MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                         FILED
regarded as precedent or cited before any                                Oct 02 2019, 8:38 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
Jeffrey O. Meunier                                      J. Dustin Smith
Carmel, Indiana                                         Manley Deas Kochalski LLC
                                                        Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

James A. Ringley,                                       October 2, 2019
Appellant-Defendant,                                    Court of Appeals Case No.
                                                        19A-MF-782
        v.                                              Appeal from the Hamilton
                                                        Superior Court
Caliber Home Loans, Inc.,                               The Honorable William Hughes,
Appellee-Plaintiff.                                     Judge
                                                        Trial Court Cause No.
                                                        29D03-1806-MF-5607



Robb, Judge.




Court of Appeals of Indiana | Memorandum Decision 19A-MF-782 | October 2, 2019                    Page 1 of 13
                                Case Summary and Issue
[1]   James Ringley appeals the trial court’s order denying his motion to set aside the

      judgment entered in favor of Caliber Home Loans, Inc. (“Caliber”). Ringley

      raises the sole issue of whether the trial court abused its discretion by denying

      his motion to set aside the judgment previously entered in favor of Caliber

      when Ringley alleged he did not receive proper notice of the judgment.

      Concluding the trial court did not abuse its discretion, we affirm.



                            Facts and Procedural History
[2]   On July 31, 2007, Ringley became the fee simple owner of real property located

      in Hamilton County, Indiana, commonly known as 12440 E. 256th Street,

      Cicero, Indiana 46034 (“Cicero Property”). Ringley executed a promissory

      note for an original principal amount of $185,000 in favor of Freedom

      Mortgage Corporation d/b/a Freedom Home Mortgage Corporation. Ringley

      also executed a mortgage in favor of Mortgage Electronic Registration Systems,

      Inc., solely as a nominee for Freedom Home Mortgage Corporation, its

      successors, and assignees. The mortgage was recorded on August 6, 2007. The

      note and mortgage were subsequently assigned to Caliber.


[3]   Ringley stopped making mortgage payments on the property and ultimately

      defaulted on the note and mortgage. In June 2018, Caliber initiated this

      foreclosure action by filing its Complaint on Promissory Note and to Foreclose

      Mortgage against Ringley and other named defendants, declaring the entire


      Court of Appeals of Indiana | Memorandum Decision 19A-MF-782 | October 2, 2019   Page 2 of 13
      indebtedness due and payable. On June 20, 2018, Caliber served Ringley with

      the complaint by certified mail and sheriff’s service at 1618 South 10th Street,

      Noblesville, Indiana 46060 (“1618 Address”) and his Cicero Property. On June

      29, 2018, the trial court scheduled a settlement conference for July 23, 2018, at

      2:00 p.m. The Chronological Case Summary (“CCS”) indicates that Ringley

      was personally served with the complaint on July 6 at 2020 Cherry Street,

      Noblesville, Indiana 46060. See mycase.IN.gov, Federal Home Loan Mortgage

      Corporation v. James A[.] Ringley, State of Indiana Department of Revenue Collection

      Division, Sue Perry-Miller et al, Cause No. 29D03-1806-MF-005607,

      https://public.courts.in.gov/mycase/#/vw/Search (last accessed September

      17, 2019). The certified mail sent to the other two addresses were returned,

      indicating they had been unclaimed and returned to the sender. See id.


[4]   On July 23, 2018, the trial court held a Preliminary Telephone Conference

      instead of the previously scheduled settlement conference. Ringley failed to

      appear for the telephone conference. Following the conference, the trial court

      issued an order dated July 26, 2018, providing Ringley “30 days after receipt of

      the complaint for foreclosure to request a Settlement Conference[.]” Id. On

      July 27, Ringley filed a pro se answer to the summons, in which he stated that

      he had not received notice of the scheduled conference, maintained Caliber

      failed to pay the property taxes, and admitted that he “stopped any and all

      [mortgage] payments to Caliber[.]” Appellant’s Appendix, Volume 2 at 53.

