Jun 09 2015, 9:53 am
ATTORNEYS FOR APPELLANT ATTORNEYS FOR APPELLEE
R. Brian Woodward Scott B. Cockrum
David E. Woodward John R. Terpstra
Woodward & Blaskovich, LLP Schererville, Indiana
Merrillville, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Merrillville 2548, Inc. successor June 9, 2015
to Merrillville GC 2548, Inc., Court of Appeals Cause No.
45A03-1409-MF-345
Appellant/Intervenor/Counterclaim
Appeal from the Lake Superior Court
Plaintiff, The Honorable Calvin D. Hawkins,
Judge
v. Cause No. 45D02-1301-MF-26
BMO Harris Bank N.A. f/k/a
Harris N.A., as the assignee of
the Federal Deposit Insurance
Corporation as the receiver for
Amcore Bank, N.A.,
Appellee/Plaintiff/Counterclaim
Defendant
Bradford, Judge.
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Case Summary
[1] In 2006, MCSS Merrillville, L.L.C. (“Borrower”), executed a promissory note
(“the Note”) and leasehold mortgage (“the Mortgage”) as security for the note
in favor of Amcore Bank, N.A.; the debt and mortgage were later assigned to
Appellant-Plaintiff-Counterclaim Defendant BMO Harris Bank, N.A., (“BMO
Harris”). Borrower had entered into a lease (“the Lease”) for real property in
Century Plaza in Merrillville (“the Parcel”), on which it operated a Golden
Corral restaurant. The Lease required Borrower to refrain from assigning the
Lease or subletting the Parcel. Since 2007, however, Appellee-Intervenor GC
2548, Inc. (“GC 2548”), has actually operated the Golden Corral, although it
has never been made party to the Lease and there was no assignment of rights
under the Lease from Borrower to GC 2548.
[2] In 2013, BMO Harris sued Borrower and various guarantors of Borrower’s debt
for breach of contract, foreclosure, and appointment of a receiver. Eventually,
BMO Harris moved for default judgment against Borrower and all but one of
the guarantors and for an order of possession of the leasehold interest. In
August of 2014, the trial court entered default judgment against Borrower and
all but one of the guarantors and ruled that any right to possession by those
parties was barred. At a hearing, GC 2548 argued that Borrower had
abandoned the Parcel and that GC 2548 was an equitable assignee of the Lease.
The trial court rejected this argument and ruled that: (1) BMO Harris’s default
judgment against Borrower entitled it to foreclose on its interest in the Parcel;
(2) Article 9.1 of the Indiana Uniform Commercial Code (“UCC”) dictated the
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result of this case, rather than Indiana Code provisions governing mortgage
foreclosure actions; and (3) GC 2548 was bound by the default judgment
against the defendants and was given thirty days to vacate the Parcel.
[3] On appeal, GC 2548 contends that (1) the trial court erred in concluding that
Article 9.1 applied; (2) GC 2548 is an equitable assignee of Borrower’s Lease;
and (3) the equitable assignment of the Lease terminated BMO Harris’s security
interest; and (4) that, even if BMO Harris is entitled to foreclose the Mortgage,
it is not entitled to immediate possession of the Parcel. BMO Harris counters
that (1) GC 2548 waived certain arguments, (2) GC 2548 was bound by the
default judgment against defendants, (3) Article 9.1 of the UCC applies, (4) GC
2548 is not entitled to equitable relief, and (5) the trial court correctly entered its
order of possession in favor of BMO Harris. We conclude that although GC
2548 preserved its argument that it was equitably assigned the lease, it has failed
to establish equitable assignment, the provisions of Article 9.1 of the UCC do
not apply to leasehold mortgages, and BMO Harris is not entitled to an order of
possession of the Parcel. We therefore affirm in part, reverse in part, and
remand for further proceedings.
Facts and Procedural History
[4] At some point in 2005, Borrower entered into the Lease with Century Plaza,
LLC (“Landlord”), for the Parcel, located in Century Plaza, with a term of
fifteen years and on which Borrower was operating a Golden Corral restaurant.
Inter alia, the Lease required Borrower to “refrain from assigning, selling, or in
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any manner transferring this Lease or any interest therein, by operation of law
or otherwise; to refrain from subletting this Leased Premises or any portion or
portions thereof; to refrain from permitting the occupancy by anyone with,
through or under it.” Defendant’s Ex. 2. P. 22. On September 22, 2006,
Borrower executed the Note in the principal sum of $1,520,000.00, payable to
Lender.1 The Note required Borrower to make payments on the twentieth of
each month until maturity on September 22, 2011, at which point Borrower
was required to make a final principal and interest payment. The Note was
secured by the Mortgage, originally dated June 2, 2006, and modified on
September 22, 2006. In the Mortgage, Borrower granted Lender “a security
interest in and all of [Borrower’s] rights, titles, and interest in the Lease and
[Borrower’s] leasehold estate … located in Lake County at 8215 Broadway,
Merrillville, Indiana, 46410.” Appellant’s App. pp. 129-30. The Mortgage was
recorded with the Lake County Recorder on or about February 28, 2007. At
some point, BMO Harris was assigned all of Lender’s rights and obligations
pursuant to the Note and the Mortgage.
