MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before any                                 FILED
court except for the purpose of establishing                          Jul 10 2017, 5:47 am
the defense of res judicata, collateral                                   CLERK
estoppel, or the law of the case.                                     Indiana Supreme Court
                                                                         Court of Appeals
                                                                           and Tax Court




APPELLANTS PRO SE                                        ATTORNEYS FOR APPELLEE
Michael Rae                                              VENTURES TRUST 2013-I-NH BY
Demotte, Indiana                                         MCM CAPITAL PARTNERS,
                                                         LLC, ITS TRUSTEE
Amy M. Molson (Rae)                                      Phillip A. Norman
Lake Village, Indiana                                    Jennifer L. Snook
                                                         Valparaiso, Indiana

                                                         ATTORNEYS FOR APPELLEES
                                                         BANK OF AMERICA, N.A., AND
                                                         MORTGAGE ELECTRONIC
                                                         REGISTRATION SYSTEMS, INC.
                                                         Darren A. Craig
                                                         Bryan S. Strawbridge
                                                         Frost Brown Todd LLC
                                                         Indianapolis, Indiana




                                           IN THE
    COURT OF APPEALS OF INDIANA




Court of Appeals of Indiana | Memorandum Decision 37A03-1612-PL-2874| July 10, 2017           Page 1 of 12
      Michael Rae and Amy M. Rae                               July 10, 2017
      (Molson),                                                Court of Appeals Case No.
      Appellants,                                              37A03-1612-PL-2874
                                                               Appeal from the Jasper Circuit
              v.                                               Court
                                                               The Honorable John D. Potter,
      Ventures Trust 2013-I-NH by                              Judge
      MCM Capital Partners, LLC, Its                           Trial Court Cause No.
      Trustee, Bank of America, N.A.,                          37C01-1503-PL-236
      Franklin American Mortgage
      Company, and Mortgage
      Electronic Registration Systems,
      Inc.,
      Appellees




      Crone, Judge.


                                             Case Summary
[1]   Michael Rae and Amy M. Rae (Molson) (collectively “the Raes”) bring a pro se

      appeal from the trial court’s entry of summary judgment and decree of

      foreclosure in favor of Ventures Trust 2013-I-NH by MCM Capital Partners,

      LLC, its trustee (“Ventures Trust”). Finding that no genuine issue of material

      fact remains and that the judgment of foreclosure is appropriate as a matter of

      law, we affirm.


                                 Facts and Procedural History
[2]   The designated evidence indicates that in August 2008, the Raes executed a

      promissory note in favor of Franklin American Mortgage Company in the


      Court of Appeals of Indiana | Memorandum Decision 37A03-1612-PL-2874| July 10, 2017   Page 2 of 12
      amount of $176,102. The note was secured by a mortgage on certain real

      property located in Jasper County (“the Property”). The mortgage was

      executed in favor of Mortgage Electronic Registration Systems, Inc. (“MERS”),

      as nominee for Franklin American, and the mortgage was recorded with the

      Jasper County Recorder’s Office on August 8, 2008. The mortgage was

      subsequently assigned to Bank of America, N.A., as successor by merger to

      BAC Home Loans Servicing, LP, f/k/a Countrywide Home Loans Servicing,

      LP, and the assignment was recorded with the Jasper County Recorder’s Office

      on June 13, 2012. The mortgage was then assigned to Newbury REO 2013,

      LLC, and the assignment was recorded with the Jasper County Recorder’s

      Office on September 13, 2013. On August 27, 2015, a corrective assignment of

      mortgage was recorded with the Jasper County Recorder’s Office. The

      corrective assignment corrected the assignee of the mortgage from Newbury

      REO to Ventures Trust.


[3]   As for the promissory note, the evidence indicates that the original holder of the

      note, Franklin American, executed an endorsement to the note to Countrywide

      Bank, FSB. Countrywide Bank then executed an endorsement to the Secretary

      of Housing and Urban Development of Washington, D.C. and his/her

      successors and assigns. An allonge to the note was subsequently executed

      which indicated a transfer of interest in the note to Newbury REO and then to

      Ventures Trust.


