FOR PUBLICATION



APPELLANT PRO SE:                           ATTORNEYS FOR APPELLEE:

ALAN PATRICK MCENTEE                        TIMOTHY J. ABESKA
Knox, Indiana                               EILEEN S. PRUITT
                                            Barnes & Thornburg LLP
                                            South Bend, Indiana

                                                                        FILED
                                                                     Jun 19 2012, 9:13 am

                            IN THE                                           CLERK
                                                                           of the supreme court,

                  COURT OF APPEALS OF INDIANA                              court of appeals and
                                                                                  tax court




ALAN PATRICK MCENTEE,                       )
                                            )
     Appellant-Defendant,                   )
                                            )
            vs.                             )      No. 75A03-1106-MF-277
                                            )
WELLS FARGO BANK, N.A.,                     )
                                            )
     Appellee-Plaintiff.                    )


                    APPEAL FROM THE STARKE CIRCUIT COURT
                           The Honorable Kim Hall, Judge
                           Cause No. 75C01-1005-MF-71



                                   June 19, 2012

                            OPINION - FOR PUBLICATION

BAILEY, Judge
                                          Case Summary

        Alan Patrick McEntee (“McEntee”), pro se, appeals from the denial of his motion to

correct error, which challenged the trial court’s entry of summary judgment, which granted

Wells Fargo Bank N.A.’s (“Wells Fargo”) foreclosure claim and denied McEntee’s

counterclaim for damages.

        We reverse and remand for further proceedings.

                                                Issue

        McEntee presents several issues for our review, which we reframe as whether the trial

court abused its discretion when it denied McEntee’s motion to correct error requesting the

trial court to set aside its entry of summary judgment in favor of Wells Fargo and against

him.

                                 Facts and Procedural History

        On August 4, 2003, McEntee borrowed $73,000 from USB Home Lending, a Division

of Universal Savings Bank, F.A. (“USB Home Lending”). The note for the loan required

that McEntee make monthly payments of $467.43.1 (Appellee’s App. at 29.) The loan was

secured by a mortgage, which McEntee executed on August 4, 2003. At some point prior to

the relevant events of this case, Wells Fargo became the servicer on the loan for USB Home

Lending.

        At some point, McEntee submitted a check to Wells Fargo for his January 2009



1
 McEntee’s required payments under the note were in excess of this amount due to a requirement in the
mortgage that he include in his monthly payments amounts for escrow items, including taxes and other
assessments, mortgage insurance, and other such amounts.

                                                   2
mortgage payment. The check was postdated to the payment due date, but Wells Fargo

negotiated the check before that date. While it does not appear that McEntee’s check was

returned for insufficient funds, payment of the check resulted in checking account overdraft

fees to McEntee of $112.50.

       McEntee engaged in efforts to obtain compensation from Wells Fargo for the

overdraft fees. This appears to have escalated into a dispute over the proper place for

McEntee to make payments; whether certain payments were made late; and whether McEntee

could deduct amounts for the overdraft fees, mileage to deliver a payment to a Wells Fargo

bank branch, and a “premature check cashing” fee. Appellant’s App. at 5.

       On June 10, 2009, McEntee sent a letter to Mark Oman, then an executive for Wells

Fargo in Des Moines, Iowa, that included two checks to Wells Fargo for McEntee’s May

2009 and July 2009 mortgage payments. From the July 2009 payment, which was to total

$664.98, McEntee deducted his claimed expenses for travel ($11.50), overdraft fees

($112.50), and the overdraft fee associated with “premature check cashing” ($22.87). Thus,

McEntee’s check for his July 2009 payment was $518.11, which he postdated to July 1, 2009.

       By September 2009, McEntee’s dispute with Wells Fargo remained unresolved. Thus,

on September 23, 2009, McEntee sent a letter to Ben Windust, another executive for Wells

Fargo. Stating that “[t]here has been no reply to date regarding the problems,” McEntee

submitted with the letter a check for his October 2009 payment in the amount of $700.00,

which he specified was to cover the $664.98 monthly payment and additional principal of

$35.02 “plus $0.02 from previous month not allocated.” Appellant’s App. at 7. The check


                                             3
was postdated to October 1, 2009, and McEntee indicated that he would assess a $100.00 fee

“deductible from a future payment” if Wells Fargo “[p]remature[ly] deposit[ed]” the check.

