MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), this
Memorandum Decision shall not be
                                                                             FILED
regarded as precedent or cited before any                               Nov 30 2018, 9:22 am

court except for the purpose of establishing                                 CLERK
                                                                         Indiana Supreme Court
the defense of res judicata, collateral                                     Court of Appeals
                                                                              and Tax Court
estoppel, or the law of the case.


APPELLANTS PRO SE                                       ATTORNEY FOR APPELLEE
Willie Duncan                                           Kristin L. Durianski
Zeola Duncan                                            Codilis Law, LLC
Noblesville, Indiana                                    Merrillville, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Willie Duncan and Zeola                                 November 30, 2018
Duncan,                                                 Court of Appeals Case No.
Appellants,                                             18A-MF-1254
                                                        Appeal from the Hamilton Circuit
        v.                                              Court
                                                        The Honorable Paul Felix, Judge
U.S. ROF III Legal Title Trust                          Trial Court Cause No.
2015-1, by U.S. Bank National                           29C01-1703-MF-2959
Association, as Legal Title
Trustee,
Appellee.




Brown, Judge.




Court of Appeals of Indiana | Memorandum Decision 18A-MF-1254| November 30, 2018                 Page 1 of 13
[1]   Willie Duncan and Zeola Duncan, pro se, appeal the entry of summary

      judgment in favor of U.S. ROF III Legal Title Trust 2015-1, by U.S. Bank

      National Association, as Legal Title Trustee (the “Trust”). The Duncans raise

      a number of issues, which we consolidate and restate as whether the trial court

      erred in granting summary judgment in favor of the Trust. We affirm.


                                     Facts and Procedural History

[2]   On March 12, 2007, Zeola executed a promissory note evidencing a loan from

      Moore Financial Enterprises, Inc., doing business as Lenders Diversified

      (“Lenders Diversified”) in the original principal amount of $315,000 (the

      “Note”). That same day, the Duncans entered into a mortgage (the

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

      (“MERS”), as nominee for Lenders Diversified and its successors and assigns,

      granting a security interest in certain real property located in Hamilton County,

      Indiana, to secure repayment of the loan, which was recorded by the Hamilton

      County Recorder as document number 2007014786 on March 15, 2007. The

      Note was specifically endorsed by Lenders Diversified to CitiMortgage, Inc.

      (“CitiMortgage”) and endorsed by CitiMortgage in blank. Pursuant to

      mortgage assignments dated July 6, 2015, and recorded July 13, 2015, MERS

      as nominee for Lenders Diversified assigned and transferred the Mortgage to

      CitiMortgage, which in turn then assigned and transferred it to “PROF-2013-S3

      Legal Title Trust, by U.S. Bank National Association, as Legal Title Trustee”

      (“PROF-2013-S3”). Appellee’s Appendix Volume II at 26. PROF-2013-S3




      Court of Appeals of Indiana | Memorandum Decision 18A-MF-1254| November 30, 2018   Page 2 of 13
      assigned and transferred the Mortgage to the Trust by an Assignment of

      Mortgage (the “Assignment”), dated and recorded October 21, 2016.


[3]   The Mortgage provides in part:


                 1.    Payment of Principal, Interest, Escrow Items,
                 Prepayment Charges, and Late Charges. Borrower[1] shall pay
                 when due the principal of, and interest on, the debt evidenced by
                 the Note and any prepayment charges and late charges due under
                 the Note. Borrower shall pay funds for Escrow items pursuant to
                 Section 3.
                                                      *****
                 Lender[2] may return any payment or partial payment if the
                 payment or partial payment are insufficient to bring the Loan
                 current. Lender may accept any payment or partial payment
                 insufficient to bring the Loan current . . . but Lender is not
                 obligated to apply such payments at the time such payments are
                 accepted. . . . No offset or claim which Borrower might have
                 now or in the future against Lender shall relieve Borrower from
                 making payments due under the Note and this Security
                 Instrument or performing the covenants and agreements secured
                 by this Security Instrument.

      Id. at 12-13. The Mortgage provides that Borrower shall pay to Lender “on the

      day Periodic Payments are due under the Note, . . . a sum . . . to provide for

      payment of amounts due for: . . . (c) premiums for any and all insurance

      required by Lender under Section 5,” and states in part under the heading “5.




      1
          The Mortgage defines “Borrower” as the Duncans. Appellee’s Appendix Volume II at 10.
      2
          The Mortgage defines “Lender” as Lenders Diversified. Appellee’s Appendix Volume II at 10.



