U.S. Bank v. R. Glenn Miller, Jr. German American Bankcorp v. R. Glenn Miller, Jr. , 44 N.E.3d 730 ( 2015 )


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  • ATTORNEYS FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
    U.S. BANK, NATIONAL                                       GERMAN AMERICAN
    ASSOCIATION, AS BAFC 2007-1                               BANCORP, INC.
    John S. (Jay) Mercer                                      James D. Johnson
    Mercer Belanger, P.C.                                     Kyle R. Rudolph
    Indianapolis, Indiana                                     Jackson Kelly PLLC
    Evansville, Indiana
    Aaron J. Stucky
    Vorys, Sater, Seymour, and Pease LLP
    Cincinnati, Ohio
    ATTORNEY FOR APPELLANTS
    TRISTAN C. BRIONES II AND CHASE
    Sep 22 2015, 9:57 am
    HOME FINANCING LLC
    Gregory A. Kahre
    Evansville, Indiana
    IN THE
    COURT OF APPEALS OF INDIANA
    U.S. Bank, National Association,                          September 22, 2015
    as BAFC 2007-1, successor in                              Court of Appeals Case No.
    interest to National City                                 87A01-1409-MF-366
    Mortgage Co.,                                             Appeal from the Warrick Circuit
    Court
    Appellant-Plaintiff,
    The Honorable Robert R. Aylsworth,
    v.                                                Special Judge
    Cause No. 87C01-0803-MF-125
    R. Glenn Miller, Jr. a/k/a R.
    Glenn Miller, Melinda F. Miller,
    German American Bankcorp,
    Inc., successor in interest to Bank
    Court of Appeals of Indiana | Opinion 87A01-1409-MF-366| September 22, 2015                   Page 1 of 30
    of Evansville, and United States
    of America,1
    Appellees-Defendants.
    German American Bankcorp,
    Inc., successor in interest to Bank
    of Evansville,
    Cross-Claimant and Third-Party
    Plaintiff,
    v.
    R. Glenn Miller, Jr., a/k/a R.
    Glenn Miller, Melinda F. Miller,
    Tristan C. Briones, II, Chase
    Home Financing, LLC,
    successor in interest to Shelter
    Mortgage Company, LLC, and
    Republic Bank & Trust
    Company,
    Cross-Claimants and Third-Party
    Defendants.
    Kirsch, Judge.
    1
    The Millers, the United States of America, and Republic Bank & Trust Company do not participate in this
    appeal. However, pursuant to Indiana Appellate Rule 17(A), a party of record in the trial court is a party on
    appeal.
    Court of Appeals of Indiana | Opinion 87A01-1409-MF-366| September 22, 2015                       Page 2 of 30
    [1]   In this action to foreclose a first priority mortgage against property previously
    owned by Melinda F. Miller and R. Glen Miller, Jr. (“the Millers”), U.S. Bank,
    National Association, as BAFC 2007-1 (“U.S. Bank”) (successor in interest to
    National City Mortgage Co. (“NCM”)),2 Tristan C. Briones II (“Briones”), and
    Chase Home Financing LLC (“Chase”) (collectively, “Appellants”) appeal the
    grant of summary judgment in favor of German American Bancorp, Inc.
    (“German American”) (formerly known as Bank of Evansville), 3 granting
    German American’s previously-subordinate lien a first priority on the basis of
    the merger doctrine.4 On appeal, Appellants raise various issues, which we
    consolidate and restate as:
    I. Whether the trial court erred when it set aside the default judgment
    entered against Bank of Evansville in NCM’s mortgage foreclosure,
    having found that the default judgment was void for lack of notice to
    Bank of Evansville, which prevented the trial court from obtaining
    personal jurisdiction; and
    II. Whether the trial court erred when it entered summary judgment in
    favor of German American determining that German American’s
    2
    On October 7, 2008, NCM assigned its interest in the judgment of foreclosure on the Millers’ property to
    U.S. Bank, who in turn bought the property at a sheriff’s sale and resold it to Briones in January 2009. We
    will refer to U.S. Bank, NCM, or both, as is applicable.
    3
    In January 2011, Bank of Evansville merged with German American, leaving German American as the
    successor and surviving legal entity. In November 2011, the trial court granted Bank of Evansville’s motion
    to substitute German American as the real party in interest. We will refer to German American, Bank of
    Evansville, or both, as is applicable.
    4
    Briones and Chase have, together, filed one appellants’ brief, one appendix, and one supplemental
    appendix. For ease of reference we will refer to those documents as “Briones’s Br.,” “Briones’s App.,” and
    “Briones’s Supp. App.” U.S. Bank has filed its own appellant’s brief and appendix, which we will refer to as
    “U.S. Bank’s Br.” and “U.S. Bank’s App.” In response to both appellants’ briefs, German American has filed
    one appellee’s brief and one appendix, which we will refer to as “Appellee’s Br.” and “Appellee’s App.”
    Court of Appeals of Indiana | Opinion 87A01-1409-MF-366| September 22, 2015                       Page 3 of 30
    junior mortgage was entitled to first priority because the common law
    doctrine of merger extinguished U.S. Bank’s priority interest.
    [2]   We affirm in part, reverse in part, and remand.5
    Summary
    [3]   This case began more than seven years ago. What started as a simple
    foreclosure of NCM’s mortgage against the Millers’ Newburgh, Indiana
    property (“the Property”), became complicated when senior lienholder NCM
    named junior lienholder Bank of Evansville as a defendant in the foreclosure
    action, but failed to serve notice to the proper address. The trial court entered
    judgment of foreclosure in favor of NCM and against the Millers, and it entered
    judgment of default against Bank of Evansville. NCM assigned its foreclosure
    judgment to U.S. Bank, who purchased the Property at a sheriff’s sale and, in
    turn, resold the Property to Briones.
    [4]   Thereafter, Bank of Evansville filed a motion both to set aside the judgment of
    default and to add Briones as a necessary third-party defendant, which the trial
    court granted. About one month later, and as a separate action, NCM filed a
    complaint for strict foreclosure, claiming that Bank of Evansville’s interest was
    a cloud on the title and asking that its junior lien on the Property be
    5
    U.S. Bank filed a motion for oral argument; however, we have determined that oral argument is not
    necessary for the resolution of the instant appeal. Accordingly, we deny U.S. Bank’s motion in a separate
    order issued contemporaneously with this opinion.
