MEMORANDUM DECISION
                                                                                            FILED
Pursuant to Ind. Appellate Rule 65(D),                                                 Mar 22 2016, 9:18 am
this Memorandum Decision shall not be                                                       CLERK
regarded as precedent or cited before any                                               Indiana Supreme Court
                                                                                           Court of Appeals
court except for the purpose of establishing                                                 and Tax Court


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


APPELLANT PRO SE                                               ATTORNEY FOR APPELLEE
Segun Rasaki                                                   Miranda D. Bray
Greencastle, Indiana                                           Manley Deas Kochalski LLC
                                                               Indianapolis, Indiana



                                               IN THE
     COURT OF APPEALS OF INDIANA

Segun Rasaki, Priscilla Rasaki,                                March 22, 2016
The Huntington National Bank,                                  Court of Appeals Case No.
American Express Bank FSB,                                     29A02-1506-MF-663
American Express Centurion                                     Appeal from the Hamilton
Bank, State of Indiana                                         Superior Court
Department of Revenue, Annie                                   The Honorable William J. Hughes,
Hendricks, and Windsor Grove                                   Judge
II Homeowners Association,                                     Trial Court Cause No.
Inc.,1                                                         29D03-1410-MF-10300
Appellants-Defendants,




1
  Only Segun Rasaki is participating in this appeal. However, pursuant to Indiana Appellate Rule 17, the
other defendants are considered parties on appeal. See Hoosier Outdoor Adver. Corp. v. RBL Mgmt., Inc., 844
N.E.2d 157, 162 (Ind. Ct. App. 2006) (“‘The rule operates of its own force to make all parties in the trial
court parties on appeal, whether such parties participate actively or not.’”) (quoting State v. Nixon, 270 Ind.
192, 194, 384 N.E.2d 152, 153 (1979)), trans. denied.

Court of Appeals of Indiana | Memorandum Decision 29A02-1506-MF-663 | March 22, 2016                    Page 1 of 10
               v.

      Union Savings Bank,
      Appellee-Plaintiff




      Crone, Judge.


                                                 Case Summary
[1]   Segun Rasaki, pro se, appeals the trial court’s entry of summary judgment in

      favor of Union Savings Bank (“USB”) on its action to foreclose on real estate.

      He argues that the trial court abused its discretion by granting USB’s motion to

      strike his reply to complaint and counterclaims. He also argues that summary

      judgment is improper because there is a genuine issue of material fact. We

      conclude that the trial court did not commit reversible error by striking Rasaki’s

      reply to complaint and counterclaims. We also conclude that USB established

      a prima facie case that it was entitled to summary judgment and Rasaki failed

      to designate evidence to establish that there was a genuine issue of material fact

      precluding summary judgment. Therefore, we conclude that the trial court

      properly granted USB’s summary judgment motion and accordingly affirm. 2




      2
       After Rasaki filed his notice of appeal, he filed in the trial court a motion to correct error and to set aside
      summary judgment. His arguments based on these motions are not properly before us, and therefore we will

      Court of Appeals of Indiana | Memorandum Decision 29A02-1506-MF-663 | March 22, 2016                Page 2 of 10
                                   Facts and Procedural History
[2]   On August 26, 2009, to purchase a home on 10574 Iron Horse Lane in Carmel,

      Rasaki executed a promissory note and mortgage, granting USB a secured

      interest in the property. Rasaki lived on Iron Horse Lane with his wife Priscilla

      Rasaki (“Priscilla”) and their children. On or about April 1, 2014, Rasaki

      defaulted upon the note and mortgage by failing to make timely payments.


[3]   In October 2014, USB filed a complaint on promissory note and to foreclose

      mortgage against Rasaki and Priscilla. 3 Rasaki filed an appearance providing

      his address in Putnamville Correctional Facility. In November 2014, Rasaki,

      pro se, filed a motion for a settlement conference and enlargement of time. The

      trial court ordered the parties to participate in a settlement conference and

      ordered USB to supply the Rasakis with a complete payment history, a loan

      payoff, and reinstatement figures. The trial court also granted Rasaki’s motion

      for enlargement of time and gave Rasaki up to and including January 20, 2015,

      to file an answer.


