Holmes v. Rushville Production Credit Association

355 N.E.2d 417, 170 Ind. App. 509, 20 U.C.C. Rep. Serv. (West) 471, 1976 Ind. App. LEXIS 1068

Opinion

355 N.E.2d 417 (1976)

Hazel G. HOLMES, Defendant-Appellant,
v.
RUSHVILLE PRODUCTION CREDIT ASSOCIATION, Plaintiff-Appellee.

No. 1-376A31.

Court of Appeals of Indiana, First District.

October 12, 1976.

Robert Adams, Adams & Cramer, Shelbyville, William H. Wolf, Wolf & Robak, Greenfield, for appellant.

George J. Lewis, Ronald R. Pritzke, Lineback & Lewis, Greenfield, for appellee.

ON PETITION FOR REHEARING

LOWDERMILK, Judge.

In her petition for rehearing, the defendant-appellant Hazel G. Holmes reveals that we erred in our holding on Issue Five of our opinion. IC 1971, 24-4.5-5-205 (Burns Code Ed.) allows a borrower to at any time raise the civil liability of the lender for violations of disclosure requirements as a defense to an action on the borrower's obligation.

Inasmuch as the trial court's findings of fact did not touch on this issue, we are left with no clue as to why it rejected Holmes' claim under IC 1971, 24-4.5-5-203(1) (Burns Code Ed.). See Miller v. Ortman (1956), 235 Ind. 641, 136 N.E.2d 17.

We therefore temporarily withdraw our original opinion and hereby remand this cause to the trial court with instructions that it enter findings of fact on Issue Five and — in the event that its findings require a change in its judgment — to amend its judgment to conform to its findings.

It is further ordered that the trial court furnish this court with said findings and any other new record within forty (40) days of the date hereof.