Segun Rasaki v. Union Savings Bank (mem. dec.) ( 2016 )

MEMORANDUM DECISION
FILED
Pursuant to Ind. Appellate Rule 65(D), this Jun 16 2016, 8:33 am
Memorandum Decision shall not be regarded as
CLERK
precedent or cited before any court except for the Indiana Supreme Court
Court of Appeals
purpose of establishing the defense of res judicata, and Tax Court
collateral estoppel, or the law of the case.
APPELLANT PRO SE ATTORNEY FOR APPELLEE
Segun Rasaki Miranda D. Bray
Putnamville Correctional Facility Manley Deas Kochalski LLC
Greencastle, Indiana Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Segun M. Rasaki, June 16, 2016
Appellant-Defendant, Court of Appeals Case No.
29A04-1510-MF-1779
v. Appeal from the Hamilton Superior
Court
Union Savings Bank, The Hon. William J. Hughes, Judge
The Hon. William P. Greenaway,
Appellee-Plaintiff. Magistrate
Trial Court Cause No. 29D03-1410-
MF-10300
Bradford, Judge.
Case Summary
[1] Appellant-Defendant Segun Rasaki purchased a home in Hamilton County
(“the Property”) with a loan from Appellee-Plaintiff Union Savings Bank
(“USB”) secured by a mortgage. When Rasaki failed to make timely payments
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on the loan, USB filed a foreclosure action. The trial court entered summary
judgment in favor of USB.
[2] During the pendency of Rasaki’s appeal of the foreclosure judgment, Rasaki
secured a temporary stay to prevent the sale of the Property (“the Stay”), which
the trial court granted subject to monthly payments of $5000.00 to the Hamilton
County Clerk in lieu of a bond. Rasaki filed several pleadings with the trial
court and this court in an attempt to reduce the payments, all of which attempts
were rejected, and none of which rejections was appealed. When Rasaki failed
to make the second payment, USB moved to have the Stay lifted and return the
case to the active docket, which motion the trial court granted. The Property
was sold in a sheriff’s sale on February 25, 2015. Rasaki contends that the trial
court abused its discretion in granting USB’s motion to lift the Stay. Because
we disagree, we affirm.
Facts and Procedural History
[3] Some of the background for this case may be found in this court’s disposition of
a previous appeal by Rasaki:
[2] On August 26, 2009, to purchase a home on 10574 Iron
Horse Lane in Carmel, Rasaki executed a promissory note and
mortgage, granting USB a secured interest in the property.
Rasaki lived on Iron Horse Lane with his wife Priscilla Rasaki
(“Priscilla”) and their children. On or about April 1, 2014,
Rasaki defaulted upon the note and mortgage by failing to make
timely payments.
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[3] In October 2014, USB filed a complaint on promissory note
and to foreclose mortgage against Rasaki and Priscilla. Rasaki
filed an appearance providing his address in Putnamville
Correctional Facility. In November 2014, Rasaki, pro se, filed a
motion for a settlement conference and enlargement of time. The
trial court ordered the parties to participate in a settlement
conference and ordered USB to supply the Rasakis with a
complete payment history, a loan payoff, and reinstatement
figures. The trial court also granted Rasaki’s motion for
enlargement of time and gave Rasaki up to and including
January 20, 2015, to file an answer.
[4] At some point, Rasaki provided a power of attorney to
Priscilla. In December 2014, USB sent the payment history and
other documents required by the trial court’s order setting the
settlement conference to Priscilla at Iron Horse Lane. In
February 2015, the settlement conference was held, but no
settlement was reached.
[5] In March 2015, USB filed a motion for summary judgment
pursuant to Indiana Trial Rule 56 with designated materials
including the promissory note and mortgage and the affidavit of
USB’s authorized representative, attesting to the breach of
contract and that the balance due on the note was $795,539.32.
Rasaki timely filed a motion for alteration of time limits of Trial
Rule 56, but rather than asking for more time to respond to
USB’s summary judgment motion, he asked for more time to
respond to USB’s “complaint.” Appellant’s App. at 182. The
trial court granted the motion and ordered him to respond to
USB’s complaint by May 20, 2015. On May 22, 2015, Rasaki
filed his “Reply to Complaint on Promissory Note and To
Foreclose Mortgage,” which also included his counterclaims. Id.
at 192. His reply to complaint was unverified and did not have
attached sworn affidavits in support of his assertions. USB
treated his reply to complaint as a pleading, and in June 2015,
pursuant to Indiana Trial Rule 12(F), USB filed a motion to
strike it, alleging that it was both untimely and failed to state a
claim under Indiana Trial Rule 12(B)(6).
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[6] On June 5, 2015, the trial court held a hearing on all matters.
On June 8, 2015, Rasaki filed a judicial notice informing the trial
court that he was revoking the power of attorney that he had
granted to Priscilla. On June 9, 2015, the trial court issued an
order granting USB’s summary judgment motion. In it, the trial
court found that USB had shown that no issue of material fact
exists and that it was entitled to judgment on all claims asserted
against Rasaki in its complaint. The trial court ordered that the
mortgage be foreclosed and that the property be sold and
awarded USB a personal judgment against Rasaki for
$795,539.32, to which the net proceeds of the sale of the property
would be applied. Also on June 9, 2015, the trial court issued an
order granting USB’s motion to strike Rasaki’s reply to
complaint, but the trial court did not provide the basis for its
ruling. Rasaki filed a notice of appeal of the trial court’s June 9,
2015 orders.
Rasaki v. Union Sav. Bank, Cause No. 29A02-1506-MF-663 at *1-2 (Ind. Ct.
App. Mar. 22, 2016) (footnote omitted).
