                                                                            FILED
                                                                       Mar 20 2018, 9:01 am

                                                                            CLERK
                                                                        Indiana Supreme Court
                                                                           Court of Appeals
                                                                             and Tax Court




ATTORNEYS FOR APPELLANT                                  ATTORNEYS FOR APPELLEE
Peter M. Yarbro                                          Shannon O’Connell Egan
Fred R. Hains                                            Graydon Head & Ritchey LLP
Hains Law Firm, LLP                                      Ft. Mitchell, Kentucky
South Bend, Indiana                                      Harry W. Cappel
                                                         Graydon Head & Ritchey LLP
                                                         Cincinnati, Ohio



                                           IN THE
    COURT OF APPEALS OF INDIANA

Thomas J. Feehan and Michelle                            March 20, 2018
Ceuterick-Feehan,                                        Court of Appeals Case No.
Appellants-Defendants,                                   71A03-1710-MF-2480
                                                         Appeal from the St. Joseph Circuit
        v.                                               Court
                                                         The Honorable John E. Broden,
CitiMortgage, Inc.,                                      Judge
Appellee-Plaintiff.                                      The Honorable Larry L. Ambler,
                                                         Magistrate
                                                         Trial Court Cause No.
                                                         71C01-1011-MF-617




Brown, Judge.




Court of Appeals of Indiana | Opinion 71A03-1710-MF-2480 | March 20, 2018                       Page 1 of 17
[1]   Thomas J. Feehan and Michelle Ceuterick-Feehan (the “Feehans”) appeal the

      trial court’s entry of summary judgment in favor of CitiMortgage, Inc.,

      (“CitiMortgage”) and its denial of their motion to strike. We affirm.


                                      Facts and Procedural History

[2]   In December 2002, Thomas Feehan executed a promissory note evidencing a

      loan from ABN AMRO Mortgage Group, Inc., (“ABN AMRO”) in the

      original principal amount of $170,000 (the “Note”), and the Feehans executed a

      mortgage (the “Mortgage”) in favor of ABN AMRO, granting a security

      interest in certain real property in St. Joseph County, Indiana, to secure

      repayment of the loan which was recorded with the St. Joseph County

      Recorder. CitiMortgage is the successor by merger to ABN AMRO. Thomas

      Feehan subsequently stopped making required payments under the Note.

      CitiMortgage sent a letter, dated September 28, 2009, to Thomas Feehan which

      stated that payments had not been received as required by the Note and

      Mortgage, that to cure the default he must pay the past due amount of

      $8,990.70 by October 29, 2009, and that failure to cure the default may result in

      the acceleration of all sums due.


[3]   In November 2010, CitiMortgage filed a Complaint on Note and to Foreclose

      Mortgage alleging that it is the successor to ABN AMRO, that it is a person

      entitled to enforce the Note and is entitled to enforce the Mortgage, that default

      was made in the payment of the monthly installment due under the Note and

      Mortgage beginning on May 1, 2009, and on the first day of each month after

      that date, and that the outstanding principal balance of $155,245.55 together
      Court of Appeals of Indiana | Opinion 71A03-1710-MF-2480 | March 20, 2018   Page 2 of 17
      with all accrued interest, late charges, expenses, and advances as provided in

      the Note had been declared to be and was immediately due and payable, and

      CitiMortgage requested judgment against Thomas Feehan and a decree of

      foreclosure with respect to the property. The court issued an Order for

      Settlement Conference, signed on December 20, 2010, which stated that the

      Feehans had requested a settlement conference, that a settlement conference

      was scheduled for February 3, 2011, that CitiMortgage shall advise the

      facilitator, not later than ten days prior to the conference, as to whether Thomas

      Feehan was eligible for a loan modification under the Home Affordable

      Modification Program (“HAMP”), and that CitiMortgage “shall have present

      at the settlement conference all persons with all authority needed to enter into a

      loan modification under HAMP and any other means by which a settlement of

      any type may be reached,” and that only the facilitator was authorized to file

      reports on the results of the settlement conference. Appellants’ Appendix

      Volume 2 at 52.


[4]   In an order signed on May 17, 2013, the court stated that it had held a status

      hearing on that date at which the parties appeared by counsel and the facilitator

      appeared. The order set forth dates by which CitiMortgage was to provide the

      Feehans’ counsel with a complete list of documents it required to complete an

      evaluation of the loan, by which the Feehans were required to submit the

      completed documentation, and by which CitiMortgage was required to advise

      the Feehans’ counsel as to the status of its review of the loan for modification.

