                                                                  FILED
                                                             Feb 17 2020, 11:59 am

                                                                  CLERK
                                                              Indiana Supreme Court
                                                                 Court of Appeals
                                                                   and Tax Court

                          IN THE

   Indiana Supreme Court
             Supreme Court Case No. 19S-CC-531

              Collins Asset Group, LLC,
                      Appellant (Plaintiff)

                              –v–

                    Alkhemer Alialy,
                      Appellee (Defendant)


                   Decided: February 17, 2020

Appeal from the Hamilton Superior Court, No. 29D01-1704-CC-3957
             The Honorable Steven R. Nation, Judge
          The Honorable Darren J. Murphy, Magistrate

    On Petition to Transfer from the Indiana Court of Appeals,
                        No. 18A-CC-1160



                 Opinion by Chief Justice Rush
        Justices David, Massa, Slaughter, and Goff concur.
Rush, Chief Justice.

   As today’s companion opinion, Blair v. EMC Mortgage, LLC, concludes,
two statutes of limitations apply equally to a cause of action upon a
promissory note. And because both statutes prevent a mortgage lender
from waiting indefinitely to sue for a borrower’s default, there is no need
to impose an additional, judicially created time constraint.

   Here, a lender asks us to apply both statutes and find that its action to
recover the full amount owed upon an accelerated promissory note is not
time-barred. We find that, under either statute of limitations, the lender
can assert its claim. We thus reverse the trial court’s order dismissing the
lender’s complaint and remand.


Facts and Procedural History
   Alkhemer Alialy executed a promissory note and mortgage to be paid
in monthly installments over twenty-five years, beginning in September
2007. The note gave the holder the option to accelerate the debt after a
default and require immediate payment of the full amount owed.

  In July 2008, Alialy stopped making payments on the note. The note
was transferred to Collins Asset Group, LLC (CAG); and, in October 2016,
CAG accelerated the debt, demanding payment in full. When Alialy
didn’t pay, CAG sued to recover on the note in April 2017.

   Alialy filed a motion to dismiss CAG’s complaint under Trial Rule
12(B)(6), arguing that the claim was barred by the six-year statute of
limitations—Indiana Code section 34-11-2-9—for a cause of action upon a
promissory note. After a hearing, the trial court granted Alialy’s motion.

   The Court of Appeals affirmed, finding that CAG did not accelerate the
debt within six years of Alialy’s initial default and thus waited a per se
unreasonable amount of time to invoke the optional acceleration clause.
Collins Asset Grp., LLC v. Alialy, 115 N.E.3d 1275, 1279 (Ind. Ct. App. 2018).
On rehearing, the panel clarified that CAG waived its argument that the
relevant Uniform Commercial Code (UCC) statute of limitations—Indiana




Indiana Supreme Court | Case No. 19S-CC-531 | February 17, 2020      Page 2 of 6
Code section 26-1-3.1-118(a)—should also apply. Collins Asset Grp., LLC v.
Alialy, 121 N.E.3d 579, 580 (Ind. Ct. App. 2019).

  We granted transfer, vacating the Court of Appeals opinions. Ind.
Appellate Rule 58(A).


Standard of Review
    We review “a 12(B)(6) dismissal de novo, giving no deference to the
trial court’s decision. In reviewing the complaint, we take the alleged facts
to be true and consider the allegations in the light most favorable to the
nonmoving party, drawing every reasonable inference in that party’s
favor.” Bellwether Props., LLC v. Duke Energy Ind., Inc., 87 N.E.3d 462, 466
(Ind. 2017) (cleaned up).


Discussion and Decision
   Promissory notes accompany a mortgage. These negotiable instruments
call for payment in fixed installments over a period of time spanning from
a note’s execution until its maturity date. They may also contain a
provision, known as an acceleration clause, that gives a lender the option
to fast-forward to the note’s maturity date and immediately demand
payment in full if the borrower fails to pay one or more installments.

   As explained today in Blair v. EMC Mortgage, LLC, No. 19S-MF-530, ___
N.E.3d ___, slip op. at 7 (Ind. Feb. 17, 2020), two statutes of limitations
apply equally when a lender sues for payment upon a promissory note:
Section 34-11-2-9 is the general statute of limitations for claims on
promissory notes, and Section 26-1-3.1-118(a) is the relevant UCC statute
of limitations. Ind. Code § 34-11-2-9 (2019); Ind. Code § 26-1-3.1-118(a)
(2019). Under either statute, there are multiple accrual dates for causes of
action. Blair, slip op. at 8–9.

   Here, Alialy asserts that CAG waived its argument regarding Section
26-1-3.1-118(a) because CAG failed to reference that specific statute to the
trial court and instead focused on the general statute. Alialy further



Indiana Supreme Court | Case No. 19S-CC-531 | February 17, 2020      Page 3 of 6
argues that it would be “blatantly unfair” to allow CAG to accelerate the
note up to its maturity date.