[4]   On March 25, 2015, Michael filed a pro se complaint to quiet title to the

      Property because, in his own words, “he had no idea who owned or had rights

      Court of Appeals of Indiana | Memorandum Decision 37A03-1612-PL-2874| July 10, 2017   Page 3 of 12
      to his [m]ortgage.” Appellants’ Supp. App. Vol. 3 at 15. He named numerous

      defendants including Ventures Trust, Bank of America, MERS, Franklin

      American, Newbury REO, Asset Acceptance, LLC, Viking Funding Group,

      and Town of Demotte. Newbury REO filed an answer stating that it owned the

      mortgage and note. On September 8, 2015, after the corrective assignment of

      mortgage had been recorded indicating that Ventures Trust was the proper

      assignee of the mortgage, Ventures Trust filed its answer to Michael’s complaint

      and a counterclaim for foreclosure of its mortgage. Ventures Trust asserted its

      ownership rights to the mortgage and note, naming as counterdefendants the

      Raes, Bank of America, Asset Acceptance, Viking Funding Group, Capital One

      Bank (USA), and the State of Indiana, Department of Revenue.


[5]   On October 9, 2015, Bank of America filed a disclaimer of interest as to the

      Property.1 Thereafter, on January 4, 2016, without seeking leave of court,

      Michael filed a “Third-Party Claim of Wrongful Foreclosure” against Bank of

      America. Bank of America filed a motion to dismiss the third-party claim on

      January 19, 2016, which was subsequently granted by the trial court.


[6]   In February 2016, Ventures Trust filed its motion for summary judgment and

      request for decree of foreclosure and designated an affidavit of debt indicating

      the Raes’ mortgage default debt in the amount of $224,848.60. In addition to




      1
        On October 15, 2015, Ventures Trust filed an “Affidavit in Aid of Title to Correct Scrivener’s Error” and
      recorded the correction with the Jasper County Recorder’s Office. The affidavit was to correct a scrivener’s
      error in the notary paragraph of the corrective assignment of mortgage to Ventures Trust.

      Court of Appeals of Indiana | Memorandum Decision 37A03-1612-PL-2874| July 10, 2017              Page 4 of 12
      the pleadings, Ventures Trust designated a copy of the original promissory note

      signed by the Raes, the allonge, the mortgage, and all assignments thereto.


[7]   On November 16, 2016, the trial court granted summary judgment and entered

      a decree of foreclosure and judgment against the Raes in favor of Ventures

      Trust. Specifically, the trial court concluded that the designated evidence

      established that Ventures Trust is the holder and owner of the promissory note

      and mortgage on the Property, and that Ventures Trust was entitled to foreclose

      its mortgage as a lien against the Property to satisfy the debt secured by the

      mortgage. Therefore, the trial court entered judgment against Amy and an in

      rem judgment against Michael in the sum of $224,848.60, and ordered the

      Property sold to satisfy the judgment. On December 8, 2016, Amy alone filed

      a pro se motion to vacate the judgment of foreclosure, which was denied by the

      trial court on December 14, 2016. Thereafter, the Raes filed a pro se joint

      notice of appeal, attaching only the trial court’s summary judgment order and

      decree of foreclosure as the appealed order.


                                     Discussion and Decision
[8]   We begin by noting that the Raes represented themselves at the trial level and

      do so again on appeal. Although individuals have a right to represent

      themselves in legal proceedings, pro se litigants are held to the same standards

      as trained attorneys and are afforded no inherent leniency simply by virtue of

      being self-represented. Zavodnik v. Harper, 17 N.E.3d 259, 266 (Ind. 2014). This

      means that pro se litigants are bound to follow the established rules of

      procedure and must be prepared to accept the consequences of their failure to
      Court of Appeals of Indiana | Memorandum Decision 37A03-1612-PL-2874| July 10, 2017   Page 5 of 12
      do so. Basic v. Amouri, 58 N.E.3d 980, 983-84 (Ind. Ct. App. 2016). We will

      not become an “‘advocate for a party, or address arguments that are

      inappropriate or too poorly developed or expressed to be understood.’” Id.

      (quoting Perry v. Anonymous Physician 1, 25 N.E.3d 103, 105 n.1 (Ind. Ct. App.

