MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                      FILED
this Memorandum Decision shall not be                                  Mar 15 2019, 10:13 am
regarded as precedent or cited before any
court except for the purpose of establishing                                CLERK
                                                                        Indiana Supreme Court
                                                                           Court of Appeals
the defense of res judicata, collateral                                      and Tax Court

estoppel, or the law of the case.


APPELLANTS PRO SE                                       ATTORNEYS FOR APPELLEE
Michael Francis                                         David J. Jurkiewicz
Carmen Jay Francis                                      Christina M. Bruno
Indianapolis, Indiana                                   Bose McKinney & Evans LLP
                                                        Indianapolis, Indiana


                                          IN THE
    COURT OF APPEALS OF INDIANA

Michael Francis and Carmen Jay                          March 15, 2019
Francis,                                                Court of Appeals Case No.
Appellants-Defendants,                                  18A-MF-1493
                                                        Appeal from the Marion Superior
        v.                                              Court
                                                        The Honorable Timothy W. Oakes,
EMC Mortgage, LLC,                                      Judge
Appellee-Plaintiff.                                     Trial Court Cause No.
                                                        49D02-0706-MF-23133



Sharpnack, Senior Judge.




Court of Appeals of Indiana | Memorandum Decision 18A-MF-1493 | March 15, 2019                  Page 1 of 14
                                     Statement of the Case
[1]   Michael and Carmen Francis (collectively the Francises) appeal the trial court’s

      denial of their motion to correct error. We affirm.


                                                    Issue
[2]   The Francises present three issues for our review, which we restate as one:

      whether the trial court erred by denying the Francises’ motion to correct error.


                               Facts and Procedural History
[3]   In 1994, the Francises executed a promissory note and a mortgage on their

      home. When the note matured in 2001, the Francises failed to satisfy the

      outstanding balance. In 2007, EMC Mortgage, LLC (EMC) filed suit to

      foreclose on the mortgage. The trial court entered a foreclosure judgment in

      February 2016, which the Francises appealed. This Court affirmed the trial

      court’s judgment in a memorandum decision in April 2017, and our Supreme

      Court later denied transfer. See Francis v. EMC Mortg., LLC, No. 49A02-1604-

      MF-830 (Ind. Ct. App. Apr. 19, 2017), trans. denied.


[4]   In addition,


              [t]he Francises filed bankruptcy proceedings and initiated an
              adversary proceeding in the United States Bankruptcy Court for
              the Southern District of Indiana seeking almost $200,000 in
              damages from EMC Mortgage for an allegedly improper
              foreclosure. The Bankruptcy Court dismissed the adversary
              proceeding for lack of jurisdiction over a state foreclosure action.
              The Francises appealed the decision to the United States District

      Court of Appeals of Indiana | Memorandum Decision 18A-MF-1493 | March 15, 2019   Page 2 of 14
               Court for the Southern District of Indiana, and the bankruptcy
               court’s decision was affirmed.


      Francis v. Fannie Mae, et al., No. 18A-CT-8, slip op. at 2 (Ind. Ct. App. Nov. 26,

      2018).


[5]   In August 2017 in state court, the Francises 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, Temporary Restraining Order/Injunctive Relief and Jury

      Demand” against EMC and several other defendants. Id. In October, EMC

      and other defendants filed a motion to dismiss the complaint on grounds that

      the claims were barred under principles of res judicata. The trial court granted

      the motion to dismiss and ordered that the defendants be dismissed from the

      action with prejudice. The Francises then filed a motion to correct error, which

      was denied. The Francises appealed.


[6]   In appealing the dismissal of their complaint and denial of their motion to

      correct error, the Francises argued that EMC could not participate in the action

      because it was “defunct” and not authorized to do business in Indiana.

      Concluding the Francises were barred by res judicata from raising these claims

      because they raised them in their prior appeal of the foreclosure judgment, a

      panel of this Court affirmed the dismissal of the Francises’ complaint. See id.


