                                                                                  FILED
                                                                            Aug 08 2018, 9:09 am

                                                                                  CLERK
                                                                             Indiana Supreme Court
                                                                                Court of Appeals
                                                                                  and Tax Court




      ATTORNEY FOR APPELLANT                                     ATTORNEY FOR APPELLEE
      Preeti (Nita) Gupta                                        Kevin B. Connor
      Indianapolis, Indiana                                      Dykema Gossett PLLC
                                                                 Chicago, Illinois



                                                  IN THE
          COURT OF APPEALS OF INDIANA

      Lisa M. El,                                                August 8, 2018
      Appellant-Defendant,                                       Court of Appeals Case No.
                                                                 18A-MF-338
              v.                                                 Appeal from the
                                                                 Marion Superior Court
      Nationstar Mortgage LLC,                                   The Honorable
      Appellee-Plaintiff.                                        James B. Osborn, Judge
                                                                 Trial Court Cause No.
                                                                 49D14-1706-MF-22897



      Kirsch, Judge.


[1]   In this residential mortgage foreclosure action, Nationstar Mortgage LLC

      (“Nationstar”) sought to foreclose a mortgage that it held on real property

      mortgaged by property owner Lisa M. El (“El”). After El failed to appear for a

      settlement conference that she had requested, Nationstar sought and obtained

      summary judgment against El, and the trial court entered an in rem foreclosure

      judgment in favor of Nationstar. El thereafter filed a motion requesting another

      Court of Appeals of Indiana | Opinion 18A-MF-338 | August 8, 2018                              Page 1 of 9
      settlement conference, which the trial court denied. El now appeals and raises

      the following restated issue: whether the trial court abused its discretion when

      it denied El’s motion asking for a second settlement conference.


[2]   We affirm.


                                  Facts and Procedural History
[3]   On June 8, 2017, Nationstar filed an In Rem Complaint on Promissory Note

      and to Foreclose Mortgage, seeking to foreclose a mortgage secured by real

      property in Camby, Indiana and naming El as a defendant. Appellee’s App. Vol.

      II at 4. El was served with the complaint and summons, and the summons,

      among other things, stated:


              You may be entitled to a settlement conference that will allow
              you to speak with your mortgage company and discuss
              alternatives to foreclosure. If you want a settlement conference,
              you must request it with the court within 30 days after you
              received this summons and Complaint.


      Id. at 2. El also received with the complaint and summons a document

      notifying her that she “may be entitled to a court-ordered settlement conference

      with her lender to negotiate an agreement that could allow her to avoid

      foreclosure.” Id. at 53. It instructed her that she needed to notify the trial court

      of her desire for a settlement conference, and it provided El with options as to

      how to do so. The document also told her:


              You have the right to be represented by an attorney or assisted by
              a mortgage foreclosure counselor, either in person or by

      Court of Appeals of Indiana | Opinion 18A-MF-338 | August 8, 2018            Page 2 of 9
              telephone, at the settlement conference. If you need a mortgage
              foreclosure counselor or an attorney contact the Indiana
              Foreclosure Prevention Network at 1-877-Get-Hope (1-877-438-
              4673), or www.877GetHope.org at least two (2) weeks prior to
              your settlement conference. The IFPN is a free, confidential
              service meant to assist homeowners like you.


      Id.


[4]   On July 14, 2017, El appeared, pro se, and filed a handwritten answer and a

      handwritten request for settlement conference. Id. at 56-58. On July 21, the

      trial court granted her request, issuing a Notice and Order for Settlement

      Conference, which stated that the matter was set for a settlement conference on

      for September 14, 2017. Id. at 60-63. The trial court’s notice for the settlement

      conference (“Notice”) ordered El and Nationstar to appear in person and, if

      represented, with counsel. It directed Nationstar to bring specified payment

      records for the mortgage, and with regard to documentation, it directed El as

      follows:


              (2) The Defendant must bring to the Settlement Conference and
              provide a copy to the Plaintiffs attorney no later than 30 days in
              advance of the Settlement Conference, the following documents
              needed to engage in good faith negotiations with the creditor:


              a. Documentation of Defendant’s present and projected future
              income, expenses, assets and liabilities, including pay stubs, bank
              statements, utility bills, tax returns.


              b. The Defendant is encouraged to contact a mortgage
              foreclosure counselor, immediately. A mortgage foreclosure
              counselor and/or an attorney may be able to assist with this
      Court of Appeals of Indiana | Opinion 18A-MF-338 | August 8, 2018             Page 3 of 9
              process and the presentation of the proper documentation at the
              Settlement Conference. (A list of counselors is attached.)


