                                                                        Feb 09 2016, 8:27 am




ATTORNEY FOR APPELLANTS                                    ATTORNEYS FOR APPELLEE
Marc A. Menkveld                                           DEUTSCHE BANK NATIONAL
Katz & Korin, PC                                           TRUST COMPANY
Indianapolis, Indiana                                      Mark S. Gray
                                                           Kurt V. Laker
                                                           Doyle Legal Corporation, P.C.
                                                           Indianapolis, Indiana



                                            IN THE
    COURT OF APPEALS OF INDIANA

Robert Samuels and Simon                                   February 9, 2016
Lynes,                                                     Court of Appeals Case No.
Appellants-Plaintiffs,                                     49A05-1509-MF-1348
                                                           Appeal from the Marion Superior
        v.                                                 Court
                                                           The Honorable James B. Osborn,
Berney W. Garlick, Laurie A.                               Judge
Garlick, Deutsche Bank                                     Trial Court Cause No.
National Trust Company, as                                 49D14-1210-MF-39429
Trustee for Saxon Asset-
Securities Trust 2007-4, and
Indiana Department of Revenue,
Appellees-Defendants



Crone, Judge.


Court of Appeals of Indiana | Opinion 49A05-1509-MF-1348 | February 9, 2016                    Page 1 of 13
                                              Case Summary
[1]   Berney W. Garlick and Laurie A. Garlick acquired three tracts of land in

      Marion County. The Garlicks sold a portion of two of those tracts, combined

      the remaining property, and recorded a three-lot subdivision plat that shows Lot

      1’s address as 8611 West 96th Street, Zionsville. The Garlicks sold Lot 3 and

      kept Lots 1 and 2. The Garlicks gave Saxon Mortgage, Inc. (“Saxon”), a

      mortgage to secure a loan (“the Saxon mortgage”). The Saxon mortgage was

      filed with the Marion County Recorder (“the Recorder”) in August 2007 and

      gives a metes and bounds description of two adjacent tracts, commonly known

      as 8611 West 96th Street, Zionsville, that coincide with the western 155 feet of

      Lots 1 and 2 and extend past the southern boundary of Lot 2. The Saxon

      mortgage was assigned to Deutsche Bank National Trust Company, as Trustee

      for Saxon Asset-Securities Trust 2007-4 (“Deutsche Bank”).


[2]   Three years later, the Garlicks gave Robert Samuels and Simon Lynes (“S&L”)

      a mortgage to secure a second loan (“the S&L mortgage”). The S&L mortgage

      was filed with the Recorder in August 2010. It describes the mortgaged

      property as Lots 1 and 2 and states that Lot 1 is commonly known as 8611

      West 96th Street, Zionsville. Both lots were sold at tax sale, and S&L

      redeemed only Lot 1.


[3]   S&L filed suit against the Garlicks to foreclose their mortgage. Deutsche Bank

      was also named as a defendant and asserted that the Saxon mortgage was prior

      and therefore superior to the S&L mortgage. S&L and Deutsche Bank filed

      cross-motions for partial summary judgment as to the priority of the mortgages.
      Court of Appeals of Indiana | Opinion 49A05-1509-MF-1348 | February 9, 2016   Page 2 of 13
      The trial court granted Deutsche Bank’s motion and ruled that the Saxon

      mortgage is prior and therefore superior to the S&L mortgage as to the portion

      of Lot 1 that the Saxon mortgage describes.


[4]   On appeal, S&L argue that the Saxon mortgage is invalid because it does not

      sufficiently describe the mortgaged property. We disagree and therefore affirm

      the trial court.


                                  Facts and Procedural History
[5]   The relevant facts are undisputed. Dale Craft conveyed two adjacent tracts in

      Marion County to the Garlicks via a warranty deed (“the Craft deed”)

      containing a metes and bounds description of the tracts. Tract I measured 125

      feet east-west, and Tract II to its west measured 30 feet east-west, for a total of

      155 feet. Both tracts measured 696.96 feet north-south and were bordered by

      96th Street on the north. According to the Craft deed, the address of the

      property was commonly known as 8611 West 96th Street, Indianapolis. The

      Craft deed was filed with the Recorder in June 2003.


[6]   In March 2004, Heritage Development of Indiana, LLC (“Heritage”), conveyed

      a roughly triangular tract (“Tract III”) abutting the northern portion of Tract I’s

      eastern boundary to the Garlicks via a quitclaim deed (“the Heritage deed”)

      containing a metes and bounds description of the tract. Woodslake Drive

      bordered Tract III and the southern portion of Tract I on the east. The Heritage

      deed was filed with the Recorder in May 2004.



