      MEMORANDUM DECISION
                                                                          Mar 05 2015, 10:21 am
      Pursuant to Ind. Appellate Rule 65(D), this
      Memorandum Decision shall not be regarded as
      precedent or cited before any court except for the
      purpose of establishing the defense of res judicata,
      collateral estoppel, or the law of the case.



      ATTORNEY FOR APPELLANT                                   ATTORNEY FOR APPELLEE
      Miranda D. Bray                                          Clifford T. Rubenstein
      Manley Deas Kochalski, LLC                               Maurer Rifkin & Hill, P.C.
      Indianapolis, Indiana                                    Carmel, Indiana



                                                   IN THE
          COURT OF APPEALS OF INDIANA

      Aurora Loan Services, LLC,                               March 5, 2015

      Appellant-Defendant,                                     Court of Appeals Case No.
                                                               32A04-1403-MF-104
              v.                                               Appeal from the Hendricks Superior
                                                               Court

      Gary Brian Plunkitt and                                  The Honorable Matthew G. Hanson,
                                                               Special Judge
      Robert Nelson Imbody
                                                               Cause No. 32D05-1109-MF-522
      Appellee-Plaintiff



      Mathias, Judge.

[1]   Aurora Loan Services, LLC (“Aurora”) appeals from the Hendricks Superior

      Court’s dismissal of its complaint against Gary Plunkitt (“Plunkitt”) and Robert

      Imbody (“Imbody”) (collectively, “the Defendants”) seeking to enforce a

      promissory note on a residential property after Plunkitt defaulted on the note.



      Court of Appeals of Indiana | Memorandum Decision 32A04-1403-MF-104 | March 5, 2015         Page 1 of 16
      Aurora raises four issues on appeal. We find the following three restated issues

      to be dispositive:

                 I. Whether the trial court abused its discretion by striking two allonges1
                 submitted by Aurora with its complaint;
                 II. Whether the trial court erred in denying Aurora’s motion for leave to amend
                 its complaint; and
                 III. Whether the trial court erred in failing to convert the Defendants’ motion
                 to dismiss to a motion for summary judgment.

[2]   We affirm.



                               Facts and Procedural History
[3]   This case has a lengthy and complicated procedural history involving two

      separate causes of action.2 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 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 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 allonges. CIT also attached to its complaint a copy of the

      mortgage, which named CIT as the lender and MERS as the mortgagee, and a



      1
        Black’s Law Dictionary 76 (7th ed.1999) defines an “allonge” as a paper “attached to a negotiable
      instrument for the purpose of receiving further indorsements when the original is filled.”
      2
          Plunkitt has been represented by counsel throughout the proceedings, and Imbody has proceeded pro se.

      Court of Appeals of Indiana | Memorandum Decision 32A04-1403-MF-104 | March 5, 2015              Page 2 of 16
      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.

[4]   In May 2009, CIT petitioned the trial court to substitute Aurora as plaintiff in

      CIT’s place. The court granted the petition. 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.


[5]   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. 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. Appellant’s App.

      p. 114. Aurora also argued, as an alternative theory, that it was entitled to

      enforce the note as a non-holder transferee pursuant to Uniform Commercial




      Court of Appeals of Indiana | Memorandum Decision 32A04-1403-MF-104 | March 5, 2015   Page 3 of 16
      Code (“U.C.C.”) section 3-301(2), codified at Indiana Code sections 26-1-3.1-

      301(2).3

[6]   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.” Appellant’s App. p. 126. Aurora moved to file a second

      amended complaint, and the trial court denied the motion. Aurora did not

      appeal the dismissal of its November 7, 2007 complaint.

[7]   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



      3
          Indiana code section 26-1-3.1-301 provides, in relevant part:
      “Person entitled to enforce” an instrument means:
      (1) the holder of the instrument;
      (2) a nonholder in possession of the instrument who has the rights of a holder;
      ***
      A person may be a person entitled to enforce the instrument even though the person is not the owner of the
      instrument or is in wrongful possession of the instrument.”

      Court of Appeals of Indiana | Memorandum Decision 32A04-1403-MF-104 | March 5, 2015             Page 4 of 16
      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.

[8]   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).4


[9]   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 in

      Aurora’s place as plaintiff.5 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.