    Court of Appeals of Indiana | Opinion 87A01-1409-MF-366| September 22, 2015                     Page 4 of 30
    extinguished. This strict foreclosure action was consolidated into the original
    foreclosure action by consent of the parties.
    [5]   Cross-claims and third-party complaints added Chase and Republic Bank &
    Trust Company (“Republic Bank”) as parties to Bank of Evansville’s action to
    foreclose on its junior mortgage. German American, who was substituted for
    Bank of Evansville as the real party in interest, filed a motion for summary
    judgment, and U.S. Bank filed a cross-motion asking that summary judgment
    be entered in its favor to allow an adjudication of German American’s rights
    and remedies pursuant to Indiana Code section 32-29-8-4 (“I.C. § 32-29-8-4”).
    Following a hearing, the trial court, rejecting U.S. Bank’s argument that I.C. §
    32-29-8-4 should apply to the facts of the instant action, applied the common
    law merger doctrine from our Supreme Court’s decision in Citizens State Bank of
    New Castle v. Countrywide Home Loans, Inc., 
    949 N.E.2d 1195
    (Ind. 2011).
    Finding that merger caused U.S. Bank’s priority interest to be extinguished, the
    trial court granted summary judgment and a priority interest to German
    American’s previously subordinate interest.
    Court of Appeals of Indiana | Opinion 87A01-1409-MF-366| September 22, 2015   Page 5 of 30
    Facts and Procedural History
    [6]   The undisputed relevant facts are that, in October 2006, the Millers borrowed
    approximately $774,5006 from NCM7 to purchase the Property. To secure the
    loan, the Millers executed a promissory note and mortgage, pledging the
    Property as collateral. That same month, NCM’s mortgage was recorded as a
    first priority lien with the Warrick County Recorder.
    [7]   One month later, the Millers obtained a home equity line of credit (“HELOC”)
    from Bank of Evansville. To secure the $25,000 line of credit, the Millers
    executed a second mortgage on the Property, which was recorded with the
    Warrick County Recorder in November 2006. This HELOC mortgage was
    second in priority and was recorded prior to a notice of federal tax lien in the
    amount of $168,382, which the United States of America filed against the
    Property in October 2007.
    [8]   After the Millers defaulted on their loan, NCM filed a complaint on the note
    and to foreclose the mortgage in March 2008, naming as defendants: (1) the
    Millers; (2) Bank of Evansville; and (3) the United States. The HELOC
    mortgage reflected that Bank of Evansville’s address was 4424 Vogel Road;
    6
    For the purposes of this decision, the exact dollar amounts are not important; therefore, we will generally
    refer only to the dollar amounts and will omit the change.
    7
    The Millers initially entered into the promissory note and mortgage with National City Bank, who assigned
    that mortgage to National City Mortgage Co. (“NCM”), a subsidiary of National City Bank. Briones’s App. at
    95, 112. Because NCM held the mortgage at the time the complaint for foreclosure was filed, we refer to
    NCM as the party in interest.
    Court of Appeals of Indiana | Opinion 87A01-1409-MF-366| September 22, 2015                        Page 6 of 30
    however, NCM mistakenly served the notice to 8121 Newbury Road. Bank of
    Evansville did not have an office on Newbury Road; instead, this address was
    listed with the Secretary of State on a form memorializing Bank of Evansville’s
    corporate name reservation, which had expired in 1998. Bank of Evansville did
    not file a notice of appearance and later claimed it had not known about the
    foreclosure.
    [9]   NCM filed a motion for summary judgment on its foreclosure complaint in
    May 2008, to which neither the Millers nor Bank of Evansville responded. On
    July 2, 2008, the trial court, noting that all of the defendants were properly
    before the court by service of process, granted summary judgment in favor of
    NCM as to all defendants (“Decree of Foreclosure”). The trial court: (1)
    entered a default judgment against Bank of Evansville;8 (2) awarded NCM a
    “personal summary judgment”9 against the Millers in the amount of
    $769,425.73;10 and (3) determined that the United States had a valid judgment
    lien on the Property with a one-year right of redemption to satisfy its tax lien.
    8
    The order itself provided, that “the defendant, Bank of America, not having appeared or filed a responsive
    pleading herein is in default.” Briones’s App. at 32 (emphasis added). “Bank of America” is not a party to this
    conflict; during the July 25, 2013 hearing, James Johnson, counsel for Bank of Evansville, stated, “[T]hey
    meant Bank of Evansville.” 2013 Hr’g Tr. at 44.
    9
    Indiana Code section 32-30-10-5 in pertinent part provides that in rendering judgment of foreclosure, the
    courts shall “(1) give personal judgment against any party to the suit liable upon any agreement for the
    payment of any sum of money secured by the mortgage”; and “(2) order the mortgaged premises . . . to be
    sold first before the sale of other property of the defendant.”
    10
    This amount was calculated as follows: “the principal amount of $738,081.50, plus interest and late
    charges in the amount of $29,686.23 to March 25, 2008, plus the net sum of $658.00 expended by [NCM] for
    continuation of title necessary for these proceedings and for advances made by [NCM], plus attorney’s fees in
    the amount of $1,000.00, making this judgment a total amount of $769,425.73 . . . .” U.S. Bank App. at 47.
    Court of Appeals of Indiana | Opinion 87A01-1409-MF-366| September 22, 2015                       Page 7 of 30
    Briones’s App. at 32. The trial court ordered that the Property be sold at sheriff’s
    sale and foreclosed both NCM’s mortgage as a first priority lien and the equity
    of redemption of all defendants and all persons claiming under and through
    those defendants.
    [10]   NCM assigned its foreclosure judgment to U.S. Bank for an unknown value in
    October 2008, and U.S. Bank, in turn, purchased the Property at sheriff’s sale
    for $528,500, approximately $240,000 less than the amount of NCM’s
    judgment. That same month, U.S. Bank recorded its sheriff’s deed with the
    Warrick County Recorder. In January 2009, U.S. Bank sold the Property to
    Briones by means of a special warranty deed, which was recorded in April
    2009. Briones paid about $450,000 for the Property, $220,000 of which he
    borrowed from, and was secured by a mortgage to, Chase.11 2013 Hr’g Tr. at
    27.12 Chase filed its mortgage lien against the Property, which was superior to a
    commercial real estate mortgage lien held by Republic Bank.
