East Point Business Park, LLC, Fieldview Properties, LLC, and Karen Rusin v. Private Real Estate Holdings, LLC ( 2015 )


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  • ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
    FIELDVIEW PROPERTIES, LLC                                 Megan L. Craig
    AND KAREN RUSIN                                           John R. Craig
    David J. Tipton                                           Craig, Craig & Maroc, LLC
    Densborn Blachly, LLP                                     Crown Point, Indiana
    Indianapolis, Indiana
    ATTORNEY FOR APPELLANT EAST
    POINT BUSINESS PARK, LLC
    Dec 31 2015, 9:28 am
    Geoffrey G. Giorgi
    Giorgi & Bebekoski, LLC
    Merillville, Indiana
    IN THE
    COURT OF APPEALS OF INDIANA
    East Point Business Park, LLC,                            December 31, 2015
    Fieldview Properties, LLC, and                            Court of Appeals Case No.
    Karen Rusin,                                              45A05-1412-MF-584
    Appellants-Defendants,                                    Appeal from the Lake Superior
    Court
    v.                                                The Honorable John M. Sedia,
    Judge
    Private Real Estate Holdings,                             Trial Court Cause No.
    LLC,                                                      45D01-1102-MF-40
    Appellee-Plaintiff.
    Mathias, Judge.
    Court of Appeals of Indiana | Opinion 45A05-1412-MF-584 | December 31, 2015             Page 1 of 33
    [1]   Appellants-Defendants East Point Business Park, LLC (“East Point”),
    Fieldview Properties, LLC, (“Fieldview”) and Karen Rusin (“Rusin”)
    (collectively “the Defendants”) challenge the Lake Superior Court’s grant of
    summary judgment in favor of Appellee-Plaintiff Private Real Estate Holdings,
    LLC (“PREH”), in PREH’s foreclosure action against the Defendants.
    [2]   We affirm.
    Facts and Procedural History
    [3]   East Point is a limited liability company formed for the purpose of acquiring a
    124-acre parcel of real estate (“the Property”) in Crown Point, Indiana, and
    developing a business park for lease and eventual sale. The members of East
    Point are Fieldview and another group called Investors of East Point, LLC
    (“IEP”). IEP owns a 70% interest in East Point and Fieldview a 30% interest.
    While Rusin is the sole owner of Fieldview, IEP is owned by: Michael Barrett
    (“Barrett), who owns a 50% interest; Sheridan Investors, LLC (“Sheridan”),
    which owns a 25% interest; and Lake Charles Investors, LLC (“Lake Charles”),
    which owns the remaining 25% interest. Sheridan is itself owned by Don and
    Pat Manhard, and Lake Charles by Pete and Lynn Manhard. Accordingly,
    Barrett owns a 35% interest in East Point, and Sheridan and Lake Charles each
    own a 17.5% interest.
    [4]   On May 1, 2006, East Point purchased the Property from Fieldview for a
    purchase price of $4.9 million. The purchase was financed by loans from
    Private-Bank (“the Bank”), an Illinois bank based in Chicago. East Point
    Court of Appeals of Indiana | Opinion 45A05-1412-MF-584 | December 31, 2015   Page 2 of 33
    borrowed $2.2 million, and Fieldview borrowed $2.7 million. The loans were
    secured by promissory notes and mortgages on the Property. East Point’s
    mortgage was listed as a primary mortgage, and Fieldview’s mortgage was
    listed as a secondary mortgage. In addition, Rusin, Barrett, and the Manhards
    all personally guaranteed the loan to East Point.
    [5]   During the development of the Property, East Point received three loan
    renewals from the Bank, each extending the maturity date of the East Point
    loan. The first renewal extended the maturity date to March 15, 2009; the
    second renewal extended the maturity date to March 15, 2010; and the third
    renewal extended the maturity date to September 15, 2010.1 This renewal
    process also involved two other loans involving the Manhards, and the Bank
    desired to keep the Manhards as clients.
    [6]   East Point’s loan had an “interest reserve” feature that allowed East Point to
    borrow from the loan commitment to pay the interest due on the loan, thereby
    increasing the balance of the loan.2 East Point did this to fund development
    1
    The last of these renewals occurred after the second-extended maturity date of March 15, 2010, but the
    Bank nevertheless considered the loan as not being in default.
    2
    The applicable provision of the loan agreement provides:
    2.3 Use of Loan Proceeds. Borrower represents and warrants to Bank that Borrower shall
    use the proceeds of the Loan made pursuant to this Agreement and the Loan Documents
    solely as follows:
    (a) To acquire the Property and pay real estate taxes and insurance premiums with respect
    thereto;
    (b) To provide general and administrative costs of the Project and for obtaining this Loan,
    which such Loan costs shall include, without limitation, bank fees, origination fees, title
    fees and attorneys’ fees; and
    Court of Appeals of Indiana | Opinion 45A05-1412-MF-584 | December 31, 2015                        Page 3 of 33
    costs and to pay Fieldview’s two yearly loan payments of $32,500. Although
    the East Point loan was not formally tied to other loans via cross-
    collateralization, the Bank viewed the East Point loan together with the loans to
    Barrett and the Manhards for purposes of determining the Bank’s aggregate
    credit exposure.
    [7]   The Bank funded East Point’s first draw request in 2009, and East Point used
    the money from this draw to make three $32,500 payments on the Fieldview
    loans. The Bank also funded two other draw requests, the last being a $33,000
    draw to pay the March 2010 Fieldview mortgage payment, which was funded
    on March 15, 2010, the maturity date of the East Point loan, which was later
    extended to September 15, 2010, as noted above.
    [8]   In July 2010, the Bank and East Point discussed the loan. East Point wanted the
    Bank to extend the maturity date once again. The Bank proposed that $500,000
    of debt from one of the other Manhard loans be transferred to the East Point
    loan, the reason being that the loan-to-value ratio of one of the Manhard loans
    was too high, whereas the loan-to-value ratio of the East Point loan was within
    the Bank’s underwriting criteria. One of East Point’s agents, Tom Sherman
    (c) To provide a source of payment of interest on the Loan. In this regard, Borrower shall
    establish an “interest reserve” in the amount of Two Hundred Thousand and no/100
    Dollars ($200,000.00) by reserving and segregating $200,000 of the Non- Revolving
    Facility for the sole purpose of the payment of interest, which interest reserve may be
    utilized, and drawn on, by Borrower to pay monthly interest due from Borrower to Bank
    pursuant to the Note.
    Appellants’ App. p. 336.
    Court of Appeals of Indiana | Opinion 45A05-1412-MF-584 | December 31, 2015                      Page 4 of 33
    (“Sherman”), told the Bank that shifting this debt was a problem because the
    East Point loan involved Barrett and Rusin in addition to the Manhards. The
    Bank responded that it had issues with a long-term loan renewal on the East
    Point loan because Barrett had an unrelated loan on property with an
    outstanding tax payment.