Appellant’s App. at 7.

       McEntee’s relationship with Wells Fargo continued to deteriorate. Eventually, Wells

Fargo returned two of McEntee’s checks (for the July 2009 and January 2010 payments) and

informed McEntee that it planned to foreclose on the mortgage. On April 27, 2010, USB

Home Lending assigned its interest in the mortgage and conveyed the promissory note for the

loan to Wells Fargo.

       On May 13, 2010, Wells Fargo filed its Complaint to Foreclose Mortgage against

McEntee.

       On June 7, 2010, McEntee answered the complaint, denying Wells Fargo’s allegation

that he had defaulted on the loan. McEntee also asserted several counterclaims. McEntee

alleged that Wells Fargo failed to apply properly his payments, and requested damages “for

all costs associated with this suit, plus all money not properly attributed by the Plaintiff.”

Appellee’s App. at 35. McEntee also asserted a counterclaim for $73,000 “for emotional

pain and suffering and all ancillary costs,” claiming that Wells Fargo “has used its size and

power in an effort to intimidate [McEntee] to accept extra costs that are not his

responsibility.”   Appellee’s App. at 35.     McEntee’s answer and counterclaims were

accompanied by a “Defense History” that set forth an alleged timeline of events. These

included McEntee’s recounting of the payment history and Wells Fargo’s refusal to recognize

certain payments as having been made, and McEntee’s claim that Wells Fargo in August


                                              4
2009 sent him a check for $125.00 to cover his overdraft fees.

       On June 10, 2010, Wells Fargo answered and moved to dismiss McEntee’s

counterclaims.

       On January 21, 2011, Wells Fargo filed its motion for summary judgment against

McEntee as to its complaint and McEntee’s counterclaims. On February 2, 2011, McEntee

filed his response to Wells Fargo’s motion for summary judgment.

       The trial court conducted a hearing on Wells Fargo’s motion for summary judgment

on April 25, 2011. On April 26, 2011, the trial court entered summary judgment in favor of

Wells Fargo and against McEntee on Wells Fargo’s complaint for foreclosure and McEntee’s

counterclaims.

       On May 20, 2011, McEntee filed his motion to correct error, subtitled as a motion to

reconsider. Wells Fargo filed its response to the motion on May 31, 2011. The trial court

denied McEntee’s motion to correct error on June 10, 2011.

       This appeal followed.

                                 Discussion and Decision

                                    Standard of Review

       McEntee appeals from the trial court’s denial of his motion to correct error. Our

standard of review in such cases is well established. We review a trial court’s ruling on a

motion to correct error for an abuse of discretion. Town of Plainfield v. Paden Eng’g Co.,

943 N.E.2d 904, 908 (Ind. Ct. App. 2011), trans. denied. An abuse of discretion occurs when

the trial court’s decision is contrary to the logic and effects of the facts and circumstances


                                              5
before it or the reasonable inferences there from. Carter-McMahon v. McMahon, 815 N.E.2d

170, 174 (Ind. Ct. App. 2004).

       Here, the motion to correct error sought to set aside the entry of summary judgment.

We review a trial court’s entry of summary judgment under the same standard as the trial

court. Williams v. Tharp, 914 N.E.2d 756, 761 (Ind. 2009). Summary judgment is

appropriate only where “the designated evidentiary matter shows that there is no genuine

issue as to any material fact and that the moving party is entitled to a judgment as a matter of

law.” Ind. Trial Rule 56(C). We construe all evidence in favor of the party opposing

summary judgment, and we resolve all doubts as to the existence of a material issue against

the moving party. Town of Plainfield, 943 N.E.2d at 908.

