MEMORANDUM DECISION
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                             FILED
the defense of res judicata, collateral                              Jul 31 2017, 5:51 am
estoppel, or the law of the case.
                                                                         CLERK
                                                                     Indiana Supreme Court
                                                                        Court of Appeals
                                                                          and Tax Court




ATTORNEY FOR APPELLANT                                   ATTORNEY FOR APPELLEE
Gary D. Sallee                                           Jordan Huttenlocker
Fishers, Indiana                                         Dykema Gossett PLLC
                                                         Chicago, Illinois



                                           IN THE
    COURT OF APPEALS OF INDIANA

Mitza N. Durham,                                         July 31, 2017
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         36A05-1608-MF-1925
        v.                                               Appeal from the Jackson Superior
                                                         Court
JP Morgan Chase Bank, N.A.,                              The Honorable Bruce Markel III,
Appellee-Plaintiff                                       Judge
                                                         Trial Court Cause No.
                                                         36D01-1304-MF-54



Crone, Judge.




Court of Appeals of Indiana | Memorandum Decision 36A05-1608-MF-1925 | July 31, 2017         Page 1 of 10
                                             Case Summary
[1]   Mitza N. Durham appeals the trial court’s denial of her motion to set aside a

      judgment of mortgage foreclosure in favor of JP Morgan Chase Bank, N.A.

      (“Chase”). Finding no error, we affirm.


                                 Facts and Procedural History
[2]   In July 2007, Mitza’s then-husband Charles signed a note for a home equity

      line of credit, which was secured by a mortgage on their residence (“the

      Property”). The mortgage was signed by both Charles and Mitza and

      ultimately was transferred to Chase. In March 2011, Charles stopped making

      payments on the note. At some point, the Durhams’ marriage was dissolved,

      and the Property was awarded to Mitza.


[3]   In April 2013, Chase filed a complaint against Mitza and Charles on the note

      and to foreclose the mortgage. Chase requested an in personam judgment

      against Charles and an in rem judgment against the Property. Charles was

      served by the sheriff, who left a copy of the summons and complaint at the

      Property, his last known address. No one appeared for Charles. Mitza was

      similarly served, and her counsel appeared and filed an answer to Chase’s

      complaint.


[4]   On March 17, 2016, Chase filed a motion for summary and default judgment

      and decree of foreclosure, asserting that Charles had defaulted on the note and

      therefore Chase was entitled to a decree of foreclosure pursuant to the terms of

      the mortgage. Neither Mitza nor Charles filed a timely response. On April 20,

      Court of Appeals of Indiana | Memorandum Decision 36A05-1608-MF-1925 | July 31, 2017   Page 2 of 10
      2016, the trial court issued an order granting Chase’s motion for summary and

      default judgment and decree of foreclosure, in which it awarded Chase an in

      personam judgment against Charles and an in rem judgment against the

      Property for over $313,000 and ordered the Property sold to satisfy the

      judgment. Two days later, Mitza filed a response to Chase’s motion and an

      affidavit in which she averred that she did not sign the second mortgage. The

      trial court issued an order finding Mitza’s response untimely and affirming its

      previous order.


[5]   On June 3, 2016, Mitza filed a motion to set aside/vacate the judgment and an

      affidavit in which she averred for the first time that Charles had not resided at

      the Property since August 2010 and had concealed his whereabouts since that

      time. She argued that Charles had not been properly served and therefore the

      judgment was void for lack of personal jurisdiction. In response, Chase argued

      that Mitza did not have standing to raise that issue. The trial court denied

      Mitza’s motion. This appeal followed.


                                     Discussion and Decision
[6]   Mitza argues that the trial court erred in denying her motion, which we

      construe as a motion for relief from judgment pursuant to Indiana Trial Rule

      60(B). We typically review a trial court’s ruling on a Trial Rule 60(B) motion

      for an abuse of discretion, which occurs when the ruling is clearly against the

      logic and effect of the supporting facts and inferences. Hair v. Deutsche Bank

      Nat’l Trust Co., 18 N.E.3d 1019, 1022 (Ind. Ct. App. 2014). Mitza attacked the

      trial court’s order on Chase’s motion for summary and default judgment as void
      Court of Appeals of Indiana | Memorandum Decision 36A05-1608-MF-1925 | July 31, 2017   Page 3 of 10
      for lack of personal jurisdiction pursuant to Trial Rule 60(B)(6). A judgment

      that is void for lack of personal jurisdiction may be collaterally attacked at any

      time. Id. Whether a court has personal jurisdiction over a defendant is a

      question of law subject to de novo review. Id.


