Terrance E. Chmiel v. US Bank National Association , 109 N.E.3d 398 ( 2018 )

FILED
Jun 29 2018, 5:39 am
CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court
ATTORNEYS FOR APPELLANT ATTORNEYS FOR APPELLEE
James R. Bryon Tammy L. Ortman
Lisa Gilkey Schoetzow Jennifer S. Ortman
Thorne Grodnik, LLP Lewis & Kappes, P.C.
Elkhart, Indiana Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Terrance E. Chmiel, June 29, 2018
Appellant-Plaintiff, Court of Appeals Case No.
75A05-1708-PL-1979
v. Appeal from the Starke Circuit
Court
US Bank National Association, The Honorable Kim Hall, Judge
Appellee-Defendant. Trial Court Cause No.
75C01-1505-PL-20
Pyle, Judge.
Statement of the Case
[1] Terrance E. Chmiel (“Chmiel”) appeals the trial court’s grant of summary
judgment in favor of U.S. Bank, National Association (“U.S. Bank”) on U.S.
Bank’s cross-motion for summary judgment in Chmiel’s quiet title proceedings.
Chmiel argues that the trial court erred in determining that: (1) his quiet title
action was barred by the statute of limitations; (2) his quiet title action was
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barred by the doctrine of laches; (3) a 2005 deed in which he purportedly
conveyed his property rights to his mother was valid; and (4) U.S. Bank was a
bona fide mortgagee1 of the property at issue. Because we conclude that: (1)
Chmiel’s quiet title action was not barred by the statute of limitations; and (2)
there remain genuine issues of material fact regarding whether: (a) the doctrine
of laches bars Chmiel’s claim; (b) the 2005 deed was valid; and (c) U.S. Bank
was a bona fide mortgagee, we agree that the trial court erred when it granted
summary judgment. We reverse the trial court’s order and remand for further
proceedings.
[2] We reverse and remand.
Issues
1. Whether the trial court erred in granting summary judgment
based on its determination that Chmiel’s quiet title action was
barred by the statute of limitations.
2. Whether the trial court erred in granting summary judgment
based on its determination that Chmiel’s quiet title action was
barred by laches.
3. Whether the trial court erred in granting summary judgment
based on its determination that a 2005 deed to the property at
1
Throughout the documents in this case, the parties alternately refer to U.S. Bank as a bona fide purchaser
and a bona fide mortgagee. We conclude that the parties are using different terminology for the same
concept—the doctrine of bona fide purchaser in the context of purchasing the right to enforce a mortgage.
Our case law has clarified that the bona fide purchaser doctrine can apply in the mortgage context, so the
bona fide mortgagee doctrine is not distinct from the bona fide purchaser doctrine. See Weathersby v.
JPMorgan Chase Bank, N.A., 906 N.E.2d 904 (Ind. Ct. App. 2009) (discussing the doctrine of bona fide
purchaser in the context of a property dispute). Based on the context of the parties’ arguments, we will use
the terminology “bona fide mortgagee” rather than “bona fide purchaser.”
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issue was valid.
4. Whether the trial court erred in granting summary judgment
based on its determination that U.S. Bank was a bona fide
mortgagee.
Facts
[3] On November 27, 1991, Chmiel’s mother, Ann L. Nied (“Ann”), and step-
father, Ovid O. Nied (“Ovid”), conveyed to Chmiel a fee simple interest in their
property (“the Property”) subject to life estates in their names. The deed
conveying the Property (“1991 Deed”) was recorded in the Starke County
Recorder’s Office on December 3, 1991. Ovid then died on November 18,
2000.
[4] On October 31, 2005, a quitclaim deed (“2005 Deed”) conveying Chmiel’s fee
simple interest in the Property back to Ann was registered in the Starke County
Recorder’s Office. The 2005 Deed included two signature pages, each
containing Ann’s signature and a signature purporting to belong to Chmiel.
The first signature page was dated October 13, 2005 and had been notarized by
a notary public named Gale J. Davis (“Notary Davis”). The second signature
page was dated October 6, 2005 and had been notarized by a notary public
named Sandra L. Hansen.
[5] After Ann received title to the fee simple interest in the Property, she executed a
promissory note (“Note”) to Homeowners Loan Corporation (“Homeowners”)
and a mortgage (“Mortgage”) on the Property securing the Note, in exchange
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for $40,000. The terms of the Mortgage described Ann’s fee simple interest in
the Property rather than the life estate she had retained in the 1991 Deed.
[6] Two years later, on August 9, 2007, Chmiel’s attorney wrote a letter (“First
Letter”) to Homeowners to notify the company that Chmiel had become aware
of the 2005 Deed and Mortgage and disputed the 2005 Deed’s legitimacy.
Specifically, Chmiel claimed that his signature on the 2005 Deed was forged
and that he still owned a fee simple interest the Property. Chmiel also asserted
that, because he still owned a fee simple interest in the Property, the Mortgage
applied to only the life estate interest that Ann had retained in the 1991 Deed.
Homeowners did not respond to Chmiel’s letter.
[7] Thereafter, the Note and Mortgage were assigned to other entities, but the dates
of those assignments and names of those assignees are not a part of the record.
Chmiel’s attorney wrote a letter dated May 27, 2009 (“Second Letter”) to
Homecoming Financial, the apparent Mortgage assignee or loan servicer at that
time, to notify the company of his allegations regarding the 2005 Deed and the
Mortgage. He also attached a copy of the First Letter to this Second Letter.
Homecoming Financial did not respond to the Second Letter.
[8] Thereafter, ownership of the Note and Mortgage apparently changed, and on
March 29, 2010, Chmiel’s attorney wrote a letter (“Third Letter”) to GMAC
Mortgage, LLC (“GMAC Mortgage”), to advise the company of his interest in
the Property. He attached copies of his First and Second Letters to this Third
Letter. GMAC Mortgage replied to the Third Letter on April 9, 2010, writing
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that it “acknowledge[d] Mr. Chmiel’s allegations of forgery” but stating that it
“[did] not investigate this type of fraud on behalf of third parties.” (App. Vol. 4
at 88). The company suggested that Chmiel might “wish to take legal action
against the alleged perpetrator” and requested Chmiel to forward any police
reports or other documents pertaining to any such investigation. (App. Vol. 4
at 88).
