MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                        FILED
regarded as precedent or cited before any                               Aug 06 2020, 9:42 am
court except for the purpose of establishing                                 CLERK
the defense of res judicata, collateral                                  Indiana Supreme Court
                                                                            Court of Appeals
estoppel, or the law of the case.                                             and Tax Court




ATTORNEY FOR APPELLANT                                   ATTORNEY FOR APPELLEE
Sophia J. Arshad                                         Nicholas K. Rohner
Arshad Pangere & Warring, LLP                            Weltman Weinberg & Reis
Merrillville, Indiana                                    Company, LPA
                                                         Cincinnati, Ohio



                                           IN THE
    COURT OF APPEALS OF INDIANA

Wayne C. Westphal,                                       August 6, 2020
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         20A-CC-626
        v.                                               Appeal from the St. Joseph
                                                         Superior Court
Chemical Bank, by successor and                          The Honorable Margot F. Reagan,
merger to Talmer Bank and                                Judge
Trust,                                                   Trial Court Cause No.
Appellee-Plaintiff                                       71D04-1708-CC-2286




Riley, Judge.




Court of Appeals of Indiana | Memorandum Decision 20A-CC-626 | August 6, 2020                    Page 1 of 12
                                STATEMENT OF THE CASE
[1]   Appellant-Defendant, Wayne C. Westphal (Westphal), appeals the trial court’s

      judgment in favor of Appellee-Plaintiff, Chemical Bank, by successor and

      merger to Talmer Bank and Trust (Chemical Bank), on Chemical Bank’s

      Complaint that Westphal failed to make payments pursuant to the terms of the

      agreement.


[2]   We affirm.


                                                   ISSUES
[3]   Westphal raises two issues on appeal, which we restate as follows:


          (1) Whether the trial court erred by denying Westphal’s motion for summary

              judgment when Chemical Bank requested an extension to serve its

              responses to Westphal’s request for admissions by the court-ordered due

              date; and


          (2) Whether the trial court abused its discretion in denying Westphal’s

              motion to correct error when Chemical Bank established the existence of

              a contract and the assignment of the debt.


                      FACTS AND PROCEDURAL HISTORY
[4]   In January 2001, Westphal, a sole proprietor doing business as S&W Timing,

      purchased a new motorhome from Total Value RV in Elkhart, Indiana. S&W

      Timing conducted the timing and maintained other equipment in the motor

      vehicle racing industry. As such, Westphal’s business required that he and his

      Court of Appeals of Indiana | Memorandum Decision 20A-CC-626 | August 6, 2020   Page 2 of 12
      wife travel to various races throughout the country. Upon the purchase of the

      motorhome, Westphal signed two separate installment contracts to finance the

      purchase. One contract identified the buyer as “Wayne Westphal DBA S& W

      Timing,” while the second contract listed the buyer as “S&W Timing.”

      (Appellant’s App. Vol. II, pp. 60-63; 64-65). Both contracts were executed the

      same day and, except for the name of the buyer being slightly different, the

      terms of the contract are substantially identical. Upon execution, the contracts

      were automatically assigned from Total Value RV to Elkhart Community Bank.

      Elkhart Community Bank merged into Indiana Community Bank in 2010,

      which merged into Talmer Bank and Trust in 2015, which, in turn, merged into

      Chemical Bank in November 2016.


[5]   Westphal failed to make timely payments. After the motorhome was sold and

      the balance applied to the loan, a principal balance of $140,535.97 remained

      unpaid. On August 22, 2017, Chemical Bank filed its Complaint on Loan

      Agreement to collect the balance due, alleging that Westphal had failed to make

      payments pursuant to the terms of the loan agreement. Attached to the

      Complaint was the contract executed between Westphal DBA S&W Timing

      and Total Value RV. Chemical Bank did not file any assignment of rights from

      Elkhart Community Bank through to Chemical Bank.


