Pursuant to Ind.Appellate Rule 65(D),
this Memorandum Decision shall not
be regarded as precedent or cited
before any court except for the purpose
of establishing the defense of res
judicata, collateral estoppel, or the law                   Jun 13 2014, 10:02 am
of the case.




ATTORNEY FOR APPELLANT:                              ATTORNEYS FOR APPELLEE:

ZACHARY J. STOCK                                     JAMES M. BOYERS
Carmel, Indiana                                      LEAH B. SILVERTHORN
                                                     Wooden & McLaughlin, LLP
                                                     Indianapolis, Indiana


                               IN THE
                     COURT OF APPEALS OF INDIANA


DENA ALFAYYAD,                                       )
                                                     )
        Appellant-Defendant,                         )
                                                     )
               vs.                                   )       No. 29A02-1307-MF-652
                                                     )
U.S. BANK NATIONAL ASSOCIATION                       )
AS TRUSTEE FOR RASC 2007KS3,                         )
                                                     )
        Appellee-Plaintiff.                          )


                     APPEAL FROM THE HAMILTON SUPERIOR COURT
                           The Honorable Daniel J. Pfleging, Judge
                              Cause No. 29D02-0904-MF-535


                                            June 13, 2014

                 MEMORANDUM DECISION – NOT FOR PUBLICATION

BARNES, Judge
                                    Case Summary

        Dena Alfayyad appeals the trial court’s grant of summary judgment in favor of

U.S. Bank National Association as Trustee for RASC 2007KS3 (“U.S. Bank”) in its

foreclosure action. We affirm.

                                          Issue

        Dena Alfayyad raises one issue, which we restate as whether summary judgment

was proper because U.S. Bank established it was a person entitled to enforce the note.

                                          Facts

        In 2006, Alfayyad executed a promissory note in favor of Homecomings

Financial, LLC, (“Homecomings”) for $259,000 to purchase property in Carmel. The

note was secured by a mortgage. Alfayyad stopped making payments on the note in

2009.

        On April 17, 2009, U.S. Bank filed a foreclosure action against Alfayyad. U.S.

Bank alleged that it “is ‘a person entitled to enforce’ the promissory note pursuant to IC

§26-1-3.1-301 and is entitled to enforce the mortgage as is evidenced by the chain of

assignments . . . .” App. p. 11. U.S. Bank attached to the complaint a copy of the note

and an assignment of the mortgage from Homecomings to U.S. Bank dated April 7, 2009.

        On March 5, 2012, U.S. Bank filed a motion for summary judgment and decree of

foreclosure. U.S. Bank also moved for default judgment, which the trial court granted

and then set aside. On May 24, 2012, Alfayyad filed an answer to U.S. Bank’s complaint

and raised affirmative defenses and counterclaims. On September 4, 2012, Alfayyad

filed a response to the motion for summary judgment. U.S. Bank then replied. After a

                                            2
hearing on the motion, Alfayyad was given permission to respond to U.S. Bank’s reply,

and both parties were permitted to file post-hearing briefs. On May 31, 2013, the trial

court granted U.S. Bank’s motion for summary judgment and issued a decree of

foreclosure. Alfayyad filed a motion to correct error, which the trial court denied.

Alfayyad now appeals.1

                                                Analysis

        Alfayyad argues that the trial court improperly granted summary judgment. “We

review an appeal of a trial court’s ruling on a motion for summary judgment using the

same standard applicable to the trial court.” Perdue v. Gargano, 964 N.E.2d 825, 831

(Ind. 2012).      “Therefore, summary judgment is appropriate only if the designated

evidence reveals ‘no genuine issue as to any material fact and that the moving party is

entitled to a judgment as a matter of law.’” Id. (quoting Ind. Trial Rule 56(C)). Our

review of summary judgment is limited to evidence designated to the trial court. Id.

(citing T.R. 56(H)).        All facts and reasonable inferences drawn from the evidence

designated by the parties is construed in a light most favorable to the non-moving party,

and we do not defer to the trial court’s legal determinations. Id.

        Alfayyad asserts that summary judgment was improper because there are genuine

issues of material fact as to whether U.S. Bank was entitled to enforce the note at the time

the complaint was filed. Indiana Code Section 26-1-3.1-301 provides:



1
  The trial court’s summary judgment order is silent regarding Alfayyad’s counterclaims. In her motion
to correct error, Alfayyad asked the trial court to clarify its summary judgment order, and the trial court
denied that motion. Our decision today is limited to the propriety of summary judgment on the claims
raised in U.S. Bank’s complaint.
                                                    3
              “Person entitled to enforce” an instrument means:

                     (1) the holder of the instrument;

                     (2) a nonholder in possession of the instrument who
                     has the rights of a holder; or

                     (3) a person not in possession of the instrument who is
                     entitled to enforce the instrument under IC 26-1-3.1-
                     309 or IC 26-1-3.1-418(d).