      Court of Appeals of Indiana | Opinion 49A05-1509-MF-1348 | February 9, 2016   Page 3 of 13
[7]   Also in March 2004, the Garlicks conveyed to Heritage the southern 193.55 feet

      of Tracts I and II via a warranty deed containing a metes and bounds

      description of the property. This deed was filed with the Recorder in May

      2004. This property became known as Lot 25.


[8]   The Garlicks combined the remaining portion of Tracts I and II with Tract III

      and filed a retracement survey of that property with the Recorder in August

      2006. The Garlicks then subdivided the property into three lots, with Lot 1

      (containing most of Tract III) to the north, Lot 2 (containing the rest of Tract

      III) in the middle, and Lot 3 to the south. This subdivision was designated as

      the Copper Ridge Secondary Plat, which was filed with the Recorder in

      October 2006. The plat contains a metes and bounds description of the

      subdivision and shows Lot 1 as the Garlicks’ property with an address of 8611

      West 96th Street. West 96th Street borders Lot 1 on the north, and Woodslake

      Drive borders all three lots on the east. The Garlicks sold Lot 3 in February

      2007 and kept Lots 1 and 2.


[9]   In July 2007, the Garlicks gave a mortgage to Saxon to secure a loan. The

      Saxon mortgage was filed with the Recorder in August 2007. The metes and

      bounds legal description of the mortgaged property mirrors that of the Craft

      deed, except for a scrivener’s error regarding the western boundary of Tract I

      (969.96 feet vs. 696.96 feet). In other words, the Saxon mortgage describes

      property that the Garlicks no longer owned (Lots 3 and 25), does not describe

      any portion of Tract III, and describes only the western 155 feet of Lots 1 and 2.

      The Saxon mortgage also states that the property is commonly known as 8611

      Court of Appeals of Indiana | Opinion 49A05-1509-MF-1348 | February 9, 2016   Page 4 of 13
       West 96th Street, Zionsville. In July 2007, Saxon assigned its mortgage to

       Deutsche Bank. The assignment was not filed with the Recorder until March

       2013. 1


[10]   In July 2010, the Garlicks gave a mortgage to S&L to secure a loan. The S&L

       mortgage was filed with the Recorder in August 2010. The mortgaged property

       is described as Lots 1 and 2 in Copper Ridge Secondary Plat, with Lot 1

       commonly known as 8611 West 96th Street, Zionsville, and Lot 2 commonly

       known as 9520 Woodslake Drive, Zionsville. Lot 2 was sold at a Marion

       County tax sale and was not redeemed. Lot 1 was sold at a tax sale in October

       2010 and was redeemed by S&L, who have also paid property taxes to keep it

       from being sold again at tax sale.


[11]   In October 2012, S&L filed a complaint against the Garlicks, Saxon, and the

       Indiana Department of Revenue seeking foreclosure of their mortgage, among

       other things. 2 Deutsche Bank was later substituted for Saxon as a defendant.

       In its answer, Deutsche Bank asserted that the Saxon mortgage was prior and

       therefore superior to the S&L mortgage. S&L and Deutsche Bank filed cross-

       motions for partial summary judgment as to the priority of the mortgages.




       1
         In August 2011, the Saxon mortgage was “re-recorded” to correct its legal description. Appellants’ App. at
       81. The amended description excludes Lot 3, Lot 25, and Tract III. Neither party contends that this re-
       recorded mortgage is relevant to our analysis below.
       2
         The complaint does not appear in the record before us, so the precise nature of S&L’s allegations beyond
       foreclosure is not entirely clear.

       Court of Appeals of Indiana | Opinion 49A05-1509-MF-1348 | February 9, 2016                      Page 5 of 13
[12]   After a hearing, in August 2015 the trial court issued an order that reads in

       pertinent part as follows:

               9. The legal description of the mortgage[d] property contained in
               the Saxon mortgage describes 155 feet by parallel lines off the
               West end of Lot 1 in Copper Ridge, Secondary plat.

               10. There is no genuine issue as to any material fact necessary to
               support entry of judgment in favor of Deutsche Bank with respect
               to the matter of mortgage priority. Deutsche Bank is entitled to
               partial summary judgment as a matter of law.

               11. Deutsche Bank is entitled to judgment that its mortgage is a
               valid lien, prior and superior to that of [S&L], not as to Lots 2 or
               3, and only as to that part of Lot 1 of Copper Ridge which is
               covered by the legal description in its mortgage.