    11
    On or about March 18, 2009, the Property was sold by U.S. Bank to Briones; the sale was facilitated by a
    purchase money mortgage that Briones entered into with Shelter Mortgage Company. Both Briones’s
    conveyance and Shelter’s mortgage were recorded with the Warrick County Recorder in April 2009. Chase
    Home Financing, LLC (“Chase”) is the assignee of all interest in and to Briones’s mortgage with Shelter.
    Shelter was named in German American’s motion to set aside. Thereafter, Chase was named as the true
    party in interest. To avoid confusion, we will refer to the entity that held Briones’s mortgage as Chase.
    12
    Judge David O. Kelley initially presided over the proceedings of this foreclosure action, but he withdrew in
    late 2012. Prior to withdrawing, Judge Kelley held a hearing, on June 19, 2012, to address the motions for
    summary judgment filed by German American and U.S. Bank to foreclosure the HELOC mortgage;
    however, no decision was made following this hearing. We will cite to Judge Kelley’s hearing as 2012 Hr’g
    Tr. Judge Robert Aylsworth was appointed as a special judge to this case in December 2012 and held a
    hearing on the same motions for summary judgment on July 25, 2013. We will cite to Judge Aylsworth’s
    hearing as 2013 Hr’g Tr.
    Court of Appeals of Indiana | Opinion 87A01-1409-MF-366| September 22, 2015                       Page 8 of 30
    [11]   Although the Millers stopped paying on the NCM mortgage in October 2007,
    they continued to make payments on the HELOC until September 2009. In
    October 2009, Bank of Evansville learned that a default judgment had been
    entered against it in NCM’s foreclosure and that the Property securing its
    mortgage had been sold to Briones. The next month, Bank of Evansville filed
    two motions. In the first, Bank of Evansville requested that the default
    judgment be set aside, claiming it was void pursuant to Trial Rule 60(B)(6)
    because it had not been properly served, and, therefore, the trial court did not
    have personal jurisdiction over it. Briones’s App. at 37-58. In connection with
    that motion, Bank of Evansville designated evidence, including an affidavit
    (“Sutton Affidavit”) of Mike Sutton, President and CEO of Bank of Evansville,
    in which Sutton stated that the Bank never received a copy of the summons or
    complaint and was not aware of the litigation or sheriff’s sale until October
    2009. 
    Id. at 54.
    In the second motion, Bank of Evansville requested that
    Briones, be joined as a necessary third-party defendant pursuant to Trial Rule
    19(A), to ensure the just adjudication of the controversy. 
    Id. at 59-62.
    The trial
    court held a hearing and granted both motions. Briones entered an appearance,
    as did Chase and Republic Bank, each of whom had liens to protect.
    [12]   In January 2010, Bank of Evansville filed its answer and affirmative defenses to
    NCM’s original complaint to foreclose on the Property, as well as a cross-claim
    and third-party complaint against the Millers, Briones, Chase, and Republic
    Court of Appeals of Indiana | Opinion 87A01-1409-MF-366| September 22, 2015   Page 9 of 30
    Bank, to foreclose on the mortgage securing the HELOC.13 Appellee’s App. at
    40-63. Briones filed an amended answer to German American’s third-party
    complaint in December 2011, as well as a third-party complaint against U.S.
    Bank. 
    Id. at 127-44.
    In his amended pleading, Briones alleged that U.S Bank
    breached the terms of the special warranty deed because “[a]t the time of the
    execution and delivery of said warranty deed by U.S. Bank to Briones, [the
    Property] was not free and clear of all encumbrances, but was still subject to a
    mortgage given by the prior titleholders, [the Millers].” 
    Id. at 134.
    [13]   Meanwhile, on January 29, 2010, having already transferred the judgment of
    foreclosure to U.S. Bank, NCM filed a separate complaint for strict foreclosure
    (Cause No. 87C01-1001-MF-37), asking the trial court to extinguish Bank of
    Evansville’s junior lien on NCM’s original mortgage. Appellee’s App. at 64. In
    its complaint, NCM detailed the prior proceedings and noted that it had been
    granted the status of first lienholder by virtue of the Decree of Foreclosure. 
    Id. at 65.
    Bank of Evansville filed an answer and affirmative defenses to NCM’s
    complaint for strict foreclosure. 
    Id. at 92.
    On May 28, 2010, the strict
    foreclosure action was consolidated into the instant action by consent of the
    parties.
    13
    The HELOC provided, and the mortgage secured, a line of credit to the Millers up to $25,000. There is no
    evidence how much the Millers borrowed from the HELOC. In the letter of default, however, Bank of
    Evansville set forth that, at the time of default, the Millers owed $25,000, plus accrued interest. Appellee’s
    App. at 60. The letter also provided that the Millers had thirty days to dispute the amount owed. 
    Id. at 61.
           We find no evidence in the record before us that the Millers disputed that they owed the amount claimed.
    Court of Appeals of Indiana | Opinion 87A01-1409-MF-366| September 22, 2015                      Page 10 of 30
    [14]   While this instant action was pending in the trial court, the Indiana Supreme
    Court issued its Citizens decision in June 2011, a decision in which the Court
    applied the merger doctrine to land that was foreclosed and thereafter
    purchased by a mortgagee, thus, leaving the mortgagee with no seniority over a
    junior lienholder erroneously omitted from the foreclosure proceedings. In
    response to that decision, and less than nine months later, in March 2012, the
    Indiana General Assembly enacted I.C. § 32-29-8-4, which effectively overruled
    the portions of Citizens dealing with the merger doctrine. Specifically, this
    statute prevented a senior lienholder’s interest from being “extinguished by
    merger with the title to the property conveyed to a purchaser through a sheriff’s
    deed executed and delivered under IC 32-29-7-10 until the interest of any
    omitted party has been terminated.” Ind. Code § 32-29-8-4(h). Furthermore, it
    provided that “until an omitted party’s interest was terminated,” “any person
    claiming by, through, or under such an owner, is the equitable owner of the
    senior lien upon which the foreclosure action was based and has all rights
    against an omitted party as existed before the judicial sale.” 
    Id. The instant
    case remained pending for more than one year after the enactment of I.C. § 32-
    29-8-4.
    [15]   German American was substituted for Bank of Evansville as the real party in
    interest in November 2011. Appellee’s App. at 125. One month later, German
    American filed a motion asking the trial court to enter summary judgment in its
    favor in an amount to cover monies due under its note and mortgage and to
    declare that German American had a valid first lien with priority over all other
    Court of Appeals of Indiana | Opinion 87A01-1409-MF-366| September 22, 2015   Page 11 of 30
    liens and defendants. German American also asked that the trial court
    foreclose the equity of redemption of the Millers and all defendants and persons
    claiming through them and under them and order that the Property, which had
    already been transferred from U.S. Bank to Briones, be sold to satisfy the
    amount of the Millers’ HELOC debt to German American. Although this
    motion was filed six months after our Supreme Court handed down its decision
    in Citizens, German American did not cite to that opinion.
