MEMORANDUM DECISION
                                                                         FILED
Pursuant to Ind. Appellate Rule 65(D), this                         Dec 13 2018, 9:15 am
Memorandum Decision shall not be regarded as
                                                                         CLERK
precedent or cited before any court except for the                   Indiana Supreme Court
                                                                        Court of Appeals
purpose of establishing the defense of res judicata,                      and Tax Court
collateral estoppel, or the law of the case.



ATTORNEY FOR APPELLANTS                                ATTORNEY FOR APPELLEE
Michael P. Quirk                                       J. Dustin Smith
Muncie, Indiana                                        Manley Deas Kochalski LLC
                                                       Indianapolis, Indiana



                                             IN THE
    COURT OF APPEALS OF INDIANA

James G. Lindzy and Steven                                December 13, 2018
Kreps,                                                    Court of Appeals Case No.
Appellants-Defendants,                                    18A-MF-1045
                                                          Appeal from the Delaware Circuit
        v.                                                Court
                                                          The Hon. Marianne Vorhees,
Bayview Loan Servicing,                                   Judge
Appellee-Plaintiff.                                       Trial Court Cause No.
                                                          18C01-1211-MF-105




Bradford, Judge.




Court of Appeals of Indiana | Memorandum Decision 18A-MF-1045 | December 13, 2018            Page 1 of 7
                                          Case Summary
[1]   James Lindzy and his agent Steven Kreps (collectively, “Lindzy”) appeal from

      the trial court’s judgment allowing Bayview Loan Servicing to foreclose its

      interest in a residence owned by Lindzy (“the Property”). In 1999, Lindzy

      purchased a residence with money borrowed from Bayview’s predecessor-in-

      interest and executed a promissory note (“the Note”) and mortgage (“the

      Mortgage”) in its favor. In 2005, Bayview’s predecessor filed suit to foreclose

      for nonpayment on the Note. After negotiations, the parties entered into a loan

      modification agreement (“the Agreement”), pursuant to which Lindzy would

      make larger payments against his obligation and, in exchange, the foreclosure

      action would be dismissed. Lindzy made one payment pursuant to the

      Agreement before stopping, and a second foreclosure suit was filed. After a

      bench trial, the trial court entered judgment against Lindzy. Lindzy contends

      that (1) there was insufficient evidence to establish that there was a meeting of

      minds between the parties as to the Agreement, (2) there is insufficient evidence

      to establish that the Agreement was supported by consideration, and (3) the

      Agreement was unconscionable and therefore unenforceable. Because we

      disagree with Lindzy’s first two contentions and conclude that the third is

      waived, we affirm.



                            Facts and Procedural History
[2]   On January 4, 1999, Lindzy executed the Note (in the principal amount of

      $88,635.00) and the Mortgage in favor of Bayview’s predecessor-in-interest,

      Court of Appeals of Indiana | Memorandum Decision 18A-MF-1045 | December 13, 2018   Page 2 of 7
      granting it a security interest in the Property, a residence located in Muncie.

      The first foreclosure action concerning the Property was filed on July 28, 2005

      (“First Foreclosure”). Lindzy was represented by attorney B. Joseph Davis at

      the time. The parties negotiated the Agreement, and, on December 29, 2009,

      Lindzy met with Davis’s assistant and signed it. Pursuant to the terms of the

      Agreement, the new principal balance was $129,117.95, against which Lindzy

      was to make monthly payments of $1111.20 beginning in February of 2010. On

      January 26, 2010, the parties agreed to dismiss the First Foreclosure, noting in

      the stipulation of dismissal that the parties had entered into the Agreement.


[3]   Lindzy made at least one payment pursuant to the Agreement but eventually

      stopped making payments. On October 6, 2010, a second complaint to

      foreclose on the Mortgage was filed. A bench trial was held on November 21

      and 22, 2017, after which the trial court entered judgment in favor of Bayview.


                                Discussion and Decision
[4]   Lindzy argues that the trial court erred in concluding that the Agreement was

      binding because there was allegedly no meeting of the minds on all essential

      elements and no proof of consideration. Lindzy also argues that the

      Agreement, even if binding, is unconscionable and therefore unenforceable.


                    I. Whether Sufficient Evidence Supports
                         the Trial Court’s Judgment
[5]   “When reviewing judgments with findings of fact and conclusions of law,

      Indiana’s appellate courts ‘shall not set aside the findings or judgment unless

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      clearly erroneous, and due regard shall be given to the opportunity of the trial

      court to judge the credibility of the witnesses.’” Best v. Best, 941 N.E.2d 499,

      502 (Ind. 2011) (citing Ind. Trial Rule 52(A)). “A judgment will be clearly

      erroneous when there is ‘no evidence supporting the findings or the findings fail

      to support the judgment,’ and when the trial court applies the wrong legal

      standard to properly found facts.’” Fraley v. Minger, 829 N.E.2d 476, 482 (Ind.

