MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before any                                FILED
court except for the purpose of establishing                        Jul 13 2017, 5:29 am
the defense of res judicata, collateral                                  CLERK
estoppel, or the law of the case.                                    Indiana Supreme Court
                                                                        Court of Appeals
                                                                          and Tax Court




ATTORNEY FOR APPELLANT                                   ATTORNEY FOR APPELLEE
Clifford T. Rubenstein                                   J. Dustin Smith
Carmel, Indiana                                          Indianapolis, Indiana


                                           IN THE
    COURT OF APPEALS OF INDIANA

Gary Brian Plunkitt,                                     July 13, 2017
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         32A01-1605-MF-951
        v.                                               Appeal from the Hendricks County
                                                         Superior Court
DLJ Mortgage Capital Inc.,                               The Honorable Stephenie LeMay-
Appellee-Plaintiff                                       Luken, Judge
                                                         The Honorable Matthew Hanson,
                                                         Special Judge
                                                         Trial Court Cause No.
                                                         32D05-1109-MF-522



Altice, Judge.


                                          Case Summary




Court of Appeals of Indiana | Memorandum Decision 32A01-1605-MF-951 | July 13, 2017          Page 1 of 17
[1]   Gary Plunkitt appeals from the trial court’s dismissal of his cross-complaint to

      quiet title to residential property located in Hendricks County (the Property).

      Plunkitt presents several issues for our review, which we restate as:


              1. Did the trial court abuse its discretion in denying Plunkitt’s
              request for attorney fees?


              2. Did the trial court err in dismissing Plunkitt’s cross-complaint
              to quiet title?


[2]   We affirm.


                                       Facts & Procedural History


[3]   As noted previously by this court in an unpublished memorandum decision,

      “[t]his case has a lengthy and complicated procedural history.” Aurora Loan

      Services, LLC v. Plunkitt, No. 32A04-1403-MF-104, slip op. at 2 (Ind. Ct. App.

      Mar. 5, 2015) (Aurora II). This case adds to that history.


[4]   In Aurora II, this court set out the facts and procedural history leading up to the

      appeal in that case as follows:


              On December 15, 2006, Gary Plunkitt executed a promissory
              note and mortgage in favor of CIT Group (“CIT”) and Mortgage
              Electronic Registration System (“MERS”) on a residential
              property [the Property] located in Hendricks County. A few
              months later, in February 2007, Plunkitt defaulted on the note.
              In November 2007, CIT brought a foreclosure action against
              Plunkitt and [Robert] Imbody, a later land contract purchaser of
              the property. CIT attached a certified copy of the promissory
              note to its complaint. The note contained no endorsements or

      Court of Appeals of Indiana | Memorandum Decision 32A01-1605-MF-951 | July 13, 2017   Page 2 of 17
         allonges.[1] CIT also attached to its complaint a copy of the
         mortgage, which named CIT as the lender and MERS as the
         mortgagee, and a copy of an assignment of mortgage from
         MERS to CIT. The complaint alleged that CIT was the holder of
         the note and the assignee of the mortgage and that Plunkitt had
         defaulted on the terms of the note by failing to make payments
         due.


Id. at 2-3. Here, a few points of clarification are necessary. Plunkitt executed

two promissory notes in favor of CIT and a first and second mortgage in favor

of MERS to finance the purchase of the Property. The first mortgage was in the

original principal sum of $376,800 and recorded as Instrument No.

200700000720 (Instrument 720). The second mortgage was in the original

principal sum of $94,200 and recorded as Instrument No. 200700001500

(Instrument 1500). CIT sought to foreclose on both notes and mortgages—

Count One referenced Instrument 720 and Count Two referenced Instrument

1500. Ultimately, CIT moved forward with Count I and indicated its desire not

to further pursue the claim asserted in Count II. In Count I, CIT asserted that

Instrument 720 had been assigned to it and cited Exhibit D as evidence thereof.

Exhibit D, however, is a copy of the assignment of Instrument 1500 to CIT.

Instrument 720 was actually assigned to Aurora Loan Services, LLC. Thus,

         [i]n May 2009, CIT petitioned the trial court to substitute Aurora
         as plaintiff in CIT’s place. The court granted the petition.



1
  Black’s Law Dictionary 92 (10th ed. 2014) defines an “allonge” as a paper “attached to a negotiable
instrument for the purpose of receiving further indorsements when the original paper is filled with
indorsements.”

