MEMORANDUM DECISION
                                                                  Jan 12 2016, 9:51 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                                   ATTORNEYS FOR APPELLEE
Paul R. Black                                            Darren A. Craig
Noblesville, Indiana                                     Abigail T. Rom
                                                         Frost Todd Brown, LLC
                                                         Indianapolis, Indiana

                                                         Rodney Perry
                                                         Bryan Cave, LLP
                                                         Chicago, Illinois



                                           IN THE
    COURT OF APPEALS OF INDIANA

Paul R. Black and Jane I. Black,                         January 12, 2016
Appellants-Defendants,                                   Court of Appeals Cause No.
                                                         29A02-1503-MF-149
        v.                                               Appeal from the Hamilton
                                                         Superior Court
Deutsche Bank National Trust                             The Honorable Steven R. Nation,
Company as Trustee for                                   Judge
Ameriquest Mortgage Securities,                          Trial Court Cause No.
                                                         29D01-1106-MF-6218



Court of Appeals of Indiana | Memorandum Decision 29A02-1503-MF-149 | January 12, 2016   Page 1 of 18
      Inc., Asset-Backed Pass-Through
      Certificates Series 2006-R2,
      Appellee-Plaintiff.




      Barnes, Judge.


                                             Case Summary
[1]   Paul and Jane Black appeal the trial court’s order denying their motions for

      summary judgment and motion to strike and granting a motion for summary

      judgment filed by Deutsche Bank National Trust Company as trustee for

      Ameriquest Mortgage Securities, Inc., Asset-Backed Pass-Through Certificates

      Series 2006-R2 (“the Bank”). We reverse and remand.


                                                     Issue
[2]   The Blacks raise two issues, which we consolidate and restate as whether

      questions of fact preclude the entry of summary judgment for the Bank on the

      Bank’s complaint and the Blacks’ counterclaims.


                                                     Facts
[3]   In December 2005, the Blacks executed a promissory note and mortgage in

      favor of Ameriquest Mortgage Company (“Ameriquest”) for $212,000.00. The

      interest rate of the adjustable rate note was subject to change on or after
      Court of Appeals of Indiana | Memorandum Decision 29A02-1503-MF-149 | January 12, 2016   Page 2 of 18
      February 2009. In the meantime, the Blacks’ monthly payment for principal

      and interest was $1,554.11. The terms of the note called for the note holder to

      give notice of any changes in the interest rate and the amount of the monthly

      payment before the effective date of any change. The note also contained the

      following term, “In addition, to the protections given to the Note Holder under

      this Note, A Mortgage, Deed of Trust or Security Deed (the ‘Security

      Instrument’), dated the same as this Note, protects the Note Holder from

      possible losses which might result if I do not keep the promises that I make in

      this Note.” Appellants’ App. p. 28. The note was dated December 27, 2005.


[4]   The mortgage executed by the Blacks contained a provision calling for the

      escrow of certain periodic payments including taxes and insurance. This term

      provided in part:

              Borrower shall pay Lender the Funds for Escrow Items unless
              Lender waives Borrower’s obligation to pay to the Funds for any
              or all Escrow Items[.] Lender may waive Borrower’s obligation
              to pay to Lender Funds for any or all Escrow Items at any time.
              Any such waiver may only be in writing. In the event of such
              waiver, Borrower shall pay directly, when and where payable,
              the amounts due for any Escrow Items for which payment of
              Funds has been waived by Lender and, if Lender requires, shall
              furnish to Lender receipts evidencing such payment within such
              time period as Lender may require. . . . If Borrower is obligated
              to pay Escrow Items directly, pursuant to a waiver, and Borrower
              fails to pay the amount due for an Escrow Item, Lender may
              exercise its rights under Section 9 and pay such amount and
              Borrower shall then be obligated under Section 9 to repay to
              Lender any such amount. Lender may revoke the waiver as to
              any or all Escrow Items at any time by a notice given in
              accordance with Section 15 and, upon such revocation, Borrower
      Court of Appeals of Indiana | Memorandum Decision 29A02-1503-MF-149 | January 12, 2016   Page 3 of 18
              shall pay to the Lender all Funds, and in such amounts, that are
              then required under this Section 3.


      Id. at 34. The notice provision of the mortgage required that all notices be in

      writing.


[5]   The typed date on the mortgage was December 23, 2005. The execution of the

      mortgage was notarized on December 27, 2005.


