 Pursuant to Ind. Appellate Rule 65(D), this
 Memorandum Decision shall not be
 regarded as precedent or cited before any
 court except for the purpose of establishing
 the defense of res judicata, collateral                  Mar 21 2014, 7:03 am
 estoppel, or the law of the case.



ATTORNEYS FOR APPELLANTS:                          ATTORNEY FOR APPELLEE:

THOMAS E. SCHULTE                                  THOMAS J. BELCHER
RENEA E. HOOPER                                    Kelley, Belcher & Brown
Scopelitis Garvin Light Hanson & Feary, P.C.       Bloomington, Indiana
Indianapolis, Indiana

ERIC D. SCHEIBLE
Frasco Caponigro Wineman & Scheible, PLLC
Bloomfield Hills, Michigan




                               IN THE
                     COURT OF APPEALS OF INDIANA

BRADY D. ERICSON and                               )
TIFFANY J. ERICSON,                                )
                                                   )
       Appellants-Defendants,                      )
                                                   )
               vs.                                 )      No. 53A04-1307-MF-376
                                                   )
BLOOMFIELD STATE BANK,                             )
                                                   )
       Appellee-Plaintiff.                         )


                      APPEAL FROM THE MONROE CIRCUIT COURT
                           The Honorable E. Michael Hoff, Judge
                             Cause No. 53C01-1301-MF-145


                                         March 21, 2014


                MEMORANDUM DECISION - NOT FOR PUBLICATION


CRONE, Judge
                                      Case Summary

       Brady D. Ericson and Tiffany J. Ericson (the “Ericsons”) appeal the trial court’s denial

of their motion for relief from judgment. The Ericsons sought relief from the entry of

summary judgment in favor of Bloomfield State Bank (the “Bank”) on the Bank’s complaint

to foreclose on real estate. The Ericsons argue that the trial court erred when it failed to

consider their answer and affirmative defense when ruling on the Bank’s summary judgment

motion despite the fact that they did not respond or designate evidence in opposition to

summary judgment. The sole restated issue presented for our review is whether the trial

court abused its discretion in denying the Ericsons’ motion for relief from judgment. Finding

no abuse of discretion, we affirm.

                              Facts and Procedural History

       The undisputed facts are that on March 25, 2005, Ashenda K. Hagos executed and

delivered to the Bank a real estate mortgage (the “Bank Mortgage”) in the original principal

amount of $1,000,000. On March 28, 2005, the Bank Mortgage was recorded in the Office

of the Recorder of Monroe County as instrument number 2005005109. Hagos also granted a

real estate mortgage on the same property to the Ericsons (the “Ericson Mortgage”) in

exchange for a loan of $175,000 pursuant to a note. On March 28, 2005, the Ericson

Mortgage was recorded as instrument number 200500110. The Bank Mortgage was recorded

prior to the Ericson Mortgage.

       On January 24, 2013, the Bank filed its complaint on note and foreclosure on real

estate mortgage, naming Hagos, the Ericsons, and the Monroe County Treasurer as


                                              2
defendants, claiming, among other things, that the first-recorded Bank Mortgage was

superior to the Ericson Mortgage. The Ericsons filed their answer and affirmative defense on

April 1, 2013. The Ericsons did not dispute that the Bank Mortgage was recorded prior to the

Ericson Mortgage. Instead, the Ericsons claimed, as an affirmative defense, that the Ericson

Mortgage is superior to the Bank Mortgage pursuant to the doctrine of equitable subrogation.

       On April 8, 2013, the Bank filed a motion for summary judgment and designation of

evidence. Specifically, the Bank argued that there was no genuine issue of material fact that

the Bank Mortgage was recorded prior to the Ericson Mortgage, and therefore the Bank

Mortgage had priority as a matter of law. The Ericsons did not respond to the motion. The

trial court entered summary judgment in favor of the Bank on May 15, 2013, concluding in

relevant part that the Bank Mortgage was superior to all liens, claims, or interests in the real

estate with the exception of the tax lien of the Monroe County Treasurer. Thereafter, on May

21, 2013, the Ericsons filed a motion for relief from judgment pursuant to Indiana Trial Rule

60(B). The trial court entered an order denying the Ericsons’ request for relief on June 28,

2013. This appeal ensued.

                                  Discussion and Decision

       The Ericsons appeal the trial court’s denial of their motion for relief from judgment.

A grant of equitable relief pursuant to Indiana Trial Rule 60 is within the discretion of the

trial court. Outback Steakhouse of Florida, Inc. v. Markley, 856 N.E.2d 65, 72 (Ind. 2006).