[4]   At some point, Rasaki provided a power of attorney to Priscilla. In December

      2014, USB sent the payment history and other documents required by the trial

      court’s order setting the settlement conference to Priscilla at Iron Horse Lane.




      not address them. See Ind. Appellate Rule 9(F) (requiring that the notice of appeal designate the date and
      title of the judgment or order being appealed and have attached a copy of the judgment or order being
      appealed).
      3
        Although Priscilla was not a party to the note and mortgage, she was made a party to the action to answer
      to any interest in the real property by virtue of the deed to the property.

      Court of Appeals of Indiana | Memorandum Decision 29A02-1506-MF-663 | March 22, 2016             Page 3 of 10
      In February 2015, the settlement conference was held, but no settlement was

      reached.


[5]   In March 2015, USB filed a motion for summary judgment pursuant to Indiana

      Trial Rule 56 with designated materials including the promissory note and

      mortgage and the affidavit of USB’s authorized representative, attesting to the

      breach of contract and that the balance due on the note was $795,539.32.

      Rasaki timely filed a motion for alteration of time limits of Trial Rule 56, but

      rather than asking for more time to respond to USB’s summary judgment

      motion, he asked for more time to respond to USB’s “complaint.” Appellant’s

      App. at 182. The trial court granted the motion and ordered him to respond to

      USB’s complaint by May 20, 2015. On May 22, 2015, Rasaki filed his “Reply

      to Complaint on Promissory Note and To Foreclose Mortgage,” which also

      included his counterclaims. Id. at 192. His reply to complaint was unverified

      and did not have attached sworn affidavits in support of his assertions. USB

      treated his reply to complaint as a pleading, and in June 2015, pursuant to

      Indiana Trial Rule 12(F), USB filed a motion to strike it, alleging that it was

      both untimely and failed to state a claim under Indiana Trial Rule 12(B)(6).


[6]   On June 5, 2015, the trial court held a hearing on all matters. On June 8, 2015,

      Rasaki filed a judicial notice informing the trial court that he was revoking the

      power of attorney that he had granted to Priscilla. On June 9, 2015, the trial

      court issued an order granting USB’s summary judgment motion. In it, the trial

      court found that USB had shown that no issue of material fact exists and that it

      was entitled to judgment on all claims asserted against Rasaki in its complaint.

      Court of Appeals of Indiana | Memorandum Decision 29A02-1506-MF-663 | March 22, 2016   Page 4 of 10
      The trial court ordered that the mortgage be foreclosed and that the property be

      sold and awarded USB a personal judgment against Rasaki for $795,539.32, to

      which the net proceeds of the sale of the property would be applied. Also on

      June 9, 2015, the trial court issued an order granting USB’s motion to strike

      Rasaki’s reply to complaint, but the trial court did not provide the basis for its

      ruling. Rasaki filed a notice of appeal of the trial court’s June 9, 2015 orders.


                                       Discussion and Decision

          Section 1 – The trial court did not commit reversible error by
            striking Rasaki’s reply to complaint and counterclaims.
[7]   Before reviewing Rasaki’s argument, we observe that an appellant “who

      proceeds pro se is ‘held to the same established rules of procedure that a trained

      legal counsel is bound to follow’ and, therefore, must be prepared to accept the

      consequences of his or her action.” Ramsey v. Review Bd. of Ind. Dep’t of

      Workforce Dev., 789 N.E.2d 486, 487 (Ind. Ct. App. 2003) (quoting Mullis v.

      Martin, 615 N.E.2d 498, 500 (Ind. Ct. App. 1993)). Rasaki’s arguments are

      extremely difficult to decipher, but we have done our best to address them

      without becoming his advocate.


[8]   Rasaki argues that the trial court abused its discretion in granting USB’s motion

      to strike his reply to complaint and counterclaims. 4 “The trial court has broad



      4
       Rasaki contends that the trial court ruled on the motion to strike before he had an opportunity to respond.
      However, because he completely fails to develop this argument, it is waived. See Thacker v. Wentzel, 797
      N.E.2d 342, 345 (Ind. Ct. App. 2003) (concluding that Thacker’s unsupported assertion was too poorly
      developed to be understood, and therefore he waived his argument); see also Ind. Appellate Rule 46(A)(8)(a)

      Court of Appeals of Indiana | Memorandum Decision 29A02-1506-MF-663 | March 22, 2016             Page 5 of 10
      discretion in ruling on a motion to strike a pleading and [its] decision will not

      be reversed unless prejudicial error is clearly shown.” Dreyer & Reinbold, Inc. v.