      Court of Appeals of Indiana | Memorandum Decision 18A-MF-1254| November 30, 2018                 Page 3 of 13
      Property Insurance” that Borrower shall “keep the improvements now existing

      or hereinafter erected on the Property insured against loss by fire, hazards

      included within the term ‘extended coverage,’ and any other hazards . . . for

      which Lender requires insurance”; that “[t]his insurance shall be maintained in

      the amounts (including deductible levels) and for the periods that Lender

      requires”; that “[i]f Borrower fails to maintain any of the coverages described

      above, Lender may obtain insurance coverage, at Lender’s option and

      Borrower’s expense”; and that any amounts disbursed by Lender under this

      section shall become “additional debt of Borrower” and “bear interest at the

      Note rate from the date of disbursement, and be payable, with such interest,

      upon notice from Lender to Borrower requesting payment.” Id. at 13-14.


[4]   The Mortgage further provides that, prior to acceleration, notice shall be given

      to Borrower which specifies the default by Borrower and the action required to

      cure it; a date, not less than thirty days from the date the notice is given to

      Borrower, by which the default must be cured; and that failure to cure the

      default on or before the date specified may result in acceleration of the sums

      secured by the Security Instrument. It states in part that, if the default is not

      cured on or before the date specified in the notice, “Lender at its option may

      require immediate payment in full of all sums secured by this Security

      Instrument without further demand and may foreclose this Security Instrument

      by judicial proceeding.” Id. at 20.


[5]   On March 28, 2017, the Trust filed a Complaint to Foreclose Mortgage against

      the Duncans and attached the Note, Mortgage, and Assignment. The


      Court of Appeals of Indiana | Memorandum Decision 18A-MF-1254| November 30, 2018   Page 4 of 13
Complaint alleged that the Duncans failed to tender monthly payments as

required by the Mortgage and Note, with the initial default occurring for the

month of October 2016, that the Trust was a “‘person entitled to enforce’ the

[Note] and is entitled to enforce the terms of the Mortgage,” and that the Trust

elected to declare the entire balance due and owing. Id. at 3. The Complaint

indicated that, as of March 28, 2017, the following sums were due and owing: a

balance on the Note of $278,983.20; accrued interest from September 1, 2016,

to March 28, 2017, totaling $6,389.86; reasonable attorney fees, title charges

and court costs; accrued late charges; and all expended funds prior to and

subsequent to the filing of the Complaint for payment of real estate taxes,

insurance, and any other necessary repairs, maintenance, assessments, and

costs. (Id.) The Complaint further alleged that the Trust was entitled to interest

after March 28, 2017, reasonable costs and attorney fees, and advances for real

estate taxes, insurance, and to preserve its security for the debt. (Id.) The Trust

requested the entry of a personal judgment against Zeola and an in rem

judgment in its favor in the sum of $285,373.06, that the court declare the

Mortgage to be a valid, first and subsisting lien on the property, and that an

order be entered foreclosing the Mortgage and directing the sale of the property

to satisfy the debt.3




3
  The Complaint also named Med-1 Solutions, LLC (“Med-1 Solutions”), as a defendant for any interest that
it may have had in the property pursuant to a judgment against Willie on December 22, 2016, in the amount
of $3,183.58 rendered in cause number 29D05-1611-SC-10161 in the Hamilton County Small Claims court.
It further named Preeti Singh, a/k/a Preetinder Singh, as a defendant for any interest he or she may have had
in the property under a mortgage in the amount of $35,000.00 dated March 12, 2007, and recorded on March


Court of Appeals of Indiana | Memorandum Decision 18A-MF-1254| November 30, 2018                Page 5 of 13
[6]   On November 3, 2017, the Trust filed a motion for summary judgment together

      with a designation of materials and memorandum in support of the motion.

      The Trust’s designated evidence includes an Affidavit in Support of Judgment

      by a foreclosure specialist of Fay Servicing, LLC (“Fay Servicing”), which

      states that the Trust was the holder of the Note, that Zeola defaulted pursuant

      to the terms of the Note by failing to tender the monthly payments when due,

      that the default has not been cured, that the Trust has elected to claim the entire

      balance due in accordance with the terms of the Mortgage and Note, and that

      the amount due on the loan, including interest from September 1, 2016, through

      September 28, 2017, late charges, and total advances made by the Trust, totaled

      $303,098.70. The Trust also designated an affidavit of attorney fees, costs, and

      expenses in the total amount of $3,093.67.


