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9191 Broadway
Merrillville, IN, 46410
United States

219-769-1313

Burke Costanza & Carberry LLP is the leading law firm in Northwest Indiana. Our full-service law firm has offices in Merrillville and Valparaiso Indiana as well as one in Chicago Illinois. At BCC, our lawyers pride themselves on being able to provide a wide range of legal services to our clients, who benefit from the depth and experience we provide from top to bottom.

The main practice groups at Burke Costanza & Carberry LLP are: Alternative Dispute Resolution, Commercial Services, Civil Litigation, and Business and Personal Services.

Our attorneys represent businesses and government entities in the following areas: Business Planning, Commercial Law, Construction, Labor & Employment, Governmental Entities, Healthcare, Labor, Pension Profit-sharing & Employee Benefits, Real Estate, Taxation, and Worker's Compensation.

Our lawyers also represent individuals in matters such as Estate Planning, Wills and Trusts, Immigration, Family Law, Probate Administration, Real Estate, and Taxation.

Burke Costanza & Carberry LLP is a well-rounded firm with strong roots in Northwest Indiana that is focused primarily on our lawyers providing clients with the highest quality legal service in a broad range of practice areas.

Litigation Blog

Settlement Won In Tavern Liability Case

John P. Bushemi

John P. Bushemi won settlement of a tavern liquor liability case for a Merrillville man who suffered serious injuries as a passenger in a car crash.  The passenger’s settlement exceeding $1,000,000 was paid by the insurance company for Pepe’s Tavern in Merrillville where the intoxicated driver was served alcoholic beverages prior to the crash.  Evidence indicated that a Pepe’s bartender served two (2) beers to the visibly intoxicated driver prior to him leaving the bar.  Witnesses reported the driver later was traveling at a high rate of speed, weaving in and out of traffic and drove off the roadway and crashed into a tree.  Tests showed the driver had a blood alcohol concentration (BAC) of .247- three (3) times the legal limit in Indiana.  The passenger suffered a traumatic brain injury, fractured pelvis, hip socket and jaw and a ruptured bladder.  Medical expenses exceeded $800,000 in the case. 

Indiana’s “Dram Shop Law” provides that bars, taverns, clubs and others who furnish alcoholic beverages to a visibly intoxicated person are liable for deaths, injuries, and damages caused by the intoxicated person.  Attorney Bushemi stated: “The state legislative policy is that businesses that serve alcoholic beverages are accountable for the consequences of serving alcohol to a visibly intoxicated person.  The public has a legal right to be free from the hazards of serving alcohol to intoxicated persons.”  Indiana’s statute imposes liability for furnishing “one more drink” to a visibly intoxicated person who causes harm.  Attorney Bushemi is available for consultation on tavern liability cases.

Successful Defense Of An Ophthalmologist

Robert F. Parker

Congratulations to BCC partner Bob Parker and associate Mike Bolde for their successful defense of an ophthalmologist in a medical malpractice case. The week long trial in Elkhart County, IN included testimony by experts from New Jersey, Illinois, Texas, Arizona, and California, and ended with a unanimous jury verdict in favor of our client.

The case involved a claim by a young woman who suffered a complete loss of vision in one eye, and contended that it resulted from the ophthalmologist's failure to promptly diagnose and treat a rare and devastating eye disease.

Respected Federal Jurist Rejects Borrower’s Claim that He is a “Tenant” in Foreclosure, Awards Fees to Foreclosing Bank

Nancy J. Townsend

As homeowners in foreclosure face the end of the legal proceedings, many make desperate arguments to forestall eviction. When senseless arguments meet sympathetic or uninformed judges, they can temporarily derail the foreclosure process, achieve the borrower’s objective to delay, and create unnecessary expense for both courts and lenders. But, in a decision on February 18, 2014, Judge Robert Miller of the Northern District of Indiana rapidly rejected one such argument and awarded attorney fees to the lender.

Michael and Tina Roberts’ lender filed a mortgage foreclosure suit against them in Cass County Circuit Court in 2010. The lender purchased the property at foreclosure sale in January 2013 and the state court issued a writ of assistance January 2014, requiring the Sheriff to deliver possession to the lender. Michael Roberts removed the case to Federal Court, claiming the right of a “tenant” to 90 days’ notice before eviction under the Protecting Tenants at Foreclosure Act of 2009 (“PFTA”) of 2009, 12 U.S.C. § 5201 et seq.

