Donna G. Dowell v. U.S. Bank, National Association (mem. dec.) ( 2018 )

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), FILED
this Memorandum Decision shall not be Nov 19 2018, 10:05 am
regarded as precedent or cited before any
CLERK
court except for the purpose of establishing Indiana Supreme Court
Court of Appeals
the defense of res judicata, collateral and Tax Court
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEY FOR APPELLEE
Preeti Gupta Jennifer L. Snook
Indianapolis, Indiana Marinosci Law Group, PC
Valparaiso, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Donna G. Dowell, November 19, 2018
Appellant-Defendant, Court of Appeals Case No.
18A-MF-832
v. Appeal from the Wayne Superior
Court
U.S. Bank, National The Honorable Gregory A. Horn,
Association, Judge
Appellee-Plaintiff. Trial Court Cause No.
89D02-1510-MF-159
Riley, Judge.
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STATEMENT OF THE CASE
[1] Appellant-Defendant, Donna G. Dowell (Dowell), appeals the trial court’s
summary judgment in favor of Appellee-Plaintiff, U.S. Bank, National
Association (U.S. Bank), on U.S. Bank’s Complaint, seeking foreclosure on
Dowell’s property.
[2] We affirm.
ISSUE
[3] Dowell presents us with one issue on appeal, which we restate as: Whether the
trial court erred in granting summary judgment to U.S. Bank on its request for
foreclosure on Dowell’s property.
FACTS AND PROCEDURAL HISTORY
[4] Dowell is the owner of the property commonly known as 422 West Drive,
Richmond, Indiana. On December 7, 2011, Dowell and her husband, James
Russell Dowell, 1 executed two promissory notes. The first note promised to
pay U.S. Bank the amount of $37,000; while the second note promised to pay
U.S. Bank the amount of $50,500. Each note was secured by a mortgage on the
property in favor of U.S. Bank. Both mortgages were recorded with the Wayne
County Recorder’s Office on December 27, 2011. Although Dowell initially
1
Dowell’s husband passed away in 2012.
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made the required payments under the terms of the instruments, eventually a
payment default occurred.
[5] On October 22, 2015, U.S. Bank filed its Complaint seeking to foreclose on the
two notes and mortgages held on the property. On June 23, 2016, the trial
court entered a default judgment against Dowell and in favor of U.S. Bank.
Subsequent to the entry of the default judgment, Dowell, by counsel, appeared
in the cause and filed a motion to set aside the sheriff’s sale set for September
21, 2016. The trial court denied the motion. On September 7, 2016, Dowell
filed a motion to vacate the default judgment. On June 26, 2017, the trial court
vacated its previously entered default judgment. On September 25, 2017, U.S.
Bank filed its motion for summary judgment, together with a memorandum of
law and designation of evidence, as well as a decree of foreclosure. On
November 13, 2017, Dowell filed her memorandum in opposition to U.S.
Bank’s motion for summary judgment, together with a designation of evidence.
On January 3, 2018, U.S. Bank filed a reply, with a supplemental designation of
evidence. On March 27, 2018, following a hearing, the trial court entered
summary judgment in favor of U.S. Bank.
[6] Dowell now appeals. Additional facts will be provided as necessary.
DISCUSSION AND DECISION
I. Standard of Review
[7] In reviewing a trial court’s ruling on summary judgment, this court stands in the
shoes of the trial court, applying the same standards in deciding whether to
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affirm or reverse summary judgment. First Farmers Bank & Trust Co. v. Whorley,
891 N.E.2d 604, 607 (Ind. Ct. App. 2008), trans. denied. Thus, on appeal, we
must determine whether there is a genuine issue of material fact and whether
the trial court has correctly applied the law. Id. at 607-08. In doing so, we
consider all of the designated evidence in the light most favorable to the non-
moving party. Id. at 608. A fact is ‘material’ for summary judgment purposes if
it helps to prove or disprove an essential element of the plaintiff’s cause of
action; a factual issue is ‘genuine’ if the trier of fact is required to resolve an
opposing party’s different version of the underlying facts. Ind. Farmers Mut. Ins.
