MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                        FILED
regarded as precedent or cited before any                                Sep 14 2018, 8:55 am

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


APPELLANTS PRO SE                                        ATTORNEY FOR APPELLEE
Michael Francis                                          Anthony M. Zelli
Carmen Jay Francis                                       Dinsmore & Shohl LLP
Indianapolis, Indiana                                    Louisville, Kentucky



                                           IN THE
    COURT OF APPEALS OF INDIANA

Michael Francis, et al.,                                 September 14, 2018
Appellants-Plaintiffs,                                   Court of Appeals Case No.
                                                         18A-CT-596
        v.                                               Appeal from the Marion Superior
                                                         Court
Accubanc Mortgage                                        The Honorable Gary L. Miller,
Corporation,                                             Judge
Appellee-Defendant.                                      Trial Court Cause No.
                                                         49D03-1708-CT-31921



Bailey, Judge.




Court of Appeals of Indiana | Memorandum Decision 18A-CT-596 | September 14, 2018                Page 1 of 12
                                           Case Summary
[1]   Pro-se Appellants Michael and Carmen Francis (collectively, “Francis”) appeal

      the denial of a motion to correct error, in which Francis asserted a claim that he

      had obtained newly-discovered evidence pertinent to his complaint to quiet

      title, as to Accubanc Mortgage Corporation (“Accubanc”), PNC Bank, N.A.

      (“PNC”),1 and other entities, to residential real estate that had been the subject

      of a mortgage foreclosure. Francis raises three issues, which we consolidate

      and restate as whether the trial court abused its discretion in denying the

      motion to correct error. We affirm.



                             Facts and Procedural History
[2]   Francis previously owned residential property in Marion County, subject to a

      real estate mortgage held by Accubanc (“the Property”). The facts underlying

      the disposition of the Property were related in a prior appeal:


              On October 26, 1994, the Francises owned the property at 4904
              North Winston Drive in Indianapolis and executed, in
              Accubanc’s favor, the Note (in the amount of $113,200.00) and
              the Mortgage, granting Accubanc a security interest in the
              Property. Pursuant to the terms of the Note, the maturity date,
              on which all outstanding amounts became due and payable, was
              November 1, 2001. The Mortgage was recorded in the Marion



      1
       Francis obtained a mortgage from Accubanc. PNC states, in its Appellee’s brief, that Accubanc no longer
      exists, that National City Mortgage Company acquired certain assets of Accubanc in 1999, and that, in 2008,
      PNC acquired National City Corporation and all its subsidiaries, including National City Mortgage
      Company. PNC admits that Francis served PNC in this matter but does not admit that PNC is a proper
      party to the action.

      Court of Appeals of Indiana | Memorandum Decision 18A-CT-596 | September 14, 2018              Page 2 of 12
        County Recorder’s Office on November 1, 1994. Accubanc later
        assigned the Note to Bank United of Texas, FSB, and, on
        February 1, 1997, also assigned the Mortgage to Bank United.
        Washington Mutual Bank, FA, successor by merger to Bank
        United, assigned the Loan Documents to EMC Mortgage
        Corporation on December 22, 2003. On August 13, 2013, in
        response to the Francises’ claims that the Mortgage had been
        assigned to the Federal National Mortgage Association
        (“FNMA”), FNMA quit-claim assigned any interest it may have
        had in the Mortgage to EMC Mortgage Corporation (“the 2013
        Assignment”). At some point, EMC Mortgage Corporation was
        succeeded in merger by EMC, and the trial court granted EMC’s
        motion to substitute plaintiff on September 15, 2015.


        Meanwhile, the Francises had failed to pay the outstanding
        balance on the Note when it came due on November 1, 2001.
        On May 29, 2007, EMC Mortgage Corporation filed a complaint
        to foreclose on the Mortgage due to the Francises’ failure to
        make payments pursuant to the Note. On September 17, 2007,
        the Francises filed their answer, affirmative defenses, and
        counterclaims. On April 9, 2012, EMC Mortgage Corporation
        filed a motion to strike or for partial summary judgment as to
        certain claims and a designation of evidence. On May 7, 2012,
        the Francises filed a praecipe for withdrawal pursuant to Indiana
        Trial Rule 53.1, and on May 25, 2012, the Indiana Supreme
        Court vested jurisdiction in Marion Superior Court Judge
        Timothy W. Oakes. On May 20, 2013, the trial court granted
        EMC Mortgage Corporation’s partial summary judgment
        motion.