      Ringley’s answer listed the Cicero Property as his address, and it also listed his

      e-mail address.


      Court of Appeals of Indiana | Memorandum Decision 19A-MF-782 | October 2, 2019   Page 3 of 13
[5]   On August 16, Caliber filed a Motion for Entry of Default Judgment and

      Decree of Foreclosure, as well as a Motion for Summary Judgment and Decree

      of Foreclosure. The following day, Ringley filed a pro se motion requesting a

      settlement conference and again, listed the Cicero Property address as well as

      his e-mail address. That same day, the trial court issued an order regarding

      timeframes for Ringley’s response to Caliber’s motion for summary judgment.

      The order was served on Ringley at the 1618 Address and at the 2020 Cherry

      Street address and was also served on him by “Automated ENotice[.]” See id.

      at 10; see also mycase.IN.gov, Federal Home Loan Mortgage Corporation v. James

      A[.] Ringley, State of Indiana Department of Revenue Collection Division, Sue Perry-

      Miller et al[.], Cause No. 29D03-1806-MF-005607,

      https://public.courts.in.gov/mycase/#/vw/Search (last accessed September

      24, 2019). On September 14, Ringley filed a motion requesting a hearing prior

      to default judgment.


[6]   The trial court held a hearing on Caliber’s motions on November 20, during

      which Ringley was present. The CCS indicates the trial court granted default

      judgment at the hearing but took the issue of summary judgment under

      advisement.1 The following day, the trial court granted Caliber’s Motion for

      Default Judgment, Summary Judgment, and Decree of Foreclosure, finding, in

      pertinent part:




      1
        The record does not include a transcript from the hearing. Therefore, our review is limited to the entries in
      the CCS with respect to the hearing.

      Court of Appeals of Indiana | Memorandum Decision 19A-MF-782 | October 2, 2019                     Page 4 of 13
        10. [Ringley’s] primary argument at the hearing was that
        [Caliber] failed to pay real estate taxes from his escrow account
        on two of the three properties governed by this mortgage when it
        assumed the loan. As a result, two of the three contiguous
        parcels were sold at tax sale. [Ringley] remained on the one
        parcel which contained the residential structure.


        11. [Ringley], in response to having two of the three parcels
        sold at tax sale, stopped paying his mortgage payment on the
        third parcel on which his house sits in January, 2017. He has not
        paid the mortgage since this date. [Ringley] may have had
        separate legal claims for the loss of his two other parcels, which
        he didn’t exercise, but his discontinuation of payment on the
        mortgage in protest is an act of default under the terms of the
        promissory note.


        12. [Caliber] has shown there exists no issue of material fact,
        Judgment will be entered on all claims asserted against
        Defendants in [Caliber’s] Complaint pursuant to Indiana Trial
        Rule 56(C).


        13. Judgment will be entered on all claims asserted against
        Defendants in [Caliber’s] Complaint pursuant to Indiana Trial
        Rule 55.


        ***


        h.     [Caliber] shall have a personal judgment against [Ringley]
        in the sum of $183,431.79[.]


Appellant’s App., Vol. 2 at 63-64, 66. Notice of the judgment was mailed to

Ringley at the 1618 Address and 2020 Cherry Street address. The CCS

indicates that Ringley was also served by “Automated ENotice[.]” Id. at 11. A

Court of Appeals of Indiana | Memorandum Decision 19A-MF-782 | October 2, 2019   Page 5 of 13
      Decree of Foreclosure was sent to the sheriff, and the property was scheduled to

      be sold on January 24, 2019.


[7]   On January 17, 2019, Ringley filed a motion with the trial court requesting that

      the January 24 sheriff’s sale of the property be postponed. He stated, “I have

      not been notified by mail, certified mail or civil [d]eputy. I only found out

      [about the judgment and sale] from a third party. I have been denied proper

      service [i]n the past.” Corrected Appellee’s Appendix, Volume 2 at 4. On

      January 24, the property was sold to Federal Home Loan Mortgage for

      $144,000.


