William C. Elliott and Mary Kay Elliot v. Dyck O'Neal, Inc., Successor in interest to Fifth Third Mortgage Company

Nov 13 2015, 9:17 am
ATTORNEY FOR APPELLANTS ATTORNEYS FOR APPELLEE
Douglas K. Briody Eric C. Welch
Law Office of Doug Briody E. Phillip Gregg, Jr.
Evansville, Indiana Welch & Company, LLC
Muncie, Indiana
IN THE
COURT OF APPEALS OF INDIANA
William C. Elliott and November 13, 2015
Mary Kay Elliott, Court of Appeals Case No.
82A05-1411-MF-518
Appellants/Cross-Appellees-Defendants,
Appeal from the Vanderburgh
v. Superior Court
Lower Court Cause No.
82D03-0701-MF-185
Dyck O’Neal, Inc., Successor in
interest to Fifth Third Mortgage The Honorable Robert J. Tornatta,
Judge
Company,
Appellee/Cross-Appellant-Plaintiff.
Pyle, Judge.
Statement of the Case
[1] This appeal stems from an in rem mortgage foreclosure default judgment against
William C. Elliott (“William”) and Mary Kay Elliott (“Mary Kay”)
(collectively “the Elliotts”) and post-judgment proceeding supplemental—
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which was initiated by Dyck O’Neal, Inc. (“Dyck O’Neal”) as successor in
interest to Fifth Third Mortgage Company (“Fifth Third”)—to collect on the
deficiency from that in rem foreclosure judgment. After the trial court entered a
garnishment order for the deficiency, the Elliotts, who were not represented by
counsel, agreed to pay and began paying $50.00 per week toward the
foreclosure deficiency. More than four years later, the Elliotts, then represented
by counsel, filed a motion for a refund for the money paid toward the
deficiency, arguing that the foreclosure order included only an in rem judgment
against them. Thereafter, Dyck O’Neal filed a motion to amend the foreclosure
order to add an in personam judgment. The trial court denied both motions.
[2] On appeal, the Elliotts argue that the trial court erred by denying its motion for
refund from payments made pursuant to the garnishment order because the
foreclosure order, which did not contain an in personam judgment, provided no
basis for such payments. Dyck O’Neal cross-appeals the trial court’s denial of
its motion to amend the foreclosure judgment, arguing that the omission of an
in personam judgment in the foreclosure order was a clerical error. Concluding
that the trial court did not err by denying Dyck O’Neal’s motion to amend the
foreclosure judgment, we affirm the trial court’s ruling on that motion.
However, based on the specific facts in this case, including the lack of an in
personam judgment in the original default foreclosure order, we conclude that
the Elliotts are entitled to the equitable relief of a refund of their payments made
pursuant to the garnishment order. Accordingly, we reverse the trial court’s
ruling on the Elliotts’ motion for refund and remand to the trial court.
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[3] We affirm in part, reverse in part, and remand.
Issues
1. Cross-Appeal Issue – Whether the trial court erred by denying
Dyck O’Neal’s motion to amend the foreclosure judgment.
2. Appeal Issue – Whether the trial court erred by denying the
Elliotts’ motion for refund.
Facts1
[4] In March 2002, the Elliotts borrowed $92,200.00 from Fifth Third to finance
the purchase of a house located at 701 South Norman Avenue in Evansville,
Indiana (“the Property”). To secure payment of the note, the Elliotts executed
a thirty-year mortgage with a 6.75% interest rate in favor of Fifth Third. In
their note, the Elliotts agreed to be “fully and personally obligated to keep all of
the promises made in th[e] Note, including the promise to pay the full amount
owed.” (App. 14).
[5] Three years later, in March 2005, the Elliotts filed for bankruptcy under
Chapter 7 of the United States Bankruptcy Code. They reaffirmed the Property
1
We note that, although both parties filed appendices, there are multiple pleadings from this foreclosure
proceeding that the parties failed to include in their appendices. We direct the parties’ attention to Appellate
Rule 50(A)(2)(f), which provides that an appellate appendix should include “pleadings and other documents
from the Clerk’s Record in chronological order that are necessary for resolution of the issues raised on
appeal[.]” See also Ind. App. R. 50(A)(3) (providing that the contents of an Appellee’s Appendix is governed
by the same rule that applies to an Appellant’s Appendix). Additionally, because Dyck O’Neal failed to
include a Summary of the Argument section in its brief, we direct its attention to Appellate Rule 46, which
sets forth the arrangement and content requirements for appellate briefs.
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in their bankruptcy proceeding, and their bankruptcy case was discharged and
closed in June 2005.