      2014), trans. denied (2015), cert. denied).2


[9]   The Raes appeal the trial court’s entry of summary judgment in favor of

      Ventures Trust. Summary judgment is appropriate only when there is no

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

      matter of law. Wagner v. Yates, 912 N.E.2d 805, 808 (Ind. 2009). We review

      the trial court’s grant of a summary judgment de novo, drawing all reasonable

      inferences in favor of the nonmoving party. Hughley v. State, 15 N.E.3d 1000,

      1003 (Ind. 2014). Still, the nonmoving party has the burden on appeal of

      persuading us that the grant of summary judgment was erroneous. Id. Further,

      “we will affirm the trial court’s ruling based on any theory supported by the

      record evidence.” Markley v. Estate of Markley, 38 N.E.3d 1003, 1006-07 (Ind.

      2015).




      2
        We note that it is difficult to discern the Raes’ precise allegations because of the many deficiencies in their
      briefs on appeal, especially their failure to comply with Indiana Appellate Rule 46 regarding the arrangement
      of their briefs, as well as the fact that their briefs are completely devoid of any citations to the appendices. See
      generally Ind. Appellate Rule 46(A) and (C) (entitled Appellant’s Brief and Appellant’s Reply Brief).
      Although we do our best here to address the merits of their claims where possible, in some instances our
      appellate review has been so impeded that waiver of some issues is unavoidable. See In re Moeder, 27 N.E.3d
      1089, 1097 n.4 (Ind. Ct. App. 2015) (while failure to comply with appellate rules does not necessarily result
      in waiver of the issues presented, it is appropriate where noncompliance impedes our review), trans. denied.

      Court of Appeals of Indiana | Memorandum Decision 37A03-1612-PL-2874| July 10, 2017                    Page 6 of 12
       Section 1 – The Raes have not met their burden to persuade us
       that the trial court erred in entering summary judgment and a
              decree of foreclosure in favor of Ventures Trust.
[10]   Indiana Code Section 32-30-10-3(a) provides, “if a mortgagor defaults in the

       performance of any condition contained in a mortgage, the mortgagee or the

       mortgagee’s assign may proceed in the circuit court of the county where the real

       estate is located to foreclose the equity of redemption contained in the

       mortgage.” To establish a prima facie case that it is entitled to foreclose upon a

       mortgage, the mortgagee or its assign must enter into evidence the demand note

       and the mortgage, and must prove the mortgagor’s default. McEntee v. Wells

       Fargo Bank, N.A., 970 N.E.2d 178, 182 (Ind. Ct. App. 2012). “Once the

       mortgagee establishes its prima facie case, the burden shifts to the mortgagor to

       show that the note has been paid in full or to establish any other defenses to the

       foreclosure.” Id.


[11]   Moreover, “Indiana has adopted Article 3 of the Uniform Commercial Code

       which governs negotiable instruments, and it is well established that a

       promissory note secured by a mortgage is a negotiable instrument.” Lunsford v.

       Deutsche Bank Trust Co. Americas, 996 N.E.2d 815, 821 (Ind. Ct. App. 2013).

       Specifically, Indiana Code Section 26-1-3.1-301 provides that a negotiable

       instrument may be enforced by “the holder of the instrument.” The term

       “holder” includes the person in possession of a negotiable instrument that is

       payable to “bearer” or a person in possession of a negotiable instrument




       Court of Appeals of Indiana | Memorandum Decision 37A03-1612-PL-2874| July 10, 2017   Page 7 of 12
       “payable to bearer or endorsed in blank.” Ind. Code § 26-1-1-201(5), -

       201(20)(A).


[12]   Here, Ventures Trust made a prima facie showing that it is the holder of the

       note and mortgage on the Property and is entitled to a judgment of foreclosure.

       Ventures Trust produced a certified copy of the original promissory note with

       the Raes’ signatures and the endorsements to that note, including the allonge

       endorsing the note to Ventures Trust. Ventures Trust further designated copies

       of the original mortgage documents and the chain of assignment, as well as an

       affidavit of the Raes’ default and debt.


