Willie Duncan and Zeola Duncan v. U.S. ROF III Legal Title Trust 2015-1, by U.S. Bank National Association, as Legal Title Trustee (mem. dec.) ( 2018 )

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), this
Memorandum Decision shall not be
FILED
regarded as precedent or cited before any Nov 30 2018, 9:22 am
court except for the purpose of establishing CLERK
Indiana Supreme Court
the defense of res judicata, collateral Court of Appeals
and Tax Court
estoppel, or the law of the case.
APPELLANTS PRO SE ATTORNEY FOR APPELLEE
Willie Duncan Kristin L. Durianski
Zeola Duncan Codilis Law, LLC
Noblesville, Indiana Merrillville, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Willie Duncan and Zeola November 30, 2018
Duncan, Court of Appeals Case No.
Appellants, 18A-MF-1254
Appeal from the Hamilton Circuit
v. Court
The Honorable Paul Felix, Judge
U.S. ROF III Legal Title Trust Trial Court Cause No.
2015-1, by U.S. Bank National 29C01-1703-MF-2959
Association, as Legal Title
Trustee,
Appellee.
Brown, Judge.
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[1] Willie Duncan and Zeola Duncan, pro se, appeal the entry of summary
judgment in favor of U.S. ROF III Legal Title Trust 2015-1, by U.S. Bank
National Association, as Legal Title Trustee (the “Trust”). The Duncans raise
a number of issues, which we consolidate and restate as whether the trial court
erred in granting summary judgment in favor of the Trust. We affirm.
Facts and Procedural History
[2] On March 12, 2007, Zeola executed a promissory note evidencing a loan from
Moore Financial Enterprises, Inc., doing business as Lenders Diversified
(“Lenders Diversified”) in the original principal amount of $315,000 (the
“Note”). That same day, the Duncans entered into a mortgage (the
“Mortgage”) in favor of Mortgage Electronic Registration Systems, Inc.
(“MERS”), as nominee for Lenders Diversified and its successors and assigns,
granting a security interest in certain real property located in Hamilton County,
Indiana, to secure repayment of the loan, which was recorded by the Hamilton
County Recorder as document number 2007014786 on March 15, 2007. The
Note was specifically endorsed by Lenders Diversified to CitiMortgage, Inc.
(“CitiMortgage”) and endorsed by CitiMortgage in blank. Pursuant to
mortgage assignments dated July 6, 2015, and recorded July 13, 2015, MERS
as nominee for Lenders Diversified assigned and transferred the Mortgage to
CitiMortgage, which in turn then assigned and transferred it to “PROF-2013-S3
Legal Title Trust, by U.S. Bank National Association, as Legal Title Trustee”
(“PROF-2013-S3”). Appellee’s Appendix Volume II at 26. PROF-2013-S3
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assigned and transferred the Mortgage to the Trust by an Assignment of
Mortgage (the “Assignment”), dated and recorded October 21, 2016.
[3] The Mortgage provides in part:
1. Payment of Principal, Interest, Escrow Items,
Prepayment Charges, and Late Charges. Borrower[1] shall pay
when due the principal of, and interest on, the debt evidenced by
the Note and any prepayment charges and late charges due under
the Note. Borrower shall pay funds for Escrow items pursuant to
Section 3.
*****
Lender[2] may return any payment or partial payment if the
payment or partial payment are insufficient to bring the Loan
current. Lender may accept any payment or partial payment
insufficient to bring the Loan current . . . but Lender is not
obligated to apply such payments at the time such payments are
accepted. . . . No offset or claim which Borrower might have
now or in the future against Lender shall relieve Borrower from
making payments due under the Note and this Security
Instrument or performing the covenants and agreements secured
by this Security Instrument.
Id. at 12-13. The Mortgage provides that Borrower shall pay to Lender “on the
day Periodic Payments are due under the Note, . . . a sum . . . to provide for
payment of amounts due for: . . . (c) premiums for any and all insurance
required by Lender under Section 5,” and states in part under the heading “5.
1
The Mortgage defines “Borrower” as the Duncans. Appellee’s Appendix Volume II at 10.
