MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
                                                                     Feb 16 2016, 6:27 am
regarded as precedent or cited before any
court except for the purpose of establishing
the defense of res judicata, collateral
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Cody B. Coombs                                           Neal Bailen
Greenfield, Indiana                                      Stites & Harbison PLLC
                                                         Jeffersonville, Indiana


                                                         Zachary M. VanVactor
                                                         Stites & Harbison PLLC
                                                         Louisville, Kentucky




                                           IN THE
    COURT OF APPEALS OF INDIANA

Joseph B. Mattingly,                                     February 16, 2016
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         30A01-1505-MF-402
        v.                                               Appeal from the Hancock Circuit
                                                         Court
Nationstar Mortgage, LLC,                                The Honorable Richard D. Culver,
Appellee-Plaintiff.                                      Judge
                                                         The Honorable R. Scott Sirk,
                                                         Commissioner
                                                         Trial Court Cause No.
                                                         30C01-1209-MF-2009



Altice, Judge.


Court of Appeals of Indiana | Memorandum Decision 30A01-1505-MF-402 | February 16, 2016     Page 1 of 6
                                               Case Summary


[1]   Bank of America, N.A., successor by merger to BAC Home Loans Servicing,

      LP f/k/a Countrywide Home Loans Servicing LP, (BAC) obtained an in rem

      entry of summary judgment and decree of foreclosure (the Judgment) against

      Joseph B. Mattingly and all other defendants. Thereafter, BAC assigned its

      rights in the Judgment to Nationstar Mortgage, LLC (Nationstar). Well over a

      year after entry of the Judgment, Mattingly filed the instant motion for relief

      from judgment based on Trial Rule 60(B)(3). The trial court denied the motion,

      and Mattingly now appeals relying on both T.R. 60(B)(3) and 60(B)(1).


[2]   We affirm.


                                       Facts & Procedural History


[3]   On September 19, 2012, BAC filed the underlying foreclosure complaint

      seeking enforcement of a 2007 promissory note executed by Donald Tansy,

      now deceased, and the contemporaneously executed mortgage on the subject

      property. In addition to Tansy’s unknown heirs at law and his wife, the

      complaint made the occupant(s) of the property parties to the action “to answer

      as to any interest he/she may have in the Real Estate”. Appellee’s Appendix at 3.


[4]   On October 10, 2012, Mattingly appeared by counsel and filed a motion for a

      thirty-day extension of time to file an answer to the complaint, which was

      granted by the trial court. Thereafter, on October 18, 2012, BAC filed an

      Court of Appeals of Indiana | Memorandum Decision 30A01-1505-MF-402 | February 16, 2016   Page 2 of 6
      amended complaint and expressly listed Mattingly as a party.1 The amended

      complaint and summons were properly served on Mattingly through his

      counsel of record. Mattingly, however, never filed an answer to the original

      complaint or the amended complaint.


[5]   On March 28, 2013, BAC filed a motion for summary judgment, along with

      designated evidence. Shortly thereafter, the trial court issued a notice of

      hearing, notifying all parties that a hearing on the motion for summary

      judgment would be held on May 20, 2013. Despite being served through his

      counsel of record with the summary judgment motion, designated evidence,

      and notice of hearing, Mattingly failed to respond to the motion or request

      additional time. He also failed to appear at the summary judgment hearing.


[6]   After the scheduled summary judgment hearing, the trial court entered the

      Judgment on May 29, 2013, granting BAC’s motion for summary judgment.

      The trial court issued a copy of the Judgment to Mattingly through his counsel

      of record. BAC subsequently assigned the Judgment to Nationstar and filed the

      assignment of judgment with the trial court on January 7, 2014.




      1
          Paragraph 16 of the complaint provided:

               Joseph B. Mattingly is made a party to this action to answer as to any interest he/she may have
               in the Real Estate, including, but not limited to, a certain Quit Claim Deed from Lillian G.
               Tansy and Cyndi L. Williamson to Joseph B. Mattingly, dated July 6, 2012 and recorded July
               18, 2012 as Document Number 120007640. Said Defendant is required to assert its interest
               herein or be barred forever.
      Appellant’s Appendix at 12.

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[7]   On March 13, 2015—more than twenty-one months after the Judgment was

      entered—Mattingly filed a motion for relief from judgment, with a new

      attorney appearing on his behalf. In the motion, Mattingly alleged that he had

      entered into a conditional land sale contract with Tansy for the purchase of the

      real estate in question and that a memorandum of contract was recorded with

      the Hancock County Recorder on March 14, 2006, a copy of which he

      appended to his motion. Accordingly, Mattingly asserted that his interest in the

      property was superior in time and right to the later note executed between

      Tansy and BAC on February 28, 2007. Expressly basing his motion on T.R.

