Richard E. Stanbrough v. Bank of America National Assn. as Successor by Merger to LaSealle Bank National Assn. ( 2012 )

Pursuant to Ind.Appellate Rule 65(D),
this Memorandum Decision shall not be FILED
regarded as precedent or cited before May 21 2012, 9:17 am
any court except for the purpose of
establishing the defense of res judicata, CLERK
of the supreme court,
court of appeals and
collateral estoppel, or the law of the case. tax court
ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
GREGORY W. BLACK LOUIS T. PERRY
Gregory W. Black, P.C. CARL A. GRECI
Plainfield, Indiana Faegre Baker Danieals LLP
Indianapolis, Indiana
JOSEPH W. EKE
Dale & Eke, PC
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
RICHARD E. STANBROUGH, )
)
Appellant-Defendant, )
)
vs. ) No. 32A01-1112-MF-577
)
BANK OF AMERICA NATIONAL )
ASSOCIATION AS SUCCESSOR BY )
MERGER TO LASEALLE BANK )
NATIONAL ASSOCIATION, AS TRUSTEE )
UNDER THE TRUST AGREEMENT FOR )
THE STRUCTURED ASSET INVESTMENT )
LOAN TRUST SERIES 2004-10 )
)
Appellee-Plaintiff. )
APPEAL FROM THE HENDRICKS SUPERIOR COURT
The Honorable Stephenie LeMay-Luken, Judge
Cause No. 32D05-1002-MF-23
May 21, 2012
MEMORANDUM DECISION - NOT FOR PUBLICATION
ROBB, Chief Judge
Case Summary and Issue
In October 2011, the trial court granted Bank of America National Association’s
motion for summary judgment on its foreclosure complaint against Richard Stanbrough.
Stanbrough raises three issues for our review, which we consolidate and restate as one:
whether the trial court erred in granting Bank of America’s motion for summary judgment
and ordering foreclosure of the real estate. Concluding there are no genuine issues of
material fact and Bank of America is entitled to judgment as a matter of law, we affirm.
Facts and Procedural History
In June 2004, after borrowing money to purchase a home, Stanbrough executed and
delivered a promissory note and mortgage, promising to pay $156,750.00 plus interest, and
granting a security interest in the mortgage property, both of which were assigned to Bank of
America. On January 1, 2009, Stanbrough made his last timely payment and entered default
pursuant to the payment terms of the note and mortgage. After notifying Stanbrough that he
was in default, Bank of America filed a complaint to foreclose the mortgage, accelerating all
indebtedness.
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Stanbrough answered, denied each allegation, and in July 2010 Bank of America filed
its first motion for summary judgment, which it ultimately withdrew in November 2010. In
September 2010, the trial court ordered the parties to engage in a settlement conference.
After several continuances, the parties appeared before the trial court on December 10, 2010,
and agreed to hold a follow-up settlement conference. Stanbrough filed a report to the court
on June 1, 2011, stating the parties held a settlement conference. Subsequently, in August
2011, Bank of America filed a second motion for summary judgment. Also in August, Bank
of America sent Stanbrough an offer to enter into a Special Forbearance Agreement. The
agreement would operate as follows:
The Agreement must be signed and returned with the first installment. This is
not a waiver of the accrued or future payments that become due, but a trial
period showing you can make regular monthly payments. . . . If your loan is in
foreclosure, we will instruct our foreclosure counsel to suspend proceedings
once the initial installment has been received, and to continue to suspend the
action as long as you keep to the terms of the Agreement. Upon full
reinstatement, we will instruct our foreclosure counsel to dismiss foreclosure
proceedings and report to the credit bureau accordingly.
Appellant’s Appendix at 157 (Special Forbearance Agreement Offer Letter to
Stanbrough).
The terms and conditions of the Special Forbearance Agreement offer include:
2. This Agreement temporarily accepts reduced installments or maintains
regular monthly payments as outlined in section 5 below. . . .
***
4. All of the provisions of the Note and Security Instrument, except as herein
provided, shall remain in full force and effect. A breach of any provision of or
non-compliance with this agreement shall render the Agreement null and void.
...
5. Each payment must be remitted according to the schedule below.
PLAN DATE AMT PLAN DATE AMT
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01 10/01/11 1,454.22 02 11/01/11 1,454.22
03 12/01/11 1,454.22 04 01/01/12 1,454.22
05 02/01/12 1,454.22 06 03/01/12 1,454.22
6. There is no “grace period” allowance in this Agreement. All installments
must be received on or before the due date and made strictly in accordance
with section 5 above. If any installment is not received on or before the
respective due date, the Agreement will be void and the total delinquency,
including fees, will be due immediately.