   We disagree. For reasons described below, CAG did not waive its
argument under Indiana Code section 26-1-3.1-118(a). Moreover, this issue
is of no consequence. CAG invoked Indiana Code section 34-11-2-9 in the
trial court and could recover equally under either statute because it filed
suit within six years of acceleration. And, as we explained in Blair, we will
not impose an additional rule of reasonableness on a lender’s ability to
bring an action upon a closed installment contract. Blair, slip op. at 5–6.


I. CAG did not waive its argument under Indiana
   Code section 26-1-3.1-118(a).
   Alialy claims that, because CAG did not cite to the UCC or reference
Indiana Code section 26-1-3.1-118(a) to the trial court, CAG waived any
argument on appeal that the statute applied.

  This Court has addressed when a new argument may be raised on
appeal:


      The rule that parties will be held to trial court theories by the
      appellate tribunal does not mean that no new position may be
      taken, or that new arguments may not be adduced; all that it
      means is that substantive questions independent in character
      and not within the issues or not presented to the trial court
      shall not be first made upon appeal. Questions within the
      issues and before the trial court are before the appellate court,
      and new arguments and authorities may with strict propriety
      be brought forward.


Moryl v. Ransone, 4 N.E.3d 1133, 1136 (Ind. 2014) (quoting Bielat v. Folta,
141 Ind. App. 452, 454, 229 N.E.2d 474, 475 (1967), trans. denied).

  A “crucial factor” in determining whether a party may raise “what
appears to be a new issue” on appeal is whether the other party “had
unequivocal notice of the existence of the issue and, therefore, had an


Indiana Supreme Court | Case No. 19S-CC-531 | February 17, 2020       Page 4 of 6
opportunity to defend against it.” Id. at 1136–37 (quoting Hochstedler v. St.
Joseph Cty. Solid Waste Mgmt. Dist., 770 N.E.2d 910, 918 (Ind. Ct. App.
2002), trans. denied).

   In Moryl, the defendant argued that the plaintiff, who had cited one
statute in the trial court, waived her claim under a different statute on
appeal because she “did not present this assertion until her petition for
rehearing.” Id. at 1136. We disagreed, reasoning that the defendant had
notice of the underlying issue below because both statutes “intersect[ed]
on the same subject”—timeliness under a statute of limitations. Id. at
1137–38. We also observed that, on appeal, the defendant had notice of the
new claim and an opportunity to defend against it. Id. at 1137. The same is
true here.

    In its response to Alialy’s motion to dismiss, CAG argued that the
timing of the statute of limitations enabled it to recover. Specifically, CAG
asserted that the six-year statute of limitations did not begin to run until it
exercised its optional acceleration clause in 2016; and thus, its complaint
filed in 2017 fell “well within the applicable” time period. Though CAG
cited only Section 34-11-2-9 below, the issue before the trial court was
whether CAG’s complaint was filed within the six-year limitations period.
And, as we explained in Blair, that time period is identical under either
statute. Blair, slip op. at 7–9. In other words, Alialy was on notice of the
timing issue in the trial court and had notice and an opportunity to defend
against both statutes on appeal. Accordingly, CAG’s argument that its
claim was also timely filed under the relevant UCC statute is not waived.

   But this waiver issue ultimately does not affect CAG’s ability to recover
the amounts that it is owed.


II. CAG can equally recover amounts owed under
    either statute of limitations.
   For the reasons outlined in Blair, we find that—under either of
Indiana’s two applicable statutes of limitations—a cause of action for
payment upon a promissory note with an optional acceleration clause can
accrue on multiple dates. Id. One of those dates is when a lender exercises


Indiana Supreme Court | Case No. 19S-CC-531 | February 17, 2020       Page 5 of 6
its option to accelerate before a note matures. Id. at 8–9. And, as also
explained in Blair, we find it unnecessary to impose a rule of
reasonableness when a lender sues to enforce installment obligations on a
closed installment contract, such as a promissory note. Id. at 5–6.

   Here, the two statutes provide CAG identical paths to relief. Cf. Moryl,
4 N.E.3d at 1138 (noting that the plaintiff timely filed her complaint under
either statute). CAG brought its claim against Alialy in 2017, well within
six years of when it accelerated the debt in 2016. Thus, CAG’s claim to
recover the full amount owed on the note is not time-barred.


Conclusion
   We find that CAG did not waive its argument under Indiana Code
section 26-1-3.1-118(a). But this issue is of no consequence, because under
either applicable statute of limitations, CAG’s claim is timely. We thus
reverse the trial court’s order dismissing CAG’s complaint and remand.


David, Massa, Slaughter, and Goff, JJ., concur.



ATTORNEYS FOR APPELLANT
Brad A. Council
Slovin & Associates Co., LPA
Cincinnati, Ohio

Michael J. Feiwell
Bryan K. Redmond
Feiwell & Hannoy, P.C.
Indianapolis, Indiana

ATTORNEY FOR APPELLEE
Christopher J. McElwee
Monday McElwee Albright
Indianapolis, Indiana




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