[6]   On June 26, 2018, Westphal served Chemical Bank with discovery requests,

      including a request for admissions. Chemical Bank requested an initial

      extension to respond, which was granted by the trial court until September 10,

      2018. On September 7, 2018, after Chemical Bank’s counsel had consulted

      Court of Appeals of Indiana | Memorandum Decision 20A-CC-626 | August 6, 2020   Page 3 of 12
      with Westphal’s counsel and advised him that an additional ten days were

      needed for the response, Chemical Bank filed a motion for extension of time to

      which Westphal’s counsel objected. On September 10, 2018, Chemical Bank’s

      counsel emailed unsigned draft answers to Westphal’s counsel. On Tuesday,

      September 11, 2018, Westphal filed a motion for summary judgment, asserting

      that Chemical Bank had failed to timely serve responses to his request for

      admissions thereby causing certain dispositive statements to be deemed

      admitted. Later that same day, on September 11, 2018, the trial court granted

      Chemical Bank’s request for an extension of time, allowing Chemical Bank up

      to September 20, 2018 to respond. On September 20, 2018, Chemical Bank

      served Westphal with its responses to Westphal’s discovery requests. On

      January 17, 2019, the trial court denied Westphal’s motion for summary

      judgment, concluding that “[t]he requests for admission should not be deemed

      admitted based on the timing issue.” (Appellant’s App. Vol. II, p. 211).


[7]   On September 25, 2019, the trial court conducted a bench trial. During the

      proceedings, Chemical Bank called Heather O’Connor (O’Connor), Vice

      President/Loan Recovery Manager at Chemical Bank as its witness. O’Connor

      testified as to the mergers between the different banks and the assignment of the

      contracts. Chemical Bank attempted to admit the contract signed by Wayne

      Westphal DBA S& W Timing, through O’Connor’s testimony, which the trial

      court denied based on Westphal’s objection. Chemical Bank called Westphal

      as its witness who admitted that he had executed the contract as S&W Timing.

      This contract was admitted into evidence. Chemical Bank then recalled


      Court of Appeals of Indiana | Memorandum Decision 20A-CC-626 | August 6, 2020   Page 4 of 12
       O’Connor. She advised that a notice of default, which was admitted into

       evidence, was sent to Westphal by Talmer Bank and Trust in August 2016. She

       also testified to the loan payoff statement and payment history generated by

       Talmer Bank and Trust in November 2016. At the conclusion of the evidence,

       the trial court entered a judgment in favor of Chemical Bank.


[8]    On January 20, 2020, Westphal filed a motion to correct error, contending that

       Chemical Bank failed to establish that Westphal had executed the contract, that

       Chemical Bank did not own the debt under the terms of the contract, and that

       the accrued amount was calculated incorrectly. On February 14, 2020, the trial

       court issued its Order of amended judgment, correcting the amount due. The

       trial court was silent as to the other perceived errors asserted in the motion to

       correct error.


[9]    Westphal now appeals. Additional facts will be provided as necessary.


                               DISCUSSION AND DECISION
[10]   Westphal challenges the trial court’s decision on both his motion for summary

       judgment and motion to correct error. We will analyze each decision in turn.


                                             I. Summary Judgment


[11]   Westphal first contends that the trial court erred by concluding that no genuine

       issue of material fact exists that Chemical Bank timely served its responses to

       Westphal’s request for admissions by the court-mandated due date.




       Court of Appeals of Indiana | Memorandum Decision 20A-CC-626 | August 6, 2020   Page 5 of 12
[12]   In reviewing a trial court’s ruling on summary judgment, this court stands in the

       shoes of the trial court, applying the same standards in deciding whether to

       affirm or reverse summary judgment. First Farmers Bank & Trust Co. v. Whorley,

       891 N.E.2d 604, 607 (Ind. Ct. App. 2008), trans. denied. Thus, on appeal, we

       must determine whether there is a genuine issue of material fact and whether

       the trial court has correctly applied the law. Id. at 607-08. In doing so, we

       consider all of the designated evidence in the light most favorable to the non-

       moving party. Id. at 608. A fact is ‘material’ for summary judgment purposes if

       it helps to prove or disprove an essential element of the plaintiff’s cause of

       action; a factual issue is ‘genuine’ if the trier of fact is required to resolve an

       opposing party’s different version of the underlying facts. Ind. Farmers Mut. Ins.

       Group v. Blaskie, 727 N.E.2d 13, 15 (Ind. 2000). The party appealing the grant

       of summary judgment has the burden of persuading this court that the trial

       court’s ruling was improper. First Farmers Bank & Trust Co., 891 N.E.2d at 607.


[13]   We observe that, in the present case, the trial court entered findings of fact and

       conclusions of law thereon in support of its judgment. Generally, special

       findings are not required in summary judgment proceedings and are not binding

       on appeal. AutoXchange.com. Inc. v. Dreyer and Reinbold, Inc., 816 N.E.2d 40, 48

       (Ind. Ct. App. 2004). However, such findings offer a court valuable insight into

       the trial court’s rationale and facilitate appellate review. Id.


