 Pursuant to Ind.Appellate Rule 65(D), this
 Memorandum Decision shall not be
 regarded as precedent or cited before any                  Mar 12 2013, 8:41 am
 court except for the purpose of establishing
 the defense of res judicata, collateral
 estoppel, or the law of the case.

APPELLANTS PRO SE:                                 ATTORNEYS FOR APPELLEE:

BRIAN SPURLOCK                                     DARREN A. CRAIG
SALLY SPURLOCK                                     JULIA BLACKWELL GELINAS
Fishers, Indiana                                   Frost Brown Todd, LLC
                                                   Indianapolis, Indiana


                               IN THE
                     COURT OF APPEALS OF INDIANA

BRIAN L. SPURLOCK,                                 )
SALLY M. SPURLOCK,                                 )
                                                   )
       Appellants-Defendants,                      )
                                                   )
               vs.                                 )      No. 29A04-1207-MF-345
                                                   )
                                                   )
MOREQUITY, INC.,                                   )
                                                   )
       Appellee-Plaintiff.                         )
                                                   )


                     APPEAL FROM THE HAMILTON CIRCUIT COURT
                            The Honorable Paul A. Felix, Judge
                             Cause No. 29C01-0808-MF-1540


                                         March 12, 2013

                MEMORANDUM DECISION - NOT FOR PUBLICATION

VAIDIK, Judge
                                       Case Summary

       Brian L. and Sally M. Spurlock (“the Spurlocks”), pro se, appeal the trial court’s

entry of a judgment of foreclosure against their Fishers, Indiana, property. They make

multiple arguments, contending among other things that their due process rights were

violated and that there was fraud throughout their dealings with MorEquity. We find,

however, that the issues raised by the Spurlocks have already been decided by the

bankruptcy court. Therefore, collateral estoppel, specifically issue preclusion, applies,

and this appeal is dismissed.

                                Facts and Procedural History

       The Spurlocks purchased property at 10941 Geist Road in Fishers, Indiana. On

January 28, 2005, the Spurlocks executed an Interest Only Adjustable Rate Note and

delivered it to Bay Capital Corp. with a principal amount of $720,000. Appellee’s App.

p. 45-51. Bay Capital assigned the Note to MorEquity. Id. at 43. The Note stated that

“[i]nterest will be charged on unpaid principal until the full amount of Principal has been

paid.” Id. at 45. Interest rates could be increased after February 1, 2008. As of February

1, 2008, the Spurlocks were required to pay an annual interest rate of 9.75 percent.

       The Note also provided that if the holder of the Note did not receive full payment

within fifteen calendar days of it being due, the Spurlocks would be required to pay a late

charge of five percent of the overdue payment. If the Spurlocks failed to cure a default

payment, the holder of the Note “may require [them] to pay immediately the full amount

of Principal that has not been paid and all the interest that [they] owe on that amount.”

Id. at 46. The holder of the Note also had “the right to be paid back . . . for all of its costs


                                               2
and expenses in enforcing this Note to the extent not prohibited by applicable law. Those

expenses include, for example, reasonable attorneys’ fees.” Id.

      On the same day that the Spurlocks executed the Note, they also executed a

Mortgage and delivered it to Bay Capital. The Mortgage gave Bay Capital a security

interest in the property to secure the repayment of the loan and the Spurlocks’

performance of all covenants and agreements created by the Note and Mortgage. The

Mortgage secured payment of the Note and required the Spurlocks to pay all taxes and

insurance on the property. Like the Note, it also provided that if the Spurlocks defaulted

on their payment obligations and failed to cure the defect, the holder of the Note “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 60. It also allowed the lender to “collect all expenses incurred in

pursuing the remedies provided in this Section 22, including, but not limited to,

reasonable attorneys’ fees and costs of title evidence.” Id. The Mortgage was recorded

in the Hamilton County Recorder’s Office on February 7, 2005, as Instrument number

200500007351. Id. at 55. Bay Capital then assigned the Mortgage to MorEquity by a

separate instrument, which was recorded in the Hamilton County Recorder’s Office on

July 26, 2005, as Instrument number 200200046617. Id.at 69-71.

      The Spurlocks failed to make a payment that was due on March 1, 2008. They

then failed to cure their payment default and have not made any payments due under the

Note since February 14, 2008. MorEquity filed a Complaint on Note and to Foreclose

Mortgage in Hamilton Circuit Court. The Spurlocks answered and filed a counterclaim


                                            3
and third-party complaint, both of which were stricken by the trial court for failure to

comply with pleading requirements. The Spurlocks re-filed their amended claims and

MorEquity moved to dismiss. The trial court held a hearing on the motion to dismiss,

and at the conclusion of the hearing, the trial court notified the Spurlocks of their right to

request a settlement conference. A settlement conference was held in May 2010, and the

parties were unable to settle their dispute. The trial court then dismissed the amended

counterclaim with prejudice.