[6]   During the course of the loan, the loan servicer changed many times, and the

      mortgage was assigned to the Bank on January 15, 2009. The note was

      endorsed in blank and eventually made its way to the Bank’s possession. The

      Blacks usually made the monthly payments by credit card telephonically or by

      check via overnight mail with a tracking receipt. The Blacks made the required

      monthly payments apparently without issue until June 2010, and, according to

      Paul Black, they had paid no less than $60,400.00 on the note.


[7]   The June 15, 2010 monthly billing statement indicated a principal and interest

      payment of $1554.10 was due July 1, 2010. The statement also indicated that

      no escrow balance existed and that no escrow was due. This is consistent with

      Paul Black’s statement that they had never escrowed their insurance and taxes

      and instead paid them separately. The statement reflected an interest rate of

      7.990%, which was consistent with a January 2010 notice that the interest rate

      would remain 7.990% and “monthly payment, including amounts required for

      escrow if any, will be $1,554.10.” Appellants’ App. p. 371. To avoid the

      accrual of late fees, payment was due by July 15, 2010.


      Court of Appeals of Indiana | Memorandum Decision 29A02-1503-MF-149 | January 12, 2016   Page 4 of 18
[8]    When the Blacks attempted to telephonically make their July payment on July

       15, 2010, their $1,554.10 payment was refused and a payment of $2,238.21 was

       demanded. Consolidated log notes of Paul Black’s calls to the servicer indicate

       that the increase was due to escrow charges. Another monthly billing statement

       was sent to the Blacks on July 16, 2010, indicating that the July 1, 2010

       payment included principal and interest in the amount of $1,554.10 and an

       escrow payment of $684.11 for a total monthly payment of $2,238.21 due on

       July 1, 2010. This statement referenced an interest rate of 7.990%. On July 28,

       2010, the Blacks again attempted to make a $1,554.10 payment and were told

       that the new payment amount was $2,331.46.


[9]    The Blacks did not make any more payments on the loan, and the loan servicer

       began attempting to collect the unpaid amounts, late fees, and escrow amounts.

       Eventually, the Bank filed a complaint on the note and to foreclose the

       mortgage and, in response, the Blacks raised numerous counterclaims.


[10]   The Blacks filed two motions for summary judgment, a motion to strike

       portions of the Bank’s complaint, and a motion to strike portions of the Bank’s

       designated evidence. The Bank filed its own motion for summary judgment

       and moved to strike the Blacks’ reply brief in support of their first motion for

       summary judgment and their supplemental designation of evidence. After a

       hearing, the trial court issued an order denying the Blacks’ two motions for

       summary judgment and denying their motion to strike portions of the Bank’s

       complaint. The trial court granted the Bank’s motion for summary judgment

       and motion to strike the Blacks’ reply brief and supplemental designation of

       Court of Appeals of Indiana | Memorandum Decision 29A02-1503-MF-149 | January 12, 2016   Page 5 of 18
       evidence. The trial court did not rule on the Blacks’ motion to strike portions of

       the Bank’s designated evidence. The Blacks now appeal.


                                                   Analysis
[11]   The Blacks contend that the trial court erred in granting the Bank’s motion for

       summary judgment and denying their motions for summary judgment.

       Summary judgment is appropriate only where the designated evidence shows

       that there are no genuine issues of material fact and that the moving party is

       entitled to a judgment as a matter of law. Ind. Trial Rule 56(C). We review

       summary judgment de novo and apply the same standard as the trial court.

       Young v. Hood’s Gardens, Inc., 24 N.E.3d 421, 423 (Ind. 2015). “We consider

       only those materials properly designated pursuant to Trial Rule 56 and construe

       all factual inferences and resolve all doubts as to the existence of a material

       issue in favor of the non-moving party.” Id. at 424.


                                I. Questions of Fact Regarding Default

[12]   “To establish a prima facie case that it is entitled to foreclose upon the

       mortgage, the mortgagee or its assign must enter into evidence the demand note

       and the mortgage, and must prove the mortgagor’s default.” McEntee v. Wells

       Fargo Bank, N.A., 970 N.E.2d 178, 182 (Ind. Ct. App. 2012). In a summary

       judgment proceeding, once the mortgagee establishes its prima facie case, the

       burden shifts to the mortgagor to show that the note has been paid in full or to

       establish any other defenses to the foreclosure. Id.




