                                                                        Nov 13 2015, 9:17 am




      ATTORNEY FOR APPELLANTS                                   ATTORNEYS FOR APPELLEE
      Douglas K. Briody                                         Eric C. Welch
      Law Office of Doug Briody                                 E. Phillip Gregg, Jr.
      Evansville, Indiana                                       Welch & Company, LLC
                                                                Muncie, Indiana



                                                 IN THE
          COURT OF APPEALS OF INDIANA

      William C. Elliott and                                   November 13, 2015
      Mary Kay Elliott,                                        Court of Appeals Case No.
                                                               82A05-1411-MF-518
      Appellants/Cross-Appellees-Defendants,
                                                               Appeal from the Vanderburgh
              v.                                               Superior Court
                                                               Lower Court Cause No.
                                                               82D03-0701-MF-185
      Dyck O’Neal, Inc., Successor in
      interest to Fifth Third Mortgage                         The Honorable Robert J. Tornatta,
                                                               Judge
      Company,
      Appellee/Cross-Appellant-Plaintiff.




      Pyle, Judge.


                                        Statement of the Case
[1]   This appeal stems from an in rem mortgage foreclosure default judgment against

      William C. Elliott (“William”) and Mary Kay Elliott (“Mary Kay”)

      (collectively “the Elliotts”) and post-judgment proceeding supplemental—


      Court of Appeals of Indiana | Opinion 82A05-1411-MF-518 | November 13, 2015              Page 1 of 26
      which was initiated by Dyck O’Neal, Inc. (“Dyck O’Neal”) as successor in

      interest to Fifth Third Mortgage Company (“Fifth Third”)—to collect on the

      deficiency from that in rem foreclosure judgment. After the trial court entered a

      garnishment order for the deficiency, the Elliotts, who were not represented by

      counsel, agreed to pay and began paying $50.00 per week toward the

      foreclosure deficiency. More than four years later, the Elliotts, then represented

      by counsel, filed a motion for a refund for the money paid toward the

      deficiency, arguing that the foreclosure order included only an in rem judgment

      against them. Thereafter, Dyck O’Neal filed a motion to amend the foreclosure

      order to add an in personam judgment. The trial court denied both motions.


[2]   On appeal, the Elliotts argue that the trial court erred by denying its motion for

      refund from payments made pursuant to the garnishment order because the

      foreclosure order, which did not contain an in personam judgment, provided no

      basis for such payments. Dyck O’Neal cross-appeals the trial court’s denial of

      its motion to amend the foreclosure judgment, arguing that the omission of an

      in personam judgment in the foreclosure order was a clerical error. Concluding

      that the trial court did not err by denying Dyck O’Neal’s motion to amend the

      foreclosure judgment, we affirm the trial court’s ruling on that motion.

      However, based on the specific facts in this case, including the lack of an in

      personam judgment in the original default foreclosure order, we conclude that

      the Elliotts are entitled to the equitable relief of a refund of their payments made

      pursuant to the garnishment order. Accordingly, we reverse the trial court’s

      ruling on the Elliotts’ motion for refund and remand to the trial court.


      Court of Appeals of Indiana | Opinion 82A05-1411-MF-518 | November 13, 2015   Page 2 of 26
[3]   We affirm in part, reverse in part, and remand.


                                                         Issues
               1. Cross-Appeal Issue – Whether the trial court erred by denying
                  Dyck O’Neal’s motion to amend the foreclosure judgment.


               2. Appeal Issue – Whether the trial court erred by denying the
                  Elliotts’ motion for refund.


                                                         Facts1
[4]   In March 2002, the Elliotts borrowed $92,200.00 from Fifth Third to finance

      the purchase of a house located at 701 South Norman Avenue in Evansville,

      Indiana (“the Property”). To secure payment of the note, the Elliotts executed

      a thirty-year mortgage with a 6.75% interest rate in favor of Fifth Third. In

      their note, the Elliotts agreed to be “fully and personally obligated to keep all of

      the promises made in th[e] Note, including the promise to pay the full amount

      owed.” (App. 14).


[5]   Three years later, in March 2005, the Elliotts filed for bankruptcy under

      Chapter 7 of the United States Bankruptcy Code. They reaffirmed the Property




      1
        We note that, although both parties filed appendices, there are multiple pleadings from this foreclosure
      proceeding that the parties failed to include in their appendices. We direct the parties’ attention to Appellate
      Rule 50(A)(2)(f), which provides that an appellate appendix should include “pleadings and other documents
      from the Clerk’s Record in chronological order that are necessary for resolution of the issues raised on
      appeal[.]” See also Ind. App. R. 50(A)(3) (providing that the contents of an Appellee’s Appendix is governed
      by the same rule that applies to an Appellant’s Appendix). Additionally, because Dyck O’Neal failed to
      include a Summary of the Argument section in its brief, we direct its attention to Appellate Rule 46, which
      sets forth the arrangement and content requirements for appellate briefs.

      Court of Appeals of Indiana | Opinion 82A05-1411-MF-518 | November 13, 2015                         Page 3 of 26
      in their bankruptcy proceeding, and their bankruptcy case was discharged and

      closed in June 2005.


