Joseph Matly and Rima A. Matly v. Citimortgage, Inc. (mem. dec.)

MEMORANDUM DECISION FILED Dec 08 2016, 9:21 am

Pursuant to Ind. Appellate Rule 65(D), this CLERK Memorandum Decision shall not be regarded as Indiana Supreme Court Court of Appeals precedent or cited before any court except for the and Tax Court

purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case.

ATTORNEY FOR APPELLANTS ATTORNEYS FOR APPELLEE Andrew J. Thompson Kurt V. Laker Indianapolis, Indiana Mark S. Gray Doyle & Foutty, PC Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Joseph Matly and Rima A. December 8, 2016 Matly, Court of Appeals Case No. 29A04-1608-MF-1761 Appellants-Defendants, Appeal from the Hamilton Circuit v. Court The Honorable Paul Felix, Judge Citimortgage, Inc., Cause No. 29C01-1307-MF-7147 Appellee-Plaintiff.

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STATEMENT OF THE CASE

[1] Appellants-Defendants, Joseph Matly and Rima A. Matly (collectively, the

Matlys), appeal the trial court’s denial of their motion for relief from summary

judgment, by which the trial court affirmed the judgment and decree of

foreclosure in favor of Appellee-Plaintiff, CitiMortgage, Inc. (CitiMortgage). [2] We affirm.

ISSUES

[3] The Matlys raise two issues on appeal, which we restate as:

(1) Whether the trial court properly permitted CitiMortgage to file a

subsequent motion for summary judgment; and

(2) Whether the trial court correctly denied the Matlys’ motion for relief

from judgment and upheld the summary judgment and decree of

foreclosure.

FACTS AND PROCEDURAL HISTORY

[4] On March 31, 2004, the Matlys executed and delivered to ABN AMRO

Mortgage Group, Inc. a promissory note in the original principal sum of

$731,250, payable with interest at 5.500% per annum. On the same date, to

secure payment of the sum due and owing pursuant to the terms of the

promissory note, the Matlys executed a mortgage wherein a security interest

was granted in the real estate located at 3584 Windward Way, in Hamilton

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County, Indiana. On August 31, 2007, ABN AMRO Mortgage Group, Inc.

merged with CitiMortgage. [5] On June 24, 2011, CitiMortgage and the Matlys executed a Home Affordable

Modification Agreement, by which the parties agreed to defer $17,980.12 in

accrued unpaid interest and to lower the interest rate to 2.00% for five years,

adjustable upward thereafter but capped at 4.50%. The Matlys stopped making

payments to CitiMortgage after June 24, 2011. [6] On August 6, 2013, CitiMortgage filed a Complaint to foreclose on the

promissory note and mortgage. On August 19, 2013, the Matlys requested a

Settlement Conference. For an extended time, the parties engaged in the

statutory settlement and loss mitigation process; however, on March 31, 2015,

the trial court entered an order, concluding the settlement conference process.

On April 13, 2015, CitiMortgage filed a motion for summary judgment, as well

as a designation of evidence in support thereof. On May 26, 2015, the Matlys

filed a response to CitiMortgage’s motion and moved to strike CitiMortgage’s

affidavit of debt and designation of evidence. On June 16, 2015, the trial court

denied both the Matlys’ motion to strike and CitiMortgage’s motion for

summary judgment. On June 10, 2015, CitiMortgage filed a motion to

reconsider the denial of its motion for summary judgment. By “Judge’s Entry”

of August 17, 2015, the trial court denied CitiMortgage’s motion to reconsider

but allowed it to “file [a] new motion for summary judgment.” (Appellee’s

App. p. 34). On August 21, 2015, CitiMortgage filed a second motion for

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summary judgment, default judgment and decree of foreclosure, which was

again denied by the trial court on August 26, 2015. [7] On February 23, 2016, CitiMortgage filed a third motion for summary

judgment and default judgment entry and decree of foreclosure, as well as a

memorandum of law and supporting affidavits. The Matlys did not respond.

On April 13, 2016, the trial court granted CitiMortgage’s motion and entered

summary judgment, default judgment, and decree of foreclosure against the

Matlys. [8] On April 25, 2016, CitiMortgage filed a praecipe for order of sale. The sheriff’s

foreclosure sale of the real estate was set for July 14, 2016. On July 6, 2016, the

Matlys filed an emergency motion for relief from summary judgment and for

stay of sheriff’s sale. On July 13, 2016, the trial court denied the Matlys’

emergency motion and stay of sheriff’s sale. At the sheriff’s sale, the mortgaged

property was purchased by CitiMortgage. [9] The Matlys now appeal. Additional facts will be provided as necessary.