Court of Appeals of Indiana | Memorandum Decision 32A01-1605-MF-951 | July 13, 2017               Page 3 of 17
           Aurora filed an amended complaint asserting that it was the
           holder of the note and attached as an exhibit an assignment of
           mortgage from MERS to Aurora Loan Services, dated November
           2, 2007.


           On July 31, 2009, Plunkitt and Imbody filed a joint Indiana Trial
           Rule 12(B)(6) motion to dismiss, arguing that Aurora could not
           enforce the note unless it showed that it was in possession of the
           original note.[2] On the date of the hearing on the motion to
           dismiss, Aurora produced the original note, unendorsed, with no
           allonges attached to it. At the hearing, Aurora requested and
           received additional time to respond to the motion to dismiss.
           Three months later, in October 2009, Aurora filed its response to
           the Defendants’ motion to dismiss. To its response, it attached
           for the first time an “Allonge to Note” which purported to show
           that CIT had endorsed the note to Aurora. Aurora also argued,
           as an alternative theory, that it was entitled to enforce the note as
           a non-holder transferee pursuant to Uniform Commercial Code
           (“U.C.C.”) section 3-301(2), codified at Indiana Code sections
           26-1-3.1-301(2).


           Plunkitt and Imbody filed a motion to strike the purported
           allonge and Aurora’s new theory of recovery, emphasizing that
           the undated allonge had not been produced or even mentioned
           during the nearly two years of litigation of the matter and that
           Aurora’s alternative theory of recovery was outside the scope of
           the pleadings. The trial court agreed with the Defendants and
           struck the allonge and the alternate transferee argument. The
           court then granted the Defendants’ motion to dismiss, noting that
           “striking having occurred, evidence that [Aurora] is the holder of
           the Note that is the basis of litigation in the within cause is totally
           lacking.” Aurora moved to file a second amended complaint,




2
    It appears as though CIT was still the holder of the original promissory note, not Aurora.


Court of Appeals of Indiana | Memorandum Decision 32A01-1605-MF-951 | July 13, 2017              Page 4 of 17
        and the trial court denied the motion. Aurora did not appeal the
        dismissal of its November 7, 2007 complaint.


        In September 2011, nearly two years after the trial court granted
        the Defendants’ motion to dismiss in the first cause of action
        (“Aurora I”), Aurora filed another complaint under a separate
        cause number in the same superior court. The complaint sought
        to enforce the note pursuant to Indiana Code section 26-1-3.1-
        301 and alleged the same or substantially similar facts as the
        complaint filed in Aurora I. To the complaint, Aurora attached
        both the allonge stricken by the trial court in Aurora I and a
        second allonge, which purported to contain a blank endorsement
        of the note by Aurora.


        On November 1, 2011, Plunkitt and Imbody filed a motion for a
        more definite statement, noting that Aurora failed to state under
        which legal basis in Uniform Commercial Code section 301 it
        sought to enforce the note. Aurora amended its complaint on
        December 7, 2011, asserting that it was the note’s holder
        pursuant to U.C.C. section 301(1), codified at Indiana Code
        section 26-1-3.1-301(1).


        On January 12, 2012, Plunkitt and Imbody filed a joint motion to
        strike both allonges and to dismiss the case pursuant to Trial Rule
        12(B)(6), Trial Rule 12(B)(8), and principles of res judicata. The
        trial court held a hearing on the Defendants’ motion to dismiss
        on December 5, 2013. At the hearing, counsel for Aurora
        informed the trial court that Aurora Loan Services had been
        dissolved and noted that it had filed a motion to substitute DLJ
        Mortgage [DLJ] in Aurora’s place as plaintiff. The trial court
        held Aurora’s motion to substitute plaintiff in abeyance pending
        the court’s ruling on the Defendants’ motion to strike and motion
        to dismiss.




Court of Appeals of Indiana | Memorandum Decision 32A01-1605-MF-951 | July 13, 2017   Page 5 of 17
              On December 9, 2013, based in part on the Aurora I court’s order
              regarding the purported allonge, the trial court granted the
              Defendants’ motion to strike the allonges and dismissed the
              complaint pursuant to 12(B)(6), finding that “Aurora is still not a
              party with any provable right to proceed against the Defendant.”
              The trial court denied the Defendants’ motion to dismiss
              pursuant to 12(B)(8) and principles of res judicata, noting that
              “the issue of whether default has occurred is still a matter that
              can be heard, but must be pursued by a correct Plaintiff” and that
              “the prior matter that was dismissed was done so based on the
              fact that [Aurora] could not prove that they had a right back then
              any more than they can prove they have a right now.”