      AutoXchange.com., Inc., 771 N.E.2d 764, 768 (Ind. Ct. App. 2002), trans. denied.

      USB’s motion to strike was made pursuant to Indiana Trial Rule 12(F), which

      provides that “the court may order stricken from any pleading any insufficient

      claim or defense or any redundant, immaterial, impertinent, or scandalous

      matter.” A Trial Rule 12(F) motion is properly utilized for the following:

              (a) to strike matter which is immaterial, impertinent, or
              scandalous; (b) to provide the plaintiff with a means by which to
              test the sufficiency of a defense; (c) to strike any insufficient claim
              or defense; (d) to strike a bad faith, or inadequate response to an
              order or rule; or (e) to strike a response to an order or rule which
              introduces new material or allegations not previously made and
              which are not introduced pursuant to a right to amend a
              pleading.


      Dreyer, 771 N.E.2d at 768 (quoting 1A WILLIAM F. HARVEY, INDIANA

      PRACTICE: RULES OF PROCEDURE ANNOTATED § 12.18, at 339 (3d ed.1999)).


[9]   USB moved to strike based on untimeliness and failure to state a claim pursuant

      to Trial Rule 12(B)(6). The parties vigorously dispute whether Rasaki’s reply to

      complaint was timely, but that question is irrelevant because “the language of

      Trial Rule 12(F) permitting the trial court to strike ‘any insufficient claim or

      defense’ is properly construed as providing a means to redress the legal




      (“The argument must contain the contentions of the appellant on the issues presented, supported by cogent
      reasoning.”).

      Court of Appeals of Indiana | Memorandum Decision 29A02-1506-MF-663 | March 22, 2016           Page 6 of 10
       insufficiency of the content or substance of the claim or defense, not the

       untimeliness of a pleading.” Id. (emphasis added). Therefore, a Rule 12(F)

       motion to strike was not the proper device for challenging the timeliness of

       Rasaki’s pleading. 5


[10]   Assuming, without deciding, that the trial court abused its discretion by striking

       Rasaki’s reply to complaint, Rasaki cannot show any prejudice because his

       pleading was of no use to him as a response to USB’s summary judgment

       motion. USB had filed its motion for summary judgment with designated

       materials, including the note and mortgage, and the affidavit of USB’s

       representative attesting to the breach of contract. Rasaki’s reply to complaint

       was not designated as material in response to USB’s motion for summary

       judgment, it was not verified, and it did not include affidavits in support of the

       facts alleged therein. Neither the trial court nor this Court is permitted to

       consider an answer when it was not designated for consideration. See Dinsmore

       v. Fleetwood Homes of Tenn., Inc., 906 N.E.2d 186, 189 (Ind. Ct. App. 2009) (trial

       and appellate court may consider only properly designated evidentiary

       material); Ind. Trial Rule 56(C) (“At the time of filing the motion or response, a

       party shall designate to the court all parts of pleadings, depositions, answers to

       interrogatories, admissions, matters of judicial notice, and any other matters on




       5
          “‘[T]he proper procedure for challenging the timeliness of a pleading is to apply for default under Trial
       Rule 55, before the pleading is filed.’” Dreyer, 771 N.E.2d at 769 (quoting DeHart v. Anderson, 178 Ind. App.
       581, 586, 383 N.E.2d 431, 435 (1978)). “[B]y failing to file a responsive pleading in the time limits provided
       by the rules, the delinquent party takes the risk that a motion for default judgment will be filed, and that the
       trial court will, in its discretion, refuse to accept the delinquent pleading and grant the motion.” Id.

       Court of Appeals of Indiana | Memorandum Decision 29A02-1506-MF-663 | March 22, 2016                Page 7 of 10
       which it relies for purposes of the motion.”) (emphasis added); Ind. Trial Rule

       56(H) (providing that no judgment rendered on a summary judgment motion

       “shall be reversed on the ground that there is a genuine issue of material fact

       unless the material fact and the evidence relevant thereto shall have been specifically

       designated to the trial court.”) (emphasis added). Moreover, when “the moving

       party files materials establishing the lack of any issue of material fact, the non-

       movant may not rely upon his pleadings to demonstrate his affirmative defenses,

       but must bring forth specific facts, by affidavit or otherwise, to show a genuine

       issue for trial.” Abbott v. Bates, 670 N.E.2d 916, 923 (Ind. Ct. App. 1996)

       (emphasis added); see also Ind. Trial Rule 56(E) (“When a motion for summary

       judgment is made and supported as provided in this rule, an adverse party may

       not rest upon the mere allegations or denials of his pleading, but his response,

       by affidavits or as otherwise provided in this rule, must set forth specific facts

       showing that there is a genuine issue for trial.”). Consequently, Rasaki’s reply

       to complaint cannot be properly considered by the trial court or this Court to

       determine whether summary judgment in favor of USB is proper.