[5] Since August of 2007, William Niemet has operated the Golden Corral
Restaurant at 8215 Broadway on behalf of GC 2548. Borrower transferred the
franchise agreement for the Golden Corral to GC 2548, and ever since, GC
2548 has operated pursuant to the terms of the Lease, making payments directly
1
The Note was amended on September 21, 2007, in the amended amount of $1,501,918.50.
(Appellant’s App. 85).
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to Landlord while also paying property taxes and improving the real estate. GC
2548, however, is not associated with Borrower, has never been made a party to
the Lease, and has not been assigned any of Borrower’s rights pursuant to the
Lease. Moreover, GC 2548 has made no payments to BMO Harris on the
Note.
[6] On January 23, 2013, BMO Harris filed a complaint for breach of contract,
foreclosure of the Mortgage, and appointment of a receiver. BMO Harris
named Borrower as principal defendant and also named, as guarantors of
Borrower’s debt, MCSS Illinois, L.L.C.; Kipling Homes, L.L.C.; Kipling
Development Corporation; Edward Mattox; and Peter Cinquegrani. BMO
Harris alleged that Borrower breached the terms of the Note by, inter alia,
failing to repay the indebtedness and all other sums due on the maturity date of
September 22, 2011. The complaint also sought to foreclose BMO Harris’s
interest in the Parcel. Of the defendants, only Cinquegrani appeared and
answered the complaint.
[7] On April 18, 2013, the trial court granted BMO Harris’s request for the
appointment of a receiver. On May 29, 2013, GC 2548 moved to intervene,
which motion the trial court granted on June 18, 2013. On June 20 and
October 29, 2013, the receiver filed reports, neither of which was objected to by
GC 2548. On December 20, 2013, the receiver filed a third report, to which
GC 2548 objected on unspecified grounds.
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[8] On June 24, 2014, BMO Harris moved for entry of default, judgment, and order
of possession of the Parcel. On July 11, 2014, GC 2548 filed a counter/third-
party claim. On July 14, 2014, the trial court held a hearing on BMO Harris’s
motion for entry of default, judgment, and order of possession. On August 5,
2014, the trial court entered default judgment against all defendants except
Cinquegrani and ruled that none of the defendants had any right of possession
of the Parcel.
[9] On August 20, 2014, the trial court held a contested hearing on the issue of
possession of the Parcel, at which GC 2548 presented evidence concerning its
claim that Borrower had abandoned the Parcel and that GC 2548 was an
equitable assignee of the Lease. On September 19, 2014, the trial court issued
its order on BMO Harris’s motion for possession. The trial court’s order
provides as follows:
ORDER
This matter came before the Court on Plaintiff’s Motion
for Possession of Real Estate and heard on August 20, 2014. The
Plaintiff, BMO HARRIS, N.A. f/k/a HARRIS N.A., as the
Assignee of the Federal Deposit Insurance Corporation as the
receiver for Amcore Bank, N.A. (hereinafter, “BMO HARRIS”)
appeared by counsel, JOHN R. TERPSTRA and SCOTT B.
COCKRUM. The Intervening Defendant, [GC 2548], appeared
in person by its corporate representative and by counsel, DAVID
E. WOODWARD and R. BRIAN WOODWARD.
Cause submitted. Evidence heard.
The Court, after considering the evidence, hearing
arguments of counsel, having taken this matter under advisement
and being duly advised in the premises now submits its findings
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of fact and conclusions of law pursuant to Trial Rule 52 A of the
Indiana Rules of Civil Procedure.
ISSUES
The Plaintiff contends that Promissory Notes dated
September 22, 2006 and September 21, 2007 were entered into
between AMCORE BANK, N.A. to which BMO HARRIS is an
assignee, as Lender and MCSS MERRILLVILLE, LLC
(hereinafter “MCSS”) as Borrower. The Plaintiff contends that
the subsequent note amended the original. Moreover, the note
was secured by a Leasehold Mortgage dated June 2, 2006 with a
Modification of Leasehold Mortgage dated September 22, 2006.
The Plaintiff further contends that the Leasehold Mortgage
claimed a right to a leasehold interest held by, MCSS under
Lease for Century Plaza Merrillville (hereinafter, the “LEASE”)
as described under a Memorandum of Lease dated June 15, 2006
and recorded with the Recorder of Lake County, Indiana. The
Plaintiff further contends that the Leasehold Mortgage and
Memorandum of Lease encompass a leasehold located at 8215
Broadway, Merrillville, Indiana, at which address is operated a
Golden Corral restaurant. Before August, 2007, MCSS operated
the Golden Corral restaurant; since August 2007, [GC 2548] has
operated the Golden Corral restaurant.