[14]   On June 26, 2018, Westphal served Chemical Bank with discovery requests,

       including a request for admissions. The trial court granted Chemical Bank’s

       request for an extension until September 10, 2018. On September 7, 2018, after

       Court of Appeals of Indiana | Memorandum Decision 20A-CC-626 | August 6, 2020   Page 6 of 12
       a telephonic consultation with Westphal’s counsel who objected to further

       extensions of the deadline, Chemical Bank filed a second motion for extension

       of time, which was granted by the trial court on September 11, 2018, after the

       due date for the discovery request and after Westphal had filed its motion for

       summary judgment, claiming that Chemical Bank had failed to timely serve

       responses to his request for admissions thereby causing certain dispositive

       statements to be deemed admitted.


[15]   Pursuant to Indiana Trial Rule 36, the failure to respond in a timely manner to

       a request for admissions causes those matters to be admitted and conclusively

       established by operation of law. City of Muncie v. Peters, 709 N.E.2d 50, 54-55

       (Ind. Ct. App. 1999), reh’g denied, trans. denied. Requests for admissions under

       Indiana Trial Rule 36 may, in addition to seeking evidentiary matters, ask for

       admissions as to legal issues, contentions, and conclusions, if related to the facts

       of the case. Id. Matters admitted under the rules are deemed “conclusively

       established,” eliminating the need to prove them at trial. Id. However, the

       party deemed to have made those admissions may move the trial court for

       withdrawal of those admissions pursuant to Indiana Trial Rule 36(B).


[16]   Relying on Trial Rule 36(B), Westphal now claims that because Chemical Bank

       failed to respond in a timely manner to its request for admissions, the

       evidentiary issues raised in the admissions were deemed admitted and, in the

       absence of Chemical Bank’s request to withdraw those admissions, the trial

       court’s denial of summary judgment should be reversed.



       Court of Appeals of Indiana | Memorandum Decision 20A-CC-626 | August 6, 2020   Page 7 of 12
[17]   We cannot agree. The record conclusively established that Chemical Bank

       submitted a motion to extend time to file its answers to Westphal’s request for

       admissions on September 7, 2018, prior to the expiration of the deadline.

       Therefore, no admission can be deemed to have been made under Indiana Trial

       Rule 36(B) and there is nothing to withdraw. Pursuant to Indiana Trial Rule

       6(B),


               When an act is required or allowed to be done at or within a
               specific time by these rules, the court may at any time for cause
               shown:


               (1) Order the period enlarged, with or without motion or notice,
                   if request therefor is made before the expiration of the period
                   originally prescribed or extended by a previous order[.]


       In support of its request for extension of time, Chemical Bank stated that it

       “need[ed] additional time in which to verify final responses to the [d]iscovery

       [r]equests and to possibly pursue a resolution to the case. (Appellant’s App.

       Vol. II, p. 71). As such, Chemical Bank requested a ten-day extension. At the

       hearing on the motion for summary judgment, Chemical Bank explained that in

       an attempt to show a good faith effort, Chemical Bank emailed an unsigned

       draft of its response to Westphal’s request for admissions to Westphal’s counsel

       on September 10, 2018, and advised that the finalized interrogatories “still

       needed to be verified by [its] client.” (Transcript p. 9). As the trial court found

       that good cause was shown by Chemical Bank, it granted an extension until

       September 20, 2018. Chemical Bank timely filed its responses to Westphal’s

       request for admissions.
       Court of Appeals of Indiana | Memorandum Decision 20A-CC-626 | August 6, 2020   Page 8 of 12
[18]   Based on the record before us, we cannot say that the trial court abused its

       discretion by extending Chemical’s deadline to file its response. Accordingly,

       as Chemical Bank timely filed its response to the request for admissions, no

       genuine issues of material fact exist and Chemical Bank’s responses were timely

       served by the court-ordered due date. We affirm the trial court’s denial of

       summary judgment.


                                          II. Motion to Correct Error


[19]   Next, Westphal contends that the trial court abused its discretion in affirming

       its ruling when Chemical Bank failed to establish at trial that a contract existed

       between Westphal and Chemical Bank and that Chemical Bank is the assignee

       and owner of the debt under the contract. A trial court has discretion to grant

       or deny a motion to correct error and we reverse its decision only for an abuse

       of that discretion. Hawkins v. Cannon, 829 N.E.2d 658, 661 (Ind. Ct. App.