[7]   A December 1, 2017 entry in the chronological case summary (“CCS”)

      indicates that the Duncans filed “Addendum 11/29/17,” and states “[o]rder

      submitted,”4 and on December 12, 2017, the Trust filed a Reply to Defendants’




      15, 2007, in Hamilton County as document number 2007014787. The Trust alleged that both interests were
      subordinate and inferior to its interest.
      An April 3, 2017 entry in the chronological case summary (“CCS”) states that Med-1 Solutions was served,
      and the court’s May 9, 2018 Summary Judgment of Foreclosure found that Med-1 Solutions failed to appear
      and was defaulted. An April 12, 2017 CCS entry states “Party Served: . . . Singh, Preeti” and “Hamilton
      County Sheriff Return, Summons, TOD 4/10/17, mailed copy 4/11/17,” and a June 2, 2017 CCS entry
      indicates that Singh filed an answer to the Complaint, which is not included in the record on appeal.
      Appellants’ Appendix Volume II at 6. The court’s May 9, 2018 Summary Judgment of Foreclosure found
      Singh’s “rights and interests . . . inferior to the lien and interest” of the Trust. Id. at 17. Singh does not join
      in this appeal.
      4
       Neither party provides in their briefs on appeal citation to the record for a copy of either “Addendum
      11/29/17” or the court’s order. Appellants’ Appendix Volume II at 9. We observe that the Appellants’
      Appendix contains a copy of a letter written by the Duncans that bears an indecipherable file stamp and


      Court of Appeals of Indiana | Memorandum Decision 18A-MF-1254| November 30, 2018                       Page 6 of 13
      Response to Motion for Summary Judgment. Appellants’ Appendix Volume II

      at 9. On April 30, 2018, the court held a hearing on the motion for summary

      judgment, at which Willie presented oral argument and the court reviewed

      written material, which Willie presented, “as argument inasmuch as it may tend

      to show that the Plaintiff has not met its burden of proof.” Transcript at 8. On

      May 9, 2018, the court issued its Summary Judgment of Foreclosure in favor of

      the Trust, finding in part that $306,192.37 was due and owing to the Trust as a

      valid subsisting lien as set forth in its affidavits.


                                                  Discussion

[8]   The issue is whether the trial court erred in granting summary judgment in

      favor of the Trust. Although the Duncans are proceeding pro se, such litigants

      are held to the same standard 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) (citing Matter of G.P., 4 N.E.3d 1158 (Ind. 2014)).

      This Court will “not become an advocate for a party, or address arguments that

      are inappropriate or too poorly developed or expressed to be understood.” Basic

      v. Amouri, 58 N.E.3d 980, 984 (Ind. Ct. App. 2016), reh’g denied.


[9]   When reviewing a grant or denial of a motion for summary judgment our well-

      settled standard of review is the same as it is for the trial court: whether there is

      a genuine issue of material fact, and whether the moving party is entitled to




      which contains on the first page the words “Addendum November 29, 2017” underneath “June 29, 2017.”
      Id. at 42.



      Court of Appeals of Indiana | Memorandum Decision 18A-MF-1254| November 30, 2018          Page 7 of 13
       judgment as a matter of law. Goodwin v. Yeakle’s Sports Bar & Grill, Inc., 62

       N.E.3d 384, 386 (Ind. 2016). The party moving for summary judgment has the

       burden of making a prima facie showing that there is no genuine issue of

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

       law. Id. Once these requirements are met, the burden then shifts to the non-

       moving party to show the existence of a genuine issue by setting forth

       specifically designated facts. Id. Any doubt as to any facts or inferences to be

       drawn therefrom must be resolved in favor of the non-moving party. Id. A trial

       court’s grant of summary judgment is clothed with a presumption of validity,

       and the party who lost in the trial court has the burden of demonstrating that

       the grant of summary judgment was erroneous. Henderson v. Reid Hosp. &

       Healthcare Servs., 17 N.E.3d 311, 315 (Ind. Ct. App. 2014), trans. denied. We will

       affirm a trial court’s grant of summary judgment upon any theory or basis

       supported by the designated materials. Id.


