MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                          FILED
this Memorandum Decision shall not be                                     Aug 08 2019, 8:16 am

regarded as precedent or cited before any                                       CLERK
court except for the purpose of establishing                              Indiana Supreme Court
                                                                             Court of Appeals
                                                                               and Tax Court
the defense of res judicata, collateral
estoppel, or the law of the case.


APPELLANT PRO SE                                         ATTORNEYS FOR APPELLEES
William Powell                                           Dustin R. DeNeal
Indianapolis, Indiana                                    Elizabeth M. Little
                                                         Faegre Baker Daniels LLP
                                                         Indianapolis, Indiana


                                           IN THE
    COURT OF APPEALS OF INDIANA

William Powell,                                          August 8, 2019
Appellant-Plaintiff,                                     Court of Appeals Case No.
                                                         19A-SC-412
        v.                                               Appeal from the Marion Small
                                                         Claims Court
Wells Fargo Bank, N.A. and                               The Honorable Brenda A. Roper,
Wells Fargo Home Mortgage,                               Judge
Appellees-Defendants                                     Trial Court Cause No.
                                                         49K01-1810-SC-6782



Crone, Judge.




Court of Appeals of Indiana | Memorandum Decision 19A-SC-412 | August 8, 2019                     Page 1 of 7
                                                Case Summary
[1]   William Powell, pro se, appeals the orders of the small claims court denying his

      motion for default judgment and granting the motion for judgment on the

      complaint filed by Wells Fargo Bank, N.A. and Wells Fargo Home Mortgage

      (collectively referred to as “Wells Fargo”). We affirm.


                                   Facts and Procedural History 1
[2]   This case was initiated on October 29, 2018, when Powell filed a notice of

      claim in the Marion Small Claims Court alleging mortgage fraud. Appellant’s

      App. at 247. On November 16, 2018, Wells Fargo filed a motion for a more

      definite statement, asserting that Powell’s notice of claim did not clearly

      identify the defendants or the bases for his claim. Appellee’s App. at 2-5. On

      November 19, 2018, Powell filed an amended notice of claim, naming Wells

      Fargo, N.A. and Wells Fargo Home Mortgage as the defendants and alleging

      that Wells Fargo Home Mortgage fraudulently prepared loan documents for

      Powell by preparing Housing of Urban Development (“HUD”) documents so

      that it appeared that his loan was for $45,000 when it was actually for $15,500.

      Id. at 8. He further alleged that his loan and mortgage were then sold or

      assigned to various other banks, including EMC Mortgage Corporation, that

      EMC fraudulently foreclosed on his loan and mortgage, that EMC was




      1
        Powell inappropriately includes and relies on material in his appellant’s appendix that was not part of the
      record below. See Ind. Appellate Rules 2(E) (defining clerk’s record), 2(L) (defining record on appeal), and
      50(A) (stating that purpose of appendix is to provide parts of the record on appeal necessary for the Court to
      decide issues presented). Accordingly, we will ignore that material.

      Court of Appeals of Indiana | Memorandum Decision 19A-SC-412 | August 8, 2019                       Page 2 of 7
      acquired by JPMorgan Chase, and that he settled the foreclosure lawsuit with

      JPMorgan Chase for $30,000 in 2016. In making these allegations, Powell

      referred to exhibits, but the exhibits were not attached to the amended notice of

      claim.


[3]   Also on November 19, 2018, the court issued an order (“the November 2018

      order”) granting Wells Fargo’s motion and ordering Powell to file a more

      definite statement. In that order, the court noted that Powell’s amended notice

      of claim did not satisfy the requirement for a definite statement because exhibits

      were not included in the filing. Appellant’s App. at 14.


[4]   On December 7, 2018, Powell filed a response to the November 2018 order,

      with exhibits A through P attached, in which he named Wells Fargo, N.A. and

      Wells Fargo Home Mortgage as the defendants and alleged that Wells Fargo

      Home Mortgage fraudulently prepared his loan by using HUD documents

      when Wells Fargo knew that Powell did not have a HUD loan, prepared the

      HUD loan documents to make it look like Powell’s $15,000 loan was for

      $45,000, and violated HUD regulations by charging loan underwriter fees. Id.

      at 17. He alleged that Wells Fargo knew these “statements” were untrue and

      intended to deceive him with these statements and that he justifiably relied on

      these statements. Id. As a result, he alleged, EMC fraudulently foreclosed on

      his note and mortgage and in 2016 he “had to pay $30,000 on a $15,000 loan to

      repurchase his home from JPMorgan Chase.” Id. at 15-17. Powell also alleged

      that in August 2018, Wells Fargo, N.A. settled a fraud claim with the federal



      Court of Appeals of Indiana | Memorandum Decision 19A-SC-412 | August 8, 2019   Page 3 of 7
      government for the abuses of Wells Fargo Home Mortgage and agreed to pay

      $500,000,000 in civil penalties for these and other actions. Id. at 18.


[5]   The exhibits attached to Powell’s response show that in September 2000, he

      borrowed $15,750 with interest charged at a yearly rate of 12.5% from Alliance

      Funding, a division of Superior Bank FSB, and that Wells Fargo Home

      Mortgage acted as a broker for the loan and prepared the loan documents.