      4
        Indiana Code section 26-1-3.1-301(1) provides that a “‘[p]erson entitled to enforce’ an instrument means . . . the
      holder of the instrument[.]”
      5
        The Defendants/Appellees filed with this court a motion to dismiss the appeal for lack of subject matter
      jurisdiction based on the non-existence of the Appellant, Aurora. This court denied the Appellees’ motion.

      Court of Appeals of Indiana | Memorandum Decision 32A04-1403-MF-104 | March 5, 2015                    Page 5 of 16
[10]   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.”

       Appellant’s App. p. 20. 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 the [Aurora] could not prove that

       they had a right back then any more than they can prove they have a right

       now.” Appellant’s App. p. 21.

[11]   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.

[12]   Aurora now appeals.



                                 Discussion and Decision
       Court of Appeals of Indiana | Memorandum Decision 32A04-1403-MF-104 | March 5, 2015   Page 6 of 16
                                            I. Motion to Strike Allonges

[13]   Aurora first argues that the trial court abused its discretion in striking the two

       allonges Aurora submitted as exhibits with its complaint. Specifically, Aurora

       argues that the allonges the trial court struck were self-authenticating and

       “required to be attached to Aurora’s complaint . . . as they were a part of the

       written instrument creating the debt.” Appellant’s Br. at 15. To support its

       argument, Aurora cites Indiana Trial Rule 9.2(A),6 Indiana Trial Rule 12(F),7

       Indiana Rule of Evidence 902(9),8 as well as Bell Atl. Corp. v. Twombly, 550 U.S.

       544 (2007)9 and Ashcroft v. Iqbal, 556 U.S. 662 (2009).10


[14]   The Defendants argued in their joint motion to strike that the first allonge was

       “not an allonge because it was not affixed to the Note” and that, therefore, the

       endorsement contained on the allonge “was not an endorsement of the Note,

       but rather an endorsement of a blank piece of paper.” Appellant’s App. p. 83.



       6
         Indiana Trial Rule 9.2(A) provides, “When any pleading allowed by these rules is founded on a written
       instrument, the original, or a copy thereof, must be included in or filed with the pleading. Such instrument,
       whether copied in the pleadings or not, shall be taken as part of the record.”
       7
         Indiana Trial Rule 12(F) states that “[u]pon 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.”
       8
        Under Indiana Rule of Evidence 902(9), “[c]ommercial paper, a signature on it, and related documents, to
       the extent allowed by general commercial law” is self-authenticating.
       9
        Under Twombly, for factual allegations to survive a motion to dismiss for failure to state a claim upon which
       relief can be granted, they must be sufficient to raise a right to relief above the speculative level, on the
       assumption that all the allegations in the complaint are true even if doubtful in fact.
       10
         In Ashcroft, the U.S. Supreme Court held, in relevant part, that to survive motion to dismiss, a complaint
       must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face. A
       claim has “facial plausibility” when the plaintiff pleads factual content that allows the court to draw a
       reasonable inference that the defendant is liable for the misconduct alleged.

       Court of Appeals of Indiana | Memorandum Decision 32A04-1403-MF-104 | March 5, 2015                     Page 7 of 16
       The Defendants also indicated their belief that the allonge was forged and the

       note altered. The Defendants noted that although the allonge purported to show

       that CIT transferred its interest to Aurora on November 7, 2007, it was not until

       March 27, 2009, that CIT sought to substitute Aurora as plaintiff. The

       Defendants argue that the endorsement on the second allonge was an

       anomalous endorsement, or an endorsement made by someone other than the

       holder of the instrument, namely, Aurora. The Defendants maintained that the

       purported second allonge “was simply fabricated and affixed to the Note in

       anticipation of litigation.” Id. at 86.


[15]   In its order striking the two allonges, the trial court stated:

               11) [N]ow, Plaintiff has presented exactly the same evidence as they
               did in their first case but have included another allonge (allonge #2)
               which essentially says the rights from the first allonge have been
               transferred to the proper Plaintiff.
               12) The Plaintiff argued to this court that it would be improper to look
               outside the pleadings to make any determination on a motion to
               dismiss.
               13) What this thought process and request lacks, however, is the fact
               that what has occurred outside of this case, up to this point, is exactly
               what must be looked at in order to determine whether the Plaintiff has
               any current right to enforce an alleged default on this note.