[13]   In response, Michael did not dispute that the Raes are in default under the

       terms of the note and mortgage, nor did he dispute the amount of

       indebtedness.3 Rather, he asserted that there is a discrepancy between the copy

       of the promissory note attached to the complaint of foreclosure and the copy

       attached to the motion for summary judgment, that the endorsements on the




       3
        Rather than challenging the fact of their default or the amount of their indebtedness, the Raes simply
       maintain that the affidavit of debt by affiant Bethany Neel is inadmissible because “it fails to meet T.R. 11(B)
       because it does not contain (signed under the penalty of perjury) as required by the rule.” Appellants’ Br. at
       14. Indiana Trial Rule 11(B) requires that an affidavit be “verified by affirmation or representation” and
       provides guidance as to what language may constitute proper verification. Gary/Chicago Airport Bd. of Auth. v.
       Maclin, 772 N.E.2d 463, 472 (Ind. Ct. App. 2002). The Raes acknowledge that strict compliance with Trial
       Rule 11 is not required, and that the chief test of the sufficiency of an affidavit is its ability to serve as a
       predicate for a perjury prosecution. Jordan v. Deery, 609 N.E.2d 1104, 1110 (Ind. 1993). Indeed, affidavits
       used for summary judgment purposes “are evidential in nature” and thus they must be subject to the penalties
       of perjury. See Tannehill by Podgorski v. Reddy, 633 N.E.2d 318, 321 (Ind. Ct. App. 1994), trans. denied.
       Accordingly, an affidavit provided in support of a motion for summary judgment must be verified by an oath
       or affirmation. Id. Neel’s notarized affidavit provides that the representations contained therein were
       “affirm[ed] under oath” and “certif[ied]” as “true and correct” “[u]nder the penalties as provided by law.”
       Ventures Trust’s App. at 59, 61. We conclude that Neel’s affidavit was properly verified by oath or
       affirmation, and therefore admissible.

       Court of Appeals of Indiana | Memorandum Decision 37A03-1612-PL-2874| July 10, 2017                Page 8 of 12
       second copy are “photoshop[ped],” that his and Amy’s signatures on both

       copies are forgeries, and further that “[t]he chain of mortgage assignments is in

       dispute because everyone [sic] is faulty or fraudulently endorsed or conveyed in

       some way.” Appellants’ Supp. App. Vol. 3. at 20; Summary Judgment Hearing

       Tr. at 10-11. However, these assertions are not enough to create a genuine

       issue of material fact.


[14]   As far as the discrepancy between the copies of the promissory note, we

       disagree with the Raes that such discrepancy supports a reasonable inference

       that Ventures Trust is not the holder of the note and mortgage or that either are

       the product of “forgery and fraud.” Reply Br. at 6. It is undisputed that

       Ventures Trust produced what the trial court determined was a certified copy of

       the original promissory note, including the allonge and endorsement to

       Ventures Trust, for inspection at the time it moved for summary judgment and

       again at the summary judgment hearing. “There exists no better evidence to

       establish that [Ventures Trust] is the present holder of the note entitled to

       enforce the note under Indiana law.” Collins v. HSBC Bank USA, Nat’l Ass’n, 974

       N.E.2d 537, 542 (Ind. Ct. App. 2012). Further, as stated above, Ventures Trust

       produced evidence of a clear chain of title to the mortgage and its assignments.

       This evidence was sufficient to establish that Ventures Trust is the holder of the

       note and mortgage and entitled to enforce the loan documents. See Lunsford,

       996 N.E.2d at 821.


[15]   In considering whether the nonmovant for summary judgment has created a

       genuine issue of fact, only “[r]ational assertions of fact and reasonable

       Court of Appeals of Indiana | Memorandum Decision 37A03-1612-PL-2874| July 10, 2017   Page 9 of 12
       inferences therefrom are deemed to be true.” Ramon v. Glenroy Constr. Co., 609

       N.E.2d 1123, 1132 (Ind. Ct. App. 1993), trans. denied. We conclude that the

       Raes’ bald assertions of fraud and forgery did not create a genuine issue of

       material fact for trial. Accordingly, the Raes have not met their burden to

       persuade us that the trial court erred in entering summary judgment and a

       decree of foreclosure in favor of Ventures Trust.