       2005), trans. denied. An abuse of discretion occurs when the trial court’s

       decision is against the logic and effect of the facts and circumstances before the

       court or if the court has misinterpreted the law. Id.


[20]   At trial, Chemical Bank unsuccessfully attempted to admit the contract signed

       by ‘Wayne Westphal DBA S& W Timing,’ through O’Connor’s testimony and

       over Westphal’s objection. Chemical Bank then called Westphal as its witness

       who admitted that he had executed the contract in which the buyer is identified

       as ‘S&W Timing.’ Because S&W Timing was a sole proprietorship, S&W

       Timing and Westphal are legally one and the same. Bartlett v. Heibl, 128 F3d


       Court of Appeals of Indiana | Memorandum Decision 20A-CC-626 | August 6, 2020   Page 9 of 12
       497, 500 (7th Cir. 1997) (A sole proprietorship is not a suable entity separate

       from the owner). Therefore, a contract entered into by S&W Timing is, at the

       same time, also a contract entered into by Westphal.


[21]   Westphal’s argument that the contract “was not admitted as a business record

       for Chemical Bank but simply as the document [Westphal] stated he signed” is

       without merit. (Appellant’s Br. p. 25). Pursuant to Indiana Rule of Evidence

       901(b)(1), testimony of a witness with knowledge that an item is what it is

       claimed to be is sufficient to authenticate or identify the evidence. Therefore,

       Westphal’s unequivocal testimony that he had signed the contract and was

       familiar with its terms was sufficient to admit the contract into evidence.

       Moreover, O’Connor testified that a notice of default had been sent to Westphal

       in 2016. She explained the content of the loan payoff statement, and advised

       the trial court about the payment history on the loan. At no point during these

       proceedings did Westphal dispute the receipt of a loan to purchase the

       motorhome, that he defaulted on the loan, or that a principal balance and

       interest had accrued and was due.


[22]   During the trial, it was established that upon execution, the contract was

       immediately assigned from Total Value RV to Elkhart Community Bank.

       O’Connor testified as to the mergers between the different banks and the

       assignment of the contracts. Specifically, she advised the trial court that


               Elkhart Community Bank and Goshen Community Bank . . .
               consolidated into Indiana Community Bank in around 2010.
               After which in 2014, Talmer Bancorp acquired Indiana

       Court of Appeals of Indiana | Memorandum Decision 20A-CC-626 | August 6, 2020   Page 10 of 12
               Community Bank, Michigan Commerce Bank, Sunrise Bank of
               Albuquerque, as well as Bank of Las Vegas as a part of a
               Bankruptcy reorganization of Capital Bancorp, and they were
               immediately renamed Talmer West Bank. []


               A year later, we changed the name from Talmer West Bank and
               folded them into Talmer Bank and Trust, of which then Talmer
               Bank merged with Chemical Bank.


       (Tr. pp. 22-23). As the trial court found in favor of Chemical Bank, O’Connor’s

       testimony was deemed reliable and it is not for us to second-guess the trial

       court’s assessment of O’Connor’s credibility or to reweigh the evidence. See In

       re Marriage of Perez, 7 N.E.3d 1009, 1012 (Ind. Ct. App. 2014) (appellate court

       may not judge witness credibility or reweigh evidence).


[23]   Accordingly, the trial court did not abuse its discretion by denying Westphal’s

       motion to correct error because Chemical Bank established by a preponderance

       of the evidence the existence of a contract, Westphal’s breach, the balance due,

       and the ownership of the obligation via bank mergers.


                                             CONCLUSION
[24]   Based on the foregoing, we hold that no genuine issue of material fact exists

       that Chemical Bank served its responses to Westphal’s request for admissions

       by the court-mandated due date; and the trial court did not abuse its discretion

       in denying Westphal’s motion to correct error when Chemical Bank established

       the existence of a contract and the assignment of the debt.


[25]   Affirmed.

       Court of Appeals of Indiana | Memorandum Decision 20A-CC-626 | August 6, 2020   Page 11 of 12
[26]   May, J. and Altice, J. concur




       Court of Appeals of Indiana | Memorandum Decision 20A-CC-626 | August 6, 2020   Page 12 of 12