Group v. Blaskie, 727 N.E.2d 13, 15 (Ind. 2000). The party appealing the grant
of summary judgment has the burden of persuading this court that the trial
court’s ruling was improper. First Farmers Bank & Trust Co., 891 N.E.2d at 607.
[8] We observe that, in the present case, the trial court entered findings of fact and
conclusions of law in support of its judgment. Special findings are not required
in summary judgment proceedings and are not binding on appeal.
AutoXchange.com. Inc. v. Dreyer and Reinbold, Inc., 816 N.E.2d 40, 48 (Ind. Ct.
App. 2004). However, such findings offer this court valuable insight into the
trial court’s rationale for its review and facilitate appellate review. Id.
II. Analysis
[9] Pursuant to Indiana Code section 32-30-10-3(a), “if a mortgagor defaults in the
performance of any condition contained in a mortgage, the mortgagee or the
mortgagee’s assign may proceed in the circuit court, superior court, or the
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probate court of the county where the real estate is located to foreclose the
equity of redemption contained in the mortgage.” To establish a prima facie
case that it is entitled to foreclose upon the mortgage, the mortgagee or its
assign must enter into evidence the demand note and the mortgage, and must
prove the mortgagor’s default. Creech v. LaPorte Prod. Credit Ass’n, 419 N.E.2d
1008, 1012 (Ind. Ct. App. 1981). Once the mortgagee establishes its prima facie
case, the burden shifts to the mortgagor to show that the note has been paid in
full or to establish any other defenses to the foreclosure. Id.
[10] U.S. Bank designated evidence establishing Dowell’s default on both notes and
mortgages. While not disputing U.S. Bank’s possession of the negotiable
instruments and her own non-payment thereon, Dowell designated a self-
serving affidavit affirming that she entered into a contract modification with
U.S. Bank in 2017 and made two periodic payments in accordance with the
provisions of the modification.
[11] However, our review of the designated evidence reflects that what Dowell
characterizes to be a contract modification, was in fact a “Repayment Plan
Agreement” executed in the context of a loss mitigation program for the second
mortgage only. Even though she applied for a similar Agreement with respect
to the first mortgage, Dowell’s application was rejected. The purpose of the
Repayment Plan Agreement was to give Dowell “additional time to repay
amounts due on the account by making supplemental payments in addition to
the regular monthly payments” on her second mortgage. (Appellee’s App. Vol.
II, p. 80). Accordingly, pursuant to the terms of the Agreement, Dowell was
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instructed to “make the supplemental payment of $403.44 in addition to the
monthly payment as reflected on the monthly billing statement[.]” (Appellee’s
App. Vol. II, p. 80). Dowell was advised that by accepting the Repayment Plan
Agreement “all terms and provisions of [her] current mortgage note and
mortgage security instrument remain[ed] in full force and effect and [she] will
comply with those terms; and that nothing in the [R]epayment [P]lan shall be
understood or construed to be a satisfaction or release in whole or in part of the
obligations contained in the loan documents.” (Appellee’s App. Vol. II, p. 83).
While the evidence reflects that Dowell attempted to make two supplemental
payments under the provisions of the Repayment Plan Agreement, U.S. Bank
did not accept those payments. Dowell acknowledges that she did not make any
monthly payments. As a consequence of Dowell’s failure to abide by the terms
of the Repayment Plan Agreement, U.S. Bank ceased its loss mitigation efforts
and proceeded with its foreclosure on the property.
[12] As there is no genuine issue of material fact that Dowell failed to perform her
obligations under the terms of the note for the first mortgage and under the
terms of the loss mitigation for the second mortgage, we conclude that the trial
court properly granted summary judgment to U.S. Bank.
CONCLUSION
[13] Based on the foregoing, we hold that the trial court properly issued summary
judgment to U.S. Bank on its request for foreclosure on Dowell’s property.
[14] Affirmed.
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[15] Vaidik, C. J. and Kirsch, J. concur
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