[6] On January 4, 2007, Fifth Third filed a “Complaint on Note and for
Foreclosure on Mortgage” against the Elliotts. (App. 10). On January 29,
2007, Fifth Third filed an amended complaint, adding a subsequent mortgagee
bank as a defendant. In Fifth Third’s amended complaint, it sought the
following relief:
B. Enter judgment, in favor of Plaintiff and against the
Defendants, William C. Elliott and Mary Kay Elliott, in the sum
of $87,525.99, plus reasonable attorneys’ fee[s], and further
interest and costs continually accumulating and all other costs
herein, and all other relief proper in the premises;
C. Enter an Order foreclosing the Mortgage of Plaintiff on the
above-described Real Estate and foreclosing and barring the
Defendants’ equity of redemption and interest in the Real Estate;
D. Enter an Order directing the sale of the above-described Real
Estate in order to pay the Judgment of Plaintiff, at such sale the
Plaintiff will be empowered to bid for the subject Real Estate or
any part thereof with the indebtedness to be credited with any
amount paid by Plaintiff; and if the proceeds from such sale are
not sufficient to satisfy the Plaintiff’s claim and debt herein found
to be due and owing, for a further order directing the Sheriff to
immediately levy upon the goods and chattels of the Defendants
William C. Elliott and Mary Kay Elliott, until such Judgment is
satisfied in full[.]
(App. 33-34). The Elliotts and the junior mortgagee did not file an answer.
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[7] On March 7, 2007, Fifth Third filed an “Application and Affidavit for Default
Judgment” (“motion for default judgment”), an “Affidavit of Indebtedness and
Non-Military Affidavit[,]” and an “Affidavit in Support of Attorney Fees[.]”
(App. 36, 38, 41). In its motion for default judgment, Fifth Third “request[ed]
that the Court enter judgment IN REM in its favor[.]” (App. 37) (emphasis in
original).
[8] Along with its motion for default judgment, Fifth Third submitted a proposed
order, entitled “Default Judgment of Foreclosure” (“foreclosure order”), which
the trial court adopted and signed that same day.2 (App. 44). In its foreclosure
order, the trial court “granted [Fifth Third] judgment IN REM in the amount of
Ninety-two Thousand Nine Hundred Eleven Dollars and Nineteen Cents
($92,911.19) . . . with interest thereon from February 9, 2007, until the date of
the Judgment at the per diem rate of $16.19 and with a post-judgment statutory
interest rate of 6.75% thereupon until paid . . . .” (App. 45-46). The
chronological case summary (“CCS”) entry for March 13, 2007 contains the
following notation to show that this foreclosure order was entered into the
order book: “REM JUDGMENT FILED 3-7-07 FOR 3-7-07 RECEIVED
AND ENTERED INTO ORDER BOOK THIS DATE.” (App. 3).
Additionally, on the front of the foreclosure order, someone handwrote “Rem”
2
We note that both our Court and our Indiana Supreme Court have discouraged the verbatim adoption of a
party’s proposed order. See Kesling v. Hubler Nissan, Inc., 997 N.E.2d 327, 332 (Ind. 2013); Safety Nat’l Cas. Co.
v. Cinergy Corp., 829 N.E.2d 986, 993 n. 6 (Ind. Ct. App. 2005), trans. denied.
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near the title of the order. (App. 44). Because this foreclosure order is the basis
of both parties’ arguments on appeal, we include a copy of it at the end of this
opinion.
[9] Approximately one month later, on April 4, 2007, Fifth Third filed a “Praecipe
for Sheriff’s Sale[,]” and the Vanderburgh County Sheriff began the necessary
steps to sell the Property at a sheriff’s sale. (App. 56).
[10] In the meantime, on June 26, 2007, Fifth Third assigned its foreclosure
judgment to Federal Home Loan Mortgage Corporation (“FHLMC”). Two
days later, on June 28, 2007, the Vanderburgh County Sheriff held a sheriff’s
sale for the Property, and FHLMC purchased the Property for $76,000.00,
leaving a deficiency of $16,911.19 from the foreclosure judgment amount.
[11] Thereafter, on May 5, 2008, FHLMC assigned its interest in the foreclosure
judgment to Dyck O’Neal. On October 27, 2008, Dyck O’Neal filed a motion
to substitute itself as plaintiff in the mortgage foreclosure proceeding. Dyck
O’Neal also filed a motion for discovery to a non-party, the Indiana
Department of Workforce Development, seeking employment records for the
Elliotts, and the trial court granted this motion.
[12] Despite the in rem nature of the foreclosure judgment, on July 27 and August 5,
2009, Dyck O’Neal filed a “Motion for Proceedings Supplemental to
Execution[,]” seeking an order for garnishment of William’s wages (collectively
referred to as “garnishment motion”). (App. 68, 69). In its garnishment
motion, Dyck O’Neal stated that it “own[ed] a judgment against the judgment
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defendant, William C[.] Elliott, obtained in this Court on March 07, 2007, for
the sum of $93,315.94 interest and costs” and that this “judgment was partially
satisfied by virtue of a Sheriff’s Sale, leaving a balance due on the judgment in
the amount of $17,315.94, plus post judgment interest from the date of the
judgment[.]” (App. 69). Dyck O’Neal further stated that it had “no cause to
believe that levy of execution” against William would “satisfy said judgment[,]”
and it sought an “appropriate order to apply [William’s] property towards said
[foreclosure] judgment pursuant to statute.” (App. 69).
