STATE OF INDIANA JOHNSON CIRCUIT & SUPERIOR COURTS

SS: MAGISTRATE DIVISION

COUNTY OF JOHNSON
CAUSE NO.

James Alan Bush Beacon Pointe Apartments

PLAINTIFF’S NAME FIRST DEFENDANT’S NAME

1250 Beacon Pointe Drive, Apt. D 1206 Beacon Pointe Drive

STREET ADDRESS STREET ADDRESS

Greenwood Indiana 46143 Greenwood Indiana 46143

CITY STATE ZIP CODE CITY STATE ZIP CODE

(317) 675-7982 Herman Kittle Properties

PHONE SECOND DEFENDANT’S NAME
EMAIL ADDRESS
jbush18@my.gcu.edu 500 East 96th Street, Suite #300
STREET ADDRESS
SERVICE BY:
Indianapolis Indiana 46240
X CERTIFIED MAIL CITY STATE ZIP CODE

SHERIFF OF COUNTY
(317) 846-3111
PRIVATE PROCESS PHONE

NOTICE OF CLAIM
To the above-named Defendants: You have been sued by the Plaintiff set forth above. The claim is

set for hearing on the day of , 2020, at AM/PM in the Magistrate

Court, Johnson County Courthouse, third floor, Franklin, 5 East Jefferson St., Franklin, Indiana

46131, (317) 348-4441, on the Contested Trial Calendar. A brief statement of the nature of the claim

against you is as follows:

Plaintiff alleges that Defendants breached an implied covenant to provide habitable

premises in violation of Indiana Code § 32-31-8-5 and § 32-31-8-6, which states,
in part, that a landlord must comply with all health and housing codes applicable to
the rental premises and otherwise maintain plumbing and sanitary systems in good
and safe working condition. Per these statutes, Plaintiff has a legal right to remedy.

The habitability defects include, but may not be limited to:

• Mold growth on carpet due to a defective toilet and/or plumbing or foundation,

the stench from which has permeated bedding, furniture, and clothing; and,
• Defective toilet (sewage backup, flooding, frequent clogging, intense gas/sewage
odor emanating from base)

In addition to the supporting evidence described herein, plaintiff states the

following in regard to the habitability of the apartment:

• That plaintiff did not cause any of the unsafe and unsanitary conditions in the
rental unit;
• That plaintiff never prevented the defendant from fixing these conditions;
• That plaintiff gave adequate and timely notice of these problems to the
defendant and to the Johnson County Department of Health; and,
• That plaintiff requested that the defendant make repairs on multiple occasions.

Moreover, plaintiff states the following in regard to the failure and/or refusal by
defendant in their obligation and duty to provide habitable premises:

• That defendant was advised by a Johnson County Department of Health

inspector to address the problems immediately;
• That defendant stated to the inspector that these problems would be
addressed;
• That defendant subsequently refused the request to address these problems
made by the plaintiff in contradiction to the agreement made with the inspector;
and,
• That defendant filed a suit for eviction against plaintiff the next day after the
agreement was made in retaliation for having exercised his lawful right to notify
the Johnson County Department of Health that defendant was not meeting
state-mandated habitability requirements for rental units, and for causing the
aforesaid department to issue a letter advising defendant to make immediate
repairs.

Plaintiff’s claim will be based on this notice and the statements of fact made
therein and on such evidence as may be presented at the hearing, which includes, but
may not be limited to:

• a letter from the Johnson County Department of Health, which identifies the
unsafe and unsanitary conditions of the rental unit, and which provides
instructions to the defendant for remedying these conditions, thereby creating a
rebuttal presumption that the defendant breached the implied warranty of
habitability;
• a witness, namely, Betsy Swearingen, Director, Public Health Preparedness
Coordinator, Johnson County Health Department, who will testify as to 1) the
unsanitary and unsafe conditions of the rental unit that is the subject of this
claim; 2) the well-documented history of the Defendant’s wrongful failure and
refusal to address similar conditions in other rental units; 3) the assurance made
to her by the Defendants that the unsafe and unsanitary conditions the witness
reported to them would be addressed; and, 4) the ongoing failure and refusal by
 the defendants to address the violations as discovered and reported by the
witness and the possible and actual ramifications to the Plaintiff thereby;
• photographs of mold growth on the carpet in the rental unit due to a suspected
crack in a leaking foundation; and,
• photographs of the vandalized riser room that provides plumbing to plaintiff’s
rental unit, which clearly increases the likelihood that there is both a cause and
remedy to these conditions.