       At summary judgment, “[t]he moving party bears the burden of making a prima facie

showing that there are no genuine issues of material fact and that the movant is entitled to

judgment as a matter of law.” Dreaded, Inc. v. St. Paul Guardian Ins. Co., 904 N.E.2d 1267,

1270 (Ind. 2009). Once the moving party has carried its burden, “the burden then shifts to

the non-moving party to designate and produce evidence of facts showing the existence of a

genuine issue of material fact.” Id. That is, there is no burden to produce evidence upon the

non-movant until the moving party has established, based upon its own designated

evidentiary matter, that it is entitled to summary judgment. See Jarboe v. Landmark Cmty.

Newspapers of Ind., Inc., 644 N.E.2d 118, 123 (Ind. 1994) (holding that Indiana does not

apply the federal summary judgment procedure as announced in Celotex Corp. v. Catrett, 477

U.S. 317 (1986), and requiring that a moving party “support [its] motion for summary


                                               6
judgment with … designated evidence to establish the absence of a question of fact on an

outcome-determinative issue”).

       A trial court’s entry of summary judgment “arrives on appeal ‘clothed with a

presumption of validity,’” and thus the party challenging summary judgment must bear the

burden of proving that the movant was not entitled to summary judgment. Williams, 914

N.E.2d at 762 (quoting Rosi v. Bus. Furniture Corp., 615 N.E.2d 431, 434 (Ind. 1993)). We

will affirm a trial court’s entry of summary judgment if the judgment can be sustained on any

theory or basis in the record. Town of Plainfield, 943 N.E.2d at 908. We review a decision

on summary judgment carefully, however, to ensure that a party was not properly denied his

day in court. Haire v. Parker, 957 N.E.2d 190, 195 (Ind. Ct. App. 2011), trans. denied. The

trial court’s findings and conclusions upon entry of summary judgment are not binding upon

our review, though they “offer valuable insight into the trial court’s rationale for its review

and thus facilitate appellate review.” Raisor v. Jimmie’s Raceway Pub, Inc., 946 N.E.2d 72,

75 (Ind. Ct. App. 2011).

               Summary Judgment on Wells Fargo’s Claim for Foreclosure

       We turn first to McEntee’s contention that Wells Fargo was not entitled to summary

judgment on its complaint for foreclosure of the mortgage.

       The Indiana Code provides, “if a mortgagor defaults in the performance of any

condition contained in a mortgage, the mortgagee or the mortgagee’s assign may proceed in

the circuit court of the county where the real estate is located to foreclose the equity of

redemption contained in the mortgage.” Ind. Code § 32-30-10-3(a). To establish a prima


                                              7
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. Id.; Creech v. LaPorte Prod. Credit Ass’n, 419 N.E.2d 1008, 1012 (Ind. Ct. App.

1981). 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. See Creech, 419 N.E.2d at 1012.

        Here, the mortgage and note provided that McEntee would pay installments of

$467.43, plus escrow-related costs, on the first day of each month, beginning on September

1, 2003, and running through August 1, 2033. Even a single untimely payment could

constitute default. The provisions of the mortgage and note included a non-waiver clause

that provided, “[e]ven if, at a time when I am in default, the Note Holder does not require me

to pay immediately in full … the Note Holder will still have the right to do so if I am in

default at a later time.” (Appellee’s App. at 30.)

        At summary judgment, Wells Fargo submitted as designated evidence the note

McEntee signed, the mortgage agreement, and an affidavit from Brian Von Bergen (“Von

Bergen”), Vice President of Wells Fargo Bank. The affidavit stated the then-outstanding

principal amount on the note as well as other fees, and averred that McEntee was in default

under the terms of the note and mortgage.2


2
  McEntee noted before the trial court and again in his brief before this court that an attorney who had not
filed an appearance form pursuant to Trial Rule 3.1 represented Wells Fargo during oral argument before
the trial court, though the same law firm that had represented Wells Fargo to that point employed that
attorney. McEntee does not indicate how counsel’s failure to enter a proper appearance prejudiced him.
See T.R. 61 (providing no basis for reversal on appeal where an error does not affect the substantial rights
of the parties). However, during oral argument before the trial court, counsel for Wells Fargo told the trial