[9] On July 28, 2011, the Mortgage Electronic Registration System (“MERS”), as
“nominee for Homeowners Loan Corporation, its successors and/or assigns,”
assigned the Mortgage to U.S. Bank “as trustee for RASC.”2 (App. Vol. 4 at
152). Shortly thereafter, U.S. Bank initiated foreclosure proceedings because
Ann had defaulted on the Mortgage payments. Chmiel filed a motion to
intervene in the foreclosure proceedings, claiming again that he owned a fee
simple interest in the Property and that his signature on the 2005 Deed had
been forged. However, the foreclosure proceedings were stayed when Ann filed
a petition for bankruptcy in the Northern District of Indiana United States
Bankruptcy Court. Chmiel entered an appearance in the bankruptcy
proceedings and filed a motion requesting that the bankruptcy court abandon
2
MERS did not have an ownership interest in the Mortgage or Note. It appears that RASC owned the Note,
and U.S. Bank served as Trustee for RASC. A trustee of an express trust may sue or be sued in its own name
without joining the trust, as long as it states the trustee’s relationship and capacity. Ind. T.R. 17. MERS is
“‘a computer database designed to track servicing and ownership rights of mortgage loans anywhere in the
United States.’” Citimortgage, Inc. v. Barabas, 975 N.E.2d 805, 809 (Ind. 2012) (quoting Christopher L.
Peterson, Foreclosure, Subprime Mortgage Lending, and the Mortgage Electronic Registration System, 78 U. CIN. L.
REV. 1359, 1367-68 (2009-2010)). We will describe the nature of MERS more fully later in the Discussion
section of this Opinion.
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the Property as an asset of Ann’s bankruptcy estate. In this motion, Chmiel
again argued that the 2005 Deed had been forged and that he still owned a fee
simple interest in the Property.
[10] Ultimately, Ann and her creditors agreed to a Chapter 13 bankruptcy plan that
provided that Ann would make monthly mortgage payments and cure the pre-
bankruptcy petition arrearage. Because Chapter 13 bankruptcy plans allow
debtors to retain assets and pay off their debts with future income, neither the
foreclosure court nor the bankruptcy court ruled on the ownership of the
Property after Ann agreed to the Chapter 13 bankruptcy plan. See McCullough v.
CitiMortgage, Inc., 70 N.E.3d 820, 826 (Ind. 2017) (explaining Chapter 13
bankruptcy plans) (internal citations and quotations omitted).
[11] Subsequently, Ann made timely mortgage payments until she passed away on
January 21, 2015. One year later, on January 19, 2016, Chmiel filed a
complaint against U.S. Bank to quiet title to the Property. He argued that the
Mortgage was a cloud on his fee simple title and asked the trial court to: (1)
determine that he owned a fee simple title to the Property; (2) find that the
Mortgage had expired upon Ann’s death because it applied to only her life
estate; and (3) quiet his fee simple title to the Property against U.S. Bank. U.S.
Bank filed an Answer raising the affirmative defense that it was a holder in due
course of the Mortgage.
[12] On March 23, 2017, Chmiel filed a motion for summary judgment. As
designated evidence, Chmiel attached an affidavit in which he averred that he
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had not signed the 2005 Deed and had not been aware that Ann had obtained a
mortgage on the Property. He also averred that he had never transferred his
interest in the Property to Ann or to any other party.
[13] U.S. Bank filed a response in opposition to Chmiel’s summary judgment
motion, as well as its own cross-motion for summary judgment. In its cross-
motion, U.S. Bank argued that: (1) it was a bona fide mortgagee because it had
purchased the right to enforce the Mortgage in good faith and without any
notice of Chmiel’s claims regarding the validity of the 2005 Deed; and (2)
Chmiel’s cause of action was barred by either the statute of limitations for
forgery or the doctrine of laches. In support of its argument that it had not
received notice, U.S. Bank contended that, under Indiana law, the signatures
on the 2005 Deed were prima facie valid because they contained a certificate of
acknowledgement from a notary public. Therefore, according to U.S. Bank, it
had not had cause to question the 2005 Deed’s validity or had notice of
Chmiel’s allegations.
[14] U.S. Bank also designated an affidavit from Notary Davis, who had notarized
the October 13, 2005 signature page of the 2005 Deed. In the affidavit, Notary
Davis averred that she had met with Ann and Chmiel on October 13, 2005 at
her office and that she knew, based on her knowledge of the “manner in which
[she] kept and maintained records of transactions” that she “would have
reviewed and made a photocopy of each of their [d]rivers [l]icenses to confirm
their identities” and would have kept those photocopies in her notary journal.
(App. Vol. 3 at 41-42). She explained that those records had been “destroyed in
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the ordinary course after the passage of five years.” (App. Vol. 3 at 42). Notary
Davis further averred that she would not have notarized the quitclaim deed
unless she had witnessed both Ann and Chmiel personally sign it on October
13, 2005.
[15] Chmiel filed a response to U.S. Bank’s cross-motion for summary judgment in
which he disputed U.S. Bank’s arguments. First, Chmiel contended that U.S.
Bank had waived its statute of limitations, laches, and bona fide mortgagee
arguments by failing to raise them as affirmative defenses in its Answer.
Alternatively, he claimed that the statute of limitations and laches arguments
failed as a matter of law because he had not unduly delayed in asserting his
rights or filed his quiet title claim past the statute of limitations. As for U.S.
Bank’s bona fide mortgagee claim, Chmiel argued that: (1) a forged deed
cannot convey property rights, even to a bona fide mortgagee; (2) U.S. Bank
had not paid consideration for the Mortgage, as required to qualify as a bona
fide mortgagee; and (3) U.S. Bank had received notice regarding Chmiel’s
claims and, therefore, did not qualify as a bona fide mortgagee.