    [9]    On September 8, 2010, East Point submitted another draw request to the Bank
    for $32,500 to pay the Fieldview loan payment. Although the loan had not yet
    matured, and funds were available in the loan commitment, the Bank did not
    fund the draw request, nor did the Bank respond to the request or provide East
    Point with an explanation of the failure to fund the requested draw.
    [10]   On September 10, 2010, five days before the maturity date of the East Point
    loan, Sherman and Tom Manhard met with the Bank’s loan officers. The East
    Point offer was modified to include payment of Barrett’s outstanding property
    taxes. East Point’s proposal also included transferring $300,000 of debt to East
    Point with an eighteen-month extension of the maturity date with an option for
    an additional eighteen-month extension. It also proposed eliminating the
    interest reserve and draw feature, thereby requiring East Point to make its
    payments from funds other than the loan itself.
    [11]   East Point contends that the Bank agreed to this renewal, as evidenced by the
    Bank’s asset report, which states: “Pape and Ahern [the Bank’s agents] met
    with [the] Manhards on 09/10/10 and they have agreed to [the] plan above and
    Court of Appeals of Indiana | Opinion 45A05-1412-MF-584 | December 31, 2015   Page 5 of 33
    bank needs to formalize the proposal above.” Appellants’ App. p. 1350.
    However, the alleged renewal agreement was never reduced to writing.
    [12]   On November 29, 2010, the Bank made an internal report indicating that it was
    “scrapping” the proposed East Point loan renewal. On December 10, 2010, the
    Bank sent a demand letter to East Point and its guarantors, declaring that the
    loan was in default due to the maturation date having passed, and demanded
    payment of the balance of the loan within ten days. The Bank subsequently
    presented a pre-negotiation agreement to East Point and its guarantors, which
    contained a provision stating, “Borrower acknowledges and agrees that Lender
    is not in default under any of Lender’s obligations contained in the Loan
    Documents,” and “Borrower acknowledges and agrees that Lender has . . .
    performed all of Lender’s obligations and agreements . . . that all actions taken
    to date by Lender . . . have been reasonable . . . in good faith, and within
    lender’s rights under the loan documents and applicable law.” Appellants’ App.
    pp. 1216, 1218. East Point and its guarantors refused to sign this agreement and
    sent a revised version of the agreement to the Bank. The Bank never signed the
    revised agreement and filed suit against East Point and its guarantors on
    February 15, 2011.
    [13]   After filing suit, the Bank made a joint forbearance proposal to East Point and
    two of the other Manhard loans. The Bank’s proposal called for cross-defaults
    among the three loans and their guarantors, and called for Fieldview to assign
    its mortgage to the Bank as security for Rusin’s guarantee of the East Point
    loan. The borrowers rejected the Bank’s proposals.
    Court of Appeals of Indiana | Opinion 45A05-1412-MF-584 | December 31, 2015   Page 6 of 33
    [14]   The Bank subsequently settled with the Manhards and Barrett under
    agreements that provided that the Manhards and Barrett would pay $350,000 to
    settle their liability with the Bank as guarantors of the East Point loan. One
    provision of the settlement agreements provided that the Manhards and Barrett,
    or any entity they controlled:
    Shall not, directly or indirectly, provide any loans, capital
    contributions or financial assistance to East Point, Fieldview or
    IEP; contest, delay, hinder, interfere with or otherwise affect the
    prosecution of the Foreclosure Action; provide any assistance to
    East Point in contesting, delaying or hindering the Foreclosure
    Action; consent to, approve or acquiesce in any amendment to
    the Operating Agreement of East Point or IEP which is in any
    manner adverse to the Bank; and sell, assign, transfer, encumber
    or consent to any transfer of any interest in East Point or IEP.
    Appellants’ App. pp. 1223, 1362, 1371. After signing the settlement agreements,
    Barrett and the Manhards notified Rusin that they were resigning their
    management roles at East Point. On September 26, 2011, the Bank dismissed
    Barrett and the Manhards from the suit. The remaining defendants were East
    Point, Fieldview, and Rusin. Since Rusin was the sole owner of Fieldview, and
    Fieldview the only non-settling owner of East Point, the remaining defendant is
    effectively Rusin. Fieldview filed a counterclaim on May 18, 2011, alleging
    tortious interference with the contract and inducement of breach of contract,
    breach of contract, and abuse of process. Fieldview also sought to foreclose on
    its secondary mortgage on the Property.
    Court of Appeals of Indiana | Opinion 45A05-1412-MF-584 | December 31, 2015   Page 7 of 33
    [15]   On September 27, 2012, the Bank sold the East Point loan to PREH, who was
    substituted as the plaintiff. On July 20, 2013, PREH filed a motion for summary
    judgment. The trial court granted the Defendants several extensions of time to
    file a reply to PREH’s motion for summary judgment. The last of the trial
    court’s orders on the subject provided that “Defendants’ Response to the
    Motion for Summary Judgment shall be due three (3) days after the conclusion
    of the deposition of Private Bank and Trust, Co., unless otherwise agreed by the
    Parties or Ordered by the Court.” Appellants’ App. pp. 636-37. The
    Defendants’ counsel then filed a Notice to the Court of Agreed Briefing
    Schedule on Motion for Summary Judgment. 
    Id. at 641.
    In this notice, the
    Defendants stated that the parties had agreed that the Defendants’ answer brief
    to the motion for summary judgment would be due on August 22, 2014, and
    that PREH’s reply would be due on August 29, 2014.
    [16]   On August 22, 2014, the Defendants filed a joint brief responding to PREH’s
    motion for summary judgment. However, the brief was not accompanied by
    any affidavits or other designated evidence. Instead, the Defendants did not file
    their designated evidence until December 24, 2014. The Defendants also filed a
    motion to strike the affidavit of PREH’s principal Arshad Malik (“Malik”) as
    being contrary to his subsequent deposition testimony. PREH filed a reply brief
    on August 29, 2014, in accordance to the timeline set forth in the agreed
    briefing schedule. Accompanying PREH’s reply was a motion to strike the
    Defendants’ exhibits.
    Court of Appeals of Indiana | Opinion 45A05-1412-MF-584 | December 31, 2015   Page 8 of 33
    [17]   The trial court held a summary judgment hearing on September 3, 2014. At the
    conclusion of the hearing, the trial court took the matter under advisement and
    requested that the parties submit proposed findings and conclusions, which the
    parties subsequently did. On October 24, 2014, counsel for Fieldview and Rusin
    filed a Declaration of Technical Difficulty and Delay in filing Summary
    Judgment Motion Evidence. On November 20, 2014, the trial court granted
    PREH’s motion for summary judgment and entered a decree of foreclosure.
    The Defendants now appeal.
    Summary Judgment Standard of Review
    [18]   Our standard for reviewing a trial court’s order granting a motion for summary
    judgment is well settled:
    A trial court should grant a motion for summary judgment only
    when the evidence shows that there is no genuine issue as to any
    material fact and that the moving party is entitled to a judgment
    as a matter of law. The trial court’s grant of a motion for
    summary judgment comes to us cloaked with a presumption of
    validity.