               12. To the extent that [S&L prove that they have] paid dollar
               amounts: (1) for Indiana real property taxes and assessments
               which became a lien against Lot 1; and/or (2) representing the
               statutory amount to redeem Lot 1 from real property tax sale,
               then [S&L are] entitled to recover amounts so proved (without
               interest) from the proceeds made from the sale of Lot 1 at
               mortgage foreclosure sale. Deutsche Bank is not liable to pay
               any amount to [S&L].

               13. The Court finds that there is no just reason for delay, and
               directs that entry of judgment shall be a final judgment as
               contemplated by Trial Rules 56(C) and 54(B).

               WHEREFORE IT IS ORDERED, ADJUDGED AND
               DECREED:

               That Deutsche Bank … is the holder and owner of the mortgage
               described in the pleadings herein …. Said mortgage is a valid,
               paramount and subsisting lien against the subject real property,

       Court of Appeals of Indiana | Opinion 49A05-1509-MF-1348 | February 9, 2016   Page 6 of 13
               prior and superior to the mortgage given to [S&L] ….

               FURTHER ORDERED:

               That at such time as the remainder of the issues and claims in
               this cause are disposed of, such that a final decree of mortgage
               foreclosure and order for foreclosure sale is to be entered, and
               entered consistent with the entirety of this order and judgment,
               then Deutsche Bank shall provide the Court with a plat of survey
               (1) to depict and describe the portion of said Lot 1 in Copper
               Ridge, Secondary plat covered by the legal description in the
               aforedescribed 2007 Saxon mortgage, and (2) to depict and
               describe the remainder of Lot 1. The Court shall make reference
               to, and incorporate the plat of survey into its final decree.


       Id. at 8-10. S&L now appeal. 3


                                       Discussion and Decision
[13]   S&L appeal the trial court’s entry of partial summary judgment in Deutsche

       Bank’s favor. Pursuant to Indiana Trial Rule 56(C), “[s]ummary judgment is

       appropriate only where the designated evidence shows there are no genuine

       issues of material fact and the moving party is entitled to judgment as a matter

       of law.” Missler v. State Farm Ins. Co., 41 N.E.3d 297, 301 (Ind. Ct. App. 2015).

       A genuine issue of material fact exists where facts concerning an issue that

       would dispose of the litigation are in dispute or where the undisputed material

       facts are capable of supporting conflicting inferences on such an issue. Devereux




       3
        The Garlicks and the Indiana Department of Revenue do not participate in this appeal, but under Indiana
       Appellate Rule 17(A) a party of record in the trial court shall be a party on appeal.

       Court of Appeals of Indiana | Opinion 49A05-1509-MF-1348 | February 9, 2016                   Page 7 of 13
       v. Love, 30 N.E.3d 754, 762 (Ind. Ct. App. 2015), trans. denied. “If the material

       facts are not in dispute, our review is limited to determining whether the trial

       court correctly applied the law to the undisputed facts.” Id. We review pure

       questions of law de novo. Id.


[14]   “In reviewing cross-motions for summary judgment, we consider each motion

       separately.” Id. (citation and quotation marks omitted). On appeal, the trial

       court’s summary judgment ruling is cloaked with a presumption of validity. Id.

       at 763. “Where a trial court enters specific findings and conclusions, they offer

       insight into the rationale for the trial court’s judgment and facilitate appellate

       review, but are not binding upon this court.” Missler, 41 N.E.3d at 301. We are

       not limited to reviewing the trial court’s reasons for its ruling and may affirm if

       it is sustainable on any theory found in the evidence designated to the trial

       court. Devereux, 30 N.E.3d at 763.


[15]   Indiana Code Section 32-21-4-1(a) provides that a mortgage of land “must be

       recorded in the recorder’s office of the county where the land is situated[.]” A

       mortgage “takes priority according to the time of its filing.” Ind. Code § 32-21-

       4-1(b). Indiana Code Section 36-2-11-12 provides,

               (a) The recorder shall index each volume of instruments the
               recorder records by:


                        (1) the name of each grantor, promisor, or covenantor, in
                        alphabetical order and cross-referenced to the proper
                        grantee, promisee, or covenantee; and

                        (2) the name of each grantee, promisee, or covenantee, in
       Court of Appeals of Indiana | Opinion 49A05-1509-MF-1348 | February 9, 2016   Page 8 of 13
                        alphabetical order and cross-referenced to the proper
                        grantor, promisor, or covenantor.