      2005) (internal citations omitted). “In order to determine that a finding or

      conclusion is clearly erroneous, an appellate court’s review of the evidence must

      leave it with the firm conviction that a mistake has been made.” Id. (citing

      Yanoff v. Muncy, 688 N.E.2d 1259, 1262 (Ind. 1997)). “Appellate judges are not

      to reweigh the evidence nor reassess witness credibility, and the evidence

      should be viewed most favorably to the judgment.” Best, 941 N.E.2d at 502.


                                    A. Meeting of the Minds
[6]   Lindzy argues that there was no meeting of the minds because he did not know

      what he was signing when he signed the Agreement. “A meeting of the minds

      of the contracting parties, having the same intent, is essential to the formation

      of a contract.” Zimmerman v. McColley, 826 N.E.2d 71, 77 (Ind. Ct. App. 2005)

      (citing Wallem v. CLS Indus., 725 N.E.2d 880, 883 (Ind. Ct. App. 2000)). “The

      intent relevant in contract matters is not the parties’ subjective intents but their

      outward manifestation of it.” Id. (citing Centennial Mortg., Inc. v. Blumenfeld, 745

      N.E.2d 268, 277 (Ind. Ct. App. 2001)). “A court does not examine the hidden

      intentions secreted in the heart of a person; rather it should examine the final

      expression found in conduct. The intention of the parties to a contract is a

      Court of Appeals of Indiana | Memorandum Decision 18A-MF-1045 | December 13, 2018   Page 4 of 7
      factual matter to be determined from all the circumstances.” Id. (citations

      omitted).


[7]   The record amply supports a conclusion that there was a meeting of the minds.

      First and foremost, Lindzy signed the Agreement, and there can be little doubt

      that a signed contract is compelling evidence of the intent to be bound. See, e.g.,

      Stardust Ventures, LLC v. Roberts, 65 N.E.3d 1122, 1127 (Ind. Ct. App. 2016)

      (“The signature of Stardust’s president is sufficient to manifest Stardust’s intent

      to be bound by the agreement.”). Moreover, it is not disputed that the parties

      negotiated and agreed upon the terms of the Agreement, Davis had authority to

      negotiate on Lindzy’s behalf as his attorney, and Bayview’s predecessor

      reasonably relied on this authority in entering into the Agreement. Finally,

      Lindzy made at least one payment pursuant to the Agreement before stopping,

      which, in our view, amounts to a further acknowledgment of being bound by it.


[8]   Although Lindzy testified that he did not know what he was signing and that

      his subjective intent was to continue paying on the Note, the trial court was

      under no obligation to credit such testimony and did not. Moreover, to the

      extent that Lindzy suggests that he was somehow defrauded and produced

      evidence purporting to establish this, the trial court specifically found that

      “Defendants have not carried their burden to show that someone or some entity

      committed fraud. Defendants never provided clear evidence as to who

      defrauded them and exactly what constituted the fraudulent acts.” Appellant’s

      App. Vol. II p. 107. Lindzy’s argument amounts to nothing more than an



      Court of Appeals of Indiana | Memorandum Decision 18A-MF-1045 | December 13, 2018   Page 5 of 7
       invitation to reweigh the evidence, which we will not do. See Best, 941 N.E.2d

       at 502.


                                           B. Consideration
[9]    Lindzy also contends that he received no consideration from Bayview’s

       predecessor in exchange for executing the Agreement. “Consideration is a

       ‘bargained for exchange’ whereby the promisor accrues a benefit or the

       promisee accepts a detriment.” Kelly v. Levandosky, 825 N.E.2d 850, 860 (Ind.

       Ct. App. 2005) (citing DiMizio v. Romo, 756 N.E.2d 1018, 1022–23 (Ind. Ct.

       App. 2001), trans. denied), trans. denied. “A benefit is a legal right given to the

       promisor to which the promisor would not otherwise be entitled.” Id. at 1023.

       “A detriment, on the other hand, is a legal right the promisee has forborne.” Id.

       To come straight to the point, the record supports a finding that Bayview’s

       predecessor forewent its right to pursue the First Foreclosure when it entered

       into the Agreement, which is adequate consideration. See, e.g., id. (concluding

       that consideration for loan modification agreement existed where creditor

       agreed to forgo the right to enforce original loan agreement).


                 II. Whether the Agreement is Unconscionable
[10]   Lindzy claims for the first time on appeal that the Agreement is unconscionable

       and therefore unenforceable. However, “[i]t is well-settled that ‘a party may

       not raise a new argument for the first time on appeal.’” Evans v. Thomas, 976

       N.E.2d 125, 128 (Ind. Ct. App. 2012) (quoting Art Country Squire, L.L.C. v.

       Inland Mortg. Corp., 745 N.E.2d 885, 892 n.3 (Ind. Ct. App. 2001)), trans. denied.

       Court of Appeals of Indiana | Memorandum Decision 18A-MF-1045 | December 13, 2018   Page 6 of 7
       Because Lindzy did not raise this issue in the trial court, it is waived for

       appellate review. In summary, we find all of Lindzy’s claims to either be

       without merit or waived for our review.


[11]   The judgment of the trial court is affirmed.


       May, J., and Brown, J., concur.




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