    [16]   One month after I.C. § 32-29-8-4 became effective, U.S. Bank filed a cross-
    motion for summary judgment arguing that it was “entitled to an adjudication
    of its rights pursuant to Ind. Code § 32-29-8-4 and summary judgment as a
    matter of law.” Briones App. at 69. Briones and Chase filed a brief in opposition
    to German American’s motion for summary judgment, arguing: (1) that
    German American’s designation of evidence was insufficient; and (2) that
    German American’s reliance on our Supreme Court’s decision in Citizens, as
    support for its motion for summary judgment, was misplaced. Appellee’s App. at
    178-84. Elaborating, Briones and Chase noted that German American had not
    even initially cited to Citizens. 
    Id. at 180.
    Instead, German American’s
    December 2011 motion for summary judgment was solely directed at the
    liability of the Millers under German American’s 2006 loan documents. 
    Id. It was
    only in a subsequent reply to the response of Republic Bank that German
    American cited to Citizens, questioning whether “it was still feasible under
    Indiana law to foreclose a subordinate lienholder that had been named as a
    defendant in the original foreclosure but apparently not served with process.”
    Court of Appeals of Indiana | Opinion 87A01-1409-MF-366| September 22, 2015   Page 12 of 30
    
    Id. In June
    2012, Judge David Kelley held a hearing on the parties’ motions for
    summary judgment, but did not decide the case prior to the time of his
    withdrawal. Thereafter, Judge Robert Aylsworth was appointed as special
    judge to the case.
    [17]   On July 25, 2013 Judge Aylsworth held a hearing on German American’s
    motion for summary judgment. The trial court granted partial summary
    judgment (“Partial Judgment”) in favor of German American on August 21,
    2013. The court concluded that disposition of the “motions for summary
    judgment [was] controlled by the Indiana Supreme Court’s decision in Citizens .
    . . and, pursuant to that case the transfer of title by U.S. Bank to Briones by
    special warranty deed . . . merged U.S. Bank’s mortgage lien into the legal title,
    but did not affect German American’s subordinate mortgage when German
    American did not receive notice of the foreclosure.” Briones App. at 167
    (emphasis added). The Partial Judgment also provided that I.C. § 32-29-8-4 did
    “not apply retroactively to save U.S. Bank from the operation of case law, as
    the statute on its face was effective upon passage, [in March 2012,] long after
    the date of the execution of the U.S. Bank special warranty deed to transfer title
    to Briones.” 
    Id. Accordingly, the
    trial court concluded “that statute has, in the
    court’s opinion, no applicability or relevance to the matters at issue before the
    court.” 
    Id. The trial
    court did not specifically rule on, or even mention, the
    pending motion for strict foreclosure.
    [18]   U.S. Bank moved for an order certifying the Partial Judgment for interlocutory
    appeal. Briones and Chase joined that motion, which the trial court granted.
    Court of Appeals of Indiana | Opinion 87A01-1409-MF-366| September 22, 2015   Page 13 of 30
    U.S. Bank then moved for certification of the trial court’s Interlocutory Order;
    our court denied the requested interlocutory appeal. Following an evidentiary
    hearing regarding German American’s attorney fees,14 the trial court entered its
    final judgment on August 6, 2014, in which it: (1) granted German American a
    judgment against the Millers on the HELOC mortgage in the amount of more
    than $150,000 plus interest; (2) concluded that U.S. Bank’s, Chase’s, and
    Republic Bank’s interests were all “subordinate to German American’s
    interests”; and (3) foreclosed German American’s mortgage on the Property “as
    a first and prior lien subject only to any county real estate tax liens,” ordering
    that “equity of redemption of all of the parties herein and all persons claiming
    under and through them is foreclosed.” U.S. Bank’s App. at 40, 41. Appellants
    now appeal.
    Discussion and Decision
    I. Setting Aside the Default Judgment
    [19]   In the July 2008 Decree of Foreclosure, the trial court granted summary
    judgment in favor of NCM, and entered a default judgment against Bank of
    Evansville. In November 2009, Bank of Evansville filed a motion to set aside
    the default judgment, claiming that lack of notice precluded the trial court from
    14
    The evidentiary hearing was held on July 28, 2014, the transcript of which, if any, is not in the record
    before us.
    Court of Appeals of Indiana | Opinion 87A01-1409-MF-366| September 22, 2015                       Page 14 of 30
    having personal jurisdiction over Bank of Evansville thus making the default
    judgment void. The trial court agreed and set aside the default judgment.
    [20]   The decision to set aside the default judgment made it possible for Bank of
    Evansville to file its complaint to foreclose on its HELOC mortgage, a
    complaint upon which the trial court later entered summary judgment in favor
    of Bank of Evansville, granting it first priority over all other interests in the
    Property. Appellants contend that the trial court abused its discretion when it
    set aside the default judgment. With the goal of reversing summary judgment
    in favor of German American, Bank of Evansville’s successor in interest,
    Appellants insist that, but for the act of setting aside the default judgment, Bank
    of Evansville would have been bound by the Decree of Foreclosure and, thus,
    precluded from filing to foreclose on the HELOC mortgage.
    [21]   Bank of Evansville brought its motion to set aside default judgment under Trial
    Rule 60(B)(6), alleging that the default judgment was void for lack of personal
    jurisdiction because it had no notice of NCM’s foreclosure proceedings. A
    motion made under Trial Rule 60(B) to set aside a judgment is addressed to the
    equitable discretion of the trial court. In re Paternity of P.S.S., 
    934 N.E.2d 737
    ,
    740-41 (Ind. 2010). “Typically, we review a trial court’s ruling on a motion to
    set aside a judgment for an abuse of discretion, meaning that we must
    determine whether the trial court’s ruling is clearly against the logic and effect
    of the facts and inferences supporting the ruling.” Hair v. Deutsche Bank Nat’l
    Trust Co., 
    18 N.E.3d 1019
    , 1022 (Ind. Ct. App. 2014) (citing Yoder v. Colonial
    Nat’l Mortg., 
    920 N.E.2d 798
    , 800-01 (Ind. Ct. App. 2010)). “However, whether
    Court of Appeals of Indiana | Opinion 87A01-1409-MF-366| September 22, 2015   Page 15 of 30
    personal jurisdiction exists over a defendant is a question of law that we review
    de novo.” 