[10]   The Duncans argue that the foreclosure ruling was “merely done on

       delinquency” rather than “on the eviden[ce] of the case.” Appellants’ Brief at

       4. They contend, without citation to authority, that the “focus of the case

       should ha[ve] been on who . . . caused the delinquency,” id. at 5, and state “[i]t

       is agreed that the loan is in delinquency” and “[w]hat is not agreed is: who

       caused the delinquency?” Appellants’ Reply Brief at 3. They further assert

       certain exhibits were “not allowed to be presented in the summary hearings,”

       the Trust filed for foreclosure “while FayServicing was correcting the escrow to

       adjust the monthly installment,” and that the “foreclosure filing violated the


       Court of Appeals of Indiana | Memorandum Decision 18A-MF-1254| November 30, 2018   Page 8 of 13
       notice [requirements of the] fair debt collection practices act.”5 Appellants’

       Brief at 3-4. The Trust maintains that there is no genuine issue of material fact

       and that the court properly granted summary judgment.


[11]   To the extent the Duncans fail to cite to relevant authority or relevant portions

       of the record or develop an argument with respect to the issues they attempt to

       raise on appeal, those arguments are waived. See Loomis v. Ameritech Corp., 764

       N.E.2d 658, 668 (Ind. Ct. App. 2002) (holding argument waived for failure to

       cite authority or provide cogent argument), reh’g denied, trans. denied. We

       additionally observe that the Duncans do not include, under separate headings,

       a statement of issues, a statement of case, or a statement of facts in accordance

       with a proper standard of review, and that, to the degree that the Duncans

       provide citations, they are not in compliance with Rule 22(C). See Indiana

       Appellate Rule 46(A).


[12]   To the extent that the Duncans argue that the grant of summary judgment in

       favor of the Trust is improper, the only authority they cite is to “15 USC

       1692:91 STAT.874:PUB.L.95-109(September 20, 1977 amended by

       100Stat.768, Public Law 99-361” and to “fair collection laws that require[] any




       5
         To the extent the Duncans argue that the trial court erred in not granting a motion to be heard by a jury and
       cite the Seventh Amendment of the United States Constitution, we observe that state law, including the state
       constitution and trial rules, governs whether a right to a jury trial exists in a suit brought in state court even if
       the cause of action arises under federal law, see Midwest Sec. Life Ins. Co. v. Stroup, 730 N.E.2d 163, 171 (Ind.
       2000) (citing federal authority), and further that Article 1, Section 20 of the Indiana Constitution “preserves
       the right to a jury trial only as it existed at common law, and a party is not entitled to a jury trial on equitable
       claims.” Lucas v. U.S. Bank, N.A., 953 N.E.2d 457, 460 (Ind. 2011) (citing Songer v. Civitas Bank, 771 N.E.2d
       61, 63 (Ind. 2002)).



       Court of Appeals of Indiana | Memorandum Decision 18A-MF-1254| November 30, 2018                        Page 9 of 13
debt collector to give thirty days’ notice of the intent to proceed into

foreclosure.” Appellants’ Brief at 3. Appellants’ Reply Brief at 3. We observe

that 15 U.S.C. § 1692g(a) provides in part that the “debt collector shall . . . send

the consumer a written notice containing . . . a statement that unless the

consumer, within thirty days after receipt of the notice, disputes the validity of

the debt, or any portion thereof, the debt will be assumed to be valid by the debt

collector.” 15 U.S.C. § 1692g(b) provides in part that:


        If the consumer notifies the debt collector in writing within the
        thirty-day period . . . that the debt, or any portion thereof, is
        disputed, . . . the debt collector shall cease collection of the debt,
        or any disputed portion thereof, until the debt collector obtains
        verification of the debt or a copy of a judgment, or the name and
        address of the original creditor, and a copy . . . is mailed to the
        consumer by the debt collector. Collection activities and
        communications that do not otherwise violate this subchapter
        may continue during the 30-day period referred to in subsection
        (a) unless the consumer has notified the debt collector in writing
        that the debt, or any portion of the debt, is disputed or that the
        consumer requests the name and address of the original creditor.

We note that the Appellants’ Appendix contains a copy of a Notice Pursuant to

Fair Debt Collection Practices Act, dated March 16, 2017, and addressed to

Willie, which states that “[u]nless you, within thirty days after receipt of this

Notice, dispute the validity of the debt, or any portion thereof, we will assume

that the debt is valid,” and that “[i]f you notify us in writing within thirty days,

after receipt of this Notice, that the debt, or any portion thereof, is disputed, we

will obtain verification of the debt and a copy . . . will be mailed to you.”