The Intervening Defendant contends that [GC 2548] is not
affiliated with MCSS. Furthermore, the Intervening Defendant
contends that [GC 2548] executed no documents evidencing
assignment of any rights or obligations under the Lease by MCSS
or BMO HARRIS. The Intervening Defendant contends that it
was not, and never has been, a named tenant or other party
under the terms of the Lease. And the Intervening Defendant
contends that it took on obligations under the Lease in payment
of rents and maintained its Golden Corral restaurant through
capital and repair expenditures. The issues are:
1. Does the Order of Hearing of July 14, 2014, as
amended foreclose BMO HARRIS’ security interest with finality
against the interest of [GC 2548]?
2. Notwithstanding the fact that [GC 2548] took on
the obligations of the Lease without having actually signed same
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is said Intervening Defendant subject to the provisions related to
its predecessor, MCSS?
FINDINGS OF FACTS
A preponderance of the evidence established the following
facts:
1. The Lease, a real estate interest, is owned by the
landlord, IP-TL Century Plaza, LLC.
2. BMO HARRIS is foreclosing upon a leasehold
interest.
3. With the exception of the Intervening Defendant all
other Defendants have been defaulted and that those Defendants
have no existing right to possession or claim to the property at
issue.
4. The Court appointed a Receiver on April 18, 2013;
moreover, the Receiver demanded no rents nor initiated no
lawsuits against the Intervening Defendant.
5. Since August, 2007 the Intervening Defendant has
operated the Golden Coral restaurant in Merrillville, Indiana in
accordance with and consistent with the Lease.
6. The Intervening Defendant is not affiliated with any
of the defaulted Defendants.
7. The Intervening Defendant has not paid any
payments to BMO Harris or its assignor at any time pursuant to
the Leasehold Mortgage or note.
8. The Intervening Defendant is the sole entity which can
currently operate a Golden Corral restaurant as a franchisee at the
Merrillville location which is the subject of this lawsuit.
9. Since taking possession of the premises in August,
2007, the Intervening Defendant has made improvements on the
property.
PRINCIPLES OF LAW
1. The Court shall further determine whether or not
the default judgment of July 14, 2014 as amended binds the
Intervening Defendant.
2. In determining whether a security holder of a
leasehold has a possessory interest of real estate, courts examine
whether a lessor is privy to said security agreement.
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3. The Court shall determine BMO HARRIS’ ability
to remove the Intervening Defendant from real estate located at
8215 Broadway, Merrillville, Indiana pursuant to IC 34-30-10-4
et seq.[]
ANALYSIS
In the matter before the Court a default judgment of
foreclosure on the Note and Leasehold Mortgage between BMO
HARRIS, MCSS and other defendants except for Peter
[Ci]nquegrani who agreed to a judgment of foreclosure being
entered against him to the Order of Hearing of July 14, 2014, as
amended. The aforesaid order forecloses BMO HARRIS’
security with finality and entitles BMOHARRIS [sic] to
immediately execute said foreclosure.
The real estate owner, IP-TL Century Plaza, LLC is not a
party in the herein cause of action. The Leasehold Mortgage,
however, spells out the relationship between IP-TL Century
Plaza, LLC and BMO HARRIS. Consequently, IP-TL Century
Plaza, LLC has protection of its rights regardless of whom the
lessee might be given the Leasehold Mortgage.
The intervening Defendant argues that BMO HARRIS
failed to set forth evidence of assignment of the Leasehold
Mortgage and, thus, cannot sustain[] its judgment of foreclosure.
Indiana Courts have held “the assignment is not the foundation
of the action in (foreclosure cases), and that it is not necessary to
set out a copy of such assignment”. Stanford v. Broadway
Savings & Loan Company, 24 N.E. 154, 155 (Ind. 1890). Since
the Intervening Defendant was not a party to the contract
between BMO HARRIS and MCSS, not in privity with BMO
HARRIS or MCSS, and not an intended third party beneficiary
of the Leasehold Mortgage it lacks standing to assert contract
defen[ses]. Harold McComb & Son, Inc. v. JP Morgan Chase
Bank, NA, 892 N.E.2d 1255 (Ind. Ct. App. 2008). Williams v.
Eggleston, 170 U.S. 304 (1898).
The statutory argument that the Intervening Defendant
postulate[s] has no basis herein due to the fact that BMO
HARRIS is probably seeking its remedy under IC 32-30-10, et
seq.[] Moreover, the Leasehold Mortgage is a security interest
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flowing with the negotiable instrument and attaching to the
collateral under I.C. 26-1-9.1-203 the transaction is govern by
Article 3 and enforceable under Article 9[.1] of the Uniform
Commercial Code. BMO HARRIS is entitled to take possession
of the collateral given the fact that the Intervening Defendant has
not made a requisite payment to the Receiver notwithstanding
that said Receiver has not made any demands of same on said
Intervening Defendant. The Leasehold Mortgage in essence
binds the Intervening Defendant given the fact that there was a
default judgment on the critical parties in the herein proceedings.