       The Spurlocks then filed a second amended counterclaim, which the trial court

again dismissed with prejudice.      In December 2011, MorEquity filed a motion for

summary judgment. A hearing on the motion was conducted on March 16, 2012, and on

March 21, 2012, the Spurlocks filed a voluntary petition under Chapter 13 of the United

States Bankruptcy Code. The trial court then granted MorEquity’s motion for summary

judgment, but the order was not enforceable due to the Spurlocks’ bankruptcy

proceedings.

       MorEquity filed a motion for relief from stay, and the Spurlocks filed a written

objection that was later withdrawn. The bankruptcy court lifted the automatic stay,

finding that “MorEquity is the holder and party entitled to enforce the Note,” and the

“Note is secured by a valid first priority Mortgage on the Real Estate . . . .” Mot. to

Dismiss Appeal, Ex. 6. It also found that the Spurlocks “do not have any equity in the

Real Estate and have purposed [sic] to surrender the Real Estate upon a finding by this

court that MorEquity is the party entitled to enforce the Mortgage and Note.”              Id.




                                              4
MorEquity then asked the trial court to enter a judgment of foreclosure. The Spurlocks

did not file any opposition to the entry of judgment.

       On June 20, 2012, the trial court entered an order vacating its prior summary

judgment order and entering a judgment of foreclosure. The Spurlocks appealed to this

Court. MorEquity moved to dismiss the Spurlocks’ appeal on the grounds of issue

preclusion and judicial estoppel because the bankruptcy court had already decided the

questions at issue when it lifted the automatic stay. That motion has been held in

abeyance until we have had the chance to consider it.

                                Discussion and Decision

       The Spurlocks make multiple arguments on appeal, focusing mostly on the

contention that they were denied due process of law and that there was the presence of

fraud in their dealings with MorEquity. However, we find that this appeal should be

dismissed due to collateral estoppel, specifically issue preclusion, so we need not address

these arguments.

       Collateral estoppel “bars subsequent litigation of a fact or issue which was

adjudicated in previous litigation if the same fact or issue is presented in a subsequent

lawsuit.” Fitz v. Rust-Oleum Corp., 883 N.E.2d 1177, 1182 (Ind. Ct. App. 2008), reh’g

denied, trans. denied. In that circumstance, the first adjudication will be held conclusive

even if the second action is on a different claim. Portside Energy Corp. v. N. Ind.

Commuter Transp. Dist., 913 N.E.2d 221, 234 (Ind. Ct. App. 2009), trans. denied.

Collateral estoppel requires the necessary adjudication in a former suit of the same issue

presented in a subsequent suit.     Id. at 235.    The former adjudication can only be


                                             5
conclusive as to those issues that were actually litigated and determined therein. Id.

Collateral estoppel does not extend to matters that were not expressly adjudicated and

that can be inferred from the prior adjudication only by argument. Id. Issue preclusion

requires, among other things, identity of issues. Id. A two-part analysis determines

whether collateral estoppel should be applied: “(1) whether the party against whom the

former adjudication is asserted had a full and fair opportunity to litigate the issue and (2)

whether it would be otherwise unfair under the circumstances to permit the use of issue

preclusion in the current action.” Fitz, 883 N.E.2d at 1182-83.

       In this case, the Spurlocks had a full and fair opportunity to litigate the issue. The

issues were expressly adjudicated in a bankruptcy proceeding, which has been held by this

court to “bar[] relitigation of the factual issues . . . .” Indianapolis Podiatry, P.C. v.

Efroymson, 720 N.E.2d 376, 382 n.9 (Ind. Ct. App. 1999), trans. denied. Specifically, the

bankruptcy court found that “MorEquity is the holder and party entitled to enforce the

Note,” and the “Note is secured by a valid first priority Mortgage on the Real Estate . . . .”

Mot. to Dismiss Appeal, Ex. 6. It also found that the Spurlocks “do not have any equity in

the Real Estate and have purposed [sic] to surrender the Real Estate upon a finding by this

court that MorEquity is the party entitled to enforce the Mortgage and Note.”              Id.

Therefore, the bankruptcy court found that the Spurlocks would have to surrender their

real estate in a foreclosure proceeding as MorEquity was entitled to enforce the Mortgage

and Note. The Spurlocks objected to and then later withdrew their objection to the

bankruptcy court’s order to lift the stay.       This made the bankruptcy court’s order a

judgment entered by consent, which we have also held is entitled to preclusive effect and


                                             6
prevents relitigation of the issues decided by the judgment. Hanover Logansport, Inc. v.

Robert C. Anderson, Inc., 512 N.E.2d 465, 471 (Ind. Ct. App. 1987). Therefore, while the

Spurlocks chose not to challenge the bankruptcy court’s decision, they were given a full

and fair opportunity to do so.

       Also, it would not be unfair to permit issue preclusion in this case. The bankruptcy

court fully decided all of the relevant issues before the trial court entered the judgment of

foreclosure.   These findings were reached after a full and just proceeding in the

bankruptcy court, so there are no circumstances that would make the application of issue

preclusion unfair in this instance.

       Since the bankruptcy court has already adjudicated this issue, issue preclusion

prevents our further review. We therefore find that this appeal is dismissed.

       Dismissed.

BAILEY, J., and BROWN, J., concur.




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