               14) To ignore the past actions, the past rulings and the actions of the
               Plaintiff in coming to some sort of determination on this motion to
               dismiss would be an injustice to the system, a waste of resources and
               continue an action that has been fraught with deceptive acts by prior
               counsel in this case.
               15) As such, this Court will absolutely consider the actions of the prior
               court and the actions in this case to determine whether or not this case
               should continue.
       Court of Appeals of Indiana | Memorandum Decision 32A04-1403-MF-104 | March 5, 2015   Page 8 of 16
               16) First, there is no question that essentially all of the same
               documents and all of the same allegations regarding breach are the
               same as the case decided by [the Aurora I court].
               17) That even though the allonge #1 that was presented at the eleventh
               hour in the prior case was struck, not considered, and thereafter the
               Motion to Dismiss was granted in that case, the Plaintiff’s request for
               this court to find that since the allonge #1 was never considered, this is
               different evidence.
               18) As well, the appearance of a self-serving allonge #2, prepared
               again by Aurora, to try and show that allonge #1 was accurate and
               transferred an interest, does not itself create new evidence upon which
               this Court should now rely to find standing exists.
               19) To permit the Plaintiff to utilize the questionable allonge #1 to
               thereafter transfer rights by writing up and attaching allonge #2
               circumvents the prior court ruling that the allonge #1 is either
               fraudulent or inaccurate and therefore was stricken from consideration
               by that court.
               20) In other words, there is no new evidence upon which the Plaintiff
               again is making a claim they are a proper party unless this court
               ignores the prior finding of the Special Judge as the Plaintiff asks this
               court to do.
               21) Despite the invitation, this Court will consider the prior findings of
               the Special Judge and continue to agree that allonge #1 should be
               stricken from the record since it created no interest in making a party
               before and should not be allowed to do so again.
               22) As well, in light of that prior finding which was litigated and not
               appealed by Plaintiffs as to allonge #1 being stricken, this court must
               strike and not consider allonge #2 which was generated only as a
               response to allonge #1 being
               questionable/improper/unreliable/fraudulent (whatever the reason
               was by the Special Judge which is unclear from her order).

       Appellant’s App. pp. 18-19.

[16]   Under these facts and circumstances, the trial court did not abuse its discretion

       in striking the two allonges submitted by Aurora. It is well settled that a prior

       Court of Appeals of Indiana | Memorandum Decision 32A04-1403-MF-104 | March 5, 2015   Page 9 of 16
       court order may serve as a basis for a court’s judgment. Schultz v. Farm Credit

       Servs. of Mid-Am., 692 N.E.2d 504 (Ind. Ct. App. 1998) (concluding that prior

       court order which was based on court’s conclusion that individual held no

       interest in subject property could properly form basis of subsequent order in

       separate action, even if prior order was “unfinal” because it did not resolve all

       issues as to all parties, where no timely appeal from prior order had been

       taken). Here, the trial court specifically noted that it would strike the first

       allonge based on the order issued by the trial court in Aurora I and the second

       allonge because its only purpose was to attempt to show that the stricken first

       allonge was authentic.11 This was within the trial court’s discretion, and we

       find no error.


                                         II. Aurora’s Alternate Theories

[17]   Aurora next argues that the trial court abused its discretion by striking Aurora’s

       alternate theories of recovery. However, this argument is more properly framed

       as whether the trial court erred in denying Aurora’s motion for leave to amend

       its already-amended complaint.

[18]   After the trial court dismissed Aurora’s amended complaint, Aurora filed a

       motion to correct error in which it argued, in part, that it should be given leave

       to amend its complaint to assert a right to enforce the note under Indiana Code

       sections 26-1-3.1-301(2) and -301(3). The trial court denied Aurora’s request,


       11
         Aurora also argues that by striking the allonges, the trial court erred by essentially nullifying the alternate
       argument that Aurora was the transferee of the note. Since we have already determined that the trial court
       did not abuse its discretion in striking the allonges, we conclude that this argument is without merit.

       Court of Appeals of Indiana | Memorandum Decision 32A04-1403-MF-104 | March 5, 2015                  Page 10 of 16
       issuing an order that provided, in relevant part, that “Plaintiff’s alternate

       theories of recovery under U.C.C. 301(2) and 301(3) . . . hereby are stricken.”

       Appellant’s App. p. 162. The effect of the trial court’s order, however, was to

       deny Aurora’s request for leave to amend its complaint.