CONCLUSIONS OF LAW
1. The default judgment of July 14, 2014, as amended
binds the Intervening Defendant.
2. The lessor, IP-TL Century Plaza, LLC, is privy to
the herein Leasehold Mortgage.
3. BMO HARRIS has standing to remove the
Intervening Defendant from the real estate located at 8215
Broadway, Merrillville, Indiana pursuant to IC 34-30-10-4.
ORDER
The Court orders as follows:
(a.) The Motion for Possession of BMO HARRIS is
granted.
(b.) The Intervening Defendant is ordered to vacate any
right or obligation it holds to the leasehold at 8215 Broadway,
Merrillville, Indiana within (30) thirty days from the date of the
herein order.
(c.) In the event the Intervening Defendant fails to
vacate the leasehold, the Sheriff of Lake County shall enter upon
said interest and eject the Intervening Defendant or any other
person or party, who, since the commencement of this action,
may have come into possession of the herein leasehold interest
and put BMO HARRIS in full, peaceful and quiet possession of
the leasehold interest without delay.
(d.) This matter is hereby certified for interlocutory
appeal.
ALL OF WHICH IS ORDERED this 19th day of
September, 2014.
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Appellant’s App. pp. 26-30.
[10] GC 2548 contends that (1) the trial court erred in concluding that Article 9.1
applied; (2) GC 2548 is an equitable assignee of Borrower’s Lease; (3) the
equitable assignment of the Lease terminated BMO Harris’s security interest;
and (4) that even if BMO Harris’s security interest is still valid, BMO Harris is
not entitled to immediate possession of the Parcel. BMO Harris counters that
(1) GC 2548 waived certain arguments, (2) GC 2548 was bound by the default
judgment against defendants, (3) Article 9.1 of the UCC applies, (4) GC 2548 is
not entitled to equitable relief, and (5) the trial court correctly entered its order
of possession in favor of BMO Harris.
Discussion and Decision
[11] Where, as here, the trial court has issued written findings and conclusions, our
standard of review is well-settled:
First, we determine whether the evidence supports the findings
and second, whether the findings support the judgment. In
deference to the trial court’s proximity to the issues, we disturb
the judgment only where there is no evidence supporting the
findings or the findings fail to support the judgment. We do not
reweigh the evidence, but consider only the evidence favorable to
the trial court’s judgment. Challengers must establish that the
trial court’s findings are clearly erroneous. Findings are clearly
erroneous when a review of the record leaves us firmly convinced
a mistake has been made. However, while we defer substantially
to findings of fact, we do not do so to conclusions of law.
Additionally, a judgment is clearly erroneous under Indiana Trial
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Rule 52 if it relies on an incorrect legal standard. We evaluate
questions of law de novo and owe no deference to a trial court’s
determination of such questions.
Balicki v. Balicki, 837 N.E.2d 532, 535-36 (Ind. Ct. App. 2005) (citing Carmichael
v. Siegel, 754 N.E.2d 619, 625 (Ind. Ct. App. 2001)), trans. denied.
I. Whether GC 2548 has Waived Certain Arguments
[12] BMO Harris argues that GC 2548 has waived certain arguments for appellate
review. Specifically, BMO Harris contends that GC 2548 failed to make any
argument in the trial court regarding the equitable assignment of Borrower’s
Lease and may not now raise it for the first time on appeal.
As a general rule, a party may not present an argument or issue
to an appellate court unless the party raised that argument or
issue to the trial court. Pitman v. Pitman, 717 N.E.2d 627, 633
(Ind. Ct. App. 1999). This rule exists because trial courts have
the authority to hear and weigh the evidence, to judge the
credibility of witnesses, to apply the law to the facts found, and to
decide questions raised by the parties. See Whiteco Indus., Inc. v.
Nickolick, 549 N.E.2d 396, 398 (Ind. Ct. App. 1990). Appellate
courts, on the other hand, have the authority to review questions
of law and to judge the sufficiency of the evidence supporting a
decision. Id. The rule of waiver in part protects the integrity of
the trial court; it cannot be found to have erred as to an issue or
argument that it never had an opportunity to consider.
Conversely, an intermediate court of appeals, for the most part, is
not the forum for the initial decisions in a case. Consequently,
an argument or issue not presented to the trial court is generally
waived for appellate review. Id.
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GKC Indiana Theatres, Inc. v. Elk Retail Investors, LLC., 764 N.E.2d 647, 651 (Ind.
Ct. App. 2002).
[13] BMO Harris points to the fact that GC 2548 did not specifically argue equitable
assignment at the default judgment or possession hearings on July 14 and
August 20, 2014, respectively. While essentially conceding that this is true, GC
2548 contends that the equitable assignment issue was adequately before the
trial court because it was raised in its counter/third-party claim, filed on July
11, 2014. In support of its position, GC 2548 includes passages from the
counter/third-party claim in its reply brief. This, along with the fact that GC
2548 presented evidence at the August 20, 2014, hearing relating to the issue, is
adequate to preserve the issue for appellate review.