              Aurora filed a motion to correct error on January 9, 2014. In its
              motion, Aurora argued that the trial court failed to apply the
              proper standard when striking the two allonges and in
              determining that Aurora was not entitled to enforce the note and
              that the trial court should have converted the Defendants’ motion
              to dismiss to a motion for summary judgment. Aurora also
              requested leave to file a second amended complaint to assert an
              alternative theory of recovery based on Indiana Code sections 26-
              1-3.1-301(2) and -301(3). The trial court denied Aurora’s request
              for leave to file a second amended complaint and denied
              Aurora’s motion to correct error.


      Id., slip op. at 3-6 (record citations omitted).


[5]   Aurora appealed the trial court’s decision and on March 5, 2015, in a

      memorandum decision, this court affirmed the trial court’s striking of the

      allonges, denial of Aurora’s motion to amend its complaint, and dismissal of




      Court of Appeals of Indiana | Memorandum Decision 32A01-1605-MF-951 | July 13, 2017   Page 6 of 17
      the complaint pursuant to T.R. 12(B)(6).3 On or about May 27, 2015, Plunkitt

      requested a hearing on his pending motion for attorney fees that was previously

      filed on April 11, 2014.4 In that motion, Plunkitt claimed that U.S. Bank

      National Association (U.S. Bank)5 and Aurora should be held jointly and

      severally liable for his attorney fees. Contemporaneous with his request for a

      hearing, Plunkitt filed a notice of his intent to file a cross-complaint to quiet title

      based on DLJ’s filing of an Affidavit Regarding Lost or Misplaced Assignment 6

      that created a cloud on Plunkitt’s title.


[6]   The trial court ultimately held a hearing on the issue of attorney fees on

      December 14, 2015. On December 22, 2015, the trial court issued its order

      denying Plunkitt’s request for attorney fees. The court concluded that “it is

      clear from prior rulings of this court that U.S. Bank has not been a named

      plaintiff and . . . was not the party that presented the action that was thereafter

      dismissed pursuant to a 12(b)(6) order on December 9, 2013.” Appellant’s

      Appendix Vol. 2 at 26. The court’s denial was noted on the chronological case




      3
          The Court of Appeals’ decision in Aurora II was certified by the Clerk of the Court on April 17, 2015.
      4
          The trial court stayed this matter pending Aurora’s appeal.
      5
        U.S. Bank was appointed as trustee for SASCO, a mortgage loan trust in which Plunkitt’s first mortgage
      was pooled with other mortgage loans. U.S. Bank acted as the trustee for SASCO until SASCO was
      dissolved. Plunkitt maintains that Aurora and other entities sought to be substituted as Plaintiffs in this
      action acted as servicers of the loan trust, and hence, were agents of U.S. Bank. In this foreclosure action,
      U.S. Bank was named as a defendant on account of its interest in the form of a foreclosure judgment
      rendered in another court against Plunkitt. Plunkitt asserts that U.S. Bank, although not the named plaintiff,
      is the entity calling the shots behind the foreclosure action(s).
      6
          This affidavit was recorded on May 9, 2014.


      Court of Appeals of Indiana | Memorandum Decision 32A01-1605-MF-951 | July 13, 2017                 Page 7 of 17
      summary on January 5, 2016. On February 4, 2016, Plunkitt filed a motion to

      correct error and a second motion for attorney fees and/or sanctions against the

      law firm representing the plaintiffs. The trial court denied Plunkitt’s motion to

      correct error on February 5, 2016, and on February 17, 2016, the court entered

      an amended/supplemental order denying Plunkitt’s request for attorney fees

      and sanctions against the law firm.


[7]   On December 10, 2015, Plunkitt filed a “Complaint to Quiet Title by

      Counterclaim/Cross-Claim/Third Party Plaintiff” in the now-dismissed

      foreclosure action. Plunkitt maintains that he acquired title to the Property by

      general warranty deed from the previous owner and that he then sold the

      Property to Imbody pursuant to a Land Contract. Imbody fulfilled the land

      contract, and thus, Plunkitt is now obligated to convey marketable title to

      Imbody, free and clear of all liens and encumbrances. On February 17, 2016,

      DLJ, having been substituted for Aurora as plaintiff in the underlying action,

      filed an answer as well as a motion to dismiss Plunkitt’s quiet-title cross-

      complaint. On March 31, 2016, the trial court issued an order granting DLJ’s

      motion to dismiss. In its order, the trial court7 explained:


              1) Since this case was completed after appeal and hearing on
              motion for attorney fees this court has been inundated with




      7
       We commend the trial court for its painstaking review of record herein and its thorough and well-thought
      out order.