      Appellant’s App. at 28, 32, 37, 62. Powell’s loan was secured by a mortgage on

      Powell’s Indianapolis property. Id. at 37, 62. Also attached to Powell’s

      response is page 2 of the HUD settlement statement for his loan, which

      indicates on the first line that the broker’s commission was based on a “price”

      of $45,000. Id. at 30. Another attached exhibit is the Truth-In-Lending

      disclosure statement, which indicates that the total finance charge of Powell’s

      loan was $45,999.40 and that the total dollar amount required to pay off

      Powell’s note would be $60,512.40. Id. at 48. In connection with Powell’s loan

      of $15,750, Wells Fargo Mortgage received a brokerage fee of $825. Id. at 28,

      30.


[6]   On December 26, 2018, Powell filed a motion for default judgment based on

      Wells Fargo’s failure to file an answer or any other defense. Id. at 8. The

      following day, the court issued an order denying Powell’s motion for default

      judgment. Id. at 10. On January 18, 2019, Wells Fargo filed a motion for




      Court of Appeals of Indiana | Memorandum Decision 19A-SC-412 | August 8, 2019   Page 4 of 7
      judgment on the complaint. 2 On February 4, 2019, the court issued an order

      concluding that Powell’s claims were time-barred, granting Wells Fargo’s

      motion for judgment on the complaint, and entering final judgment in favor of

      Wells Fargo and against Powell on all Powell’s claims. Id. at 11. This appeal

      ensued.


                                         Discussion and Decision

            Section 1 – The trial court did not err in denying Powell’s
                          motion for default judgment.
[7]   Powell asserts that he was entitled to default judgment because Wells Fargo

      failed to file a responsive pleading after he filed his response to the November

      2018 order. He presents a question of law that we review de novo. See Miller v.

      Danz, 36 N.E.3d 455, 457 (Ind. 2015) (“Interpretation of our Trial Rules is … a

      question of law that we review de novo.”). To support his argument, Powell

      relies on Indiana Trial Rule 55(A), which provides, “When a party against

      whom a judgment for affirmative relief is sought has failed to plead or

      otherwise comply with these rules and that fact is made to appear by affidavit or

      otherwise, the party may be defaulted by the court.” However, Powell ignores

      Indiana Small Claims Rule 4, which states, “All defenses shall be deemed at

      issue without responsive pleadings, but this provision shall not alter the burden of

      proof.” (Emphasis added.) Thus, in small claims court, a defendant is not




      2
          This motion is not in the record.


      Court of Appeals of Indiana | Memorandum Decision 19A-SC-412 | August 8, 2019   Page 5 of 7
      required to file a responsive pleading, and a defendant’s failure to file a

      responsive pleading is not grounds for a default judgment. See Ind. Small

      Claims Rule 10(B) (providing that court may enter default judgment when a

      defendant fails to appear at the time and place specified in the notice of claims).

      Accordingly, the trial court did not err in denying Powell’s motion for default

      judgment.


            Section 2 – The trial court did not err in granting Wells
                Fargo’s motion for judgment on the complaint.
[8]   Powell also contends that the trial court erred in granting Wells Fargo’s motion

      for judgment on the complaint on the basis that his claim was time-barred. A

      motion for judgment on the pleadings should be granted “only where it is clear

      from the face of the complaint that under no circumstances could relief be

      granted.” KS&E Sports v. Runnels, 72 N.E.3d 892, 898 (Ind. 2017) (quoting

      Veolia Water Indianapolis, LLC v. Nat’l Trust Ins. Co., 3 N.E.3d 1, 5 (Ind. 2014)).

      We review a trial court’s ruling on a motion for judgment on the pleadings de

      novo basing our decision solely on the pleadings and accepting as true the

      material facts alleged in the complaint. Id.


[9]   The statute of limitations for a fraud claim is six years. Ind. Code § 34-11-2-7.

      Although the alleged fraud occurred in 2000, Powell claims that Wells Fargo

      hid their fraud, and therefore the statute of limitations did not begin running

      until he discovered the fraud when he “was watching television in 2018 and

      learned that Wells Fargo had agreed to pay a fine and compensation to some of

      its recent mortgage customers[,]” and he “took out his mortgage documents

      Court of Appeals of Indiana | Memorandum Decision 19A-SC-412 | August 8, 2019   Page 6 of 7
       and found a number of errors in them.” Appellant’s Br. at 5. In support, he

       relies on Indiana Code Section 34-11-5-1, which provides, “If a person liable to

       an action conceals the fact from the knowledge of the person entitled to bring

       the action, the action may be brought at any time within the period of limitation

       after the discovery of the cause of action.”


[10]   Powell’s amended notice of claim and his response to the November 2018 order

       and exhibits attached thereto do not provide any allegations or facts that suggest

       that Wells Fargo concealed the HUD settlement statement, in which the

       allegedly fraudulent statements were made, from Powell. Rather, when Powell

       learned about Wells Fargo’s settlement with the federal government in 2018,

       the news prompted him to look at loan documents that were already in his

       possession. Accordingly, Section 34-11-5-1 is inapplicable. The statute of

       limitations has run on Powell’s fraud claim against Wells Fargo, and therefore

       the trial court did not err in finding that his claim was time-barred and in

       granting Wells Fargo’s motion for judgment on the complaint.


[11]   Affirmed.


       Bradford, J., and Tavitas, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 19A-SC-412 | August 8, 2019   Page 7 of 7