Ironically, Roberts was attempting to exploit a statute that is designed, in part, to protect tenants from unscrupulous homeowners in foreclosure. The PFTA protects tenants of federally-related mortgages[1] by requiring a minimum of 90 days’ notice and declaring that their leases survive foreclosure unless the foreclosure buyer intends to occupy the property. 12 U.S.C. § 5220 note.[2] It addresses problems arising from the lack of notice to renters whose landlords in foreclosure often fail to inform them of pending foreclosures and, in some cases, continue collecting rent after the bank has reclaimed the property. Without the protections of the PFTA, oblivious tenants who are faithfully paying rent might first discover the foreclosure when the bank gives them notice to vacate.

Siding with the Ninth Circuit Court of Appeals[3] and a district court in Illinois,[4] Judge Miller found that neither the text of the PTFA nor any expression of congressional intent supported a private right of action for violations.[5] He also found that Roberts, a mortgagor, was not a bona fide tenant protected by the PTFA.[6]

In considering a motion for fees, Judge Miller noted that “[a]s the mortgagor, Mr. Roberts likely couldn't have sincerely believed he was also a tenant, or renter of the property, protected by the Protecting Tenants at Foreclosure Act.” [7] He found that Roberts’ timing of the removal suggested it was a delay tactic. He tracked the available dates and progress of the foreclosure case, but could not find sufficient information in the record to conclude that Roberts “was clearly trying to delay the proceedings or increase the litigation costs.” Id. (Judge Miller’s emphasis). So, he did not make a finding of vexatious litigation. But, he did award fees based on the presumption in under § 1447(c) of awarding fees to parties who successfully defeat removal petitions.[8]

Judge Miller dispensed quick justice; his remand decision came less than one month after Roberts removed the case, reducing the delay and therefore the impact of Roberts’ improper removal. By including facts and analysis to shed light on Roberts’ motive, Judge Miller offers hints to identify vexatious litigation in future cases and to dissuade others from embarking on a similar course. The imposition of fees against the homeowner, while unpopular, serves the proper purpose “to reduce the attractiveness of removal as a method for delaying litigation and imposing costs on the plaintiff.”[9]

The arsenal of frivolous motions and delay tactics offer alluring short-term solutions for homeowners facing the loss of their homes. When a foreclosure is filed, a homeowner can expect to receive 30 to 80 pieces of "vulture" mail offering advice, often from foreclosure attorneys feeding on the homeowners’ natural resistance to relinquishing their homes. Homeowners might be better-advised to move forward as quickly as possible toward a long-term solution for stable, affordable replacement housing. Many would also be well-advised to save the expense of paying lawyers to make these arguments. 

Nancy J. Townsend is a 1985 graduate of Notre Dame Law School and focuses her practice on creditors’ rights, commercial litigation, collection, and foreclosure in Indiana and Illinois courts.


[1] The PFTA applies only to certain “federally-related” mortgages, defined in 12 U.S.C. § 2602.

[2] The Protecting Tenants at Foreclosure Act provides:

(a) In the case of any foreclosure on a federally-related mortgage loan or on any dwelling or residential real property after the date of enactment of this title, any immediate successor in interest in such property pursuant to the foreclosure shall assume such interest subject to—

(1) the provision, by such successor in interest of a notice to vacate to any bona fide tenant at least 90 days before the effective date of such notice; and

(2) the rights of any bona fide tenant, as of the date of such notice of foreclosure—

(A) under any bona fide lease entered into before the notice of foreclosure to occupy the premises until the end of the remaining term of the lease, except that a successor in interest may terminate a lease effective on the date of sale of the unit to a purchaser who will occupy the unit as a primary residence, subject to the receipt by the tenant of the 90 day notice under paragraph (1); or

(B) without a lease or with a lease terminable at will under state law, subject to the receipt by the tenant of the 90 day notice under subsection (1).

Pub. L. 111-22, 123 Stat. 1660, 12 U.S.C. § 5220 note.

