      MEMORANDUM DECISION
      Pursuant to Ind. Appellate Rule 65(D),                                      FILED
      this Memorandum Decision shall not be                                  Aug 23 2019, 5:32 am
      regarded as precedent or cited before any
                                                                                  CLERK
      court except for the purpose of establishing                            Indiana Supreme Court
                                                                                 Court of Appeals
      the defense of res judicata, collateral                                      and Tax Court

      estoppel, or the law of the case.


      ATTORNEYS FOR APPELLANTS                                 ATTORNEYS FOR APPELLEE
      J.F. Beatty                                              Kurt V. Laker
      Kathryn Merritt-Thrasher                                 Mark S. Gray
      Landman Beatty, Lawyers                                  Doyle & Foutty, P.C.
      Indianapolis, Indiana                                    Indianapolis, Indiana



                                                 IN THE
          COURT OF APPEALS OF INDIANA

      Drake Investments, LTD and                               August 23, 2019
      Paul D. Huntley,                                         Court of Appeals Case No.
      Appellants-Defendants,                                   18A-PL-2775
                                                               Appeal from the Marion Superior
              v.                                               Court
                                                               The Honorable Cynthia Ayers,
      Peter Ballatan,                                          Judge
      Appellee-Plaintiff                                       Trial Court Cause No.
                                                               49D04-1709-PL-34217



      May, Judge.


[1]   Drake Investments and Paul D. Huntley (“Doug”) (collectively “Appellants”)

      appeal the trial court’s entry of summary judgment in favor of Peter Ballatan.

      Appellants raise two issues on appeal, which we restate as whether the trial

      Court of Appeals of Indiana | Memorandum Decision 18A-PL-2775 | August 23, 2019                 Page 1 of 15
      court erred in denying their motion for summary judgment and granting

      Ballatan’s motion for summary judgment. We affirm.



                        Facts and Procedural History
[2]   On September 28, 2007, Ballatan obtained a judgment in the amount of

      $125,438.43 against Joanne Huntley (“Joanne”) in a civil case, Cause No.

      49D03-0403-PL-000625 (“Cause 0625”). The judgment represented lost rental

      income and travel expenses incurred by Ballatan in a real estate dispute with

      Joanne. At the time of that dispute, Joanne owned four parcels of land in

      Indianapolis, Indiana: 460 North Kealing Avenue; 6464 Brookville Road; 5235

      East Washington Street; and 5269 East Washington Street (collectively,

      “Properties”).


[3]   However, while Cause 0625 was pending, Joanne purported to grant mortgages

      on each of the Properties to her son, Doug. The mortgages were executed on

      March 1, 2007, via three mortgage documents. The mortgage documents

      consist of pre-printed forms with blank spaces for the parties to insert the

      requisite information. Each document consisted of one substantive page.


[4]   Joanne and Doug completed the documents by hand and had them notarized.

      The mortgage documents indicate that Joanne agreed to pay Doug $80,000.00

      secured by the Kealing Avenue property, $250,000.00 secured by the Brookville

      Road property, and $500,000.00 secured by the two Washington Street

      properties (hereinafter collectively, “Huntley Mortgages”). Each document


      Court of Appeals of Indiana | Memorandum Decision 18A-PL-2775 | August 23, 2019   Page 2 of 15
      states that Joanne “mortgage[s] and warrant[s] to Paul Douglas Huntley” the

      Properties. (Appellants’ App. Vol. II at 131, 134, & 137.) The boilerplate

      language of each document states


              the mortgagor expressly agree [sic] to pay the sum of money
              above secured, without relief from valuation or appraisement
              laws; and upon failure to pay any one of said notes, or any part
              thereof, at maturity, or the interest thereon, or any part thereof,
              when due, or the taxes or insurance as hereinafter stipulated,
              then all of said notes are to be due and collectible, and this
              mortgage may be foreclosed accordingly. And it is further
              expressly agreed, that until all of said notes are paid, said
              mortgagor will keep all legal taxes and charges against said
              premises paid as they become due, and will keep the buildings
              thereon insured for the benefit of the mortgagee, as h [sic]
              interest may appear and the policy duly assigned to the
              mortgagee, to the amount of                 [sic] Dollars, and failing
              to do so, said mortgagee, may pay said taxes or insurance, and
              the amount so paid, with per cent interest thereon, shall be a part
              of the debt secured by this mortgage.