[16] In support of his arguments, Chmiel designated a supplemental affidavit in
which he disputed that he had met with Notary Davis on October 13, 2005.
Specifically, he averred:
I have never been in that office. According to a calendar,
October 13, 2005 was a Thursday. At that time in my career, I
was working as a police officer for the police department of the
City of Elkhart, Indiana. The City of Elkhart Police
Department’s records show that I was on temporary duty on
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October 13, 2005. My temporary duty at that time had me at the
Indiana State Police Post in Indianapolis for a Governor’s
Council meeting for impaired and dangerous drivers. I did not
travel to Knox, Indiana on that day to be with my mother to sign
the [2005 Deed]. The other date on the [2005 Deed] for my
forged signature was October 6, 2005. The City of Elkhart Police
Department records show I was working my regular dut[y] that
day which was a patrol officer on the midnight shift.
(App. Vol. 4 at 27-28). Also in his affidavit, Chmiel contended that there were
“obvious differences observable from a comparison of [his] signature on [his
affidavits] . . . and [his] purported signatures on the [2005 Deed].” (App. Vol. 4
at 28). He speculated that his purported signatures on the 2005 Deed appeared
to be in Ann’s handwriting.
[17] In addition to his own affidavit, Chmiel designated an affidavit from Mary
Chomer (“Chomer”) of the Elkhart City Police Department, as well as his
employee service record for 2005. In her affidavit, Chomer explained that her
job responsibilities as an employee of the Elkhart Police Department included
creating employee service records for the Police Department’s employees. She
averred that she had compiled Chmiel’s employee service record in 2005 and
that Chmiel had been on “temporary duty” on October 13, 2005. “[T]emporary
duty” meant that “Chmiel [had] worked that day but not his usual
responsibilities.” (App. Vol. 4 at 174). As for October 6, 2005, the date listed
on the second signature page in the 2005 Deed, Chomer averred that Chmiel
had performed his “usual responsibilities that day.” (App. Vol. 4 at 174).
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Chmiel’s employee service record for 2005, which Chomer attached to her
affidavit, was consistent with these averments.
[18] Chmiel also designated interrogatories from U.S. Bank. These interrogatories
included the following relevant questions from Chmiel and answers from U.S.
Bank, which were relevant to the question of whether U.S. Bank had paid
consideration for the Note and Mortgage and, thus, qualified as a bona fide
mortgagee:
1. How much money did U.S. Bank pay for the assignment of
the Note and Mortgage[?] . . . .
ANSWER NO. 1: Subject to and without waiving any General
Objection, the Interrogatory seeks information in the possession
of a non-party to this litigation, and is not reasonably calculated
to lead to relevant or admissible evidence. U.S. Bank is neither the
holder of the Note nor the assignee of the Mortgage.
* * * * *
4. When did U.S. Bank purchase the Mortgage and/or take an
assignment of the mortgage[?]
ANSWER No. 4: Subject to and without waiving any General
Objection, U.S. Bank neither purchased nor is it the assignee of the
Mortgage. See also Answer No. 1.
5. Who did U.S. Bank purchase and/or take an assignment of
the Mortgage from[?]
ANSWER NO. 5: Subject to and without waiving any General
Objection, U.S. Bank neither purchased nor is it the assignee of the
Mortgage. See also Answer No. 1, 4.
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6. If the consideration for the assignment of the Mortgage was
other than money, what was the consideration that U.S. Bank
gave for the assignment of the Mortgage[?]
Answer No. 6: Subject to and without waiving any General
Objection, U.S. Bank is not the assignee of the Mortgage. See also
Answer 1, 4, 5.
(App. Vol. 4 at 161-62) (Emphasis added).
[19] In support of his argument that U.S. Bank had received notice of his claims
regarding the 2005 Deed prior to the assignment of the Mortgage, Chmiel
designated U.S. Bank’s attorney’s “Notice of Appearance” from Ann’s
bankruptcy proceedings. (App. Vol. 4 at 155). Per the Notice of Appearance,
U.S. Bank’s attorney had represented “GMAC Mortgage LLC successor by
merger of GMAC Mortgage Corp. Servicer for U.S. Bank National Association
as Trustee” in the bankruptcy case. (App. Vol. 4 at 155). In his response to
U.S. Bank’s cross-motion for summary judgment, Chmiel argued that this
notice raised a genuine issue of material fact regarding whether GMAC
Mortgage had been the loan servicer for the Mortgage on behalf of U.S. Bank at
the time of his March 29, 2010 letter to GMAC Mortgage and that U.S. Bank
had, therefore, received notice of his claim before MERS assigned the Mortgage
to U.S. Bank on July 28, 2011.
[20] On July 31, 2017, the trial court entered an order denying Chmiel’s motion for
summary judgment and granting U.S. Bank’s cross-motion. The court ruled
that: (1) Chmiel’s claim was barred by the statute of limitations because it was
based on a forgery allegation, which carries a statute of limitations of two years;
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(2) Chmiel’s claim was barred by the doctrine of laches; (3) the 2005 Deed was
valid because an acknowledgment by a notary carries a presumption of validity,
and Chmiel had designated only a self-serving affidavit to rebut that
presumption; and (4) the Mortgage was valid because U.S. Bank was a bona
fide mortgagee. Chmiel now appeals.
Decision
[21] On appeal, Chmiel challenges the trial court’s grant of U.S. Bank’s cross-
motion for summary judgment but does not dispute the trial court’s denial of
his own motion for summary judgment. We review a grant of summary
judgment de novo, applying the same standard as the trial court. Hughley v. State,
15 N.E.3d 1000, 1003 (Ind. 2014). Summary judgment is appropriate only
where the designated evidence shows “that there is no genuine issue as to any
material fact and that the moving party is entitled to judgment as a matter of
law.” Ind. Trial Rule 56(C). “A fact is ‘material’ if its resolution would affect
the outcome of the case, and an issue is ‘genuine’ if a trier of fact is required to
resolve the parties’ differing accounts of the truth, or if the undisputed material
facts support conflicting reasonable inferences.” Williams v. Tharp, 914 N.E.2d
756, 761 (Ind. 2009) (quoting T.R. 56 (C)). On review, we may affirm a grant
of summary judgment on any grounds supported by the designated evidence.
