MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                          Aug 17 2015, 8:20 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 APPELLANTS                                  ATTORNEY FOR APPELLEE
Colin J. Koons                                           Kurt V. Laker
Cox & Koons Attorneys at Law                             Doyle Legal Corporation, P.C.
Indianapolis, Indiana                                    Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Uree Kincaid, Mark E. Kincaid,                           August 17, 2015
Denise Elaine Bryant, and The                            Court of Appeals Case No.
Unknown Heirs, Devisees,                                 32A01-1407-MF-322
Legatees of Garland E. Kincaid,                          Appeal from the Hendricks Circuit
Appellants-Defendants,                                   Court
                                                         The Honorable Jeffrey V. Boles,
        v.                                               Judge
                                                         Trial Court Cause No.
Nationstar Mortgage, LLC,                                32C01-1302-MF-111
Appellee-Plaintiff



Crone, Judge.




Court of Appeals of Indiana | Memorandum Decision 32A01-1407-MF-322 | August 17, 2015   Page 1 of 9
                                           Case Summary
[1]   Uree Kincaid, Mark E. Kincaid, and Denise Elaine Bryant (respectively,

      “Wife,” “Son,” and “Daughter”; collectively “the Kincaids”) appeal the trial

      court’s denial of their motion for relief from default judgment under Indiana

      Trial Rule 60(B). On appeal, they assert that the trial court erred in summarily

      entering default judgment against them and in favor of Nationstar Mortgage,

      LLC, under Trial Rule 55 without conducting a hearing. They also challenge

      the trial court’s denial of their motion for relief from default judgment without

      affording them a hearing. Finding that Trial Rule 55(B) gives the trial court

      discretion in determining whether to conduct a hearing before entering a default

      judgment, we conclude that the Kincaids were not entitled to a hearing on

      Nationstar’s motion for default judgment as a matter of right. Nevertheless,

      because we also find that Indiana Trial Rule 60(D) requires the trial court to

      conduct a hearing before ruling on a Trial Rule 60(B) motion, we reverse and

      remand for a determination on the merits of the Kincaids’ Trial Rule 60(B)

      motion for relief from default judgment.


                              Facts and Procedural History
[2]   In 2001, Garland E. Kincaid (“Husband”) owned, individually in fee simple, a

      tract of land in Hendricks County (the property”). In 2003, he granted two

      mortgages on the property to Ameriana Bank and Trust to secure two loans

      totaling $94,000.




      Court of Appeals of Indiana | Memorandum Decision 32A01-1407-MF-322 | August 17, 2015   Page 2 of 9
[3]   In November 2005, Husband conveyed by warranty deed life estates in the

      property to himself and Wife, with remainder interests to Son and Daughter.

      The deed was recorded in December 2005.


[4]   On October 13, 2006, Husband obtained a loan of $82,300 from Taylor Bean

      and Whitaker Mortgage Corporation (“TBW”), secured by a mortgage on the

      property. That same day, Wife quitclaimed her interest in the property to

      Husband. Husband used the proceeds of the TBW loan to pay off and

      extinguish his obligations to Ameriana. On March 13, 2008, both the TBW

      mortgage and Wife’s quitclaim deed to Husband were recorded.


[5]   Husband died on June 25, 2010. In 2011, TBW assigned the mortgage to

      Ocwen Loan Servicing, LLC. On February 22, 2013, Ocwen filed a complaint

      to foreclose the mortgage on the property, naming as defendants Wife, Son,

      Daughter, and any unknown heirs, devisees, and legatees of Husband. On

      April 12, 2013, Wife sought and was granted a change of judge, and the case

      was transferred from Hendricks Superior Court No. 2 to Hendricks Circuit

      Court and assigned a new cause number. The Kincaids sought and were

      granted extensions of time to file their responsive pleadings, and the trial court

      set a deadline of June 24, 2013.


[6]   In May 2013, Ocwen assigned its interest in Husband’s mortgage to Nationstar.

      In January 2014, the trial court granted a motion to substitute Nationstar as

      party plaintiff. On April 14, 2014, Nationstar sent notices to the Kincaids that

      it would file a motion for default judgment on or after April 18, 2014.


      Court of Appeals of Indiana | Memorandum Decision 32A01-1407-MF-322 | August 17, 2015   Page 3 of 9
      Nationstar filed a motion for default judgment on April 21, 2014. Wife and

      Son filed their responsive pleadings on April 22, 2014, and Daughter filed hers

      on April 29, 2014.