      Court of Appeals of Indiana | Memorandum Decision 32A01-1605-MF-951 | July 13, 2017            Page 8 of 17
        paperwork that has not been dated or appropriately sent to this
        particular court.


        2) The court has received multiple documents without date
        stamps.


        3) The court has received multiple documents with date stamps
        but on dates well after they were apparently filed.


        4) The court has not received several documents that have
        apparently been filed in Hendricks County and that appeared on
        the CCS but that were never sent to the court.


        5) That after the court finally was able to piece together all of the
        documents on or around March 23, 2016, it is now able to make
        a cogent order.


        6) That on December 14, 2015 Plunkitt filed a Complaint to
        Quite Title against several parties.


        7) This court received a Motion for Default Against Seven
        Parties on an unknown date as the courts [sic] copy is not
        stamped.


        8) The court granted the Motion for Default on February 29,
        2016.


        9) On February 17, 2016[,] the plaintiff [DLJ] filed an Answer,
        Affirmative Defenses and Motion to Dismiss Complaint to Quiet
        Title.


        10) Thereafter Plunkitt requested more time to reply to the
        Motion to Dismiss which was denied.

Court of Appeals of Indiana | Memorandum Decision 32A01-1605-MF-951 | July 13, 2017   Page 9 of 17
        11) Thereafter, the court received an undated Plunkitt’s
        Response to Motions to Strike and Dismiss filed by [DLJ] as well
        as proposed orders.


        12) That the court has read through the Motions and Responses.


        13) That initially DLJ appropriately points out that this new
        complaint should be dismissed under Trial Rule 12(F).


        14) In particular, when this court finalized its’ [sic] order, the
        appeal was returned, and the attorney fee matter was resolved,
        the issue before this court was finalized.


        15) That secondarily, this finding is based on the fact that if there
        was a counterclaim to be had by the defendants in this action
        they must have filed such at the time this matter was being heard
        before the court.


        16) It is completely disingenuous to believe that Plunkitt did not
        know of an issue possibly regarding a quiet title action and that
        should have been filed as part of the ongoing dispute, before the
        issue was handled by the court and further on appeal.


        17) As such, this Complaint to Quiet Title must be dismissed.


        18) Second, even if the Complaint was not required to be filed by
        way of counterclaim, the court agrees this issue is not for this
        case and while it may be returned to this venue if properly filed,
        it is not so properly filed in this case.


        19) Therefore, pursuant to Trial Rule 12(B)(3), this is not the
        proper venue for this particular claim to be filed, if a claim can be
        made at all.


Court of Appeals of Indiana | Memorandum Decision 32A01-1605-MF-951 | July 13, 2017   Page 10 of 17
              20) Finally the court also agrees with dismissal under both
              12(B)(1) and 12(B)(6) for . . . lack of jurisdiction and failure to
              state a claim upon which relief can be granted.


              21) As stated in previous orders of this court, the court did not
              find a mortgage does not exist, merely that the proper plaintiff
              has yet to come forward to prove and recover.


              22) As such, the claim made by Plunkitt is non-resolvable in the
              manner he is seeking and must be dismissed pursuant to those
              rules.


      Appellant’s Appendix Vol. 2 at 31-33. Plunkitt now appeals.


                                          Discussion & Decision


                                              1. Attorney Fees


[8]   Plunkitt argues that the trial court abused its discretion in denying his request

      for attorney fees. When reviewing an award or denial of attorney fees, we note

      that the trial court is empowered to exercise its sound discretion, and any

      successful challenge to its determination must demonstrate an abuse thereof.

      Delgado v. Boyles, 922 N.E.2d 1267, 1270 (Ind. Ct. App. 2010) (citing Carter-

      McMahon v. McMahon, 815 N.E.2d 170, 179 (Ind. Ct. App. 2004)). An abuse of

      discretion occurs when the trial court’s decision is clearly against the logic and

      effect of the facts and circumstances before it. Id.


