MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), this                                         Jun 23 2015, 9:53 am
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 estoppel, or the law of the case.



ATTORNEYS FOR APPELLANT                                   ATTORNEY FOR APPELLEE
Libby Yin Goodknight                                      David W. Westland
C. Daniel Motsinger                                       Westland Kramer & Bennett, P.C.
Krieg DeVault LLP                                         Schererville, Indiana
Indianapolis, Indiana

John David Cross
Mercer Belanger, P.C.
Indianapolis, Indiana



                                             IN THE
    COURT OF APPEALS OF INDIANA

One West Bank, FSB,                                      June 23, 2015

Appellant-Plaintiff,                                     Court of Appeals Case No.
                                                         45A03-1501-MF-1
        v.                                               Appeal from the Lake Superior
                                                         Court
                                                         The Honorable Calvin D. Hawkins,
Jason Jarvis, Natalie Jarvis,                            Judge
Mortgage Electronic Registration                         Cause No. 45D02-1107-MF-222
Systems, INC. As Nominee for
American Mortgage Network,
INC., GE Money Bank, and
Saddle Creek Estates
Homeowners Association, INC.
Appellee-Defendants




Bailey, Judge.

Court of Appeals of Indiana | Memorandum Decision 45A03-1501-MF-1 | June 23, 2015             Page 1 of 8
                                          Case Summary
[1]   OneWest Bank, FSB (“OneWest”) was twice found in contempt of court for its

      failure to comply with court orders arising from foreclosure proceedings against

      homeowners Jason and Natalie Jarvis (“the Jarvises”). OneWest was

      sanctioned and appealed. This Court reversed the appealed order and

      remanded the matter to the trial court with instructions. The trial court issued a

      revised order for sanctions following remand; from this order, OneWest

      appeals. We affirm.



                                                   Issues
[2]   OneWest presents two issues for review:

              I.       Whether the trial court’s authority on remand was limited to
                       excision of preclusion language found in the contempt order
                       appealed; and
              II.      Whether the award of $100,000.00 as a sanction is improper.


                            Facts and Procedural History
[3]   OneWest has not challenged the determination that it was in contempt of court.

      Rather, OneWest has challenged the sanctions imposed. The salient facts were

      recited in the prior appeal:

              In 2007, Jason and Natalie Jarvis executed a promissory note and
              mortgage to purchase property in Dyer. OneWest acquired the
              mortgage in 2009, and the Jarvises failed to make payments on the
              note. In 2010, the Jarvises accepted a loan modification agreement
              offered by OneWest, but the modification was not finalized. In 2011,

      Court of Appeals of Indiana | Memorandum Decision 45A03-1501-MF-1 | June 23, 2015   Page 2 of 8
        OneWest filed a complaint on the note and to foreclose on the
        mortgage. Apparently, because of OneWest’s errors, it did not
        perform pursuant to the loan modification agreement, and the Jarvises
        moved to enforce the agreement. On November 17, 2011, the trial
        court ordered OneWest to allow the Jarvises to make payments
        pursuant to the terms of the loan modification agreement and
        extended the repayment time accordingly.
        In January 2013, OneWest filed a motion to dismiss its complaint
        without prejudice because the loan modification had been completed,
        and the trial court granted the motion to dismiss. The Jarvises
        responded to the motion to dismiss and asserted that the loan
        modification had not been completed because of OneWest’s continued
        refusal to do so. The Jarvises requested that OneWest be held in
        contempt for its refusal to comply with the November 2011 order. On
        March 2013 [sic], the trial court found OneWest in contempt and
        ordered OneWest to remove all interest, fees, attorney fees, and costs
        imposed on the Jarvises’ account since the 2011 order and to take all
        necessary steps to remove any negative credit references on the
        Jarvises’ credit report. The trial court also awarded the Jarvises
        attorney fees and ordered them to make the January, February,
        March, and April mortgage payments by April 1, 2013.
        On June 10, 2013, the loan modification was executed. On June 11,
        2013, the Jarvises filed a second motion for contempt citation. The
        Jarvises alleged that, since the trial court’s March 2013 order,
        OneWest had attempted to collect allegedly outstanding balances, had
        attempted to change their monthly payments, and had sent real estate
        agents to their home encouraging them to sell the residence. The
        Jarvises attached letters sent by OneWest to their motion. OneWest
        responded by asserting that it had paid the court ordered attorney fees,
        it was in compliance with the March 2013 order, and the letters were
        “unknowingly and unintentionally sent to the Defendants in error
        pending the finalization of the loan modification” through its
        automated system. App. p. 91.
        An evidentiary hearing was held at which Jason testified about
        OneWest’s actions, including OneWest’s failure to clear their credit
        report. At the conclusion of the hearing, the trial court stated it was
        “stunned” by OneWest’s conduct and described OneWest as having
        “systematically ... thumbed its nose at the Court.” Tr. Pp. 39, 37. The
        trial court issued an order finding OneWest in contempt of the