      Id.


[5]   In his affidavit designated at summary judgment, Doug averred Joanne

      “mortgaged to me the properties . . . in exchange for me taking care of her

      living expenses, including making monthly payment to her lender for her

      personal residence in Johnson County, ensuring that all property taxes,

      insurance and her other daily living expenses were paid timely.” (Id. at 108 ¶




      Court of Appeals of Indiana | Memorandum Decision 18A-PL-2775 | August 23, 2019   Page 3 of 15
      7.) 1 On or about August 27, 2008, Joanne transferred ownership in the

      Properties from herself as an individual to herself as trustee of the Joanne B.

      Huntley Trust. The purported mortgage interests conveyed by the Huntley

      Mortgages were not recorded until October 15, 2009.


[6]   On February 17, 2011, Doug paid Joanne $30,000.00, and Joanne transferred

      her ownership interests in the Properties to Doug, who purchased the Properties

      for investment purposes. On May 22, 2017, Doug transferred his ownership

      interest in the Properties to Drake Investments, LTD. Doug is the president of

      Drake Investments.


[7]   On September 7, 2017, Ballatan filed his complaint to renew and foreclose

      judgment lien against real property from Cause 0625. Doug asserted in his

      affidavit that he did not know about Ballatan’s judgment in Cause 0625 until

      Ballatan filed suit on September 7, 2017. Joanne died on September 25, 2017.

      She did not make any payment to Ballatan toward satisfaction of the judgment

      before her death.




      1
          The Appellants’ Brief describes the arrangement as such:

                The undisputed material fact is that the Huntley Mortgages secured a debt owed by
                Joanne Huntley to Doug Huntley. While the specific nomenclature is not used, it
                appears from the undisputed facts the Huntley Mortgages were intended to serve as
                ‘reverse mortgages’ in which the Real Estate at Issue would secure payments made by
                Doug Huntley on behalf of Joanne Huntley as part of her retirement and/or estate plan.


      (Appellants’ Br. at 16 n.5.)

      Court of Appeals of Indiana | Memorandum Decision 18A-PL-2775 | August 23, 2019                    Page 4 of 15
[8]   Ballatan moved for summary judgment on April 3, 2018. Appellants responded

      to Ballatan’s motion for summary judgment and cross-moved for summary

      judgment on June 2, 2018. The trial court held a hearing on the cross-motions

      for summary judgment on September 25, 2018. The trial court issued findings,

      granted Ballatan’s motion for summary judgment, and denied Appellants’

      cross-motion for summary judgment on October 23, 2018. The trial court

      ordered the Properties be sold and the proceeds used to satisfy the sums due to

      Ballatan.



                            Discussion and Decision
[9]   When reviewing the grant or denial of a motion for summary judgment, we

      apply the same standard as the trial court: whether there is a genuine issue of

      material fact and whether the moving party is entitled to judgment as a matter

      of law. Monroe Guar. Ins. Co. v. Magwerks Corp., 829 N.E.2d 968, 973 (Ind.

      2005). We grant summary judgment “only if the evidence sanctioned by

      Indiana Trial Rule 56(C) shows that there is no genuine issue of material fact

      and the moving party deserves judgment as a matter of law.” Id. Further, we

      construe all evidence in favor of the nonmoving party and resolve all doubts as

      to the existence of a material issue of fact against the moving party. Id. While

      the moving party must first put forth evidence to support the motion, “the

      opposing party may not rest on his pleadings, but must set forth specific facts,

      using supporting materials contemplated by Trial Rule 56, which demonstrate

      that summary judgment is not appropriate.” Conrad v. Waugh, 474 N.E.2d 130,


      Court of Appeals of Indiana | Memorandum Decision 18A-PL-2775 | August 23, 2019   Page 5 of 15
       134 (Ind. Ct. App. 1985). “A genuine issue of material fact exists where facts

       concerning an issue which would dispose of the litigation are in dispute or

       where the undisputed material facts are capable of supporting conflicting

       inferences on such an issue.” Poyser v. Peerless, 775 N.E.2d 1101, 1105 (Ind. Ct.