[7]   We need not address Mitza’s jurisdictional issue, however. By signing the

      mortgage contract, Mitza agreed that the mortgage holder could foreclose on

      her in rem interest in the Property; foreclosure was contingent upon Charles’s

      default on the note, not upon an in personam judgment against Charles. See

      Appellee’s App. at 11 (mortgage contract: “Upon the occurrence of a default

      …, Lender may institute an action to foreclose this Mortgage under Indiana

      law.”). On summary judgment, Chase asserted that Charles was in default, and

      Chase submitted an affidavit of indebtedness in support of this assertion. By

      granting Chase’s summary judgment motion, the trial court ruled in Chase’s

      favor on the issue of default. Mitza failed to file a timely response to Chase’s

      motion and may not attempt to litigate the issue for the first time on appeal. See

      Dunaway v. Allstate Ins. Co., 813 N.E.2d 376, 387 (Ind. Ct. App. 2004) (“Issues

      not raised before the trial court on summary judgment cannot be argued for the

      first time on appeal and are waived.”). Nor may she attempt to litigate the issue

      of whether she actually signed the mortgage. Id. Therefore, we affirm.


[8]   Affirmed.


      Baker, J., concurs.
      Barnes, J., dissents with opinion.


      Court of Appeals of Indiana | Memorandum Decision 36A05-1608-MF-1925 | July 31, 2017   Page 4 of 10
                                                 IN THE
          COURT OF APPEALS OF INDIANA

      Mitza N. Durham,
      Appellant-Defendant,                                     Court of Appeals Case No.
                                                               36A05-1608-MF-1925
              v.

      JP Morgan Chase Bank, N.A.,
      Appellee-Plaintiff.




      Barnes, Judge.


[9]   I respectfully dissent. The majority concludes that Chase demonstrated Charles

      was in default by submitting an affidavit of indebtedness, and nothing else was

      required to foreclose the second mortgage at issue here. I would, however,

      address the issue raised by the parties—whether Durham had standing to raise

      the lack of personal jurisdiction over a co-defendant. I conclude that Durham

      had standing to raise the issue, that the trial court did not have personal

      jurisdiction over Charles, and that the judgment finding Charles in default on


      Court of Appeals of Indiana | Memorandum Decision 36A05-1608-MF-1925 | July 31, 2017   Page 5 of 10
       the note is void. Consequently, I do not believe that foreclosure of the second

       mortgage is proper at this point.


[10]   “A judgment entered where there has been insufficient service of process is void

       for want of personal jurisdiction.” Hair v. Deutsche Bank Nat. Trust Co., 18

       N.E.3d 1019, 1022 (Ind. Ct. App. 2014) (citing Front Row Motors, LLC v. Jones, 5

       N.E.3d 753, 759 (Ind. 2014)). The trial court found that Durham had no

       standing to object to the lack of proper personal service on Charles. Whether a

       co-defendant has the ability to challenge the lack of personal service on another

       defendant appears to be an issue of first impression in Indiana. 1 In support of

       her argument that she is entitled to challenge the lack of personal service on

       Charles, Durham relies in part on U-Haul Intern., Inc. v. Nulls Machine and Mfg.

       Shop, 736 N.E.2d 271 (Ind. Ct. App. 2000), trans. denied.


[11]   In U-Haul, a defendant filed a motion to correct error challenging the grant of

       summary judgment to several co-defendants.                       The plaintiff argued that the

       defendant lacked standing to challenge the grant of summary judgment to the

       co-defendants. We held that, “[i]n order to have standing to challenge the

       dismissal of a co-defendant from a lawsuit, the challenging party must

       demonstrate that it has a stake in the outcome of the ruling.” U-Haul, 736

       N.E.2d at 275 (citing Shand Mining, Inc. v. Clay County Bd. of Comm’rs, 671




       1
        Chase relies on Stidham v. Whelchel, 698 N.E.2d 1152 (Ind. 1998), for the proposition that challenges to
       personal jurisdiction over a defendant can only be raised by that defendant and are waivable. However,
       Stidham did not concern a defendant challenging the service of process and personal jurisdiction over a third
       party. I do not find Stidham applicable here.

       Court of Appeals of Indiana | Memorandum Decision 36A05-1608-MF-1925 | July 31, 2017              Page 6 of 10
       N.E.2d 477 (Ind. Ct. App. 1996), trans. denied). We noted that, in general,

       “‘[o]ne defendant does not have standing to appeal a judgment rendered in

       favor of a co-defendant unless the defendant suffers some prejudice as a result

       of the entry of judgment in favor of the co-defendant.’” Id. (quoting Shand

       Mining, 671 N.E.2d at 479). The defendant in U-Haul argued that it was

       prejudiced by the grant of summary judgment to the co-defendants because it

       was exposed to a chance of greater liability for damages resulting from the

       accident. Id.


[12]   We found no Indiana case that was directly on point regarding whether a co-

       defendant has standing to challenge a summary judgment ruling that operates

       to dismiss another co-defendant from the case. Id. After analyzing several

       cases from other states and comparable Indiana cases, we concluded that a

       defendant may demonstrate standing if “it has a stake in the outcome and will

       potentially suffer prejudice as a result of a co-defendant’s dismissal.” Id. at 280.

       However, the “remaining co-defendant must do something at the trial court

       level to preserve the error.” Id. “The failure to do so waives the claim for

       purposes of appeal.” Id. In U-Haul, the defendant opposed the co-defendants’

       motions for summary judgment by filing a brief in opposition to the motions

       and by filing a motion to correct error. Consequently, we concluded that the

       defendant had standing to appeal the grant of summary judgment to the co-

       defendants.