[11]   As for what Rasaki refers to as his counterclaims against USB, he asserts that

       they were not barred. However, he fails to argue that the trial court abused its

       discretion in striking them for failure to state a claim upon which relief can be

       granted pursuant to Trial Rule 12(B)(6). Accordingly, we conclude that the trial

       court did not abuse its discretion in striking them.


[12]   In addition, some of Rasaki’s “counterclaims” are directed toward the law firm

       of Manley Deas Kochalski LLC (“MDK”), alleging that it violated the Fair

       Court of Appeals of Indiana | Memorandum Decision 29A02-1506-MF-663 | March 22, 2016   Page 8 of 10
       Debt Collection Practices Act, 15 U.S.C.S. § 1692e(2)(A), -e(8), -e(10), and -

       g(b), in its dealings with him. However, MDK has never been named a party to

       this lawsuit. Rasaki argues that Indiana Trial Rule 13(H) permits joinder of

       additional parties in accordance with Trial Rules 14, 19, and 20. He further

       argues that pursuant to Trial Rule 14, MDK may be joined as a third party.

       Trial Rule 14 permits a “defending party, as a third-party plaintiff, [to] cause a

       summons and complaint to be served upon a person not a party to the action

       who is or may be liable to him for all or part of the plaintiff’s claim against

       him.” Here, Rasaki failed to serve MDK with a summons and complaint as

       required by Trial Rule 14. Therefore, the trial court did not abuse its discretion

       by striking these claims.


         Section 2 – The trial court properly granted USB’s summary
                               judgment motion.
[13]   Our standard of review is well settled:

               When reviewing a grant of summary judgment, our standard of
               review is the same as that of the trial court. Considering only
               those facts that the parties designated to the trial court, we must
               determine whether there is a “genuine issue as to any material
               fact” and whether “the moving party is entitled to a judgment as
               a matter of law.” Ind. Trial Rule 56(C). In answering these
               questions, the reviewing court construes all factual inferences in
               the non-moving party’s favor and resolves all doubts as to the
               existence of a material issue against the moving party. The
               moving party bears the burden of making a prima facie showing
               that there are no genuine issues of material fact and that the
               movant is entitled to judgment as a matter of law; and once the
               movant satisfies the burden, the burden then shifts to the non-

       Court of Appeals of Indiana | Memorandum Decision 29A02-1506-MF-663 | March 22, 2016   Page 9 of 10
               moving party to designate and produce evidence of facts showing
               the existence of a genuine issue of material fact.


       Dreaded, Inc. v. St. Paul Guardian Ins. Co., 904 N.E.2d 1267, 1270 (Ind. 2009)

       (citations omitted).


[14]   Here, USB provided proof of the existence of the note and mortgage by

       attaching a copy of them to its complaint as required by Indiana Trial Rule 9.2. 6

       With its motion for summary judgment, USB filed an affidavit pursuant to Trial

       Rule 56(E) 7 attesting to the breach of contract and resulting damages.

       Appellant’s App. at 145-47. USB clearly met its burden to make a prima facie

       case for breach of contract. In response, Rasaki did not designate any evidence.

       Therefore, Rasaki did not establish a genuine issue of material fact. See Abbott,

       670 N.E.2d at 923. We conclude that the trial court properly granted USB’s

       summary judgment motion. Therefore, we affirm.


[15]   Affirmed.


       Najam, J., and Robb, J., concur.




       6
         Trial Rule 9.2(A) provides, “When any pleading allowed by these rules is founded on a written instrument,
       the original, or a copy thereof, must be included in or filed in the pleading.”
       7
         Trial Rule 56(E) provides, “Supporting and opposing affidavits shall be made on personal knowledge, shall
       set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is
       competent to testify to the matters stated therein.”

       Court of Appeals of Indiana | Memorandum Decision 29A02-1506-MF-663 | March 22, 2016          Page 10 of 10