              A person may be a person entitled to enforce the instrument
              even though the person is not the owner of the instrument or
              is in wrongful possession of the instrument.

       In its complaint, U.S. Bank asserted it was entitled to enforce the note pursuant to

Indiana Code Section 26-1-3.1-301. In its motion for summary judgment, U.S. Bank

specifically asserted it was entitled to enforce the note as the holder of the note. U.S.

Bank designated a copy of the note, mortgage, assignment of mortgage, and the affidavit

of DeAndra Curry, the authorized officer for GMAC Mortgage, LLC, the servicer for

U.S. Bank. Curry stated that U.S. Bank “is the holder of the promissory note[.]” App. p.

56. Accordingly, U.S. Bank made a prima facie showing that it was entitled to enforce

the note pursuant to Indiana Code Section 26-1-3.1-301(1), and the burden shifted to

Alfayyad to designate specific facts establishing a genuine issue for trial. See Bushong v.

Williamson, 790 N.E.2d 467, 474 (Ind. 2003) (“Once the moving party has sustained its

initial burden of proving the absence of a genuine issue of material fact and the

appropriateness of judgment as a matter of law, the party opposing summary judgment

must respond by designating specific facts establishing a genuine issue for trial.”).




                                             4
        In response, Alfayyad asserted that U.S. Bank “cannot demonstrate its right to a

mortgage interest in the subject property.”          App. p. 93.      Alfayyad initially did not

designate evidence to support this claim, and later submitted her own affidavit in which

she stated U.S. Bank “does not allege it is in possession of the original note, and therefore

Affiant does not know for certain who to pay, as she does not know who is the proper

holder of the note.” Id. at 112. This was insufficient to create a genuine issue of material

fact for trial because U.S. Bank did designate evidence showing that it was the holder of

the note. Even if Alfayyad’s affidavit did create an issue of fact, U.S. Bank replied and

designated evidence that the original note had been delivered to its attorney and that the

note had been formally endorsed to be paid to U.S. Bank after the filing of the complaint.

This evidence established as a matter of law that U.S. Bank was entitled to enforce the

note.

        Alfayyad contends, however, that U.S. Bank is not entitled to summary judgment

because it did not specify in its complaint that it was entitled to enforce the note as the

holder of the note and was not an assignee when the complaint was filed. In support of

this argument, Alfayyad relies on Wells Fargo Bank, N.A. v. Marchione, 69 A.D.3d 204,

207, 887 (N.Y. App. Div. 2009), in which the court affirmed the granting of a motion to

dismiss where a bank lacked standing to bring the foreclosure action because it was not

the assignee of the mortgage on the day the action was commenced.2                      Marchione,



2
  The Marchione court appears to use the term “mortgage” to refer collectively to the promissory note
and mortgage. Here, there is no dispute that the mortgage had been assigned to U.S. Bank on April 7,
2009, ten days before it filed the complaint.


                                                 5
however, is not on point because it does not address the provision of Indiana Code

Section 26-1-3.1-301(a), which allows the holder of an instrument to enforce it.3

        Alfayyad also argues that a June 2009 letter stating that GMAC Mortgage was

servicing the account on behalf of Residential Funding Corp, which owned an interest in

the account, creates an inference that Residential Funding Corp was the holder of the note

when the action commenced.              However, because this letter was not designated as

evidence in the summary judgment proceedings, it cannot be a basis for reversing the

grant of summary judgment on appeal.4 See T.R. 56(H) (“No judgment rendered on the

motion shall be reversed on the ground that there is a genuine issue of material fact unless

the material fact and the evidence relevant thereto shall have been specifically designated

to the trial court.”). Because there were no questions of fact regarding whether U.S.

Bank was entitled to enforce the note when it filed the complaint, Alfayyad has not

established that the trial court’s grant of summary judgment was improper.

                                              Conclusion

        Alfayyad has not established that there are genuine issues of material fact

regarding whether U.S. Bank was entitled to enforce the note. We affirm.

        Affirmed.

BAKER, J., and CRONE, J., concur.

3
   Alfayyad did not file a motion to dismiss or motion for more definite statement. Instead, she raised the
issue as an affirmative defense in her answer, which was filed more than three years after U.S. Bank filed
its complaint and after U.S. Bank moved for summary judgment. Thus, we cannot agree with her claim
that she “asserted from an early stage in the proceedings that U.S. Bank was not a party entitled to enforce
the note.” Appellant’s Br. p. 8.
4
  This letter was attached to Alfayyad’s answer but neither the answer nor the letter itself was designated
as evidence in summary judgment proceedings.
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