Joseph Clinard v. Visio Financial Services, Inc. (mem. dec.)

MEMORANDUM DECISION
FILED
Pursuant to Ind. Appellate Rule 65(D), May 23 2018, 7:59 am
this Memorandum Decision shall not be CLERK
regarded as precedent or cited before any Indiana Supreme Court
Court of Appeals
and Tax Court
court except for the purpose of establishing
the defense of res judicata, collateral
estoppel, or the law of the case.
APPELLANT PRO SE ATTORNEY FOR APPELLEE
Joseph Clinard J. Dustin Smith
Greenwood, Indiana Manley Deas Kochalski LLC
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Joseph Clinard, May 23, 2018
Appellant-Defendant, Court of Appeals Case No.
41A01-1707-MF-1552
v. Appeal from the Johnson Superior
Court
Visio Financial Services, Inc., The Honorable Marla Clark, Judge
Appellee-Plaintiff. Trial Court Cause No.
41D04-1312-MF-546
Robb, Judge.
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Case Summary and Issues
[1] Joseph Clinard, pro se, appeals from the trial court’s order granting Visio
Financial Services, Inc.’s (“Visio Financial”) motion for summary judgment
and denying his motion to dismiss and motion to strike. Clinard now appeals,
raising three issues for our review, which we consolidate and restate as: 1)
whether the trial court abused its discretion in denying his motion to strike; and
2) whether the trial court erred in granting summary judgment in favor of Visio
Financial. Concluding the trial court did not abuse its discretion or err in its
rulings, we affirm.
Facts and Procedural History
[2] In March of 2013, the property which is the subject of this appeal, 793 Sable
Creek Lane, Greenwood, Indiana, was owned by the Department of Veterans
Affairs. In order to purchase the property, Clinard and his wife, Crystal,
completed a Uniform Residential Loan Application and, based on this
application, the Clinards were approved for a land installment sale wherein
Visio Financial agreed to acquire title to the property and then sell the property
to Clinard on contract. Due to restrictions on purchasing eligibility, Visio
Financial was unable to buy the property directly from the Department of
Veterans Affairs.
[3] Visio Financial then agreed to loan the Clinards a majority of the funds needed
to acquire title from the Department of Veterans Affairs in exchange for the
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Clinards’ agreement to execute a promissory note, installment agreement,
memorandum of land contract, and all related deeds, including transferring title
of the property to Visio Financial.
[4] In early June of 2013, Clinard and his wife signed the installment agreement
and a promissory note obligating the Clinards to repay Visio Financial
$85,897.00 plus interest at a rate of eighteen percent per annum. On June 14,
2013, the Secretary of Veterans Affairs signed a special warranty deed
transferring title of the property to the Clinards. See Appellee’s Appendix,
Volume 2 at 61-63. That same day, the Clinards executed a general warranty
deed transferring title of the property to Visio Financial. 1 Id. at 64-65.
[5] Following the closing, the Clinards failed to make a single payment in
accordance with the promissory note and installment agreement. Id. at 38. In
December of 2013, Visio Financial filed their Complaint on Promissory Note
and to Foreclose Land Installment Contract against the Clinards. The
complaint also included as defendants Paul Templeton, Bryan Bush, and
Solutions Staffing Company, Inc., all of whom held judgment liens against the
Clinards. Visio Financial filed its Motion for Summary Judgment and Decree
of Foreclosure in October of 2014. Thereafter, Visio Financial withdrew its
motion after learning the Clinards intended to file for bankruptcy. On February
2, 2015, Visio Financial informed the trial court the Clinards filed a petition for
1
The general warranty deed was signed on May 31, 2013, but includes the written notation, “but effective
6/14/13.” See Appellee’s Appendix at 65.
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bankruptcy under Chapter 13 of the United States Bankruptcy Code and that
pursuant to the code, an automatic stay of proceedings had been imposed.
[6] While his bankruptcy petition was pending, Clinard filed four unsuccessful
motions to dismiss with the trial court.2 On November 14, 2016, Visio
Financial informed the trial court Clinard’s bankruptcy petition was dismissed. 3
On April 27, 2017, Visio Financial filed its Motion for Entry of Default
Judgment and Decree of Foreclosure4 and its Motion for Summary Judgment
and Designation of Evidence. Clinard responded by filing his own motion for
summary judgment, a motion in opposition to Visio Financial’s motion for
summary judgment, a motion to strike, and a motion to reconsider his motion
to dismiss.
[7] On June 7, 2017, the trial court granted Visio Financial’s motion for default
judgment against Paul Templeton, Bryan Bush, and Solutions Staffing
Company, Inc., and ordered that “[t]he liens, claims, and interests of the [sic]
Paul Templeton, Bryan Bush and Solutions Staffing Company, Inc. are inferior
and subordinate to that of [Visio Financial].” Appellant’s Appendix, Volume 2
at 163-65. On June 27, 2017, the trial court entered its order granting Visio
2
Clinard has filed a total of six motions to dismiss.