      Id. at 60-61.


[5]   Nationstar appeared by counsel at the September 14 settlement conference, and

      El did not appear. The trial court entered a minute sheet noting that El failed to

      appear, that El did not submit to Nationstar the documents required by the

      Notice and Order for Settlement Conference, and that Nationstar could proceed

      with its foreclosure. Appellant’s App. Vol. II at 10. On November 6, 2017,

      Nationstar filed a Motion for In Rem Summary and Default Judgment, and El

      did not file a response. Appellee’s App. Vol. II at 64-84. On December 12, 2017,

      the trial court granted Nationstar’s motion and issued an Entry of In Rem

      Summary and Default Judgment and Decree of Foreclosure. Id. at 85-91.


[6]   On February 5, 2018, counsel for El filed an appearance and a Motion for

      Settlement Conference. Appellant’s App. Vol. II at 11. El’s Motion

      acknowledged that a prior settlement conference had been held, but she asked

      the trial court to “re-schedule the statutory settlement conference” because she

      had applied for housing assistance as she had been told to do, but she “was not

      aware of what additional documents were required by [Nationstar]” and “was

      misinformed as to the Settlement Conference proceedings.” Id.; Appellee’s App.

      Vol. II at 92-93. On February 7, 2018, the trial court issued an order summarily

      denying El’s request for a rescheduled settlement conference and stating, “Case

      has already been resolved.” Appellant’s App. Vol. II at 9. El now appeals.


      Court of Appeals of Indiana | Opinion 18A-MF-338 | August 8, 2018         Page 4 of 9
                                      Discussion and Decision
[7]   “In response to the mortgage foreclosure crisis, the Indiana legislature passed

      Indiana Code chapter 32-30-10.5 to ‘avoid unnecessary foreclosures’ and

      facilitate ‘the modification of residential mortgages in appropriate

      circumstances.’” Nationstar Mortg., LLC v. Curatolo, 990 N.E.2d 491, 493 (Ind.

      Ct. App. 2013) (citing Ind. Code § 32-30-10.5-1(b)). Under this chapter, a

      creditor must notify a debtor of his or her right to participate in a settlement

      conference, and the debtor is given thirty days to notify the court of his or her

      intent to participate in such a conference. Id. at 494 (citing Ind. Code § 32-30-

      10.5-8(c)). Here, El does not dispute that, at her request, the trial court

      scheduled and held a settlement conference, which she did not attend. Her

      claim is that “[t]the trial court should not have denied a second request for a

      settlement conference under Indiana Code section 32-30-10.5-10[.]” Appellant’s

      Br. at 5.


[8]   Indiana Code 32-30-10.5-10 (“Section 10”), addressing foreclosure settlement

      conferences, requires a trial court to issue a notice of a settlement conference if

      the debtor contacts the court to schedule a settlement conference. Ind. Code §

      32-30-10.5-10(a). The conference must be held in a specified timeframe, and

      the trial court’s notice to the debtor must “[e]ncourage the debtor to contact a

      mortgage foreclosure counselor before the date of the settlement conference.”

      Ind. Code § 32-30-10.5-10(a)(2). Section 10 outlines a number of things that

      must be included in the trial court’s notice of the settlement conference; for

      instance, it must inform the parties where the settlement conference will be

      Court of Appeals of Indiana | Opinion 18A-MF-338 | August 8, 2018             Page 5 of 9
held, and it requires that an attorney for the creditor attend the settlement

conference. Ind. Code § 32-30-10.5-10(b). The notice must advise the debtor to

provide, within a certain time frame, the debtor’s loss mitigation package 1 to the

creditor’s attorney and to the trial court. Ind. Code § 32-30-10.5-10(a)(3)(A).

The notice must also advise the debtor to bring specified documents to the

settlement conference:


        (B) Bring the following to the settlement conference:


                 (i) In the case of a foreclosure action filed after June 30,
                 2009, but before July 1, 2011, documents needed to engage
                 in good faith negotiations with the creditor, including
                 documentation of the debtor’s present and projected future
                 income, expenses, assets, and liabilities (including
                 documentation of the debtor's employment history), and
                 any other documentation or information that the court
                 determines is needed for the debtor to engage in good faith
                 negotiations with the creditor. The court shall identify any
                 documents required under this item with enough
                 specificity to allow the debtor to obtain the documents
                 before the scheduled settlement conference.