    Id. “A judgment
    entered where there has been insufficient service of
    process is void for want of personal jurisdiction.” 
    Id. (citing Front
    Row Motors,
    LLC v. Jones, 
    5 N.E.3d 753
    , 759 (Ind. 2014)).
    [22]   In its motion to set aside, Bank of Evansville argued that the trial court did not
    obtain personal jurisdiction over it because NCM served the notice of
    foreclosure to the wrong address, and Bank of Evansville did not know it was
    named as a defendant in NCM’s foreclosure proceedings. Bank of Evansville
    attached to its motion the Sutton Affidavit, in which Sutton stated that Bank of
    Evansville’s offices were located on Vogel Road and not Newbury Road, and
    that the Indiana Secretary of State records listed the correct Vogel Road
    address. Bank of Evansville maintained that it did not receive a copy of the
    summons or complaint and was not aware of the litigation or sheriff’s sale. The
    trial court agreed that Bank of Evansville did not have proper notice and set
    aside the default judgment on the basis that the trial court did not have personal
    jurisdiction over Bank of Evansville.
    [23]   Our court has recognized, “[j]unior lienholders and others having a junior claim
    or interest in mortgaged property are proper parties to a foreclosure action;
    necessary parties include those with an ownership interest in the property. Both
    proper and necessary parties must be joined in a foreclosure action before that
    action will be binding upon them.” Deutsche Bank Nat’l Trust Co. v. Mark Dill
    Plumbing Co., 
    903 N.E.2d 166
    , 169 (Ind. Ct. App. 2009) (emphasis in original)
    (quoting another source), clarified on reh’g, 
    908 N.E.2d 1272
    (Ind. Ct. App.
    Court of Appeals of Indiana | Opinion 87A01-1409-MF-366| September 22, 2015   Page 16 of 30
    2009). “The law in this jurisdiction is well settled that a junior lienholder who
    is not made a party to a foreclosure action is in no wise bound by such
    foreclosure and his situation after the foreclosure remained the same as it had
    been before.” 
    Citizens, 949 N.E.2d at 1199
    ; see also Catterlin v. Armstrong, 
    101 Ind. 258
    , 264 (1885) (characterizing as “settled” the proposition “[t]hat the
    rights of a junior mortgagee, who was not made a party, are in no manner
    affected by the foreclosure of and sale on a senior mortgage”).
    [24]   “Rule 60(B)(6) provides for relief from judgments that are “void.” CitiMortgage,
    Inc. v. Barabas, 
    975 N.E.2d 805
    , 816 (Ind. 2012) (citing Shotwell v. Cliff Hagan
    Ribeye Franchise, Inc., 
    572 N.E.2d 487
    , 489-90 (Ind. 1991)). “A judgment issued
    without personal jurisdiction is void, and a court has no jurisdiction over a
    party unless that party receives notice of the proceeding.” 
    Id. Bank of
    Evansville’s Vogel Road address was correctly listed on the HELOC mortgage.
    Whether due to oversight or mistakenly choosing the Newbury Road address
    from an expired name reservation form, NCM served the notice to the wrong
    address, and Bank of Evansville did not receive that notice or otherwise know
    about NCM’s action to foreclosure on the Property. Without proper notice, the
    trial court never had jurisdiction over German American. Accordingly, the
    default judgment was void as to German American, and the trial court did not
    abuse its discretion when it set aside the default judgment against Bank of
    Evansville.
    Court of Appeals of Indiana | Opinion 87A01-1409-MF-366| September 22, 2015   Page 17 of 30
    [25]   Furthermore, we reject any contention that the trial court set aside the entire
    judgment. Briones’s Br. at 24; U.S. Bank’s Br. at 13. In the Partial Judgment, the
    trial court made its position absolutely clear:
    Judge Kelley’s December 29, 2009 order granting the motion to set
    aside default judgment as to German American and to join Briones as
    a necessary party, expressly addressed “any judgment obtained by
    default,” and no more. This order did not vacate the prior judgment and
    order for foreclosure in its entirety, but expressly set aside only the judgment
    obtained by default against German American. As such, the prior Sheriff’s
    sale and purchase by U.S. Bank, with the subsequent transfer to
    Briones are confirmed as valid in all respects, except as to German
    American, who is entitled to proceed toward a judgment of foreclosure
    . . . .”
    Briones’s App. at 167-68 (emphasis added).
    II. Summary Judgment
    [26]   Appellants next argue that the trial court erred in granting summary judgment
    to German American, finding that German American had the right to foreclose
    on its HELOC mortgage as a first priority lienholder. We review a grant of
    summary judgment using the same standard as the trial court. Lacy-McKinney v.
    Taylor Bean & Whitaker Mortg. Corp., 
    937 N.E.2d 853
    , 858 (Ind. Ct. App. 2010).
    Summary judgment is proper “if the designated evidentiary matter shows that
    there is no genuine issue as to any material fact and that the moving party is
    entitled to a judgment as a matter of law.” Ind. Trial Rule 56(C). We must
    construe all facts and reasonable inferences drawn from them in favor of the
    nonmoving party. Auto-Owners Ins. Co. v. Harvey, 
    842 N.E.2d 1279
    , 1282 (Ind.
    2006). We may affirm a summary judgment ruling if it is sustainable on any
    Court of Appeals of Indiana | Opinion 87A01-1409-MF-366| September 22, 2015          Page 18 of 30
    legal theory or basis found in the evidentiary matter designated to the trial
    court. W. Am. Ins. Co. v. Cates, 
    865 N.E.2d 1016
    , 1020 (Ind. Ct. App. 2007),
    trans. denied.
    [27]   The facts are not in dispute. The parties agree that U.S. Bank (successor in
    interest to NCM)15 and German American (successor in interest to Bank of
    Evansville)16 each loaned money to the Millers, entered into mortgages with the
    Millers to secure those loans, and properly filed those mortgages with the
    Warrick County Recorder. U.S. Bank’s mortgage secured a loan to the Millers
    in the amount of $774,500, and German American’s mortgage, which was in a
    junior position, secured the Millers’ $25,000 HELOC. Because German
    American is not bound by the original Decree of Foreclosure, due to the default
    judgment being set aside, the question remains as to what rights, if any,
    Appellants have in the strict foreclosure action and what priority interest
    German American has in the foreclosure of its HELOC mortgage.