                                                      8
        Wells Fargo contends that McEntee admitted default both before the trial court and in

his brief to this court. As we understand his argument, McEntee argues in his brief that if the

mortgage was in default, the default was a result of Wells Fargo’s conduct. Specifically,

McEntee argues that Wells Fargo improperly deposited postdated checks before the monthly

due date for each payment date, failed to apply payments properly, and refused tender of

properly made payments. In his response to Wells Fargo’s motion for summary judgment,

McEntee designated as exhibits several letters he sent to Wells Fargo regarding his payment

disputes. That is, McEntee does not admit default in his performance of any condition of the

note, as our statutes require before a mortgagee may foreclose upon a mortgage. See I.C. §

32-30-10-3(a). Rather, McEntee asserted as a defense to the foreclosure that Wells Fargo

improperly handled his payments on the note, and he designated evidentiary materials in

support of this position.

        Wells Fargo demonstrated, as Creech requires, that it was the holder of the note.

        Wells Fargo did not establish, however, that McEntee had defaulted on his obligations

under the note. “Conclusory statements are generally disregarded in determining whether to

grant or deny a motion for summary judgment.” LaCava v. LaCava, 907 N.E.2d 154, 166

(Ind. Ct. App. 2009) (citing Paramo v. Edwards, 563 N.E.2d 595, 600 (Ind. 1990)). Wells

Fargo’s designated materials are inadequate to the task of supporting its motion for summary

judgment. The designated materials establish the balance on the loan and additional costs


court that the check McEntee submitted for his January 2010 payment was returned for insufficient funds.
There was no evidence in the record to support this statement, and argument of counsel is not properly
designated evidence. See Richards-Wilcox, Inc. v. Cummins, 700 N.E.2d 496, 499 n.3 (Ind. Ct. App.
1998). Any consideration of counsel’s statement was therefore inappropriate.

                                                    9
Wells Fargo incurred as a result of the claimed default. But the only evidence of McEntee’s

default—that is, the only evidence designated by Wells Fargo that establishes McEntee’s

failure to comply with the terms of the note and mortgage—is the conclusory averment in

Von Bergen’s affidavit that “[a]ccording to [Wells Fargo’s] records, the Mortgagors are in

default and that said default has not been cured.” (Appellee’s App. at 58.)

        This conclusory statement is not enough. The designated materials reflect only Wells

Fargo’s opinion based upon its undesignated records that McEntee was in default. Thus,

Wells Fargo did not establish the absence of a genuine issue of material fact regarding its

contention that McEntee had defaulted on the note, nor did it establish a prima facie case that

it was entitled to foreclose on the mortgage.

       While Wells Fargo’s designated materials were insufficient to shift the burden to

establish a genuine issue of material fact onto McEntee, he nevertheless responded to Wells

Fargo’s motion for summary judgment with his own designated materials. Among these

were copies of letters McEntee had sent to various officers of Wells Fargo. The letters set

forth various disputes McEntee had regarding Wells Fargo’s handling of his payments, and

indicate that he intended to deduct certain amounts from one or more payments on the loan.

It is unclear, however, whether McEntee did withhold such amounts, as neither party

designated such materials as cancelled checks or balance statements that could establish

whether McEntee failed to make appropriate payments on or before the proper payment date

each month.

       Taking the designated materials together, and drawing all inferences in favor of


                                                10
McEntee as the non-movant, the designated evidentiary materials submitted by the parties at

summary judgment do not establish that McEntee defaulted in his performance under the

note, but rather that he and Wells Fargo were engaged in an ongoing payment dispute. Thus,

we cannot conclude that the trial court properly granted summary judgment in favor of Wells

Fargo on its foreclosure complaint. We therefore reverse the trial court’s entry of summary

judgment on this point.