[13]   In the context of whether a defendant can challenge the lack of service on a co-

       defendant, courts have generally held that “questions of defective service of

       Court of Appeals of Indiana | Memorandum Decision 36A05-1608-MF-1925 | July 31, 2017   Page 7 of 10
       process may be raised only by the one on whom attempted service was made.”

       Hull v. D. Irvin Transp. Ltd., 690 P.2d 414, 417 (Mont. 1984). However, some

       courts have allowed such challenges where the complaining party would be

       harmed by the lack of service. See Superior Outdoor Advert. Co. v. State Highway

       Comm’n of Missouri, 641 S.W.2d 480, 483 (Mo. Ct. App. 1982) (“[T]he general

       rule is that the issue of defective service of process may be raised only by the

       one on whom the attempted service was made and one defendant, in the

       absence of prejudice to his own interests, is not entitled to urge defects in

       service on a co-defendant.”); see also 62B AM. JUR. 2D Process § 285 (“Questions

       of effective service of process may be raised only by the person upon whom

       service was attempted. However, there are exceptions where strict adherence to

       this rule would create a deprivation of rights.”) (footnotes omitted); 72 C.J.S.

       Process § 123 (“Generally, questions regarding defective service of process are

       personal to the person upon whom such defective service is made. Thus, the

       issue of defective service of process may ordinarily be raised only by the one on

       whom attempted service has been made, and it may not be raised by others. . . .

       One defendant, in the absence of prejudice to his or her own interest, is not

       entitled to urge defects in the service on his or her codefendants.”) (footnotes

       omitted).


[14]   In O’Connell v. Will, 263 P.3d 41 (Alaska 2011), the Alaska Supreme Court

       noted that generally a party cannot object to another party’s defective service on

       a third party. The court went on to discuss standing principles that a party must

       demonstrate a sufficient personal stake in the outcome of a controversy. The


       Court of Appeals of Indiana | Memorandum Decision 36A05-1608-MF-1925 | July 31, 2017   Page 8 of 10
       court then held that a creditor did not have standing to challenge an ex-

       husband’s failure to serve his ex-wife with a motion. The court rejected the

       creditor’s argument that the ex-wife might have an “indemnity claim” against

       the ex-husband that “could have potentially been negatively” affected by the ex-

       husband’s motion. O’Connell, 263 P.3d at 44. The court noted that the

       potential injury was to the ex-wife, not the creditor.


[15]   Chase relies on Lawson v. Qingdao Taifa Grp. Co., No. 1:10-CV-753-JMS-DKL,

       2013 WL 5303741 (S.D. Ind. Sept. 19, 2013), which held that a garnishee

       defendant did not have standing in garnishment proceedings to challenge the

       district court’s personal jurisdiction over the judgment defendant in the

       underlying action. There was no discussion in Lawson of whether the garnishee

       defendant’s own interests were somehow prejudiced by the alleged lack of

       personal jurisdiction in the underlying action.


[16]   I find the approach used in U-Haul and O’Connell to be appropriate here. I

       conclude that, in general, a defendant cannot challenge the lack of proper

       service on a co-defendant unless the complaining defendant’s rights would be

       prejudiced. As current owner of the mortgaged property, Durham’s rights

       would be prejudiced by a judgment against Charles on the line of credit and




       Court of Appeals of Indiana | Memorandum Decision 36A05-1608-MF-1925 | July 31, 2017   Page 9 of 10
       foreclosure of the second mortgage.2 I, therefore, conclude that Durham had

       standing to raise the issue of lack of service on Charles.


[17]   In support of her motion to set aside the judgment, Durham submitted an

       affidavit that provided Charles has not resided at the property since August

       2010, he did not reside there in April 2013 when the complaint was served by

       the sheriff and copy service, and he has concealed his whereabouts since August

       2010. Given these allegations, it is apparent that Charles was not properly

       served and that the trial court did not have personal jurisdiction over Charles. 3

       Consequently, the default judgment against Charles is void. The majority

       determines that, regardless, the foreclosure can proceed. However, the

       foreclosure of the second mortgage is based on Charles’s default on the note,

       which he has not had the opportunity to dispute because he was never properly

       served. The foreclosure of the second mortgage on Durham’s property would

       be improper under such circumstances. I would reverse the denial of Durham’s

       motion to set aside and remand for proper service of the action on Charles.




       2
         I acknowledge that U-Haul required the complaining party to raise the issue before the trial court. Here,
       Durham did not raise the issue during the summary judgment proceedings. Rather, she failed to file a timely
       response to the motion for default judgment and summary judgment, failed to file a timely appeal, and did
       not raise the issue until her motion to set aside the judgment. However, lack of personal jurisdiction results
       in a void judgment and may be raised at any time under Rule 60(B). Hair, 18 N.E.3d at 1022. Thus, U-Haul
       is distinguishable from this case on that point.
       3
         On appeal, Chase makes no argument that Charles was properly served. It also makes no argument that
       foreclosure could proceed in the absence of a judgment on the underlying note.

       Court of Appeals of Indiana | Memorandum Decision 36A05-1608-MF-1925 | July 31, 2017             Page 10 of 10