[6]   On January 4, 2007, Fifth Third filed a “Complaint on Note and for

      Foreclosure on Mortgage” against the Elliotts. (App. 10). On January 29,

      2007, Fifth Third filed an amended complaint, adding a subsequent mortgagee

      bank as a defendant. In Fifth Third’s amended complaint, it sought the

      following relief:


              B. Enter judgment, in favor of Plaintiff and against the
              Defendants, William C. Elliott and Mary Kay Elliott, in the sum
              of $87,525.99, plus reasonable attorneys’ fee[s], and further
              interest and costs continually accumulating and all other costs
              herein, and all other relief proper in the premises;


              C. Enter an Order foreclosing the Mortgage of Plaintiff on the
              above-described Real Estate and foreclosing and barring the
              Defendants’ equity of redemption and interest in the Real Estate;


              D. Enter an Order directing the sale of the above-described Real
              Estate in order to pay the Judgment of Plaintiff, at such sale the
              Plaintiff will be empowered to bid for the subject Real Estate or
              any part thereof with the indebtedness to be credited with any
              amount paid by Plaintiff; and if the proceeds from such sale are
              not sufficient to satisfy the Plaintiff’s claim and debt herein found
              to be due and owing, for a further order directing the Sheriff to
              immediately levy upon the goods and chattels of the Defendants
              William C. Elliott and Mary Kay Elliott, until such Judgment is
              satisfied in full[.]


      (App. 33-34). The Elliotts and the junior mortgagee did not file an answer.

      Court of Appeals of Indiana | Opinion 82A05-1411-MF-518 | November 13, 2015   Page 4 of 26
[7]   On March 7, 2007, Fifth Third filed an “Application and Affidavit for Default

      Judgment” (“motion for default judgment”), an “Affidavit of Indebtedness and

      Non-Military Affidavit[,]” and an “Affidavit in Support of Attorney Fees[.]”

      (App. 36, 38, 41). In its motion for default judgment, Fifth Third “request[ed]

      that the Court enter judgment IN REM in its favor[.]” (App. 37) (emphasis in

      original).


[8]   Along with its motion for default judgment, Fifth Third submitted a proposed

      order, entitled “Default Judgment of Foreclosure” (“foreclosure order”), which

      the trial court adopted and signed that same day.2 (App. 44). In its foreclosure

      order, the trial court “granted [Fifth Third] judgment IN REM in the amount of

      Ninety-two Thousand Nine Hundred Eleven Dollars and Nineteen Cents

      ($92,911.19) . . . with interest thereon from February 9, 2007, until the date of

      the Judgment at the per diem rate of $16.19 and with a post-judgment statutory

      interest rate of 6.75% thereupon until paid . . . .” (App. 45-46). The

      chronological case summary (“CCS”) entry for March 13, 2007 contains the

      following notation to show that this foreclosure order was entered into the

      order book: “REM JUDGMENT FILED 3-7-07 FOR 3-7-07 RECEIVED

      AND ENTERED INTO ORDER BOOK THIS DATE.” (App. 3).

      Additionally, on the front of the foreclosure order, someone handwrote “Rem”




      2
        We note that both our Court and our Indiana Supreme Court have discouraged the verbatim adoption of a
      party’s proposed order. See Kesling v. Hubler Nissan, Inc., 997 N.E.2d 327, 332 (Ind. 2013); Safety Nat’l Cas. Co.
      v. Cinergy Corp., 829 N.E.2d 986, 993 n. 6 (Ind. Ct. App. 2005), trans. denied.



      Court of Appeals of Indiana | Opinion 82A05-1411-MF-518 | November 13, 2015                          Page 5 of 26
       near the title of the order. (App. 44). Because this foreclosure order is the basis

       of both parties’ arguments on appeal, we include a copy of it at the end of this

       opinion.


[9]    Approximately one month later, on April 4, 2007, Fifth Third filed a “Praecipe

       for Sheriff’s Sale[,]” and the Vanderburgh County Sheriff began the necessary

       steps to sell the Property at a sheriff’s sale. (App. 56).


[10]   In the meantime, on June 26, 2007, Fifth Third assigned its foreclosure

       judgment to Federal Home Loan Mortgage Corporation (“FHLMC”). Two

       days later, on June 28, 2007, the Vanderburgh County Sheriff held a sheriff’s

       sale for the Property, and FHLMC purchased the Property for $76,000.00,

       leaving a deficiency of $16,911.19 from the foreclosure judgment amount.


[11]   Thereafter, on May 5, 2008, FHLMC assigned its interest in the foreclosure

       judgment to Dyck O’Neal. On October 27, 2008, Dyck O’Neal filed a motion

       to substitute itself as plaintiff in the mortgage foreclosure proceeding. Dyck

       O’Neal also filed a motion for discovery to a non-party, the Indiana

       Department of Workforce Development, seeking employment records for the

       Elliotts, and the trial court granted this motion.


[12]   Despite the in rem nature of the foreclosure judgment, on July 27 and August 5,

       2009, Dyck O’Neal filed a “Motion for Proceedings Supplemental to

       Execution[,]” seeking an order for garnishment of William’s wages (collectively

       referred to as “garnishment motion”). (App. 68, 69). In its garnishment

       motion, Dyck O’Neal stated that it “own[ed] a judgment against the judgment

       Court of Appeals of Indiana | Opinion 82A05-1411-MF-518 | November 13, 2015   Page 6 of 26
       defendant, William C[.] Elliott, obtained in this Court on March 07, 2007, for

       the sum of $93,315.94 interest and costs” and that this “judgment was partially

       satisfied by virtue of a Sheriff’s Sale, leaving a balance due on the judgment in

       the amount of $17,315.94, plus post judgment interest from the date of the

       judgment[.]” (App. 69). Dyck O’Neal further stated that it had “no cause to

       believe that levy of execution” against William would “satisfy said judgment[,]”

       and it sought an “appropriate order to apply [William’s] property towards said

       [foreclosure] judgment pursuant to statute.” (App. 69).