2
The Mortgage defines “Lender” as Lenders Diversified. Appellee’s Appendix Volume II at 10.
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Property Insurance” that Borrower shall “keep the improvements now existing
or hereinafter erected on the Property insured against loss by fire, hazards
included within the term ‘extended coverage,’ and any other hazards . . . for
which Lender requires insurance”; that “[t]his insurance shall be maintained in
the amounts (including deductible levels) and for the periods that Lender
requires”; that “[i]f Borrower fails to maintain any of the coverages described
above, Lender may obtain insurance coverage, at Lender’s option and
Borrower’s expense”; and that any amounts disbursed by Lender under this
section shall become “additional debt of Borrower” and “bear interest at the
Note rate from the date of disbursement, and be payable, with such interest,
upon notice from Lender to Borrower requesting payment.” Id. at 13-14.
[4] The Mortgage further provides that, prior to acceleration, notice shall be given
to Borrower which specifies the default by Borrower and the action required to
cure it; a date, not less than thirty days from the date the notice is given to
Borrower, by which the default must be cured; and that failure to cure the
default on or before the date specified may result in acceleration of the sums
secured by the Security Instrument. It states in part that, if the default is not
cured on or before the date specified in the notice, “Lender at its option may
require immediate payment in full of all sums secured by this Security
Instrument without further demand and may foreclose this Security Instrument
by judicial proceeding.” Id. at 20.
[5] On March 28, 2017, the Trust filed a Complaint to Foreclose Mortgage against
the Duncans and attached the Note, Mortgage, and Assignment. The
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Complaint alleged that the Duncans failed to tender monthly payments as
required by the Mortgage and Note, with the initial default occurring for the
month of October 2016, that the Trust was a “‘person entitled to enforce’ the
[Note] and is entitled to enforce the terms of the Mortgage,” and that the Trust
elected to declare the entire balance due and owing. Id. at 3. The Complaint
indicated that, as of March 28, 2017, the following sums were due and owing: a
balance on the Note of $278,983.20; accrued interest from September 1, 2016,
to March 28, 2017, totaling $6,389.86; reasonable attorney fees, title charges
and court costs; accrued late charges; and all expended funds prior to and
subsequent to the filing of the Complaint for payment of real estate taxes,
insurance, and any other necessary repairs, maintenance, assessments, and
costs. (Id.) The Complaint further alleged that the Trust was entitled to interest
after March 28, 2017, reasonable costs and attorney fees, and advances for real
estate taxes, insurance, and to preserve its security for the debt. (Id.) The Trust
requested the entry of a personal judgment against Zeola and an in rem
judgment in its favor in the sum of $285,373.06, that the court declare the
Mortgage to be a valid, first and subsisting lien on the property, and that an
order be entered foreclosing the Mortgage and directing the sale of the property
to satisfy the debt.3
3
The Complaint also named Med-1 Solutions, LLC (“Med-1 Solutions”), as a defendant for any interest that
it may have had in the property pursuant to a judgment against Willie on December 22, 2016, in the amount
of $3,183.58 rendered in cause number 29D05-1611-SC-10161 in the Hamilton County Small Claims court.
It further named Preeti Singh, a/k/a Preetinder Singh, as a defendant for any interest he or she may have had
in the property under a mortgage in the amount of $35,000.00 dated March 12, 2007, and recorded on March
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[6] On November 3, 2017, the Trust filed a motion for summary judgment together
with a designation of materials and memorandum in support of the motion.
The Trust’s designated evidence includes an Affidavit in Support of Judgment
by a foreclosure specialist of Fay Servicing, LLC (“Fay Servicing”), which
states that the Trust was the holder of the Note, that Zeola defaulted pursuant
to the terms of the Note by failing to tender the monthly payments when due,
that the default has not been cured, that the Trust has elected to claim the entire
balance due in accordance with the terms of the Mortgage and Note, and that
the amount due on the loan, including interest from September 1, 2016, through
September 28, 2017, late charges, and total advances made by the Trust, totaled
$303,098.70. The Trust also designated an affidavit of attorney fees, costs, and
expenses in the total amount of $3,093.67.