[13] On September 22, 2009, the trial court held a hearing on Dyck O’Neal’s
garnishment motion. That same day, the Elliotts, pro se, filed a “Motion to Set
Aside Judgment[,]” in which they alleged as follows:
1. That the defendant filed for bankruptcy in March 2005. That
defendant consulted with the plaintiff, Fifth Third Bank, prior to
filing and was reassured that if defendant reaffirmed the
[P]roperty . . . that the plaintiff would work with the defendant if
the defendant could not make mortgage payments in the future.
2. That when the defendant could not make said mortgage
payment in August 2006, that the plaintiff, Fifth Third Bank,
refused to work with the defendant. That the defendant offered
[an] interest only payment and [a] partial payment that plaintiff
refused[.] That the plaintiff deliberately misled the defendant to
keep [the P]roperty out of bankruptcy filing.
3. That defendant listed and tried to sell [the P]roperty and the
plaintiff refused short s[ale] of [the P]roperty.
4. That the defendant offered deed in lieu of mortgage and that
the plaintiff refused.
5. That defendant has paid the plaintiff $25,273.45 in interest and
$4,472.36 in principal for a total sum of $29,745.81.
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6. That the plaintiff, Fifth Third Bank, sold the [P]roperty at 701
S. Norman Ave. for the sum of $82,000.00 on January 4, 2008.
7. That the plaintiff has already received $111,945.81 in
compensation for the [P]roperty. That awarding plaintiff
judgment of $17,315.94 would be excessive compensation for the
original mortgage of $92,200.00.
8. That awarding plaintiff the judgment would place an undue
hardship upon defendant.
(App. 70). After the hearing, the trial court denied the Elliotts’ motion and
entered a garnishment order (“September 2009 garnishment order”).3 The CCS
entry for this hearing provides as follows:
[Fifth Third] by counsel, J. Fuson. [The Elliotts] in person. [The
Elliotts] file[d] [a] motion to set aside [the] judgment. Argument
heard. [The Elliotts] have not shown excusable neglect in
answering the complaint and while [they] may have [had] an
equitable defense, they d[id] not have a legal defense. Order of
garnishment entered. Voluntary wages agreement for $50.00 per
week begin[ning on] 10/01/09.
(App. 4) (capitalization of all letters edited).
[14] Thereafter, William began paying Dyck O’Neal $50.00 per week by personal
check. William consistently made the $50.00 weekly payments to Dyck O’Neal
for the next four and one-half years until Dyck O’Neal filed a motion alleging
that William had “defaulted” on the September 2009 garnishment order. (App.
3
This September 2009 garnishment order is not included in the record on appeal.
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71). Specifically, on March 24, 2014, Dyck O’Neal filed an “Affidavit of
Default as to Voluntary Wage Agreement Order of 09/22/2009[,]” in which it
alleged that the Elliotts had “defaulted on the agreed weekly payments as they
[we]re submitting payments with the notation of ‘Paid in Full’ on each
payment.” (App. 71). Dyck O’Neal attached copies of three of the Elliotts’
checks, one dated for March 1, 2014 and two dated for March 15, 2014, to its
motion. That same day, the trial court “approved” the garnishment order
submitted by Dyck O’Neal (“March 2014 garnishment order”) and served it on
William’s employer. (App. 4) (capitalization of all letters edited).
[15] On April 2, 2014, the Elliotts, now represented by counsel, filed a motion to
stay the March 2014 garnishment order. One week later, on April 9, 2014, the
trial court held a hearing on the Elliotts’ motion to stay. Thereafter, the trial
court granted the motion to stay.4 The trial court ordered the Elliotts to
“continue to pay $50.00 per week in voluntary payments through the clerk of
the court.” (App. 5) (capitalization of all letters edited). Additionally, the trial
court instructed the parties’ counsel to “attempt to reach an agreement on the
unpaid balance of the judgment and anticipate submitting an agreed entry[,]”
and it set a progress hearing for April 30, 2014. (App. 5) (capitalization of all
letters edited).
4
The trial court’s order granting the Elliotts’ motion to stay was not included in the record.
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[16] Meanwhile, on April 21, 2014, the Elliotts, by counsel, filed “Defendants[‘]
Motion for Refund of Monies Paid toward Judgment” (“motion for refund”).
(App. 74). As attachments to their motion, the Elliotts included a copy of the
foreclosure order and an account statement, showing all of the payments they
had made to Dyck O’Neal from October 1, 2009 through March 5, 2014. In the
Elliotts’ motion for refund, they stated that they had “made payments of
approximately $12,000” to Dyck O’Neal “with respect to the [foreclosure]
Judgment[,]” and they argued, in relevant part, that:
11. . . . the Judgment was only an IN REM Judgment, no
payments were required to have been made by Defendants to the
Plaintiff, Dyck O’Neall, [sic] Inc. Further, payments from the
Defendants should not have been accepted by the Plaintiff. In
addition, the Plaintiff should not have instituted any collection
action whatsoever against Defendants, including the garnishment
of the wages of the Defendant, William C. Elliott on March 24,
2014.