[13]   On September 22, 2009, the trial court held a hearing on Dyck O’Neal’s

       garnishment motion. That same day, the Elliotts, pro se, filed a “Motion to Set

       Aside Judgment[,]” in which they alleged as follows:

               1. That the defendant filed for bankruptcy in March 2005. That
               defendant consulted with the plaintiff, Fifth Third Bank, prior to
               filing and was reassured that if defendant reaffirmed the
               [P]roperty . . . that the plaintiff would work with the defendant if
               the defendant could not make mortgage payments in the future.
               2. That when the defendant could not make said mortgage
               payment in August 2006, that the plaintiff, Fifth Third Bank,
               refused to work with the defendant. That the defendant offered
               [an] interest only payment and [a] partial payment that plaintiff
               refused[.] That the plaintiff deliberately misled the defendant to
               keep [the P]roperty out of bankruptcy filing.
               3. That defendant listed and tried to sell [the P]roperty and the
               plaintiff refused short s[ale] of [the P]roperty.
               4. That the defendant offered deed in lieu of mortgage and that
               the plaintiff refused.
               5. That defendant has paid the plaintiff $25,273.45 in interest and
               $4,472.36 in principal for a total sum of $29,745.81.

       Court of Appeals of Indiana | Opinion 82A05-1411-MF-518 | November 13, 2015   Page 7 of 26
                  6. That the plaintiff, Fifth Third Bank, sold the [P]roperty at 701
                  S. Norman Ave. for the sum of $82,000.00 on January 4, 2008.
                  7. That the plaintiff has already received $111,945.81 in
                  compensation for the [P]roperty. That awarding plaintiff
                  judgment of $17,315.94 would be excessive compensation for the
                  original mortgage of $92,200.00.
                  8. That awarding plaintiff the judgment would place an undue
                  hardship upon defendant.


       (App. 70). After the hearing, the trial court denied the Elliotts’ motion and

       entered a garnishment order (“September 2009 garnishment order”).3 The CCS

       entry for this hearing provides as follows:


                  [Fifth Third] by counsel, J. Fuson. [The Elliotts] in person. [The
                  Elliotts] file[d] [a] motion to set aside [the] judgment. Argument
                  heard. [The Elliotts] have not shown excusable neglect in
                  answering the complaint and while [they] may have [had] an
                  equitable defense, they d[id] not have a legal defense. Order of
                  garnishment entered. Voluntary wages agreement for $50.00 per
                  week begin[ning on] 10/01/09.


       (App. 4) (capitalization of all letters edited).


[14]   Thereafter, William began paying Dyck O’Neal $50.00 per week by personal

       check. William consistently made the $50.00 weekly payments to Dyck O’Neal

       for the next four and one-half years until Dyck O’Neal filed a motion alleging

       that William had “defaulted” on the September 2009 garnishment order. (App.



       3
           This September 2009 garnishment order is not included in the record on appeal.


       Court of Appeals of Indiana | Opinion 82A05-1411-MF-518 | November 13, 2015          Page 8 of 26
       71). Specifically, on March 24, 2014, Dyck O’Neal filed an “Affidavit of

       Default as to Voluntary Wage Agreement Order of 09/22/2009[,]” in which it

       alleged that the Elliotts had “defaulted on the agreed weekly payments as they

       [we]re submitting payments with the notation of ‘Paid in Full’ on each

       payment.” (App. 71). Dyck O’Neal attached copies of three of the Elliotts’

       checks, one dated for March 1, 2014 and two dated for March 15, 2014, to its

       motion. That same day, the trial court “approved” the garnishment order

       submitted by Dyck O’Neal (“March 2014 garnishment order”) and served it on

       William’s employer. (App. 4) (capitalization of all letters edited).


[15]   On April 2, 2014, the Elliotts, now represented by counsel, filed a motion to

       stay the March 2014 garnishment order. One week later, on April 9, 2014, the

       trial court held a hearing on the Elliotts’ motion to stay. Thereafter, the trial

       court granted the motion to stay.4 The trial court ordered the Elliotts to

       “continue to pay $50.00 per week in voluntary payments through the clerk of

       the court.” (App. 5) (capitalization of all letters edited). Additionally, the trial

       court instructed the parties’ counsel to “attempt to reach an agreement on the

       unpaid balance of the judgment and anticipate submitting an agreed entry[,]”

       and it set a progress hearing for April 30, 2014. (App. 5) (capitalization of all

       letters edited).




       4
           The trial court’s order granting the Elliotts’ motion to stay was not included in the record.


       Court of Appeals of Indiana | Opinion 82A05-1411-MF-518 | November 13, 2015                         Page 9 of 26
[16]   Meanwhile, on April 21, 2014, the Elliotts, by counsel, filed “Defendants[‘]

       Motion for Refund of Monies Paid toward Judgment” (“motion for refund”).

       (App. 74). As attachments to their motion, the Elliotts included a copy of the

       foreclosure order and an account statement, showing all of the payments they

       had made to Dyck O’Neal from October 1, 2009 through March 5, 2014. In the

       Elliotts’ motion for refund, they stated that they had “made payments of

       approximately $12,000” to Dyck O’Neal “with respect to the [foreclosure]

       Judgment[,]” and they argued, in relevant part, that:

               11. . . . the Judgment was only an IN REM Judgment, no
               payments were required to have been made by Defendants to the
               Plaintiff, Dyck O’Neall, [sic] Inc. Further, payments from the
               Defendants should not have been accepted by the Plaintiff. In
               addition, the Plaintiff should not have instituted any collection
               action whatsoever against Defendants, including the garnishment
               of the wages of the Defendant, William C. Elliott on March 24,
               2014.