                    Summary Judgment on McEntee’s Counterclaims

      We turn now to the trial court’s entry of summary judgment in favor of Wells Fargo

on McEntee’s counterclaims. We think this decision was in error.

      McEntee’s counterclaims stated:

      The Defendant counterclaims for damages for all costs associated with this
      suit, plus all money not properly attributed by the Plaintiff in an amount to be
      determined by the court at trial; plus interest on amounts received by the
      Plaintiff and not credited to the Defendant.

      The Defendant also counterclaims in the amount of $73,000 for emotional pain
      and suffering and all ancillary costs, enumerated or not at this point. The
      plaintiff has used its size and power in an effort to intimidate the Defendant to
      accept extra costs that are not his responsibility. Their vindictiveness is
      irresponsible and unconscionable.

(Appellee’s App. at 35.)

      In its motion for summary judgment, Wells Fargo sought entry of summary judgment

on both its foreclosure claim and McEntee’s counterclaims. While Wells Fargo designated

some materials in support of the motion, it submitted no materials pertinent to either of




                                             11
McEntee’s counterclaims.3 The trial court granted Wells Fargo’s motion for summary

judgment on the counterclaims.

        This was error. One of McEntee’s counterclaims related to the misapplication of his

payments is less a claim for relief than it is an affirmative defense alleging that Wells Fargo

improperly handled his payments on the note. See T.R. 8(F) (providing that “pleadings shall

be construed so as to do substantial justice, lead to disposition on the merits, and avoid

litigation of procedural points”); also Williams v. State, 892 N.E.2d 666, 670 (Ind. Ct. App.

2008) (construing as an appeal for denial of a motion for involuntary dismissal under Trial

Rule 41(B) an argument the appellant characterized as challenging the sufficiency of

evidence as on appeal), trans. denied. Wells Fargo’s designated evidentiary materials do not

establish that McEntee failed to pay the amounts due on the note. While McEntee designated

materials that give rise to an inference that a payment dispute existed between him and Wells

Fargo and made pertinent arguments to that effect in his briefs, Wells Fargo designated no

evidence to show the lack of a genuine issue of material fact. Thus, the materials before the

trial court established a genuine issue of material fact as to McEntee’s defense concerning

Wells Fargo’s handling of McEntee’s payments, and Wells Fargo was therefore not entitled

to summary judgment on this matter.

        Moreover, Wells Fargo submitted neither evidence nor argument concerning

McEntee’s allegation that its vindictive and irresponsible conduct gave rise to emotional pain

and suffering. “A party responding to a motion for summary judgment is entitled to take the

3
 As we have already observed, the materials Wells Fargo designated were insufficient of themselves to
support an entry of summary judgment on its foreclosure claim.

                                                   12
motion as the moving party frames it.” Reiswerg v. Statom, 926 N.E.2d 26, 30-31 (Ind.

2010). Wells Fargo argued that depositing McEntee’s postdated checks was not a basis for

recovery, that it was entitled to foreclosure under the terms of the note and mortgage, and

moved for entry of summary judgment on its claims and those of McEntee. Yet Wells Fargo

designated no evidentiary materials to support its motion for summary judgment on the

counterclaim. McEntee’s counterclaim for emotional pain and suffering was therefore not

properly before the trial court for disposition on summary judgment, and the court erred when

it entered summary judgment against McEntee on this claim.

                                        Conclusion

       The trial court erroneously entered summary judgment in favor of Wells Fargo on its

foreclosure claim because Wells Fargo failed to establish that there was no genuine issue of

material fact as to the allegation that McEntee had defaulted on the note. The trial court’s

entry of summary judgment in favor of Wells Fargo on McEntee’s counterclaims was also in

error because Wells Fargo did not establish the absence of a genuine issue of material fact as

to McEntee’s affirmative defense, and because McEntee’s counterclaim concerning

emotional distress was not properly before the trial court at summary judgment. We

therefore reverse the trial court and remand this matter for further proceedings.

       Reversed and remanded.

ROBB, C.J., and MATHIAS, J., concur.




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