[9]   Generally, Indiana follows the “American Rule,” whereby parties are required

      to pay their own attorney fees absent an agreement between the parties,


      Court of Appeals of Indiana | Memorandum Decision 32A01-1605-MF-951 | July 13, 2017   Page 11 of 17
       statutory authority, or rule to the contrary. Smyth v. Hester, 901 N.E.2d 25, 32

       (Ind. Ct. App. 2009), trans. denied. Ind. Code § 34-52-1-1 permits a trial court to

       award attorney fees if it finds that the action was litigated in bad faith or that

       the claim or defense pursued was frivolous, unreasonable, or groundless.


[10]   Plunkitt sought an award of attorney fees against U.S. Bank. As noted by the

       trial court, U.S. Bank was not a named plaintiff and was not responsible for

       bringing the second foreclosure action that was dismissed pursuant to Ind. Trial

       Rule 12(b)(6). The trial court therefore denied Plunkitt’s request for attorney

       fees.


[11]   On appeal, Plunkitt argues that even though U.S. Bank was not the named

       plaintiff, U.S. Bank could have been found to be personally liable for his

       attorney fees as the trustee for SASCO. Plunkitt maintains that Aurora was at

       all times acting as a servicing agent for U.S. Bank and was pursuing the

       foreclosure action at the behest of U.S. Bank. In his motion requesting attorney

       fees, Plunkitt acknowledged that U.S. Bank had “never personally appeared in

       the action,” but nevertheless asserted that U.S. Bank could be found liable

       under a theory of vicarious liability for the acts of its agents, i.e., Aurora, its

       successor, and the law firm representing the plaintiffs in the foreclosure action.

       Appellant’s Appendix Vol. 3 at 42.


[12]   Plunkitt’s argument that U.S. Bank can be held personally liable for his attorney

       fees because U.S. Bank is trustee for SASCO is based upon his theory that U.S.

       Bank was pulling the strings and directing Aurora in both foreclosure actions.


       Court of Appeals of Indiana | Memorandum Decision 32A01-1605-MF-951 | July 13, 2017   Page 12 of 17
       Plunkitt has presented no evidence to support his claims other than his bald

       assertions. As found by the trial court, there is nothing in the record that

       suggests U.S. Bank was in any way responsible for initiating or pursuing the

       foreclosure actions. Plunkitt has not established that the court’s finding in this

       regard was clearly erroneous. The trial court did not abuse its discretion in

       denying Plunkitt’s request for attorney fees as against U.S. Bank.


[13]   Plunkitt next asserts that because the foreclosure actions were frivolous,

       unreasonable, and groundless, the trial court should have awarded him attorney

       fees. Again, Plunkitt baldly asserts that Aurora, as the named plaintiff, created

       an assignment of mortgage document “just to conceal from the trial court, the

       true date when Aurora supposedly obtained its interest.” Appellant’s Brief at 33

       (emphasis in original). He also suggests that Aurora intentionally concealed its

       relationship with U.S. Bank. Aside from Plunkitt’s theories, there is no

       evidence in the record before us to support Plunkitt’s claims that U.S. Bank was

       pulling the strings and that Aurora intentionally tried to conceal its relationship

       with U.S. Bank. The trial court was not required to credit Plunkitt’s claims as

       grounds for an award of attorney fees.


[14]   Plunkitt also points to the trial court’s rulings striking the allonges in both

       Aurora I and Aurora II as evidence that the actions were frivolous, unreasonable,

       and groundless.8 Plunkitt overlooks the fact that the trial court’s rulings were



       8
         We note that Plunkitt did not file a motion requesting attorney fees or sanctions following the dismissal of
       the Aurora I, so any request for attorney fees based on that action is untimely.

       Court of Appeals of Indiana | Memorandum Decision 32A01-1605-MF-951 | July 13, 2017               Page 13 of 17
       procedural. In striking the allonges in Aurora II, the trial court relied upon its

       decision in Aurora I striking the allonges on the basis that they were first

       produced over two years into the litigation. The trial court did not make any

       substantive findings that would support a conclusion that the foreclosure

       actions were groundless. To the extent Plunkitt suggests he was entitled to an

       award of attorney fees because he was successful in both foreclosure actions, he

       is mistaken.