       (App. 76). The Elliotts requested “the reimbursement of all payments made to

       Dyck O’Neal[], Inc. toward the Judgment, interest at the rate of 6.75% per

       annum from March 7, 2007, and their reasonable attorney fees[.]” (App. 76).


[17]   On April 30, 2014, the trial court held its previously scheduled progress hearing.

       The trial court instructed Dyck O’Neal to file a response to the Elliotts’ motion

       for refund, and it stayed its previous order that required the Elliotts to continue

       $50.00 payments on the foreclosure judgment.




       Court of Appeals of Indiana | Opinion 82A05-1411-MF-518 | November 13, 2015   Page 10 of 26
[18]   On June 27, 2014, Dyck O’Neal filed a response to the Elliotts’ motion for

       refund, contending that they were not entitled to a refund because “the

       omission of in personam was merely a clerical mistake[.]” (App. 107). That

       same day, it also filed “Plaintiff’s Motion to Amend Default Judgment, Nunc

       Pro Tunc” under Trial Rule 60 (“motion to amend the foreclosure judgment”).

       (App. 99). In its motion, Dyck O’Neal argued that the foreclosure order

       “contain[ed] a clerical mistake in paragraph number one, (1), as the phrase ‘in

       personam’ was inadvertently omitted from the granted judgment.” (App. 99).

       Dyck O’Neal contended that paragraph one should be amended to read that

       Fifth Third was “granted judgment IN PERSONAM and IN REM[.]” (App.

       99). Specifically, Dyck O’Neal proposed that the first paragraph should read, in

       relevant part:

               Plaintiff, Fifth Third, is hereby granted judgment IN
               PERSONAM and IN REM shall be, and hereby is, against the
               defendants William C. Elliott and Mary Kay Elliott in the
               amount of Ninety-two Thousand Nine Hundred Eleven Dollars
               and Nineteen Cents ($92,911.19) . . . with interest thereon from
               February 9, 2007, until the date of the Judgment at the per diem
               rate of $16.19 and with a post-judgment statutory interest rate of
               6.75% thereafter until paid, without relief from the valuation and
               appraisement laws, together with the costs of this action and sale
               and any further costs Fifth Third incurs with respect to the
               maintenance of the real estate.


       (App. 99-100). As one of its exhibits attached to its motion, Dyck O’Neal

       attached an affidavit from Fifth Third’s foreclosure attorney, who drafted the

       proposed foreclosure order and who averred that “the wrong judgment entry

       Court of Appeals of Indiana | Opinion 82A05-1411-MF-518 | November 13, 2015   Page 11 of 26
       was prepared and submitted” in this proposed order. (App. 132). The attorney

       also asserted that “[t]here [wa]s nothing in the file, or under Indiana Law which

       would indicate that Fifth Third Mortgage Company or its successor in interest

       [wa]s not entitled to a personal judgment against the Defendants.” (App. 132).


[19]   On August 20, 2014, the trial court held a hearing on the Elliotts’ motion for

       refund and Dyck O’Neal’s motion to amend the foreclosure judgment.5 The

       trial court denied both motions and ruled as follows:


                  Given the nature of the judgment, i.e., an assigned deficiency
                  judgment from a mortgage foreclosure, and that the order book
                  entry from 3/7/07 did not contain simply a scrivener’s error, but
                  two distinctive second pages, one of which indicating the
                  judgment was IN REM and one indicating an IN PERSONAM
                  judgment, the court is denying [Dyck O’Neal’s] motion to amend
                  the [foreclosure] judgment. However, the court is also denying
                  [the Elliotts’] motion for return of monies, given the facts of the
                  case that the mortgage obligation had been reaffirmed and not
                  discharged in bankruptcy.


       (App. 6) (capitalization of most letters edited).6


[20]   Thereafter, the Elliotts filed a motion to correct error. In their motion, they

       argued that, contrary to the trial court’s finding, the foreclosure order did not

       have two distinct pages and that the trial court had erred by basing its denial of




       5
           The transcript from this hearing was not requested and is, therefore, not in the record on appeal.
       6
           The trial court’s ruling is contained in the CCS but not in a separate order.


       Court of Appeals of Indiana | Opinion 82A05-1411-MF-518 | November 13, 2015                         Page 12 of 26
       their motion for refund on such a finding. The trial court denied the Elliotts’

       motion. The Elliotts now appeal the denial of their motion for refund, and

       Dyck O’Neal cross-appeals the denial of its motion to amend the foreclosure

       judgment.


                                                    Decision
[21]   On appeal, the Elliotts argue that the trial court erred by denying their motion

       for refund. Dyck O’Neal has filed a cross-appeal, arguing that the trial court

       erred by denying its motion to amend the foreclosure judgment. We will

       address each argument in turn.


[22]   Before addressing the parties’ arguments, we note that this appeal ultimately

       stems from a mortgage foreclosure action and the resulting foreclosure order.

       Mortgage foreclosure actions are “essentially equitable” actions for “‘the

       enforcement of a lien against property in satisfaction of a debt.’” Songer v.

       Civitas Bank, 771 N.E.2d 61, 69 (Ind. 2002) (quoting Skendzel v. Marshall, 261

       Ind. 226, 240, 301 N.E.2d 641, 650 (1973), cert. denied), reh’g denied. See also

       Stoffel v. JPMorgan Chase Bank, N.A., 3 N.E.3d 548, 555 (Ind. Ct. App. 2014)

       (explaining that “[a] mortgage foreclosure is a hybrid of law and equity[,]”

       where a “complaint on the underlying debt is an action at law, and a complaint

       to foreclose on the mortgage is a proceeding in equity”) (citing Lucas v. U.S.