       App. 2002).


[10]   We do not resolve questions of credibility or weigh evidence at the summary

       judgment stage of proceedings. See Kader v. State, 1 N.E.3d 717, 727 (Ind. Ct.

       App. 2013) (“Assessments of credibility and weight are the province of the fact-

       finder at trial, not the trial court at summary judgment.”). Summary judgment

       is not meant to be a substitute for trial and should not be granted merely

       because the party appears likely to prevail at trial. Hughley v. State, 15 N.E.3d

       1000, 1005 (Ind. 2014).


[11]   We do not modify our standard of review when the parties make cross motions

       for summary judgment. State Auto Ins. Co. v. DMY Realty Co., LLP, 977 N.E.2d

       411, 419 (Ind. Ct. App. 2012). “Instead, we must consider each motion

       separately to determine whether the moving party is entitled to judgment as a

       matter of law.” Id. The trial court’s entry, in its summary judgment order, of

       findings of fact and conclusions of law does not change our standard of review.

       Id. We are not bound by the trial court’s findings of fact and conclusions of

       law. Id. However, they may aid our review. Id.




       Court of Appeals of Indiana | Memorandum Decision 18A-PL-2775 | August 23, 2019   Page 6 of 15
                                    Validity of Huntley Mortgages
[12]   The parties do not dispute that Ballatan’s judgment is a valid lien against the

       Properties pursuant to Indiana Code section 34-55-9-2. 2 However, Appellants

       assert that Doug’s purported mortgage interests should take priority over

       Ballatan’s judgment lien, because Indiana law places judgment liens

       subordinate to other liens. See Huntingburg Prod. Credit Ass’n v. Griese, 456

       N.E.2d 448, 452 (Ind. Ct. App. 1983) (“Liens for judgments are subordinate to

       all prior legal or equitable liens[.]”). Ballatan asserts the Huntley Mortgages

       cannot have priority over his judgment lien because these purported mortgages

       are invalid.


[13]   A “mortgage” is defined as a “conveyance of title to property that is given as

       security for the payment of a debt or the performance of a duty and that will

       become void upon payment or performance according to the stipulated terms.”

       MORTGAGE, Black’s Law Dictionary (11th ed. 2019). The term “mortgage”

       is also used to refer to the instrument specifying the terms of such a transaction.

       Id. In Indiana, the proper form for mortgages is defined by a statute that states:


                A mortgage of land that is:


                worded in substance as “A.B. mortgages and warrants to C.D.”
                (here describe the premises) “to secure the repayment of” (here




       2
         That statute provides, in relevant part: “All final judgments for the recovery of money or costs . . . constitute
       a lien upon real estate and chattels real liable to execution in the county where the judgment has been duly
       entered and indexed.” Ind. Code § 34-55-9-2.

       Court of Appeals of Indiana | Memorandum Decision 18A-PL-2775 | August 23, 2019                       Page 7 of 15
               recite the sum for which the mortgage is granted, or the notes or
               other evidences of debt, or a description of the debt sought to be
               secured, and the date of the repayment); and


               dated and signed, sealed, and acknowledged by the grantor;


               is a good and sufficient mortgage to the grantee and the grantee’s
               heirs, assigns, executors, and administrators, with warranty from
               the grantor (as defined in IC 32-17-1-1) and the grantor’s legal
               representatives of perfect title in the grantor and against all
               previous encumbrances. However, if in the mortgage form the
               words ‘and warrant’ are omitted, the mortgage is good but
               without warranty.


       Ind. Code § 32-29-1-5.


[14]   All mortgages must be secured by a debt. Plummer & Co., Inc. v. Nat’l Oil & Gas.