Catt v. Bd. of Comm’rs of Knox Cty., 779 N.E.2d 1, 3 (Ind. 2002).
[22] The moving party “bears the initial burden of making a prima facie showing
that there are no genuine issues of material fact and that it is entitled to
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judgment as a matter of law.” Gill v. Evansville Sheet Metal Works, Inc., 970
N.E.2d 633, 637 (Ind. 2012). If the moving party meets this burden, the
nonmoving party must designate evidence demonstrating a genuine issue of
material fact. Id. We “resolve all questions and view all evidence in the light
most favorable to the non-moving party, so as to not improperly deny him his
day in court.” Alldredge v. Good Samaritan Home, Inc., 9 N.E.3d 1257, 1259 (Ind.
2014) (internal citation omitted). We “consciously err[] on the side of letting
marginal cases proceed to trial on the merits, rather than risk short-circuiting
meritorious claims.” Hughley, 15 N.E.3d at 1004. In other words, “‘summary
judgment is not a summary trial.’” Siner v. Kindred Hosp. Ltd. P’ship, 51 N.E.3d
1184, 1190 (Ind. 2016) (quoting Hughley, 15 N.E.3d at 1004-05) (internal
quotation omitted). “Defeating summary judgment requires only a genuine
issue of material fact, not necessarily a persuasive issue of material fact.” Id.
[23] Chmiel’s claim against U.S. Bank was an action to quiet title. An action to
quiet title brings into issue all claims regarding the property in question.
Consolidation Coal Co. v. Mutchman, 565 N.E.2d 1074, 1078 (Ind. Ct. App. 1990),
trans. denied. A plaintiff may recover only upon the strength of his own title and
must show that he has legal title with a present right of possession paramount to
the title of the defendant. Id. It is therefore appropriate for a defendant to prove
that the plaintiff does not have title or interest in the property. Id. Considering
this standard in the context of summary judgment, U.S. Bank had the burden of
showing that Chmiel did not have legal title to the Property with a present right
of possession paramount to its own interest in the Mortgage. See id.Court of Appeals of Indiana | Opinion 75A05-1708-PL-1979 | June 29, 2018 Page 13 of 30
[24] To meet this burden, U.S. Bank presented four alternate grounds for its
argument that it deserved summary judgment on its cross-motion: (1) the
statute of limitations for forgery applied to Chmiel’s claim, and that statute of
limitations had run; (2) the doctrine of laches warranted judgment in favor of
U.S. Bank; (3) the 2005 Deed was valid, so Chmiel did not have legal title to
the Property; and (4) U.S. Bank was a bona fide mortgagee, so the Mortgage
was valid. The trial court granted summary judgment to U.S. Bank on all of
these grounds. Notably, while the trial court split these third and fourth points
into separate findings, they are both grounds for concluding that the fee simple
interest in the Property—whether owned by Chmiel or not—was subject to the
Mortgage, thereby defeating Chmiel’s quiet title action by demonstrating that
Chmiel did not have a “paramount” interest in the Property. See Consolidation
Coal Co., 565 N.E.2d at 1078. Chmiel disputes each of these four grounds on
appeal. We will address each in turn.
1. Statute of Limitations
[25] The trial court concluded that Chmiel’s quiet title action was time-barred
because it was based on a forgery claim, which carries a statute of limitations of
two years. Because Chmiel had notified Homeowners that he knew about the
2005 Deed in his First Letter in 2007, the trial court ruled that the statute of
limitations on his forgery claim had run in 2009. Chmiel disputes this
conclusion, arguing that his claim was an action to quiet title and carries a
statute of limitation of ten years. He notes that he filed his complaint in 2016,
which was within ten years of his 2007 letter.
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[26] Statutes of limitation “‘are practical and pragmatic devices to spare the courts
from litigation of stale claims, and the citizen from being put to his defense after
memories have faded, witnesses have died or disappeared, and evidence has
been lost.’” Mizen v. State ex rel. Zoeller, 72 N.E.3d 458, 465 (Ind. Ct. App. 2017)
(quoting Russo v. S. Developers, Inc., 868 N.E.2d 46, 48 (Ind. Ct. App. 2007)),
trans. denied. “‘They are enacted upon the presumption that one having a well-
founded claim will not delay in enforcing it.’” Id. (quoting Morgan v. Benner,
712 N.E.2d 500, 502 (Ind. Ct. App. 1999), trans. denied). Under Indiana’s
discovery rule, a cause of action accrues, and the statute of limitations begins to
run, when the plaintiff knew or, in the exercise of ordinary diligence, could
have discovered that an injury has been sustained as a result of the tortious act
of another. Messmer v. KDK Fin. Servs., Inc., 83 N.E.3d 774 (Ind. Ct. App.
2017). Notably, a statute of limitations defense is a proper consideration on
summary judgment. Mizen, 72 N.E.3d at 465. If the undisputed facts establish
“‘that the complaint was filed after the running of the applicable statute of
limitations, the trial court must enter judgment for the defendant.’” Id. at 466.
[27] Here, the trial court cited INDIANA CODE § 34-24-3-1 as the basis for its
conclusion that Chmiel’s “claims of forgery were time barred in 2009.” (App.
Vol. 4 at 187). However, INDIANA CODE § 34-24-3-1 concerns the damages
that a person may recover for property offenses and does not mention statutes
of limitation or forgery at all. See id. Also, Indiana courts have previously held
that, when an action to quiet title incidentally alleges misconduct such as fraud
or forgery, the statute of limitations for quiet title applies. See Detwiler v.