[19]   Indiana Trial Rule 15(A) provides that:

               A party may amend his pleading once as a matter of course at any
               time before a responsive pleading is served or, if the pleading is one to
               which no responsive pleading is permitted, and the action has not been
               placed upon the trial calendar, he may so amend it at any time within
               thirty [30] days after it is served. Otherwise a party may amend his
               pleading only by leave of court or by written consent of the adverse
               party; and leave shall be given when justice so requires.

[20]   The grant or denial of leave to amend under Trial Rule 15(A) is a matter within

       the sound discretion of the trial court. Beta Alpha Shelter of Delta Tau Delta

       Fraternity, Inc. v. Strain, 446 N.E.2d 626, 631 (Ind. Ct. App. 1983). Thus, we

       will reverse the decision of the trial court only upon a manifest showing of

       abuse of discretion. Brenneman Mech. & Elec., Inc. v. First Nat. Bank of Logansport,

       495 N.E.2d 233, 244 (Ind. Ct. App. 1986).

[21]   In Hilliard v. Jacobs, 927 N.E.2d 393 (Ind. Ct. App. 2010), trans. denied, the

       plaintiff filed a motion for leave to amend her complaint three years after the

       filing of the initial complaint to “add new legal theories that were available to

       her at the outset of the case.” Id. at 400. On appeal from the trial court’s denial

       of the motion, another panel of this court noted that the plaintiff filed for leave

       to amend the complaint only after it became apparent that her initial claims

       would fail. Id. This court also observed that the plaintiff failed to provide any

       Court of Appeals of Indiana | Memorandum Decision 32A04-1403-MF-104 | March 5, 2015   Page 11 of 16
       credible reason as to why she had not included the proposed claims in her

       original complaint. Id. Ultimately, this court affirmed the trial court’s denial of

       the plaintiff’s motion for leave to amend her complaint. Id.


[22]   In Aurora II, the case before us, Aurora asserted in its original complaint a right

       to enforce the note under Indiana Code section 26-1-3.1-301. Plunkitt and

       Imbody filed a request for a more definite statement. In response, Aurora

       amended its complaint to specify a theory of recovery under Indiana Code

       section 26-1-3.1-301(1), making essentially the same arguments it made in

       Aurora I. It was only after the trial court dismissed Aurora’s amended complaint

       that Aurora sought to again amend its complaint to attempt to enforce the note

       pursuant to Indiana Code sections 26-1-3.1-301(2) and -301(3).

[23]   The alternate arguments proposed by Aurora in its request for leave to amend

       its complaint were available to Aurora from the outset of the litigation. As was

       the case in Hilliard, allowing Aurora to amend its complaint and add additional

       theories of recovery after the original theories had been dismissed would cause

       the Defendants to “defend [against] piecemeal litigation” while giving Aurora

       “potentially endless ‘bites at the apple.’” Hilliard, 927 N.E.2d at 400. Therefore,

       under these facts and circumstances, we cannot say that the trial court abused

       its discretion in denying Aurora’s after-the-fact motion for leave to amend its

       complaint.




       Court of Appeals of Indiana | Memorandum Decision 32A04-1403-MF-104 | March 5, 2015   Page 12 of 16
                                     III. Motion to Dismiss Standard

[24]   Aurora argues that the trial court “committed reversible error by failing to

       convert the motion to dismiss to one for summary judgment when considering

       evidence outside the pleadings.” Appellant’s Br. at 24. We agree with Aurora

       that the trial court should have converted the Defendants’ motion to dismiss to

       a motion for summary judgment but disagree with its contention that this error

       was reversible.

[25]   Indiana Trial Rule 12(B) provides:

               If, on a motion, asserting the defense number (6), to dismiss for failure
               of the pleading to state a claim upon which relief can be granted,
               matters outside the pleading are presented to and not excluded by the
               court, the motion shall be treated as one for summary judgment and
               disposed of as provided in Rule 56. In such case, all parties shall be
               given reasonable opportunity to present all material made pertinent to
               such a motion by Rule 56.

[26]   “Matters outside the pleadings” are “those materials that would be admissible

       for summary judgment purposes, such as depositions, answers to

       interrogatories, admissions, and affidavits.” Fox Development, Inc. v. England, 837

       N.E.2d 161, 164 (Ind. Ct. App. 2005).