       Bank, N.A., 953 N.E.2d 457, 466 (Ind. 2012), reh’g denied). “Notwithstanding

       equity’s influence, rules of law obviously guide the foreclosure process.” First

       Fed. Sav. Bank v. Hartley, 799 N.E.2d 36, 40 (Ind. Ct. App. 2003) (citing IND.


       Court of Appeals of Indiana | Opinion 82A05-1411-MF-518 | November 13, 2015   Page 13 of 26
       CODE §§ 32-30-10-1 through -14 (setting out procedures for mortgage

       foreclosure actions). “Moreover, ‘where substantial justice can be

       accomplished by following the law, and the parties’ actions are clearly governed

       by rules of law, equity follows the law.’” Id. (quoting Lake Cnty. Auditor v. Bank

       Calumet, 785 N.E.2d 279, 281 (Ind. Ct. App. 2003).


                                              Cross-Appeal Issue

[23]   We will first address Dyck O’Neal’s cross-appeal issue. Dyck O’Neal argues

       that the trial court abused its discretion by denying its motion to amend the

       foreclosure judgment nunc pro tunc under Trial Rule 60(A).


[24]   We review a motion for relief from judgment under Trial Rule 60 for an abuse

       of discretion. First Bank of Madison v. Bank of Versailles, 451 N.E.2d 79, 81 (Ind.

       Ct. App. 1983). “To constitute an abuse of discretion, it must be shown that

       the trial court’s action is clearly against logic and the effect of [the] facts and

       circumstances before the court as well as the reasonable and probable inferences

       to be drawn therefrom.” Id.


[25]   Indiana Trial Rule 60(A) provides:


               Clerical mistakes. Of its own initiative or on the motion of any
               party and after such notice, if any, as the court orders, clerical
               mistakes in judgments, orders or other parts of the record and
               errors therein arising from oversight or omission may be
               corrected by the trial court at any time before the Notice of
               Completion of Clerk’s Record is filed under Appellate Rule 8.
               After filing of the Notice of Completion of Clerk’s Record and
               during an appeal, such mistakes may be so corrected with leave
               of the court on appeal.
       Court of Appeals of Indiana | Opinion 82A05-1411-MF-518 | November 13, 2015   Page 14 of 26
       We have explained that, in the context of Trial Rule 60(A), a “clerical error” is

       defined as “a mistake by a clerk, counsel, judge, or printer that is not a result of

       judicial function and cannot reasonably be attributed to the exercise of judicial

       consideration or discretion.” KeyBank Nat’l Ass’n v. Michael, 770 N.E.2d 369,

       375 (Ind. Ct. App. 2002) (citing Rosentrater v. Rosentrater, 708 N.E.2d 628, 631

       (Ind. Ct. App. 1999)), trans. denied. “The purpose of T.R. 60(A) is to recognize

       that[,] ‘in the case of clearly demonstrable mechanical errors[,] the interests of

       fairness outweigh the interests of finality which attend the prior adjudication.’”

       Rosentrater, 708 N.E.2d at 631 (quoting Sarna v. Norcen Bank, 530 N.E.2d 113,

       115 (Ind. Ct. App. 1988), reh’g denied, trans. denied). However, “‘where the

       ‘mistake’ is one of substance[,] the finality principle controls.’” Id. (quoting

       Sarna, 530 N.E.2d at 115).


[26]   “Trial Rule 60(A) merely provides a remedy to correct by nunc pro tunc entry

       clerical errors in judgments, orders, etc., or errors arising from oversight or

       omission[,]” but the rule “does not constitute a license to make judicial changes

       in the actual law or ruling of a case.” Artusi v. City of Mishawaka, 519 N.E.2d

       1246, 1248 (Ind. Ct. App. 1988), trans. denied.


               A nunc pro tunc order is “‘an entry made now of something
               which was actually previously done, to have effect as of the
               former date.’” Cotton v. State, 658 N.E.2d 898, 900 (Ind. 1995)
               (quoting Perkins v. Hayward, 132 Ind. 95, 101, 31 N.E. 670, 672
               (1892)) (emphasis in original). A nunc pro tunc entry may be
               used to either record an act or event not recorded in the court’s
               order book or to change or supplement an entry already recorded

       Court of Appeals of Indiana | Opinion 82A05-1411-MF-518 | November 13, 2015   Page 15 of 26
        in the order book. Id. The purpose of a nunc pro tunc order is to
        correct an omission in the record of action really had but omitted
        through inadvertence or mistake. Id. However, the trial court’s
        record must show that the unrecorded act or event actually
        occurred. Id. A written memorial must form the basis for
        establishing the error or omission to be corrected by the nunc pro
        tunc order. Id.


Brimhall v. Brewster, 835 N.E.2d 593, 597 (Ind. Ct. App. 2005), reh’g denied,

trans. denied. To provide a sufficient basis for the nunc pro tunc entry, the

supporting written material:

        (1) must be found in the records of the case; (2) must be required
        by law to be kept; (3) must show action taken or orders or rulings
        made by the court; and (4) must exist in the records of the court
        contemporaneous with or preceding the date of the action
        described.


