Tracy K. Fry and Keith A. Fry v. PHH Mortgage Corp

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 the defense of res
judicata, collateral estoppel, or the law Nov 27 2013, 9:29 am
of the case.
APPELLANTS PRO SE: ATTORNEY FOR APPELLEE:
KEITH A. FRY BRYAN K. REDMOND
Goshen, Indiana Feiwell & Hannoy, P.C.
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
TRACY K. FRY and KEITH A. FRY, )
)
Appellants, )
)
vs. ) No. 20A04-1212-MF-628
)
PHH MORTGAGE CORP., )
)
Appellee. )
APPEAL FROM THE ELKHART SUPERIOR COURT
The Honorable Stephen R. Bowers, Judge
Cause No. 20D02-1108-MF-188
November 27, 2013
MEMORANDUM DECISION – NOT FOR PUBLICATION
BARNES, Judge
Case Summary
Tracy and Keith Fry appeal the trial court’s grant of summary judgment in favor of
PHH Mortgage Corporation (“PHH”). We affirm.
Issue
The Frys raise two issues, which we reorder and restate as:
I. whether the trial court lacked subject matter
jurisdiction; and
II. whether there were genuine issues of material fact
regarding the notification of default.
Facts
In 2004, the Frys executed a promissory note in favor of Century 21 Mortgage,
and the note was secured by a mortgage. The Frys stopped making the required
payments in 2009.
On August 2, 2011, PHH filed a complaint to enforce the note and foreclose on the
mortgage. In the complaint, PHH alleged that Century 21 Mortgage was an assumed
business name for PHH and that it was entitled to enforce the promissory note. On
January 3, 2012, the Frys filed a pro se answer, which apparently included counterclaims
and affirmative defenses. On March 1, 2012, PHH filed a motion for summary judgment.
On March 27, 2012, Kenneth filed an affidavit with the trial court. That same day, an
attorney entered an appearance on behalf of the Frys and filed a motion for an extension
of time. The trial court allowed the Frys until May 27, 2012 to respond to the motion for
summary judgment. On June 25, 2012, PHH filed a reply and designated additional
evidence. On October 12, 2012, a hearing on the motion for summary judgment was
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held. On November 6, 2012, the trial court issued partial summary judgment granting
PHH an in rem judgment against the property and ordering the sheriff to sell the property
to satisfy the amount of the judgment. The Frys filed a motion to correct error, which the
trial court denied. They now appeal.1
Analysis
I. Subject Matter Jurisdiction
The Frys argue that the trial court lacked subject matter jurisdiction. They assert
that PHH acted with unclean hands because, in a prior 2008 action, the promissory note
attached to the complaint was not endorsed and, in the 2011 action, the note attached to
the complaint was endorsed. “‘The question of subject matter jurisdiction entails a
determination of whether a court has jurisdiction over the general class of actions to
which a particular case belongs.’” K.S. v. State, 849 N.E.2d 538, 542 (Ind. 2006)
(quoting Troxel v. Troxel, 737 N.E.2d 745, 749 (Ind. 2000)). “Real jurisdictional
problems would be, say, a juvenile delinquency adjudication entered in a small claims
court, or a judgment rendered without any service of process.” Id. at 542. The Frys cite
no authority for the proposition that the trial court did not have the ability to hear cases
where a party has allegedly acted with unclean hands. Without more, we are not
convinced that the trial court lacked subject matter jurisdiction over PHH’s complaint.
II. Notice
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In their notice of appeal, the Frys indicate they are appealing a final judgment. It appears, however,
there are unresolved issues related to their counterclaims. As such, the partial summary judgment order is
not final pursuant to Indiana Trial Rule 54(B). Nevertheless, we believe we have jurisdiction pursuant to
Indiana Appellate Rule 14(A)(4), which allows an interlocutory appeal as of right of an order for the sale
or delivery of possession of real property.
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The Frys contend that PHH did not establish it notified them of their default as
required in order to accelerate the amount due. In support of this argument, the Frys rely
on Keith’s March 27, 2012 affidavit, in which, among other self-serving assertions, Keith
claimed, “That the Plaintiff never gave notice, as required under the terms of the note, of
its intent to accelerate the balance of the loan.” App. p. 19.
Assuming the affidavit was procedurally proper,2 it is insufficient to create a
genuine issue of material fact because Keith did not have personal knowledge of whether
PHH sent notice. See Ind. Trial Rule 56(E) (requiring supporting and opposing affidavits
to be made on personal knowledge). Because the requirements of Trial Rule 56(E) are
mandatory, a court considering a motion for summary judgment should disregard
inadmissible information contained in supporting or opposing affidavits. Capital Drywall
Supply, Inc. v. Jai Jagdish, Inc., 934 N.E.2d 1193, 1197 (Ind. Ct. App. 2010).
Further, even if we construe this statement as establishing that Keith did not
receive such notice, the mortgage only required that the lender “give notice to Borrower
prior to acceleration.” Appellee’s App. p. 24 (emphasis added). The giving and
receiving of notice are distinct legal concepts. According to the Uniform Commercial
Code:
A person “notifies” or “gives” a notice or notification to
another by taking such steps as may be reasonably required to
2
The Frys’ Appendix includes only Keith’s affidavit and does not include a memorandum in opposition
to summary judgment or other designated evidence showing that there are genuine issues of material fact.
The Frys’ Appendix also includes only one page of their answer. “It is a cardinal rule of appellate review
that the appellant bears the burden of showing reversible error by the record, as all presumptions are in
favor of the trial court’s judgment.” Marion-Adams Sch. Corp. v. Boone, 840 N.E.2d 462, 468 (Ind. Ct.
App. 2006).
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inform the other in ordinary course whether or not such other
actually comes to know of it. A person “receives” a notice or
notification when:
(a) it comes to the person’s attention; or
(b) it is duly delivered at the place of business through
which the contract was made or at any other place held
out by the person as the place for receipt of such
communications.
Ind. Code § 26-1-1-201(26). PHH designated evidence that, according to its records,
“pursuant to the terms of the promissory note and mortgage, the plaintiff accelerated all
sums due and owing under the promissory note.” Appellee’s App. p. 45. The Frys do
not direct us to any admissible and properly designated evidence establishing that PHH
did not give notice of default. Without more, the Frys have not established that there is a
genuine issue of material fact regarding whether PHH gave the required notice.
Conclusion
The Frys have not established that the trial court lacked subject matter jurisdiction
over PHH’s complaint or that there is a genuine issue of material fact regarding whether
PHH gave notice of default. We affirm.
Affirmed.
CRONE, J., and PYLE, J., concur.
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