        On October 23, 2013, EMC Mortgage Corporation moved for
        leave to amend its complaint, seeking to incorporate the 2013
        Assignment, which motion the trial court granted. On May 28,
        2015, EMC Mortgage Corporation filed a summary judgment
        motion on its complaint. On February 8, 2016, the trial court
        held a hearing on what was now EMC’s summary judgment

Court of Appeals of Indiana | Memorandum Decision 18A-CT-596 | September 14, 2018   Page 3 of 12
                 motion, at which EMC appeared through counsel and Carmen
                 Jay Francis appeared in person. On February 17, 2016, the trial
                 court granted EMC’s summary judgment motion, entered in rem
                 judgment against the Property in the sum of $248,709.74, ordered
                 that the Property be sold to satisfy the judgment, and entered
                 judgment in favor of EMC on all of the Francises’ remaining
                 counterclaims.


      Francis v. EMC Mortgage, LLC, No. 49A02-1604-MF-830, slip op. at 3-4 (Ind. Ct.

      App. Apr. 19, 2017), trans. denied.2


[3]   On August 18, 2017, Francis filed a “Complaint for Lack of Standing to

      Foreclose, Fraud in the Concealment, Fraud in the Inducement,

      Unconscionable Contract, Breach of Contract, Breach of Fiduciary Duty, Quiet

      Title, Slander of Title, and Jury Demand,” (Appellee’s App. Vol. II, pg. 12.)

      Francis named as defendants Accubanc, Fannie Mae, EMC Mortgage (a

      former subsidiary of JP Morgan Chase Bank, N.A.), and Homesales, LLC.3

      On October 10, 2017, Francis moved to file an amended complaint; the trial

      court denied the motion on October 16, 2017.4




      2
        The Property was sold, and a Sheriff’s Deed was issued on February 17, 2017. At some point, Francis
      became involved in bankruptcy proceedings in the United States Bankruptcy Court, Southern District of
      Indiana. According to Francis, “there are currently as many as four law firms in related cases all claiming
      they have authority and interest in Francis’ home.” Appellant’s Brief at 16.
      3
          These entities are not active parties to this appeal.
      4
       The proposed amended complaint named as new defendants “Does 1 through 100 inclusive, et al” and
      Charles Nealy, a prior owner of the Property. App. Vol. III, pg. 2.

      Court of Appeals of Indiana | Memorandum Decision 18A-CT-596 | September 14, 2018                 Page 4 of 12
[4]   On October 13, 2017, PNC filed an answer to Francis’ complaint and asserted

      that it claimed no interest in the Property. On October 30, 2017, Fannie Mae,

      JP Morgan Chase Bank, N.A., and Homesales, LLC (hereinafter “Co-

      Defendants”) filed a motion to dismiss Francis’ complaint on grounds that the

      claims are barred under principles of res judicata. On October 31, 2017, the trial

      court granted the Co-Defendants’ motion to dismiss and ordered that each of

      the Co-Defendants be dismissed from the action, with prejudice.


[5]   On November 29, 2017, Francis filed a motion to correct error claiming that the

      trial court erred in granting the motion to dismiss before Francis could respond.

      The motion to correct error was denied on December 4, 2017.


[6]   On December 1, 2017, PNC filed a motion for judgment on the pleadings,

      contending that Francis’ claims are barred under principles of res judicata and

      are also time-barred. PNC again asserted that it claimed no interest in the

      Property. On December 28, 2017, Francis filed a document in opposition to

      PNC’s motion. The trial court granted PNC’s motion for judgment on the

      pleadings on January 8, 2018.


[7]   On January 23, 2018, Francis filed a praecipe for withdrawal, seeking

      reassignment of the case on grounds that the trial court had failed to timely rule

      on the motion for judgment on the pleadings. On January 25, 2018, the Chief

      Administration Officer of the Indiana Supreme Court issued a notice to the

      Clerk of the Marion County Circuit and Superior Courts, notifying the clerk

      that withdrawal of the submission of the matter from the judge was not


      Court of Appeals of Indiana | Memorandum Decision 18A-CT-596 | September 14, 2018   Page 5 of 12
       warranted because the trial court had entered its judgment on the pleadings on

       January 8, 2018.


[8]    On February 7, 2018, Francis filed a “Verified Motion to Correct Errors,” again

       claiming that the trial court had failed to timely rule on the motion for

       judgment on the pleadings and that the trial court had failed to allow

       appropriate time for Francis to respond to the Co-Defendants’ motion to

       dismiss. Francis also claimed that he had newly-discovered evidence based

       upon his call to the Marion County Recorder’s Office on January 26, 2018 and

       upon his re-examination of the Warranty Deed and release of mortgage

       pertaining to the Property. The trial court denied the motion to correct error on

       February 20, 2018. This appeal ensued.