3
Clinard filed another bankruptcy petition on October 5, 2016. The United States Bankruptcy Court for the
Southern District of Indiana dismissed his petition on December 7, 2016.
4
As to Paul Templeton, Bryan Bush, and Solutions Staffing Company, Inc., the motion only requested the
trial court find Visio Financial’s lien to “be foreclosed as a first and prior lien on the subject property . . . .”
Appellee’s App., Vol. 2 at 31.
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Financial’s motion for summary judgment and denying Clinard’s motion to
dismiss, motion to reconsider motion to dismiss, and motion to strike. The trial
court’s order entered judgment against the Clinards in the amount of
$157,487.09. See Appellee’s App., Vol. 2 at 117-21. Clinard now appeals.
Discussion and Decision
I. Clinard’s Motion to Strike
[8] We review a trial court’s denial of a motion to strike for an abuse of discretion.
Lanni v. Nat’l Collegiate Athletic Ass’n, 989 N.E.2d 791, 797 (Ind. Ct. App. 2013).
A trial court abuses its discretion if its decision is clearly against the logic and
effect of the facts and circumstances before the court. Id. at 798.
[9] Clinard filed his motion to strike on May 9, 2017. In his motion, he alleged the
trial court should strike Visio Financial’s Motion for Summary Judgment and
Decree of Foreclosure, Motion for Default Judgment and Decree of
Foreclosure, Memorandum in Support of Summary Judgment, and the
Designation of Materials from the record. The basis of Clinard’s argument is
these documents were signed by Attorney Elyssa Meade, who was not an
attorney of record in the case. Clinard cites to Johnson County Local Rule
LR41-TR5-147(A) in support of his argument. Johnson County Local Rule
147(A) states, in relevant part,
No pleading, motion, or other paper specified in Indiana Trial
Rule 5, will be accepted for filing unless such pleading, motion,
or other paper has been signed in accordance with Indiana Trial
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Rule 11 by the attorney of record or a self-represented party. If it
is later discovered that a nonconforming pleading or motion has
inadvertently been filed the pleading, motion, or paper may be
stricken from the record.
[10] The trial court did not abuse its discretion in denying Clinard’s motion to strike.
Throughout this litigation, Visio Financial has been represented by the law firm
Manley Deas Kochalski, LLC, and Attorney Meade is a member of that law
firm. Although Clinard is correct Attorney Meade failed to file an appearance
form before filing the motions, the local rule states the trial court “may” strike
the motion from the record, but is not required to do so. The trial court’s denial
of Clinard’s motion to strike was not clearly against the logic and effect of the
facts and circumstances before the court.
II. Summary Judgment
[11] Clinard also contends the trial court erred in granting summary judgment in
favor of Visio Financial. Specifically, Clinard argues genuine issues of material
fact still exist as to whether a mortgage existed, and claims the trial court
entered conflicting rulings on this point, and that Visio Financial breached
multiple statutes relating to mortgage lending.
[12] We review a trial court’s grant of summary judgment de novo. Broad Ripple
Prop. Grp., LLC v. City of Indianapolis, 87 N.E.3d 1112, 1116 (Ind. Ct. App.
2017). Summary judgment is appropriate where the designated evidence
establishes that there is no genuine issue as to any material fact and that the
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moving party is entitled to judgment as a matter of law. Id.; Ind. Trial Rule
56(C).
[13] Clinard first alleges genuine issues of material fact exist as to whether the loan
from Visio Financial was a mortgage, and that if the loan is a mortgage, Visio
Financial was subject to further regulatory burdens under Indiana law. See
Appellant’s Brief at 10. In support of his argument, Clinard relies solely on the
trial court’s order granting default judgment in which the court referred to the
loan as a mortgage. See Appellant’s App., Vol. 2 at 163-65 (default judgment
order referring to the loan as a “mortgage”). Clinard contends the trial court’s
default judgment order conflicts with its order granting summary judgment and,
therefore, a genuine issue of material fact exists. Id. at 167-71 (summary
judgment order referring to loan as an “installment agreement”).
[14] In Skendzel v. Marshall, 261 Ind. 226, 301 N.E.2d 641 (1973), our supreme court
stated that in a typical land contract,
the vendor retains legal title until the total contract price is paid
by the vendee. Payments are generally made in periodic
installments. Legal title does not vest in the vendee until the
contract terms are satisfied, but equitable title vests in the vendee
at the time the contract is consummated. When the parties enter
into the contract, all incidents of ownership accrue to the vendee.