Appellants’ Appendix Volume II at 21. We further note that the Appellants’


Court of Appeals of Indiana | Memorandum Decision 18A-MF-1254| November 30, 2018   Page 10 of 13
       Appendix includes a copy of the Duncans’ letter, dated April 12, 2017, and

       addressed to the Trust, which states “Fay Servicing . . . caused this mortgage to

       be late in payments,” as well as a copy of a letter dated April 24, 2017, and

       addressed to the Duncans, that states that it serves as a verification of the debt,

       that it enclosed reinstatement and payoff quotes, copies of the Mortgage, Note,

       assignments, loan modification, and a payment history, and that it referred the

       Duncans to “the letter you received from Fay Servicing’s Compliance

       Department dated February 27, 2017” that “provides a complete history of the

       circumstances giving rise to your current complaint.” Id. at 22. Accordingly,

       we cannot say summary judgment was improper on this basis.


[13]   The record reveals that the Note indicates that Zeola promised to pay the

       lender, identified as Lenders Diversified, the principal amount of the loan plus

       interest. The Note expressly provided that the lender could transfer the Note.

       The endorsements attached to the Note show it was endorsed by Lenders

       Diversified to CitiMortgage and by CitiMortgage in blank. The recorded

       Mortgage, executed by the Duncans in favor of MERS as nominee for Lenders

       Diversified and its successors and assigns, granted a security interest in the

       property to secure repayment of the loan, and was assigned through a series of

       mortgage assignments to the Trust. The Trust designated an affidavit by the

       foreclosure specialist of Fay Servicing, which states that the Trust was the

       holder of the Note, that Zeola defaulted pursuant to the terms of the Note by

       failing to tender the monthly payments when due, that the default was not

       cured, that the Trust elected to claim the entire balance due in accordance with



       Court of Appeals of Indiana | Memorandum Decision 18A-MF-1254| November 30, 2018   Page 11 of 13
       the terms of the Mortgage and Note, and that the amount due on the loan,

       including interest from September 1, 2016, through September 28, 2017, late

       charges, and total advances made by the Trust, totaled $303,098.70. The

       designated evidence also includes an affidavit of attorney fees, costs, and

       expenses which states that the Trust incurred a total of $3,093.67. The

       Duncans do not dispute that the “loan is in delinquency.” Appellants’ Reply

       Brief at 3. The designated evidence supports the court’s determination that the

       Duncans were in default under the terms of the Note and Mortgage.


[14]   The Duncans also cite to “Exhibit 4” for the propositions that Fay Servicing

       “had put two insurances on the property” and “admitted to sending back the

       installment which began the delinquency.” Appellants’ Brief at 4. Even

       assuming the February 7, 2017 letter marked with the words “Exhibit 4” in the

       Appellants’ Appendix was designated, the letter states in part “[t]he account

       currently displays . . . a total outstanding monthly installment balance of

       $10,632.69,” “[b]e advised that payment funds were returned to you . . .

       because the account was in a pre-foreclosure status at the time as it was more

       than sixty days past due,” and “[a]s such, please understand that we could only

       accept the full amount due to cure the default.” Appellants’ Appendix Volume

       II at 30. The Mortgage provides that Borrower shall maintain property

       insurance “in the amounts (including deductible levels) and for the periods that

       Lender requires,” that if Borrower fails to maintain the coverage, Lender “may

       obtain insurance coverage, at Lender’s option and Borrower’s expense,” and

       that any amounts disbursed by Lender “shall become additional debt of



       Court of Appeals of Indiana | Memorandum Decision 18A-MF-1254| November 30, 2018   Page 12 of 13
       Borrower” and “bear interest at the Note rate from the date of disbursement,

       and be payable, with such interest, upon notice from Lender to Borrower

       requesting payment.” Appellee’s Appendix Volume II at 14. The Mortgage

       further provides that the Lender “may return any payment or partial payment if

       the payment or partial payment are insufficient to bring the Loan current” and

       “is not obligated to apply such payments at the time such payments are

       accepted” and that no offset or claim which Borrower might have “shall relieve

       Borrower from making payments due under the Note and this Security

       Instrument or performing the covenants and agreements secured by this

       Security Instrument.” Id. at 12-13. We conclude that the trial court did not err

       in granting summary judgment in favor of the Trust.


                                                  Conclusion

[15]   For the foregoing reasons, we affirm the rulings of the trial court and the entry

       of summary judgment in favor of the Trust.


[16]   Affirmed.


       Altice, J., and Tavitas, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 18A-MF-1254| November 30, 2018   Page 13 of 13