Plaintiff therefore seeks judgment against you and hereby requests that the Court
order you to remedy the unsafe and unsanitary conditions identified by the Johnson
County Department of Health immediately.

James Alan Bush

Plaintiff Signature
Acknowledgement of Service of Summons by Certificate of Mailing. Plaintiff hereby
certifies that on the 31st day of March, 2020, at Greenwood, Indiana, plaintiff
mailed a copy of this summons and a copy of this Notice of Claim to the defendant by
confirmed delivery requesting a return receipt addressed to defendants at the
addresses furnished by plaintiff.

Jurisdiction and Venue. Pursuant to Indiana Rules of Court, S.C. Rule 12, proper
venue of any claim between landlord and tenant, including but not limited to a claim
for rent, possession of real estate, return of property, return of security deposit or
for damages, filed in a small claims court created pursuant to IC 33-34-1-2 shall
be in the township where the real estate is located, unless there is no small claims
court in that township; and, pursuant to and IC 333-34-3-1-3 (A, C) (3), which
states that venue is in the township (in a county of the small claims court) where
the greater percentage of individual defendants included in the complaint resides, or,
if there is not a greater percentage, the place where any individual named as a
defendant: (C) rents an apartment or real estate or where the principal office or
place of business of any defendant is located and that (c) Venue of any claim between
landlord and tenant must be in the township where the real estate is located.

Request for Contested Hearing. Pursuant to LR41 - SC08 - 004 (Hearing

Calendars), Plaintiff requests the court to grant that the first hearing be set on
this notice of claim for a contested hearing, at which time evidence may be
presented by both parties for adjudication on the issues presented therein.

Certification of Compliance with Administrative Rule 9(G). In compliance with LR41

- TR5 – 132 (Certification of Compliance Required), Plaintiff hereby certifies that
the foregoing document complies with the requirements of Trial Rule 5(G) with
regard to information excluded from the public record by Administrative Rule 9(G).
 READ THE FOLLOWING INSTRUCTIONS AND INFORMATION

1. You may appear either in person or with an attorney.

2. You should bring to the hearing any witnesses, documents, and any other evidence in your
possession or under your control concerning this claim.

3. You must bring three (3) copies of any exhibits you wish to present to the court.

4. At the trial, you will be asked to present your side of the events. The judge may ask
questions of you or the plaintiff.

5. If you do not wish to dispute the claim, you may appear for the purposes of allowing the
Court to establish the method by which the amount claimed by the plaintiff will be paid.

6. IF YOU FAIL TO APPEAR AT THE TIME AND DATE SET FOR THIS TRIAL, THE COURT
MAY ENTER A DEFAULT JUDGMENT AGAINST YOU.

7. You may request a jury trial; but, if you do, you must make the request within ten (10) days
of receipt of the Notice of Claim in compliance with l.C. 23-29-2-7. Compliance requires the
filing of an Affidavit stating that there are questions of fact requiring a jury trial, specifying
those questions of fact, and stating that the demand is made in good faith. The case will
then be tried according to formal rules of procedure and evidence and it would therefore be
advisable for you to contact an attorney. Once a jury trial request has been granted, it may
not be withdrawn without the consent of the other party or parties. Furthermore, you must
pay $70.00 to the Clerk within ten (10) days of the date the Court grants your request for
jury trial.

8. If a settlement of this claim is made out of court, the Plaintiff must submit the settlement in
writing to the Judge of this Court for his/her approval before the settlement can become a
Judgment against the Defendant.

9. Any request for a change of the court date, by either party, must be filed as a Motion for
Continuance. You must inform the opposing party of your intention of filing the Motion for
Continuance and find out if they have an objection. You be required to indicate this on the
motion. The motion must be filed at least two (2) business days before the hearing.

10. If you have questions about the procedure you must follow or any other matter related to
your case, you may ask the Court Staff. If you need legal advice, you must consult an
attorney, as neither the Judge nor the Court Staff can help in that respect.

11. A copy of the Johnson County Small Claims rules is available upon request.