An appellate court reviewing a trial court summary
    judgment ruling likewise construes all facts and reasonable
    inferences in favor of the non-moving party and determines
    whether the moving party has shown from the designated
    evidentiary matter that there is no genuine issue as to any
    material fact and that it is entitled to judgment as a matter of law.
    But a de novo standard of review applies where the dispute is one
    of law rather than fact. We examine only those materials
    designated to the trial court on the motion for summary
    judgment. Our standard of review is not altered by the fact that
    the parties filed cross motions for summary judgment. Here, the
    trial court made findings of fact and conclusions of law in
    support of its entry of summary judgment. Although we are not
    Court of Appeals of Indiana | Opinion 45A05-1412-MF-584 | December 31, 2015   Page 9 of 33
    bound by the trial court’s findings and conclusions, they aid our
    review by providing reasons for the trial court’s decision. We
    must affirm the trial court’s entry of summary judgment if it can
    be sustained on any theory or basis in the record.
    Altevogt v. Brand, 
    963 N.E.2d 1146
    , 1150 (Ind. Ct. App. 2012) (citations and
    internal quotations omitted).
    I. Did the Defendants Timely File Designated Evidence?
    [19]   Before addressing the merits of the Defendants’ arguments, we turn first to
    PREH’s claim that the trial court should not have considered any of the
    Defendants’ designated evidence because the evidence was not timely filed.
    PREH claims that the Defendants’ response to its motion for summary
    judgment was due no later than May 30, 2014, which was the date listed in the
    trial court’s order entered on April 25, 2014, in which the court accepted the
    parties’ agreed motion to alter the due date of the Defendants’ response to
    summary judgment. PREH argues that this was the last extension of time
    requested by the Defendants.
    [20]   Our review of the record, however, reveals that the trial court entered several
    subsequent orders extending the date on which the Defendants’ response to
    PREH’s motion for summary judgment was due. Specifically, after PREH
    moved to continue the summary judgment hearing, on May 21, 2014, the
    Defendants filed an agreed motion requesting that the Defendants’ summary
    judgment response(s) be due no later than June 30, 2014. The trial court granted
    Court of Appeals of Indiana | Opinion 45A05-1412-MF-584 | December 31, 2015   Page 10 of 33
    this motion two days later, giving the Defendants until June 30, 2014, to file
    their materials in response to PREH’s summary judgment motion.
    [21]   Then again, on June 26, 2014, the Defendants filed another agreed motion,
    with the consent of opposing counsel, requesting that the trial court “alter the
    summary judgment motion response date to July 17, 2014[.]” Appellants’ App.
    p. 627. The trial court granted this motion the following day, ordering that:
    “The time for Defendants' response to the summary judgment motion filed by
    Private Real Estate Holdings LLC (“PREH’) is changed to July 17,2014[.]” 
    Id. at 629-30.
    [22]   Then, on July 16, 2014, the Defendants filed yet another agreed motion seeking
    to extend the deadline for filing their response to PREH’s motion for summary
    judgment, this time to July 23, 2014. The trial court granted this motion to
    following day, ordering: “the time for Defendants’ response to the summary
    judgment motion filed by [PREH] is changed to July 23, 2014[.]” 
    Id. at 634.
    [23]   That same day, July 17, 2014, however, the trial court issued an Agreed Order
    on Emergency Motion for Trial Rule 26(C)(2) Protective Order, which
    provided in relevant part:
    IT IS ORDERED THAT the 30(b)(6) deposition of Third Party
    Defendant, PrivateBank and Trust Co. shall not last longer than
    seven (7) hours on any one day. Should the Defendant,
    Fieldview Properties, LLC and Karen Rusin need additional time
    to take the deposition of PrivateBank and Trust Co., then the
    parties will agree to continue the deposition at the next earliest
    date available to all parties. Furthermore, the parties agree that
    Court of Appeals of Indiana | Opinion 45A05-1412-MF-584 | December 31, 2015   Page 11 of 33
    should the deposition of PrivateBank and Trust Co., need to
    proceed onto a second day, then Defendants Response to the
    Motion for Summary Judgment shall be due three (3) days after
    the conclusion of the deposition of PrivateBank and Trust Co.,
    unless otherwise agreed by the Parties or Ordered by the Court.
    
    Id. at 636-37
    (emphasis added).
    [24]   On August 18, 2014, the Defendants filed a Notice to the Court of Agreed
    Briefing Schedule on Motion for Summary Judgment, which stated:
    The parties, by and through the undersigned, David J. Tipton,
    counsel for Defendants Fieldview Properties, LLC and Karen
    Rusin, hereby notify the Court that counsel for all parties have
    agreed on a briefing schedule concerning the pending summary
    judgment motion filed by the substitute plaintiff [PREH] now
    scheduled for hearing on September 3, 2014 at 1:00 p.m., as
    follows:
    -Defendants’ answer brief due date: Friday, August 22, 2014;
    -[PREH] reply brief due date: Friday, August 29, 2014.
    The parties have engaged in at least seven (7) different days of
    depositions over the last two (2) months in connection with the
    summary judgment motion and this case. Unless the Court
    disagrees and orders a different briefing schedule, the parties
    respectfully request that the Court accept this agreed briefing
    schedule as if ordered by the Court.
    Appellants’ App. pp. 641-42. Based upon our review of the record, however, it
    appears that the trial court never entered an order formally accepting this
    briefing schedule. Still, the trial court’s previous order of July 17 allowed the
    parties to alter the deadline by agreement of the parties or as ordered by the
    court.
    Court of Appeals of Indiana | Opinion 45A05-1412-MF-584 | December 31, 2015   Page 12 of 33
    [25]   Accordingly, the Defendants filed their brief in response to PREH’s motion for
    summary judgment on August 22, 2014, as set forth in the agreed motion. As
    noted above, however, they did not file their designated evidence until August
    24, 2014, two days past the deadline. Thus, even granting the Defendants the
    grace of an extended August 22 deadline, they did not file their designated
    evidence in time.
    [26]   At the September 3, 2014, summary judgment hearing, counsel for the
    Defendants explained the delay by claiming that he had experienced technical
    difficulties with the Lake County e-filing system that prevented him from filing
    the designated materials with the court on August 22. PREH responded by
    informing the court that, if the Defendants’ counsel did have technical difficulty
    with the e-filing system, then he was required to have filed a notice of manual
    filing or declaration pursuant to local court rules. The rule at issue provides in
    relevant part:
    E. Conventional Filing of Documents. A conventionally filed
    document is one presented to the clerk or to a party in paper or
    other non-electronic, tangible format. Unless specifically
    authorized by the court, only the following documents may be
    filed conventionally and not electronically:
    (1) Exhibits and Other Documents That Cannot Be Converted to a
    Legible Electronic Form, Such as Videotapes, X-Rays, and
    Similar Materials. Whenever possible, the filer is
    responsible for converting filings to an electronic form. If
    electronic filing is not possible, the filer shall
    electronically file a Notice of Manual Filing as a
    notation to be placed on the CCS that filings are being
    held in the clerk’s office in paper. The filer shall serve
    Court of Appeals of Indiana | Opinion 45A05-1412-MF-584 | December 31, 2015    Page 13 of 33
    the Notice of Manual Filing and the documents in
    accordance with the Indiana Rules of Civil Procedure
    and applicable Local Rule(s); and shall file a certificate
    of service. A Notice of Manual Filing form is appended
    hereto as Form 2; a Certificate of Service form is appended
    hereto as Form 3.
