Pursuant to Ind. Appellate Rule 65(D), this
Memorandum Decision shall not be
                                                        Dec 30 2014, 8:58 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.


APPELLANT PRO SE:                               ATTORNEY FOR APPELLEE:

ADOLPH L. BUCKNER                               KURT V. LAKER
Fishers, Indiana                                Doyle Legal Corporation, P.C.
                                                Indianapolis, Indiana


                              IN THE
                    COURT OF APPEALS OF INDIANA

ADOLPH L. BUCKNER,                              )
                                                )
       Appellant-Defendant,                     )
                                                )
              vs.                               )       No. 29A04-1404-MF-182
                                                )
HSBC MORTGAGE SERVICES, INC., and               )
LSF8 MASTER PARTICIPATION TRUST                 )
                                                )
       Appellee-Plaintiff.                      )


                    APPEAL FROM THE HAMILTON SUPERIOR COURT
                         The Honorable William J. Hughes, Judge
                             Cause No. 29D03-0903-MF-425



                                    December 30, 2014

               MEMORANDUM DECISION – NOT FOR PUBLICATION

BAKER, Judge
       Adolph Buckner appeals the trial court’s denial of several motions related to a

2009 foreclosure action commenced against him by HSBC Mortgage Services, Inc.

(HSBC), and a subsequent sheriff’s sale of the residence to U.S. Bank Trust, N.A., as

Trustee for LSF8 Master Participation Trust (US Bank), in 2014. Buckner raises several

issues, which we consolidate and restate as whether the trial court abused its discretion in

denying his motions for relief from judgment. Finding no error, we affirm.

                                             FACTS

       In 2006, Buckner and Anne Paschal purchased a home located at 14067 Clifton

Court in Fortville and executed a note in favor of Accredited Home Lenders, Inc.

(Accredited), promising to repay a loan in the amount of $514,000. To secure payment

of the note, Buckner and Paschal executed a mortgage upon the property, which was

recorded in Hamilton County. The mortgage named Mortgage Electronic Registration

Systems, Inc. (MERS), as the mortgagee, holding the mortgage as nominee for

Accredited.1

       Buckner and Paschal failed to make their monthly payments under the mortgage.

On March 27, 2009, HSBC filed a complaint to foreclose the mortgage, claiming that it

had acquired MERS’s interest in the mortgage by assignment. This claim was incorrect

when it was made because MERS did not assign its interest in the mortgage to HSBC

until March 31, 2009, four days later. On April 25, 2009, Paschal filed a pro se answer

denying that she was in default. On May 1, 2009, HSBC filed a combined motion for
1
 For a succinct description of MERS and its role, see Citimortgage, Inc. v. Barabas, 975 N.E.2d 805,
808-09 (Ind. 2012).
                                                 2
summary judgment as to Paschal and for default as to Buckner. Buckner and Paschal

filed a pro se motion to deny HSBC’s summary judgment motion. After a hearing held

on March 12, 2010, the trial court instructed HSBC to refile its summary judgment

motion.2

        On May 17, 2010, HSBC filed an amended motion for summary judgment that

included copies of the mortgage and the note. Buckner and Paschal filed responses and

the trial court granted summary judgment in favor of HSBC on July 27, 2010. Buckner

filed a motion to correct error. A hearing was held on October 19, 2010, at which

Buckner failed to appear. The trial court denied Buckner’s motion and he did not appeal.

        Over three years later, on February 3, 2014, LSF8 Master Participation Trust

(LSF8), which had yet to appear in this case, filed a praecipe requesting that the court

certify a copy of the foreclosure judgment to the Sheriff of Hamilton County for a

sheriff’s sale. Buckner then filed several motions, among which was a “Motion[] to

Dismiss and to Vacate Praecipe for Sheriff’s Sale,” filed on February 26, 2014, arguing

that LSF8 had no interest in the property. Appellee’s App. p. 90. In fact, HSBC had yet

to assign the foreclosure judgment to LSF8 at the time the praecipe was filed. The trial

court scheduled a hearing on the matter. Prior to the hearing, on March 10, 2014, HSBC

assigned the foreclosure judgment to LSF8. After the hearing, on March 24, 2014, the

trial court denied Buckner’s motion to dismiss. Buckner filed two more motions on


2
  Although the reasons for the trial court’s instruction are not in the record, appellee presumes that the
motion was deficient because HSBC had failed to attach the mortgage or the note to either the motion for
summary judgment or the complaint.
                                                    3
March 24 and 25, respectively. One was a “Motion to Correct Errors,” in which Buckner

essentially repeated the arguments made in his February 26 motion. Appellee’s App. p.