[14] While there does not seem to be any reason to doubt the accuracy of the quoted
passages from the counter/third-party claim, and BMO Harris does not contest
their authenticity or accuracy, the fact is that GC 2548’s counter/third-party
claim does not appear in the record on appeal: it was not included in BMO
Harris’s Appellant’s Appendix and GC 2548 did not file an appendix. As a
general rule, this court may not consider material that is not properly part of the
record on appeal. See King v. State, 877 N.E.2d 518, 522 n.2 (Ind. Ct. App.
2007) (“[W]e may not and should not consider material that is not part of the
record.”).
[15] Under the circumstances of this case, however, we conclude that application of
waiver would be inappropriate. First, in our view it was BMO Harris’s
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responsibility to point out that GC 2548’s counter/third-party claim was not
part of the record on appeal, and it did not. BMO Harris could have filed a
motion to strike that portion of GC 2548’s reply brief but did not. Second, it
seems a near certainty that the result of a motion to strike portions of GC 2548’s
reply brief would have been a request to file a belated appendix, a request that
likely would have been granted in the interest of deciding issues on the merits.
Third, GC 2548 did, in fact, present evidence related to the equitable
assignment issue at the hearing on August 20, 2014. We conclude that
application of the waiver rule would be inappropriate in this case, allowing this
court to reach the merits of all of GC 2548’s arguments.
II. Whether the Trial Court Erred in Concluding that
GC 2548 was not Equitably Assigned the Lease
[16] GC 2548 argues that despite never having been made a party to the Lease, it
was nonetheless equitably assigned the Lease by Borrower and that the trial
court erroneously failed to so conclude. GC 2548 follows this argument by
claiming that the alleged equitable assignment of the Lease extinguished BMO
Harris’s security interest. It is worth noting that GC 2548 is appealing from a
negative judgment on this claim, making its task difficult on appeal:
A judgment entered against a party who bore the burden of proof
at trial is a negative judgment. Garling v. Ind. Dep’t of Natural Res.,
766 N.E.2d 409, 411 (Ind. Ct. App. 2002). On appeal, we will
not reverse a negative judgment unless it is contrary to law.
Mominee v. King, 629 N.E.2d 1280, 1282 (Ind. Ct. App. 1994).
To determine whether a judgment is contrary to law, we consider
the evidence in the light most favorable to the appellee, together
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with all the reasonable inferences to be drawn therefrom. J.W. v.
Hendricks Cnty. Office of Family & Children, 697 N.E.2d 480, 482
(Ind. Ct. App. 1998). A party appealing from a negative
judgment must show that the evidence points unerringly to a
conclusion different than that reached by the trial court.
Mominee, 629 N.E.2d at 1282.
Smith v. Dermatology Associates of Fort Wayne, P.C., 977 N.E.2d 1, 4 (Ind. Ct.
App. 2012).
[17] Although the trial court did not issue any conclusions of law regarding GC
2548’s equitable assignment claim, GC 2548 contends that certain uncontested
findings of fact necessarily support such a conclusion. BMO Harris argues that
the cases regarding the equitable assignment of leases relied upon by GC 2548
are distinguishable and that the facts and evidence do not otherwise support an
equitable assignment. We agree with BMO Harris that the trial court’s
conclusion on this point is not contrary to law.
[18] GC 2548 relies on the Indiana Supreme Court’s decision in Indianapolis
Manufacturing and Carpenters Union v. Cleveland, C., C., and I. Railway Company,
45 Ind. 281 (1873), and our decision in Collins v. McKinney, 871 N.E.2d 363
(Ind. Ct. App. 2007). In Indianapolis Manufacturing and Carpenters Union, the
Cleveland, C., C., and I. (“Lessor”) leased a parcel to a man named Tate
(“Lessee”), who operated a lumber yard thereon, with the proviso that he could
not assign or sublet any portion of the premises without Lessor’s written
consent. Indpls. Mfg. and Carpenters Union, 45 Ind. at 285. Lessee occupied the
parcel until he sold his business to the Indianapolis Manufacturing and
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Carpenters Union (“the Union”), at which point Lessee notified Lessor’s agent
of the sale, continued to pay his rent to Lessor pursuant to the lease, and
received an equal amount from the Union each month. Id. at 285-86. As it
happens, Lessor objected to the Union’s occupation of the parcel and sued to
recover possession soon after learning of it. Id. at 290. The Indiana Supreme
Court ruled that even in the absence of a written assignment, the arrangement
between Lessee and the Union amounted to an equitable assignment,
something the lease did not allow. Id. Consequently, the Indiana Supreme
Court affirmed the trial court’s ruling that Lessor was entitled to recover
possession of the property in question. Id.