    ***
    J. Technical Failures. If a registered user is unable to file a
    document in a timely manner due to technical difficulties in
    the LCOD [Lake County Online Docket], the registered user
    must file a document with the court as soon as possible
    notifying the court of the inability to file the document. A
    sample document titled Declaration that Party was Unable to
    File in a Timely Manner Due to Technical Difficulties is
    attached hereto as Form 4. Delayed filings shall be rejected
    unless accompanied by the declaration attesting to the
    filer's failed attempts to file electronically at least two
    times, separated by at least one hour, after noon on each
    day of delay due to such technical failure.
    Lake County Rule of Civil Procedure 17(E)(1), (J) (bold emphasis added).
    [27]   Still, it was not until October 24, 2014, over two months after the belated e-
    filing, that counsel for Fieldview and Rusin filed a Declaration of Technical
    Difficulty and Delay in filing Summary Judgment Motion Evidence. In this
    motion, counsel asserted:
    On the due date for the opposing papers to the summary
    judgment motion filed by PRE[H], August 22, 2014, in the
    evening, I filed the joint brief of Defendants opposing the
    summary judgment motion, Defendants’ designation of Evidence
    and the Affidavit of Karen Rusin. At approximately 10:00 p.m.
    Eastern Time, I began attempting to upload the Designated
    Court of Appeals of Indiana | Opinion 45A05-1412-MF-584 | December 31, 2015   Page 14 of 33
    Evidence consisting of deposition transcripts and exhibits. The
    format was pdf, but it was in a bundled format (as received from
    the court reporter). After numerous tries to upload these pdf
    documents, ending at approximately 11:00 p.m. Eastern Time, it
    was apparent to me that uploading the Designated Evidence in
    their current format was not working and would not work. I
    came back over the weekend and unbundled the transcripts and
    exhibits and was successful in uploading all of the Designated
    Evidence. All of these events occurred outside of regular business
    hours and it was not possible to substitute the filing manually or
    ask for help from the clerk’s office.
    I informed the Court and opposing counsel of these events in
    open Court at the September 3, 2014 hearing on the summary
    judgment motion. I do not believe that any party was prejudiced
    because the attorney for PRE[H] was already in receipt of the
    Designated Evidence (they had copies of all deposition
    transcripts and exhibits before August 22, 2014), and all citations
    to the Designated Evidence in the brief was accessible from those
    materials by the attorneys for PRE[H] in preparation of their
    reply brief. The occasioned delay was a portion of the weekend
    only.
    Appellants’ App. p. 1492.
    [28]   We have no reason to doubt that the Defendants’ counsel experienced technical
    difficulty with the e-filing system, and we sympathize with counsel in such a
    situation. Indeed, as e-filing is implemented throughout Indiana, we expect that
    in some rare instances, technical issues might prevent or delay an electronic
    filing. Indeed, Trial Rule 86 contemplates and provides for such occurrences,
    with the expectation that an appropriate and timely record will be made of the
    difficulties encountered, so that courts can consider and rule on the effect of
    Court of Appeals of Indiana | Opinion 45A05-1412-MF-584 | December 31, 2015   Page 15 of 33
    such difficulties. In similar fashion, we now look to the clear language of the
    Local Rule 16, which clearly anticipates such situations and sets forth the steps
    to follow in the case of such technical difficulties.
    [29]   Pursuant to the applicable rule, counsel was required to file with the trial court
    as soon as possible a document notifying the court of his inability to electronically
    file the document. Here, counsel simply informed the trial court of the
    difficulties at the summary judgment hearing and did not file any such
    notification with the court until sixty-one days after the date the designated
    materials were due. We cannot say this constitutes “as soon as possible,” nor
    did counsel’s notification to the court indicate that he unsuccessfully attempted
    to file electronically at least two times, separated by at least one hour, after
    noon on each day of the delay, as required by the rule. In absence of
    compliance with the provisions of this rule, the trial court was required to reject
    the delayed filings. See Lake County Rule of Civil Proc. 16(J).
    [30]   Because the Defendants’ designated materials were untimely filed, the trial
    court could not consider them. Indiana Trial Rule 56(C) provides that a party
    opposing a summary judgment motion has thirty days after service of the
    motion to serve a response and any opposing affidavits. “For cause found,” a
    trial court is authorized to “alter any time limit set forth in this rule upon
    motion made within the applicable time limit.” Ind. Trial Rule 56(1). Our
    supreme court has described this as a “bright line rule” and explained:
    [W]here a nonmoving party fails to respond within thirty days by
    either (1) filing affidavits showing issues of material fact, (2) filing
    Court of Appeals of Indiana | Opinion 45A05-1412-MF-584 | December 31, 2015   Page 16 of 33
    his own affidavit under Rule 56(F) indicating why the facts
    necessary to justify his opposition are unavailable, or (3)
    requesting an extension of time in which to file his response
    under 56(1), the trial court lacks discretion to permit the party to
    thereafter file a response. In other words, a trial court may exercise
    discretion and alter time limits under 56(1) only if the nonmoving party
    has responded or sought an extension of time within thirty days from the
    date the moving party filed for summary judgment.
    HomEq Servicing Corp. v. Baker, 
    883 N.E.2d 95
    , 98 (Ind. 2008) (emphasis added);
    accord Handy v. P.C. Bldg. Materials, Inc., 
    22 N.E.3d 603
    , 606-07 (Ind. Ct. App.
    2014), trans. denied.
    [31]   This rule applies to materials filed belatedly after an extension of time has
    already been granted by the trial court. That is, “not only must a nonmovant
    file a response or request for a continuance during the initial thirty-day period,
    but the nonmovant ‘must also file a response, file an affidavit pursuant to T.R.
    56(F), or show cause for alteration of time pursuant to T.R. 56(I) during any
    additional period granted by the trial court.’” Miller v. Yedlowski, 
    916 N.E.2d 246
    , 251 (Ind. Ct. App. 2009) (citing Thayer v. Gohil, 
    740 N.E.2d 1266
    , 1269
    (Ind. Ct. App. 2001)). The reason for this rule was explained in Miller:
    The rationale behind the rule requiring a nonmoving party to
    respond to a motion for summary judgment—by either filing a
    response, requesting a continuance under Trial Rule 56(I), or
    filing an affidavit under Trial Rule 56(F)—within thirty days does
    not vanish because the trial court has happened to grant one
    extension of time. That is, the nonmoving party should not be
    rewarded and relieved from the restriction of responding within the time
    limit set by the court because he or she has had the good fortune of one
    enlargement of time. Therefore, any response, including a
    Court of Appeals of Indiana | Opinion 45A05-1412-MF-584 | December 31, 2015    Page 17 of 33
    subsequent motion for enlargement of time, must be made within
    the additional period granted by the trial court. The rationale of
    HomEq and the cases leading up to it are not restricted to the
    initial thirty-day period following the filing of a motion for
    summary judgment.
