MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                        FILED
this Memorandum Decision shall not be                                    Nov 19 2018, 10:05 am
regarded as precedent or cited before any
                                                                              CLERK
court except for the purpose of establishing                              Indiana Supreme Court
                                                                             Court of Appeals
the defense of res judicata, collateral                                        and Tax Court

estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                  ATTORNEY FOR APPELLEE
Preeti Gupta                                            Jennifer L. Snook
Indianapolis, Indiana                                   Marinosci Law Group, PC
                                                        Valparaiso, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Donna G. Dowell,                                        November 19, 2018
Appellant-Defendant,                                    Court of Appeals Case No.
                                                        18A-MF-832
        v.                                              Appeal from the Wayne Superior
                                                        Court
U.S. Bank, National                                     The Honorable Gregory A. Horn,
Association,                                            Judge
Appellee-Plaintiff.                                     Trial Court Cause No.
                                                        89D02-1510-MF-159



Riley, Judge.




Court of Appeals of Indiana | Memorandum Decision 18A-MF-832 | November 19, 2018                  Page 1 of 7
                                  STATEMENT OF THE CASE
[1]   Appellant-Defendant, Donna G. Dowell (Dowell), appeals the trial court’s

      summary judgment in favor of Appellee-Plaintiff, U.S. Bank, National

      Association (U.S. Bank), on U.S. Bank’s Complaint, seeking foreclosure on

      Dowell’s property.


[2]   We affirm.


                                                   ISSUE
[3]   Dowell presents us with one issue on appeal, which we restate as: Whether the

      trial court erred in granting summary judgment to U.S. Bank on its request for

      foreclosure on Dowell’s property.


                        FACTS AND PROCEDURAL HISTORY
[4]   Dowell is the owner of the property commonly known as 422 West Drive,

      Richmond, Indiana. On December 7, 2011, Dowell and her husband, James

      Russell Dowell, 1 executed two promissory notes. The first note promised to

      pay U.S. Bank the amount of $37,000; while the second note promised to pay

      U.S. Bank the amount of $50,500. Each note was secured by a mortgage on the

      property in favor of U.S. Bank. Both mortgages were recorded with the Wayne

      County Recorder’s Office on December 27, 2011. Although Dowell initially




      1
          Dowell’s husband passed away in 2012.


      Court of Appeals of Indiana | Memorandum Decision 18A-MF-832 | November 19, 2018   Page 2 of 7
      made the required payments under the terms of the instruments, eventually a

      payment default occurred.


[5]   On October 22, 2015, U.S. Bank filed its Complaint seeking to foreclose on the

      two notes and mortgages held on the property. On June 23, 2016, the trial

      court entered a default judgment against Dowell and in favor of U.S. Bank.

      Subsequent to the entry of the default judgment, Dowell, by counsel, appeared

      in the cause and filed a motion to set aside the sheriff’s sale set for September

      21, 2016. The trial court denied the motion. On September 7, 2016, Dowell

      filed a motion to vacate the default judgment. On June 26, 2017, the trial court

      vacated its previously entered default judgment. On September 25, 2017, U.S.

      Bank filed its motion for summary judgment, together with a memorandum of

      law and designation of evidence, as well as a decree of foreclosure. On

      November 13, 2017, Dowell filed her memorandum in opposition to U.S.

      Bank’s motion for summary judgment, together with a designation of evidence.

      On January 3, 2018, U.S. Bank filed a reply, with a supplemental designation of

      evidence. On March 27, 2018, following a hearing, the trial court entered

      summary judgment in favor of U.S. Bank.


[6]   Dowell now appeals. Additional facts will be provided as necessary.


                              DISCUSSION AND DECISION
                                            I. Standard of Review


[7]   In reviewing a trial court’s ruling on summary judgment, this court stands in the

      shoes of the trial court, applying the same standards in deciding whether to
      Court of Appeals of Indiana | Memorandum Decision 18A-MF-832 | November 19, 2018   Page 3 of 7
      affirm or reverse summary judgment. First Farmers Bank & Trust Co. v. Whorley,

      891 N.E.2d 604, 607 (Ind. Ct. App. 2008), trans. denied. Thus, on appeal, we

      must determine whether there is a genuine issue of material fact and whether

      the trial court has correctly applied the law. Id. at 607-08. In doing so, we

      consider all of the designated evidence in the light most favorable to the non-

      moving party. Id. at 608. A fact is ‘material’ for summary judgment purposes if

      it helps to prove or disprove an essential element of the plaintiff’s cause of

      action; a factual issue is ‘genuine’ if the trier of fact is required to resolve an

      opposing party’s different version of the underlying facts. Ind. Farmers Mut. Ins.