(App. 76). The Elliotts requested “the reimbursement of all payments made to
Dyck O’Neal[], Inc. toward the Judgment, interest at the rate of 6.75% per
annum from March 7, 2007, and their reasonable attorney fees[.]” (App. 76).
[17] On April 30, 2014, the trial court held its previously scheduled progress hearing.
The trial court instructed Dyck O’Neal to file a response to the Elliotts’ motion
for refund, and it stayed its previous order that required the Elliotts to continue
$50.00 payments on the foreclosure judgment.
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[18] On June 27, 2014, Dyck O’Neal filed a response to the Elliotts’ motion for
refund, contending that they were not entitled to a refund because “the
omission of in personam was merely a clerical mistake[.]” (App. 107). That
same day, it also filed “Plaintiff’s Motion to Amend Default Judgment, Nunc
Pro Tunc” under Trial Rule 60 (“motion to amend the foreclosure judgment”).
(App. 99). In its motion, Dyck O’Neal argued that the foreclosure order
“contain[ed] a clerical mistake in paragraph number one, (1), as the phrase ‘in
personam’ was inadvertently omitted from the granted judgment.” (App. 99).
Dyck O’Neal contended that paragraph one should be amended to read that
Fifth Third was “granted judgment IN PERSONAM and IN REM[.]” (App.
99). Specifically, Dyck O’Neal proposed that the first paragraph should read, in
relevant part:
Plaintiff, Fifth Third, is hereby granted judgment IN
PERSONAM and IN REM shall be, and hereby is, against the
defendants William C. Elliott and Mary Kay Elliott in the
amount of Ninety-two Thousand Nine Hundred Eleven Dollars
and Nineteen Cents ($92,911.19) . . . with interest thereon from
February 9, 2007, until the date of the Judgment at the per diem
rate of $16.19 and with a post-judgment statutory interest rate of
6.75% thereafter until paid, without relief from the valuation and
appraisement laws, together with the costs of this action and sale
and any further costs Fifth Third incurs with respect to the
maintenance of the real estate.
(App. 99-100). As one of its exhibits attached to its motion, Dyck O’Neal
attached an affidavit from Fifth Third’s foreclosure attorney, who drafted the
proposed foreclosure order and who averred that “the wrong judgment entry
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was prepared and submitted” in this proposed order. (App. 132). The attorney
also asserted that “[t]here [wa]s nothing in the file, or under Indiana Law which
would indicate that Fifth Third Mortgage Company or its successor in interest
[wa]s not entitled to a personal judgment against the Defendants.” (App. 132).
[19] On August 20, 2014, the trial court held a hearing on the Elliotts’ motion for
refund and Dyck O’Neal’s motion to amend the foreclosure judgment.5 The
trial court denied both motions and ruled as follows:
Given the nature of the judgment, i.e., an assigned deficiency
judgment from a mortgage foreclosure, and that the order book
entry from 3/7/07 did not contain simply a scrivener’s error, but
two distinctive second pages, one of which indicating the
judgment was IN REM and one indicating an IN PERSONAM
judgment, the court is denying [Dyck O’Neal’s] motion to amend
the [foreclosure] judgment. However, the court is also denying
[the Elliotts’] motion for return of monies, given the facts of the
case that the mortgage obligation had been reaffirmed and not
discharged in bankruptcy.
(App. 6) (capitalization of most letters edited).6
[20] Thereafter, the Elliotts filed a motion to correct error. In their motion, they
argued that, contrary to the trial court’s finding, the foreclosure order did not
have two distinct pages and that the trial court had erred by basing its denial of
5
The transcript from this hearing was not requested and is, therefore, not in the record on appeal.
6
The trial court’s ruling is contained in the CCS but not in a separate order.
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their motion for refund on such a finding. The trial court denied the Elliotts’
motion. The Elliotts now appeal the denial of their motion for refund, and
Dyck O’Neal cross-appeals the denial of its motion to amend the foreclosure
judgment.
Decision
[21] On appeal, the Elliotts argue that the trial court erred by denying their motion
for refund. Dyck O’Neal has filed a cross-appeal, arguing that the trial court
erred by denying its motion to amend the foreclosure judgment. We will
address each argument in turn.
[22] Before addressing the parties’ arguments, we note that this appeal ultimately
stems from a mortgage foreclosure action and the resulting foreclosure order.
Mortgage foreclosure actions are “essentially equitable” actions for “‘the
enforcement of a lien against property in satisfaction of a debt.’” Songer v.
Civitas Bank, 771 N.E.2d 61, 69 (Ind. 2002) (quoting Skendzel v. Marshall, 261
Ind. 226, 240, 301 N.E.2d 641, 650 (1973), cert. denied), reh’g denied. See also
Stoffel v. JPMorgan Chase Bank, N.A., 3 N.E.3d 548, 555 (Ind. Ct. App. 2014)
(explaining that “[a] mortgage foreclosure is a hybrid of law and equity[,]”
where a “complaint on the underlying debt is an action at law, and a complaint
to foreclose on the mortgage is a proceeding in equity”) (citing Lucas v. U.S.