       Inc., 642 N.E.2d 291, 292 (Ind. Ct. App. 1994), trans. denied. The debt need not

       be described with literal accuracy but it “must be correct so far as it goes, and

       full enough to direct attention to the sources of correct information in regard to

       it, and be such as not to mislead or deceive, as to the nature or amount of it, by

       the language used.” Bowen v. Ratcliff, 39 N.E. 860, 862 (Ind. 1895). It is

       necessary for the parties to the mortgage to correctly describe the debt “so as to

       preclude the parties from substituting debts other than those described for the

       mere purpose of defrauding creditors.” Plummer & Co., Inc., 642 N.E.2d at 292.

       As our federal sister court has observed, “most Indiana cases have examined

       the description of the debt as a whole to decide whether it puts a potential

       purchaser on in essence inquiry notice of an encumbrance, and whether it is


       Court of Appeals of Indiana | Memorandum Decision 18A-PL-2775 | August 23, 2019   Page 8 of 15
       specific enough to prevent the substitution of another debt.” In re Kraft, LLC,

       429 B.R. 637, 653 (Bankr. N.D. Ind. 2010) (emphasis in original).


[15]   In SPCP Group, LLC v. Dolson, Inc., Earlene Holland owned four lots in Jasper,

       Indiana. 934 N.E.2d 771, 772-773 (Ind. Ct. App. 2010). She leased the

       property to Dolson, Inc., and Dolson’s president and secretary/treasurer,

       Shanna and Maurice Doll, signed the lease. Id. at 773. On December 24, 2001,

       Holland and Dolson purported to execute a new mortgage in favor of Terre

       Haute First National Bank for the purpose of refinancing. Id. The mortgage

       document described the secured debt by referencing a promissory note dated

       December 27, 2001, and executed by the two Dolls and C. Wayne Thompson.

       Id. The Dolls executed a promissory note, but Thompson did not execute the

       note. Id. at 774. Terre Haute First National Bank assigned its interests to

       SPCP, and SPCP initiated a foreclosure action against Holland and others. Id.

       The trial court granted summary judgment in favor of Holland and against

       Dolson after concluding the December 24, 2001, mortgage was invalid because

       the debt was not accurately described. Id. at 775.


[16]   On appeal, we first assessed the accuracy of the description of the debt and

       concluded the description was inaccurate because Thompson did not execute

       the note and therefore was not a primary obligor. Id. at 776. Thompson was a

       guarantor rather than a co-maker of the note. Id. Next, we looked to see

       whether the inaccuracy was sufficiently material to mislead or deceive as to the

       nature and amount of the debt. Id. We concluded that it was sufficiently

       material to mislead because it permitted SPCP to release Thompson while

       Court of Appeals of Indiana | Memorandum Decision 18A-PL-2775 | August 23, 2019   Page 9 of 15
       seeking recovery of the debt from Holland. Id. at 777. Also, Thompson’s status

       as guarantor rather than co-maker of the note altered Holland’s remedies

       against Thompson in the event of default. Id.


[17]   The Huntley Mortgage documents describe three debts Joanne purportedly

       owed to Doug as debts for $80,000.00; $250,000.00; and $500,000.00

       respectively. The Huntley Mortgage documents refer to notes evidencing these

       debts, (see Appellants’ App. Vol. II at 131, 134, & 137 (“[M]ortgagor expressly

       agrees to pay the sum of money secured, without relief from valuation or

       appraisement laws; and upon failure to pay any one of said notes, or any part

       thereof…then all of said notes are to be due and collectible.”)), but Doug did

       not designate the notes purportedly referred to in the Huntley Mortgage

       documents. Instead, Doug’s affidavit and his averments in his appellate brief

       reveal the true nature of the debts – the mortgages were not meant to secure

       monetary loans he gave to Joanne; rather, the amounts listed represented

       expected future expenses Doug would incur in covering Joanne’s living

       expenses. (See Appellants’ App. Vol II at 108 ¶ 7.) See supra n.1.