DISCUSSION AND DECISION

I. Subsequent Motions for Summary Judgment

[10] The Matlys contend that the trial court erred by entering summary judgment in

favor of CitiMortgage. Referencing CitiMortgage’s previous motions for

summary judgment which were denied by the trial court, the Matlys now

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maintain that the trial court’s earlier denials precluded or collaterally estopped

CitiMortgage from seeking summary judgment in February 2016. [11] On April 13, 2015, CitiMortgage filed its initial motion for summary judgment,

as well as a designation of evidence in support thereof, which the Matlys

responded to on May 26, 2015. On the same day, the Matlys also moved to

strike CitiMortgage’s affidavit of debt and designation of evidence. On June 16,

2015, the trial court issued its ruling, concluding:

1. The [c]ourt DENIES [Matlys’] Motion to Strike Affidavit and Designations of Evidence as untimely. 2. After a review of the file, the [c]ourt finds [CitiMortgage] has failed to provide properly designated evidence in compliance with Trial Rule 56. The [c]ourt is guided in this decision by Seth v. Midland Funding, LLC., 997 N.E.2d 1139, 1142-43 (Ind. Ct. App. 2013), which holds in relevant part that unspecified business records relied on in support of summary judgment must be attached to the affidavit. The [a]ffidavit in support of summary judgment relies on unspecified business records which are not attached to the affidavit or otherwise authenticated on record before the [c]ourt. As no evidence supports the judgment sought by [CitiMortgage], the motion for summary judgment is DENIED. (Appellee’s App. p. 33). The trial court did not direct the entry of a final

judgment. [12] On June 10, 2015, CitiMortgage filed a motion to reconsider the denial of its

motion for summary judgment. By “Judge’s Entry” of August 17, 2015, the

trial court denied CitiMortgage’s motion to reconsider but allowed it to “file [a]

new motion for summary judgment.” (Appellee’s App. p. 34). On August 21,

2015, CitiMortgage filed a second motion for summary judgment, default

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judgment and decree of foreclosure, which was again denied by the trial court

on August 26, 2015. [13] On February 23, 2016, CitiMortgage filed a third motion for summary

judgment and default judgment entry and decree of foreclosure, as well as a

memorandum of law and supporting affidavits. On April 13, 2016, the trial

court granted CitiMortgage’s motion and entered summary judgment, default

judgment, and decree of foreclosure against the Matlys. On appeal, the Matlys

now dispute the entry of this summary judgment based on res judicata. [14] It is generally accepted that res judicata serves to prevent repetitious litigation of

disputes which are essentially the same. MicroVote General Corp. v. Ind. Election

Comm’n, 924 N.E.2d 184, 191 (Ind. Ct. App. 2010). The doctrine of res

judicata consists of two distinct components: claim preclusion and issue

preclusion, also referred to as collateral estoppel. See Indianapolis Downs, LLC v.

Herr, 834 N.E.2d 699, 703 (Ind. Ct. App. 2005), trans. denied. Even though

these are two distinct components, claim preclusion and collateral estoppel both

require a decision on the merits before the doctrine can attach. See id. at 703,

704 (for claim preclusion to apply, “the former judgment must have been

rendered on the merits” and in the case of collateral estoppel, “the former

adjudication will only be conclusive as to those issues that were actually

litigated and determined therein”). As the trial court did not adjudicate the

merits of CitiMortgage’s motion for summary judgment, CitiMortgage was not

precluded from renewing its motion for summary judgment.

Court of Appeals of Indiana | Memorandum Decision 29A04-1608-MF-1761 | December 8, 2016 Page 6 of 10 [15] Furthermore, in Gibson v. Evansville Vanderburgh Bldg. Comm’n, 725 N.E.2d 949,

952 (Ind. Ct. App. 2000), trans. denied, this court noted that

[T]he trial court has inherent power to reconsider any of its previous rulings as long as the action remains in fieri, or until judgment is entered. There is no dispute that this action was in fieri at the time the motions for summary judgment were filed. Thus, the trial judge had discretion to rule on the defendants’ summary judgment motions, even if they were repetitive[.] As no final decision had been rendered by the trial court on the issue presented

by the initial summary judgment motions, we conclude that the trial court

properly allowed CitiMortgage to file a new motion for summary judgment. 1

II. Motion for Relief from Judgment

[16] Next, the Matlys contend that “the trial court clearly abused its discretion by

ignoring its own poor rulings in the case and rejecting [the Matlys’] request for

