Samaddar v. Jones

On June 10, 1998, Samaddar and Jones entered into a Contract for Conditional Sale of Real Estate (the “Contract”), whereby Samaddar agreed to purchase from Jones a parcel of real estate located in Lawrence County, Indiana, for the sum of $225,000.00. The terms of the Contract required Samaddar to make a $50,000.00 down payment, which he paid. The balance of the contract price was to be paid in 120 monthly installments of $1,688.80, with a $50.00 penalty for late payment. The Contract also provided for Samaddar to pay any reasonable expense, including attorneys’ fees, incurred by Jones in enforcing the terms of the Contract. The Contract also stated:
Before Seller shall pursue any of his rights or remedies under this Article IX, he shall first give Buyer written notice of the default complained of and Buyer shall have ten (10) days from the posting of such notice to correct any default; provided, however, ten (10) days notice shall be required in the case of any default in payment of any monies agreed to be paid by Buyer under this contract.

(Appellant’s Appendix p. 10).
The last payment that Samaddar made under the Contract was on September 12, 2000, which was a partial payment only, and did not bring Samaddar current in his payments. As a result, Jones sent Samaddar notice (the “Notice”) on December 4, 2000, that he was in arrears in his payments in the amount of $10,087.20, and that the “10 day notice [period] shall expire at 12:01 a.m. on December 15, 2000. As of December 15, 2000, the payment due December 10, 2000, will likewise be past due.” (Appellant’s App. p. 11).

Samaddar received the Notice on December 6, 2000, and retained counsel the same day. Also on the same day, Samaddar’s counsel sent Jones a counter-proposal for curing the default. Jones rejected Samaddar’s counter-proposal in a letter dated December 12, 2000, which also reasserted the December 15, 2000, 12:01 a.m. deadline.

On December 19, 2000, Jones filed its Complaint for Foreclosure, which it amended as of right on January 3, 2001. See footnote In its Complaint, Jones stated that it had sent the requisite ten (10) day notice letter, and that Samaddar “failed to bring the contract up to date as provided for in such 10 day notice.” (Appellant’s App. p. 4). Samaddar filed his Answer on February 1, 2001, denying that he had failed to make the necessary payment pursuant to the Notice, and asserting the affirmative defenses of tender of payment, estoppel, and waiver.

On May 8, 2001, Jones filed a Motion for Summary Judgment, which was supported by the affidavit of Jones’ corporate secretary wherein she stated: “Defendant Samaddar did tender to attorney Steele’s office $11,776,00 after 12:01 AM on December 15, 2000, but such tender, since it was after the deadline set forth in the 10 day notice, was refused. No amounts have been tendered since that date.” (Appellant’s App. p. 18). With its summary judgment motion, Jones also submitted the affidavit of its attorney attesting to the services he had performed to date, and asking for reasonable attorney fees in the amount of $5,000.00.

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For the above reasons, we conclude that the trial court erred in granting Jones’ Motion for Summary Judgment, and we reverse and remand for proceedings consistent with this opinion.

Reversed and remanded.

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C.L.