MEMORANDUM DECISION                                                  FILED
                                                                Dec 08 2016, 9:21 am

Pursuant to Ind. Appellate Rule 65(D), this                          CLERK
Memorandum Decision shall not be regarded as                     Indiana Supreme Court
                                                                    Court of Appeals
precedent or cited before any court except for the                    and Tax Court

purpose of establishing the defense of res judicata,
collateral estoppel, or the law of the case.



ATTORNEY FOR APPELLANTS                                  ATTORNEYS FOR APPELLEE
Andrew J. Thompson                                       Kurt V. Laker
Indianapolis, Indiana                                    Mark S. Gray
                                                         Doyle & Foutty, PC
                                                         Indianapolis, Indiana



                                             IN THE
    COURT OF APPEALS OF INDIANA

Joseph Matly and Rima A.                                 December 8, 2016
Matly,                                                   Court of Appeals Case No.
                                                         29A04-1608-MF-1761
Appellants-Defendants,
                                                         Appeal from the Hamilton Circuit
        v.                                               Court
                                                         The Honorable Paul Felix, Judge
Citimortgage, Inc.,                                      Cause No. 29C01-1307-MF-7147
Appellee-Plaintiff.




Riley, Judge.




Court of Appeals of Indiana | Memorandum Decision 29A04-1608-MF-1761 | December 8, 2016   Page 1 of 10
                                   STATEMENT OF THE CASE

[1]   Appellants-Defendants, Joseph Matly and Rima A. Matly (collectively, the

      Matlys), appeal the trial court’s denial of their motion for relief from summary

      judgment, by which the trial court affirmed the judgment and decree of

      foreclosure in favor of Appellee-Plaintiff, CitiMortgage, Inc. (CitiMortgage).


[2]   We affirm.


                                                   ISSUES

[3]   The Matlys raise two issues on appeal, which we restate as:


          (1) Whether the trial court properly permitted CitiMortgage to file a

              subsequent motion for summary judgment; and

          (2) Whether the trial court correctly denied the Matlys’ motion for relief

              from judgment and upheld the summary judgment and decree of

              foreclosure.


                           FACTS AND PROCEDURAL HISTORY

[4]   On March 31, 2004, the Matlys executed and delivered to ABN AMRO

      Mortgage Group, Inc. a promissory note in the original principal sum of

      $731,250, payable with interest at 5.500% per annum. On the same date, to

      secure payment of the sum due and owing pursuant to the terms of the

      promissory note, the Matlys executed a mortgage wherein a security interest

      was granted in the real estate located at 3584 Windward Way, in Hamilton



      Court of Appeals of Indiana | Memorandum Decision 29A04-1608-MF-1761 | December 8, 2016   Page 2 of 10
      County, Indiana. On August 31, 2007, ABN AMRO Mortgage Group, Inc.

      merged with CitiMortgage.


[5]   On June 24, 2011, CitiMortgage and the Matlys executed a Home Affordable

      Modification Agreement, by which the parties agreed to defer $17,980.12 in

      accrued unpaid interest and to lower the interest rate to 2.00% for five years,

      adjustable upward thereafter but capped at 4.50%. The Matlys stopped making

      payments to CitiMortgage after June 24, 2011.


[6]   On August 6, 2013, CitiMortgage filed a Complaint to foreclose on the

      promissory note and mortgage. On August 19, 2013, the Matlys requested a

      Settlement Conference. For an extended time, the parties engaged in the

      statutory settlement and loss mitigation process; however, on March 31, 2015,

      the trial court entered an order, concluding the settlement conference process.

      On April 13, 2015, CitiMortgage filed a motion for summary judgment, as well

      as a designation of evidence in support thereof. On May 26, 2015, the Matlys

      filed a response to CitiMortgage’s motion and moved to strike CitiMortgage’s

      affidavit of debt and designation of evidence. On June 16, 2015, the trial court

      denied both the Matlys’ motion to strike and CitiMortgage’s motion for

      summary judgment. On June 10, 2015, CitiMortgage filed a motion to

      reconsider the denial of its motion for summary judgment. By “Judge’s Entry”

      of August 17, 2015, the trial court denied CitiMortgage’s motion to reconsider

      but allowed it to “file [a] new motion for summary judgment.” (Appellee’s

      App. p. 34). On August 21, 2015, CitiMortgage filed a second motion for



      Court of Appeals of Indiana | Memorandum Decision 29A04-1608-MF-1761 | December 8, 2016   Page 3 of 10
       summary judgment, default judgment and decree of foreclosure, which was

       again denied by the trial court on August 26, 2015.


[7]    On February 23, 2016, CitiMortgage filed a third motion for summary

       judgment and default judgment entry and decree of foreclosure, as well as a

       memorandum of law and supporting affidavits. The Matlys did not respond.

       On April 13, 2016, the trial court granted CitiMortgage’s motion and entered

       summary judgment, default judgment, and decree of foreclosure against the

       Matlys.