[19] In Collins, McKinney leased two parcels of land from Collins, which it promptly
assigned (with Collins’s consent) to Tomkinson Chrysler Jeep, Inc. Collins, 871
N.E.2d at 367. As in Indianapolis Manufacturing and Carpenters Union, the lease
contained a no-assignment/sublet-without-consent provision. Id. at 366.
Tompkinson subsequently sold its Chrysler Jeep dealership to Glenbrook
Dodge, Inc., without Collins’s consent. Id. at 367. The trial court granted
McKinney’s motion for directed verdict, concluding that Collins had produced
insufficient evidence of a breach of contract. Id. at 369. We reversed on this
point, reasoning as follows:
Here, Collins presented sufficient evidence to support a jury
finding that the arrangement between Tomkinson and Glenbrook
constituted an equitable assignment as discussed in Indianapolis
Manufacturing. First, the evidence as to whether there was ever
actually a management agreement between Tomkinson and
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Glenbrook is in conflict. At one point, Doug McKibben, the
owner of Glenbrook, testified, “We had a Management
Agreement.” Tr. p. 123. However, he then testified that the
“only” agreement between Tomkinson and Glenbrook was the
Asset Purchase Agreement. Id. at 123-24. Furthermore, there is
evidence that Glenbrook assumed Tomkinson’s lease obligations
for Parcel 1 in August 2004, took possession of Parcel 1, and
began paying rent directly to McKinney for the parcel. Finally,
there is evidence that Glenbrook began selling a different brand
of cars than McKinney after taking possession of Parcel 1,
suggesting that Glenbrook was in primary control. The jury
could have reasonably found that the arrangement between
Tomkinson and Glenbrook constituted an assignment of the
Sublease.
Id. at 373.
[20] Keeping in mind that we are evaluating a claim rooted in equity, we conclude
that the authority relied upon by GC 2548 does not help its cause. “[T]he very
first maxim with which we meet in equity is that it will regard that as done
which in good conscience ought to be done.”2 Sourwine v. Supreme Lodge Knights
of Pythias of the World, 12 Ind. App. 447, 452, 40 N.E. 646, 647 (1895) (citation
omitted). In both Indianapolis Manufacturing and Carpenters Union and Collins,
the doctrine of equitable assignment was enlisted to aid landlords whose tenants
had effectively–and impermissibly–assigned their leases while hoping to avoid
the consequences because the assignment was not “official.” The facts of this
case are quite different. Essentially, GC 2548 is seeking to employ the doctrine
2
The version of this passage found in the www.westlaw.com database differs from the version found in
the Indiana Appellate Court Reports by adding commas after “which” and “conscience.”
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of equitable assignment so that it may assume Borrower’s beneficial rights
without being burdened by Borrower’s most onerous obligation, i.e., the Note
with its associated security interest. Put simply, the equities of this case do not
favor GC 2548.
[21] Even beyond the purely equitable concerns, this case is also distinguishable
from Indianapolis Manufacturers and Carpenters Union and Collins on the facts
more specifically relating to the alleged assignment. GC 2548 points to some of
the trial court’s findings to support its argument that the trial court was
essentially compelled to conclude that an equitable assignment of the Lease
occurred, namely, findings that GC 2548 had operated the Golden Corral since
2007 and that it made improvements to the Parcel. These findings do not
necessarily support a conclusion that CG 2548 had completely taken over the
Parcel, especially when one considers that there is no evidence that GC 2548
ever made a single payment on the Note. GC 2548 also points to evidence in
the record that it purchased the franchise rights for the restaurant from
Borrower, that it dealt directly with Landlord, that BMO Harris was aware as
far back as 2007 that it was in possession of the Parcel, and that all concerned
were aware that it GC 2548 was not affiliated with Borrower. The trial court,
however, made no findings regarding this evidence and was not required to
credit it. Finally, there does not seem to be any evidence that Landlord had any
issue with GC 2548’s occupancy of the Parcel, despite the fact that the Lease
included the standard non-assignment/sublet language. In other words, it may
be inferred that the Landlord seems to have viewed GC 2548’s occupancy of the
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Parcel as something like a management agreement. When viewed in light of
the stringent standard of review employed when a party appeals from a negative
judgment, the findings and other evidence in the record do not point unerringly
to a conclusion different from the trial court’s. The trial court’s conclusion in
this regard is not clearly erroneous.3
III. Whether The Trial Court Erred in Concluding that
Article 9.1 of the Indiana UCC Applies to Leasehold
Mortgages
[22] GC 2548 argues that the trial court erred in applying Article 9.1 of the Indiana
UCC, which governs secured transactions, because the interest at issue in this
case is a leasehold, allegedly an interest in real property. BMO Harris argues
that the trial court properly ruled that Article 9.1 (codified at Indiana Code
chapter 26-1-9.1) applies in this case, arguing that GC 2548 has failed to
establish that a leasehold mortgage is an interest in or lien against real property.