168. The other was a “Motion to Vacate Summary Judgment,” in which Buckner asked

the trial court to vacate its July 27, 2010, grant of summary judgment to HSBC.

Appellee’s App. p. 145. The trial court denied this new set of motions on March 26,

2014.

        A sheriff’s sale was held on March 27, 2014, and US Bank entered the winning

bid. Buckner filed a notice of appeal on April 25, 2014, indicating that he was appealing

the trial court’s July 27, 2010 entry of summary judgment and decree of foreclosure as

well as the denial of the motions he filed on March 24 and 25, 2014.

                             DISCUSSION AND DECISION

        For the sake of clarity, we treat this as an appeal from the trial court’s March 26,

2014, denial of Buckner’s “Motion to Correct Errors” and “Motion to Vacate Summary

Judgment.” Appellee’s App. p. 90, 145. We treat these motions as motions for relief

from judgment under Indiana Trial Rule 60(B).

        The decision to grant or deny a Trial Rule 60(B) motion for relief from judgment

is within the sound discretion of the trial court. Stonger v. Sorrell, 776 N.E.2d 353, 357

(Ind. 2002). We will not disturb the trial court’s judgment absent an abuse of discretion.

Id. An abuse of discretion occurs when the decision is clearly against the logic and effect

of the facts and circumstances before the court. G.H. Skala Const. Co. v. NPW, Inc., 704

N.E.2d 1044, 1047 (Ind. Ct. App. 1998).

                                             4
        Trial Rule 60(B) provides that the trial court may relieve a party from a judgment

for a number of reasons, among those being fraud, misrepresentation, or other

misconduct of an adverse party. The party seeking relief is required to file such a motion

“not more than one year after the judgment.” T.R. 60(B). However, the rule further

specifies that it “does not limit the power of a court to entertain an independent action to

relieve a party from a judgment, order or proceeding or for fraud upon the court.” Id.

As Buckner alleges in his motions that both HSBC and LSF8 committed a fraud upon the

court, we will construe these motions as pleadings to invoke the court’s inherent power to

grant relief for fraud upon the court. Buckner thus avoids application of the one-year

time limit. See Stonger, 776 N.E.2d at 357.

        We therefore reframe Buckner’s arguments as follows: (1) whether HSBC

committed a fraud upon the court by representing in its original complaint that it had

been assigned an interest in the mortgage prior to the assignment taking place, requiring

relief from the grant of summary judgment in favor of HSBC on July 27, 2010; and (2)

whether LSF8 committed a fraud upon the court by filing a praecipe for sheriff’s sale

before HSBC had assigned the foreclosure judgment to LSF8, requiring the trial court to

vacate the praecipe for sheriff’s sale.3



3
  Buckner’s brief contains numerous arguments that lack citation to authority and numerous assertions
that lack sufficient explanation. Failure to make arguments cogently and with citation to authority results
in waiver. Thacker v. Wentzel, 797 N.E.2d 342, 345 (Ind. Ct. App. 2003); see also Ind. Appellate Rule
46(A)(8)(a). Buckner’s unsupported arguments and assertions are too numerous to individually catalog.
Therefore, we simply note that, to the extent that Buckner attempts to raise issues other than the two we
have restated above, these issues have been waived for failure to comply with Appellate Rule 46.
                                                    5
                       I. Inaccurate Statement in HSBC’s Complaint

       On March 27, 2009, HSBC filed its foreclosure complaint, which included the

following statement:

       5. Mortgage Electronic Registration Systems, Inc. solely as nominee for
       Accredited Home Lenders, Inc. assigned its interest in the Mortgage to
       HSBC Mortgage Services, Inc. by an Assignment of Mortgage.

Appellee’s App. p. 10. This statement was inaccurate at the time it was made. MERS

did not assign the mortgage to HSBC until March 31, 2009, four days after the complaint

was filed. Therefore, Buckner claims that HSBC committed a fraud upon the court and

asks us to “dismiss the case with prejudice.” Appellant’s Br. p. 34.

       To obtain relief through a showing of fraud upon the court, Buckner carries the

burden of “showing that the trial court’s decision was actually influenced” by the alleged

fraud. Stonger, 776 N.E.2d at 358. It is not enough to show a mere possibility that the

trial court was misled. Id. Buckner “must establish that an unconscionable plan or

scheme was used to improperly influence the court’s decision and that such acts

prevented [him] from fully and fairly presenting [his] case or defense.” Id. at 357.