    [28]   In granting summary judgment, the trial court stated:
    5. The disposition of the parties’ motions for summary judgment is
    controlled by the Indiana Supreme Court’s decision in [Citizens] and,
    pursuant to that case the transfer of title by U.S. Bank to Briones by
    the special warranty deed executed on January 27, 2009, after U.S.
    15
    Here, the interests, but not the names of the parties, are significant for our analysis. Therefore, in this
    section of the decision we will refer to any interest of NCM or U.S. Bank as being held by U.S. Bank, unless
    the facts otherwise require.
    16
    Here, again, the interests, but not the names of the parties, are significant for our analysis. Therefore, in
    this section of the decision we will refer to any interest of Bank of Evansville or German American as being
    held by German American, unless the facts otherwise require.
    Court of Appeals of Indiana | Opinion 87A01-1409-MF-366| September 22, 2015                         Page 19 of 30
    Bank purchased the [Property] at Sheriff’s foreclosure sale by a credit
    bid on October 9, 2008, merged U.S. Banks’ mortgage lien into the
    legal title, but did not affect German American’s subordinate mortgage
    when German American did not receive notice of the foreclosure. As
    such, German American’s lien has priority.
    6. Indiana Code 32-29-8-4 does not apply retroactively to save U.S.
    Bank from the operation of case law, as the statute on its face was
    effective upon passage, March 19, 2012, long after the date of the
    execution of the U.S. Bank special warranty deed to transfer title to
    Briones. Therefore, that statute has, in the court’s opinion, no
    applicability or relevance to the matters at issue before the court.
    Briones’s App. at 167. The trial court did not specifically rule on NCM’s motion
    for strict foreclosure, which had been merged into the instant action.
    [29]   “An action to foreclose a mortgage is essentially equitable in nature.” Mark Dill
    Plumbing 
    Co., 903 N.E.2d at 168
    (citing Centex Home Equity Corp. v. Robinson,
    
    776 N.E.2d 935
    , 942 (Ind. Ct. App. 2002), trans. denied). Notwithstanding
    equity’s influence, however, “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. 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. [30] The
    parties recognize that Citizens was handed down in June 2011 and that I.C.
    § 32-29-8-4 became effective nine months later before the trial court entered
    summary judgment. The parties disagree, however, regarding the applicable
    law to determine the priority of liens against the Property. Appellants contend
    that summary judgment in favor of German American was improper because
    the trial court erred in applying Citizens’ now-abrogated discussion of the merger
    Court of Appeals of Indiana | Opinion 87A01-1409-MF-366| September 22, 2015     Page 20 of 30
    doctrine to conclude that German American’s junior mortgage was entitled to
    first priority. They maintain that the trial court should have applied I.C. § 32-
    29-8-4.17 German American responds that in 2009, when U.S. Bank received
    title by sheriff’s deed and then transferred the Property to Briones, the merger
    doctrine—the common law in effect at the time—extinguished U.S. Bank’s
    mortgage lien and merged that interest into U.S. Bank’s ownership interest.
    German American asserts that, because that merger had already occurred in
    2009, I.C. § 32-29-8-4 could not be applied retroactively to resurrect U.S. Bank’s
    priority lien.
    [31]   A discussion of the doctrines of merger and strict foreclosure, concepts integral
    to our Supreme Court’s decision in Citizens and to the Indiana General
    Assembly’s enactment of I.C. § 32-29-8-4, is warranted and aids our analysis.
    The “merger [doctrine] traditionally applied to join two consecutive interests in
    land when both interests came into the hands of one person.” 
    Citizens, 949 N.E.2d at 1197
    . “The doctrine primarily operated to simplify real property
    titles in an era before land was conveyed by written instruments. Courts
    subsequently extended the merger doctrine to mortgages.” 
    Id. Modern merger
    occurs: “When a person holds two estates in property in the same right and
    without an intervening estate, the two estates will coalesce to one estate unless a
    beneficial reason exists for keeping them distinct.” Ann M. Burkhart, Freeing
    17
    Briones also claims that he should prevail on appeal pursuant to the statutory protections afforded a bona
    fide purchaser such as Briones. Our resolution of this issue makes a discussion of that issue unnecessary.
    Court of Appeals of Indiana | Opinion 87A01-1409-MF-366| September 22, 2015                      Page 21 of 30
    Mortgages of Merger, 40 Vand. L. Rev. 283, 284 (1987). The “doctrine of merger
    operates in these cases as a technical, nonsubstantive rule concerning property
    titles. If the holder of the interests is not benefited in any way by keeping the
    estates distinct, they will merge to simplify the state of title.” 
    Id. [32] Equity
    has never favored the rule of merger. 4 Richard R. Powell & Patrick J.
    Rohan, Powell on Real Property § 37.32[1] (Michael A. Wolf ed. 2000). “If there
    is any advantage to be gained by continuing the independent existence of the
    rights, such independent existence will be maintained. This equitable exception
    to the doctrine of merger is explained as a product of ‘intent,’ actual or
    presumed.” 
    Id. (footnotes omitted).
    [33]   At English common law, “strict foreclosure” was a rare procedure that gave the
    mortgagee title to the mortgaged property—without first conducting a sale—
    after a defaulting mortgagor failed to pay the mortgage debt within a court-
    specified period. Mark Dill Plumbing 
    Co., 903 N.E.2d at 168
    . In states like
    Indiana, however, where a mortgage is regarded as creating only an equitable
    lien,18 and not as a conveyance of the legal estate, the remedy by strict
    foreclosure can only be resorted to under special and peculiar circumstances.
    18
    “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.” In re
    Phillips, 
    368 B.R. 733
    , 743 (Bkrtcy. N.D. Ind. 2007) (quoting Kosciusko Cty. Rural Elec. Membership Corp. v. N.
    Ind. Pub. Serv. Co., 
    248 Ind. 482
    , 
    229 N.E.2d 811
    , 817 (1967)) (citations omitted).
    Court of Appeals of Indiana | Opinion 87A01-1409-MF-366| September 22, 2015                      Page 22 of 30
    
    Id. Because it
    is a harsh remedy, strict foreclosure “should be pursued only in
    cases where a statutory foreclosure and sale would be inappropriate.” 