Court of Appeals of Indiana | Memorandum Decision 45A03-1501-MF-1 | June 23, 2015   Page 3 of 8
               November 2011 and March 2013 orders. The trial court dismissed
               OneWest’s complaint with prejudice and ordered that OneWest and
               any successor in interest “is precluded from further attempting to
               pursue its legal and/or equitable claims on the real estate … and on
               the Note and Mortgage attached to plaintiff’s Complaint,” App. p.
               105. The trial court also awarded the Jarvises attorney fees and $500
               for their preparation and attendance at the hearing.


      OneWest Bank, FSB v. Jarvis, 14 N.E.3d 135, slip op. at 1 (Ind. Ct. App. June 20,

      2014).


[4]   On appeal, OneWest contended that the trial court abused its discretion by

      precluding OneWest from attempting to enforce the note and/or mortgage

      based upon a future default by the Jarvises, and a panel of this Court agreed.

      Id. at 3. The sanctions order was reversed and remanded with instructions to

      remove the challenged language.


[5]   On November 18, 2014, the Jarvises filed their Motion to Recalculate

      Sanctions. On December 17, 2014, the trial court conducted a hearing at which

      argument of counsel was heard. On December 23, 2014, the trial court entered

      an order removing language from its prior contempt order and imposing a

      monetary sanction of $100,000.00 upon OneWest. OneWest now appeals.



                                 Discussion and Decision
[6]   .




      Court of Appeals of Indiana | Memorandum Decision 45A03-1501-MF-1 | June 23, 2015   Page 4 of 8
                               Compliance with Remand Order
[7]   OneWest asserts that the trial court exceeded its authority on remand.

      According to OneWest, the prior appeal concerned only the preclusive

      language, the order for remand concerned only the preclusive language, and the

      trial court lacked authority to revise the sanction imposed to include a monetary

      award.


[8]   “[A] trial court judge is duty-bound to carry out the orders of a reviewing

      appellate tribunal.” In re Newman, 858 N.E.2d 632, 635 (Ind. 2006). Therefore,

      an action taken upon remand must conform to the opinion and order

      promulgated by the appellate court. Muncy v. Harlan Bakeries, Inc., 930 N.E.2d

      591, 600 (Ind. Ct. App. 2010).