[7] A December 1, 2017 entry in the chronological case summary (“CCS”)
indicates that the Duncans filed “Addendum 11/29/17,” and states “[o]rder
submitted,”4 and on December 12, 2017, the Trust filed a Reply to Defendants’
15, 2007, in Hamilton County as document number 2007014787. The Trust alleged that both interests were
subordinate and inferior to its interest.
An April 3, 2017 entry in the chronological case summary (“CCS”) states that Med-1 Solutions was served,
and the court’s May 9, 2018 Summary Judgment of Foreclosure found that Med-1 Solutions failed to appear
and was defaulted. An April 12, 2017 CCS entry states “Party Served: . . . Singh, Preeti” and “Hamilton
County Sheriff Return, Summons, TOD 4/10/17, mailed copy 4/11/17,” and a June 2, 2017 CCS entry
indicates that Singh filed an answer to the Complaint, which is not included in the record on appeal.
Appellants’ Appendix Volume II at 6. The court’s May 9, 2018 Summary Judgment of Foreclosure found
Singh’s “rights and interests . . . inferior to the lien and interest” of the Trust. Id. at 17. Singh does not join
in this appeal.
4
Neither party provides in their briefs on appeal citation to the record for a copy of either “Addendum
11/29/17” or the court’s order. Appellants’ Appendix Volume II at 9. We observe that the Appellants’
Appendix contains a copy of a letter written by the Duncans that bears an indecipherable file stamp and
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Response to Motion for Summary Judgment. Appellants’ Appendix Volume II
at 9. On April 30, 2018, the court held a hearing on the motion for summary
judgment, at which Willie presented oral argument and the court reviewed
written material, which Willie presented, “as argument inasmuch as it may tend
to show that the Plaintiff has not met its burden of proof.” Transcript at 8. On
May 9, 2018, the court issued its Summary Judgment of Foreclosure in favor of
the Trust, finding in part that $306,192.37 was due and owing to the Trust as a
valid subsisting lien as set forth in its affidavits.
Discussion
[8] The issue is whether the trial court erred in granting summary judgment in
favor of the Trust. Although the Duncans are proceeding pro se, such litigants
are held to the same standard as trained attorneys and are afforded no inherent
leniency simply by virtue of being self-represented. Zavodnik v. Harper, 17
N.E.3d 259, 266 (Ind. 2014) (citing Matter of G.P., 4 N.E.3d 1158 (Ind. 2014)).
This Court will “not become an advocate for a party, or address arguments that
are inappropriate or too poorly developed or expressed to be understood.” Basic
v. Amouri, 58 N.E.3d 980, 984 (Ind. Ct. App. 2016), reh’g denied.
[9] When reviewing a grant or denial of a motion for summary judgment our well-
settled standard of review is the same as it is for the trial court: whether there is
a genuine issue of material fact, and whether the moving party is entitled to
which contains on the first page the words “Addendum November 29, 2017” underneath “June 29, 2017.”
Id. at 42.
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judgment as a matter of law. Goodwin v. Yeakle’s Sports Bar & Grill, Inc., 62
N.E.3d 384, 386 (Ind. 2016). The party moving for summary judgment has the
burden of making a prima facie showing that there is no genuine issue of
material fact and that the moving party is entitled to judgment as a matter of
law. Id. Once these requirements are met, the burden then shifts to the non-
moving party to show the existence of a genuine issue by setting forth
specifically designated facts. Id. Any doubt as to any facts or inferences to be
drawn therefrom must be resolved in favor of the non-moving party. Id. A trial
court’s grant of summary judgment is clothed with a presumption of validity,
and the party who lost in the trial court has the burden of demonstrating that
the grant of summary judgment was erroneous. Henderson v. Reid Hosp. &
Healthcare Servs., 17 N.E.3d 311, 315 (Ind. Ct. App. 2014), trans. denied. We will
affirm a trial court’s grant of summary judgment upon any theory or basis
supported by the designated materials. Id.