      On September 27, 2013, CitiMortgage filed a status report with the court stating


      Court of Appeals of Indiana | Opinion 71A03-1710-MF-2480 | March 20, 2018   Page 3 of 17
      that the parties held a status conference on May 17, 2013, to discuss mortgage

      modification options, that attempts at modification had been unsuccessful, and

      that it intended to proceed with the foreclosure.


[5]   The Feehans’ counsel sent a letter dated February 7, 2014, to the settlement

      conference facilitator which stated in part that Thomas Feehan repeatedly

      provided the documentation and information requested by CitiMortgage; that

      in January 2011 CitiMortgage disclosed they were a servicer of the loan and

      took instructions from Federal Home Loan Bank of Chicago (“FHLBC”), an

      investor; that no one with decision-making authority from FHLBC attended a

      June 2011 settlement conference; that CitiMortgage repeatedly promised to

      provide proposed loan modification terms, but never came through with an

      offer and that CitiMortgage’s attorney advised that FHLBC routinely took

      more than six months to make a decision on loan modifications and this

      appeared to be a calculated strategy. The letter also stated that a second

      settlement conference originally scheduled for August 1, 2011, was postponed

      at the suggestion of CitiMortgage’s counsel as they believed there was no way

      FHLBC would have a response to the modification application; that Thomas

      Feehan resubmitted documentation and information following requests by

      CitiMortgage in August and September of 2011, February and July of 2012,

      and May 2013; that at no point has CitiMortgage attended a settlement

      conference with a person with authority to enter into a loan modification; and

      that CitiMortgage’s filing of its status report with the court on September 27,

      2013, was a violation of the court’s December 20, 2010 order that status reports


      Court of Appeals of Indiana | Opinion 71A03-1710-MF-2480 | March 20, 2018   Page 4 of 17
      be filed with the facilitator. The letter stated that under no standard could the

      actions of CitiMortgage and FHLBC be interpreted as a good faith effort at

      working toward a solution.


[6]   In February or March 2014, CitiMortgage filed a motion for summary

      judgment on its complaint. On March 31, 2014, the Feehans filed a motion to

      strike and response to CitiMortgage’s summary judgment motion together with

      a memorandum of law. In his affidavit, designated by the Feehans, Thomas

      Feehan stated in part that he and his wife had made a timely request for a

      settlement conference; “[m]y wife and I attended multiple attempted settlement

      conference with” CitiMortgage; “[h]owever, we were repeatedly told by

      Citimortgage’s lawyers that no person with actual settlement authority was

      available, either in person, or by telephone or any other means, who could

      agree to, or offer, any settlement of any type”; CitiMortgage “made numerous

      and repeated demands on my wife and I to provide financial information which

      it claimed was necessary to make a decision on a potential modification of our

      mortgage”; and CitiMortgage “would repeatedly delay any decision on

      modification and then insist that our financial information was stale, and new

      financial information was required.” Appellants’ Appendix Volume 2 at 48-49.

      In their memorandum, the Feehans argued in part that, due to CitiMortgage’s

      conduct during the settlement conference process, the court should deny it the

      equitable remedy of foreclosure, that CitiMortgage acted with unclean hands

      throughout the process, and that the court should deny CitiMortgage’s motion

      for summary judgment.


      Court of Appeals of Indiana | Opinion 71A03-1710-MF-2480 | March 20, 2018   Page 5 of 17
[7]   CitiMortgage sent a letter dated March 11, 2015, to Thomas Feehan stating that

      he was conditionally approved for a short sale subject to further information

      obtained from an appraisal or title search but that it was unable to approve of

      his mortgage assistance request under HAMP because it serviced the loan on

      behalf of FHLBC, which had not given it the contractual authority to modify

      his loan under the program. The letter further provided that CitiMortgage

      could not approve a modification under the Private Supplemental Modification

      Program at that time because, in performing its underwriting of a potential

      modification, Thomas Feehan’s combined housing expense-to-income ratio

      was outside of the acceptable range established for the program.


[8]   On July 24, 2015, the Feehans filed a supplemental response to CitiMortgage’s

      summary judgment motion and a supporting memorandum of law. In the

      memorandum, the Feehans argued that CitiMortgage was required to

      participate in loan modification procedures under the U.S. Troubled Asset

      Relief Program (“TARP”), that CitiMortgage had entered into a servicer

      participation agreement with the Federal National Mortgage Association

      (“Fannie Mae”) in which it consented to participate in HAMP, that the U.S.