                                  Discussion and Decision
[9]    Indiana Trial Rule 59(A)(1) permits a party to file a motion to correct error to

       address “newly discovered material evidence … capable of production within

       thirty (30) days of final judgment which, with reasonable diligence, could not

       have been discovered and produced at trial[.]” Indiana courts receive motions

       under Rule 59(A)(1) with “great caution” because a high value has long been

       placed on the finality of judicial resolutions. Faulkinbury v. Broshears, 28 N.E.3d

       1115, 1122 (Ind. Ct. App. 2015).


[10]   The decision concerning whether to grant a Trial Rule 59 motion to correct

       error based on newly discovered evidence is an equitable decision requiring the


       Court of Appeals of Indiana | Memorandum Decision 18A-CT-596 | September 14, 2018   Page 6 of 12
       court to balance the alleged injustice suffered by the party moving for relief

       against the interest of the prevailing party and society in the finality of

       litigation. Id. We review the denial of a motion to correct error based on newly

       discovered evidence for an abuse of discretion. Id. The trial court’s decision

       comes to us clothed with a presumption of correctness, and the appellant has

       the burden of showing an abuse of discretion. Id. An abuse of discretion will

       be found when the trial court’s decision is against the logic and effect of the

       facts and circumstances before it. Id.


[11]   New evidence requires the trial court to grant a Trial Rule 59 motion to correct

       error only when the party seeking relief demonstrates that:


               (1)the evidence has been discovered since the trial; (2) it is
               material and relevant; (3) it is not cumulative; (4) it is not merely
               impeaching; (5) it is not privileged or incompetent; (6) due
               diligence was used to discover it in time for trial; (7) the evidence
               is worthy of credit; (8) it can be produced upon a retrial of the
               case; and (9) it will probably produce a different result at retrial.


       Id. at 1125.


[12]   Francis claimed to have uncovered evidence of fraud and multiple forgeries.

       He made many factual allegations, including: a now-defunct title company

       engineered a fraudulent mortgage agreement in 1994, delinquent taxes were

       paid from Francis’ escrow account without his knowledge or consent, the prior

       owner of the Property failed to appear at closing and substituted his son to pose

       as the owner, the deed referenced a non-existent easement, the Sheriff’s eviction

       notice contained possibly forged signatures, Accubanc sold the Property
       Court of Appeals of Indiana | Memorandum Decision 18A-CT-596 | September 14, 2018   Page 7 of 12
       without proper notice and/or assigned a right to service Francis’ mortgage

       without proper notice, and pertinent chain-of-title records were missing.


[13]   Francis claimed to have garnered new information from a Certified Forensic

       Loan Audit, a title report, and a corresponding examination of closing, pre-

       closing, and post-closing documents. He also described having communicated

       with the personnel of the Marion County Recorder’s Office and the Marion

       County Sheriff’s records custodian regarding the Property. Francis did not

       assert facts to show that due diligence was used to discover the evidence prior to

       the judgment of foreclosure or that he was prevented from a thorough

       examination of the relevant documents before he initiated his complaint

       attacking the foreclosure. Accordingly, the alleged newly-discovered evidence

       did not satisfy the due diligence requirement and the trial court did not abuse its

       discretion by refusing to grant a motion to correct error based on newly-

       discovered evidence.


[14]   In addition to his claim of newly-discovered evidence, Francis has made some

       assertions of procedural error. First, he directs our attention to Indiana Trial

       Rule 53.1, which addresses a trial court’s failure to rule upon a motion.

       Subsection (A) provides:


               In the event a court fails for thirty (30) days to set a motion for
               hearing or fails to rule on a motion within thirty (30) days after it
               was heard or thirty (30) days after it was filed, if no hearing is
               required, upon application by an interested party, the submission
               of the cause may be withdrawn from the trial judge and
               transferred to the Supreme Court for the appointment of a special
               judge.
       Court of Appeals of Indiana | Memorandum Decision 18A-CT-596 | September 14, 2018   Page 8 of 12
[15]   Francis has also drawn attention to the fact that the trial court’s January 8, 2018

       entry of judgment upon a December 1, 2017 motion took place a few days

       outside the thirty-day window of time contemplated by the foregoing rule. As

       best we can discern, Francis takes the position that (1) the operation of Rule

       53.1(A) is not limited to a failure to rule, but also encompasses an untimely

       ruling, and (2) he has an affirmative right to withdrawal of the case and

       appointment of a new trial judge upon showing that an untimely ruling was

       made. He does not, however, provide reasoning to support the proposition that

       a litigant may await an unfavorable outcome and then seek withdrawal of the

       case.


