MEMORANDUM DECISION
                                                                    Aug 07 2015, 8:11 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.



APPELLANT PRO SE                                         ATTORNEYS FOR APPELLEE
Dena Alfayyad                                            James M. Boyers
Carmel, Indiana                                          Leah B. Silverthorn
                                                         Wooden & McLaughlin LLP
                                                         Indianapolis, Indiana



                                             IN THE
    COURT OF APPEALS OF INDIANA

Dena Alfayyad,                                           August 7, 2015

Appellant,                                               Court of Appeals Case No.
                                                         29A02-1503-MF-175
        v.                                               Appeal from the Hamilton Superior
                                                         Court

U.S. Bank National Association                           The Honorable Daniel J. Pfleging,
as Trustee for RESC2007K3,                               Judge
Appellee                                                 Cause No. 29D02-0904-MF-535




Bailey, Judge.




Court of Appeals of Indiana | Memorandum Decision 29A02-1503-MF-175 | August 7, 2015       Page 1 of 7
                                          Case Summary
[1]   Dena D. Alfayyad (“Alfayyad”), proceeding pro se, appeals the trial court’s

      order under Indiana Trial Rule 41(E), which dismissed her counterclaims

      against U.S. Bank, NA (“U.S. Bank”) for failure to prosecute the

      counterclaims.


[2]   We reverse.



                                                    Issue
[3]   Alfayyad raises two issues for our review. We resolve this appeal on a different

      basis, however: namely, whether the trial court had subject matter jurisdiction

      to enter an order during the pendency of an appeal.



                            Facts and Procedural History
[4]   We take a portion of our statement of facts from our unpublished memorandum

      decision in Alfayyad’s prior appeal.

              In 2006, Alfayyad executed a promissory note in favor of
              Homecomings Financial, LLC, (“Homecomings”) for $259,000 to
              purchase property in Carmel. The note was secured by a mortgage.
              Alfayyad stopped making payments on the note in 2009.
              On April 17, 2009, U.S. Bank filed a foreclosure action against
              Alfayyad. U.S. Bank alleged that it “is ‘a person entitled to enforce’
              the promissory note pursuant to IC § 26–1–3.1–301 and is entitled to
              enforce the mortgage as is evidenced by the chain of assignments....”
              App. p. 11. U.S. Bank attached to the complaint a copy of the note
              and an assignment of the mortgage from Homecomings to U.S. Bank
              dated April 7, 2009.

      Court of Appeals of Indiana | Memorandum Decision 29A02-1503-MF-175 | August 7, 2015   Page 2 of 7
              On March 5, 2012, U.S. Bank filed a motion for summary judgment
              and decree of foreclosure. U.S. Bank also moved for default judgment,
              which the trial court granted and then set aside. On May 24, 2012,
              Alfayyad filed an answer to U.S. Bank’s complaint and raised
              affirmative defenses and counterclaims. On September 4, 2012,
              Alfayyad filed a response to the motion for summary judgment. U.S.
              Bank then replied. After a hearing on the motion, Alfayyad was given
              permission to respond to U.S. Bank’s reply, and both parties were
              permitted to file post-hearing briefs. On May 31, 2013, the trial court
              granted U.S. Bank's motion for summary judgment and issued a
              decree of foreclosure. Alfayyad filed a motion to correct error, which
              the trial court denied. Alfayyad now appeals.
[5]   Alfayyad v. U.S. Bank Nat. Ass’n as Tr. for RASC 2007KS3, No. 29A02-1307-MF-

      652, Slip. op. at 2-3 (Ind. Ct. App. Jun. 13, 2014), trans. denied.


[6]   On June 13, 2014, this Court affirmed the summary judgment order. Id. On

      February 26, 2015, the Indiana Supreme Court denied Alfayyad’s petition

      seeking transfer of jurisdiction. Alfayyad v. U.S. Bank Nat. Ass’n as Tr. for RASC

      2007KS3, 26 N.E.3d 612 (Ind. 2015) (table case).


[7]   On November 13, 2014, during the pendency of Alfayyad’s transfer petition,

      and thus before the certification of the opinion of this Court, see Ind. Appellate

      Rule 65(E), U.S. Bank filed a motion under Trial Rule 41(E) in which it argued

      that Alfayyad’s counterclaims were subject to dismissal because Alfayyad had

      not prosecuted her claims. U.S. Bank requested a hearing to show cause why

      Alfayyad’s counterclaims should not be dismissed. Alfayyad responded to U.S.

      Bank’s motion with responsive briefing and exhibits concerning her

      counterclaims.




      Court of Appeals of Indiana | Memorandum Decision 29A02-1503-MF-175 | August 7, 2015   Page 3 of 7
[8]    A hearing on U.S. Bank’s motion was conducted on January 25, 2015. After

       argument by the parties, the trial court solicited proposed orders from both U.S.

       Bank and Alfayyad.


[9]    On February 6, 2015, the trial court entered its order of dismissal, finding that

       Alfayyad had failed to timely prosecute her counterclaims. Alfayyad filed a

       motion to correct error on February 20, 2015. The trial court denied this

       motion on March 28, 2015.