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Schultheis, 23 N.E. 709, 711 (Ind. 1890) (holding that, where the gravamen of
the action was for quiet title to real estate, not for relief against fraud, the statute
for relief against fraud did not apply because “[f]raud may be, and in fact [was],
an incident to the cause of action alleged in the complaint, but that [was] all”);
Miladin v. Istrate, 119 N.E.2d 12, 17 (Ind. Ct. App. 1954) (considering plaintiff’s
action to foreclose a mortgage, which was dependent on proving defendant’s
fraud, and concluding that the fraud statute applied “when the immediate and
primary object of the suit [was] to obtain relief from the fraud and not to actions
which fall within some other class even though questions of fraud may rise
incidentally”), reh’g denied. Because the primary object of Chmiel’s suit was to
quiet title to the Property rather than to obtain relief from, or damages for,
Ann’s alleged forgery, we conclude that the forgery aspect of his claim was
incidental, and the trial court should have applied the statute of limitations for
quiet title.
[28] The proper statute of limitations for a quiet title claim is an issue that we have
not addressed in several decades; nor do the statutory provisions for quiet title
explicitly establish a limit. See I.C. § 32-30-2. Chmiel argues that the proper
limit is ten years because a quiet title action is equivalent to an action “for the
recovery of the possession of real estate,” which carries a ten-year statute of
limitations under INDIANA CODE § 34-11-2-11. While we agree with Chmiel
that the proper statute of limitations is ten years, we disagree with the origin of
that limit.
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[29] Historically, it appears that Indiana courts applied the residual statute of
limitation—the statute of limitation for actions not otherwise limited by
statute—to quiet title actions, rather than the statute of limitation “for the
recovery of possession of real estate.” In Royse v. Turnbaugh, 20 N.E. 485, 488-
89 (Ind. 1889), for example, our supreme court noted that the statute of
limitations for the recovery of possession of real estate was twenty years,
whereas “all actions not limited by any other statute shall be brought within
fifteen years.” The supreme court later cited this section of Royse in Stonehill v.
Swartz, 28 N.E. 620, 625 (Ind. 1891), as the basis for its conclusion that the
proper statute of limitations for a quiet title action was fifteen years. By citing
the Royse Court’s reference to the residual statute of limitations, the Stonehill
Court inherently determined that the statute of limitations for “the recovery of
possession of real estate,” which the Royse Court had also cited, did not apply to
quiet title actions. See id. Other courts subsequently followed suit, applying a
fifteen-year limit to quiet title actions. See Eve v. Louis, 91 Ind. 457, 472 (Ind.
1883); Bradshaw v. Van Winkle, 32 N.E. 877, 878 (Ind. 1892) (“This is an action
to quiet title to real estate, and would not be barred in less than 15 years.”)
(citing Eve, 91 Ind. at 472 rather than a statutory basis for its fifteen-year limit).
[30] Our residual statutory limit is no longer fifteen years, but we do still have a
provision establishing a residual limit. Under INDIANA CODE § 34-11-1-2, “[a]
cause of action that: (a) arises on or after September 1, 1982; and (2) is not
limited by any other statute; must be brought within ten (10) years.” The
parties have not directed us to any statutes that have been enacted since Royse
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and Eve that could potentially apply to quiet title claims. 3 Accordingly, we
conclude that the residual statute of limitation still applies to quiet title claims.
See Stonehill, 28 N.E. at 625. Therefore, a ten-year limit applied to Chmiel’s
claim under our current statutory scheme. See I.C. § 34-11-1-2. Because he
indicated his knowledge of the 2005 Deed in 2007 and filed his complaint in
2016, he brought his claim within that ten-year limit. Thus, the trial court erred
in granting summary judgment on the ground that Chmiel’s claim was time-
barred.4
2. Laches
3
Conceivably, the statute governing “[a]ctions for injuries to property other than personal property” could
apply to a quiet title action. See I.C. § 34-11-2-7. However, because this statute existed when our supreme
court decided Royse and Stonehill, the Court likewise inherently determined that it did not apply to quiet title
actions when the Court applied the residual clause, instead. See 1881 S., p. 240, Sec. 293.
4
Because we have decided in Chmiel’s favor on this issue, we need not address his argument that U.S. Bank
waived its argument by failing to plead the statute of limitations as an affirmative defense. Nevertheless, we
note that, “our courts have stated that ‘a statute of limitations defense may properly be raised by a motion for
summary judgment’ even if not raised in the pleadings.” Mizen, 72 N.E. 3d at 466 (quoting Honeywell, Inc. v.
Wilson, 500 N.E.2d 1251, 1252 (Ind. Ct. App. 1986), reh’g denied, trans. denied). It is well-settled that the trial
rules are “designed to avoid pleading traps,” and the critical inquiry is “not whether the defendant could have
raised its affirmative defense earlier,” but “whether the defendant’s failure to raise the affirmative defense
earlier prejudiced the plaintiff.” Borne v. Nw. Allen Cty. Sch. Corp., 532 N.E.2d 1196, 1199 (Ind. Ct. App.
1989), trans. denied. In Borne, we held that:
The presumption is that issues can be raised as they, in good faith, are developed. This
presumption can be rebutted by the party against whom the new issue is raised by an
affirmative showing of prejudice. In this context, delay alone does not constitute sufficient
prejudice to overcome the presumption. Instead there must be a showing that the party in
opposition will be deprived of, or otherwise seriously hindered in the pursuit of some legal
right if injection of the new issue is permitted.
Id. (internal citations and quotations omitted).
Here, Chmiel did not prove that he was prejudiced by U.S. Bank’s delay in raising its affirmative defenses.
Accordingly, we will address his arguments regarding those defenses on the merits.
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[31] Next, Chmiel argues that the trial court erred when it determined that his claim
was barred by the doctrine of laches. Laches is an equitable defense that may
be raised to stop a person from asserting a claim he would normally be entitled
to assert. Angel v. Powelson, 977 N.E.2d 434, 445 (Ind. Ct. App. 2012).
“‘Laches is neglect for an unreasonable length of time, under circumstances
permitting diligence, to do what in law should have been done.’” Id. (quoting
Gabriel v. Gabriel, 947 N.E.2d 1001, 1007 (Ind. Ct. App. 2011). “‘The general
doctrine is well[-]established and long[-]recognized: Independently of any
statute of limitation, courts of equity uniformly decline to assist a person who
has slept upon his rights and shows no excuse for laches in asserting them.’” Id.(quoting SMDfund, Inc. v. Fort-Wayne-Allen Cty. Airport Auth., 831 N.E.2d 725,
729 (Ind. 2005), cert. denied, reh’g denied) (internal quotation omitted).