      Treasury provided guidelines for servicers to determine borrowers’ eligibility for

      loan modification, and that CitiMortgage was obligated to act in good faith to

      comply with the requirements of TARP and because it did not do so the court

      should deny its motion for summary judgment. On July 30, 2015, the court

      entered an order which provided that, upon request by CitiMortgage’s counsel,




      Court of Appeals of Indiana | Opinion 71A03-1710-MF-2480 | March 20, 2018   Page 6 of 17
       a summary judgment hearing scheduled for August 4, 2015, was continued

       indefinitely, to be rescheduled upon the request of CitiMortgage.


[9]    CitiMortgage sent another letter to Thomas Feehan dated September 20, 2016,

       stating that he was not approved for a loan modification under HAMP because

       CitiMortgage serviced the loan on behalf of FHLBC which had not given

       CitiMortgage the contractual authority to modify his loan under the program

       and that he was not approved under the Private Supplemental Modification

       Program at that time because in performing its underwriting of a potential

       modification his combined housing expense-to-income ratio was outside of the

       acceptable range established for the program. The letter further indicated that

       the input values used to determine Thomas Feehan’s eligibility included an

       unpaid principal balance of the loan, excluding any fees, of $155,245.55 and a

       monthly gross income of $7,967.56 and stated he had thirty days to request an

       appeal of the non-approval decision. CitiMortgage sent a letter to Thomas

       Feehan dated January 19, 2017, stating that the letter was in response to his

       appeal and request for reconsideration for a hardship assistance program and

       that CitiMortgage was unable to approve his mortgage assistance request

       because it serviced his loan on behalf of FHLBC which had not given it the

       contractual authority to modify his loan under the program.


[10]   In February 2017, CitiMortgage filed a motion for leave to supplement its

       motion for summary judgment, and in March 2017 the court ordered that

       CitiMortgage’s supplemental memorandum and designation of evidence be

       deemed filed. CitiMortgage argued in its memorandum that the Feehans did

       Court of Appeals of Indiana | Opinion 71A03-1710-MF-2480 | March 20, 2018   Page 7 of 17
       not dispute the validity of the Note and Mortgage or the amount due under

       them. CitiMortgage further argued that an exception to the requirement that a

       participating servicer consider a mortgage loan for HAMP is if the server is

       “prohibited by the rules of the applicable [pooling and servicing agreement]

       and/or other investor servicing agreement.” Appellants’ Appendix Volume 2 at

       100 (quoting Making Home Affordable Program Handbook for Services of Non-GSE

       Mortgagees, Version 5.1, as of May 26, 2016, Section 1.1). CitiMortgage argued

       that the loan in this case is a conventional non-government-sponsored

       enterprise (“GSE”) loan with FHLBC as its investor; that the servicing guide

       applicable to the loan prohibits it from offering any type of loan modification,

       except a private supplemental modification, unless a variance is obtained from

       FHLBC; that Thomas Feehan did not qualify for a private supplemental

       modification as set forth in the servicing guide; and that it requested a variance

       from FHLBC of the servicing agreement prohibition against offering Feehan a

       modification but the request was denied by FHLBC. CitiMortgage also argued

       that a mortgagee’s failure to comply with TARP loan modification procedures,

       including HAMP, does not provide a defense to foreclosure and that the

       procedures do not carry the force of law.


[11]   CitiMortgage designated the affidavit, and all the exhibits attached to it, of a

       business operations analyst for CitiMortgage responsible for the loan, and the

       affidavit states that the loan “is a conventional non-GSE loan with [FHLBC] as

       its investor,” that “[a]ttached hereto as Exhibit G is a true and accurate copy of

       the relevant portion of the Servicing Guide relevant to the” loan and “[t]he


       Court of Appeals of Indiana | Opinion 71A03-1710-MF-2480 | March 20, 2018   Page 8 of 17
       Servicing Guide prohibits CitiMortgage from offering any modification other

       than a Private Supplemental Modification, unless a variance is obtained from

       [FHLBC],” that CitiMortgage reviewed Thomas Feehan’s loss mitigation

       application to determine whether he qualified for a private supplemental

       modification and determined that he did not so qualify because his housing

       expense-to-income ratio was outside of the acceptable range for the program,

       and that CitiMortgage requested from FHLBC “a variance of the servicing

       agreement prohibition from offering Thomas J. Feehan a modification” and

       “[t]he request for variance was denied” by FHLBC. Id. at 109-110. Exhibit G,

       attached to the affidavit, contains portions of a servicing guide document for

       Participating Financial Institutions about the MPF Government MBS

       Program.1


[12]   In April 2017, the Feehans filed a motion to strike CitiMortgage’s summary