Therefore, we review a trial court’s ruling on a motion for relief from judgment for an abuse

of discretion. Id. An abuse of discretion occurs when the trial court’s judgment is clearly


                                               3
against the logic and effect of the facts and inferences supporting the judgment for relief.

Wagler v. West Boggs Sewer Dist., Inc., 980 N.E.2d 363, 371 (Ind. Ct. App. 2012), trans.

denied (2013), cert. denied (2014). Upon appellate review, we will not reweigh the

evidence. Id. The burden is on the movant to demonstrate that the relief is both necessary

and just. Id. at 372. Trial Rule 60(B) “affords relief in extraordinary circumstances which

are not the result of any fault or negligence on the part of the movant.” Goldsmith v. Jones,

761 N.E.2d 471, 474 (Ind. Ct. App. 2002).

       The Ericsons’ motion for relief from judgment sought to set aside the entry of

summary judgment in favor of the Bank on the Bank’s foreclosure complaint. Summary

judgment is appropriate only where “the designated evidentiary matter shows that there is no

genuine issue as to any material fact and that the moving party is entitled to judgment as a

matter of law.” Ind. Trial Rule 56(C). Once the moving party has carried its burden, “the

burden then shifts to the non-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). “A nonmovant may not rest upon

bare allegations made in the pleadings, but must respond with affidavits or other evidence

setting forth specific facts showing there is a genuine issue in dispute.” Myers v. Irving

Materials, Inc., 780 N.E.2d 1226, 1228 (Ind. Ct. App. 2003); Ind. Trial Rule 56(E).

       Here, in support of its motion for summary judgment, the Bank designated evidence

which indicated that the Bank Mortgage was recorded prior to the Ericson Mortgage.

Specifically, the Bank designated the complaint, a promissory note, the Bank Mortgage, and


                                             4
two supporting affidavits. Based upon this designated evidence, the Bank argued that no

genuine issue of material fact remained regarding the superiority of the Bank Mortgage and

that it was entitled to judgment as a matter of law against the Ericsons. The Ericsons failed

to respond or designate any evidence in opposition to summary judgment.

       In requesting the trial court to set aside the summary judgment, the Ericsons

maintained that, despite their admitted failure to respond or designate any evidence in

opposition to the Bank’s summary judgment motion, the trial court should have considered

their answer to the complaint and concluded that a genuine issue of material fact remained

based upon their alleged affirmative defense of equitable subrogation. We disagree.

       In summary judgment proceedings, as at trial, the burden of establishing the existence

of material affirmative defenses is on the defendant. Paint Shuttle, Inc. v. Cont’l Cas. Co.,

733 N.E.2d 513, 519 (Ind. Ct. App. 2000), trans. denied (2001); accord Reiswerg v. Statom,

926 N.E.2d 26, 31 (Ind. 2010). Indeed, 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). Summary judgment is proper if the defendant fails to designate any evidence

from which the trial court could infer the elements of the asserted affirmative defense. Id.

       In denying the Ericsons’ motion for relief from judgment, the trial court stated,

             The Ericsons complain that [the Bank’s] summary judgment
       designation did not disprove their affirmative defense that they held a superior
       mortgage interest through equitable subrogation. However, it was up to the
       Defendants to designate evidence in support of their affirmative defense. [The

                                              5
       Bank] was not required to disprove it. The evidence that [the Bank]
       designated was sufficient to prove its claim to a superior mortgage. [The
       Bank] was not required to designate evidence to disprove the Ericsons’
       affirmative defense, in the absence of any designation that would create an
       issue of fact or law concerning that affirmative defense.

              Because [the Ericsons] did not file a response to [the Bank’s] Motion
       for Summary Judgment within thirty days, the court cannot now consider any
       evidence not timely designated …. [The Ericsons’] motion merely seeks
       another opportunity to file a summary judgment response. Trial Rule 56 does
       not permit such an extension of time.

Appellant’s App. at 10-11.

       The Ericsons did not come forward with specific evidence in opposition to the Bank’s

designated materials, and therefore we accept the Bank’s designated evidence as true. Myers,

780 N.E.2d at 1228. We agree with the trial court that the evidence designated by the Bank

was sufficient to prove its claim of a superior mortgage and that the Ericsons’ mere reliance

on the allegations in their answer—which was never designated to the trial court by either

party—was insufficient to create an issue of fact concerning their affirmative defense.