Shipley v. KeyBank Nat’l Ass’n, 821 N.E.2d 868, 881 (Ind. Ct. App. 2005)

(quoting Cotton, 658 N.E.2d at 900). “‘A nunc pro tunc entry cannot be used as

the medium whereby a court can change its ruling actually made, however

erroneous or under whatever mistakes of law or fact such ruling may have been

made.’” Brimhall, 835 N.E.2d at 597 (quoting Harris v. Tomlinson, 130 Ind. 426,

433, 30 N.E. 214, 216 (1892)). In other words, “‘[t]he crux of a nunc pro tunc

entry, then, is that the trial court corrects the record on the basis of information

which is already in the record. It is not license to make judicial changes in the

actual law or ruling of the case.’” Shipley, 821 N.E.2d at 881 (quoting Arsenal




Court of Appeals of Indiana | Opinion 82A05-1411-MF-518 | November 13, 2015   Page 16 of 26
       Sav. Ass’n v. Westfield Lighting Co., 471 N.E.2d 322, 326 (Ind. Ct. App. 1984))

       (italics omitted in original).


[27]   Dyck O’Neal argues that the trial court should have granted its motion to

       amend the judgment, via a nunc pro tunc order, to reflect that the foreclosure

       judgment included an in personam judgment. Dyck O’Neal argues that the in

       personam judgment was “inadvertently omitted” from its proposed order

       submitted to the trial court and that this omission was a clerical mistake. (Dyck

       O’Neal’s Br. 9).


[28]   As support for its argument regarding the propriety of issuing a nunc pro tunc

       order and of amending the foreclosure judgment under Trial Rule 60(A), Dyck

       O’Neal cites to its complaint and amended complaint, contending that its

       predecessor, Fifth Third, requested an in personam judgment in its complaint

       and “never intended to request only an in rem judgment[.]” (Dyck O’Neal’s Br.

       12). Dyck O’Neal also cites to the parties’ and the trial court’s post-judgment

       treatment of the foreclosure order, contending that all involved took action as if

       the foreclosure order included an in personam judgment. Additionally, Dyck

       O’Neal relies on the trial court’s order denying its motion to amend the

       foreclosure judgment. It contends that the language of the trial court’s denial

       shows that the foreclosure order was “intended to be both in rem and in

       personam.” (Dyck O’Neal’s Br. 10) (emphasis added).


[29]   Here, the “error” that Dyck O’Neal sought to have corrected was the addition

       of an in personam judgment to the foreclosure order. This error—which Dyck


       Court of Appeals of Indiana | Opinion 82A05-1411-MF-518 | November 13, 2015   Page 17 of 26
       O’Neal admits resulted from Fifth Third’s counsel—is clearly one of substance

       and not proper under Indiana Trial Rule 60(A). See, e.g., First Bank of Madison,

       451 N.E.2d at 82 (affirming the trial court’s denial of a party’s request to alter

       the foreclosure judgment amount because the error, which was based on the

       party’s own requested amount, was substantive rather than clerical); see also

       KeyBank, 770 N.E.2d at 375 (explaining that an amendment to the CCS to

       change appearance of an attorney was substantive rather than clerical, so Rule

       60(A) did not apply); Rissler v. Lynch, 744 N.E.2d 1030, 1033 (Ind. Ct. App.

       2001) (holding that the trial court did not abuse its discretion by denying the

       mother’s Trial Rule 60(A) request to amend the amount of arrearage owed

       where the issue was not a clerical error and where the mother’s counsel had

       agreed to the lower amount entered by the trial court); Rosentrater, 708 N.E.2d

       at 630 (holding that a wife’s counsel’s proposed valuation of the husband’s

       stock plan and unintentional omission of a certain portion of the marital

       property from her proposed findings of fact submitted to the trial court was a

       substantive error and not a clerical error); Hurst v. Hurst, 676 N.E.2d 413, 415

       (Ind. Ct. App. 1997) (holding that the trial court’s “clarification” of the

       dissolution decree to include an initially excluded asset was a substantive

       change not proper under Trial Rule 60(A)).


[30]   Additionally, we do not agree with Dyck O’Neal’s contention that a nunc pro

       tunc order would have been appropriate in this matter. To provide a basis for

       Dyck O’Neal’s requested nunc pro tunc order, there must have been a written

       memorial showing that the trial court actually entered an in personam judgment

       Court of Appeals of Indiana | Opinion 82A05-1411-MF-518 | November 13, 2015   Page 18 of 26
       against the Elliotts. The record before us does not contain such a basis as there

       is nothing to show that, at the time the trial court entered the in rem judgment in

       its foreclosure order, it also entered an in personam judgment. Indeed, the CCS

       entry for March 13, 2007—the date the trial court entered the foreclosure

       order—contains the following notation to show that this foreclosure order was

       entered into the order book: “REM JUDGMENT FILED 3-7-07 FOR 3-7-07

       RECEIVED AND ENTERED INTO ORDER BOOK THIS DATE.” (App.

       3). “‘[A] nunc pro tunc entry cannot be used to show an event happened which

       did not actually occur[.]’”). Hammes v. Brumley, 659 N.E.2d 1021, 1025 n.2

       (Ind. 1995) (quoting Cotton, 658 N.E.2d at 901)), reh’g denied. Thus, the trial

       court correctly refused to issue a nunc pro tunc order to alter the foreclosure

       judgment to include an in personam judgment in addition to the in rem judgment

       entered. Therefore, we affirm the trial court’s denial of Dyck O’Neal’s motion

       to amend the foreclosure order.


                                                   Appeal Issue

[31]   We now turn to the Elliotts’ challenge to the trial court’s denial of their motion

       for refund and subsequent motion to correct error.