      60(B)(3), Mattingly argued that “by only asserting [in the amended complaint]

      that Mattingly had an interest via a Quitclaim Deed in the Real Estate, [BAC]

      misrepresented to the Court Mattingly’s interest in the Real Estate.” Appellant’s

      Appendix at 66.


[8]   The trial court held a hearing on Mattingly’s motion for relief from judgment

      on April 16, 2015. Mattingly appeared at the hearing with counsel but

      presented no evidence. The hearing included only brief arguments from

      counsel for both parties.2 In sum, Mattingly argued that regardless of whether

      he had notice of the complaint and should have answered it, BAC had the duty

      to inform the trial court of Mattingly’s prior recorded equitable interest in the




      2
        Mattingly’s counsel referenced other proceedings that are not in the record and of which Nationstar’s
      counsel was unaware. See Transcript at 9 (“none of the other cases that were mentioned just now are
      referenced in the Motion for Relief from Judgment, so uh, those cases are frankly news to me”). Mattingly
      cites to his counsel’s statements from the hearing throughout his appellate brief as if they constitute facts.
      They do not.

      Court of Appeals of Indiana | Memorandum Decision 30A01-1505-MF-402 | February 16, 2016              Page 4 of 6
       real estate. Following the hearing, the trial court denied the motion for relief

       from judgment.


                                           Discussion & Decision


[9]    Mattingly argues that the trial court abused its discretion when it denied his

       motion for relief from judgment. On appeal, he asserts two grounds for his

       motion—excusable neglect and misrepresentation/misconduct by BAC, based

       on T.R. 60(B)(1) and (B)(3) respectively.


[10]   A motion for relief from judgment is not a substitute for a direct appeal; rather,

       T.R. 60(b) motions address only the procedural, equitable grounds justifying

       relief from the legal finality of a final judgment, not the legal merits of the

       judgment. In re Paternity of P.S.S., 934 N.E.2d 737, 740 (Ind. 2010). The

       burden is on the movant to establish grounds for T.R. 60(B) relief. Id. Because

       such a motion is addressed to the equitable discretion of the trial court, the

       grant or denial of a T.R. 60(B) motion will be disturbed only when that

       discretion has been abused. Id. at 740-41. We will find an abuse of discretion

       only when the trial court’s determination is against the logic and effect of the

       facts before it and the inferences which may be drawn therefrom. Id. at 741.


[11]   We turn first to Mattingly’s claim of excusable neglect based on T.R. 60(B)(1),

       which he asserts for the first time on appeal. He has waived this argument by

       failing to raise it below to the trial court. See JK Harris & Co., LLC v. Sandlin,

       942 N.E.2d 875, 882 (Ind. Ct. App. 2011), trans. denied. Moreover, Mattingly

       presented no evidence to support a claim of excusable neglect, which is a fact-

       Court of Appeals of Indiana | Memorandum Decision 30A01-1505-MF-402 | February 16, 2016   Page 5 of 6
       sensitive inquiry, and he ignores well-established case law holding that the

       negligence of an attorney is generally attributable to the client for T.R. 60(B)

       purposes. See, e.g., Thompson v. Thompson, 811 N.E.2d 888, 903-04 (Ind. Ct.

       App. 2004), trans. denied.


[12]   Further, Mattingly offered no explanation to the trial court for taking more than

       twenty-one months to challenge the Judgment with a T.R. 60(B) motion. The

       rule expressly provides that a motion for relief from judgment based on

       T.R.60(B)(1), (2), (3), and (4) “shall be filed…not more than one year after the

       judgment…was entered”. Because Mattingly’s motion was filed well outside

       this one-year limit, the provisions of T.R.60(B)(1) and (3), upon which he relies,

       were unavailable to him. See Alves v. Old Nat’l Bank, 929 N.E.2d 892, 896-97

       (Ind. Ct. App. 2010); Indiana Ins. Co. v. Ins. Co. of N. Am., 734 N.E.2d 276, 279

       (Ind. Ct. App. 2000), trans. denied. Accordingly, the trial court properly denied

       his untimely motion.


[13]   Judgment affirmed.


[14]   Robb, J., and Barnes, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 30A01-1505-MF-402 | February 16, 2016   Page 6 of 6