[3] Logan v. U.S. Bank National Ass'n, 722 F.3d 1163, 1173 (9th Cir.2013).

[4] Falk v. Perez, 12 CV 1384, 2013 WL 5230632 (N.D.Ill. Sept. 12, 2013) (Castillo, J.) (“Importantly, nothing in the text of the PTFA explicitly creates a private cause of action, and courts addressing the issue have found that there is no evidence of any congressional intent to create a private right of action from the language of the PTFA.”).

[5] JPMorgan Chase Bank, Nat. Ass'n v. Roberts, 4:14-CV-5-RLM-PRC, 2014 WL 631523 (N.D.Ind. Feb. 18, 2014).

[6] Id.

[7] Id.

[8] Section 1447(c) provides that “[a]n order remanding the case may require payment of just costs and any actual expenses, including attorney fees, incurred as a result of the removal.” 28 U.S.C. § 1447.  Recognizing that improper removal “delays resolution of the case, imposes additional costs on both parties, and wastes judicial resources,” the United States Supreme Court has formulated a test for awarding fees under § 1447(c), “to reduce the attractiveness of removal as a method for delaying litigation and imposing costs on the plaintiff.” Martin v. Franklin Capital Corp., 546 U.S. 132, 140-41, 126 S.Ct. 704, 711, 163 L.Ed.2d 547 (2005). “Absent unusual circumstances, courts may award attorney's fees under § 1447(c) only where the removing party lacked an objectively reasonable basis for seeking removal. Conversely, when an objectively reasonable basis exists, fees should be denied.” Id.

[9] Martin v. Franklin Capital Corp., 546 U.S. 132, 140-41, 126 S.Ct. 704, 711, 163 L.Ed.2d 547 (2005).

Incorporating To Protect Personal Assets: Does It Really Work?

Robert F. Parker


Many websites advertise services to quickly and inexpensively incorporate your personal business as a way to protect your assets, warning that without incorporation, you could lose “everything you own, your house, car, retirement accounts,” etc.  These services enthusiastically tout your ability to incorporate your business without the expense of obtaining legal advice. But will simply incorporating your business protect you from those risks? The answer is both “yes” and “no.” But one thing is clear: there are several types of liabilities where incorporation will definitely not protect your personal assets.

First, be aware that that the decision to incorporate, form a limited liability company, or create some other type of legal entity for your business involves much more than just attempting to shield you from personal liability. There may be taxation, regulatory, and other legal issues that dictate the best form of organization for your business. The companies that advertise quickie incorporation services do a poor job of counseling you on the right form for your business, if they make any attempt to do so at all. Many don’t. Others provide a drop-down menu checklist of factors. Others, a list of “frequently asked questions.” Only an attorney who knows the specifics of your situation as a result of personal consultation with you can properly advise you on the form of organization that best suits the needs of your business. The relatively modest fee an attorney will charge you for that advice is money very well spent in the long run.

Even if you are convinced that a corporation or limited liability company is the best organizational form for your business, there are many types of personal liabilities you will not be able to escape. There are three basic types of potential liabilities every business faces and each of them can, in the right circumstances, pose a threat to your personal assets even if your business is incorporated.

All businesses enter into contracts, formal or otherwise. If your business buys supplies, takes out a loan, rents office space, or sells a product or service, it has potential contractual liabilities. Technically, as long as the contract is in the name of the business, you (the owner of the business) are not personally liable if the contract is breached. However, many times the other party to such contracts will, when dealing with a personal business, require the owner to personally guarantee the obligation created by the contract. Thus, if you rent an office in the name of your incorporated business, your landlord may well require you to sign a personal guaranty for the rent. Likewise, any bank loaning money to a “personal business” is only going to do so based on the credit-worthiness of the individual owner, incorporated or not. And that individual owner is almost certainly going to be required to personally guarantee the debt. Individual suppliers may also require personal guarantees before selling equipment or durable goods to such a business. The bottom line is that an “individual” business, even if incorporated, can generate contractual liability that will potentially threaten your personal assets.