[16]   Indiana Appellate Rule 46(A)(8)(a) requires:


               The argument must contain the contentions of the appellant on
               the issues presented, supported by cogent reasoning. Each
               contention must be supported by citations to the authorities,
               statutes, and the Appendix or parts of the Record on Appeal
               relied on, in accordance with Rule 22.


       Francis’s failure to comply with the foregoing waives his issue for appellate

       review. See Dickes v. Feiger, 981 N.E.2d 559, 562 (Ind. Ct. App. 2012). See also

       Thacker v. Wentzel, 797 N.E.2d 342, 345 (Ind. Ct. App. 2003) (clarifying that we

       will not become an advocate for a party and will not address arguments that are

       inappropriate, too poorly developed, or so improperly expressed that they

       cannot be understood).




       Court of Appeals of Indiana | Memorandum Decision 18A-CT-596 | September 14, 2018   Page 9 of 12
[17]   Francis also asserts that he was deprived of a right to amend his complaint

       pursuant to Indiana Trial Rule 15(A). In relevant part, this rule provides:


               A party may amend his pleading once as a matter of course at
               any time before a responsive pleading is served or, if the pleading
               is one to which no responsive pleading is permitted, and the
               action has not been placed upon the trial calendar, he may so
               amend it at any time within thirty [30] days after it is served.


[18]   Francis observes that there is “powerful Indiana policy,” Appellant’s Brief at

       49, supporting amendment of pleadings so that matters at issue before the trial

       court may be developed. He cites to Huff v. Travelers Indemnity Co., 266 Ind.

       414, 363 N.E.2d 985 (1977) as a principal decision evincing the policy.5

       However, his attempt to direct our attention to reversible error in this case falls

       short. The entirety of his argument addressing the operation of the rule under

       the particular circumstances of his case is as follows:


               The Trial Court sent no notices to parties nor were their [sic]
               timely entries for extension of time to rule on Appellee’s “Motion
               for Judgment on the Pleadings” made in the trial Court’s CSR.
               Judicial error is not grounds for equitable relief, but where a
               litigant’s right of appeal is hindered or destroyed through an error
               of an officer of the court, such destruction of the Trial Court,
               equity will grant relief.




       5
         The Huff Court observed: “a pleading may be amended once as a matter of course within thirty days after
       service of the pleading.” 266 Ind. at 419; 363 N.E.2d at 989.

       Court of Appeals of Indiana | Memorandum Decision 18A-CT-596 | September 14, 2018             Page 10 of 12
       Appellant’s Brief at 50. Again, we conclude that Francis failed to comply with

       the requirements of Appellate Rule 46(A)(8)(a). He failed to support his

       contention of procedural error or deprivation of due process with cogent

       reasoning and appropriate citations to the record and has waived the issue for

       appellate review. Dickes, 981 N.E.2d at 562.


[19]   Finally, Francis contends that the trial court erroneously denied his motion to

       correct error before PNC had an opportunity to respond. Again, his argument

       is concise, providing in its entirety:


               Rule 6(C) in part said that a responsive pleading required under
               the rules shall be served within 20 days. It’s a reversible error for
               a trial court to enter a final order prior to the expiration of the
               twenty days allowed to the defendants [plaintiff] for filing an
               answer, . . . But the court does not lose jurisdiction to act, and it
               may enter a mandamus order before the twenty days have
               expired, when the facts show that defendants [plaintiff’s] attorney
               appeared and provided active representation for the defendants
               [plaintiffs] and its position. … There is no proof Plaintiff
               requested an enlargement of time by court order or extension.


       Appellant’s Brief at 50-51 (citations omitted).


[20]   To the extent that Francis suggests that a responsive pleading to a motion to

       correct error is required and governed by the time limitations of Indiana Trial




       Court of Appeals of Indiana | Memorandum Decision 18A-CT-596 | September 14, 2018   Page 11 of 12
       Rule 6(C),6 he has developed no corresponding argument with citation to

       relevant authority. We remain unconvinced that the trial court committed

       procedural error in this regard.



                                                  Conclusion
[21]   Francis has not demonstrated that the trial court abused its discretion in

       denying the motion to correct error.


[22]   Affirmed.


       Mathias, J., and Bradford, J., concur.




       6
        Indiana Trial Rule 6(C) provides in part: “A responsive pleading required under these rules, shall be served
       within twenty [20] days after service of the prior pleading. Unless the court specifies otherwise, a reply shall
       be served within twenty [20] days after entry of an order requiring it.”

       Court of Appeals of Indiana | Memorandum Decision 18A-CT-596 | September 14, 2018                 Page 12 of 12