[8]    On April 25, 2016, CitiMortgage filed a praecipe for order of sale. The sheriff’s

       foreclosure sale of the real estate was set for July 14, 2016. On July 6, 2016, the

       Matlys filed an emergency motion for relief from summary judgment and for

       stay of sheriff’s sale. On July 13, 2016, the trial court denied the Matlys’

       emergency motion and stay of sheriff’s sale. At the sheriff’s sale, the mortgaged

       property was purchased by CitiMortgage.


[9]    The Matlys now appeal. Additional facts will be provided as necessary.


                                  DISCUSSION AND DECISION

                              I. Subsequent Motions for Summary Judgment


[10]   The Matlys contend that the trial court erred by entering summary judgment in

       favor of CitiMortgage. Referencing CitiMortgage’s previous motions for

       summary judgment which were denied by the trial court, the Matlys now




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       maintain that the trial court’s earlier denials precluded or collaterally estopped

       CitiMortgage from seeking summary judgment in February 2016.


[11]   On April 13, 2015, CitiMortgage filed its initial motion for summary judgment,

       as well as a designation of evidence in support thereof, which the Matlys

       responded to on May 26, 2015. On the same day, the Matlys also moved to

       strike CitiMortgage’s affidavit of debt and designation of evidence. On June 16,

       2015, the trial court issued its ruling, concluding:

               1. The [c]ourt DENIES [Matlys’] Motion to Strike Affidavit and
                  Designations of Evidence as untimely.
               2. After a review of the file, the [c]ourt finds [CitiMortgage] has failed
                  to provide properly designated evidence in compliance with Trial
                  Rule 56. The [c]ourt is guided in this decision by Seth v. Midland
                  Funding, LLC., 997 N.E.2d 1139, 1142-43 (Ind. Ct. App. 2013),
                  which holds in relevant part that unspecified business records relied
                  on in support of summary judgment must be attached to the
                  affidavit. The [a]ffidavit in support of summary judgment relies on
                  unspecified business records which are not attached to the affidavit
                  or otherwise authenticated on record before the [c]ourt. As no
                  evidence supports the judgment sought by [CitiMortgage], the
                  motion for summary judgment is DENIED.
       (Appellee’s App. p. 33). The trial court did not direct the entry of a final

       judgment.


[12]   On June 10, 2015, CitiMortgage filed a motion to reconsider the denial of its

       motion for summary judgment. By “Judge’s Entry” of August 17, 2015, the

       trial court denied CitiMortgage’s motion to reconsider but allowed it to “file [a]

       new motion for summary judgment.” (Appellee’s App. p. 34). On August 21,

       2015, CitiMortgage filed a second motion for summary judgment, default


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       judgment and decree of foreclosure, which was again denied by the trial court

       on August 26, 2015.


[13]   On February 23, 2016, CitiMortgage filed a third motion for summary

       judgment and default judgment entry and decree of foreclosure, as well as a

       memorandum of law and supporting affidavits. On April 13, 2016, the trial

       court granted CitiMortgage’s motion and entered summary judgment, default

       judgment, and decree of foreclosure against the Matlys. On appeal, the Matlys

       now dispute the entry of this summary judgment based on res judicata.


[14]   It is generally accepted that res judicata serves to prevent repetitious litigation of

       disputes which are essentially the same. MicroVote General Corp. v. Ind. Election

       Comm’n, 924 N.E.2d 184, 191 (Ind. Ct. App. 2010). The doctrine of res

       judicata consists of two distinct components: claim preclusion and issue

       preclusion, also referred to as collateral estoppel. See Indianapolis Downs, LLC v.

       Herr, 834 N.E.2d 699, 703 (Ind. Ct. App. 2005), trans. denied. Even though

       these are two distinct components, claim preclusion and collateral estoppel both

       require a decision on the merits before the doctrine can attach. See id. at 703,

       704 (for claim preclusion to apply, “the former judgment must have been

       rendered on the merits” and in the case of collateral estoppel, “the former

       adjudication will only be conclusive as to those issues that were actually

       litigated and determined therein”). As the trial court did not adjudicate the

       merits of CitiMortgage’s motion for summary judgment, CitiMortgage was not

       precluded from renewing its motion for summary judgment.



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[15]   Furthermore, in Gibson v. Evansville Vanderburgh Bldg. Comm’n, 725 N.E.2d 949,

       952 (Ind. Ct. App. 2000), trans. denied, this court noted that

                [T]he trial court has inherent power to reconsider any of its previous
                rulings as long as the action remains in fieri, or until judgment is
                entered. There is no dispute that this action was in fieri at the time the
                motions for summary judgment were filed. Thus, the trial judge had
                discretion to rule on the defendants’ summary judgment motions, even
                if they were repetitive[.]
       As no final decision had been rendered by the trial court on the issue presented

       by the initial summary judgment motions, we conclude that the trial court

       properly allowed CitiMortgage to file a new motion for summary judgment. 1


                                       II. Motion for Relief from Judgment


[16]   Next, the Matlys contend that “the trial court clearly abused its discretion by

       ignoring its own poor rulings in the case and rejecting [the Matlys’] request for