[32] The doctrine of laches may bar a plaintiff’s claim if a defendant establishes the
following three elements: (1) an inexcusable delay in asserting a known right;
(2) an implied waiver arising from knowing acquiescence in existing conditions;
and (3) a change in circumstances causing prejudice to the adverse party. Id. A
mere lapse of time is not sufficient to establish laches; it is also necessary to
show an unreasonable delay that causes prejudice or injury. Id. Prejudice or
injury may be created if a party, with knowledge of the relevant facts, permits
the passing of time to work a change of circumstances by the other party. Id.Notably, the doctrine of laches “may bar a plaintiff’s claim even though the
applicable statute of limitations has not yet expired if the laches are of such
character as to work an equitable estoppel (which contains the additional
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element of reliance by the defendant).” Shafer v. Lambie, 667 N.E.2d 226, 231
(Ind. Ct. App. 1996).
[33] Here, U.S. Bank argues that Chmiel committed inexcusable delay in asserting
his rights because he knew about the forged deed for several years before he
filed his complaint to quiet title. U.S. Bank again claims that this length of time
was several years longer than the two-year statute of limitation for forgery and
notes that, because Chmiel did not file a lawsuit to defend his property right,
U.S. Bank did not receive notice through the chain of title regarding Chmiel’s
prior claims. U.S. Bank also emphasizes that Chmiel did not file a claim to
quiet title even after the foreclosure and bankruptcy courts declined to address
the merits of his claims as an intervening party.
[34] Even if we assume that U.S. Bank met its initial burden of proving the elements
for laches, Chmiel designated evidence raising a genuine issue of material fact.
First, we note that, as we determined above, Chmiel did not file his complaint
to quiet title outside of the statute of limitations. He also designated evidence
that he repeatedly defended his interest in the Property over the years.
Specifically, he notified Homeowners and its subsequent assignees in the First,
Second, and Third Letters that the 2005 Deed had been forged and that he
acquiesced with the Mortgage only to the extent that it applied to Ann’s life
estate. Because the companies did not respond to his First and Second Letters,
he did not receive any indication that they did not agree with his assertion that
the Mortgage applied to only Ann’s life estate. Chmiel also designated
evidence that he later moved to intervene in Ann’s foreclosure proceedings and
Court of Appeals of Indiana | Opinion 75A05-1708-PL-1979 | June 29, 2018 Page 20 of 30
Ann’s bankruptcy proceedings to defend his property interest. Based on this
evidence, we conclude that there remains a question of fact regarding the
elements of laches, namely whether Chmiel committed inexcusable delay in
asserting his known right and knowingly acquiesced in existing conditions.
Accordingly, the trial court erred in granting summary judgment on that
ground.
3. Validity of 2005 Deed
[35] Next, Chmiel challenges the trial court’s conclusion that the 2005 Deed was
valid and, therefore, U.S Bank’s summary judgment motion was warranted
because Chmiel did not have an interest in the Property. The trial court based
its conclusion on INDIANA CODE § 32-21-9-2, which provides that:
An acknowledgment or other notarial act made substantially in
the form prescribed by section 1 of this chapter is prima facie
evidence:
(1) that the person named in the instrument as having
acknowledged or executed the instrument;
(A) appeared in person before the officer taking the
acknowledgment;
(B) was personally known to the officer to be the
person whose name was subscribed to the
instrument; and
(C) acknowledged that the person signed the
instrument as a free and voluntary act for the uses
and purposes set forth in the instrument. . . .
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Citing this provision, the trial court concluded that the two notarized signature
pages in the 2005 Deed were prima facie evidence that Chmiel, rather than
another person, signed the 2005 Deed. Although Chmiel designated an
affidavit in which he averred that he was employed in a different location on
the day the 2005 Deed was signed and notarized, the trial court concluded that
this affidavit was self-serving and insufficient to rebut the presumption of the
prima facie evidence.
[36] On appeal, Chmiel argues that the trial court improperly weighed the evidence
and that there was a genuine issue of material fact regarding whether he signed
the 2005 Deed. We agree. First, we note that the trial court applied the
incorrect standard to its decision. The statutory provision the trial court cited,
INDIANA CODE § 32-21-9-2, falls within Chapter 9 of Article 21, which
concerns “Written Instruments by Members of the Armed Forces.” See I.C. §
32-21-9. The 2005 Deed was not a written instrument by a member of the
armed forces, so this provision was inapplicable. Instead, the trial court should
have applied INDIANA CODE § 32-21-2-12, which concerns certificates of
acknowledgment, and provides that a “certificate of the acknowledgment of a
conveyance or instrument of writing” is “not conclusive and may be rebutted
and the force and effect of it contested by a party affected by the conveyance or
instrument.”
[37] Second, the trial court incorrectly concluded that a self-serving affidavit is
insufficient to present a genuine issue of fact. Our supreme court has held
otherwise. See Hughley, 15 N.E.3d at 1004. Moreover, Chmiel did not present
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only his own self-serving affidavit. He also designated Chomer’s affidavit and
his employment record, which confirmed that he had been assigned to
temporary duty, which Chomer averred meant that he had worked, but “not his
usual responsibilities,” on one of the days that the 2005 Deed had been signed
and notarized. (App. Vol. 4 at 174). We conclude that this evidence was
sufficient to raise a genuine issue of material fact regarding whether Chmiel
signed the 2005 Deed, and the trial court therefore erred when it granted
summary judgment on this issue.
4. Bona Fide Mortgagee
[38] Finally, Chmiel disputes the trial court’s determination that U.S. Bank is a bona
fide mortgagee. Generally, a bona fide mortgagee is entitled to protection from
interest-holders outside the chain of title as a matter of equity. Jenner v.