       Buckner has failed to make this showing. At the time summary judgment was

granted, HSBC was in possession of the note. Thus, Buckner’s claim that “HSBC has not

put forth any evidence that they owned the note or had the right to enforce it” is incorrect.

Appellant’s Br. p. 17.     Because the note was endorsed in blank, it was a bearer

instrument, and HSBC was therefore its holder. Ind. Code § 26-1-1-201(20)(A). As the

holder, HSBC was entitled to enforce the instrument. I.C. § 26-1-3.1-301.

                                             6
        HSBC had also been assigned the mortgage at the time of summary judgment.

Although the assignment was not introduced into evidence, HSBC stated in an affidavit

dated May 1, 2009, that it had been assigned the mortgage. Appellee’s App. p. 33.

Buckner did not contest, nor does he contest now, the accuracy of this sworn statement.

        Therefore, at the time that summary judgment was granted, the court had

uncontroverted evidence before it that HSBC was the holder of the note and the assignee

of the mortgage. Although we do not condone inaccurate statements in complaints, the

inaccuracy Buckner points to was of no practical consequence in this case.4 Although

Buckner argues that the “assertion that the Assignment of Mortgage existed at the time

the complaint was initially filed materially affected the court’s decision to grant summary

judgment for [HSBC],” we do not believe this to be the case. Appellant’s Br. p. 23. The

trial court reached its decision only after having received HSBC’s amended motion for

summary judgment as well as a copy of the note, the mortgage, and an affidavit stating

HSBC had been assigned the mortgage. Under these circumstances, the trial court’s

decision was not actually influenced by any inaccuracies in the complaint.5


4
  While we do not find that this inaccuracy rose to the level of fraud upon the court, we do not wish to
dismiss it as a mere technicality. If we infer from the circumstances that MERS and HSBC had
contracted for the assignment of the mortgage prior to the complaint being filed, HSBC could have
avoided any inaccuracy by simply pleading that it had so contracted and that it expected to receive the
assignment shortly. Had it done so, HSBC would have established its standing without making any
inaccurate statements—obviously the preferable method.
5
  Buckner claims that HSBC lacked standing to bring the complaint or that it was not the real party in
interest for purposes of Indiana Trial Rule 17. We note that Buckner could have raised these issues upon
the filing of the complaint through a motion to dismiss under Indiana Trial Rule 12(B)(6). Had he done
so, and had the trial court sustained such a motion, HSBC would have been given an opportunity to
amend its pleading (“When a motion to dismiss is sustained for failure to state a claim under subdivision
                                                   7
                               II. Assignment of Judgment to LSF8

        On February 3, 2014, LSF8 filed a praecipe for sheriff’s sale. Appellee’s App. p.

87. Buckner filed a motion claiming that LSF8 did not have any interest in the property

and, therefore, had no right to request a sheriff’s sale. Id. at 110-11. The trial court

scheduled a hearing on the matter. Before the hearing took place, on March 10, 2014,

HSBC assigned its judgment to LSF8.                 On March 24, 2014, the trial court denied

Buckner’s motion. The next day, Buckner filed a motion to correct errors in which he

reiterated his previous argument. The following day, the trial court denied this motion as

well.

        This argument can be dealt with in the same manner as the previous argument.

Buckner cannot show that the trial court’s decision was actually influenced by this

inaccuracy because, as the assignment had been filed with the trial court prior to the time

it ruled on Buckner’s motion, the trial court was not under any false impression as to who

had the right to enforce the judgment when it ruled. Buckner also fails to explain how

LSF8’s filing of a praecipe for a sheriff’s sale before it had been assigned HSBC’s

foreclosure judgment prevented Buckner from presenting his case or defense. Buckner

has failed to show that either he or the court was deceived prior to the court’s decision to




(B)(6) of this rule the pleading may be amended once as of right . . . within ten [10] days . . . .”). T.R.
12(B). Thus, had Buckner followed the proper procedure, the error in HSBC’s complaint would not have
resulted in outright dismissal of the case.
                                                    8
deny his motion and, therefore, he has failed to show that any alleged inaccuracy

influenced the trial court’s decision. Consequently, we find no error.6

       The judgment of the trial court is affirmed.

NAJAM, J., and BAILEY, J., concur.




6
  Buckner takes issue with the assignment of the judgment from HSBC to LSF8, as well as from LSF8 to
US Bank—who took the property at the foreclosure sale. Buckner argues that these assignments were
illegal because the attorney who signed them did so without the express authority of his clients and the
assignments were not properly attested by the clerk of the court. However, Buckner fails to meet his
burden as he has provided no evidence that this was the case.
                                                   9