Bank, N.A., 953 N.E.2d 457, 466 (Ind. 2012), reh’g denied). “Notwithstanding
equity’s influence, rules of law obviously guide the foreclosure process.” First
Fed. Sav. Bank v. Hartley, 799 N.E.2d 36, 40 (Ind. Ct. App. 2003) (citing IND.
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CODE §§ 32-30-10-1 through -14 (setting out procedures for mortgage
foreclosure actions). “Moreover, ‘where substantial justice can be
accomplished by following the law, and the parties’ actions are clearly governed
by rules of law, equity follows the law.’” Id. (quoting Lake Cnty. Auditor v. Bank
Calumet, 785 N.E.2d 279, 281 (Ind. Ct. App. 2003).
Cross-Appeal Issue
[23] We will first address Dyck O’Neal’s cross-appeal issue. Dyck O’Neal argues
that the trial court abused its discretion by denying its motion to amend the
foreclosure judgment nunc pro tunc under Trial Rule 60(A).
[24] We review a motion for relief from judgment under Trial Rule 60 for an abuse
of discretion. First Bank of Madison v. Bank of Versailles, 451 N.E.2d 79, 81 (Ind.
Ct. App. 1983). “To constitute an abuse of discretion, it must be shown that
the trial court’s action is clearly against logic and the effect of [the] facts and
circumstances before the court as well as the reasonable and probable inferences
to be drawn therefrom.” Id.
[25] Indiana Trial Rule 60(A) provides:
Clerical mistakes. Of its own initiative or on the motion of any
party and after such notice, if any, as the court orders, clerical
mistakes in judgments, orders or other parts of the record and
errors therein arising from oversight or omission may be
corrected by the trial court at any time before the Notice of
Completion of Clerk’s Record is filed under Appellate Rule 8.
After filing of the Notice of Completion of Clerk’s Record and
during an appeal, such mistakes may be so corrected with leave
of the court on appeal.
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We have explained that, in the context of Trial Rule 60(A), a “clerical error” is
defined as “a mistake by a clerk, counsel, judge, or printer that is not a result of
judicial function and cannot reasonably be attributed to the exercise of judicial
consideration or discretion.” KeyBank Nat’l Ass’n v. Michael, 770 N.E.2d 369,
375 (Ind. Ct. App. 2002) (citing Rosentrater v. Rosentrater, 708 N.E.2d 628, 631
(Ind. Ct. App. 1999)), trans. denied. “The purpose of T.R. 60(A) is to recognize
that[,] ‘in the case of clearly demonstrable mechanical errors[,] the interests of
fairness outweigh the interests of finality which attend the prior adjudication.’”
Rosentrater, 708 N.E.2d at 631 (quoting Sarna v. Norcen Bank, 530 N.E.2d 113,
115 (Ind. Ct. App. 1988), reh’g denied, trans. denied). However, “‘where the
‘mistake’ is one of substance[,] the finality principle controls.’” Id. (quoting
Sarna, 530 N.E.2d at 115).
[26] “Trial Rule 60(A) merely provides a remedy to correct by nunc pro tunc entry
clerical errors in judgments, orders, etc., or errors arising from oversight or
omission[,]” but the rule “does not constitute a license to make judicial changes
in the actual law or ruling of a case.” Artusi v. City of Mishawaka, 519 N.E.2d
1246, 1248 (Ind. Ct. App. 1988), trans. denied.
A nunc pro tunc order is “‘an entry made now of something
which was actually previously done, to have effect as of the
former date.’” Cotton v. State, 658 N.E.2d 898, 900 (Ind. 1995)
(quoting Perkins v. Hayward, 132 Ind. 95, 101, 31 N.E. 670, 672
(1892)) (emphasis in original). A nunc pro tunc entry may be
used to either record an act or event not recorded in the court’s
order book or to change or supplement an entry already recorded
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in the order book. Id. The purpose of a nunc pro tunc order is to
correct an omission in the record of action really had but omitted
through inadvertence or mistake. Id. However, the trial court’s
record must show that the unrecorded act or event actually
occurred. Id. A written memorial must form the basis for
establishing the error or omission to be corrected by the nunc pro
tunc order. Id.
Brimhall v. Brewster, 835 N.E.2d 593, 597 (Ind. Ct. App. 2005), reh’g denied,
trans. denied. To provide a sufficient basis for the nunc pro tunc entry, the
supporting written material:
(1) must be found in the records of the case; (2) must be required
by law to be kept; (3) must show action taken or orders or rulings
made by the court; and (4) must exist in the records of the court
contemporaneous with or preceding the date of the action
described.
Shipley v. KeyBank Nat’l Ass’n, 821 N.E.2d 868, 881 (Ind. Ct. App. 2005)
(quoting Cotton, 658 N.E.2d at 900). “‘A nunc pro tunc entry cannot be used as
the medium whereby a court can change its ruling actually made, however
erroneous or under whatever mistakes of law or fact such ruling may have been
made.’” Brimhall, 835 N.E.2d at 597 (quoting Harris v. Tomlinson, 130 Ind. 426,
433, 30 N.E. 214, 216 (1892)). In other words, “‘[t]he crux of a nunc pro tunc
entry, then, is that the trial court corrects the record on the basis of information
which is already in the record. It is not license to make judicial changes in the
actual law or ruling of the case.’” Shipley, 821 N.E.2d at 881 (quoting Arsenal
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Sav. Ass’n v. Westfield Lighting Co., 471 N.E.2d 322, 326 (Ind. Ct. App. 1984))
(italics omitted in original).