    Id. [34] Under
    strict foreclosure, “[t]he mortgagee, as owner of the legal interest, could
    seek an ascertainment of the amount due and a decree that the defendant pay
    this amount within a short period to be fixed by the court.” Powell & Rohan,
    supra, § 37.43. “If the defendant failed to pay, his equity of redemption in the
    mortgaged premises was absolutely foreclosed and he was debarred from all
    rights.” 
    Id. Indiana recognizes
    strict foreclosure under limited circumstances,
    “where a foreclosure action has proceeded to conclusion and it is then
    discovered that a junior lienor has been omitted from the action, strict
    foreclosure is a normal method open to the purchaser to clear title.” 
    Id. In a
    strict foreclosure action, “The prayer for relief does not include a request for a
    deficiency judgment since the mortgagee is seeking to perfect his title rather
    than apply security to a debt.” 
    Id. Strict foreclosure
    has acknowledged
    usefulness “[a]s an ancillary device to extinguish an overlooked subordinate
    claim.” 
    Id. [35] In
    Citizens, our Supreme Court applied the merger doctrine to the interests that
    existed in land that had been foreclosed upon and purchased by a mortgagee,
    the result of which was that the mortgagee had no seniority over a junior
    lienholder erroneously omitted from the foreclosure proceedings.
    [36]   In the legislative session immediately following the Citizens decision, the
    General Assembly enacted I.C. § 32-29-8-4, declaring an emergency to allow the
    Court of Appeals of Indiana | Opinion 87A01-1409-MF-366| September 22, 2015   Page 23 of 30
    statute to become effective upon passage. 19 This statute effectively “eliminated the
    doctrine of merger from Indiana foreclosure law and statutorily reinstated the
    strict foreclosure remedy to resolve claims of omitted parties following
    mortgage foreclosures.” Rory O’Bryan, Legislative Preemption of Merger, Prob. &
    Prop., May/June 2013 44, 45. I.C. § 32-29-8-4 defined the terms “interested
    person” and “omitted party” in the context of a foreclosure suit, and laid out
    the steps whereby either could file an action to determine the extent of an
    omitted party’s interest and terminate that interest subject to the right of the
    omitted party to redeem the property on terms as the court considers equitable
    under the circumstances.
    [37]   I.C. § 32-29-8-4 provides that an “interested person,” like NCM, U.S. Bank, or
    Briones, or an “omitted party,” like German American or Bank of Evansville,
    can bring a civil action, “at any time after a judgment and decree of sale is
    entered in an action to foreclose a mortgage,” to determine the extent of and
    terminate the interest of an omitted party in the property subject to the sale.
    I.C. § 32-29-8-4(c). The court is then charged with determining the extent of the
    omitted party’s interest in the property, and “issue a decree terminating that
    interest, subject to the right of the omitted party to redeem the property on
    terms as the court considers equitable under the circumstances.” I.C. § 32-29-8-
    4(d). If the court determines that the omitted party is entitled to redemption,
    19
    We note that the Indiana General Assembly adjourns in the spring of each year and does not go into full
    session until January of the following year. Therefore, absent calling a special session, March 2012 was,
    likely, the soonest the legislature could have responded to the Citizens decision.
    Court of Appeals of Indiana | Opinion 87A01-1409-MF-366| September 22, 2015                    Page 24 of 30
    and after considering certain statutory factors, “the court shall grant redemption
    rights to the omitted party that the court considers equitable under the
    circumstances.” I.C. § 32-29-8-4(g).
    [38]   The purpose of the statute is set forth in section (h), which provides:
    (h) The senior lien upon which the foreclosure action was based is not
    extinguished by merger with the title to the property conveyed to a
    purchaser through a sheriff’s deed executed and delivered under IC 32-
    29-7-10 until the interest of any omitted party has been terminated:
    (1) through an action brought under this section; or
    (2) by operation of law.
    Until an omitted party’s interest is terminated as described in this
    subsection, any owner of the property as a holder of a sheriff’s deed
    executed and delivered under IC 32-29-7-10, or any person claiming
    by, through, or under such an owner, is the equitable owner of the
    senior lien upon which the foreclosure action was based and has all
    rights against an omitted party as existed before the judicial sale.
    I.C. § 32-29-8-4(h).
    [39]   Appellants contend that the trial court erred when it applied the common law
    merger principles of Citizens, instead of applying I.C. § 32-29-8-4. We agree.
    [40]   We reject German American’s argument that U.S. Bank’s interests were
    extinguished by operation of law in 2009. Even under the reasoning of Citizens,
    merger was not automatic. NCM filed its motion for strict foreclosure in
    January 2010, and that motion was consolidated into the instant action in May
    2010. Applying Citizens’ rationale, the motion for strict foreclosure would have
    acted “merely as a mechanism to place before the court the question of whether
    Court of Appeals of Indiana | Opinion 87A01-1409-MF-366| September 22, 2015     Page 25 of 30
    the doctrine of merger should be enforced.” 
    Citizens, 949 N.E.2d at 1200
    (emphasis
    added).
    [41]   Here, the doctrines of merger and strict foreclosure were of no import until the
    parties questioned the priority of their interests in the Property. German
    American did not file its motion to set aside the default judgment until
    November 2009, and the default judgment was not set aside until December
    2009. The question of priority did not arise until NCM filed its motion for strict
    foreclosure in January 2010; it was at that time that the doctrines of merger and
    strict foreclosure became issues. It would be another three years, in 2013 when
    this case was decided, before the trial court would have to determine whether
    merger had occurred.
    [42]   German American contends the application of I.C. § 32-29-8-4 to this case
    would be improper as retroactive. “Statutes are disfavored as retroactive when
    their application ‘would impair rights a party possessed when he acted, increase
    a party’s liability for past conduct, or impose new duties with respect to
    transactions already completed.’” Fernandez-Vargas v. Gonzales, 
    548 U.S. 30
    , 37
    (2006) (quoting Landgraf v. USI Film Prods., 
    511 U.S. 244
    , 280 (1994)).
    “Accordingly, it has become ‘a rule of general application’ that ‘a statute shall
    not be given retroactive effect unless such construction is required by explicit
    language or by necessary implication.’” Id.; see also Moore v. State, 
    30 N.E.3d 1241
    , 1248 (Ind. Ct. App. 2015) (“A general rule of statutory construction is
    that, unless there are strong and compelling reasons, statutes will not be applied
    retroactively.”).