               (b) The recorder shall accurately maintain separate indexes of all
               the records of:


                        (1) deeds for real estate; and

                        (2) mortgages on real estate;


               in the recorder’s office. The recorder shall index each deed or
               mortgage alphabetically, by the name of each grantor and grantee
               or mortgagor and mortgagee, and shall include in each index
               entry a concise description of the real property, the date of the
               deed or mortgage, and the number or letter of the book and the
               page at which each deed or mortgage is recorded.


[16]   In this case, it is undisputed that the Saxon mortgage was recorded three years

       before the S&L mortgage and therefore would take priority unless it is

       somehow invalid. 4 Our supreme court has stated,

               The purpose of recording a mortgage is to give notice to persons
               subsequently dealing with the property of the existence of the
               mortgage and to charge them with notice of what the records
               disclose. To charge subsequent purchasers with notice, a
               mortgage must be recorded in the proper county and must
               contain an accurate legal description of the property.




       4
        S&L do not specifically assert that the Saxon mortgage is invalid because its assignment to Deutsche Bank
       was not recorded until 2013.

       Court of Appeals of Indiana | Opinion 49A05-1509-MF-1348 | February 9, 2016                    Page 9 of 13
       Bank of New York v. Nally, 820 N.E.2d 644, 649-50 (Ind. 2005) (citations

       omitted). Also, “a recorded mortgage must be in the ‘chain of title.’” Id. at 650

       (quoting Szakaly v. Smith, 544 N.E.2d 490, 492 (Ind. 1989)). “[A] prospective

       purchaser or mortgagee is on notice of outstanding mortgages for the period

       that the mortgagor held title of the real estate according to the chain of title.”

       Id. at 651.


[17]   Via the affidavit of Daniel Christian, Deutsche Bank established that the Saxon

       mortgage is in the Garlicks’ chain of title and can be found by using the

       Recorder’s index of records listing Berney Garlick as a grantee from August

       2010 (when the S&L mortgage was recorded) backward to June 2003 (when the

       Craft deed was recorded) and as a grantor from June 2003 forward to August

       2010. 5 S&L do not dispute this but assert that the Saxon mortgage is invalid

       because its legal description of the mortgaged property is defective.




       5
         S&L submitted the affidavit of Jennifer Jones, the co-owner of Royal Title Services, Inc., which S&L hired
       to perform “a current owner search for the property commonly known as 8611 West 96th Street, Zionsville[.]”
       Appellants’ App. at 96. Jones stated that Royal Title
             searched the Title Scan Title Plant, maintained by Fidelity National Title … for Lot 1 in Copper
             Ridge from the date of Plat (October 23, 2006) to the current effective date (December 9, 2014).
             To search for property information prior to the date of Plat, Royal Title searched the arbitrary
             numbers for the Property in Title Scan going back to June 26, 2003. This is performed by
             inputting the arbitrary number – which is a number given to metes and bounds described parcels
             that have not yet been platted. This method of searching is the industry standard.
       Id. at 96-97. Using the street address, legal description of Lot 1, parcel number, state parcel number, and
       names of the owners of record (i.e., the Garlicks) as search parameters, Royal Title found “only one recorded
       mortgage that is currently indexed against the Property,” i.e., the S&L mortgage. Id. at 97. This case
       illustrates the perils of limiting a mortgage search by parcel number, given that the official mortgage records
       maintained by the county recorder are indexed by name pursuant to statute. Cf. Szakaly, 544 N.E.2d at 491-
       92 (describing process of determining chain of title by tracing grantor’s name).

       Court of Appeals of Indiana | Opinion 49A05-1509-MF-1348 | February 9, 2016                      Page 10 of 13
[18]   This Court has stated,

               In order for a mortgage to be effective, it must contain a
               description of the land intended to be covered sufficient to
               identify it. The test for determining the sufficiency of a legal
               description is whether the tract intended to be mortgaged can be
               located with certainty by referring to the description.


       Keybank Nat’l Ass’n v. NBD Bank, 699 N.E.2d 322, 326 (Ind. Ct. App. 1998)

       (citing, inter alia, Matter of Estate of Lawrence, 565 N.E.2d 357, 359 (Ind. Ct.

       App. 1991)).


[19]   In Lawrence, a 6.85-acre tract was conveyed to Marc Lawrence and other family

       members via a deed containing a metes and bounds description of the property,

       commonly described as 228 Gilmore Road. As security for a loan, the

       Lawrences gave a bank a mortgage describing that tract as well as real estate

       that they did not own. The Lawrences then conveyed to Marc a 0.30-acre tract

       that was part of the 6.85-acre tract and commonly described as 227 Gilmore

       Road. Marc gave the same bank a mortgage on the 227 Gilmore Road tract

       stating that the tract was “‘free and clear of all liens and encumbrances except

       for the lien of taxes and assessments not delinquent and [the] first mortgage[.]’”