This question is key because if the provisions of the Indiana Code governing
“normal” real estate mortgage foreclosures apply, BMO Harris’s remedy in the
event of foreclosure would be a sheriff’s sale of Borrower’s interest in the
Parcel. On the other hand, if the provisions of the UCC apply, BMO Harris
would have the ability to immediately take possession of the Parcel.
3
Because we affirm the trial court’s conclusion that there was no equitable assignment of the Lease, we
need not address GC 2548’s argument that the equitable assignment extinguished BMO Harris’s
security interest.
Court of Appeals of Indiana | Opinion 45A03-1409-MF-345 | June 9, 2015 Page 19 of 25
[23] We agree with GC 2548. Broadly, under the provisions of the UCC dealing
with security interests in personal property, “[e]xcept as otherwise provided in
subsections (c) and (d), IC 26-1-9.1 applies to … a transaction, regardless of its
form, that creates a security interest in personal property or fixtures by
contract[.]” Ind. Code § 26-1-9.1-109(a). This provision does not include
leaseholds on real property, and we have little hesitation in concluding that
leaseholds on real property are neither personal property nor fixtures.
Additionally, subsection (d) of the same statute specifically provides that, inter
alia, “IC 26-1-9.1 does not apply to … the creation or transfer of an interest in
or lien on real property, including a lease or rents thereunder[.]” Ind. Code § 26-1-
9.1-109(d) (emphasis added). The plain language of the Indiana UCC indicates
that its provisions do not apply to leasehold mortgages.
[24] Our resolution of this issue is consistent with the weight of authority
nationwide, which holds that a leasehold mortgage is a security interest in real
estate and that law pertaining to security interests in personal property does not
apply to them. See, e.g., In re Bristol Associates, Inc., 505 F.2d 1056, 1061 (3d Cir.
1974) (“Our conclusion, that lenders need not conform to the requirements of
Article 9 in order to retain their security interest in a real estate lease assigned to
them as collateral, is supported, apparently unanimously, by authorities who
have considered this problem.”).; In re Le Sueur’s Fiesta Store, Inc., 40 B.R. 160,
162 (Bankr. D. Ariz. 1984) (“Accordingly, as an ‘instrument affecting real
property’ a security interest in an Arizona lease is valid against the Trustee or
Court of Appeals of Indiana | Opinion 45A03-1409-MF-345 | June 9, 2015 Page 20 of 25
subsequent purchasers or creditors without notice only if recorded in the
County Recorder’s office rather than with the Secretary of State.’”).
[25] In summary, GC 2548 is correct that a leasehold mortgage foreclosure is
governed by Indiana statutory law regarding real estate mortgages, and that the
same foreclosure procedures need to be used. Therefore, Indiana Code chapter
32-30-10, which details the process of mortgage foreclosure, applies.
IV. Whether the Trial Court Erred in Concluding that
BMO Harris is Entitled to Immediate Possession of the
Parcel
[26] Finally, GC 2548 argues that nothing in either Indiana Code chapter 32-30-10
or the Mortgage allows BMO Harris to take immediate possession of the Parcel.
BMO Harris responds to this contention by arguing that GC 2548 must present
a defense in order to defeat BMO Harris’s claim of immediate possession, a
defense that GC 2548 lacks the standing to assert. We agree with GC 2548 that
BMO Harris has no right to immediate possession of the Parcel. GC 2548 is
correct that Indiana Code chapter 32-30-10 contains no provisions for
repossession by a mortgagee prior to a sheriff’s sale. The Mortgage is likewise
silent on the topic. As this court has explained,
In most of our states, however, the lien theory of a mortgage
prevails and a mortgagee acquires nothing more than a lien upon
the property mortgaged. The mortgagor retains legal title and
foreclosure is necessary to transfer the same to the mortgagee,
who must purchase the property at decretal sale if he wishes to
acquire such title. See Wiltsie on Mortgage Foreclosures, Fifth
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Edition, Vol. 1, p. 10. Indiana is unequivocally committed to the
lien theory 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. Baldwin v. Moroney (1910), 173 Ind. 574, 91
N.E. 3; Aetna Life Ins. Co. v. Broeker (1906), 166 Ind. 576, 77 N.E.
1092; State ex rel. v. Smith (1902), 158 Ind. 543, 63 N.E. 25, 214,
64 N.E. 18, 63 L.R.A. 116; Lowe v. Turpie (1897), 147 Ind. 652,
44 N.E. 25, 47 N.E. 150, 37 L.R.A. 233; United States Saving Fund
and Investment Co. v. Harris (1895), 142 Ind. 226, 40 N.E. 1072, 41
N.E. 451; Morton v. Noble (1864), 22 Ind. 160; Fletcher v. Holmes
(1870), 32 Ind. 497; Grable v. McCulloh (1867), 27 Ind. 472.[4]
Oldham v. Noble, 117 Ind. App. 68, 75-76, 66 N.E.2d 614, 617 (1946).