relief from the judgment in light of the fact that it had turned away three

previous motions on the part of [CitiMortgage] asserting precisely the same

1 CitiMortgage devotes a large part of its Appellee’s Brief on the designated affidavit testimony and the mitigation of damages. However, our reading of Appellants’ brief indicates that they only raised the res judicata question in their first issue. The Matlys commenced the issue by laying out their trial court argument, i.e., loan modification, insufficient evidence, and mitigation of damages. They concluded this recitation with “[t]hese arguments prevailed in the trial court on three separate occasions[]” and then started their res judicata claim. (Appellee’s Br. p. 11). Our reading is supported by Appellants’ heading “[t]he trial court erred in granting summary judgment to plaintiff contrary to its earlier decision denying summary judgment to plaintiff,” and their Statement of the Issues. (Appellant’s Br. p. 8). We hasten to point out that, unfortunately, we cannot verify this against the Matlys’ Response to CitiMortgage’s motion for summary judgment as the Matlys’ response was not provided to this court. Contrary to Indiana Rule of Appellate Procedure 49, Appellants did not file an appendix with this court.

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facts and evidence as it did on the motion for summary judgment that was

ultimately granted by the trial court.” (Appellant’s Br. p. 12). [17] Without specifying in their appellate brief on which prong of Indiana Trial Rule

60(B) they rely to support their request, we turn to the Matlys’ amended

emergency motion for relief from summary judgment and for stay of sheriff’s

sale filed before the trial court on July 12, 2016. In their motion, the Matlys

assert “exigency of the circumstances and the irreparability of the harm that will

occur to [the Matlys]” by going forward with the sheriff’s sale. (Appellee’s

App. p. 153). Their legal basis for relief appears to be a reiteration of their first

appellate issue, i.e., the denial of CitiMortgage’s initial motion for summary

judgment should have precluded any subsequent motion. Read as a whole, we

will characterize the Matlys’ argument as a request for relief based on

exceptional circumstances pursuant to T.R. 60(B)(8). [18] A motion made under T.R. 60(B) is addressed to the equitable discretion of the

trial court, and we will reverse only upon an abuse of that discretion. Brimhall

v. Brewster, 864 N.E.2d 1148, 1152-53 (Ind. Ct. App. 2007), trans. denied. When

the trial court’s action is clearly erroneous, an abuse of discretion will be found.

Id. at 1153. Indiana Trial Rule 60(B)(8) allows a trial court to set aside a

judgment within a reasonable time for any reason justifying relief “other than

those reasons set forth in sub-paragraphs (1), (2), (3), and (4).” Id. The trial

court’s residual powers under subsection (8) may only be invoked upon a

showing of exceptional circumstances justifying extraordinary relief. Id.

Among other things, exceptional circumstances do not include mistake,

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surprise, or excusable neglect, which are set out in T.R. 60(B)(1). Id. In this

respect, we have distinguished T.R. 60(B)(8) in the past on the following

grounds:

T.R. 60(B)(8) is an omnibus provision which gives broad equitable power to the trial court in the exercise of its discretion and imposes a time limit based only on reasonableness. Nevertheless, under T.R. 60(B)(8), the party seeking relief from the judgment must show that its failure to act was not merely due to an omission involving the mistake, surprise or excusable neglect. Rather some extraordinary circumstances must be demonstrated affirmatively. This circumstances must be other than those circumstances enumerated in the preceding subsections of T.R. 60(B). Baker & Daniels, LLP v. Coachmen Industries, Inc., 924 N.E.2d 130, 140 (Ind. Ct.

App. 2010), trans. denied. In addition to showing circumstances extraordinary

enough to justify relief, the Matlys also must make a prima facie showing of a

meritorious claim. See id. at 141. In making such showing, the Matlys are

required to present evidence that, if credited, demonstrates that a different result

would be reached if the case were retried on the merits and that it is unjust to

allow the judgment to stand. See id. [19] At no point did the Matlys contest CitiMortgage’s allegations of default on the

promissory note and mortgage. The evidentiary allegations raised after

CitiMortgage’s initial motion for summary judgment and acknowledged by the

trial court in its denial of CitiMortgage’s initial motion, were cured with the

filing of CitiMortgage’s latest—and successful—motion for summary judgment.

The Matlys did not respond to this motion for summary judgment until after

judgment was entered and until eight days before the scheduled sheriff’s sale

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was to take place. Accordingly, we agree with CitiMortgage that the

emergency the Matlys now complain of is of their own making. The Matlys did

not offer any evidence—let alone any substantive evidence—which would

change the outcome of the case. We affirm the trial court’s denial of the

Matlys’ motion for relief from judgment.

CONCLUSION

[20] Based on the foregoing, we conclude that the trial court properly permitted

CitiMortgage to file a subsequent motion for summary judgment; and the trial

court correctly denied the Matlys’ motion for relief from judgment. [21] Affirmed. [22] Crone, J. and Altice, J. concur

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