Bloomington Cellular Servs., Inc., 77 N.E.3d 1232, 1237 (Ind. Ct. App. 2017),
trans. denied. As a result, the trial court’s determination that U.S. Bank was a
bona fide mortgagee served to protect U.S. Bank’s interest in the Mortgage,
thereby defeating Chmiel’s action to quiet title regarding the Mortgage. See
Consolidation Coal Co., 565 N.E.2d at 1078 (holding that a plaintiff seeking to
quiet title must show that he has legal title with a present right of possession
paramount to the title of the defendant).
[39] In order to qualify as a bona fide purchaser/mortgagee, one must purchase “in
good faith, for valuable consideration, and without notice of outstanding rights of
others.” U.S. Bank, Nat’l Ass’n v. Jewell Invs., Inc., 69 N.E.3d 524, 529 (Ind. Ct.
Court of Appeals of Indiana | Opinion 75A05-1708-PL-1979 | June 29, 2018 Page 23 of 30
App. 2017) (emphasis in original and added). Here, Chmiel argues that U.S.
Bank was not a bona fide mortgagee because it did not purchase the Note and
Mortgage for valuable consideration and because it had notice of his dispute
regarding the 2005 Deed and the Mortgage.
[40] With respect to consideration, U.S. Bank contends that it designated evidence
that Ann received $40,000 when she executed the Note and Mortgage.
However, we disagree that this evidence proves that U.S. Bank gave
consideration for the Mortgage because the record shows that Homeowners—
not U.S. Bank or RASC—gave $40,000 to Ann in exchange for the Note and
Mortgage. It is likely that Homeowners’ subsequent assignees paid
consideration to Homeowners in exchange for the right to enforce the Note and
Mortgage, but U.S. Bank did not designate any evidence of the consideration it
gave for that assignment. Absent such evidence, U.S. Bank did not meet its
burden of proving that it qualified as a bona fide mortgagee.
[41] Moreover, even if U.S. Bank had designated evidence regarding its
consideration, Chmiel subsequently designated evidence raising a genuine issue
of material fact. Specifically, in the interrogatories that Chmiel designated as
evidence, he asked U.S. Bank how much money it had paid for the assignment
of the Note and Mortgage. In its response, U.S. wrote: “U.S. Bank is neither
the holder of the Note nor the assignee of the Mortgage.” (App. Vol. 4 at 161).
Likewise, when Chmiel asked U.S. Bank what consideration it had given for
the assignment if the consideration “was other than money,” U.S. Bank again
responded: “U.S. Bank is not the assignee of the mortgage.” (App. Vol. 4 at
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162). It may be that U.S. Bank’s answers in these interrogatories were attempts
to avoid Chmiel’s questions by providing the technical truth that it did not
purchase the assignment because it served as Trustee for RASC. However,
interpreting U.S. Bank’s answers literally and in the light most favorable to the
non-movant, U.S. Bank denied paying consideration for the Note and
Mortgage. Thus, Chmiel’s designated evidence raised a genuine issue of
material fact regarding whether U.S. Bank paid consideration for the Mortgage.
[42] Next, Chmiel argues that there was a genuine issue of fact regarding whether
U.S. Bank received notice of his allegations concerning the 2005 Deed prior to
the assignment of the Mortgage. In its cross-motion for summary judgment,
U.S. Bank argued that it did not have notice because Chmiel’s allegations were
not a part of the chain of title for the Property, and it had no cause to believe
that a notarized deed would be invalid.
[43] The law recognizes both constructive and actual notice. Bank of N.Y. v. Nally,
820 N.E.2d 644, 648 (Ind. 2005). A “‘purchaser of real estate is presumed to
have examined the records of such deeds as constitute the chain of title thereto
under which he claims, and is charged with notice, actual or constructive, of all
facts recited in such records showing encumbrances, or the non-payment of
purchase money.’” Id. (quoting Smith v. Lowry, 15 N.E. 17, 20 (1888)). A
mortgage provides constructive notice to subsequent purchasers when it is
properly acknowledged and recorded. Id. “‘[A] record outside the chain of title
does not provide notice to bona fide purchasers for value.’” Id. (quoting Szakaly
v. Smith, 544 N.E.2d 490, 492 (Ind. 1989)). However, actual notice is equally
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binding on mortgagees. See Weathersby v. JPMorgan Chase Bank, N.A., 906
N.E.2d 904, 911 (Ind. Ct. App. 2009). Notice is actual when it has been
directly and personally given to the person to be notified. Id. Additionally,
actual notice may be implied or inferred from the fact that the person charged
had means of obtaining knowledge that he did not use. Id. Whether knowledge
of an adverse interest will be imputed in any given case is a question of fact to
be determined objectively from the totality of the circumstances. Id. These
rules apply to both purchasers and mortgagees. Id.[44] U.S. Bank initially met its burden of producing evidence that it did not receive
notice when it demonstrated that none of Chmiel’s allegations were part of the
chain of title. See Bank of N.Y., 820 N.E.2d at 648 (“‘[A] record outside the
chain of title does not provide notice to bona fide purchasers for value.’”)
(quoting Szakaly, 544 N.E.2d at 492). However, Chmiel subsequently
designated evidence raising a genuine issue of material fact regarding whether,
even if U.S. Bank did not have constructive notice of his allegations, it did have
actual notice.
[45] Chmiel directs our attention to U.S. Bank’s counsel’s Notice of Appearance in
Ann’s bankruptcy proceedings, which he designated as evidence. In this Notice
of Appearance, U.S. Bank’s counsel stated that she represented “GMAC
Mortgage LLC successor by merger of GMAC Mortgage Corp. Servicer for U.S.
Bank National Association as Trustee” in the bankruptcy case. (App. Vol. 4 at
155) (emphasis added). Chmiel argues that this statement proves that GMAC
Mortgage was and/or is U.S. Bank’s loan servicer. Because he notified GMAC
Court of Appeals of Indiana | Opinion 75A05-1708-PL-1979 | June 29, 2018 Page 26 of 30
Mortgage of his allegations regarding the 2005 Deed in his March 29, 2010
Third Letter, he argues that U.S. Bank should have received notice of his
allegations through GMAC Mortgage before MERS assigned the Mortgage to
U.S. Bank on July 28, 2011.