Businesses can also incur liabilities such as fines or penalties for failure to comply with a wide variety of regulations. In many instances, these types of regulatory violations give rise to “responsible person” liability, i.e., individual liability on the part of the person responsible for ensuring compliance with regulations. For example, if your small business fails to pay payroll or other types of taxes, both the incorporated business and the owner may liable for the deficiency. Incorporating your business will not shield your personal assets from this type of liability.

Finally, business activity may generate tort liability, such as personal injury lawsuits. For example, if you are delivering a product to a customer and cause an automobile accident resulting in injury to another, since you were acting for the business at the time, the business is liable for the consequences of your negligence. However, even if the business is incorporated, that will not allow you to escape personal liability for injuries which you caused through your negligence. Tort liability generated by your business is your individual responsibility to the extent you participated in the conduct which gave rise to the liability. You cannot shield your personal assets from such liability simply by incorporating your business.

In summary, organizing your personal business as a corporation or limited liability company is as easy and inexpensive as the quickie incorporation companies and websites suggest … in the short run. However, the claim that by doing so you can bulletproof your personal assets is, at best, an exaggeration and, at worst dangerously misleading. Moreover, incorporation is not a “one size fits all” solution for businesses. Only an attorney experienced in the formation of business organizations, familiar with your personal situation through face to face consultation and dialogue, can properly advise you as to the best form of organization for your business, and explain to you the benefits and disadvantages of each form of organization, and how they impact your business. You might “save” a modest amount of money by incorporating your business using Legalzoom©, The Company Corporation©, Incfile.com, or similar services, rather than going to an experienced attorney for advice first. But you may well find out the hard way that such “savings” are only an illusion.

7th Circuit Rejects Conciliation Affirmative Defense in Title VII Action

Burke Costanza & Carberry LLP

The Seventh Circuit Court of Appeals, which covers Indiana, Illinois, and Wisconsin (7th Circuit) went against a strong trend in litigation involving Title VII of the Civil Rights Act of 1964. The 7th Circuit rejected the use of an affirmative defense that the Equal Employment Opportunity Commission (EEOC) failed to engage in good faith conciliation prior to filing a lawsuit against an employer. This case involved a female applicant who alleged she was rejected for a coal mining position with Mach Mining, LLC in Johnston City, Illinois. 

Legal Background
Title VII prohibits discrimination on the basis of gender, race, religion, and other protected classifications. It sets forth procedural requirements for filing a lawsuit against an employer. One of these requirements is that the EEOC must engage in conciliation prior to filing a lawsuit. Seven different Circuit Courts of Appeal have determined that this requirement creates an implied affirmative defense for employers who are sued by the EEOC. In those circuits, employers who have been sued for discrimination may argue that the EEOC's failure to engage in good faith conciliation bars the lawsuit. However, this affirmative defense is not available to employers in the 7th Circuit.

7th Circuit Rejection of Conciliation Affirmative Defense
In rejecting the conciliation affirmative defense, the 7th Circuit held that the statutory language provided no basis for providing employers with an affirmative defense merely relying on the EEOC's alleged failure to conciliate. The court also noted that there was no meaningful standard to apply as the statute does not provide guidance on the methods or practices the EEOC must use in its conciliation process. Further, the 7th Circuit suggested that the affirmative defense undermines the statute's purpose, allowing employers to engage in discrimination, put up roadblocks to the conciliation process, and then use the failed conciliation to defend against the EEOC's lawsuit. Finally, the court held that its own precedent consistently rejected employers' efforts to change the focus from their own conduct to the EEOC's pre-suit actions. 

What This Means for Employers:
This case provides two big reminders. First, employers need to get their policies and practices prohibiting discrimination in order. An employer has a duty to take proactive and adequate corrective steps to prevent and eradicate discriminatory conduct in their workplace. This usually includes having adequate and up to date policies, training personnel, and actually complying with written policies in investigating and eradicating discriminatory behavior.

Second, when the day comes that notice from the EEOC arrives that a charge has been filed against the employer, an employer may no longer rely on the EEOC's alleged failures as a defense in any subsequent lawsuit (at least in the 7th Circuit). Employer's need to be proactive and engage in good faith resolution of EEOC charges when appropriate.

There are other affirmative defenses available to the employer unrelated to the EEOC's actions. But the best and least expensive option is for an employer to be proactive. Please contact us if you have any questions or need assistance in these matters. 

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