[27] Dyck O’Neal argues that the trial court should have granted its motion to
amend the judgment, via a nunc pro tunc order, to reflect that the foreclosure
judgment included an in personam judgment. Dyck O’Neal argues that the in
personam judgment was “inadvertently omitted” from its proposed order
submitted to the trial court and that this omission was a clerical mistake. (Dyck
O’Neal’s Br. 9).
[28] As support for its argument regarding the propriety of issuing a nunc pro tunc
order and of amending the foreclosure judgment under Trial Rule 60(A), Dyck
O’Neal cites to its complaint and amended complaint, contending that its
predecessor, Fifth Third, requested an in personam judgment in its complaint
and “never intended to request only an in rem judgment[.]” (Dyck O’Neal’s Br.
12). Dyck O’Neal also cites to the parties’ and the trial court’s post-judgment
treatment of the foreclosure order, contending that all involved took action as if
the foreclosure order included an in personam judgment. Additionally, Dyck
O’Neal relies on the trial court’s order denying its motion to amend the
foreclosure judgment. It contends that the language of the trial court’s denial
shows that the foreclosure order was “intended to be both in rem and in
personam.” (Dyck O’Neal’s Br. 10) (emphasis added).
[29] Here, the “error” that Dyck O’Neal sought to have corrected was the addition
of an in personam judgment to the foreclosure order. This error—which Dyck
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O’Neal admits resulted from Fifth Third’s counsel—is clearly one of substance
and not proper under Indiana Trial Rule 60(A). See, e.g., First Bank of Madison,
451 N.E.2d at 82 (affirming the trial court’s denial of a party’s request to alter
the foreclosure judgment amount because the error, which was based on the
party’s own requested amount, was substantive rather than clerical); see also
KeyBank, 770 N.E.2d at 375 (explaining that an amendment to the CCS to
change appearance of an attorney was substantive rather than clerical, so Rule
60(A) did not apply); Rissler v. Lynch, 744 N.E.2d 1030, 1033 (Ind. Ct. App.
2001) (holding that the trial court did not abuse its discretion by denying the
mother’s Trial Rule 60(A) request to amend the amount of arrearage owed
where the issue was not a clerical error and where the mother’s counsel had
agreed to the lower amount entered by the trial court); Rosentrater, 708 N.E.2d
at 630 (holding that a wife’s counsel’s proposed valuation of the husband’s
stock plan and unintentional omission of a certain portion of the marital
property from her proposed findings of fact submitted to the trial court was a
substantive error and not a clerical error); Hurst v. Hurst, 676 N.E.2d 413, 415
(Ind. Ct. App. 1997) (holding that the trial court’s “clarification” of the
dissolution decree to include an initially excluded asset was a substantive
change not proper under Trial Rule 60(A)).
[30] Additionally, we do not agree with Dyck O’Neal’s contention that a nunc pro
tunc order would have been appropriate in this matter. To provide a basis for
Dyck O’Neal’s requested nunc pro tunc order, there must have been a written
memorial showing that the trial court actually entered an in personam judgment
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against the Elliotts. The record before us does not contain such a basis as there
is nothing to show that, at the time the trial court entered the in rem judgment in
its foreclosure order, it also entered an in personam judgment. Indeed, the CCS
entry for March 13, 2007—the date the trial court entered the foreclosure
order—contains the following notation to show that this foreclosure order was
entered into the order book: “REM JUDGMENT FILED 3-7-07 FOR 3-7-07
RECEIVED AND ENTERED INTO ORDER BOOK THIS DATE.” (App.
3). “‘[A] nunc pro tunc entry cannot be used to show an event happened which
did not actually occur[.]’”). Hammes v. Brumley, 659 N.E.2d 1021, 1025 n.2
(Ind. 1995) (quoting Cotton, 658 N.E.2d at 901)), reh’g denied. Thus, the trial
court correctly refused to issue a nunc pro tunc order to alter the foreclosure
judgment to include an in personam judgment in addition to the in rem judgment
entered. Therefore, we affirm the trial court’s denial of Dyck O’Neal’s motion
to amend the foreclosure order.
Appeal Issue
[31] We now turn to the Elliotts’ challenge to the trial court’s denial of their motion
for refund and subsequent motion to correct error.