       judgment motion and all supplements arguing in part that the portion of the

       servicing guide to which CitiMortgage’s business operations analyst points does

       not reference CitiMortgage or FHLBC. The Feehans also filed a supplemental

       response to CitiMortgage’s motion for summary judgment arguing in part that

       CitiMortgage did not comply with the court’s orders including its December 20,




       1
         The servicing guide document states “[t]he Guides are updated and supplemented by communications to
       Participating Financial Institutions (PFIs), that are members of the Federal Home Loan Banks (MPF Banks)
       participating in the MPF Program, that are published as PFI Marketing Bulletins, PFI Notices and PFI
       Advisories.” Appellants’ Appendix Volume 2 at 141. The document provides information regarding loans
       eligible for a temporary loan payment modification plan for loss mitigation and loan modification processing
       and underwriting.

       Court of Appeals of Indiana | Opinion 71A03-1710-MF-2480 | March 20, 2018                       Page 9 of 17
       2010 order and that CitiMortgage held out the possibility of offering the

       Feehans a mortgage modification and forced them to submit the same

       documentation numerous times from 2011 through 2016 only to deny every

       request.


[13]   In May 2017, CitiMortgage filed a combined reply memorandum in support of

       its motion for summary judgment and in opposition to the Feehans’ motion to

       strike. In its reply, CitiMortgage argued in part that it has, on multiple

       occasions, reviewed Thomas Feehan’s loss mitigation applications to determine

       whether he qualified for a loan modification and that he did not so qualify. It

       also argued that the Feehans did not provide any legal authority “to support

       their position that these years-old supposed violations – even if true – bar

       CitiMortgage’s claim for foreclosure.” Appellee’s Appendix Volume 2 at 39.


[14]   Following a hearing, the trial court denied the Feehans’ motion to strike on

       July 19, 2017. On August 29, 2017, the court held a hearing on CitiMortgage’s

       summary judgment motion. On September 25, 2017, the court issued a

       Judgment Entry and Decree of Foreclosure in which it granted CitiMortgage’s

       motion for summary judgment, entered judgment against Thomas Feehan and

       in favor of CitiMortgage, granted CitiMortgage a decree of foreclosure, and

       ordered the sale of the property.


                                                    Discussion

[15]   The Feehans claim that the trial court abused its discretion in denying their

       motion to strike CitiMortgage’s summary judgment filings and erred in entering


       Court of Appeals of Indiana | Opinion 71A03-1710-MF-2480 | March 20, 2018   Page 10 of 17
       summary judgment in favor of CitiMortgage. A trial court has broad discretion

       in ruling on a motion to strike. Lanni v. Nat’l Collegiate Athletic Ass’n, 989

       N.E.2d 791, 797 (Ind. Ct. App. 2013) (reviewing the denial of a motion to strike

       an affidavit attached to a summary judgment motion). 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 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 two

       requirements are met by the moving party, 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. An

       appellate court reviewing a challenged trial court summary judgment ruling is

       limited to the designated evidence before the trial court, but is constrained to

       neither the claims and arguments presented at trial nor the rationale of the trial

       court ruling. Manley v. Sherer, 992 N.E.2d 670, 673 (Ind. 2013).


[16]   The Feehans assert that CitiMortgage should not have been permitted to move

       forward with its motion for summary judgment after repeatedly refusing to

       comply with court orders and that multiple settlement conferences were

       attempted but CitiMortgage never appeared with any person with authority to


       Court of Appeals of Indiana | Opinion 71A03-1710-MF-2480 | March 20, 2018   Page 11 of 17
       agree to, or offer, any settlement of any type. The Feehans request this court to

       remand with specific instructions that CitiMortgage be ordered to appear at a

       settlement conference with them as previously ordered. They argue that there is

       a question of fact as to whether CitiMortgage acted with unclean hands toward

       them in its oppressive conduct during the case, including in consistently

       refusing to consider a modification under TARP and requiring them to

       repeatedly submit and resubmit the same information numerous times on the

       promise they could be granted a modification, and its role in causing the

       financial crisis and causing them to fall behind on their payments.