[7]   Meanwhile, in the underlying action in the trial court, defendant PNC Bank

      filed a motion for judgment on the pleadings in December 2017, also

      Court of Appeals of Indiana | Memorandum Decision 18A-MF-1493 | March 15, 2019   Page 3 of 14
      contending the Francises’ claims were barred by res judicata. The trial court

      granted PNC’s motion. The Francises filed with the Supreme Court a praecipe

      for withdrawal of the case, which the Court determined was unwarranted. The

      Francises then filed a motion to correct error in the trial court, which the trial

      court denied. The Francises appealed.


[8]   In its decision on appeal, a panel of this Court noted that the Francises claimed

      to have uncovered evidence of fraud and multiple forgeries; made numerous

      factual allegations, including a now-defunct title company engineered a

      fraudulent mortgage agreement, the prior owner of the property failed to appear

      at closing and substituted his son to pose as the owner, and the sheriff’s eviction

      notice contained possibly forged signatures; and asserted instances of

      procedural error. Finding that the Francises waived the issues due to their

      failure to comply with the rules of appellate procedure by supporting their

      contentions with cogent reasoning and appropriate citations to the record, the

      Court determined they had not demonstrated the trial court abused its

      discretion in denying their motion to correct error. See Francis v. Accubanc Mortg.

      Corp., No. 18A-CT-596 (Ind. Ct. App. Sept. 14, 2018).


[9]   In the meantime, in February 2017, Homesales, Inc. had purchased the real

      estate at a sheriff’s sale. In November, the real estate agent for Homesales and

      other representatives went to the real estate to evict the Francises, but they

      discovered that the Francises had already vacated the premises. The real estate

      agent installed locks on the doors, and, in early February 2018, he listed the

      home for sale. A few weeks later the agent went to the home and discovered a

      Court of Appeals of Indiana | Memorandum Decision 18A-MF-1493 | March 15, 2019   Page 4 of 14
       U-Haul truck in the driveway and the Francises and two other individuals

       unloading items from the truck into the home. Michael admitted that he had

       cut the lock on the door, and he indicated to the agent that he and Carmen were

       moving back into the home. The real estate agent called for police assistance,

       and the Francises were directed to leave the premises.


[10]   In April 2018, EMC and Homesales filed with the trial court a motion entitled

       “Motion to Enforce Writ of Assistance, Motion for Order Barring Michael and

       Carmen Francis from the Real Estate, Motion for Sanctions, and Motion to

       Declare Michael and Carmen Francis Vexatious Litigants.” The trial court

       granted EMC and Homesales’ motion. The Francises then filed a motion

       entitled “Verified Motion to Correct Errors, Objections for Lack of Due Process

       for Order to EMC and Homesales,” which the trial court denied. This appeal

       followed.


                                    Discussion and Decision
[11]   The Francises appeal the denial of their motion to correct error. Trial courts

       have broad discretion to determine whether they will grant or deny a motion to

       correct error. Luxury Townhomes, LLC v. McKinley Props., Inc., 992 N.E.2d 810,

       815 (Ind. Ct. App. 2013), trans. denied. A trial court abuses this discretion only

       if its decision is clearly against the logic and effect of the facts and

       circumstances before the court or the reasonable inferences to be drawn

       therefrom. Id. On appeal, the trial court’s decision is cloaked in a presumption

       of correctness, and the appellant has the burden of proving that the trial court


       Court of Appeals of Indiana | Memorandum Decision 18A-MF-1493 | March 15, 2019   Page 5 of 14
       abused its discretion. Jones v. Jones, 866 N.E.2d 812, 814 (Ind. Ct. App. 2007).

       The appellate court neither reweighs the evidence nor judges the credibility of

       witnesses. Id.


[12]   Although this is an appeal from the denial of the Francises’ motion to correct

       error, the Francises appear to be raising the following claims: (1) the

       foreclosure action is barred by a “Satisfaction of Mortgage;” (2) EMC cannot be

       a party to this case because it is “defunct” and lacks standing; (3) signatures on

       sheriff’s documents were forged; (4) the trial court erred by not holding a

       hearing on EMC’s motion; (5) the trial court erred by allowing the Homesales

       real estate agent to file an affidavit with EMC’s motion; (6) the trial court erred

       by failing to rule on the Francises’ motion to correct error; and (7) counsel for
                                                          1
       EMC failed to appear in this appeal.