[32] We review a trial court’s denial of a motion to correct error for an abuse of
discretion. Scales v. Scales, 891 N.E.2d 1116, 1118 (Ind. Ct. App. 2008). An
abuse of discretion occurs where the trial court’s decision is against the logic
and effect of the facts and circumstances before it. Id. Additionally, as here,
where neither party filed a written request for findings and conclusions, the trial
court’s sua sponte findings are controlling only as to issues they cover. In re
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Adoption I.B., 32 N.E.3d 1164, 1169 (Ind. 2015) (citing Yanoff v. Muncy, 688
N.E.2d 1259, 1262 (Ind. 1997)). “[A] general judgment will control as to the
issues upon which there are no findings.” Yanoff, 688 N.E.2d at 1262. Under
the general judgment standard, we will affirm on any legal theory supported by
the evidence. In re Adoption I.B., 32 N.E.3d at 1169.
[33] Dyck O’Neal contends that the Elliotts have provided no legal basis for their
motion for refund. In their reply brief, the Elliotts respond that their motion for
refund was an equitable remedy and contend that any assertion of a legal claim
would be “rather premature, as [they] first needed to stop the bleeding from
[Dyck O’Neal’s] continued wrongful collection efforts over the period of
September 2009 through and including March 2014” by first establishing that
Dyck O’Neal had “no lawful basis to collect approximately Twelve Thousand
Dollars ($12,000.00) from [the] Elliott[s] on a Judgment providing only ‘IN
REM’ relief.” (Elliotts’ Reply Br. 8).
[34] As stated above, this appeal ultimately stems from the foreclosure order entered
in 2007. The parties do not dispute that the foreclosure order did not entitle
Dyck O’Neal to collect a personal judgment from the Elliotts because this order
did not contain an in personam judgment. The Elliotts argue that this lack of an
in personam judgment entitles them to a refund of the money they paid to Dyck
O’Neal pursuant to the trial court’s entry of the September 2009 garnishment
order.
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[35] Given the unique and specific facts of this case and because equity so demands,
we agree that the Elliotts are entitled to a refund of the money that they paid
pursuant to the garnishment order that was improperly based on an in rem
judgment.7 “As a general proposition, the trial court has full discretion to
fashion equitable remedies that are complete and fair to all parties involved.”
Swami, Inc. v. Lee, 841 N.E.2d 1173, 1178 (Ind. Ct. App. 2006), trans. denied.
Indeed, “[e]quity has power, where necessary, to pierce rigid statutory rules to
prevent injustice.” Id. Courts can exercise equitable powers where an adequate
remedy at law does not exist. Id.
[36] This case—which stems from a foreclosure proceeding followed by proceedings
supplemental—necessarily involves significant equitable considerations. See
Rose v. Mercantile Nat’l Bank of Hammond, 868 N.E.2d 772, 775 (Ind. 2007)
(explaining that a proceeding supplemental has its “roots in equity”); Songer,
771 N.E.2d at 69 (explaining that a mortgage foreclosure action is “essentially
equitable”). Here, in the foreclosure proceeding against the Elliotts, the trial
court entered a default judgment and entered only an in rem judgment. After
the Property was sold at a sheriff’s sale, Dyck O'Neal improperly initiated
7
We acknowledge that the Elliotts’ motion for refund being appealed appears to be, in essence, a collateral
attack of the trial court’s September 2009 garnishment, which required the Elliotts to make the payments for
which they now seek a refund. Although they did not initiate an appeal from this garnishment order, we find
that there are “extraordinarily compelling reasons” to address the merits of such an attack of that order,
which improperly ordered the Elliotts to pay a deficiency judgment based on an in rem judgment in a
foreclosure order. See In re Adoption of O.R., 16 N.E.3d 965, 971 (Ind. 2014) (explaining that appellant who
procedurally forfeits his or her right to an appeal may have that right restored where there are
“extraordinarily compelling reasons” to address the appeal on its merits).
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proceedings supplemental from the in rem judgment and sought an order for
garnishment of wages. The trial court then improperly entered a garnishment
order, which essentially allowed Dyck O'Neal to recover a deficiency from that
in rem judgment and required the Elliotts, who were not represented by counsel
at that time, to pay $50.00 per week. Here, given the specific facts of this
particular case, we conclude that equity demands that the Elliotts are entitled to
a refund and that the trial court erred by failing to grant that equitable remedy.
Accordingly, we reverse the trial court’s order denying the Elliotts’ motion for
refund, and we remand with instructions to determine the total amount paid by
the Elliotts to Dyck O’Neal and enter an order for the refund of that amount
including the applicable interest.
[37] Affirmed in part, reversed in part, and remanded.
Crone, J., concurs.
Brown, J., dissents with opinion.
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IN THE
COURT OF APPEALS OF INDIANA
William C. Elliott and Court of Appeals Case No.
Mary Kay Elliott, 82A05-1411-MF-518
Appellants/Cross-Appellees-
Defendants,
v.
Dyck O’Neal, Inc., Successor in
interest to Fifth Third Mortgage
Company,
Appellee/Cross-Appellant-Plaintiff.
Brown, Judge, dissenting.
[38] I respectfully dissent from the majority’s conclusion that the Elliotts are entitled
to a refund and that the trial court erred by failing to grant that remedy. At the
time of the September 2009 garnishment order, Ind. Appellate Rule 9(A)
provided that “[a] party initiates an appeal by filing a Notice of Appeal with the
trial court clerk within thirty (30) days after the entry of a Final Judgment” and
that “[u]nless the Notice of Appeal is timely filed, the right to appeal shall be
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forfeited except as provided by P.C.R. 2.”8 The Elliotts did not appeal the
September 2009 garnishment order. Instead, they paid fifty dollars per week
until they challenged the propriety of the order over four and one-half years
later when they filed their motion for refund on April 21, 2014.