[10]   This appeal ensued.



                                  Discussion and Decision
[11]   Alfayyad appeals from the trial court’s denial of her motion to correct error,

       which challenged the trial court’s order for dismissal under Trial Rule 41(E).

       U.S. Bank draws our attention to the amount of time pending in this matter—

       observing, “Alfayyad has not prosecuted her Counterclaims in two and a half

       years”—and directs our attention to cases in which dismissals under Trial Rule

       41(E) have been upheld when the duration of time was less than two years.

       Appellee’s Br. at 7 (citing, inter alia, Lee v. Pugh, 811 N.E.2d 881, 885 (Ind. Ct.

       App. 2004) (affirming dismissal under Trial Rule 41(E) after a “three-month

       period of inactivity”). We review dismissals under Trial Rule 41(E) and orders

       upon motions to correct error for abuse of the trial court’s discretion. Deutsche

       Bank Nat. Trust Co. v. Harris, 985 N.E.2d 804, 813 (Ind. Ct. App. 2013). An

       abuse of discretion occurs when the trial court’s decision is counter to the logic


       Court of Appeals of Indiana | Memorandum Decision 29A02-1503-MF-175 | August 7, 2015   Page 4 of 7
       and effect of the facts and circumstances before it, or when the decision errs on

       a question of law. Perkinson v. Perkinson, 989 N.E.2d 758, 761 (Ind. 2013).


[12]   U.S. Bank’s argument addresses Trial Rule 41(E); Alfayyad draws our attention

       to the substantive questions in her counterclaims. We find a different question

       dispositive, namely, the trial court’s lack of subject matter jurisdiction to enter

       its order of dismissal.


[13]   Subject matter jurisdiction cannot be waived, and courts at all levels are

       required to consider the issue sua sponte. Jernigan v. State, 894 N.E.2d 1044,

       1046 (Ind. Ct. App. 2008). Appellate Rule 8 provides, “the Court of Appeals

       acquires jurisdiction on the date the Notice of Completion of Clerk’s Record is

       noted in the Chronological Case Summary.” “[I]t is well-established that the

       trial court is deprived of further jurisdiction when appellate jurisdiction is

       acquired.” Southwood v. Carlson, 704 N.E.2d 163, 165 (Ind. Ct. App. 1999)

       (citing, inter alia, Shcumacher v. Radiohama, Inc., 619 N.E.2d 271, 273 (Ind.

       1993)). “This rule facilitates the orderly presentation and disposition of appeals

       and prevents the confusing and awkward situation of having the trial and

       appellate courts simultaneously reviewing the correctness of the judgment.” Id.

       (quotations omitted). A decision of this Court is certified “only after the time

       for all Petitions for Rehearing, Transfer, or Review has expired, unless all the

       parties request earlier certification.” App. R.65(E). A party “shall not take any

       action in reliance upon the opinion or memorandum decision until the opinion

       or memorandum decision is certified.” Id. “A judgment made when the court

       lacks subject matter jurisdiction is void.” Jernigan, 894 N.E.2d at 1046.

       Court of Appeals of Indiana | Memorandum Decision 29A02-1503-MF-175 | August 7, 2015   Page 5 of 7
[14]   Here, U.S. Bank filed suit against Alfayyad; Alfayyad filed counterclaims. U.S.

       Bank successfully pursued a motion for summary judgment at the trial court

       level. Alfayyad appealed the judgment, which was affirmed on appeal.

       Alfayyad sought transfer to the Indiana Supreme Court. While transfer was

       pending as to U.S. Bank’s summary judgment on the mortgage—and thus,

       while this Court’s opinion on that matter was not yet certified and jurisdiction

       over the case remained with our appellate courts—U.S. Bank sought to have

       Alfayyad’s counterclaims dismissed for Alfayyad’s failure to prosecute those

       claims. The trial court granted U.S. Bank’s motion on February 6, 2015, while

       transfer was still pending. The court denied Alfayyad’s motion to correct error

       on March 18, 2015, after the Indiana Supreme Court had denied Alfayyad’s

       petition to transfer on February 26, 2015.


[15]   Thus, on U.S. Bank’s motion, the trial court entered an order concluding that

       Alfayyad had failed to properly prosecute her counterclaims while jurisdiction

       over the case remained with Indiana’s appellate courts. While a portion of the

       merits of Alfayyad’s appeal remained pending, i.e., when the trial court lacked

       jurisdiction over the case, the trial court entered an order purporting to dispose

       of Alfayyad’s counterclaims, imposing the “extreme remedy” of dismissal.

       Deutsche Bank, 985 N.E.2d at 814. The court’s order of dismissal under Trial

       Rule 41(E) was void; it was not within the discretion of the trial court.


[16]   We accordingly reverse the trial court’s entry of dismissal under Trial Rule

       41(E).



       Court of Appeals of Indiana | Memorandum Decision 29A02-1503-MF-175 | August 7, 2015   Page 6 of 7
[17]   Reversed.


       Baker, J., and Mathias, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 29A02-1503-MF-175 | August 7, 2015   Page 7 of 7