[7]   Meanwhile, on April 24, 2014, the trial court entered a default judgment against

      the Kincaids and a decree of foreclosure on the property without holding a

      hearing on Nationstar’s motion. The Kincaids subsequently filed motions to

      correct error as well as motions to set aside default judgment and to stay default

      judgment. No hearing was held on these motions. The chronological case

      summary (“CCS”) shows a June 30, 2014 entry denying all motions, and the

      trial court issued a signed order to that same effect on July 1, 2014. The

      Kincaids now appeal.


                                  Discussion and Decision

        Section 1 – The trial court did not abuse its discretion
        in granting Nationstar’s motion for default judgment
               under Trial Rule 55 without a hearing.
[8]   The Kincaids assert that the trial court erred in granting Nationstar’s motion for

      default judgment without first conducting a hearing. Indiana law strongly

      prefers disposition of cases on their merits, and as such, any doubt concerning

      the propriety of a default judgment should be resolved in favor of the defaulted

      party. Coslett v. Weddle Bros. Constr. Co., 798 N.E.2d 859, 861 (Ind. 2003). Trial

      Rule 55(A) authorizes the trial court to default a party when the “party against

      whom a judgment for affirmative relief is sought has failed to plead or


      Court of Appeals of Indiana | Memorandum Decision 32A01-1407-MF-322 | August 17, 2015   Page 4 of 9
      otherwise comply with [the trial] rules and that fact is made to appear by

      affidavit or otherwise.” With respect to whether Trial Rule 55 requires a

      hearing, section (B) states in pertinent part,


              If, in order to enable the court to enter judgment or to carry it
              into effect, it is necessary to take an account or to determine the
              amount of damages or to establish the truth of any averment by
              evidence or to make an investigation of any other matter, the court
              may conduct such hearing or order such references as it deems necessary
              and proper and shall accord a right of trial by jury to the parties
              when and as required.


      (Emphases added.)


[9]   The rules of statutory construction also apply to the interpretation of trial rules.

      Dreyer & Reinbold, Inc. v. AutoXchange.com, Inc., 771 N.E.2d 764, 767 (Ind. Ct.

      App. 2002), trans. denied. Where the language of a trial rule is clear and

      unambiguous, it is not subject to judicial interpretation. Id. Trial Rule 55(B)

      uses the discretionary term “may” in addressing the issue of a hearing on a

      motion for default judgment. Another panel of this Court has previously

      interpreted this portion of Rule 55(B) to “specifically permit[] the trial court to

      conduct a hearing” to order the moving party to present a factual basis

      establishing liability. Progressive Ins. Co. v. Harger, 777 N.E.2d 91, 96 (Ind. Ct.

      App. 2002) (emphasis added). Thus, under Trial Rule 55(B), the trial court’s

      decision to conduct or dispense with a hearing before ruling on a default

      judgment is discretionary rather than mandatory.




      Court of Appeals of Indiana | Memorandum Decision 32A01-1407-MF-322 | August 17, 2015   Page 5 of 9
[10]   As for whether the trial court abused its discretion by not conducting a hearing

       in this case, we note that Nationstar’s motion for default judgment was

       accompanied by several supporting exhibits. The trial court found these

       exhibits sufficient to establish a factual basis for a default judgment. The

       exhibits include a copy of Nationstar’s three-day letter of direct notice of intent

       to seek a default judgment, a notice by publication, and an affidavit of unpaid

       balance supported by documentation of Husband’s escrow balance, payment

       history, payoff quote, administrative expenses, and attorney fees. Appellant’s

       App. at 94-114. With these exhibits before it, we simply cannot say that the

       trial court abused its discretion in ruling on Nationstar’s motion for default

       judgment without a hearing.


        Section 2 – The trial court erred in failing to conduct a
         hearing on the Kincaids’ motion to set aside default
                    judgment under Trial Rule 60.
[11]   The Kincaids maintain that the trial court erred in denying their motion for

       relief from default judgment without a hearing. Trial Rule 60(B) provides a

       mechanism for obtaining relief from default judgment under certain limited

       circumstances, and the burden is on the movant to establish grounds for such

       relief. Seleme v. JP Morgan Chase Bank, 982 N.E.2d 299, 303 (Ind. Ct. App.