[39] The majority acknowledges that the Elliotts’ appeal is a collateral attack on the
trial court’s September 2009 garnishment and that the Elliotts did not initiate an
appeal from the garnishment order, but cites In re Adoption of O.R., 16 N.E.3d
965 (Ind. 2014), to support the conclusion that there are extraordinarily
compelling reasons to address the merits of such an attack.
[40] I find Adoption of O.R. distinguishable. In that case, the biological father of a
minor child attempted to appeal the trial court’s order granting an adoption
petition in favor of third parties. 16 N.E.3d at 967. Father wrote a letter
requesting appointment of appellate counsel four days before the deadline for
filing a notice of appeal. Id. at 968. Following the withdrawal of father’s
counsel, new appellate counsel filed a petition to accept an “Amended Notice
of Appeal” twenty-three days after the deadline had passed. Id. Because the
notice of appeal was not timely filed, a panel of this court dismissed the case on
grounds that it lacked jurisdiction to hear the appeal. Id. at 967. On transfer,
the Indiana Supreme Court held that the untimely filing of a notice of appeal is
8
The current version of Ind. Appellate Rule 9(A) provides in relevant part that “[a] party initiates an appeal
by filing a Notice of Appeal with the Clerk (as defined in Rule 2(D)) within thirty (30) days after the entry of
a Final Judgment is noted in the Chronological Case Summary,” and “[u]nless the Notice of Appeal is timely
filed, the right to appeal shall be forfeited except as provided by P.C.R. 2.”
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not a jurisdictional bar precluding appellate review. Id. at 967-968. The Court
held that when the right to appeal is forfeited under Ind. Appellate Rule 9(A)
for failure to timely appeal within thirty days, “the question is whether there are
extraordinarily compelling reasons why this forfeited right should be restored.”
Id. at 971. The Court observed that Ind. Appellate Rule 1 provides that “[t]he
Court may, upon the motion of a party or the Court’s own motion, permit
deviation from these Rules.” Id. at 972. The Court held that “despite the ‘shall
be forfeited’ language of Rule 9(A), the Rules themselves provide a mechanism
allowing this Court to resurrect an otherwise forfeited appeal.” Id.
[41] The Court observed the facts of that case and stated “perhaps most important,
the Fourteenth Amendment to the United States Constitution protects the
traditional right of parents to establish a home and raise their children.” Id.
The Court concluded that “[i]t is this unique confluence of a fundamental
liberty interest along with ‘one of the most valued relationships in our culture’
that has often influenced this Court as well as our Court of Appeals to decide
cases on their merits rather than dismissing them on procedural grounds,” and
that “in light of Appellate Rule 1, Father’s attempt to perfect a timely appeal,
and the constitutional dimensions of the parent-child relationship, we conclude
that Father’s otherwise forfeited appeal deserves a determination on the
merits.” Id.
[42] The Elliotts did not file a notice of appeal of the September 2009 garnishment
order, and their appeal essentially amounts to a collateral attack on a previously
issued final judgment. See JPMorgan Chase Bank, N.A. v. Brown, 886 N.E.2d 617,
Court of Appeals of Indiana | Opinion 82A05-1411-MF-518 | November 13, 2015 Page 25 of 26
621 n.5 (Ind. Ct. App. 2008) (explaining that a garnishment order is a final
judgment). Even assuming that the analysis in O.R. applied, I would find no
such extraordinarily compelling reasons exist in this case, especially given the
long delay in the challenge to the propriety of the garnishment order.
Furthermore, even if we were to consider the Elliotts’ motion for refund as a
motion for relief from the September 2009 garnishment order pursuant to Trial
Rule 60(B), it would still be untimely. A Rule 60(B) motion must be filed “not
more than one year after the judgment” if based on reasons (1), (2), (3), or (4),
or it must be filed “within a reasonable time” if based on reasons (5), (6), (7), or
(8). T.R. 60(B). “The determination of what constitutes a reasonable time
varies with the circumstances of each case.” Levin v. Levin, 645 N.E.2d 601, 605
(Ind. 1994). “Relevant to the question of timeliness is prejudice to the party
opposing the motion and the basis for the moving party’s delay.” Id. Here, the
Elliott’s motion for refund was not filed within one year nor a reasonable time
after the entry of that judgment. The Elliotts waited over four and a half years
to seek relief from the September 2009 garnishment order, and such period of
time is not reasonable. See id. (holding that a husband’s delay of five years
from the dissolution order to challenge his support obligation did not constitute
a reasonable time and holding that his excuse that he was unaware of his legal
actions because he was not represented by counsel was insufficient to justify the
length of the delay).
[43] For these reasons I respectfully dissent and would affirm the trial court’s denial
of the Elliotts’ motion for refund.
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