                                                                             FILED
                                                                        Mar 22 2019, 8:44 am

                                                                             CLERK
                                                                         Indiana Supreme Court
                                                                            Court of Appeals
                                                                              and Tax Court




ATTORNEYS FOR APPELLANT                                   ATTORNEY FOR APPELLEE
Brad A. Council                                           Christopher J. McElwee
Slovin & Associates Co., LPA                              Monday McElwee Albright
Cincinnati, Ohio                                          Indianapolis, Indiana
Michael J. Feiwell
Bryan K. Redmond
Feiwell & Hannoy, PC
Indianapolis, Indiana



                                            IN THE
    COURT OF APPEALS OF INDIANA

Collins Asset Group, LLC,                                 March 22, 2019
Appellant-Plaintiff,                                      Court of Appeals Case No.
                                                          18A-CC-1160
        v.                                                Appeal from the Hamilton
                                                          Superior Court
Alkhemer Alialy,                                          The Honorable Steven R. Nation,
Appellee-Defendant.                                       Judge
                                                          The Honorable Darren J. Murphy,
                                                          Magistrate
                                                          Trial Court Cause No.
                                                          29D01-1704-CC-3957



Riley, Judge.


                                OPINION ON REHEARING



Court of Appeals of Indiana | Opinion on Rehearing 18A-CC-1160 | March 22, 2019                  Page 1 of 3
[1]   Appellant-Plaintiff, Collins Asset Group, LLC (CAG), filed a petition for

      rehearing, requesting us to reconsider our memorandum decision issued on

      December 6, 2018. In our decision, we affirmed the trial court’s dismissal,

      finding that CAG’s action was barred by the six-year statute of limitation

      pursuant to Ind. Code § 34-11-2-9. We grant CAG’s petition for the limited

      purpose of clarifying footnote 1 in our decision.


[2]   CAG requests this court to reconsider the part of its argument that we waived

      in footnote 1, in which we noted that:


               In an effort to circumvent the application of I.C. § 34-11-2-9,
               CAG asserts that I.C. § 26-1-3.1-118 governs the case at bar.
               However, as CAG failed to raise this issue before the trial court,
               it waived the argument for our review. See VanWinkle v. Nash,
               761 N.E.2d 856, 859 (Ind. Ct. App. 2002) (Failure to raise an
               issue before the trial court will result in waiver of that issue).


      In its petition for rehearing, CAG references case law noting that even though

      the argument was not brought before the trial court, “[t]he crucial factor . . . in

      determining whether [the plaintiff] may interject what appears to be a new issue

      into the appeal is whether [the defendant] had unequivocal notice of the

      existence of the issue and, therefore, had an opportunity to defend against it.”

      See CAG Pet. Reh’g p. 8 (quoting Mory v. Ransone, 4 N.E.3d 1133, 1136 (Ind.

      2014).




      Court of Appeals of Indiana | Opinion on Rehearing 18A-CC-1160 | March 22, 2019   Page 2 of 3
[3]   However, at the time we issued our opinion, a review of the record revealed

      that CAG’s counsel had asserted in his memorandum in opposition to Alialy’s

      motion to dismiss that “the statute of limitations to collect the entire debt does

      not begin to run immediately upon the debtor’s default, but when the creditor

      exercises the optional acceleration clause.” (Appellant’s App. Vol. II, p. 21).

      CAG’s counsel never specifically mentioned I.C. § 26-1-3.1-118, and only

      partially paraphrased it in his memorandum. He never raised the argument

      during the hearing.


[4]   These casual references to a partial argument without specific attribution to the

      statute cannot be considered sufficient notice of the issue such that it warranted

      this court’s analysis.


[5]   Our opinion is hereby affirmed in all other respects.


[6]   Vaidik, C. J. and Kirsch, J. concur




      Court of Appeals of Indiana | Opinion on Rehearing 18A-CC-1160 | March 22, 2019   Page 3 of 3