    
    Miller, 916 N.E.2d at 251-52
    (emphasis added).
    [32]   Accordingly, once the already-extended deadline had passed, the trial court had
    no discretion to further extend it, and the designated materials submitted by the
    Defendants should not have been considered. Likewise, we will not consider
    these belatedly filed materials on appeal.
    II. Should the Trial Court Have Stricken Certain Affidavits?
    [33]   The Defendants first argue that the trial court should have stricken the affidavit
    of PREH’s principal Malik. They claim that the affidavit conflicts with Malik’s
    subsequent deposition testimony. To be sure, Indiana courts have long held that
    a party who has been examined at length during a deposition cannot create a
    genuine issue of material fact simply by submitting an affidavit contradicting his
    own prior testimony. Brown v. Buchmeier, 
    994 N.E.2d 291
    , 296 (Ind. Ct. App.
    2013) (citing Gaboury v. Ireland Rd. Grace Brethren, Inc., 
    446 N.E.2d 1310
    , 1314
    (Ind. 1983)). Otherwise, the utility of summary judgment would be greatly
    diminished as a procedure for screening out sham issues of fact. 
    Id. [34] Here,
    Malik submitted an affidavit in which he averred that he kept the books
    and records of PREH and that these books and records were kept in the
    ordinary course of PREH’s business. Appellants’ App. p. 505. In his subsequent
    Court of Appeals of Indiana | Opinion 45A05-1412-MF-584 | December 31, 2015   Page 18 of 33
    deposition testimony, however, Malik testified that he had never actually seen
    the documents related to PREH and East Point, that he did not look at the
    documents before signing his affidavit, and that his attorney actually kept the
    loan records. 
    Id. at 651-54.
    Accordingly, Malik did not submit an affidavit
    contrary to his prior deposition testimony. Instead, his subsequent deposition
    testimony was inconsistent with his earlier affidavit. This does not suggest that
    Malik was attempting to manufacture a sham issue of fact. Instead, it appears
    that the Defendants’ counsel was simply able to effectively examine Malik at
    the deposition and impeach his affidavit. Under these circumstances, the trial
    court did not abuse its discretion by denying the motion to strike Malik’s
    affidavit.
    [35]   The Defendants also complain that the affidavit submitted by Bank manager
    Christopher Leff (“Leff”) contained improper conclusory statements that should
    have been disregarded. Specifically, they refer to Paragraph 16 of Leff’s
    affidavit, in which he avers that “[The Bank] (as predecessor in interest) has
    performed all conditions precedent to Plaintiff’s rights to enforce the
    agreements with East Point under the Loan Documents.” Appellants’ App. p.
    501.
    [36]   As explained in Gast v. Hall:
    Indiana Trial Rule 56(E) provides, in pertinent part: “Supporting
    and opposing affidavits shall be made on personal knowledge,
    shall set forth such facts as would be admissible in evidence, and
    shall show affirmatively that the affiant is competent to testify to
    the matters stated therein.” Discussing that rule, our Supreme
    Court of Appeals of Indiana | Opinion 45A05-1412-MF-584 | December 31, 2015   Page 19 of 33
    Court has stated, “Conclusory statements not admissible at trial
    should be disregarded when determining whether to grant or
    deny a summary judgment motion.”
    
    858 N.E.2d 154
    , 162 (Ind. Ct. App. 2006) (quoting Paramo v. Edwards, 
    563 N.E.2d 595
    , 600 (Ind. 1990)).
    [37]   The statement in Leff’s affidavit that the Bank had performed all conditions
    precedent to enforce the note and mortgage was, by itself, conclusory.
    However, other evidence designated by PREH, including the loan
    documentation itself, established that the Bank met the conditions for it to
    enforce the note and mortgage: an event of default occurred when the loan was
    not renewed, a demand letter was sent, ten days transpired, and the loan was
    not repaid. The Defendants refer us to nothing else that would be required for
    the Bank or PREH, as the Bank’s successor in interest, to enforce the note and
    mortgage.3 Thus, even without the conclusory language of the second Malik
    affidavit, there was sufficient designated evidence to establish that the Bank and
    PREH had met the conditions precedent to enforcing the note and mortgage.
    [38]   In short, we find nothing improper in the trial court’s failure to strike Malik’s
    affidavit or in its consideration of the evidence designated by PREH.
    3
    The Defendants also briefly claim, in a two-sentence argument, that the second affidavit from Malik, in
    which he averred that PREH had incurred $125,000 in attorney fees, is insufficient to support an award of
    attorney fees, citing U. S. Aircraft Fin., Inc. v. Jankovich, 
    407 N.E.2d 287
    , 295 (Ind. Ct. App. 1980). However,
    this argument is not further developed, and we therefore consider it waived. See Ind. Appellate Rule
    48(a)(8)(A); Loomis v. Ameritech Corp., 
    764 N.E.2d 658
    , 668 (Ind. Ct. App. 2002).
    Court of Appeals of Indiana | Opinion 45A05-1412-MF-584 | December 31, 2015                         Page 20 of 33
    III. Did the Parties Agree to a Fourth Loan Renewal?
    [39]   The core of the Defendants’ argument is that evidence indicated the Defendants
    and the Bank came to an oral agreement to renew the loan for a fourth time but
    that the Bank subsequently reneged on its agreement. Thus, the Defendants
    argue, the Bank is a breaching party who may not now seek to enforce the loan
    agreements.
    [40]   The Defendants contend that on September 10, 2015—five days before the loan
    matured—East Point and the Bank agreed to a three-year renewal and were
    simply waiting for the Bank to prepare the renewal documentation. The
    Defendants admit that, at first blush, this argument appears to be doomed by
    operation of the statute of frauds found in the Indiana Lender Liability Act
    (“ILLA”). See Ind. Code § 26-2-9-4. The Defendants claim, however, that their
    counterclaim does not fall within the purview of this section. Specifically, the
    Defendants argue that, pursuant to the version of the ILLA statute of frauds in
    effect at the time the loan agreement was executed did not apply to
    counterclaims by debtors. See Sees v. Bank One, Ind., N.A., 
    839 N.E.2d 154
    , 159
    (Ind. 2005).
    [41]   PREH argues that the Defendants’ counterclaim is governed instead by Illinois
    law. PREH notes that loan agreement contained a choice-of-law provision
    providing:
    This Agreement and the Loan Documents shall be governed and
    controlled by the laws of the State of Illinois as to interpretation,
    enforcement, validity, construction, effect, choice of law and in
    all other respects, including, but not limited to, the legality of the
    Court of Appeals of Indiana | Opinion 45A05-1412-MF-584 | December 31, 2015   Page 21 of 33
    interest rate and other charges, but excluding priority and
    perfection of any liens granted to Bank on the Property, and the
    foreclosure thereof, all of which shall be governed and controlled
    by the laws of the relevant jurisdiction.