[10] The Duncans argue that the foreclosure ruling was “merely done on
delinquency” rather than “on the eviden[ce] of the case.” Appellants’ Brief at
4. They contend, without citation to authority, that the “focus of the case
should ha[ve] been on who . . . caused the delinquency,” id. at 5, and state “[i]t
is agreed that the loan is in delinquency” and “[w]hat is not agreed is: who
caused the delinquency?” Appellants’ Reply Brief at 3. They further assert
certain exhibits were “not allowed to be presented in the summary hearings,”
the Trust filed for foreclosure “while FayServicing was correcting the escrow to
adjust the monthly installment,” and that the “foreclosure filing violated the
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notice [requirements of the] fair debt collection practices act.”5 Appellants’
Brief at 3-4. The Trust maintains that there is no genuine issue of material fact
and that the court properly granted summary judgment.
[11] To the extent the Duncans fail to cite to relevant authority or relevant portions
of the record or develop an argument with respect to the issues they attempt to
raise on appeal, those arguments are waived. See Loomis v. Ameritech Corp., 764
N.E.2d 658, 668 (Ind. Ct. App. 2002) (holding argument waived for failure to
cite authority or provide cogent argument), reh’g denied, trans. denied. We
additionally observe that the Duncans do not include, under separate headings,
a statement of issues, a statement of case, or a statement of facts in accordance
with a proper standard of review, and that, to the degree that the Duncans
provide citations, they are not in compliance with Rule 22(C). See Indiana
Appellate Rule 46(A).
[12] To the extent that the Duncans argue that the grant of summary judgment in
favor of the Trust is improper, the only authority they cite is to “15 USC
1692:91 STAT.874:PUB.L.95-109(September 20, 1977 amended by
100Stat.768, Public Law 99-361” and to “fair collection laws that require[] any
5
To the extent the Duncans argue that the trial court erred in not granting a motion to be heard by a jury and
cite the Seventh Amendment of the United States Constitution, we observe that state law, including the state
constitution and trial rules, governs whether a right to a jury trial exists in a suit brought in state court even if
the cause of action arises under federal law, see Midwest Sec. Life Ins. Co. v. Stroup, 730 N.E.2d 163, 171 (Ind.
2000) (citing federal authority), and further that Article 1, Section 20 of the Indiana Constitution “preserves
the right to a jury trial only as it existed at common law, and a party is not entitled to a jury trial on equitable
claims.” Lucas v. U.S. Bank, N.A., 953 N.E.2d 457, 460 (Ind. 2011) (citing Songer v. Civitas Bank, 771 N.E.2d
61, 63 (Ind. 2002)).
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debt collector to give thirty days’ notice of the intent to proceed into
foreclosure.” Appellants’ Brief at 3. Appellants’ Reply Brief at 3. We observe
that 15 U.S.C. § 1692g(a) provides in part that the “debt collector shall . . . send
the consumer a written notice containing . . . a statement that unless the
consumer, within thirty days after receipt of the notice, disputes the validity of
the debt, or any portion thereof, the debt will be assumed to be valid by the debt
collector.” 15 U.S.C. § 1692g(b) provides in part that:
If the consumer notifies the debt collector in writing within the
thirty-day period . . . that the debt, or any portion thereof, is
disputed, . . . the debt collector shall cease collection of the debt,
or any disputed portion thereof, until the debt collector obtains
verification of the debt or a copy of a judgment, or the name and
address of the original creditor, and a copy . . . is mailed to the
consumer by the debt collector. Collection activities and
communications that do not otherwise violate this subchapter
may continue during the 30-day period referred to in subsection
(a) unless the consumer has notified the debt collector in writing
that the debt, or any portion of the debt, is disputed or that the
consumer requests the name and address of the original creditor.
We note that the Appellants’ Appendix contains a copy of a Notice Pursuant to
Fair Debt Collection Practices Act, dated March 16, 2017, and addressed to
Willie, which states that “[u]nless you, within thirty days after receipt of this
Notice, dispute the validity of the debt, or any portion thereof, we will assume
that the debt is valid,” and that “[i]f you notify us in writing within thirty days,
after receipt of this Notice, that the debt, or any portion thereof, is disputed, we
will obtain verification of the debt and a copy . . . will be mailed to you.”