[32]   We review a trial court’s denial of a motion to correct error for an abuse of

       discretion. Scales v. Scales, 891 N.E.2d 1116, 1118 (Ind. Ct. App. 2008). An

       abuse of discretion occurs where the trial court’s decision is against the logic

       and effect of the facts and circumstances before it. Id. Additionally, as here,

       where neither party filed a written request for findings and conclusions, the trial

       court’s sua sponte findings are controlling only as to issues they cover. In re
       Court of Appeals of Indiana | Opinion 82A05-1411-MF-518 | November 13, 2015   Page 19 of 26
       Adoption I.B., 32 N.E.3d 1164, 1169 (Ind. 2015) (citing Yanoff v. Muncy, 688

       N.E.2d 1259, 1262 (Ind. 1997)). “[A] general judgment will control as to the

       issues upon which there are no findings.” Yanoff, 688 N.E.2d at 1262. Under

       the general judgment standard, we will affirm on any legal theory supported by

       the evidence. In re Adoption I.B., 32 N.E.3d at 1169.


[33]   Dyck O’Neal contends that the Elliotts have provided no legal basis for their

       motion for refund. In their reply brief, the Elliotts respond that their motion for

       refund was an equitable remedy and contend that any assertion of a legal claim

       would be “rather premature, as [they] first needed to stop the bleeding from

       [Dyck O’Neal’s] continued wrongful collection efforts over the period of

       September 2009 through and including March 2014” by first establishing that

       Dyck O’Neal had “no lawful basis to collect approximately Twelve Thousand

       Dollars ($12,000.00) from [the] Elliott[s] on a Judgment providing only ‘IN

       REM’ relief.” (Elliotts’ Reply Br. 8).


[34]   As stated above, this appeal ultimately stems from the foreclosure order entered

       in 2007. The parties do not dispute that the foreclosure order did not entitle

       Dyck O’Neal to collect a personal judgment from the Elliotts because this order

       did not contain an in personam judgment. The Elliotts argue that this lack of an

       in personam judgment entitles them to a refund of the money they paid to Dyck

       O’Neal pursuant to the trial court’s entry of the September 2009 garnishment

       order.




       Court of Appeals of Indiana | Opinion 82A05-1411-MF-518 | November 13, 2015   Page 20 of 26
[35]   Given the unique and specific facts of this case and because equity so demands,

       we agree that the Elliotts are entitled to a refund of the money that they paid

       pursuant to the garnishment order that was improperly based on an in rem

       judgment.7 “As a general proposition, the trial court has full discretion to

       fashion equitable remedies that are complete and fair to all parties involved.”

       Swami, Inc. v. Lee, 841 N.E.2d 1173, 1178 (Ind. Ct. App. 2006), trans. denied.

       Indeed, “[e]quity has power, where necessary, to pierce rigid statutory rules to

       prevent injustice.” Id. Courts can exercise equitable powers where an adequate

       remedy at law does not exist. Id.


[36]   This case—which stems from a foreclosure proceeding followed by proceedings

       supplemental—necessarily involves significant equitable considerations. See

       Rose v. Mercantile Nat’l Bank of Hammond, 868 N.E.2d 772, 775 (Ind. 2007)

       (explaining that a proceeding supplemental has its “roots in equity”); Songer,

       771 N.E.2d at 69 (explaining that a mortgage foreclosure action is “essentially

       equitable”). Here, in the foreclosure proceeding against the Elliotts, the trial

       court entered a default judgment and entered only an in rem judgment. After

       the Property was sold at a sheriff’s sale, Dyck O'Neal improperly initiated




       7
         We acknowledge that the Elliotts’ motion for refund being appealed appears to be, in essence, a collateral
       attack of the trial court’s September 2009 garnishment, which required the Elliotts to make the payments for
       which they now seek a refund. Although they did not initiate an appeal from this garnishment order, we find
       that there are “extraordinarily compelling reasons” to address the merits of such an attack of that order,
       which improperly ordered the Elliotts to pay a deficiency judgment based on an in rem judgment in a
       foreclosure order. See In re Adoption of O.R., 16 N.E.3d 965, 971 (Ind. 2014) (explaining that appellant who
       procedurally forfeits his or her right to an appeal may have that right restored where there are
       “extraordinarily compelling reasons” to address the appeal on its merits).

       Court of Appeals of Indiana | Opinion 82A05-1411-MF-518 | November 13, 2015                    Page 21 of 26
       proceedings supplemental from the in rem judgment and sought an order for

       garnishment of wages. The trial court then improperly entered a garnishment

       order, which essentially allowed Dyck O'Neal to recover a deficiency from that

       in rem judgment and required the Elliotts, who were not represented by counsel

       at that time, to pay $50.00 per week. Here, given the specific facts of this

       particular case, we conclude that equity demands that the Elliotts are entitled to

       a refund and that the trial court erred by failing to grant that equitable remedy.

       Accordingly, we reverse the trial court’s order denying the Elliotts’ motion for

       refund, and we remand with instructions to determine the total amount paid by

       the Elliotts to Dyck O’Neal and enter an order for the refund of that amount

       including the applicable interest.


[37]   Affirmed in part, reversed in part, and remanded.


       Crone, J., concurs.


       Brown, J., dissents with opinion.




       Court of Appeals of Indiana | Opinion 82A05-1411-MF-518 | November 13, 2015   Page 22 of 26
                                                  IN THE
           COURT OF APPEALS OF INDIANA

       William C. Elliott and                                   Court of Appeals Case No.
       Mary Kay Elliott,                                        82A05-1411-MF-518

       Appellants/Cross-Appellees-

       Defendants,



               v.

       Dyck O’Neal, Inc., Successor in
       interest to Fifth Third Mortgage
       Company,
       Appellee/Cross-Appellant-Plaintiff.




       Brown, Judge, dissenting.