                                                  Res Judicata
[13]   We address the Francises’ first three arguments under the doctrine of res

       judicata. The doctrine of res judicata serves to prevent repetitious litigation of

       disputes that are essentially the same. Hilliard v. Jacobs, 957 N.E.2d 1043, 1046

       (Ind. Ct. App. 2011), trans. denied. The doctrine has two components: claim




       1
         EMC contends that we should decline to review the Francises’ claims because the Francises have hindered
       this Court’s review of the issues, failed to follow the appellate rules, and failed to present a cogent argument.
       It is well established that we will not consider an appellant’s assertions upon which he or she has not
       presented cogent argument supported by authority and references to the record as required by the rules or
       address arguments that are either inappropriate, too poorly developed, or improperly expressed to be
       understood. Lasater v. Lasater, 809 N.E.2d 380, 389 (Ind. Ct. App. 2004). While the Francises’ arguments are
       not skillfully presented, we address what we understand to be their concerns.

       Court of Appeals of Indiana | Memorandum Decision 18A-MF-1493 | March 15, 2019                      Page 6 of 14
       preclusion and issue preclusion. Id. Claim preclusion applies when a final

       judgment on the merits has been rendered in an action, and it acts to bar a

       subsequent action on the same claim between the same parties. Evergreen

       Shipping Agency Corp. v. Djuric Trucking, Inc., 996 N.E.2d 337, 340 (Ind. Ct. App.

       2013). More specifically, claim preclusion applies when the following four

       factors are satisfied: (1) the former judgment must have been rendered by a

       court of competent jurisdiction; (2) the former judgment must have been

       rendered on the merits; (3) the matter now in issue was, or could have been,

       determined in the prior action; and (4) the controversy adjudicated in the

       former action must have been between the parties to the present suit or their

       privies. Id.


                                    1. Satisfaction of Mortgage
[14]   The Francises allege they received a Satisfaction of Mortgage which discharges

       and releases them from the mortgage and bars all suits thereon. In support of

       this argument, they include a copy of a document entitled “Satisfaction of

       Mortgage” that names them and their property, acknowledges full payment of

       the mortgage, is signed by a representative of the Federal National Mortgage

       Association (“Fannie Mae”) as “mortgagee,” and shows a file stamp from the

       county recorder’s office dated April 25, 2018. Appellants’ App. Vol. III, p. 111.


[15]   However, in response to the Francises’ claims, EMC has submitted an affidavit

       from the representative at Fannie Mae who caused the Satisfaction of Mortgage




       Court of Appeals of Indiana | Memorandum Decision 18A-MF-1493 | March 15, 2019   Page 7 of 14
       to be signed and sent to the Francises. In the affidavit, the representative sets

       forth events that occurred in March and April of 2018.


[16]   We pause here to note the relevant timeline. The foreclosure judgment was

       issued by the trial court in February 2016 and states that EMC at that time was

       the holder of the note and the mortgage on the Francises’ property and was the

       party entitled to enforce those documents. Appellee’s App. Vol. II, p. 5. The

       order further states that EMC’s mortgage was at the time a valid lien on the

       property and ordered that the lien of the mortgage be foreclosed as first and

       prior lien. Id. at 7. That judgment was affirmed on appeal by this Court in

       April 2017.


[17]   A year later, in March and April of 2018, the Fannie Mae representative began

       receiving emails from Michael Francis. Id. at 176. Attached to one of the

       emails was a document entitled Satisfaction of Mortgage, which the Francises

       requested Fannie Mae to execute. Id. at 177. Incorrectly understanding the

       document to disclaim any interest of Fannie Mae in the loan related to the

       Francises’ property, the representative caused the document to be executed. Id.

       The affiant representative sets forth that he did not realize: (1) the Satisfaction

       of Mortgage erroneously identified Fannie Mae as the present owner of the

       mortgage, and (2) the Satisfaction of Mortgage erroneously indicated that

       Fannie Mae acknowledged full payment and satisfaction of the mortgage. Id.