[46] This argument depends on Chmiel’s contention that GMAC Mortgage received
notice of his allegations before U.S. Bank assumed ownership of the Note and
Mortgage and that his notice to GMAC Mortgage can therefore be imputed to
U.S. Bank. Addressing this second point first, we agree that GMAC
Mortgage’s knowledge can be imputed to U.S. Bank. As a loan servicer,
GMAC Mortgage was an agent for the owner of the Note and Mortgage, and
under agency law, an agent’s knowledge may be imputed to its principal. See
Lexington Ins. Co. v. Am. Healthcare Providers, 621 N.E.2d 332, 341 (Ind. Ct. App.
1993) (“[T]he knowledge of an agent acting within the scope of his authority is
imputed to the principal.”), trans. denied.
[47] However, the question of whether GMAC Mortgage received notice of
Chmiel’s allegations before U.S. Bank assumed ownership of the Note and
Mortgage is complicated by the ambiguous nature of MERS and its
involvement in mortgage assignments.5 Chmiel’s argument presumes that U.S.
Bank assumed an ownership interest in the Mortgage when MERS officially
assigned the Mortgage to U.S. Bank on July 28, 2011. However, that is not
5
As stated above, on July 28, 2011, MERS, as “nominee for Homeowners Loan Corporation, its successors
and/or assigns,” assigned the Mortgage to U.S. Bank “as trustee for RASC.” (App. Vol. 4 at 152).
Court of Appeals of Indiana | Opinion 75A05-1708-PL-1979 | June 29, 2018 Page 27 of 30
necessarily true, based on MERS’ involvement in the Mortgage assignment.
Our supreme court explained the complex history of mortgages and the
involvement of MERS in mortgage assignments in Citimortgage, Inc. v. Barabas,
975 N.E.2d 805, 809 (Ind. 2012), as follows:
Traditional mortgages were folies á deux; the cast of characters
consisted solely of Borrower and Lender. Lender, a bank, raised
funds through customer deposits and loaned those funds out to
Borrower. Lender retained both the mortgage and the
promissory note until Borrower had paid his debt in full. Today,
a typical mortgage is better described as a mass delusion, in
which Borrower and Lender are joined by Loan Servicer, Title
Company, Mortgage Broker, Underwriter, Trustee, and various
other characters that facilitate the negotiation of mortgages on
the secondary market.
The change began in the 1970s with the invention of the
mortgage-backed security, a financial instrument that allowed
investors to trade mortgages in the same way that they traded
stocks and bonds. First, a borrower works with a broker to
obtain a loan from a lender, who receives credit from an
investment bank to fund the loan. The lender then sells the loan
back to the investment bank, which bundles it together with a
few thousand others and divides the bundle into shares. These
shares are sold to investors, who receive a certain amount of the
income that the bundle earns every month when borrowers make
their mortgage payments.
This process, called “securitization,” used to require multiple
successive assignments, each of which had to be recorded on the
county level at considerable inconvenience and expense to the
investment banks involved. In the mid–1990s, seeking to
ameliorate those evils, a consortium of investment banks created
[MERS]. MERS maintains “a computer database designed to
track servicing and ownership rights of mortgage loans anywhere
Court of Appeals of Indiana | Opinion 75A05-1708-PL-1979 | June 29, 2018 Page 28 of 30
in the United States.” MERS member banks list MERS as both
“nominee” for Lender and as “mortgagee” on their mortgage
documents. MERS member banks can then buy and sell the note
among themselves without recording an assignment of the
mortgage. In the event of default, MERS simply assigns the
mortgage to whichever member bank currently owns the note,
and that bank forecloses on the borrower.
(internal citations omitted).
[48] As the supreme court described, an assignment of a mortgage is no longer
necessarily indicative of a transfer of ownership. Instead, it is possible that an
assignee may own the rights to a note and mortgage for a period of time within
MERS’ records before it becomes the assignee of the mortgage for purposes of
title records, as long as it does not need to foreclose on the borrower. See id.Applying this understanding to the instant case, it is possible that U.S. Bank
bought the rights to the Note and Mortgage long before MERS officially
assigned U.S. Bank the Mortgage. Accordingly, Chmiel’s designated evidence
does not prove that U.S. Bank received notice of his allegations from GMAC
Mortgage through Chmiel’s Third Letter before U.S. Bank purchased Note. It
is possible that U.S. Bank owned the Note before Chmiel sent his Third Letter
without undergoing an official assignment of the Mortgage. Nevertheless, we
agree with Chmiel that he raised a genuine question of material fact regarding
whether GMAC Mortgage received actual notice of his allegations before it
became U.S. Bank’s loan servicer and U.S. Bank acquired the Note. That
genuine issue of material fact should be resolved in further proceedings.
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[49] Because we conclude that the statute of limitations did not bar Chmiel’s claim
and that there remain genuine issues of material fact regarding whether: (1) the
doctrine of laches bars Chmiel’s claim; (2) the 2005 Deed is valid; and (3) U.S.
Bank was a bona fide mortgagee, the trial court erred in granting summary
judgment on U.S. Bank’s cross-motion for summary judgment.6 We reverse
and remand for further proceedings.
[50] Reversed and remanded.
Kirsch, J., and Bailey, J., concur.
6
U.S. Bank also argues that summary judgment was warranted based on the doctrine of equitable estoppel.
However, U.S. Bank did not raise this argument in its cross-motion for summary judgment, and it is “well-
settled that ‘[i]ssues not raised before the trial court on summary judgment cannot be argued for the first time
on appeal and are waived.’” Herzo v. City of Lawrenceburg, 81 N.E.3d 1146, 1156-57 (Ind. Ct. App. 2017)
(quoting Dunaway v. Allstate Ins. Co., 813 N.E.2d 376, 387 (Ind. Ct. App. 2004)). Accordingly, U.S. Bank has
waived that argument for appeal.
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