[18]   Like in SPCP Group, LLC, the Huntley Mortgage documents fail to accurately

       describe the debt. The Huntley Mortgage documents describe the debt in a

       misleading and deceiving manner because, on their face, Joanne “expressly

       agree[s] to pay the sum of money above secured.” (Appellants’ App. Vol. II at

       131, 134, & 137.) However, Joanne did not owe money to Doug; Doug was

       paying Joanne’s future living expenses. Further, the Huntley Mortgage

       documents do not include a date of repayment as required by Indiana Code

       Court of Appeals of Indiana | Memorandum Decision 18A-PL-2775 | August 23, 2019   Page 10 of 15
       section 32-29-1-5. Therefore, one cannot tell from looking at the Huntley

       Mortgage documents when Doug’s purported mortgage interest in the

       Properties was scheduled to expire. See In re Canaday, 376 B.R. 260, 270

       (Bankr. N.D. Ind. 2007) (listing failure to include the date of repayment secured

       by a purported mortgage in the mortgage instrument as one of the reasons a

       purported mortgage did not satisfy the requirements of the statute). In short,

       the descriptions of the debts in the Huntley Mortgage documents are

       inaccurate.


[19]   Next, we evaluate whether the inaccuracies are sufficiently material to mislead

       or deceive as to the nature and amount of the debt. The Huntley Mortgage

       documents make no mention of Doug’s agreement to cover his mother’s living

       expenses in exchange for mortgage interests in the Properties. Further, the

       Huntley Mortgage documents do not connect the debts described therein with

       the expenses intended to be incurred in covering Joanne’s living expenses. The

       descriptions of the debts are so vague that they do not preclude Joanne and

       Doug from substituting other debts for the debts described. Thus, the

       inaccuracies contained in the Huntley Mortgage documents are materially

       misleading regarding the nature and amount of the debt, and we therefore hold

       the Huntley Mortgages are invalid. See SPCP Group, LLC, 934 N.E.2d at 779

       (holding plaintiff could not foreclose on mortgage because it contained an




       Court of Appeals of Indiana | Memorandum Decision 18A-PL-2775 | August 23, 2019   Page 11 of 15
       inaccurate and materially misleading description of the debt it purported to

       secure). 3


                                      Bona Fide Purchaser Status
[20]   Nevertheless, we must still evaluate whether a genuine issue of material fact

       exists regarding whether Doug and/or Drake Investments were bona fide

       purchasers when they took ownership of the Properties. The bona fide

       purchaser doctrine protects a bona fide purchaser against prior interests in land.

       Clarkson v. Neff, 878 N.E.2d 240, 244 (Ind. Ct. App. 2007), trans. denied. A bona

       fide purchaser buys real estate “in good faith, for . . . valuable consideration,

       and without notice of the outstanding rights of others.” Keybank Nat. Ass’n v.

       NBD Bank, 699 N.E.2d 322, 327 (Ind. Ct. App. 1998). It is an equitable

       doctrine that recognizes “every reasonable effort should be made to protect a

       purchaser of legal title for . . . valuable consideration without notice of a legal

       defect.” Id. A person may have either constructive or actual notice of prior

       interests in the land. Id. “Constructive notice is provided when a deed or

       mortgage is properly acknowledged and placed on the record as required by

       statute.” Id. Actual notice occurs


                when notice has been directly and personally given to the person
                to be notified. Additionally, actual notice may be implied or
                inferred from the fact that the person charged had means of



       3
        For the same reasons we reject Appellants’ arguments that these documents are legal mortgages, we also
       decline to hold the Huntley Mortgages could survive as equitable mortgages. 59 C.J.S. Mortgages § 148 (“A
       mortgage[,] to be effective, must describe or identify the debt or liability intended to be secured thereby.”)

       Court of Appeals of Indiana | Memorandum Decision 18A-PL-2775 | August 23, 2019                    Page 12 of 15
               obtaining knowledge which he did not use. Whatever fairly puts
               a reasonable, prudent person on inquiry is sufficient notice to
               cause that person to be charged with actual notice, where the
               means of knowledge are at hand and he omits to make the
               inquiry from which he would have ascertained the existence of a
               deed or mortgage. Thus, the means of knowledge combined with
               the duty to utilize that means equates with knowledge itself.
               Whether knowledge of an adverse interest will be imputed in any
               given case is a question of fact to be determined objectively from
               the totality of the circumstances.