      Group v. Blaskie, 727 N.E.2d 13, 15 (Ind. 2000). The party appealing the grant

      of summary judgment has the burden of persuading this court that the trial

      court’s ruling was improper. First Farmers Bank & Trust Co., 891 N.E.2d at 607.


[8]   We observe that, in the present case, the trial court entered findings of fact and

      conclusions of law in support of its judgment. Special findings are not required

      in summary judgment proceedings and are not binding on appeal.

      AutoXchange.com. Inc. v. Dreyer and Reinbold, Inc., 816 N.E.2d 40, 48 (Ind. Ct.

      App. 2004). However, such findings offer this court valuable insight into the

      trial court’s rationale for its review and facilitate appellate review. Id.


                                                 II. Analysis


[9]   Pursuant to Indiana Code section 32-30-10-3(a), “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, superior court, or the


      Court of Appeals of Indiana | Memorandum Decision 18A-MF-832 | November 19, 2018   Page 4 of 7
       probate court of the county where the real estate is located to foreclose the

       equity of redemption contained in the mortgage.” To establish a prima 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. 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. Id.


[10]   U.S. Bank designated evidence establishing Dowell’s default on both notes and

       mortgages. While not disputing U.S. Bank’s possession of the negotiable

       instruments and her own non-payment thereon, Dowell designated a self-

       serving affidavit affirming that she entered into a contract modification with

       U.S. Bank in 2017 and made two periodic payments in accordance with the

       provisions of the modification.


[11]   However, our review of the designated evidence reflects that what Dowell

       characterizes to be a contract modification, was in fact a “Repayment Plan

       Agreement” executed in the context of a loss mitigation program for the second

       mortgage only. Even though she applied for a similar Agreement with respect

       to the first mortgage, Dowell’s application was rejected. The purpose of the

       Repayment Plan Agreement was to give Dowell “additional time to repay

       amounts due on the account by making supplemental payments in addition to

       the regular monthly payments” on her second mortgage. (Appellee’s App. Vol.

       II, p. 80). Accordingly, pursuant to the terms of the Agreement, Dowell was

       Court of Appeals of Indiana | Memorandum Decision 18A-MF-832 | November 19, 2018   Page 5 of 7
       instructed to “make the supplemental payment of $403.44 in addition to the

       monthly payment as reflected on the monthly billing statement[.]” (Appellee’s

       App. Vol. II, p. 80). Dowell was advised that by accepting the Repayment Plan

       Agreement “all terms and provisions of [her] current mortgage note and

       mortgage security instrument remain[ed] in full force and effect and [she] will

       comply with those terms; and that nothing in the [R]epayment [P]lan shall be

       understood or construed to be a satisfaction or release in whole or in part of the

       obligations contained in the loan documents.” (Appellee’s App. Vol. II, p. 83).

       While the evidence reflects that Dowell attempted to make two supplemental

       payments under the provisions of the Repayment Plan Agreement, U.S. Bank

       did not accept those payments. Dowell acknowledges that she did not make any

       monthly payments. As a consequence of Dowell’s failure to abide by the terms

       of the Repayment Plan Agreement, U.S. Bank ceased its loss mitigation efforts

       and proceeded with its foreclosure on the property.


[12]   As there is no genuine issue of material fact that Dowell failed to perform her

       obligations under the terms of the note for the first mortgage and under the

       terms of the loss mitigation for the second mortgage, we conclude that the trial

       court properly granted summary judgment to U.S. Bank.


                                            CONCLUSION
[13]   Based on the foregoing, we hold that the trial court properly issued summary

       judgment to U.S. Bank on its request for foreclosure on Dowell’s property.


[14]   Affirmed.

       Court of Appeals of Indiana | Memorandum Decision 18A-MF-832 | November 19, 2018   Page 6 of 7
[15]   Vaidik, C. J. and Kirsch, J. concur




       Court of Appeals of Indiana | Memorandum Decision 18A-MF-832 | November 19, 2018   Page 7 of 7