Appellants’ Appendix Volume II at 21. We further note that the Appellants’
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Appendix includes a copy of the Duncans’ letter, dated April 12, 2017, and
addressed to the Trust, which states “Fay Servicing . . . caused this mortgage to
be late in payments,” as well as a copy of a letter dated April 24, 2017, and
addressed to the Duncans, that states that it serves as a verification of the debt,
that it enclosed reinstatement and payoff quotes, copies of the Mortgage, Note,
assignments, loan modification, and a payment history, and that it referred the
Duncans to “the letter you received from Fay Servicing’s Compliance
Department dated February 27, 2017” that “provides a complete history of the
circumstances giving rise to your current complaint.” Id. at 22. Accordingly,
we cannot say summary judgment was improper on this basis.
[13] The record reveals that the Note indicates that Zeola promised to pay the
lender, identified as Lenders Diversified, the principal amount of the loan plus
interest. The Note expressly provided that the lender could transfer the Note.
The endorsements attached to the Note show it was endorsed by Lenders
Diversified to CitiMortgage and by CitiMortgage in blank. The recorded
Mortgage, executed by the Duncans in favor of MERS as nominee for Lenders
Diversified and its successors and assigns, granted a security interest in the
property to secure repayment of the loan, and was assigned through a series of
mortgage assignments to the Trust. The Trust designated an affidavit by the
foreclosure specialist of Fay Servicing, which states that the Trust was the
holder of the Note, that Zeola defaulted pursuant to the terms of the Note by
failing to tender the monthly payments when due, that the default was not
cured, that the Trust elected to claim the entire balance due in accordance with
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the terms of the Mortgage and Note, and that the amount due on the loan,
including interest from September 1, 2016, through September 28, 2017, late
charges, and total advances made by the Trust, totaled $303,098.70. The
designated evidence also includes an affidavit of attorney fees, costs, and
expenses which states that the Trust incurred a total of $3,093.67. The
Duncans do not dispute that the “loan is in delinquency.” Appellants’ Reply
Brief at 3. The designated evidence supports the court’s determination that the
Duncans were in default under the terms of the Note and Mortgage.
[14] The Duncans also cite to “Exhibit 4” for the propositions that Fay Servicing
“had put two insurances on the property” and “admitted to sending back the
installment which began the delinquency.” Appellants’ Brief at 4. Even
assuming the February 7, 2017 letter marked with the words “Exhibit 4” in the
Appellants’ Appendix was designated, the letter states in part “[t]he account
currently displays . . . a total outstanding monthly installment balance of
$10,632.69,” “[b]e advised that payment funds were returned to you . . .
because the account was in a pre-foreclosure status at the time as it was more
than sixty days past due,” and “[a]s such, please understand that we could only
accept the full amount due to cure the default.” Appellants’ Appendix Volume
II at 30. The Mortgage provides that Borrower shall maintain property
insurance “in the amounts (including deductible levels) and for the periods that
Lender requires,” that if Borrower fails to maintain the coverage, Lender “may
obtain insurance coverage, at Lender’s option and Borrower’s expense,” and
that any amounts disbursed by Lender “shall become additional debt of
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Borrower” and “bear interest at the Note rate from the date of disbursement,
and be payable, with such interest, upon notice from Lender to Borrower
requesting payment.” Appellee’s Appendix Volume II at 14. The Mortgage
further provides that the Lender “may return any payment or partial payment if
the payment or partial payment are insufficient to bring the Loan current” and
“is not obligated to apply such payments at the time such payments are
accepted” and that no offset or claim which Borrower might have “shall relieve
Borrower from making payments due under the Note and this Security
Instrument or performing the covenants and agreements secured by this
Security Instrument.” Id. at 12-13. We conclude that the trial court did not err
in granting summary judgment in favor of the Trust.
Conclusion
[15] For the foregoing reasons, we affirm the rulings of the trial court and the entry
of summary judgment in favor of the Trust.
[16] Affirmed.
Altice, J., and Tavitas, J., concur.
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