       Court of Appeals of Indiana | Memorandum Decision 29A02-1503-MF-149 | January 12, 2016   Page 6 of 18
[13]   The Blacks contend that the Bank is not entitled to summary judgment because

       it did not make a prima facie showing that the Blacks defaulted on the note. To

       establish default, the Bank designated the affidavit of Kyle Lucas, a senior loan

       analyst employed by Ocwen Financial Corporation, the then-servicer of the

       loan.1 In his affidavit, Lucas stated that the Blacks “have not made their

       monthly mortgage loan payments since June 2010” and “have defaulted under

       the Note and Mortgage, and have failed to cure the default.” Appellee’s App.

       p. 346. In response, the Blacks argue that Paul Black’s affidavit shows they

       were not in default because they tendered payment of $1,554.11 numerous

       times and it was refused by the Bank. See, e.g., Samaddar v. Jones & Jones Agency,

       Inc., 766 N.E.2d 1275, 1278 (Ind. Ct. App. 2002) (observing that the

       requirements of tender vary with facts and that, where a party prevents and

       refuses the tender, the party may not complain about what was prevented and

       refused).


[14]   Although the Bank describes Paul Black’s affidavit as self-serving, our supreme

       court has held that “a perfunctory and self-serving” affidavit that controverts a

       prima facie case for summary judgment is enough to preclude summary

       judgment. Hughley v. State, 15 N.E.3d 1000, 1004 (Ind. 2014). Moreover,

       during summary judgment proceedings, the Bank’s explanation for the increase

       in payment was unclear. Lucas did not address the increased payment demand



       1
         The Blacks moved to strike Lucas’s affidavit. The trial court did not rule on this motion. For the sake of
       argument, we presume the affidavit was admissible and available for consideration in summary judgment
       proceedings.

       Court of Appeals of Indiana | Memorandum Decision 29A02-1503-MF-149 | January 12, 2016            Page 7 of 18
       in his affidavit and gave only passing reference to the possibility that the interest

       rate could be increased after February 1, 2009. When questioned about the

       acceleration of the loan by the trial court at the summary judgment hearing, the

       Bank’s attorney stated her understanding “that they have an adjustable rate

       mortgage and their interest rate was adjusted pursuant to the terms of the note

       and the mortgage, which increased their monthly mortgage payment.” Tr. p.

       41. The Blacks, however, designated statements showing that the interest rate

       had not increased and, in its answer to the Blacks’ counterclaim, the Bank

       admitted that the interest rate had not changed before the purported default.


[15]   On appeal, the Bank claims that the monthly payment increased because the

       Bank began escrowing taxes and insurance. Again, the Bank describes as self-

       serving Paul Black’s assertions that the Bank agreed not to escrow taxes and

       insurance and that they paid those items separately. However, Paul Black’s

       assertions are consistent with the June 15, 2010 statement indicating that

       escrow was not a payment element and that only a principal and interest

       payment of $1,554.10 was due. Further, the mortgage expressly provided that

       escrow may be waived in writing and that waiver may be revoked following

       notice to the borrower as specified by the mortgage. Further, the Final Interest

       Rate, Payment Due, Fees Paid, and Prepayment Charge form signed by the

       Blacks on December 27, 2005 explained that the initial monthly payment for

       the first thirty-six months was $1,554.11. The line detailing the “Amount of

       Escrow Payment, if any” was blank. Appellants’ App. p. 448. The record does




       Court of Appeals of Indiana | Memorandum Decision 29A02-1503-MF-149 | January 12, 2016   Page 8 of 18
       not include a specific waiver of escrow or a notice revoking the waiver of

       escrow.


[16]   In light of the Blacks’ designated evidence, we conclude there are unresolved

       factual disputes regarding the basis for the increased monthly payment, whether

       the Blacks were properly notified of the increase, and whether the Blacks’

       tender of payment was sufficient. As such, the trial court erroneously granted

       summary judgment for the Bank on its complaint.2 However, to the extent the

       Blacks argue that they are entitled to summary judgment on the Bank’s

       complaint, the unresolved questions of fact preclude the grant of summary

       judgment for them.


[17]   Additionally, the Blacks challenge the grant of summary judgment for the Bank

       on their counterclaims for first material breach, deception, abuse of process, and

       slander of title. We conclude that the unresolved questions of fact relating to

       default render the grant of summary judgment for the Bank improper and

       preclude summary judgment for the Blacks on their counterclaims.