[8]   On February 1, 2019, the trial court held a telephonic pretrial conference,

      during which the trial court denied Ringley’s motion to postpone the sheriff’s

      sale as moot. On March 11, 2019, Ringley, by counsel, filed a Motion to Set

      Aside Default Judgment/Summary Judgment, Stay Writ of Assistance and Set

      Hearing along with his affidavit. In his motion, Ringley maintained that he did

      not receive notice of the trial court’s judgment and therefore, was unable to

      perfect an appeal or post bond to prevent removal from his home:


              4.     The Court’s docket shows that the Order on Summary
              Judgment was sent . . . to [the] 1618 [Address] and to 2020
              Cherry Street[.] The [1618 Address] was an old business address
              that Ringley had not occupied since February of 2017 and the
              2020 Cherry St. address is not an address [Ringley] had ever
              occupied. Ringley’s business address is 2018 Cherry St., not
              2020. The Court’s docket and all filings made by Ringley show
              the proper address of [the Cicero property], yet the Order was not
              served there. . . .


      Court of Appeals of Indiana | Memorandum Decision 19A-MF-782 | October 2, 2019   Page 6 of 13
              ***


              7.    The improper service of the Order on Ringley deprive[d]
              Ringley of his ability to timely perfect an appeal of the Court’s
              Order.


              ***


              9.     Ringley seeks an Order setting aside the Judgment, and
              staying the Writ of Assistance wherein the Sheriff will be
              removing Ringley and his possessions from the home on March
              15, 2019.


              10. Relief is justified under TR 60(B)(1) and (2) as the mistake
              of the Court deprived Ringley of Notice of the Order and the
              ability to timely perfect an appeal and post bond to prevent
              removal from his home[.]


      Appellant’s App., Vol. 2 at 70-71. On March 12, the trial court denied

      Ringley’s motion. In its order, the trial court stated that it had previously

      denied Ringley’s motion to stay the sheriff’s sale and the property had already

      been sold to a third party. See Appealed Order at 1. Ringley now appeals.



                                Discussion and Decision
                                       I.       Notice of Appeal
[9]   We begin by briefly addressing Caliber’s assertion that Ringley’s appeal should

      be dismissed for failure to comply with Indiana Appellate Rule 9. Caliber

      asserts that Ringley failed to correctly identify the order from which he was


      Court of Appeals of Indiana | Memorandum Decision 19A-MF-782 | October 2, 2019   Page 7 of 13
       appealing in his April 9 Notice of Appeal, namely the March 12 order denying

       his Motion to Set Aside Default/Summary Judgment, and that Ringley filed an

       amended notice on April 15 correctly identifying the March 12 order. Caliber

       argues that Ringley’s appeal should be dismissed because his amended notice

       was untimely; it “was outside of the thirty-day period prescribed by Rule 9(A)

       and the applicable rules do not specifically allow an amended notice to relate

       back to an earlier filed notice.” Brief of Appellee at 11. However, our review

       of the record reveals that Ringley did, in fact, electronically file a timely

       amended notice with this court on April 11, 2019.2 It appears that the trial

       court received a courtesy copy of the amended notice on April 15. Assuming

       arguendo, Ringley’s amended notice of appeal was untimely, “this fact does not

       deprive [this court] of jurisdiction to entertain the appeal.” In re Adoption of

       O.R., 16 N.E.3d 965, 971 (Ind. 2014). Concluding Ringley’s notice was timely,

       we now address the merits of this appeal.


                            II. Motion for Relief from Judgment
[10]   Ringley argues the trial court erred in denying his 60(B) motion for relief from

       judgment due to the trial court’s mistake in sending notice to an old address and

       an invalid address. Caliber, on the other hand, maintains that T.R. 60(B) is

       inapplicable in this case because Ringley’s only recourse due to his alleged lack




       2
         The certificate of filing and service of Ringley’s amended notice of appeal states: “I hereby certify that on
       this 11th day of April, 2019, the foregoing was filed with the Clerk of the Indiana Supreme Court, Court of
       Appeals, and Tax Court.” Corrected Appellee’s App., Vol. 2 at 11.