    Court of Appeals of Indiana | Opinion 87A01-1409-MF-366| September 22, 2015   Page 26 of 30
    [43]   “[T]he presumption against retroactive legislation is deeply rooted in our
    jurisprudence, and embodies a legal doctrine centuries older than our
    Republic.” 
    Landgraf, 511 U.S. at 265
    . “Elementary considerations of fairness
    dictate that individuals should have an opportunity to know what the law is and
    to conform their conduct accordingly; settled expectations should not be lightly
    disrupted.” 
    Id. For that
    reason, the principle that the legal effect of conduct
    should ordinarily be assessed under the law that existed when the conduct took
    place has timeless and universal human appeal.” 
    Id. (internal quotation
    marks
    omitted).
    [44]   That being said, “[a]lthough court opinions often designate statutes as either
    prospective or retrospective, the statutes in fact are often not susceptible to such
    clear characterization.” 2 Norman J. Singer & J.D. Shambie Singer, Sutherland
    Statutory Construction 383-85 (7th ed. 2009). “Many statutes are both
    prospective and retrospective. 
    Id. at 385.
    “A statute does not operate
    ‘retrospectively’ merely because it is applied in a case arising from conduct
    antedating the statute’s enactment, or upsets expectations based in prior law.”
    
    Landgraf, 511 U.S. at 269
    (citation omitted). “The inquiry into whether a
    statute operates retroactively demands a commonsense, functional judgment
    about ‘whether the new provision attaches new legal consequences to events
    completed before its enactment.’” Martin v. Hadix, 
    527 U.S. 343
    , 357-58 (1999)
    (citing 
    Landgraf, 511 U.S. at 270
    ). “This judgment should be informed and
    guided by ‘familiar considerations of fair notice, reasonable reliance, and settled
    expectations.’” Id. (quoting 
    Landgraf, 511 U.S. at 270
    ).
    Court of Appeals of Indiana | Opinion 87A01-1409-MF-366| September 22, 2015   Page 27 of 30
    [45]   In Landgraf, the United States Supreme Court offered,
    When a case implicates a federal statute enacted after the events in
    suit, the court’s first task is to determine whether Congress has
    expressly prescribed the statute’s proper reach. If Congress has done
    so, of course, there is no need to resort to judicial default rules. When,
    however, the statute contains no such express command, the court
    must determine whether the new statute would have retroactive effect,
    i.e., whether it would impair rights a party possessed when he acted,
    increase a party’s liability for past conduct, or impose new duties with
    respect to transactions already completed. If the statute would operate
    retroactively, our traditional presumption teaches that it does not
    govern absent clear congressional intent favoring such a 
    result. 511 U.S. at 280
    . Although the Landgraf Court was addressing a federal statute,
    we find this procedure provides guidance regarding the application of I.C. § 32-
    29-8-4 under the facts of this case.
    [46]   The Indiana General Assembly in adopting I.C. § 32-29-8-4 provided evidence
    as to its scope. The language of subsection (c), a section that effectively codified
    a form of strict foreclosure, provides, “At any time after a judgment and decree
    of sale is entered in an action to foreclose a mortgage on an interest in real
    property in Indiana, an interested person or an omitted party may bring a civil
    action to: (1) determine the extent of; and (2) terminate the interest of; an
    omitted party in the property subject to the sale.” I.C. § 32-29-8-4(c) (emphasis
    added). The plain meaning of the “strict foreclosure” language shows that I.C.
    § 32-29-8-4 can be applied any time after a judgment and decree of sale is
    entered. I.C. § 32-29-8-4.
    [47]   The Millers obtained a $25,000 line of credit from German American on
    November 17, 2006, and executed a mortgage in favor of German American to
    Court of Appeals of Indiana | Opinion 87A01-1409-MF-366| September 22, 2015     Page 28 of 30
    secure that loan. Prior to making that loan, German American should have
    engaged in due diligence. A review of the Warrick County Recorder records
    would have uncovered the existence of U.S. Bank’s mortgage, which was
    recorded on October 19, 2006 (Instrument No. 2006R-012338), as a first
    priority lien. Briones’s App. at 95-96; Appellee’s App. 189. The mortgage reflected
    that just one month prior, the Millers had borrowed almost $775,000 from U.S.
    Bank to finance the purchase of the Property. Appellee’s App. at 189-90. In other
    words, the Property, which was the collateral German American accepted in
    exchange for granting the loan, already had a first priority lien against it
    securing U.S. Bank’s loan, which was about thirty times larger than the line of
    credit that German American extended to the Millers.
    [48]   The concepts of merger and strict foreclosure were in existence at the time the
    Millers borrowed money from both U.S. Bank and German American, and
    German American’s interests would not have been substantively changed by a
    shift in those concepts during the pendency of the case. Considerations of the
    doctrines of merger and strict foreclosure played no part in the expectations that
    German American had when it granted the Millers their loan.
    [49]   The application of I.C. § 32-29-8-4 to the instant facts will not impair any rights
    German American had when it acted, will not increase German American’s
    liability for past conduct, and will not impose new duties on German American
    with respect to completed transactions. Accordingly, the application of I.C. §
    32-29-8-4 to the facts of this case does not act as a retroactive application. In
    Court of Appeals of Indiana | Opinion 87A01-1409-MF-366| September 22, 2015   Page 29 of 30
    fact, the application of this statute will return German American to the position
    that it knew it occupied—that of a junior lienholder.
    [50]   Pursuant to I.C. § 32-29-8-4, German American is not entitled to the priority
    lien it obtained from the trial court. This application of this statute is what our
    legislature intended and is consistent with an equitable result.20
    [51]   The language of I.C. § 32-29-8-4 sets forth the specific procedure that an
    interested party or an omitted party must take regarding determining and
    terminating the interest of an omitted party. We remand this case to the trial
    court with instructions that the court treat the motion for strict foreclosure as a
    motion filed pursuant to I.C. § 32-29-8-4 and, thereafter, apply that section to
    resolve German American’s interest as an omitted party.
    [52]   We affirm the trial court’s decision to set aside German American’s default
    judgment, we reverse the trial court’s grant of summary judgment in favor of
    German American, and we remand to the trial court to decide this case
    pursuant to I.C. § 32-29-8-4
    [53]   Affirmed in part, reversed in part, and remanded.
    Vaidik, C.J., and Bradford, J., concur.
    20
    Indeed, in its Partial Judgment, the trial court made the same observation, noting that its judgment “seems
    to result in an inequitable and unjust result.” Briones’s App. at 167.
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