       Lawrence, 565 N.E.2d at 358 (citation omitted). After Marc’s death, a dispute

       arose regarding whether the 227 Gilmore Road tract was subject to the first

       mortgage. The trial court determined that the first mortgage was invalid as to

       the 227 Gilmore Road tract because the mortgage’s property description was

       “insufficient” to locate that tract “with certainty[.]” Id.



       Court of Appeals of Indiana | Opinion 49A05-1509-MF-1348 | February 9, 2016   Page 11 of 13
[20]   On appeal, this Court concluded otherwise:

               The [first mortgage’s] description of the mortgaged premises is a
               facially valid legal description–i.e., the metes and bounds
               description encloses a tract of ground and it has a definite and
               ascertainable point of beginning …. The fact that the described
               premises encompasses more real estate than is owned by the
               mortgagors is relevant only to the issue whether there is a valid
               and enforceable lien on the non-owned premises; it does not
               impair the validity of the lien on the mortgaged premises.

               The description identifies the 227 Gilmore Road property
               because the legal description of that property falls within the
               description of the mortgaged premises.


       Id. at 359.


[21]   Here, S&L assert that the Saxon mortgage “both over- and under-describes the

       Mortgaged Property” and therefore “it is impossible to determine which

       property was intended to be mortgaged.” Appellants’ Br. at 9. We disagree.

       The Saxon mortgage, which is in the Garlicks’ chain of title, put prospective

       purchasers or mortgagees on notice of an existing mortgage on property

       commonly known as 8611 West 96th Street, Zionsville – the same address

       shown on Lot 1 of the Copper Ridge Secondary Plat, which is also in the

       Garlicks’ chain of title. The Saxon mortgage’s metes and bounds description is

       a facially valid legal description, has the same geographic starting point as that

       of the Copper Ridge Secondary Plat, and encompasses the western 155 feet of




       Court of Appeals of Indiana | Opinion 49A05-1509-MF-1348 | February 9, 2016   Page 12 of 13
       that plat. 6 Appellants’ App. at 34, 70. As we said under analogous

       circumstances in Lawrence, the fact that the premises described in the Saxon

       mortgage encompasses more (and/or less) real estate than was owned by the

       Garlicks “is relevant only to the issue whether there is a valid and enforceable

       lien on the non-owned premises; it does not impair the validity of the lien on

       the mortgaged premises.” 565 N.E.2d at 359.


[22]   Consequently, we agree with the trial court that Deutsche Bank has a prior and

       therefore superior lien as to that part of Lot 1 in Copper Ridge Secondary Plat

       that is covered by the legal description in the Saxon mortgage. 7 Accordingly,

       we affirm the entry of partial summary judgment in Deutsche Bank’s favor.


[23]   Affirmed.


       Vaidik, C.J., and Bailey, J., concur.




       6
        S&L do not argue that the scrivener’s error in the Saxon mortgage’s property description affects the
       mortgage’s validity.
       7
         S&L state, “It is undisputed that the [Saxon] Mortgage was created and recorded after the Copper Ridge
       Secondary Plat was recorded” and “does not refer to the legal description of Lot 1 as set out in the Plat, but
       refers instead to the metes and bounds description of just a portion of Lot 1 (i.e., the method used before the
       plat was made).” Appellants’ Br. at 12. S&L argue that under Indiana Code Section 36-7-3-14, “the
       description contained in the recorded plat (i.e., Copper Ridge Lot 1) is the sole way of describing property in
       a legal instrument.” Id. We find no such limitation in the statute, which is inapplicable in any event because
       it governs the vacation of platted land, which has not occurred here. S&L also characterize the trial court’s
       summary judgment ruling as “an improper method of subdividing platted property.” Appellants’ Br. at 14.
       This argument is based on the faulty premise that the ruling vacates the Copper Ridge plat. It is possible that
       the foreclosure proceeding will result in a single entity owning all of Lot 1. If the proceeding ultimately
       necessitates the vacation of Lot 1, we presume that all parties will follow the applicable law. See, e.g., Ind.
       Code §§ 36-7-3-10 (vacation of plat or part of plat when “all the owners of land in a plat are in agreement
       regarding a proposed vacation”) and 36-7-4-711 (vacation of plat or part of plat when “not all the owners of
       land in a plat are in agreement regarding a proposed vacation”).

       Court of Appeals of Indiana | Opinion 49A05-1509-MF-1348 | February 9, 2016                       Page 13 of 13