    Appellants’ App. p. 355.
    [42]   The Defendants admit that, under Illinois law, their allegation of an oral
    agreement to extend the loan maturity date would fail, as Illinois courts have
    long interpreted the applicable Illinois statute of frauds to bar defenses as well
    as counterclaims. See Whirlpool Fin. Corp. v. Sevaux, 
    96 F.3d 216
    , 225 (7th Cir.
    1996) (noting that Illinois courts have interpreted the statute of frauds contained
    in the Illinois Credit Agreement Act to proscribe all actions which depend for
    their existence upon an oral credit agreement) (citing Klem v. First Nat’l Bank of
    Chicago, 
    655 N.E.2d 1211
    , 1213 (Ill. App. Ct. 1995)).
    [43]   The Defendants argue, however, that Illinois law should not apply, insisting
    that the statute of frauds is merely procedural in nature. The Defendants note:
    A contract provision that an agreement is to be governed by the
    law of another state operates only as to the substantive law of
    that state, and the procedural law of the forum state applies to
    procedural issues. Laws that merely prescribe the manner in
    which individual rights and responsibilities may be exercised and
    enforced in a court are procedural.
    Simon Prop. Grp., L.P. v. Acton Enterprises, Inc., 
    827 N.E.2d 1235
    , 1237 (Ind. Ct.
    App. 2005) (citing Ind. CPA Society v. GoMembers, Inc., 
    777 N.E.2d 747
    , 749-50
    (Ind. Ct. App. 2002)).
    Court of Appeals of Indiana | Opinion 45A05-1412-MF-584 | December 31, 2015   Page 22 of 33
    [44]   The question, therefore, becomes whether the statute of frauds is a substantive
    or procedural law. If it is procedural, then Indiana law applies, and their claim
    of an oral loan renewal might survive. If it is substantive, then Illinois law
    applies, and their claim of an oral renewal is barred.
    [45]   Jurisdictions appear to be split on this issue. See Comment note—Statute of
    Frauds and Conflict of Laws, 
    47 A.L.R. 3d 137
    §2[a]. However, Indiana courts
    have long held that a statute of frauds is a substantive law. See 
    id. at 5[b]
    (citing
    Henning v. Hill, 
    80 Ind. App. 363
    , 
    141 N.E. 66
    (1923); Cochran v. Ward, 5 Ind.
    App. 89, 
    29 N.E. 795
    (1892)). Indeed, in Cochran, the court held that the Illinois
    statute of frauds “became part of the agreement in suit, and the provision [in the
    statute of frauds] that no action should be maintained for damages for the
    breach of the agreement became as much a part of its character and substance
    as if specifically incorporated therein.” 
    Cochran, 29 N.E. at 797
    .
    [46]   We agree with the court in Cochran and hold that the Illinois statute of frauds is
    substantive and not merely procedural. Because it is substantive, the Illinois
    statute controls.4 Under Illinois law, the Defendants’ defense of an oral
    4
    Even if Indiana law applied, it is not clear that the Defendants’ claim of an oral agreement would be viable.
    As amended effective July 1, 2006, the ILLA statue of frauds bars claims based on verbal agreements
    regardless of whether they are brought by a creditor or a debtor. Thus, the current ILLA statute of frauds
    would bar the Defendants’ claim that the Bank made an oral agreement in September 2015 to further extend
    the loan maturity date.
    Still, the Defendants contend that, because the original promissory note was executed on May 1, 2006, we
    should apply the then-existing version of the ILLA statute of frauds, which was held not to apply to a debtor’s
    assertion of an affirmative defense based on an alleged oral representation by the creditor. See 
    Sees, 839 N.E.2d at 159
    . The only authority cited by the Defendants in support of their position is Paulson v. Centier
    Bank, 
    704 N.E.2d 482
    (Ind. Ct. App. 1998). However, in that case, the court held that a creditor’s
    counterclaim based on an alleged oral agreement was not barred by the ILLA statute of frauds because the
    Court of Appeals of Indiana | Opinion 45A05-1412-MF-584 | December 31, 2015                       Page 23 of 33
    agreement to renew the loan is barred. Accordingly, the Defendants’ claim that
    the loan maturity date was extended by an oral agreement fails.5
    IV. Did the Bank Breach the Contract?
    [47]   The Defendants also claim that it was the Bank who breached the loan
    agreement first by failing to honor the verbal loan renewal agreement. Because
    the Defendants’ claim of a verbal renewal of the loan agreement is barred by the
    applicable statute of frauds, their claim that the Bank was the initially breaching
    party for failing to honor the terms of the alleged renewal necessarily fails.
    [48]   Still, the Defendants argue that the Bank breached the terms of the loan
    agreement when it failed to fund a draw requested by East Point. Specifically,
    the Defendants claim that, two days before the stated maturity date, the Bank
    failed to honor East Point’s fourth draw request in the amount of $32,500,
    which was required to make a mortgage payment to Fieldview. Section 2.3(a)
    of the loan agreement provides that East Point was allowed to use loan
    proceeds to “acquire the Property.” Appellants’ App. p. 336; see also note 2,
    note was dated prior to the effective date of the ILLA. See 
    id. at 491;
    see also Ind. Code § 26-2-9-0.2 (providing
    that the ILLA “does not apply to credit agreements entered into before July 1, 1989.”).
    In contrast, here, the promissory note was executed on May 1, 2006, well after the effective date of the ILLA.
    Also, the alleged oral agreement was entered into well after the effective date of the current version of the
    ILLA statute of frauds barring a defense based on an alleged oral agreement.
    5
    The Defendants also briefly claim, without citation to authority, that their claim of a verbal extension of
    the maturity date, as a defense to the foreclosure action, should be governed by Indiana law because the
    foreclosure is governed by Indiana law. This claim, however, is not fully developed, and we therefore will
    not consider it on appeal. See Ind. Appellate Rule 48(a)(8)(A); Loomis v. Ameritech Corp., 
    764 N.E.2d 658
    , 668
    (Ind. Ct. App. 2002).
    Court of Appeals of Indiana | Opinion 45A05-1412-MF-584 | December 31, 2015                         Page 24 
    of 33 supra
    . The Bank honored previous draw requests, and acknowledged that the
    draws were not improper. Thus, the Defendants claim, the Bank breached the
    loan agreement by failing to honor and fund the fourth draw request. We
    disagree.
    [49]   Section 2.3(a) of the loan agreement permitted East Point to “acquire” the
    Property with the loan proceeds. 
    Id. However, by
    the time of the fourth draw
    request, East Point had already acquired the Property. Although the other draw
    requests were used to pay the mortgage payments on the second mortgage held
    by Fieldview, the Defendants refer us to nothing in the loan agreement that
    would require the Bank to fund the draw requests so that East Point could make
    a payment on the Fieldview mortgage. Instead, the plain language of the loan
    agreement seems to contemplate the interest reserve to be used only to pay the
    interest on the loan. 