       2012), trans. denied (2013). See also Ind. Trial Rule 55(C) (“A judgment by

       default which has been entered may be set aside by the court for the grounds

       and in accordance with the provisions of Rule 60(B).”).


[12]   Trial Rule 60(B) states in pertinent part,
       Court of Appeals of Indiana | Memorandum Decision 32A01-1407-MF-322 | August 17, 2015   Page 6 of 9
               (B) Mistake—Excusable neglect—Newly discovered evidence—
               Fraud, etc. On motion and upon such terms as are just the court
               may relieve a party or his legal representative from a judgment,
               including a judgment by default, for the following reasons:


                       (1) mistake, surprise, or excusable neglect;


                       (2) any ground for a motion to correct error, including
                       without limitation newly discovered evidence, which by
                       due diligence could not have been discovered in time to
                       move for a motion to correct errors under Rule 59;

                       (3) fraud (whether heretofore denominated intrinsic or
                       extrinsic), or other misconduct of an adverse party;


                       …. or


                       (8) any reason justifying relief from the operation of the
                       judgment, other than those reasons set forth in sub-
                       paragraphs (1), (2), (3), and (4).


               …. A movant filing a motion for reasons (1), (2), (3), (4), and (8)
               must allege a meritorious claim or defense. A motion under this
               subdivision (B) does not affect the finality of a judgment or
               suspend its operation.


[13]   When reviewing a trial court’s ruling on a Trial Rule 60(B) motion, we apply an

       abuse of discretion standard. Speedway SuperAmerica, LLC v. Holmes, 885

       N.E.2d 1265, 1270 (Ind. 2008). An abuse of discretion occurs where the trial

       court’s decision is clearly against the logic and effect of the facts and

       circumstances before it or if the trial court has misinterpreted the law or

       disregarded evidence of factors listed in the controlling statute. Love v. Love, 10
       Court of Appeals of Indiana | Memorandum Decision 32A01-1407-MF-322 | August 17, 2015   Page 7 of 9
       N.E.3d 1005, 1012 (Ind. Ct. App. 2014). When the Trial Rule 60(B) motion

       involves a request to set aside a default judgment, the trial court’s discretion

       should be exercised in light of the disfavor in which default judgments are

       generally held. Seleme, 982 N.E.2d at 303.


[14]   Here, we are not reviewing the merits of the trial court’s ruling, that is, whether

       the Kincaids had a meritorious defense. 1 Instead, we review the trial court’s

       decision to rule on the Kincaids’ Trial Rule 60 motion without first conducting

       a hearing. In so doing, we look to the plain language of the rule. Dreyer &

       Reinbold, Inc., 771 N.E.2d at 767. Trial Rule 60(D) states,


               (D) Hearing and relief granted. In passing upon a motion
               allowed by subdivision (B) of this rule the court shall hear any
               pertinent evidence, allow new parties to be served with
               summons, allow discovery, grant relief as provided under Rule
               59 or otherwise as permitted by subdivision (B) of this rule.


       (Emphasis added.)


[15]   Subdivision (D) unambiguously requires the trial court to hold a hearing before

       ruling on a motion for relief from judgment. Our supreme court has interpreted

       its language as mandatory, not discretionary, holding that when a party files a

       Rule 60(B) motion, “notice to the opposing party and a hearing thereon is

       required before an order may be issued.” State ex rel. Heating & Air Conditioning




       1
         Because we hold that Trial Rule 60 mandates a hearing on the motion to examine its merits based on the
       evidence presented by both parties, we refrain from issuing an advisory opinion on the merits.

       Court of Appeals of Indiana | Memorandum Decision 32A01-1407-MF-322 | August 17, 2015          Page 8 of 9
       Co. v. Lake Superior Court, 263 Ind. 233, 235, 328 N.E.2d 733, 734 (1975). Trial

       Rule 60(D) does not give the trial court discretion to simply dispense with the

       hearing before ruling on a Trial Rule 60(B) motion. As such, the trial court

       erred in failing to comply with the hearing requirement before denying the

       Kincaids’ motion. Accordingly, we reverse its order denying the Kincaids’

       Trial Rule 60(B) motion and remand for a determination on the merits.


[16]   Reversed and remanded.


       May, J., and Bradford, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 32A01-1407-MF-322 | August 17, 2015   Page 9 of 9