       2
         As an affirmative defense, the Blacks asserted that any obligation they had under the note was discharged
       because the Bank first materially breached the contract. “[U]nder the Restatement (Second) of Contracts, an
       injured party is not discharged from his duty to perform unless (1) the breach is material, and (2) it is too late
       for performance or an offer to perform to occur.” Frazier v. Mellowitz, 804 N.E.2d 796, 803 (Ind. Ct. App.
       2004). “[W]hether a party has committed a material breach is a question of fact, the resolution of which is
       dependent on several factors.” Id. at 802. The resolution of the questions of fact relating to default will also
       necessarily include a determination of whether the Bank was the first to materially breach the parties’
       contract.

       Court of Appeals of Indiana | Memorandum Decision 29A02-1503-MF-149 | January 12, 2016                Page 9 of 18
                                               II. Remaining Issues3

[18]   Although we reverse summary judgment for the Bank based on the unresolved

       questions of fact relating to default, we address the following issues raised by

       the Blacks on appeal because they are likely to be raised again in subsequent

       proceedings.


                                         A. Date of Mortgage and Note

[19]   The Blacks contend that the Bank is not an assignee of the mortgage used to

       secure the note. This argument is based on the fact that the note is dated

       December 27, 2005, and references a security instrument “dated the same as

       this Note.” Appellants’ App. p. 28. According to the Blacks, because the

       mortgage was dated December 23, 2005, and the assignment references a

       December 23, 2015 mortgage, the mortgage was not the security instrument

       associated with the note. The Blacks argue that the note and mortgage “do not

       refer to each other, but, instead refer to other instruments that are not in

       evidence.” Appellants’ Br. p. 11. In response, the Bank claims that the




       3
         The Blacks claim that the assignment of mortgage was “fraudulently made and falsely notarized by
       notorious Florida robosigners . . . .” Appellants’ Br. p. 12. In support of this assertion, the Blacks rely on
       video depositions of the purported robosigners, their affidavits, and Paul Black’s affidavit describing parts of
       the robosigners’ testimony. The depositions were taken in other, unrelated litigation. The Bank challenges
       the admissibility of this evidence, arguing that they contain inadmissible hearsay, that the videos are
       unauthenticated, and that they violate Indiana Evidence Rule 404(b). “A party offering the affidavit into
       evidence bears the burden of establishing its admissibility.” McCutchan v. Blanck, 846 N.E.2d 256, 260 (Ind.
       Ct. App. 2006). The Blacks make no effort to show that this evidence is admissible pursuant to Indiana Trial
       Rule 56(E), and we decline to address it further.



       Court of Appeals of Indiana | Memorandum Decision 29A02-1503-MF-149 | January 12, 2016            Page 10 of 18
       December 23, 2005 date on the mortgage was a scrivener’s error and that the

       mortgage was actually executed on December 27, 2005.


[20]   We agree with the Bank. Although the typed date on the mortgage is

       December 23, 2015, the mortgage was notarized December 27, 2005, and

       indicates that the mortgage was executed on December 27, 2005. Further, in

       their answer, the Blacks acknowledge executing a mortgage in connection with

       the note. In his affidavit, Paul Black admitted to having paid at least

       $60,400.00 toward the loan from 2005 until 2010. Finally, the Blacks cite no

       evidence for the proposition that they executed two different mortgages and two

       different notes in December 2005. Without more, the Blacks have failed to

       show that the misdated mortgage affected their substantial rights, and we must

       disregard the error. See Ind. Trial Rule 61 (“The court at every stage of the

       proceeding must disregard any error or defect in the proceeding which does not

       affect the substantial rights of the parties.”).


                                                  B. Standing

                                                1. Negotiability

[21]   The Blacks challenge the Bank’s standing. Part of this argument focuses on the

       negotiability of the note. Indiana Code Section 26-1-3.1-104(a) defines

       “negotiable instrument” as:


               Except as provided in subsections (c) and (d), “negotiable
               instrument” means an unconditional promise or order to pay a
               fixed amount of money, with or without interest or other charges
               described in the promise or order, if it:

       Court of Appeals of Indiana | Memorandum Decision 29A02-1503-MF-149 | January 12, 2016   Page 11 of 18
                                                    *****


               (3) does not state any other undertaking or instruction by the
               person promising or ordering payment to do any act in addition
               to the payment of money, but the promise or order may contain:


                        (A) an undertaking or power to give, maintain, or protect
                        collateral to secure payment;


                        (B) an authorization or power to the holder to confess
                        judgment or realize on or dispose of collateral; or


                        (C) a waiver of the benefit of any law intended for the
                        advantage or protection of an obligor.