Id. at 158.
Stanbrough submitted a payment of $1,454.22 in an effort to accept Bank of
America’s forbearance agreement offer, but he did not do so until October 10, 2011. The
trial court granted Bank of America’s motion for summary judgment and entered a decree of
foreclosure. After the trial court denied his motion to correct error, Stanbrough now appeals.
Discussion and Decision
I. Standard of Review
Summary judgment is appropriate when there is no genuine issue as to any material
fact and the moving party is entitled to judgment as a matter of law. Ind. Trial Rule 56(C).
“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 affirm or reverse summary
judgment.” Walton v. First Am. Title Ins. Co., 844 N.E.2d 143, 146 (Ind. Ct. App. 2006)
(citation omitted), trans. denied. Thus, we determine whether there is a genuine issue as to
any material fact, and we consider the designated evidence in the light most favorable to the
non-moving party. Id.4
II. Summary Judgment
Stanbrough first argues the trial court erred by granting summary judgment without
issuing some formal finding or notice of the termination of settlement conference efforts
between the parties. Indiana Code section 32-30-10.5-9 (2011) provides:
(a) Except as provided in subsection (b) and subject to section 8.5 of this
chapter . . . a court may not issue a judgment of foreclosure under IC 32-30-10
on a mortgage subject to this chapter unless all of the following apply:
(1) The creditor has given the notice required under section 8(c) of this
chapter.
(2) One (1) of the following applies:
(A) The debtor does not contact the court within the thirty (30) day
period described in section 8(c) of this chapter to schedule a settlement
conference under this chapter.
(B) The debtor contacts the court within the thirty (30) day period
described in section 8(c) of this chapter to schedule a settlement
conference under this chapter and, upon conclusion of the settlement
conference, the parties are unable to reach agreement on the terms of a
foreclosure prevention agreement.
***
(b) If the court finds that a settlement conference would be of limited value
based on the result of a prior loss mitigation effort between the creditor and the
debtor:
(1) a settlement conference is not required under this chapter; and
(2) the conditions set forth in subsection (a) do not apply, and the foreclosure
action may proceed as otherwise allowed by law.
Further, Indiana Code section 32-30-10.5-10(f) provides that if the parties are unable to reach
a foreclosure prevention agreement, “the creditor shall, not later than seven (7) business days
after the conclusion of the settlement conference, file with the court a notice indicating that
the settlement conference held . . . has concluded and a foreclosure prevention agreement
was not reached . . . .” Stanbrough contends Bank of America did not adhere to this notice
requirement and “there is no record of an inability to reach an agreement, nor of the Court
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finding no conference is worthwhile.”1 Brief of Appellant at 7. Bank of America does not
contend that such notice was filed with the trial court, but rather, argues Stanbrough has
waived this issue by not raising it in his answer to Bank of America’s second motion for
summary judgment or in his motion to correct error.
Bank of America is correct that Stanbrough has not raised this issue previously and,
generally, when an issue is first raised on appeal it is deemed waived. Cavens v. Zaberdac,
849 N.E.2d 526, 533 (Ind. 2006) (“Issues not raised at the trial court are waived on appeal.”).
Nevertheless, Indiana Code section 32-10-10.5-10(f) requires the creditor to file a notice
indicating a settlement conference was held and an agreement was not reached, but it does
not provide that a trial court is required to find that such notice has been filed prior to
ordering foreclosure. And here, where the trial court was notified by Stanbrough that a
settlement conference was held by the parties, and Bank of America subsequently filed its
second motion for summary judgment, the trial court could reasonably conclude an
agreement had not been reached.
Stanbrough next argues summary judgment is improper because a novation has
occurred and Bank of America therefore could not properly terminate its offer to enter into a
1
Stanbrough also argues “Federal law appears to be offended here.” Br. of Appellant at 8. However,
Indiana Appellate Rule 46(A)(8)(a) provides that a party’s argument on appeal “must contain the contentions
of the appellant on the issues presented, supported by cogent reasoning. Each contention must be supported by
citations to the authorities, statutes, and the Appendix or parts of the Record on Appeal relied on, in
accordance with Rule 22.” We decline to examine Stanbrough’s contention as to federal law because it is
supported by neither cogent reasoning nor adequate citations to legal authority. Rather than illustrating which
federal laws Stanbrough believes to have been violated in his appellate brief, he refers us to the recitation of
such statutes in his motion to stay sheriff sale that he filed with this court. This method of citation does not
adhere with our Appellate Rules. Further, even if we overlooked the lack of legal authorities which might
support his position, he provides little to no reasoning why such federal statutes would deem summary
judgment improper in this case.