       Fannie Mae was neither the owner of the mortgage nor had it received full

       payment and satisfaction of the mortgage because the loan had been purchased

       from Fannie Mae by a different loan servicer in 2002. Id. On November 8,

       Court of Appeals of Indiana | Memorandum Decision 18A-MF-1493 | March 15, 2019   Page 8 of 14
       2018, the affidavit of the Fannie Mae representative was filed with the county

       recorder referencing both the mortgage and the satisfaction and was entitled

       “Affidavit Regarding Erroneous Satisfaction of Mortgage.” Id. at 175.


[18]   Not only is this a baseless claim, but also it is the Francises’ attempt to

       circumvent and relitigate the foreclosure proceeding, which has been fully

       litigated to a final determination. The judgment of foreclosure was rendered on

       the merits by the Marion County Superior Court, a court of competent

       jurisdiction, and that controversy involved the same parties. That judgment

       was affirmed on appeal. See Francis, 49A02-1604-MF-830.


                           2. Defunct Company/Lacks Standing
[19]   In addition, the Francises claim that EMC cannot be a party to this action

       because the company is “defunct” and lacks standing. Appellants’ Br. p. 46.

       This claim also relates to the foreclosure judgment. As we stated, that

       judgment was rendered on the merits by a court of competent jurisdiction and

       determined a controversy involving the same parties. Further, the Francises

       have previously raised the claims of defunct business and lack of standing in

       their appeal of the foreclosure judgment, see Francis, No. 49A02-1604-MF-830,

       slip op. at 3, as well as in their appeal of the dismissal of their August 2017

       lawsuit against EMC. See Francis, No. 18A-CT-8, slip op. at 3 (noting Francises

       are attempting to “rehash” same arguments Court addressed in prior appeal and

       applying res judicata to bar relitigation).




       Court of Appeals of Indiana | Memorandum Decision 18A-MF-1493 | March 15, 2019   Page 9 of 14
                                         3. Forged Signatures
[20]   As best we can discern, it appears the Francises are making broad allegations of

       forged signatures on sheriff’s documents. This claim, just as the two before it,

       relates to the 2016 foreclosure. That controversy involved the same parties, and

       a court of competent jurisdiction rendered a decision on the merits.

       Additionally, the Francises also previously raised this issue as part of their

       newly discovered evidence claim to support their motion to correct error in

       Francis, No. 18A-CT-596 (determining that alleged newly discovered evidence

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

       discretion by denying Francises’ motion to correct error based upon such).


[21]   Consequently, claim preclusion bars the Francises from relitigating the

       foreclosure action by raising these arguments.


                                                 4. Hearing
[22]   Next, the Francises contend the trial court erred by not holding a hearing on

       EMC’s motion requesting they be barred from the property and that sanctions

       and restrictions on their future filings be imposed.


[23]   Trial Rule 73 gives courts flexibility to deal with hearings regarding motions.

       Apple v. Hall, 412 N.E.2d 114, 117 (Ind. Ct. App. 1980). Indeed, Trial Rule 73

       allows the trial court to expedite its business by directing the submission and

       determination of motions without oral hearing. Where a trial rule requires the

       court to conduct a hearing before deciding a motion, that rule will trump Trial

       Rule 73, and the court must conduct a hearing; however, where the trial rule is

       Court of Appeals of Indiana | Memorandum Decision 18A-MF-1493 | March 15, 2019   Page 10 of 14
       silent about a hearing requirement, Trial Rule 73 permits the trial court to rule

       on a motion without a hearing. Rumfelt v. Himes, 438 N.E.2d 980, 983-84 (Ind.

       1982) (determining that Trial Rule 41(E)’s hearing requirement controls over

       Trial Rule 73).


[24]   Here, the trial rules do not indicate that a hearing was required on EMC’s

       motion, and the Francises cite to no authority that entitled them to such a

       hearing. Moreover, EMC’s motion was filed April 9, and the trial court did not

       rule upon the motion until May 2. Although they had plenty of time, the

       Francises failed to file anything in response to EMC’s motion or to request a

       hearing. Most telling is Judge Oakes’ notation on the order granting EMC’s

       motion: “Ct believes a hearing is unnecessary since the matter has been heard,

       appealed, and a[d]judicated fully. Therefore, Court is granting essentially what

       has already previously been granted.” Appellee’s App. Vol. II, p. 35. As Judge

       Oakes acknowledged, the basis of EMC’s motion is essentially the enforcement

       of things already determined, thus making a hearing futile.