[17]   CitiMortgage maintains that, contrary to the Feehans’ assertion that it

       intentionally flaunted court order, it has in fact reviewed Thomas Feehan’s loss

       mitigation applications on multiple occasions to determine whether he qualified

       for a loan modification, that it determined that he did not so qualify, and that at

       one point it conditionally approved a short sale. CitiMortgage argues that the

       Feehans’ request for a settlement conference “is mindless form over substance”

       and that its representative personally attending a conference would only again

       advise them that they are not eligible for a loan modification. Appellee’s Brief

       at 11. CitiMortgage contends that the Feehans do not dispute that it is the

       holder of the Note and the mortgagee under the Mortgage and that no

       payments have been made since 2009. CitiMortgage argues that the Feehans’

       claim that it required them to repeatedly submit modification requests is

       baseless and that, in fact, the Feehans continued to resubmit loss mitigation

       applications despite its repeated notifications that it was unable to approve a


       Court of Appeals of Indiana | Opinion 71A03-1710-MF-2480 | March 20, 2018   Page 12 of 17
       modification of the loan. It further argues that it was prohibited from offering

       any modification other than a private supplemental modification for which

       Thomas Feehan was not eligible, that the loan modification procedures under

       TARP or HAMP do not provide a defense to foreclosure, and that it did not

       cause the Feehans’ default.


[18]   We observe that the Feehans do not dispute the terms of the Note and

       Mortgage, that CitiMortgage is the successor by merger to ABN AMRO, that

       Thomas Feehan defaulted on the Note and did not cure the default, or that

       CitiMortgage is a person entitled to enforce the Note and the mortgagee with

       respect to the Mortgage. Indeed, the designated evidence establishes that

       Thomas Feehan executed the Note in 2002 promising to repay a loan in the

       original amount of $170,000 to ABN AMRO and that the Feehans executed the

       Mortgage in favor of ABN AMRO to secure repayment of the loan, that ABN

       AMRO subsequently merged with CitiMortgage, and that Thomas Feehan

       stopped making payments as required on the Note. CitiMortgage provided

       Thomas Feehan with an opportunity to cure his default on the Note by paying

       the past-due amount, he did not do so, and CitiMortgage declared the

       outstanding principal balance together with interest, advances, and expenses to

       be due and sought to foreclose with respect to the property.


[19]   As to the pre-foreclosure settlement conference, we observe that Ind. Code § 32-

       30-10.5-9 provides in part that a court may not issue a judgment of foreclosure

       until a creditor has given notice regarding a settlement conference and, if the

       debtor requests a conference, upon conclusion of the conference the parties are

       Court of Appeals of Indiana | Opinion 71A03-1710-MF-2480 | March 20, 2018   Page 13 of 17
       unable to reach agreement on the terms of a foreclosure prevention agreement.

       The statute also provides that, if the court finds that a settlement conference

       would be of limited value based on the result of a prior loss mitigation effort, a

       settlement conference is not required. Ind. Code § 32-30-10.5-9(b). A local

       emergency court rule in St. Joseph County also provides for the scheduling of a

       settlement conference upon request. See Rule LR71-TR4.9-1102. The court’s

       December 20, 2010 order stated that CitiMortgage would have present at the

       settlement conference all persons with all authority needed to enter into a loan

       modification.


[20]   Even assuming a representative of CitiMortgage who had the authority to

       represent it in negotiating and entering into a foreclosure prevention agreement

       or loan modification did not attend the scheduled settlement conferences, we

       cannot conclude that the trial court was unable to grant summary judgment in

       favor of CitiMortgage or that reversal is warranted on that basis. We observe

       that the Feehans do not point to any terms of the Note or Mortgage, as

       instruments executed in 2002 by Thomas Feehan, which require the person

       entitled to enforce the Note or the mortgagee with respect to the Mortgage to

       consider, upon any default for non-payment, a loan modification on any certain

       terms. We further observe that the Feehans do not argue that CitiMortgage was

       required to agree to a particular loan modification and that CitiMortgage

       designated evidence establishing that it did consider loss mitigation or loan

       modification options and determined that the Feehans were not eligible for a

       loan modification.