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forbearance agreement. “A novation is a new contract made with the intent to extinguish one
already in existence.” Ashbaugh v. Horvath, 859 N.E.2d 1260, 1265 (Ind. Ct. App. 2007)
(citation omitted). A novation requires “(1) a valid existing contract; (2) the agreement of all
parties to a new contract; (3) a valid new contract; and (4) an extinguishment of the old
contract in favor of the new one.” Id. (citing Winkler v. V.G. Reed & Sons, Inc., 638 N.E.2d
1228, 1233 (Ind. 1994)).
Stanbrough contends Bank of America’s offer included the choice of six installment
payment plans from which he could choose because of the word “plan” located in the
schedule of payments. He argues he accepted the offer and chose the second plan by mailing
in his first payment prior to November 1, 2011. However, the rest of the letter and proposed
terms indicate the schedule consists of several payments, all of which Stanbrough would be
obligated to make were he to adhere to the proposed agreement, rather than six choices from
which Stanbrough could select his desired start date.
Immediately preceding the schedule it states “[e]ach payment must be remitted
according to the schedule below.” Appellant’s App. at 158. The term following the schedule
states “[a]ll installments must be received on or before the due date and made strictly in
accordance with” the schedule. Id. A prior term states “[t]his Agreement temporarily
accepts reduced installments or maintains regular monthly payments as outlined in section 5
below.” Id. And Bank of America’s letter to Stranbrough explaining the forbearance
agreement offer states “[t]he Agreement must be signed and returned with the first
installment.” Id. at 157. Other than the word “plan” located in the schedule, nothing in the
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letter or proposed terms indicates or implies Stanbrough could choose one of the six dates of
payment as the first installment payment due date.
Reading the offer as a whole, we conclude Bank of America’s offer unambiguously
required an initial installment payment of $1,454.22 by October 1, 2011, and subsequent
payments of that amount on each of the stated dates in the schedule in an effort to establish a
temporary monthly payment agreement. Thus, because Stanbrough’s purported acceptance
of Bank of America’s offer was not completed until after October 1, 2011, no contract was
formed between Stanbrough and Bank of America. Further, as Bank of America points out,
even if a contract were formed, one term of the forbearance agreement offer states “[a]ll of
the provisions of the Note and Security Instrument, except as herein provided, shall remain in
full force and effect.” Id. at 158. Thus, it cannot be said any newly created contract is also
an extinguishment of the parties’ prior contract. For these reasons, we conclude a novation
did not occur and the termination of Bank of America’s offer due to Stanbrough’s lack of
acceptance by the date of the first required installment date was not improper.
Last, Stanbrough argues a genuine issue of material fact exists, deeming summary
judgment improper. He contends that if Bank of America made an offer he can afford to pay
“the parties are bound to make the agreement and dismiss the action.” In support of this
contention, he cites to Indiana Code section 32-30-10.5-10(e), which provides: “If, as a result
of a settlement conference held under this chapter, the debtor and the creditor agree to enter
into a foreclosure prevention agreement, the agreement shall be reduced to writing and
signed by both parties, and each party shall retain a copy of the signed agreement. . . .” Aside
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from the fact that this statute does not seem to support the argument Stanbrough asserts,2
Stanbrough does not point to anything in the record supporting the fact that the parties agreed
to enter into a foreclosure prevention agreement and, as discussed above, no foreclosure
prevention agreement was in fact formed because Stanbrough failed to timely accept Bank of
America’s offer. Thus, the requirement of Indiana Code section 32-30-10.5-10(e) does not
give rise to a genuine issue of material fact.
Indiana Code section 32-30-10-3(a) provides “[s]ubject to IC 32-30-10.5 . . . if a
mortgagor defaults in the performance of any condition contained in a mortgage, the
mortgagee or the mortgagee’s assigns may proceed in the circuit court of the county where
the real estate is located to foreclose the equity of redemption contained in the mortgage.”
Stanbrough does not dispute he defaulted by failing to adhere to the payment terms of his
mortgage with Bank of America. As Stanbrough points to no other purported genuine issues
of material fact, nor do we find one, we conclude summary judgment is appropriate.
Conclusion
There are no genuine issues of material fact and Bank of America is entitled to
judgment as a matter of law. We therefore affirm the trial court’s grant of summary
judgment for Bank of America.
Affirmed.
BAILEY, J., and MATHIAS, J., concur.
2
See Ind. Appellate Rule 46(A)(8)(a) (requiring an appellant’s argument section of his or her appellate
brief to “contain the contentions of the appellant on the issues presented, supported by cogent reasoning” and
“citations to the authorities, statutes, and the Appendix or parts of the Record on Appeal relied on.”).
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