[22]   Indiana Code Section 26-1-3.1-106 defines an unconditional promise or order

       and provides in part:


               (a) Except as provided in this section, for the purposes of IC 26-1-
               3.1-104(a), a promise or order is unconditional unless it states:


                        (1) an express condition to payment;


                        (2) that the promise or order is subject to or governed by
                        another record; or


                        (3) that rights or obligations with respect to the promise or
                        order are stated in another record.


               A reference to another record does not of itself make the promise
               or order conditional.



       Court of Appeals of Indiana | Memorandum Decision 29A02-1503-MF-149 | January 12, 2016   Page 12 of 18
               (b) A promise or order is not made conditional:


                        (1) by a reference to another record for a statement of
                        rights with respect to collateral, prepayment, or
                        acceleration; or


                        (2) because payment is limited to resort to a particular
                        fund or source.


       “[I]t is well-established that a promissory note secured by a mortgage is a

       negotiable instrument.” Lunsford v. Deutsche Bank Trust Co. Americas as Tr., 996

       N.E.2d 815, 821 (Ind. Ct. App. 2013).


[23]   Paragraph 11 of the note references the mortgage and describes certain

       conditions in which immediate payment in full might be due. The Blacks argue

       that, pursuant to Paragraph 11 of the note, they were required to meet certain

       conditions if they leased, encumbered, or transferred any interest in their home.

       According to the Blacks, because they were required to do more than merely

       pay a fixed amount of money, the note was stripped of negotiability. We

       disagree. These additional conditions allow the lender to protect collateral as

       permitted by Indiana Code Section 26-1-3.1-104(a)(3)(A).


[24]   The Blacks also argue that Paragraph 11 contains express conditions

       referencing other writings such as the lender’s written consent, requests for

       information, and invoices so as to make the note conditional. Comment 1 to

       Indiana Code Section 26-1-3.1-106 explains:




       Court of Appeals of Indiana | Memorandum Decision 29A02-1503-MF-149 | January 12, 2016   Page 13 of 18
               subsection (b)(i) permits reference to a separate writing for
               information with respect to collateral, prepayment, or
               acceleration.


               Many notes issued in commercial transactions are secured by
               collateral, are subject to acceleration in the event of default, or
               are subject to prepayment, or acceleration does not prevent the
               note from being an instrument if the statement is in the note
               itself. See Section 3-104(a)(3) and Section 3-108(b). In some
               cases it may be convenient not to include a statement concerning
               collateral, prepayment, or acceleration in the note, but rather to
               refer to an accompanying loan agreement, security agreement or
               mortgage for that statement. Subsection (b)(i) allows a reference
               to the appropriate writing for a statement of these rights.


       Paragraph 11 expressly informs the Blacks that the referenced mortgage

       describes how and under what circumstances they “may be required to make

       immediate payment in full of all amounts [they] owe under this Note.”

       Appellants’ App. p. 28. Thus, to the extent Paragraph 11 references other

       writings, it is to explain the terms of acceleration and does not make the note

       conditional.4


                                           2. Possession of the Note

[25]   The Blacks also contend the Bank was required to plead and prove it had

       possession of the note at the time it filed the lawsuit and that it failed to make a




       4
         Although, as the Blacks point out Paragraph 11 uses the term Lender, we do not believe such term is
       intended to be a specific reference to Ameriquest as the Blacks assert. The terms of the note clearly
       anticipated that the note could be transferred. This argument is not persuasive.

       Court of Appeals of Indiana | Memorandum Decision 29A02-1503-MF-149 | January 12, 2016        Page 14 of 18
       prima facie showing of such.5 This argument is based on out-of-state-authority

       that describes standing as a “jurisdictional requirement.” See, e.g., Fed. Home

       Loan Mortgage Corp. v. Schwartzwald, 134 Ohio St. 3d 13, 18 (2012). In Indiana,

       however, subject matter jurisdiction entails a determination of whether a court

       has jurisdiction over the general class of actions to which a particular case

       belongs and characterizing other sorts of procedural defects as “jurisdictional”

       misapprehends the concepts. K.S. v. State, 849 N.E.2d 538, 542 (Ind. 2006).

