recorded. But the Jennings County Recorder’s Office didn’t record it until Nov. 2, 2020.
About a week after signing the deed, Roberta executed a last will and testament. She then executed a power of attorney naming Simmons as her attorney in fact.
In October 2020, Roberta executed a warranty deed, which granted Roberta a life estate in her home and split the remainder equally among her living children.
Simmons brought Roberta’s power of attorney and warranty deed to the Recorder’s Office to be recorded.
Unbeknownst to her, the power of attorney wasn’t properly recorded.
The attorney informed Simmons of the mistake, and she had the power of attorney properly recorded in April 2021.
In August 2021, Roberta and Simmons filed a petition to quiet title. Among other things, it alleged Jimmy and Cheryl violated the Indiana Senior Consumer Protection Act. It also alleged that “either by mistake or error,” the Recorder’s Office failed to record Roberta’s power of attorney.
The Jennings Superior Court determined Jimmy and Cheryl did violate the SCPA; Simmons filed Roberta’s power of attorney in “substantial compliance” with statutory requirements; the quitclaim deed was void; and the warranty deed was the legally controlling instrument.
The court ordered Jimmy and Cheryl to pay Roberta’s court costs and attorney fees, totaling $8,050.
On appeal, the couple challenged the trial court’s findings of facts, arguing they are clearly erroneous.
The Court of Appeals disagreed.
Among the challenged findings was that prior to Jimmy and Cheryl asking Simmons to take Roberta to sign the quiet claim deed, no one was informed that the couple were trying to get Roberta to sign the property over to them.
Jimmy and his siblings’ testimony on that matter conflicted.
“The trial court was not required to accept Jimmy’s self-serving testimony,” the opinion says.
Jimmy and Cheryl also argued the trial court applied the incorrect legal standard when it found they violated the SCPA. They contended it was inappropriate to apply the burden-shifting paradigm.
Here, the Court of Appeals partially agreed, ruling the correct standard under the SCPA is a preponderance of the evidence.
Despite the error, the Court of Appeals still ruled the trial court’s findings support a judgment that Jimmy and Cheryl obtained control over Roberta’s property knowingly and by “informing or implying to Roberta she would be deprived of her shelter and the care she received from Jimmy and Cheryl if she did not comply with their wishes — i.e., by intimidation.”
Lastly, Jimmy and Cheryl argued the trial court erred by finding the warranty deed valid because it was recorded before Roberta’s power of attorney.
The parties agree the statutory requirements weren’t met by the Recorder’s Office, the opinion says. The power of attorney naming Simmons as Roberta’s attorney wasn’t recorded until six months after Simmons attempted to record it and the warranty deed.
“But what more was Nilah to do?” the Court of Appeals asked in determining the trial court didn’t err.
“Put another way,” the opinion continues, “we discern no fault by Nilah and conclude — based on the circumstances of this case — she took all necessary steps to comply with the statutory requirements.”
Judge Dana Kenworthy wrote the opinion. Judges Terry Crone and Paul Felix concurred.
The case is Jimmy A. McIntosh, and Cheryl McIntosh v. Roberta I. McIntosh, and Nilah K. Simmons as Power of Attorney for Roberta I. McIntosh, 22A-PL-2522.
Please enable JavaScript to view this content.