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Id. at 234, 301 N.E.2d at 646.5 This is precisely the situation contemplated by
Clinard and Visio Financial in their agreement. Visio Financial agreed to fund
the Clinards’ purchase of the home in exchange for the Clinards’ agreement to
sign a promissory note, installment agreement, and execute a deed transferring
title of the property to Visio Financial. The installment agreement and
promissory note required the Clinards to pay a total of $85,897.00 in twelve
monthly installments and one final balloon payment. See Appellee’s App., Vol.
2 at 9. Further, the installment agreement states,
[The Clinards] will pay the down payment amount and deliver
the promissory note for the remainder of the Total Purchase
Price due under paragraph 2, Purchase Price, to [Visio Financial]
upon execution of this Agreement. Subject to the terms and
conditions of this Agreement, and subject to [the Clinards’]
payment in full of the Promissory Note and all amounts due
hereunder, Closing will occur on the date that [Visio Financial]
deposits the Deed into the US Mail for delivery to [the Clinards]
or for recording . . . .
Appellee’s App., Vol. 2 at 49.6
5
Additionally, Indiana Code section 24-9-2-9.5 defines a “land contract” as a contract “for the sale of real
estate in which the seller of the real estate retains legal title to the real estate until the total contract price is
paid by the buyer.”
6
We recognize that a land contract is akin to a mortgage and, in some situations, can be treated as such
requiring judicial foreclosure. Skendzel, 261 Ind. at 240-42, 301 N.E.2d at 649-51. However, this is only
appropriate where the vendee has paid more than a minimal amount on the contract at the time of default.
Id. at 240-41, 301 N.E.2d at 650. Here, the Clinards have made no payments on the promissory note.
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[15] In any event, Clinard’s allegation that the contract is a mortgage rather than an
installment agreement does not raise a genuine issue of material fact. In its
designation of evidence, Visio Financial produced the installment agreement,
promissory note, and related deeds, all signed by the Clinards. Visio Financial
also produced an affidavit stating the Clinards failed to make a single payment
on the loan and Visio Financial was entitled to foreclose on the loan. Clinard
did not designate any evidence to the contrary. Therefore, the trial court did
not err in granting summary judgment in favor of Visio Financial.
[16] Clinard also alleges Visio Financial violated numerous financial lending
statutes. Specifically, Clinard argues Visio Financial failed to comply with
Indiana Code section 24-9-4-1, section 24-9-4-3, section 24-9-4-7, section 24-9-3-
7(c)(4), and section 32-29-1-3. Clinard’s brief offers no analysis or argument
demonstrating these statutes apply to the loan at issue and makes bald
allegations with no supporting evidence. Accordingly, we find Clinard has
failed to make a cogent argument and has therefore waived this issue on appeal.
Ind. Appellate Rule 46(A)(8)(a).
[17] Waiver notwithstanding, in regard to Clinard’s argument concerning Indiana
Code chapter 24-9-4, that chapter of the code applies to “high cost home
loans.” A “high cost home loan” is defined as “a home loan with a trigger rate
that exceeds the benchmark rate; or “total points and fees that exceed” a certain
percent of the loan principal. Ind. Code § 24-9-2-8(a). The term “home loan”
does not include “a land contract.” Ind. Code § 24-9-2-9(b). Therefore, these
statutes do not apply. Finally, with respect to Indiana Code section 24-9-3-
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7(c)(4), Clinard has offered nothing to support his allegation. That section
provides that “[a] person may not . . . [e]ngage in, or solicit to engage in, a real
estate transaction or a mortgage transaction without a permit or license required
by law.” Ind. Code § 24-9-3-7(c)(4). Other than stating Visio Financial
“solicited and engaged in mortgage lending activities” in violation of law,
Clinard does not allege what permit or license Visio Financial was required to
have pursuant to the law or appropriately demonstrate that they did not have
the proper license. Br. of Appellant at 12.7
Conclusion
[18] The trial court did not abuse its discretion in denying Clinard’s motion to strike
or err in granting summary judgment in favor of Visio Financial. Accordingly,
we affirm the judgment of the trial court.
[19] Affirmed.
Crone, J., and Bradford, J., concur.
7
Clinard also argues the trial court abused its discretion in denying his sixth motion to dismiss. This motion,
similar to his argument above, alleged Visio Financial sold the property in violation of Indiana Code section
32-29-1-3 and concludes that “a contract made in violation of statute is void.” Br. of Appellant at 19 (citation
omitted). Clinard’s brief on this issue is two short paragraphs and again offers no analysis of the issue other
than bald allegations. We find this issue is also waived. App. R. 46(A)(8)(a). Waiver notwithstanding, there
is nothing in the record to support the argument the contract was made in violation of statute.
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