       Court of Appeals of Indiana | Opinion 71A03-1710-MF-2480 | March 20, 2018   Page 14 of 17
[21]   With respect to the TARP and HAMP provisions which the Feehans reference,

       we note that the Feehans do not assert that the terms of any agreement

       CitiMortgage or ABN AMRO may have or may have had with the government

       or a government-sponsored entity such as Fannie Mae were incorporated into

       the Note or Mortgage and that they do not point to authority for the

       proposition that the failure of a financial institution to comply or fully comply

       with the guidelines may constitute a defense or affirmative defense for a

       borrower or mortgagor in a foreclosure action. See Jaffri v. JPMorgan Chase

       Bank, N.A., 26 N.E.3d 635, 640 (Ind. Ct. App. 2015) (“If there was a violation

       of federal law with respect to Chase’s handling of Jaffri’s HAMP requests, that

       is a matter better addressed by the U.S. Treasury Department as the

       administrator of that program. We cannot perceive that by enacting HAMP,

       the federal government intended for persons rejected for HAMP assistance to

       have a private cause of action against the mortgage lender or servicer, unless a

       contract actually was entered into under HAMP. A number of cases have been

       decided to that effect.”) (citing Spaulding v. Wells Fargo Bank, N.A., 714 F.3d

       769, 777 (4th Cir. 2013) (“Wells Fargo’s agreement with the U.S. Treasury

       [related to its participation in HAMP] was an agreement between the bank and

       the Treasury, an agreement to which Appellants were not a party and which

       they have no authority to enforce. Nothing about that agreement could be

       considered to extend legal rights to Appellants.”); Markle v. HSBC Mortg. Corp.

       (USA), 844 F. Supp. 2d 172, 180-183 (D. Mass. 2011) (holding that borrowers

       do not have a right to enforce their mortgage servicers’ HAMP obligations and

       observing that the HAMP guidelines applied to the mortgage servicer through
       Court of Appeals of Indiana | Opinion 71A03-1710-MF-2480 | March 20, 2018   Page 15 of 17
       its agreement with Fannie Mae and that the borrowers were not third-party

       beneficiaries of that agreement); Clay v. First Horizon Home Loan Corp., 392

       S.W.3d 72, 80 (Tenn. Ct. App. 2012) (“The so-called ‘intended third-party

       beneficiary’ claim, in the context of HAMP, has been considered by numerous

       courts around the country and has been rejected by the vast majority of them.”)

       (collecting cases)); see also Nachar v. PNC Bank, Nat. Ass’n, 901 F. Supp. 2d 1012,

       1019 (N.D. Ohio 2012) (observing that courts have rejected the argument that

       borrowers can claim third-party beneficiary status to servicer participation

       agreements between servicers and Fannie Mae as part of the HAMP program);

       RESTATEMENT (SECOND) OF CONTRACTS § 313, cmt. a (1981) (“Government

       contracts often benefit the public, but individual members of the public are

       treated as incidental beneficiaries unless a different intention is manifested.”).


[22]   In any event, CitiMortgage designated evidence that the loan at issue “is a

       conventional non-GSE loan with [FHLBC] as its investor” and that the

       “Servicing Guide prohibits CitiMortgage from offering any modification other

       than a Private Supplemental Modification, unless a variance is obtained” from

       FHLBC. Appellants’ Appendix Volume 2 at 109-110. CitiMortgage designated

       evidence reflecting that it had reviewed Thomas Feehan’s application for loss

       mitigation or loan modification, that it had requested from FHLBC a variance

       from the servicing agreement prohibition against offering Thomas Feehan a

       modification and that FHLBC denied the request, and that it had determined,

       with respect to a private supplemental modification, that Thomas Feehan did

       not qualify because his housing expense-to-income ratio was outside of the


       Court of Appeals of Indiana | Opinion 71A03-1710-MF-2480 | March 20, 2018   Page 16 of 17
       acceptable range. While Thomas Feehan may have submitted financial

       documents and other information at various stages in seeking a loan

       modification, the record indicates that CitiMortgage provided explanations as

       to the reasons that he was not eligible for a modification. CitiMortgage has

       satisfied its burden of establishing that, even if another foreclosure-prevention

       settlement conference was scheduled and a personal representative of

       CitiMortgage with the authority to enter a loan modification or make a loan

       modification offer was present at the conference, Thomas Feehan is not eligible

       for or entitled to a loan modification, a loan modification offer, or further

       consideration of the possible loan modification options. Based upon the

       designated evidence, we cannot say that the trial court abused its discretion in

       denying the Feehans’ motion to strike or erred in entering summary judgment

       in favor of CitiMortgage, entering judgment against Thomas Feehan, and

       granting CitiMortgage a decree of foreclosure.


                                                   Conclusion

[23]   For the foregoing reasons, we affirm the trial court’s rulings.


       Affirmed.


       Baker, J., and Riley, J., concur.




       Court of Appeals of Indiana | Opinion 71A03-1710-MF-2480 | March 20, 2018   Page 17 of 17
