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                      Aug 04 2014, 5:49 am
establishing the defense of res judicata,
collateral estoppel, or the law of the case.


ATTORNEYS FOR APPELLANT:                       ATTORNEYS FOR APPELLEE:

RACHELE L. CUMMINS                             DAVID J. JURKIEWICZ
JON M. SCHULTE                                 NATHAN T. DANIELSON
Smith Carpenter Fondrisi, & Cummins, LLC       CHRISTINA M. BRUNO
Jeffersonville, Indiana                        Bose McKinney & Evans LLP
                                               Indianapolis, Indiana


                             IN THE
                   COURT OF APPEALS OF INDIANA

ERIC P. MAINS,                                 )
                                               )
      Appellant-Defendant,                     )
                                               )
             vs.                               )     No. 10A04-1309-MF-450
                                               )
CITIBANK, NA as TRUSTEE FOR WAMU               )
SERIES 2007-HE2 TRUST,                         )
                                               )
      Appellee-Plaintiff.                      )


                     APPEAL FROM THE CLARK CIRCUIT COURT
                         The Honorable Daniel E. Moore, Judge
                      The Honorable Kenneth R. Abbott, Magistrate
                            Cause No. 10C01-1004-MF-248


                                    August 4, 2014

              MEMORANDUM DECISION - NOT FOR PUBLICATION

SHARPNACK, Senior Judge
                                  STATEMENT OF THE CASE

        Eric P. Mains appeals from the trial court’s order entering summary judgment

against him in a mortgage foreclosure action brought against him and Anna V. Mains 1 by

Citibank, NA (“Citibank”), as Trustee for WAMU Series 2007-HE2 Trust.

        We affirm.

                                                ISSUE

        Mains presents the following issue for our review, which we restate as: whether the

trial court erred by granting summary judgment to Citibank absent designated evidence

that Citibank had standing to enforce the promissory note and to foreclose on the property

subject to the mortgage.

                               FACTS AND PROCEDURAL HISTORY

        On December 19, 2006, Eric P. and Anna V. Mains executed a promissory note to

Washington Mutual Bank (“WAMU”) in the principal sum of $182,400.00, and granted a

mortgage in favor of WAMU to secure the payment of the note on property located in Clark

County. The mortgage was recorded in Clark County. After WAMU failed, it was taken

over by the Federal Deposit Insurance Corporation (“the FDIC”), as receiver. In turn, the

FDIC assigned the note and mortgage to JPMorgan Chase Bank, N.A. (“Chase”), on

September 25, 2008. Chase subsequently assigned the note to Citibank, which is in actual

possession of the original note endorsed in blank.



1
  Anna V. Mains signed the promissory note and was named in the foreclosure complaint. Anna did not
respond to the complaint and does not participate in this appeal. However, under Indiana Appellate Rule
17(A), “[a] party of record in the trial court or Administrative Agency shall be a party on appeal.” Even
so, in this opinion we will make reference to Eric P. Mains only.

                                                   2
       Mains defaulted under the note and mortgage by failing to pay the monthly

installments due under the note commencing February 1, 2009, and continuing thereafter.

The loan was accelerated, and Citibank filed a complaint against Mains seeking a personal

money judgment against him, foreclosure of the mortgage against the real estate, and an

order for a sheriff’s sale of the real estate.

       Mains filed an answer to the complaint, and the settlement conference Mains

requested was conducted, but ended unsuccessfully. On February 11, 2013, Citibank

moved for summary judgment against Mains and designated evidence in support of its

motion. Mains filed a response to the motion objecting to Citibank’s motion for summary

judgment. A hearing was held on Citibank’s motion after which the trial court took the

matter under advisement.        Ultimately, the trial court granted Citibank’s motion for

summary judgment and entered an in rem judgment against the real estate and an in

personam judgment against Mains for the remaining balance due, costs, and interest. The

trial court also entered an order for the foreclosure of the mortgage and for a sheriff’s sale

of the real estate. Mains’s motion to correct error asserting the discovery of new evidence

was denied. Mains now appeals.

                               DISCUSSION AND DECISION

        On appeal from a grant or denial of summary judgment, our standard of review is

the same standard as used by the trial court: whether there exists a genuine issue of material

fact and whether the moving party is entitled to judgment as a matter of law. Reed v. Reid,

980 N.E.2d 277, 285 (Ind. 2012). Appellate review of a summary judgment motion is

limited to those materials designated to the trial court. Id. All facts and reasonable

                                                 3
inferences drawn therefrom are construed in favor of the nonmovant. Id. “[W]e are not

limited to reviewing the trial court’s reasons for granting or denying summary judgment

but rather may affirm a grant of summary judgment upon any theory supported by the

evidence.” Keaton & Keaton v. Keaton, 842 N.E.2d 816, 821 (Ind. 2006). However, “[w]e

must reverse the grant of a summary judgment motion if the record discloses an incorrect

application of the law to those facts.” Wagner v. Yates, 912 N.E.2d 805, 808 (Ind. 2009).

       The moving party bears the burden of showing the absence of a factual issue and

that it is entitled to judgment as a matter of law. Norman v. Turkey Run Cmty Sch. Corp.,

274 Ind. 310, 312, 411 N.E.2d 614, 615 (1980). Once that burden has been met, however,

the opposing party cannot rest upon its pleadings; rather, it must present sufficient evidence

to demonstrate the existence of a genuine issue of material fact. T.R. 56(E); Oelling v.