                                                5. Affidavit
[25]   The Francises also allege that the trial court erred by allowing the Homesales

       real estate agent to submit an affidavit without being a party in the original

       case.


[26]   EMC submitted the affidavit of the Homesales real estate agent in support of its

       motion requesting the Francises be barred from the property and that sanctions

       and restrictions on their future filings be imposed. The affidavit set forth the

       Court of Appeals of Indiana | Memorandum Decision 18A-MF-1493 | March 15, 2019   Page 11 of 14
       events witnessed by the agent that caused EMC to file its motion with the trial

       court, namely that the agent had installed locks on the doors of the property

       and, in February 2018, had listed the home for sale. A few weeks later he went

       to the home and found the Francises moving items into the home. At that time,

       Michael admitted to the agent that he had cut the lock on the door, and he

       indicated that he and Carmen were moving back in—two years after the

       foreclosure judgment.


[27]   A trial court may, in its discretion, accept affidavits supporting a motion. Ind.

       Trial Rule 6(D). “Good practice in all cases requires that where a motion is

       founded upon matters not within the judicial knowledge of the court, there

       should be an affidavit as to the existence of the facts upon which it is based,

       showing their materiality and the necessity for invoking the aid of the court

       with reference thereto.” Terre Haute Gas Corp. v. Johnson, 221 Ind. 499, 507-08,

       45 N.E.2d 484, 487 (1942), judgment modified on reh’g, 221 Ind. 499, 48 N.E.2d

       455 (1943). We are unaware of any requirement that an affiant be a party to the

       case, and the Francises cite to none. There was no error in allowing the filing

       of the agent’s affidavit in support of EMC’s motion.


                                           6. Failure to Rule
[28]   The Francises next make the specious argument that the trial court erred by

       failing to rule upon their motion to correct error. First, they know the trial

       court ruled on their motion because they are appealing its denial. Second, the

       motion is stamped “DENIED” with the date of May 29, 2018 and the judge’s

       signature, a copy of which the Francises included in their appendix. See
       Court of Appeals of Indiana | Memorandum Decision 18A-MF-1493 | March 15, 2019   Page 12 of 14
       Appellants’ App. Vol. II, p. 2. In addition, the CCS notations show the judge

       denied the Francises’ motion to correct error on May 29, 2018 and that notice

       was issued to the parties. See id. at 39.


                                     7. Counsel’s Appearance
[29]   Again, the Francises present a baseless argument by alleging that EMC’s

       counsel did not file an appearance in this appeal. In fact, the docket of this

       Court shows that David J. Jurkiewicz and Christina M. Bruno of Bose

       McKinney & Evans, LLP appeared in this action on behalf of EMC Mortgage,

       LLC on October 5, 2018. In addition, the appearance certifies it was served

       upon the Francises on the same date via the e-filing system at the email

       addresses they provided in their Notice of Appeal as well as being sent via first-

       class U.S. mail to the address they listed in their Notice of Appeal.


                                                Conclusion
[30]   We have defined judicial discretion as “a privilege allowed a judge within the

       confines of justice to decide and act in accordance with what is fair and

       equitable.” Fulton v. Van Slyke, 447 N.E.2d 628, 636 (Ind. Ct. App. 1983).

       Review of an exercise of judicial discretion must be made in light of and

       confined to the facts and circumstances of a particular case, and an abuse of

       discretion occurs only when the result is clearly against the logic and effect of

       the facts and circumstances before the court or the reasonable, probable, and

       actual deductions flowing therefrom. Id. The Francises have not demonstrated

       that the trial court abused its discretion in denying their motion to correct error.


       Court of Appeals of Indiana | Memorandum Decision 18A-MF-1493 | March 15, 2019   Page 13 of 14
[31]   Affirmed.


       Crone, J., and Brown, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 18A-MF-1493 | March 15, 2019   Page 14 of 14