       Id. (internal citations omitted).


[21]   Ballatan contends that because his judgment against Joanne was a matter of

       public record, Doug should be charged with knowledge of the judgment lien. A

       judgment lien is statutory. Lobb v. Hudson-Lobb, 913 N.E.2d 288, 295 (Ind. Ct.

       App. 2009). The statute provides: “All final judgments for the recovery of

       money . . . constitute a lien upon real estate . . . in the county where the

       judgment has been duly entered and indexed in the judgment docket as

       provided by law . . . after the time the judgment was entered and indexed.”

       Ind. Code § 34-55-9-2. Here, the judgment was duly entered and indexed in the

       judgment docket of the Marion County Clerk. (See App. Vol. II at 200-204).

       Therefore, the judgment lien became effective when it was entered and indexed.


[22]   Doug avers he did not know about Ballatan’s judgment lien before Ballatan

       filed his complaint in the case at bar on September 7, 2017. Nevertheless, the

       records of the Marion County Clerk are available for public inspection. “Public

       records are notice to the world, and it is not necessary to prove that a man has


       Court of Appeals of Indiana | Memorandum Decision 18A-PL-2775 | August 23, 2019   Page 13 of 15
       examined a record in order to bind him with notice of its contents.” Keesling v.

       Doyle, 35 N.E. 126, 127 (Ind. Ct. App. 1893). 4


[23]   Doug does not argue or designate any facts that would have called into question

       his ability to obtain knowledge of the judgment. Therefore, as a matter of law,

       knowledge of the judgment can be imputed to him. See State v. Cox, 377 N.E.2d

       1389, 1392 (Ind. Ct. App. 1978) (holding that subsequent purchaser acquired

       land with notice of and subject to State’s judgment lien when State’s lien was

       recorded in judgment docket and order book). As Doug’s assertion that he did

       not know about the judgment lien does not create a genuine issue of material

       fact about whether knowledge of the judgment lien can be imputed to him,

       summary judgment for Ballatan was not erroneous. See Herron v. First Financial

       Bank, N.A., 91 N.E.3d 994, 999 (Ind. Ct. App. 2017) (holding judgment lien

       that attached to property has priority over subsequent mortgage). 5



                                            Conclusion
[24]   The Huntley Mortgages are invalid because they fail to accurately describe the

       debts to be repaid and the inaccuracies are sufficiently material to mislead or




       4
         As Ballatan observes, if knowledge of a public record cannot be imputed to a subsequent purchaser, “then
       any purchaser subsequent to the attachment of the judgment could defeat the lien merely by ignoring
       (declining to search) the county judgment docket.” (Appellee’s Br. at 13.)
       5
        Because Doug is the president of Drake Investments, it also could not be a bona fide purchaser, and
       summary judgment for Ballatan was appropriate against Drake Investments for the same reasons it was
       appropriate against Doug.

       Court of Appeals of Indiana | Memorandum Decision 18A-PL-2775 | August 23, 2019                Page 14 of 15
       deceive others regarding the nature of the debt. 6 Additionally, Doug was not a

       bona fide purchaser when he purchased the Properties and subsequently

       conveyed them to Drake Investments. Therefore, we affirm the trial court’s

       grant of summary judgment to Ballatan.


[25]   Affirmed.


       Mathias, J., and Brown, J., concur.




       6
         Because we hold the Huntley Mortgages were invalid from the beginning, we need not address whether
       Ballatan is barred from asserting the Huntley Mortgages are fraudulent, whether Doug’s mortgage interests
       merged with his ownership interests when he bought the Properties, or whether Doug is a bona fide
       mortgagee who takes free of later claims. The Huntley Mortgages simply do not have priority over Ballatan’s
       judgment lien because the purported mortgages are invalid.

       Court of Appeals of Indiana | Memorandum Decision 18A-PL-2775 | August 23, 2019               Page 15 of 15