Rao, 593 N.E.2d 189, 190 (Ind. 1992). Furthermore, T.R. 56(H) provides that:

       “[n]o judgment rendered on the motion shall be reversed on the ground that
       there is a genuine issue of material fact unless the material fact and the
       evidence relevant thereto shall have been specifically designated to the trial
       court.”

       Mains challenges the trial court’s entry of summary judgment in favor of Citibank

contending, alternately, that Citibank failed to establish that it was the real party in interest

and that Citibank lacked standing to bring the mortgage foreclosure action. Our Supreme

Court has set forth the following explanation of the differences between the concepts of

standing and real party in interest as follows:

       The concepts of standing and real party in interest often are understandably—
       but incorrectly—considered one and the same. . . . Standing is similar to,
       although not identical with, real party in interest requirements of Trial Rule
       17. Standing refers to the question of whether a party has an actual

                                               4
      demonstrable injury for purposes of a lawsuit. . . . A real party in interest, on
      the other hand, is the person who is the true owner of the right sought to be
      enforced. He or she is the person who is entitled to the fruits of the action.

Hammes v. Brumley, 659 N.E.2d 1021, 1029-30 (Ind. 1995) (internal quotations, citations,

and emphasis omitted).

      The evidence designated to the trial court established that Eric and Anna Mains

signed the promissory note with WAMU and granted a mortgage on real estate in Clark

County as security for the promissory note. The mortgage was recorded in Clark County.

When WAMU failed, it was taken over by the FDIC as receiver. Citibank designated the

affidavit of the receiver in charge for the FDIC with respect to WAMU’s accounts attesting

to the FDIC’s statutory authority to assign an asset or liability of WAMU and that Chase

had purchased and assumed WAMU’s loans and all loan commitments. The note and

mortgage were assigned to Chase, and Chase later assigned the mortgage and note to

Citibank. Mains defaulted under the note and mortgage by failing to make the monthly

installments due under the note commencing February 1, 2009, and continuing thereafter.

The loan was accelerated and this action commenced. An affidavit from a Chase employee

attesting to and itemizing the amounts due as of November 7, 2012, was also among

Citibank’s designated materials.

      At the hearing on Citibank’s motion, counsel for Citibank produced the original

promissory note for inspection by Mains and the trial court. The promissory note was made

payable to the order of the lender, who was defined as WAMU, and indicated that the

lender was permitted to transfer the note. The note provided that anyone who took the



                                             5
promissory note by transfer and is entitled to take payments under the note is defined as

the note holder.

       Mains, as the non moving party, was required at that point to present sufficient

evidence demonstrating the existence of a genuine issue of material fact. Mains did not

come forth with evidence, but attacked the sufficiency of Citibank’s designated materials.

Therefore, Citibank’s evidence of its entitlement to enforce the mortgage and note was

uncontradicted. The fact that Citibank’s role was as Trustee of the WAMU Series 2007-

HE2 Trust does not impair its ability to enforce the note. Indeed, Indiana Trial Rule 17(A)

explicitly provides that a trustee may sue in his own name. Furthermore, we stated the

following in Lunsford v. Deutsche Bank Trust Co. Americas as Trustee, 996 N.E.2d 815,

821 (Ind. Ct. App. 2013):

       Indiana has adopted Article 3 of the Uniform Commercial Code (UCC),
       which governs negotiable instruments, and it is well-established that a
       promissory note secured by a mortgage is a negotiable instrument. Indeed,
       mortgage notes were considered negotiable instruments before the adoption
       of the UCC. Indiana Code section 26-1-3.1-301 provides that a negotiable
       instrument may be enforced by “the holder of the instrument.” The 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.”

(internal citations omitted).

       The trial court correctly concluded as a matter of law that Citibank was entitled to

summary judgment.

       Mains filed a motion to correct error alleging newly discovered evidence, but did

not provide the trial court with new evidence. Instead, Mains presented additional legal



                                            6
argument in an effort to convince the trial court to reverse its decision on summary

judgment.

       “We review a denial of a request for new trial presented by a Trial Rule 59 motion

to correct error or a Rule 60(B) motion for relief from judgment for abuse of discretion.”

Speedway SuperAmerica, LLC v. Holmes, 885 N.E.2d 1265, 1270 (Ind. 2008).

Furthermore,

       The Indiana Rules of Trial Procedure provide two related procedures for
       addressing material evidence that remains undiscovered until after trial. Trial
       Rule 59(A)(1) permits a party to file a motion to correct error to address
       “[n]ewly discovered material evidence, including alleged jury misconduct,
       capable of production within thirty (30) days of final judgment which, with
       reasonable diligence, could not have been discovered and produced at trial.”
       Similarly, and incorporating the requirements of Trial Rule 59(A)(1), Trial
       Rule 60(B)(2) permits a party to move for relief on grounds of “newly
       discovered evidence, which by due diligence could not have been discovered
       in time to move for a motion to correct errors under Rule 59.”

Id. Here, Mains presented additional legal argument, not newly discovered evidence. As

such, Mains did not establish that he had evidence discovered since the hearing, that was

material and relevant, but not cumulative, nor merely impeaching, was not privileged or

incompetent, that due diligence was used to discover it in time for the hearing, that is

worthy of credit and can be produced in a new hearing, that will probably produce a

different result. Id. at 1271. The trial court did not abuse its discretion.

                                       CONCLUSION

       In light of the foregoing, we affirm the trial court’s decision.

       Affirmed.




                                               7
ROBB, J., and BROWN, J., concur.




                                   8