[38]   I respectfully dissent from the majority’s conclusion that the Elliotts are entitled

       to a refund and that the trial court erred by failing to grant that remedy. At the

       time of the September 2009 garnishment order, Ind. Appellate Rule 9(A)

       provided that “[a] party initiates an appeal by filing a Notice of Appeal with the

       trial court clerk within thirty (30) days after the entry of a Final Judgment” and

       that “[u]nless the Notice of Appeal is timely filed, the right to appeal shall be


       Court of Appeals of Indiana | Opinion 82A05-1411-MF-518 | November 13, 2015          Page 23 of 26
       forfeited except as provided by P.C.R. 2.”8 The Elliotts did not appeal the

       September 2009 garnishment order. Instead, they paid fifty dollars per week

       until they challenged the propriety of the order over four and one-half years

       later when they filed their motion for refund on April 21, 2014.


[39]   The majority acknowledges that the Elliotts’ appeal is a collateral attack on the

       trial court’s September 2009 garnishment and that the Elliotts did not initiate an

       appeal from the garnishment order, but cites In re Adoption of O.R., 16 N.E.3d

       965 (Ind. 2014), to support the conclusion that there are extraordinarily

       compelling reasons to address the merits of such an attack.


[40]   I find Adoption of O.R. distinguishable. In that case, the biological father of a

       minor child attempted to appeal the trial court’s order granting an adoption

       petition in favor of third parties. 16 N.E.3d at 967. Father wrote a letter

       requesting appointment of appellate counsel four days before the deadline for

       filing a notice of appeal. Id. at 968. Following the withdrawal of father’s

       counsel, new appellate counsel filed a petition to accept an “Amended Notice

       of Appeal” twenty-three days after the deadline had passed. Id. Because the

       notice of appeal was not timely filed, a panel of this court dismissed the case on

       grounds that it lacked jurisdiction to hear the appeal. Id. at 967. On transfer,

       the Indiana Supreme Court held that the untimely filing of a notice of appeal is




       8
         The current version of Ind. Appellate Rule 9(A) provides in relevant part that “[a] party initiates an appeal
       by filing a Notice of Appeal with the Clerk (as defined in Rule 2(D)) within thirty (30) days after the entry of
       a Final Judgment is noted in the Chronological Case Summary,” and “[u]nless the Notice of Appeal is timely
       filed, the right to appeal shall be forfeited except as provided by P.C.R. 2.”

       Court of Appeals of Indiana | Opinion 82A05-1411-MF-518 | November 13, 2015                       Page 24 of 26
       not a jurisdictional bar precluding appellate review. Id. at 967-968. The Court

       held that when the right to appeal is forfeited under Ind. Appellate Rule 9(A)

       for failure to timely appeal within thirty days, “the question is whether there are

       extraordinarily compelling reasons why this forfeited right should be restored.”

       Id. at 971. The Court observed that Ind. Appellate Rule 1 provides that “[t]he

       Court may, upon the motion of a party or the Court’s own motion, permit

       deviation from these Rules.” Id. at 972. The Court held that “despite the ‘shall

       be forfeited’ language of Rule 9(A), the Rules themselves provide a mechanism

       allowing this Court to resurrect an otherwise forfeited appeal.” Id.


[41]   The Court observed the facts of that case and stated “perhaps most important,

       the Fourteenth Amendment to the United States Constitution protects the

       traditional right of parents to establish a home and raise their children.” Id.

       The Court concluded that “[i]t is this unique confluence of a fundamental

       liberty interest along with ‘one of the most valued relationships in our culture’

       that has often influenced this Court as well as our Court of Appeals to decide

       cases on their merits rather than dismissing them on procedural grounds,” and

       that “in light of Appellate Rule 1, Father’s attempt to perfect a timely appeal,

       and the constitutional dimensions of the parent-child relationship, we conclude

       that Father’s otherwise forfeited appeal deserves a determination on the

       merits.” Id.


[42]   The Elliotts did not file a notice of appeal of the September 2009 garnishment

       order, and their appeal essentially amounts to a collateral attack on a previously

       issued final judgment. See JPMorgan Chase Bank, N.A. v. Brown, 886 N.E.2d 617,

       Court of Appeals of Indiana | Opinion 82A05-1411-MF-518 | November 13, 2015   Page 25 of 26
       621 n.5 (Ind. Ct. App. 2008) (explaining that a garnishment order is a final

       judgment). Even assuming that the analysis in O.R. applied, I would find no

       such extraordinarily compelling reasons exist in this case, especially given the

       long delay in the challenge to the propriety of the garnishment order.

       Furthermore, even if we were to consider the Elliotts’ motion for refund as a

       motion for relief from the September 2009 garnishment order pursuant to Trial

       Rule 60(B), it would still be untimely. A Rule 60(B) motion must be filed “not

       more than one year after the judgment” if based on reasons (1), (2), (3), or (4),

       or it must be filed “within a reasonable time” if based on reasons (5), (6), (7), or

       (8). T.R. 60(B). “The determination of what constitutes a reasonable time

       varies with the circumstances of each case.” Levin v. Levin, 645 N.E.2d 601, 605

       (Ind. 1994). “Relevant to the question of timeliness is prejudice to the party

       opposing the motion and the basis for the moving party’s delay.” Id. Here, the

       Elliott’s motion for refund was not filed within one year nor a reasonable time

       after the entry of that judgment. The Elliotts waited over four and a half years

       to seek relief from the September 2009 garnishment order, and such period of

       time is not reasonable. See id. (holding that a husband’s delay of five years

       from the dissolution order to challenge his support obligation did not constitute

       a reasonable time and holding that his excuse that he was unaware of his legal

       actions because he was not represented by counsel was insufficient to justify the

       length of the delay).


[43]   For these reasons I respectfully dissent and would affirm the trial court’s denial

       of the Elliotts’ motion for refund.


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