    Id. [50] We
    therefore cannot say that the Defendants have demonstrated the existence
    of a genuine issue of material fact with regard to whether the Bank breached the
    loan agreement.6
    6
    To the extent that the Defendants claim that the Bank’s prior approval of the draw requests established a
    course of dealings that was violated when the Bank refused to fund the fourth draw request, such claim is
    waived for failure to make fully-developed, cogent argument. See App. Rule 48(a)(8)(A); 
    Loomis, 764 N.E.2d at 668
    . Furthermore, we agree with PREH that this argument would contravene the Subordination
    Agreement signed by the parties. Paragraph 18 of the Subordination Agreement provides that “no course of
    dealings between the parties, no usage of trade and no parole [sic] or extrinsic evidence of any nature shall be
    used to supplement or modify any of the terms of provisions of this Agreement.” Appellants’ App. p. 518.
    Court of Appeals of Indiana | Opinion 45A05-1412-MF-584 | December 31, 2015                       Page 25 of 33
    V. Is the Foreclosure Action Barred by the Bank’s Unclean Hands?
    [51]   Lastly, the Defendants claim that PREH, as the successor in interest to the
    Bank, should not be able to foreclose on the mortgage because of the Bank’s
    allegedly unclean hands. Foreclosure actions are equitable in nature, and trial
    courts have full discretion to fashion equitable remedies that are complete and
    fair to all parties involved. City Sav. Bank v. Eby Const., LLC, 
    954 N.E.2d 459
    ,
    464 (Ind. Ct. App. 2011). The equitable doctrine of “unclean hands” provides
    that the party who seeks equitable relief must be free of wrongdoing in the
    matter before the court. 
    Id. at 465.
    [52]   The Defendants argue that the Bank was not free of wrongdoing in its dealings
    with East Point. The Defendants point to the Bank’s behavior when negotiating
    with East Point to renew the loan, specifically: the Bank’s desire to group the
    East Point loan with the other Manhard loans; the Bank’s proposal to transfer
    $500,000 of the debt from one of the Manhard loans to the East Point loan; and
    the Bank’s request that Barrett, one of the guarantors of the East Point loan, pay
    delinquent real estate taxes on another parcel he owned.
    [53]   We fail to see how any of these actions constitute unclean hands. East Point
    was attempting to negotiate a long-term loan renewal with the Bank. In
    exchange, the Bank was attempting to obtain certain concessions from East
    Point and its guarantors. We do not view this as evidence of unclean hands; it
    was simply part of the negotiation process in the renewal of a multi-million-
    dollar loan among sophisticated parties.
    Court of Appeals of Indiana | Opinion 45A05-1412-MF-584 | December 31, 2015   Page 26 of 33
    [54]   The same is true of the Bank’s decision to “scrap” the loan renewal process and
    seek its legal remedies under the loan agreement. The Defendants refer us to
    nothing that would suggest that the Bank was obligated to renew the loan. To
    the extent that the Defendants claim that the Bank came to a verbal agreement
    to renew the loan only to later renege on the agreement, we have rejected this
    argument above. We will not say that the Bank acted improperly by not
    renewing a loan it was under no obligation to renew.
    [55]   We also cannot agree with the Defendants that the Bank’s settlement with the
    Manhards and Barrett constitutes abuse of process. An action for abuse of
    process requires a finding of misuse or misapplication of process for an end
    other than that which it was designed to accomplish. Watson v. Auto Advisors,
    Inc., 
    822 N.E.2d 1017
    , 1029 (Ind. Ct. App. 2005) (citing Nat’l City Bank, Ind. v.
    Shortridge, 
    689 N.E.2d 1248
    , 1252 (Ind. 1997)). An action for abuse of process
    has two elements: (1) ulterior purpose or motives, and (2) a willful act in the use
    of process not proper in the regular conduct of the proceeding. 
    Id. (citing Town
    of Orland v. Nat’l Fire & Cas. Co., 
    726 N.E.2d 364
    , 371 (Ind. Ct. App. 2000)).
    However, if a party’s acts are procedurally and substantively proper under the
    circumstances, then that party’s intent is irrelevant. 
    Id. (citing Reichhart
    v. City of
    New Haven, 
    674 N.E.2d 27
    , 31 (Ind. Ct. App. 1996)). A party may not be held
    liable for abuse of process if the legal process has been used to accomplish an
    outcome which the process was designed to accomplish. Id.; see also Cent. Nat'l
    Bank of Greencastle v. Shoup, 
    501 N.E.2d 1090
    , 1095 (Ind. Ct. App. 1986) (“[a]
    regular and legitimate use of process, though with an ulterior motive or bad
    Court of Appeals of Indiana | Opinion 45A05-1412-MF-584 | December 31, 2015   Page 27 of 33
    intention is not a malicious abuse of process”) (quoting Brown v. Robertson, 
    120 Ind. App. 434
    , 
    92 N.E.2d 856
    , 858 (Ind. Ct. App. 1950)).
    [56]   Here, the Bank filed suit to collect on a loan that had matured and on which
    East Point had defaulted. The Defendants make no argument that East Point
    does not owe the money it borrowed. The Bank simply sought to foreclose on
    the mortgage to secure repayment of the loan balance. This was a legitimate use
    of process. Accordingly, any ulterior motive is irrelevant. See 
    id. (citing Reichhart,
    674 N.E.2d at 31).7
    [57]   We similarly reject the Defendants’ claims that the Bank intentionally induced
    the Manhards and Barrett to withhold documents and information from the
    Defendants through coercion. First, the only act referenced is the Bank’s take-it-
    or-leave-it settlement offer, which we consider as an end to negotiations, rather
    than “coercion.” Moreover, the Defendants do not precisely explain which
    documents and information the Bank induced the Manhards and Barrett to
    withhold, but this appears to be a reference to the portion of the settlement
    agreement between the Bank and the Manhards and Barrett that contained the
    following provision:
    7
    Thus, the Defendants’ citation to Nat'l City Bank, Ind. v. Shortridge, 
    689 N.E.2d 1248
    , 1253 (Ind. 1997),
    supplemented 
    691 N.E.2d 1210
    (Ind. 1998), is unavailing. In Shortridge, the court held that a genuine issue of
    material fact existed with regard to whether the defendant’s attorney abused process by filing two improper lis
    pendens notices against property to secure an interest in a pending personal injury lawsuit, despite the law
    being clear that lis pendens is not the proper avenue to secure an interest in a pending personal injury lawsuit.
    
    Id. at 1253.
    In contrast, here, the Bank’s filing of the foreclosure action was the appropriate action to recover
    the funds owed when the loan was in default.