       Court of Appeals of Indiana | Memorandum Decision 19A-MF-782 | October 2, 2019                       Page 8 of 13
       of notice of the judgment was a motion to extend the time limitation to contest

       the decision pursuant to Trial Rule 72(E), which provides:


                Lack of notice, or the lack of the actual receipt of a copy of the
                entry from the Clerk shall not affect the time within which to
                contest the ruling, order or judgment, or authorize the Court to
                relieve a party of the failure to initiate proceedings to contest
                such ruling, order or judgment, except as provided in this section.
                When the service of a copy of the entry by the Clerk is not
                evidenced by a note made by the Clerk upon the Chronological
                Case Summary, the Court, upon application for good cause
                shown, may grant an extension of any time limitation within
                which to contest such ruling, order or judgment to any party who
                was without actual knowledge, or who relied upon incorrect
                representations by Court personnel.


[11]   Our supreme court has explained the relationship between T.R. 60(B) and

       72(E):


                Trial Rule 72(D) imposes two duties on clerks of court. First,
                “immediately upon the entry of a ruling upon a motion, an order
                or judgment” the clerk must mail a copy of the entry to each of
                the parties. Second, the clerk must make a record of such
                mailing. The [CCS] constitutes that record.[3]


                There was a time when a party might obtain relief upon a claim
                of failure to receive notice through Trial Rule 60. Since 1973,
                however, this Court has amended Trial Rule 72 to establish it as



       3
         Trial Rule 72(D) now reads, in relevant part, that “[i]mmediately upon the notation in the Chronological
       Case Summary of a ruling upon a motion, an order or judgment, the clerk shall serve a copy of the entry in
       the manner provided for in Rule 5(B) upon each party . . . and shall make a record of such service.” Trial
       Rule 5(B) provides for service by personal delivery, by mail, or by fax or e-mail if a party has consented to
       service by fax or e-mail.

       Court of Appeals of Indiana | Memorandum Decision 19A-MF-782 | October 2, 2019                     Page 9 of 13
               the sole vehicle. . . . Trial Rule 72(E) plainly states that only if
               the CCS does not contain evidence that a copy of the court’s
               entry was sent to each party may a party claiming not to have
               received such notice petition the trial court for an extension of
               time to initiate an appeal.


       Collins v. Covenant Mutual Ins. Co., 644 N.E.2d 116, 117-18 (Ind. 1994) (internal

       citation omitted). Therefore, the proper method of challenging an order not

       served by the trial court is through T.R. 72(E), not T.R. 60(B). In re Sale of Real

       Property with Delinquent Taxes or Special Assessments, 822 N.E.2d 1063, 1069 (Ind.

       Ct. App. 2005), trans. denied. Because we have often indicated a preference of

       substance over form, when a 60(B) motion clearly indicates the basis for the

       motion is lack of notice under 72(E), we will treat such motion as a motion for

       an extension of time under 72(E). Id.


[12]   Turning to the case before us, nearly a month and a half after the property was

       sold, Ringely filed a motion characterized as a 60(B) motion in which he argued

       that the lack of notice of the judgment deprived him of the ability to perfect an

       appeal and post bond to prevent removal from the property. Therefore, we treat

       Ringely’s 60(B) motion as a motion for an extension of time to file an appeal

       under T.R. 72(E), not 60(B).4




       4
         We also note that relief under T.R. 60(B) would not be available to Ringley because T.R. 60(B)(4) allows
       for relief in cases where default judgment is entered and a party was served only by publication and was
       “without actual knowledge of the action and judgment, order or proceedings[.]”