[9]   In the prior appeal, the panel articulated the issue before the Court as “whether

      the trial court properly sanctioned OneWest for its contempt.” OneWest Bank,

      FSB, slip op. at 1. The Court disposed of the argument upon that issue as

      follows:

              We cannot agree that precluding OneWest or its successors from
              pursuing future legal claims on the property is effectively a monetary
              judgment in the amount of the Jarvises’ debt because the note and
              mortgage are still outstanding and will remain a cloud on the title to
              the property. Had the trial court intended to impose a monetary
              judgment in the amount of the debt, the trial court should have
              specifically ordered such.
              Moreover, we cannot agree with the Jarvises that damages equivalent
              to the unpaid balance of loan, which the loan modification agreement
              indicated was $311,243.81 as of April 2, 2013, were appropriate.
              OneWest’s actions of failing to clear the Jarvises’ credit report, sending

      Court of Appeals of Indiana | Memorandum Decision 45A03-1501-MF-1 | June 23, 2015   Page 5 of 8
               real estate agents to their house to convince them to sell, and
               incorrectly notifying them that they were in default certainly warranted
               the contempt finding. The trial court was understandably angry, as are
               we. As frustrated, inconvenienced, and embarrassed as the Jarvises
               were by OneWest’s actions, there is no evidence that more than
               $300,000 in monetary damages was warranted. As such, we must
               conclude that the trial court abused its discretion by precluding
               OneWest from attempting to enforce the note and/or mortgage based
               upon a future default by the Jarvises.
               The trial court abused its discretion by prohibiting OneWest from
               attempting to enforce the note and/or mortgage in the future. We
               reverse and remand with instructions to remove that language from the
               September 2013 order.
       Id. at 3 (emphasis added.)


[10]   As previously observed, OneWest did not contest the contempt determination.

       The order appealed, and the matter before this Court for review, concerned the

       nature and extent of sanctions. OneWest persuaded this Court of the

       impropriety of particular language prohibiting OneWest from legal redress for a

       future default. This Court reversed the sanctions order and more particularly

       instructed the trial court to excise the preclusive language. The sanctions order

       having been reversed, this Court did not otherwise dictate the content of an

       order for sanctions upon remand.


[11]   A trial court’s judgment that has been reversed is a nullity, and a reversal

       returns the parties to the position they occupied prior to the judgment. Tioga

       Pines Living Center, Inc. v. Ind. Family & Social Serv., 760 N.E.2d 1080, 1088 (Ind.

       Ct. App. 2001). Here, the trial court’s action after reversal and remand was in

       conformance with the opinion of this Court; the trial court did not exceed its

       authority.
       Court of Appeals of Indiana | Memorandum Decision 45A03-1501-MF-1 | June 23, 2015   Page 6 of 8
                                           Monetary Sanction
[12]   The imposition of sanctions to compensate a party for injuries incurred as a

       result of contempt of court is within the trial court’s discretion. Witt v. Jay

       Petroleum, Inc., 964 N.E.2d 198, 204 (Ind. 2012). Because the presumption

       favors the trial court, we review an award of damages for an abuse of discretion

       and will reverse only when there is no evidence to support the award. Id. A

       trial court may take into account the inconvenience and frustration suffered by

       the aggrieved party in determining the amount of damages. Id.


[13]   OneWest contends that the trial court abused its discretion by awarding

       damages based only upon conjecture and speculation. We disagree. The trial

       court was presented with testimony and documentary evidence regarding

       repetitive instances of contemptuous behavior on the part of OneWest. Despite

       court orders for loan modification compliance and consumer credit report

       correction, OneWest failed to correct inaccuracies in its own records or those of

       consumer reporting agencies. In its aggressive campaign to collect claimed

       delinquencies, OneWest dispatched real estate agents to the Jarvis residence to

       encourage a short sale. As the trial court recognized, such conduct risks

       adverse consequences upon the physical or mental health of debtors. There is

       ample evidence from which the trial court could have inferred that the Jarvises

       were subjected to compensable inconvenience and frustration.



                                               Conclusion

       Court of Appeals of Indiana | Memorandum Decision 45A03-1501-MF-1 | June 23, 2015   Page 7 of 8
[14]   The trial court did not exceed its authority upon remand. The award of

       $100,000.00 as sanctions is within the discretion of the trial court.


[15]   Affirmed.


       Riley, J., and Barnes, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 45A03-1501-MF-1 | June 23, 2015   Page 8 of 8