    Court of Appeals of Indiana | Opinion 45A05-1412-MF-584 | December 31, 2015                        Page 28 of 33
    Guarantor [i.e., the Manhards and Barrett] shall not, directly or
    indirectly, take any action or cause or permit Lake Charles, or
    any other entity in which Guarantor, directly or indirectly has a
    controlling ownership interest, to contest, delay, hinder, interfere
    with or otherwise affect the prosecution of the Foreclosure
    Action by the Lender or provide any assistance to the Borrower,
    directly or indirectly, in contesting, defending, delaying or
    otherwise hindering the prosecution of the Foreclosure Action by
    the Lender. Guarantors testifying in court or in depositions or
    providing documents or responses to interrogatories or requests for
    information filed under or permitted under court rules or pursuant to a
    subpoena or acts required by order of court in connection with the
    foreclosure action or other litigation which may be filed by Fieldview or
    its Members, or Karen Rusin, or Borrower, or another third party shall
    not be considered a breach of the foregoing provisions.
    Appellants’ App. p. 1363 (emphasis added). The Defendants’ argument that
    this provision prohibited the Manhards and Barrett from providing documents
    during the lawsuit appears to be in direct conflict with the above-emphasized
    portion of the settlement agreements that clearly states participating in the
    discovery process and obeying court orders is not prohibited.8
    [58]   We also cannot agree with the Defendants that the Bank tortiously interfered
    with East Point’s corporate governance by settling with the Manhards and
    Barrett. The Defendants note that the settlement agreements prevented the
    Manhards and Barrett from hindering, delaying, or affecting the foreclosure
    8
    The Defendants note that the trial court sanctioned the Bank for delays in discovery that resulted in delays
    in the Defendants’ summary judgment response. However, in its order, the trial court noted that although
    “East Point did much more than should have been necessary to obtain the documents it requested,” the trial
    court “d[id] not find that Private Bank has deliberately engaged in obstruction[.]” Appellants’ App. p. 592.
    Court of Appeals of Indiana | Opinion 45A05-1412-MF-584 | December 31, 2015                      Page 29 of 33
    action. The Defendants argue that this prevented East Point from seeking other
    means of paying off the loan, such as selling the undeveloped portions of the
    Property, seeking financial assistance from the Manhards and Barrett, or
    seeking other partners to help develop the Property. However, the Defendants
    fail to explain exactly how this amounts to tortious interference with the
    corporate governance agreements of East Point. Indeed, the Defendants do not
    even set forth the elements of tortious interference in their brief. Instead, the
    Bank simply settled with some of the East Point guarantors but not the others.
    Although this has obviously placed Fieldview and Rusin in a difficult position,
    it is a common strategy in pending litigation, and we cannot say that it amounts
    to tortious interference.
    [59]   The Defendants also argue at some length that the Bank, and PREH as its
    successor in interest, has as its goal not the repayment of the loan but
    possession of the Property so that it may sell it at a premium after the work
    done by East Point. The Defendants note that the Bank’s own estimates put the
    value of the Property at $7.45 million, whereas the loan balance was only $2.96
    million. They also claim that the Bank expected a recovery of $6.85 million
    through the mortgage foreclosure. This argument, however, seems to
    misunderstand the nature of a foreclosure proceeding.
    [60]   By proceeding with foreclosure, the Bank may have the right to sell the
    Property at a foreclosure sale to satisfy the balance of the loan, but this does not
    automatically give it the right to possess the Property, nor is any surplus kept as
    a windfall by the mortgagee bank. As we have explained before:
    Court of Appeals of Indiana | Opinion 45A05-1412-MF-584 | December 31, 2015   Page 30 of 33
    Indiana is unequivocally committed to the lien theory [of
    mortgage] and the mortgagee has no title to the land mortgaged.
    The right to possession, use and enjoyment of the mortgaged
    property, as well as title, remains in the mortgagor, unless
    otherwise specifically provided, and the mortgage is a mere
    security for the debt.
    Merrillville 2548, Inc. v. BMO Harris Bank N.A., No. 45A03-1409-MF-345, 
    2015 WL 3603850
    , at *11 (Ind. Ct. App. June 9, 2015), reh’g denied, trans. pending
    (quoting Oldham v. Noble, 
    117 Ind. App. 68
    , 75-76, 
    66 N.E.2d 614
    , 617 (1946)).
    The proceeds of a mortgage sale are distributed as provided by the relevant
    statute:
    The proceeds of a sale described in IC 32-29-7 or section 8 or
    12(b) of this chapter must be applied in the following order:
    (1) Expenses of the offer and sale, including expenses incurred
    under IC 32-29-7-4 or section 9 of this chapter (or IC 34-1-53-
    6.5 or IC 32-15-6-6.5 before their repeal).
    (2) The payment of the principal due, interest, and costs not
    described in subdivision (1).
    (3) The residue secured by the mortgage and not due.
    (4) If the residue referred to in subdivision (3) does not bear
    interest, a deduction must be made by discounting the legal
    interest.
    In all cases in which the proceeds of sale exceed the amounts
    described in subdivisions (1) through (4), the surplus must be paid to
    the clerk of the court to be transferred, as the court directs, to the mortgage
    debtor, mortgage debtor's heirs, or other persons assigned by the mortgage
    debtor.
    Court of Appeals of Indiana | Opinion 45A05-1412-MF-584 | December 31, 2015         Page 31 of 33
    Ind. Code § 32-30-10-14 (emphasis added). Subsequent liens on the property
    sold share in the proceeds of the sale only after the mortgage and other prior
    liens adjudged have been satisfied. See 20 Ind. Law Encyc. Mortgages § 175
    (2015).9
    [61]   We also reject the Defendants’ claims that the Bank “highjacked” East Point’s
    right to alienate the Property by settling with the Manhards and Barrett. The
    Bank simply settled with some, but not all, of the guarantors. We fail to see
    how this can be considered inequitable or tortious conduct.
    Conclusion
    [62]   In conclusion, we hold that the Defendants filed their designated evidence in an
    untimely fashion and that such evidence should therefore not be considered.
    We also hold that the trial court did not err in denying the Defendants’ motion
    to strike the affidavit of Arshad Malik, which was submitted by PREH in
    support of its motion for summary judgment. The Defendants’ argument that
    the Bank made an oral agreement to a fourth loan renewal is barred by the
    relevant Illinois statute of frauds, which, as a substantive law, is applicable to
    the interpretation of the loan agreements. We also conclude that the Bank did
    not breach the loan agreements by reneging on the alleged oral agreement or by
    failing to fund the last draw request by the Defendants. Lastly, the foreclosure
    action is not prevented by the Bank or PREH’s allegedly unclean hands.
    9
    As the issue is not before us, we express no opinion with regard to the rights to the surplus, if any, that
    results from the mortgage foreclosure sale of the Property.
    Court of Appeals of Indiana | Opinion 45A05-1412-MF-584 | December 31, 2015                         Page 32 of 33
    Accordingly, we affirm the order of the trial court granting summary judgment
    in favor of PREH.
    [63]   Affirmed.
    Baker, J., and Bailey, J., concur.
    Court of Appeals of Indiana | Opinion 45A05-1412-MF-584 | December 31, 2015   Page 33 of 33