                 (ii) In the case of a foreclosure action filed after June 30,
                 2011, the debtor's loss mitigation package.




1
 A “loss mitigation package” is a set of documents that “provide information about a debtor's present and
projected future income, expenses, assets, and liabilities.” Ind. Code § 32-30-10.5-4.7(2).



Court of Appeals of Indiana | Opinion 18A-MF-338 | August 8, 2018                                Page 6 of 9
               Any document submitted to the court under this subdivision as
               part of the debtor’s loss mitigation package is confidential under
               IC 5-14-3-4(a)(13).


       Ind. Code § 32-30-10.5-10(a)(3)(B). As it does for the debtor, the notice must

       advise the creditor to do certain things and bring certain documents to the

       settlement conference. Ind. Code § 32-30-10.5-10(a)(4).


[9]    El’s claim on appeal is that the trial court “should not have denied a second

       request for a settlement conference” because “[Section 10] does not preclude

       debtors from obtaining a second settlement conference.” Appellant’s Br. at 5.

       Her position – that the statute “does not preclude” a second conference – is

       only partially correct. The statute contemplates the possibility of an additional

       conference as follows:


               [F]or cause shown, the court may order the creditor and the
               debtor to reconvene a settlement conference at any time before judgment
               is entered.


       Ind. Code § 32-30-10.5-10(b) (emphasis added). The statute’s plain language

       provides that, in certain circumstances, the trial court “may order” the parties to

       reconvene a settlement conference, and, accordingly, we review El’s claim for

       an abuse of discretion. An abuse of discretion occurs where the trial court’s

       decision is against the logic and effect of the facts and circumstances before it.

       Elliott v. Dyck O’Neal, Inc., 46 N.E.3d 448, 457 (Ind. Ct. App. 2015), trans. denied


[10]   Here, El filed her Motion for Settlement Conference on February 5, 2018,

       which was approximately two months after the trial court entered its December

       Court of Appeals of Indiana | Opinion 18A-MF-338 | August 8, 2018                 Page 7 of 9
       12, 2017 judgment in favor of Nationstar. Section 10 grants the trial court

       discretion to “reconvene” the settlement conference, for cause, “at any time

       before judgment is entered.” Ind. Code § 32-30-10.5-10(b). El’s motion was

       filed subsequent to judgment being entered. Accordingly, under the facts of this

       case, the trial court did not have discretion to reconvene the settlement

       conference. Indeed, as the trial court stated, the “[c]ase ha[d] already been

       resolved.” Appellant’s App. Vol. II at 9.


[11]   Additionally, even if the timing had been such that trial court still possessed the

       discretion to order the parties to reconvene, we find that El has not shown

       “cause” that would entitle her to a reconvened conference. Her motion did not

       claim that she was not served or did not know about the September 14

       settlement conference or otherwise seek to set aside the foreclosure judgment

       for some reason. Rather, she acknowledged that a prior conference had been

       held and asked the trial court to “re-schedule the statutory settlement

       conference” because she had applied for housing assistance as she had been told

       to do, but she “was not aware of what additional documents were required by

       [Nationstar]” and “was misinformed as to the Settlement Conference

       proceedings.” Appellee’s App. Vol. II at 92-93.


[12]   However, pursuant to Section 10’s requirements, the trial court’s Notice

       advised El of the date and location of the settlement conference and, with

       regard to her claim that she did not know what documents Nationstar needed

       from her, the Notice identified documents that she was required to bring to the

       conference, including documentation of her present and projected future

       Court of Appeals of Indiana | Opinion 18A-MF-338 | August 8, 2018           Page 8 of 9
       income, expenses, assets and liabilities, pay stubs, bank statements, utility bills,

       and tax returns. Appellee’s App. Vol. II at 60-61. It also encouraged El to contact

       a mortgage foreclosure counselor or attorney immediately, noting that those

       individuals might be able to assist with the presentation of the proper

       documentation at the settlement conference. Id. The Notice included a list

       with possible counseling agencies and pro bono legal services. Id. at 63. Based

       on Section 10, as well as the facts of the case, we find no abuse of discretion in

       the trial court’s decision to deny El’s February 5, 2018 Motion for Settlement

       Conference.


[13]   Affirmed.


       Baker, J., and Bradford, J., concur.




       Court of Appeals of Indiana | Opinion 18A-MF-338 | August 8, 2018           Page 9 of 9