[27] To summarize, the default situation in Indiana is that a mortgagee has a lien
on, but no right to possession of, the mortgaged premises, and the facts of this
case fit the default pattern. Because BMO Harris has no right to immediate
possession of the Parcel, GC 2548 need not present a defense. Whatever rights
BMO Harris may have to possess the Parcel will have to be purchased at the
sheriff’s sale conducted pursuant to Indiana Code sections 32-30-10-5, -8, and -
4
This string citation, as it appears in the Indiana Appellate Reports, differs in several respects from the
citation found on the www.westlaw.com database and the printed Northeast Reporter volume. Rather
than list the differences, the most obvious of which is the lack of italics, here is the West version for
comparison:
Baldwin v. Moroney, 1910, 173 Ind. 574, 91 N.E. 3, 30 L.R.A., N.S., 761; Aetna
Life Ins. Co. v. Broeker, 1906, 166 Ind. 576, 77 N.E. 1092; State ex rel. Lewis v.
Smith, 1902, 158 Ind. 543, 63 N.E. 25, 214, 64 N.E. 18, 63 L.R.A. 116; Lowe v.
Turpie, 1897, 147 Ind. 652, 44 N.E. 25, 47 N.E. 150, 37 L.R.A. 233; United States
Saving Fund & Investment Co. v. Harris, 1895, 142 Ind. 226, 40 N.E. 1072, 41 N.E.
451; Morton v. Noble, 1864, 22 Ind. 160; Fletcher v. Holmes, 1870, 32 Ind. 497;
Grable and Others v. McCulloh, 1867, 27 Ind. 472.
Court of Appeals of Indiana | Opinion 45A03-1409-MF-345 | June 9, 2015 Page 22 of 25
9. We reverse the trial court’s order giving immediate possession to BMO
Harris.
Conclusion
[28] We conclude that GC 2548 preserved its equitable assignment claim for
appellate review, although it has failed to establish that the trial court erred in
finding that equitable assignment of the Lease did not occur. We further
conclude that the trial court erred in concluding that the provisions of Article
9.1 of the UCC applied to the leasehold mortgage in this case. Finally, because
we have concluded that real estate mortgage procedures must be used, we
further conclude that BMO Harris has no right to immediate possession of the
Parcel. Consequently, we remand for a sheriff’s sale pursuant to the Indiana
Code chapter 32-30-10.
[29] The judgment of the trial court is affirmed in part and reversed in part, and we
remand with instructions.
Kirsch, J., concurs.
Vaidik, C.J., concurs in part and dissents in part with opinion.
Court of Appeals of Indiana | Opinion 45A03-1409-MF-345 | June 9, 2015 Page 23 of 25
IN THE
COURT OF APPEALS OF INDIANA
Merrillville 2548, Inc. successor to Court of Appeals Case No.
45A03-1409-MF-345
Merrillville GC 2548, Inc.,
Appellant/Intervenor/Counterclaim
Plaintiff,
v.
BMO Harris Bank N.A. f/k/a
Harris N.A., as the assignee of the
Federal Deposit Insurance
Corporation as the receiver for
Amcore Bank, N.A.,
Appellee/Plaintiff/Counterclaim
Defendant,
VAIDIK, Chief Judge, concurring in part, dissenting in part.
[30] I concur in full with the majority’s treatment of the waiver, equitable
assignment, and UCC issues in this case. I respectfully dissent with respect to
the final issue—whether BMO Harris is entitled to possession of the Parcel.
[31] The majority concludes that BMO Harris must purchase its right of possession
at a sheriff’s sale because “the default situation in Indiana is that a mortgagee
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has a lien on, but no right to possession of, the mortgaged premises, and the
facts of this case fit the default pattern.” Slip op. at 22. I agree with this
statement of the law. But here, GC 2548 is, at best, a month-to-month tenant,
not a lessee or mortgagor. See Ind. Code § 32-31-1-2. As such, GC 2548 lacks
any interest in the Parcel that certain mortgage-foreclosure procedures—
particularly sheriff sales—are designed to protect.5 See Ind. Code § 32-30-10-14
(“In all cases in which the proceeds of sale exceed the amounts described . . .
the surplus must be paid to . . . the mortgage debtor, mortgage debtor’s heirs, or
other persons assigned by the mortgage debtor.”). As a month-to-month
tenant, GC 2548’s interest in the property was thirty days’ possession, and had
there been no mortgage-foreclosure action, GC 2548 would have been entitled
to thirty days’ notice before eviction, nothing more. See Ind. Code § 32-31-1-1.
[32] By ordering a sheriff’s sale, I believe the majority confers greater protection
upon GC 2548 than it deserves, given that it is merely a month-to-month tenant
with no interest in the Parcel. I would affirm the trial court’s order giving BMO
Harris the right to take possession of the Parcel in thirty days’ time.
5
The only party with interest in the Parcel was Borrower, but Borrower abandoned that interest when it
agreed to foreclosure by default.
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