Contrary to the Ericsons’ assertion, neither the trial court nor this Court is permitted to

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

Fleetwood Homes of Tennessee, 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(H) (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




                                              6
relevant thereto shall have been specifically designated to the trial court.”)1 Moreover, as

stated, a party may not simply rely upon the pleadings to demonstrate an affirmative defense,

but must bring forth specific facts, by affidavit or otherwise, to show a genuine issue for trial.

Abbott, 670 N.E.2d at 923.

        The Ericsons direct us to Farm Credit Services. of Mid-America, FLCA v. Tucker, 792

N.E.2d 565 (Ind. Ct. App. 2003), in support of their argument that the trial court “could have

considered evidence not designated” by the Ericsons when deciding whether they were

entitled to relief from the court’s prior entry of summary judgment. Appellant’s Br. at 9. In

Tucker, the trial court permitted a bank, in a foreclosure action, to belatedly file designated

evidence even though the bank failed to file the designation or request an extension of time

within the time frame of Indiana Trial Rule 56. The Tucker court noted that when a trial

court acts in equity in a foreclosure action, it is not bound by “strict rules of law” and may

instead exercise its “power to prevent strict legal rules from working injustice.” Tucker, 792

N.E.2d at 569 (citation omitted). Accordingly, the Tucker court affirmed the trial court’s

decision to consider a belated designation, concluding that the trial court had discretion under

Indiana Trial Rule 56(I) to consider a nonmovant’s designated evidence even though the




        1
          The Ericsons make much of the trial court’s erroneous statement in its summary judgment order that
they had “not filed an Answer to [the Bank’s] complaint” when they had in fact filed an answer. Appellant’s
App. at 1. The Ericsons argue that, due to the trial court’s “mistaken” belief that they had not filed an answer,
the court improperly failed to consider their answer when determining the propriety of summary judgment.
Appellant’s Br. at 12. We note that, in its subsequent order denying the Ericsons’ motion for relief from
judgment, the trial court specifically acknowledged that it had made a misstatement regarding their failure to
file an answer. Additionally, as noted above, because the answer was not designated by either party, it was
properly not considered by the trial court for purposes of summary judgment.

                                                       7
nonmovant had failed to respond to the motion for summary judgment within thirty days. Id.

at 570.

          Notably, the Tucker court declined to follow the well-settled and bright-line rule

enunciated in Seufert v. RWB Medical Income Properties I Limited Partnership, 649 N.E.2d

1070, 1073 (Ind. Ct. App. 1995), that a nonmoving party must respond or seek an extension

within thirty days from the date the moving party filed for summary judgment and the trial

court lacks discretion to permit a nonmoving party, who has not responded in some way

within thirty days, to thereafter file designated evidence opposing summary judgment.

Subsequent panels of this Court have noted that the Seufert bright-line rule had been

consistently followed prior to Tucker and that Tucker appears to be an “anomaly.” See Desai

v. Croy, 805 N.E.2d 844, 849 (Ind. Ct. App. 2004), trans. denied; see also DeLage Landen

Fin. Servs., Inc. v. Cmty. Mental Health Ctr., Inc., 965 N.E.2d 693, 696-97 (Ind. Ct. App.

2012). Significantly, our supreme court specifically disapproved of the reasoning in Tucker

in favor of the bright-line rule that when a nonmoving party fails to respond to a motion for

summary judgment within thirty days either by filing a response, requesting a continuance

under Trial Rule 56(I), or filing an affidavit under Trial Rule 56(F), the trial court lacks the

discretion to consider subsequent summary judgment filings of that party. HomeEq Servicing

Corp. v. Baker, 883 N.E.2d 95, 98 (Ind. 2008) (citing Borsuk v. Town of St. John, 820 N.E.2d

118, 124 n.5 (Ind. 2005)). Accordingly, the Ericsons’ reliance on Tucker is unavailing.2



          We likewise find no merit in the Ericsons’ assertion that the trial court’s failure to consider their
          2

answer and affirmative defense has, in essence, resulted unfairly in a default judgment against them. As
already stated, any undesignated pleadings were properly not considered by the trial court.

                                                      8
       The trial court properly declined to consider the Ericsons’ answer and affirmative

defense in determining the propriety of summary judgment. Therefore, the trial court did not

abuse its discretion when it concluded that the Ericsons are not entitled to relief from

judgment on that basis. As stated above, Trial Rule 60(B) “affords relief in extraordinary

circumstances which are not the result of any fault or negligence on the part of the movant.”

Goldsmith, 761 N.E.2d at 474. No such extraordinary circumstances are present here. The

trial court’s denial of the Ericsons’ motion for relief from judgment is affirmed.

       Affirmed.

BAKER, J., and RILEY, J., concur.




                                             9