[27]   Here, in ruling on the Defendants’ motion to dismiss, the trial court considered

       the Aurora I court’s judgment and exhibits attached to the Defendants’ motion

       to dismiss. The trial court therefore should have converted the motion to

       dismiss to a motion for summary judgment. See Runkle v. Runkle, 916 N.E.2d

       184 (Ind. Ct. App. 2009) (on plaintiff’s appeal from dismissal of her claim, with

       prejudice, the Court of Appeals would view the defendant’s motion to dismiss,
       Court of Appeals of Indiana | Memorandum Decision 32A04-1403-MF-104 | March 5, 2015   Page 13 of 16
       which included a number of exhibits such as a prior judgment, as a motion for

       summary judgment).

[28]   Indiana Trial Rule 12(B)(8) provides that when a 12(B)(6) motion is to be

       treated as one for summary judgment, “all parties shall be given reasonable

       opportunity to present all material made pertinent to such a motion by Rule

       56.” When a trial court treats a 12(B)(6) motion as one for summary judgment

       and does not afford the parties a reasonable opportunity to present such

       material, the trial court commits reversible error. Carrell v. Ellingwood, 423

       N.E.2d 630, 634 (Ind. Ct. App. 1981). However, when the trial court does in fact

       afford the parties a reasonable opportunity to present external material, the

       failure to specifically designate a motion as one for summary judgment instead

       of dismissal under 12(B)(6) is deemed harmless error, and the appellate court

       will simply review the case as if arising from a grant of summary judgment. See

       ITT Hartford Ins. Grp. v. Trowbridge, 626 N.E.2d 567, 569 (Ind. Ct. App. 1993).


[29]   In this case, Aurora was given ample opportunity to present material external to

       the pleadings in opposition to the Defendants’ motion and in fact did submit

       such material, namely responsive pleadings and additional evidence, and had

       the opportunity to rebut the Defendants’ position at a hearing on the motion to

       dismiss. The trial court’s failure to treat the 12(B)(6) motion as one for

       summary judgment did not create unfairness caused by surprise to Aurora.




       Court of Appeals of Indiana | Memorandum Decision 32A04-1403-MF-104 | March 5, 2015   Page 14 of 16
       Thus, the error is harmless.12 See Dixon v. Siwy, 661 N.E.2d 600, 604-05 (Ind.

       Ct. App. 1996); Duran v. Komyatte, 490 N.E.2d 388, 391 (Ind. Ct. App. 1986)

       (motion to dismiss for failure to state a claim upon which relief could be

       granted should have been converted to a motion for summary judgment, where

       ruling on motion was not made the same day objections to the motion were

       filed by nonmoving party, and counsel for nonmoving party had opportunity at

       hearing on motion to rebut position of moving party and introduce new matters

       in addition to those already contained in memorandum in opposition to the

       motion; however, error was harmless).



                                                  Conclusion
[30]   For all of these reasons, we conclude that the trial court did not abuse its

       discretion in striking two allonges submitted by Aurora with its complaint and

       did not err in denying Aurora’s motion for leave to amend its complaint. The

       trial court did err in failing to convert the Defendants’ motion to dismiss to a

       motion for summary judgment, but because Aurora was provided a unique and

       ample opportunity to rebut the Defendants’ arguments over the course of two

       cases involving the same facts, this error was harmless.


       12
           Aurora also argues that the trial court erred by misapplying the Indiana Trial Rule 12(B)(6) standard in
       failing to “accept as true all of the allegations contained in the complaint” and failing to allow any plausible
       claim for relief to survive dismissal. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 572, 127 S. Ct. 1955, 1975, 167
       L. Ed. 2d 929 (2007). However, we have already determined that because the trial court considered materials
       outside the pleadings, we will treat this matter as an appeal from a grant of summary judgment. Aurora’s
       argument regarding the proper standard to be applied when ruling on a 12(B)(6) motion therefore is moot.
       Furthermore, even, under the 12(B)(6) standard, after the trial court struck the two allonges, no evidence was
       presented before the trial court that Aurora had any right to recover under the note, and therefore, no
       plausible claim for relief available to Aurora.

       Court of Appeals of Indiana | Memorandum Decision 32A04-1403-MF-104 | March 5, 2015               Page 15 of 16
[31]   Affirmed.


       Riley, J., and Crone, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 32A04-1403-MF-104 | March 5, 2015   Page 16 of 16