       Court of Appeals of Indiana | Memorandum Decision 19A-MF-782 | October 2, 2019                 Page 10 of 13
[13]   We review the trial court’s ruling on a motion for relief under T.R. 72 for an

       abuse of discretion. Atkins v. Veolia Water Indianapolis, LLC, 994 N.E.2d 1287,

       1288 (Ind. Ct. App. 2013). A trial court abuses its discretion when its decision

       is clearly against the logic and effect of the facts and circumstances or when the

       trial court has misinterpreted the law. Id.


[14]   Here, the clerk made the following CCS entry following the trial court’s

       judgment:


               11/22/2018 Automated ENotice Issued to Parties


               Order Granting Motion for Default Judgment ----- 11/21/2018:
               James A[.] Ringley[.]


       Appellant’s App., Vol. 2 at 12. Because the CCS clearly indicates that notice of

       the trial court’s judgment was sent to Ringley on November 22, 72(E) is

       inapplicable and Ringley would not have been entitled to an extension of time

       for the purpose of filing an appeal. Although it appears from the distribution

       list that the judgment was served on Ringley at the 1618 Address and the 2020

       Cherry Street address, the CCS confirms that Ringley also was provided

       electronic notice of the judgment. The record reveals that Ringley provided his

       e-mail address in his answer, his motion requesting a settlement conference,

       and his motion requesting a hearing prior to default judgment and that notice of




       Court of Appeals of Indiana | Memorandum Decision 19A-MF-782 | October 2, 2019   Page 11 of 13
       the trial court’s order setting the November 20 hearing, its hearing journal

       entry, and its November 21 judgment were all sent electronically to Ringley.5


[15]   Furthermore, Ringley does not dispute that he received notice of the order

       setting the hearing, which indicated it was distributed to all parties of record but

       did not list a mailing address. See mycase.IN.gov, Federal Home Loan Mortgage

       Corporation v. James A[.] Ringley, State of Indiana Department of Revenue Collection

       Division, Sue Perry-Miller et al, Cause No. 29D03-1806-MF-005607,

       https://public.courts.in.gov/mycase/#/vw/Search (last accessed September

       23, 2019). Although we acknowledge that Ringley’s property address was on

       file with the trial court, where Ringley alleged he resided during the pendency

       of this case, Ringley failed to notify the trial court that either the 1618 Address

       or the 2020 Cherry Street address was problematic. Cf. Gable v. Curtis, 673

       N.E.2d 805, 807-08 (Ind. Ct. App. 1996) (T.R. 72(E) extension of time to file

       appeal affirmed where party provided the clerk of court with her correct address

       as required under T.R. 3.1(E) and CCS affirmatively demonstrated that the

       party did not receive notice of trial court’s judgment due to an insufficient

       address). In fact, Ringley actively participated in the proceedings following

       receipt of the complaint and did not allege that he did not receive notice of the




       5
         “It shall be the duty of the . . . parties not represented by an attorney, when entering their appearance in a
       case or when filing pleadings or papers therein, to have noted on the [CCS] and on the pleadings or papers so
       filed, their mailing address, and an electronic mail address. Service at either address shall be deemed
       sufficient.” T.R. 72(D).

       Court of Appeals of Indiana | Memorandum Decision 19A-MF-782 | October 2, 2019                    Page 12 of 13
       hearing or any of Caliber’s motions. Following the hearing, Ringley was on

       notice that the trial court would issue a decision.


[16]   In sum, Ringley’s only recourse for lack of notice of the judgment was to

       request an extension of time to file an appeal pursuant to T.R. 72(E). Based on

       our review of the record, Ringley was served electronically with notice of the

       trial court’s judgment and the service was properly noted on the CCS.

       Accordingly, Ringley was not entitled to an extension of time to perfect an

       appeal and thus, the trial court did not err in denying his motion.



                                              Conclusion
[17]   For the reasons set forth above, we conclude the trial court did not abuse its

       discretion when it denied Ringley’s motion to set aside the judgment in favor of

       Caliber. Accordingly, the judgment of the trial court is affirmed.


[18]   Affirmed.


       Mathias, J., and Pyle, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 19A-MF-782 | October 2, 2019   Page 13 of 13