[15]   Contemporaneous with his motion to correct error following the denial of his

       motion for attorney fees, Plunkitt filed a motion for attorney fees and/or Rule

       11 sanctions against the law firm representing the plaintiff. In its original order

       denying Plunkitt’s request for attorney fees as against U.S. Bank, the trial court

       noted that the law firm had been “less than forthcoming/comprehensible” as to

       what entity was being represented and indicated that the law firm made the

       matter more confusing. Appellant’s Appendix Vol. 2 at 25. The trial court made

       this finding after painstaking review of the record. Having such insight, the trial

       court nevertheless denied Plunkitt’s request for attorney fees against the law

       firm. Plunkitt has not demonstrated that the trial court abused its discretion.


                                                  2. Dismissal


       Plunkitt argues that the trial court erred in dismissing his cross-complaint to

       quiet title that he filed under the foreclosure cause number after the trial court

       dismissed the matter with prejudice upon his motion. The trial court

       determined that dismissal was appropriate on several bases. We note that the


       Court of Appeals of Indiana | Memorandum Decision 32A01-1605-MF-951 | July 13, 2017   Page 14 of 17
       trial court has broad discretion in ruling on a motion to strike a pleading and its

       decision will not be reversed unless prejudicial error is clearly shown. Cua v.

       Ramos, 433 N.E.2d 745, 752 (Ind. 1982).


[16]   Ind. Trial Rule 12(F) provides:

               Upon motion made by a party before responding to a pleading,
               or, if no responsive pleading is permitted by these rules, upon
               motion made by a party within twenty [20] days after the service
               of the pleading upon him or at any time upon the court’s own
               initiative, the court may order stricken from any pleading any
               insufficient claim or defense or any redundant, immaterial,
               impertinent, or scandalous matter.


       A motion to strike is properly utilized to strike “any insufficient claim or

       defense.” In other words, a T.R. 12(F) motion to strike is a proper device to

       attack the sufficiency of the complaint to state a redressable claim. Anderson v.

       Anderson, 399 N.E.2d 391, 407 (Ind. Ct. App. 1979).


[17]   The basis for the trial court’s ruling under T.R. 12(F) was that after this court

       issued its decision in Aurora II, the issue before the court was “finalized.”

       Appellant’s Appendix Vol. 2 at 32. Indeed, in Aurora II, this court affirmed the

       dismissal with prejudice of Aurora’s foreclosure complaint and the opinion was

       certified on April 17, 2015. The only matter left to be addressed concerned

       Plunkitt’s request for attorney fees that had been stayed pending the outcome of

       the appeal. There was no continuing matter in which to file a cross-complaint.




       Court of Appeals of Indiana | Memorandum Decision 32A01-1605-MF-951 | July 13, 2017   Page 15 of 17
[18]   In claiming that the trial court’s determination in this regard was erroneous,

       Plunkitt simply asserts that he provided notice on two separate occasions that

       he “would be filing a subsequent claim” and that Aurora never objected to such

       notice. Appellant’s Brief at 36. We observe that one such “notice” was made

       during a conversation off the record. The second “notice” was a written notice

       setting forth Plunkitt’s “intention to file a Count/Third Party Complaint

       naming [DLJ] as Defendant.”9 This written notice was filed on May 22, 2015,

       which was after Aurora II was certified.10 As the trial court found, the matter

       was already “finalized” before Plunkitt filed his cross-complaint. Appellant’s

       Appendix Vol. 2 at 32.


[19]   Plunkitt has also not established any prejudice from the trial court’s dismissal of

       his cross-complaint to quiet title. Indeed, the trial court indicated in its findings

       related to venue that Plunkitt’s cross-complaint to quiet title is “not . . . properly

       filed through this case.” Appellant’s Appendix 2 at 32. Plunkitt is not foreclosed

       from filing a new action. Plunkitt has not established that the trial court abused

       its discretion in dismissing his cross-complaint to quiet title insofar as it was

       filed in the foreclosure action after the complaint to foreclose was dismissed

       with prejudice upon Plunkitt’s motion.




       9
         Aurora had filed an Amended Motion to Substitute DLJ as the named plaintiff, but the trial court did not
       rule on such motion due to dismissal of Aurora’s foreclosure complaint. DLJ was therefore not a party to the
       action at that time.
       10
            Plunkitt did not file his cross-complaint to quiet title until December 2015.


       Court of Appeals of Indiana | Memorandum Decision 32A01-1605-MF-951 | July 13, 2017           Page 16 of 17
[20]   Judgment affirmed.


[21]   Riley, J. and Crone, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 32A01-1605-MF-951 | July 13, 2017   Page 17 of 17