              Section 2 – The Raes have waived our review of their
                 challenge to two subsequent trial court orders.
[16]   Although the Raes appeal only the trial court’s November 16, 2016, entry of

       summary judgment and decree of foreclosure, they also attempt to challenge the

       trial court’s subsequent orders denying Amy’s motion to set aside and granting

       Bank of America and MERS’ motion to dismiss third-party claim. They have

       waived appellate review of these orders.


[17]   Regarding Amy’s motion to set aside, as we have already noted, the current

       appeal addresses only the trial court’s entry of summary judgment and decree of

       foreclosure in favor of Ventures Trust. Neither Amy individually nor the Raes

       collectively appealed the trial court’s order denying Amy’s motion to set aside,

       and the Raes did not designate the court’s order denying the motion to set aside

       as an appealable order in their current notice of appeal. See Ind. Appellate Rule

       9(F) (requiring that notice of appeal include designation of appealed order or

       judgment). To make matters worse, it appears that the Raes failed to include a

       copy of Amy’s motion to set aside in the record on appeal. On a motion to set

       aside, the burden is on the movant to establish sufficient grounds for relief.

       Court of Appeals of Indiana | Memorandum Decision 37A03-1612-PL-2874| July 10, 2017   Page 10 of 12
       Front Row Motors, LLC v. Jones, 5 N.E.3d 753, 758 (Ind. 2014). Here, we are

       unable to discern the basis of the motion and we have no idea what credible

       evidence, if any, Amy presented to the trial court in support of the motion.4


[18]   It is well settled that the appellant bears the burden of presenting a complete

       record with respect to the issues raised on appeal. Shoemaker v. Ind. State Police

       Dep’t, 62 N.E.3d 1242, 1245 (Ind. Ct. App. 2016), trans. denied (2017). Further,

       pursuant to Indiana Appellate Rule 46(A)(8)(a), the contentions of the appellant

       on the issues presented “must be supported by citations to the authorities,

       statutes, and the Appendix or parts of the Record on appeal relied on ….” The

       Raes have failed to do both of these things with respect to Amy’s motion to set

       aside. Therefore, the issue is waived. York v. Fredrick, 947 N.E.2d 969, 979

       (Ind. Ct. App. 2011), trans. denied.


[19]   Additionally, the Raes briefly mention that the trial court also erred in

       “dismissing the third-party claims” against Bank of America and MERS.

       Appellants’ Br. at 21. Thus, Bank of America and MERS felt compelled to

       submit an appellees’ brief to address what they believe to be the Raes’ waiver of

       this issue. The record indicates that in January 2016, Michael filed a “Third-

       Party Claim of Wrongful Foreclosure” against Bank of America alleging,

       among other things, that Bank of America had prepared “fraudulent and

       deceptive paperwork” and that the court should “question anything filed or to



       4
        On appeal, the Raes argue that the trial court lacked personal jurisdiction over Amy due to lack of service of
       process, and we presume that this is the argument upon which her motion to vacate was premised.

       Court of Appeals of Indiana | Memorandum Decision 37A03-1612-PL-2874| July 10, 2017              Page 11 of 12
       do with Bank of America [or MERS] in the chain of title” to the Property.

       Bank of America and MERS App. Vol. 2 at 9, 12. Bank of America and MERS

       filed a motion to dismiss and, on December 9, 2016, the trial court entered an

       order dismissing Michael’s third-party claim for noncompliance with the

       Indiana Rules of Trial Procedure and for failure to state a claim upon which

       relief could be granted. The trial court’s order of dismissal is not mentioned in

       the notice of appeal or included in the record on appeal and, other than briefly

       mentioning the dismissal in their brief, the Raes develop no argument and cite

       to no authority as to why it was erroneous. Accordingly, we conclude the issue

       is waived and we decline to address it further. See York, 947 N.E.2d at 979.

       The judgment of the trial court is affirmed.


[20]   Affirmed.


       Baker, J., and Barnes, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 37A03-1612-PL-2874| July 10, 2017   Page 12 of 12