[4] On July 24, 2015, the Hamilton County Sheriff issued a Sheriff’s sale notice for
the Property, which sale was set for September 3, 2015. On July 27, 2015,
Rasaki moved in the trial court for a stay of all interlocutory and dispositive
orders, including a stay on the sheriff’s sale of the Property. On August 10,
2015, the trial court issued the Stay pending Rasaki’s appeal of the entry of
summary judgment in favor of USB and ordered that a condition of the Stay be
that Rasaki make monthly payments of $5000.00 to the Hamilton County
Clerk. Rasaki made several unsuccessful attempts to have the amount of the
payment reduced, both in this court and the trial court. Rasaki, however,
appealed neither the order establishing the Stay nor any of the denials of his
challenges. On September 1, 2015, Rasaki made his first payment.
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[5] On October 5, 2015, after Rasaki failed to make the October payment, USB
moved to lift the Stay and return the case to the active docket, which motion
the trial court granted on October 14, 2015. On October 29, 2015, Rasaki filed
a reply/objection to USB’s motion to remove the Stay. Meanwhile, on or
about October 23, 2015, Rasaki had filed a notice of appeal from the trial
court’s order lifting the Stay.1 On February 25, 2016, the Property was sold at
sheriff’s sale. On March 22, 2016, this court affirmed the trial court’s grant of
summary judgment in favor of USB. Rasaki, Cause No. 29A02-1506-MF-663 at
4-5. In this appeal, Rasaki challenges the trial court’s lift of the Stay.
Discussion and Decision
Whether the Trial Court Abused its
Discretion in Lifting the Stay
[6] When an appeal is taken from an interlocutory or final judgment
granting, dissolving or denying an injunction, the appointment of
a receiver or, to the extent that a stay is not otherwise permitted
by law upon appeal, from any judgment or order for specific
relief other than the payment of money, the court to which the
application is made in its sound discretion may suspend, modify,
restore, or grant the injunction, the appointment of the receiver
or the specific relief during the pendency of the appeal upon such
terms as to bond or otherwise as it considers proper for the
security of the rights of the adverse party. Nothing in this rule is
1
Rasaki initially made several filings related to the appeal of the lifting of the Stay to Cause Number 29A02-
1506-MF-663, the appeal of the trial court’s grant of summary judgment to USB. Eventually, Rasaki’s appeal
of the Stay removal was assigned this cause number.
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intended to affect the original jurisdiction of the Supreme Court
or the Indiana Court of Appeals.
Trial R. 62(C).
Relief under T.R. 62(C) is expressly committed to the sound
discretion of the trial court. Dandy Co., Inc. v. Civil City, Etc., 401
N.E.2d 1380, 1385 (Ind. Ct. App. 1980); Angleton v. Estate of
Angleton, 671 N.E.2d 921, 929 (Ind. Ct. App. 1996), trans. denied.
A trial court’s decision will not be disturbed absent an abuse of
that discretion. See Dandy, 401 N.E.2d at 1385.
Kennedy v. Jester, 700 N.E.2d 1170, 1172 (Ind. Ct. App. 1998).
[7] Rasaki devotes most of his Brief of Appellant to arguing that, from the outset,
the terms of the Stay did not comply with relevant statutory authority. This
particular ship has sailed, however. Although Rasaki did file challenges to the
Stay order in this court and the trial court,2 he appealed from neither the order
itself nor the denials of those challenges. Rasaki may not now challenge the
provisions of the Stay on appeal, having failed to do so in a timely manner
previously.
[8] Rasaki also contends that he suffered from a lack of service of process in that he
failed to receive a copy of USB’s motion to lift the Stay before it was granted by
the trial court. Even assuming, arguendo, that Rasaki initially failed to receive a
copy of USB’s motion to lift the Stay, it does not follow that a lack of service of
2
Rasaki may well have believed that he was “appealing” the Stay by filing challenges to it in this court, but
the fact remains that he did not properly appeal until after the Stay was lifted. Pro se litigants such as Rasaki
are “held to the same standards as a trained attorney and [are] afforded no inherent leniency simply by virtue
of being self-represented.” Zavodnik v. Harper, 17 N.E.3d 259, 266 (Ind. 2014).
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process occurred. USB’s motion to lift the Stay indicates that it was served on
Rasaki on October 8, 2015, by United States mail, prepaid, to: “Segun Rasaki,
AKA Segun M. Rasaki, #245770, c/o Superintendent Stan Knight, 1946 West
U.S. Highway 40, Greencastle, IN 46135.” Rasaki does not claim that this
address was incorrect (the service address on the motion is, in fact, the address
that was provided by Rasaki) or that USB’s service of its motion to lift the Stay
was otherwise deficient in any way. Trial Rule 5(B)(2) provides that service by
mail “shall be deemed complete upon mailing.” Even if he never actually
received a copy of USB’s motion, Rasaki has failed to establish a failure of
service of process.
[9] Rasaki also contends that the trial court abused its discretion in ruling on USB’s
motion to lift the Stay before receiving a response from him. Rasaki cites to no
authority to support this contention, and we are aware of none. The trial
court’s order contains no provisions for a response in the event of a request by
USB to lift the Stay and is clear that “failure to make timely and adequate
payments as required by this order” will result in the trial court dissolving the
Stay. Appellant’s App. p. 592. Rasaki has also failed to show that he was
prejudiced by the trial court not waiting for his response. Because Rasaki does
not dispute that he failed to make the ordered payments, it is unclear just what
argument he could have made that would have made a difference if he had
responded. Rasaki has failed to establish an abuse of discretion in this regard.
[10] The judgment of the trial court is affirmed.
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Bailey, J., and Altice, J., concur.
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