       relief from the judgment in light of the fact that it had turned away three

       previous motions on the part of [CitiMortgage] asserting precisely the same




       1
         CitiMortgage devotes a large part of its Appellee’s Brief on the designated affidavit testimony and the
       mitigation of damages. However, our reading of Appellants’ brief indicates that they only raised the res
       judicata question in their first issue. The Matlys commenced the issue by laying out their trial court
       argument, i.e., loan modification, insufficient evidence, and mitigation of damages. They concluded this
       recitation with “[t]hese arguments prevailed in the trial court on three separate occasions[]” and then started
       their res judicata claim. (Appellee’s Br. p. 11). Our reading is supported by Appellants’ heading “[t]he trial
       court erred in granting summary judgment to plaintiff contrary to its earlier decision denying summary
       judgment to plaintiff,” and their Statement of the Issues. (Appellant’s Br. p. 8). We hasten to point out that,
       unfortunately, we cannot verify this against the Matlys’ Response to CitiMortgage’s motion for summary
       judgment as the Matlys’ response was not provided to this court. Contrary to Indiana Rule of Appellate
       Procedure 49, Appellants did not file an appendix with this court.

       Court of Appeals of Indiana | Memorandum Decision 29A04-1608-MF-1761 | December 8, 2016            Page 7 of 10
       facts and evidence as it did on the motion for summary judgment that was

       ultimately granted by the trial court.” (Appellant’s Br. p. 12).


[17]   Without specifying in their appellate brief on which prong of Indiana Trial Rule

       60(B) they rely to support their request, we turn to the Matlys’ amended

       emergency motion for relief from summary judgment and for stay of sheriff’s

       sale filed before the trial court on July 12, 2016. In their motion, the Matlys

       assert “exigency of the circumstances and the irreparability of the harm that will

       occur to [the Matlys]” by going forward with the sheriff’s sale. (Appellee’s

       App. p. 153). Their legal basis for relief appears to be a reiteration of their first

       appellate issue, i.e., the denial of CitiMortgage’s initial motion for summary

       judgment should have precluded any subsequent motion. Read as a whole, we

       will characterize the Matlys’ argument as a request for relief based on

       exceptional circumstances pursuant to T.R. 60(B)(8).


[18]   A motion made under T.R. 60(B) is addressed to the equitable discretion of the

       trial court, and we will reverse only upon an abuse of that discretion. Brimhall

       v. Brewster, 864 N.E.2d 1148, 1152-53 (Ind. Ct. App. 2007), trans. denied. When

       the trial court’s action is clearly erroneous, an abuse of discretion will be found.

       Id. at 1153. Indiana Trial Rule 60(B)(8) allows a trial court to set aside a

       judgment within a reasonable time for any reason justifying relief “other than

       those reasons set forth in sub-paragraphs (1), (2), (3), and (4).” Id. The trial

       court’s residual powers under subsection (8) may only be invoked upon a

       showing of exceptional circumstances justifying extraordinary relief. Id.

       Among other things, exceptional circumstances do not include mistake,

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       surprise, or excusable neglect, which are set out in T.R. 60(B)(1). Id. In this

       respect, we have distinguished T.R. 60(B)(8) in the past on the following

       grounds:

               T.R. 60(B)(8) is an omnibus provision which gives broad equitable
               power to the trial court in the exercise of its discretion and imposes a
               time limit based only on reasonableness. Nevertheless, under T.R.
               60(B)(8), the party seeking relief from the judgment must show that its
               failure to act was not merely due to an omission involving the mistake,
               surprise or excusable neglect. Rather some extraordinary
               circumstances must be demonstrated affirmatively. This
               circumstances must be other than those circumstances enumerated in
               the preceding subsections of T.R. 60(B).
       Baker & Daniels, LLP v. Coachmen Industries, Inc., 924 N.E.2d 130, 140 (Ind. Ct.

       App. 2010), trans. denied. In addition to showing circumstances extraordinary

       enough to justify relief, the Matlys also must make a prima facie showing of a

       meritorious claim. See id. at 141. In making such showing, the Matlys are

       required to present evidence that, if credited, demonstrates that a different result

       would be reached if the case were retried on the merits and that it is unjust to

       allow the judgment to stand. See id.


[19]   At no point did the Matlys contest CitiMortgage’s allegations of default on the

       promissory note and mortgage. The evidentiary allegations raised after

       CitiMortgage’s initial motion for summary judgment and acknowledged by the

       trial court in its denial of CitiMortgage’s initial motion, were cured with the

       filing of CitiMortgage’s latest—and successful—motion for summary judgment.

       The Matlys did not respond to this motion for summary judgment until after

       judgment was entered and until eight days before the scheduled sheriff’s sale


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       was to take place. Accordingly, we agree with CitiMortgage that the

       emergency the Matlys now complain of is of their own making. The Matlys did

       not offer any evidence—let alone any substantive evidence—which would

       change the outcome of the case. We affirm the trial court’s denial of the

       Matlys’ motion for relief from judgment.


                                              CONCLUSION

[20]   Based on the foregoing, we conclude that the trial court properly permitted

       CitiMortgage to file a subsequent motion for summary judgment; and the trial

       court correctly denied the Matlys’ motion for relief from judgment.


[21]   Affirmed.


[22]   Crone, J. and Altice, J. concur




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