       For example, in the context of a petition for judicial review, we have recently

       explained, “Although HRC Hotels may have lacked standing when it filed its

       petition, the lack of standing at the time the petition is filed is a procedural

       error. It does not deprive the court of jurisdiction to hear the petition for

       judicial review.” HRC Hotels, LLC v. Metro. Bd. of Zoning Appeals Div. II of

       Marion Cty., 8 N.E.3d 203, 207 (Ind. Ct. App. 2014). Likewise, even if the

       Bank was not in possession of the note at the time the complaint was filed, the

       trial court was not deprived of subject matter jurisdiction to address the Bank’s

       complaint.


[26]   As we have determined, the note is a negotiable instrument, which may be

       enforced by “the holder of the instrument.” Ind. Code § 26-1-3.1-301. “The




       5
         In their reply brief, the Blacks argue that the Bank was required to plead and prove it owned the mortgage
       at the time the complaint was filed. Because they raise this argument for the first time in their reply brief, it is
       waived. Monroe Guar. Ins. Co. v. Magwerks Corp., 829 N.E.2d 968, 977 (Ind. 2005) (“The law is well settled
       that grounds for error may only be framed in an appellant’s initial brief and if addressed for the first time in
       the reply brief, they are waived.”).



       Court of Appeals of Indiana | Memorandum Decision 29A02-1503-MF-149 | January 12, 2016                Page 15 of 18
       term ‘holder’ includes the person in possession of a negotiable instrument that is

       payable to ‘bearer’ or a person in possession of a negotiable instrument ‘payable

       to bearer or endorsed in blank.’” Lunsford, 996 N.E.2d at 821 (quoting I.C. §

       26-1-1-201(5), -201(20)(A)). Here, the note was endorsed in blank, the Bank’s

       counsel had possession of the note, and it was made available to the Blacks in

       2013. Thus, the Bank has established that it is entitled to enforce the note as the

       holder. Accordingly, we fail to see how the purported lack of possession of the

       note when the complaint was filed affected the Blacks’ substantial rights.6 See

       Ind. T.R. 61.


                                           C. High-Cost Home Loan

[27]   As an affirmative defense and counterclaim, the Blacks alleged that the loan

       was a high-cost home loan pursuant to Indiana Code Section 24-9-2-8(a)(2)(A),

       which defines “high cost home loan” as a home loan with “total points and fees

       that exceed . . . five percent (5%) of the loan principal for a home loan having a

       loan principal of at least forty thousand dollars ($40,000).” The Blacks claim

       that they were charged $12,277.97 in points and fees for the $212,000.00 loan,




       6
         The Blacks also claim that Ameriquest was not permitted to sell the note, which they describe as a high
       cost home loan, pursuant to Indiana Code Section 24-9-4-1 and that the transfer to the Bank was prohibited
       by the Internal Revenue Code. Because the Bank was in possession of the note, we do not address these
       theories regarding the transfer of the note as they relate to standing.

       Court of Appeals of Indiana | Memorandum Decision 29A02-1503-MF-149 | January 12, 2016         Page 16 of 18
       exceeding the 5% limit. The Bank asserts that the total points and fees for the

       loan was $2,784.00.7


[28]   Neither party, however, provides a detailed analysis of points and fees in light

       of the statutory definition. See I.C. § 24-9-2-10. Nor does either party discuss

       whether the $7,704.08 in “loan discount” constitutes “bona fide discount

       points” as statutorily defined in Indiana Code Section 24-9-2-3. Appellee’s

       App. p. 987. Without such analysis, we cannot determine whether the loan

       was a high-cost home loan.


[29]   Nevertheless, we are not persuaded that, even if the loan is a high-cost home

       loan, it is void as against public policy as the Blacks claim. Indiana Code

       Section 24-9-5-1(b) describes the recourse available to a borrower defending

       against a foreclosure action. This section does not declare any such loan void.

       In the absence of specific authority showing that a violation of this chapter

       renders the loan void, we decline to adopt such a holding.


                                                   Conclusion
[30]   Because there are genuine issues of material fact regarding default, the trial

       court erroneously granted summary judgment for the Bank. We reverse and

       remand for further proceedings.




       7
         In support of this claim, the Bank cites a settlement statement. See Appellee’s App. p. 987. Although this
       document is difficult to read, it does not appear on its face to provide support for this figure.

       Court of Appeals of Indiana | Memorandum Decision 29A02-1503-MF-149 | January 12, 2016          Page 17 of 18
[31]   Reversed and remanded.


       Robb, J., and Altice, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 29A02-1503-MF-149 | January 12, 2016   Page 18 of 18
