Ira W. Huth v. DKR Mortgage Asset Trust 1 ( 2012 )

Pursuant to Ind. Appellate Rule 65(D), this
Memorandum Decision shall not be
regarded as precedent or cited before any
court except for the purpose of establishing
FILED
Oct 25 2012, 9:17 am
the defense of res judicata, collateral
estoppel, or the law of the case. CLERK
of the supreme court,
court of appeals and
tax court
APPELLANT PRO SE:
IRA W. HUTH
Portage, Indiana
IN THE
COURT OF APPEALS OF INDIANA
IRA W. HUTH, )
)
Appellant-Defendant, )
)
vs. ) No. 64A03-1203-MF-117
)
DKR MORTGAGE ASSET TRUST 1, )
)
Appellee-Plaintiff. )
APPEAL FROM THE PORTER SUPERIOR COURT
The Honorable Roger V. Bradford, Judge
The Honorable Ethan S. Lowe, Judge Pro Tempore
Cause No. 64D01-1006-MF-5906
October 25, 2012
MEMORANDUM DECISION - NOT FOR PUBLICATION
BRADFORD, Judge
Appellant-Defendant Ira Huth appeals from the trial court’s denial of his motion
for relief from judgment. Huth argues that the trial court erroneously denied his motion
for relief from judgment because its previous entry of summary judgment against him in
favor of Appellee-Plaintiff DKR Mortgage Asset Trust 1 was erroneous. We affirm.
FACTS AND PROCEDURAL HISTORY
It seems that at some point in March of 2009, Huth executed a mortgage in favor
of Flagstar Bank to secure a promissory note for the purchase of real property in Portage.
On May 28, 2010, Flagstar filed a mortgage foreclosure action. At some point, Flagstar
assigned its rights in the promissory note to DKR, and DKR filed a motion to substitute
as real party in interest on August 17, 2011. Also on that day, DKR filed a motion for
summary judgment. On January 30, 2012, the trial court entered summary judgment in
favor of DKR. On January 30, 2012, the trial court issued another order reaffirming its
grant of summary judgment in favor of DKR, foreclosing on the mortgage, and ordering a
Sheriff’s sale. On February 2, 2012, Huth filed a motion for relief from judgment, which
the trial court denied one week later.
DISCUSSION AND DECISION
Whether the Trial Court Erred in Denying Huth’s Motion for Relief from Judgment
At the outset, we note that DKR has not filed an Appellee’s brief. In such cases,
we do not need to develop an argument for DKR, and we apply a less stringent standard
of review. Fowler v. Perry, 830 N.E.2d 97, 102 (Ind. Ct. App. 2005). We may reverse
the trial court if Huth is able to establish prima facie error, which is error at first sight, on
first appearance, or on the face of it. Id.
2
“Our scope of review for the grant or denial of a T.R. 60(B) motion is limited to
whether the trial court abused its discretion.” Summit Account & Computer Serv. v.
Hogge, 608 N.E.2d 1003, 1005 (Ind. Ct. App. 1993). “An abuse of discretion occurs
where the trial court’s judgment is clearly against the logic and effect of the facts and
inferences supporting the judgment for relief.” Id.
Huth’s argument is apparently that his motion should have been granted on the
basis that it alleges a valid defense or claim, pursuant to Indiana Trial Rule 60(B)(5)(f).
See Appellant’s Br. at 24 (“Defendant pursuant to Ind[.] T.R. 60(f) respectfully alleges
that there is a valid defense and claim.”). Subsection (f), however, is only one of six
showings that must be made pursuant to Trial Rule 60(B)(5), which also requires, inter
alia, that “the motion assert[] and such party prove[]” that “at the time of the action he
was an infant or incompetent person[.]” At the very least, Huth’s motion for relief from
judgment failed to allege, much less prove, that he was either an infant or incompetent.
The trial court did not abuse its discretion in denying Huth’s motion for relief from
judgment.
We affirm the judgment of the trial court.
ROBB, C.J., concurs.
BAKER, J., concurs in result with opinion.
3
IN THE
COURT OF APPEALS OF INDIANA
IRA W. HUTH, )
)
Appellant-Defendant, )
)
vs. ) No. 64A03-1203-MF-117
)
DKR MORTGAGE ASSET TRUST 1, )
)
Appellee-Plaintiff. )
BAKER, Judge, concurring in result,
While I concur in the result, I do so for the reason that Huth does not deny the
underlying debt; rather, he complains that his escrow payments and insurance premiums
were “negligently” calculated when he refinanced his mortgage, causing him financial
hardship. Appellant’s Br. p. 9. Moreover, Huth complains that DKR did not
meaningfully participate in a settlement conference, which may have led to a restructure
of the mortgage debt.
While we may understand Huth’s plight, he cites to no authority that would
authorize us to deny the judgment in favor of DKR. See In re The Supervised Estate of
Williamson v. Williamson, 798 N.E.2d 238, 242 (Ind. Ct. App. 2003) (concluding that
because the Estate offered no authority to support its claim of error, the argument was
waived).
4