MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), this
Memorandum Decision shall not be regarded as
                                                                   FILED
precedent or cited before any court except for the             Apr 19 2017, 9:42 am
purpose of establishing the defense of res judicata,
                                                                   CLERK
collateral estoppel, or the law of the case.                   Indiana Supreme Court
                                                                  Court of Appeals
                                                                    and Tax Court



APPELLANTS PRO SE                                      ATTORNEYS FOR APPELLEE
Michael Francis                                        David J. Jurkiewicz
Carmen Jay Francis                                     Christina M. Bruno
Indianapolis, Indiana                                  Bose McKinney & Evans LLP
                                                       Indianapolis, Indiana



                                             IN THE
    COURT OF APPEALS OF INDIANA

Michael Francis and Carmen Jay                            April 19, 2017
Francis,                                                  Court of Appeals Case No.
                                                          49A02-1604-MF-830
Appellants-Defendants,
                                                          Appeal from the Marion Superior
                                                          Court
        v.
                                                          The Honorable Timothy W. Oakes,
                                                          Judge
EMC Mortgage, LLC, successor
by merger to EMC Mortgage                                 Trial Court Cause No.
                                                          49D02-0706-MF-23133
Corporation,
Appellee-Plaintiff.



Bradford, Judge.




Court of Appeals of Indiana | Memorandum Decision 49A02-1604-MF-830 | April 19, 2017   Page 1 of 12
                                          Case Summary
[1]   In 1994, Appellants-Defendants Michael and Carmen Jay Francis executed a

      promissory note (“the Note”) and a mortgage (“the Mortgage,” collectively,

      “the Loan Documents”) on their Indianapolis home (“the Property”) in favor

      Accubanc Mortgage Corporation. When the Note matured in 2001, the

      Francises failed to satisfy the outstanding balance. By 2007, the Loan

      Documents had been assigned to EMC Mortgage Corporation, who filed suit to

      foreclose on the Mortgage. Eventually, EMC Mortgage Corporation was

      succeeded by merger by Appellee-Plaintiff EMC Mortgage, LLC (“EMC”). In

      2016, the trial court granted EMC’s summary judgment motion, ordered the

      sale of the property to satisfy the Francises’ debt, and denied the Francises’

      counterclaims.


[2]   The Francises argue that (1) EMC lacks standing to enforce the Loan

      Documents, (2) EMC’s foreclosure action is barred by the applicable statute of

      limitations, (3) the entire case was disposed by a 2012 order withdrawing the

      case from the trial court in which it was originally filed, (4) the trial court

      erroneously denied the Francises the opportunity to respond to an EMC motion

      for partial summary judgment, and (5) the trial court erroneously failed to

      conduct a hearing on EMC’s claims before entering judgment in its favor.

      Because we find the Francises’ claims to lack merit, we affirm.




      Court of Appeals of Indiana | Memorandum Decision 49A02-1604-MF-830 | April 19, 2017   Page 2 of 12
                            Facts and Procedural History
[3]   On October 26, 1994, the Francises owned the Property at 4904 North Winston

      Drive in Indianapolis and executed, in Accubanc’s favor, the Note (in the

      amount of $113,200.00) and the Mortgage, granting Accubanc a security

      interest in the Property. Pursuant to the terms of the Note, the maturity date,

      on which all outstanding amounts became due and payable, was November 1,

      2001. The Mortgage was recorded in the Marion County Recorder’s Office on

      November 1, 1994. Accubanc later assigned the Note to Bank United of Texas,

      FSB, and, on February 1, 1997, also assigned the Mortgage to Bank United.

      Washington Mutual Bank, FA, successor by merger to Bank United, assigned

      the Loan Documents to EMC Mortgage Corporation on December 22, 2003.

      On August 13, 2013, in response to the Francises’ claims that the Mortgage had

      been assigned to the Federal National Mortgage Association (“FNMA”),

      FNMA quit-claim assigned any interest it may have had in the Mortgage to

      EMC Mortgage Corporation (“the 2013 Assignment”). At some point, EMC

      Mortgage Corporation was succeeded in merger by EMC, and the trial court

      granted EMC’s motion to substitute plaintiff on September 15, 2015.


[4]   Meanwhile, the Francises had failed to pay the outstanding balance on the Note

      when it came due on November 1, 2001. On May 29, 2007, EMC Mortgage

      Corporation filed a complaint to foreclose on the Mortgage due to the

      Francises’ failure to make payments pursuant to the Note. On September 17,

      2007, the Francises filed their answer, affirmative defenses, and counterclaims.

      On April 9, 2012, EMC Mortgage Corporation filed a motion to strike or for

      Court of Appeals of Indiana | Memorandum Decision 49A02-1604-MF-830 | April 19, 2017   Page 3 of 12
      partial summary judgment as to certain claims and a designation of evidence.

      On May 7, 2012, the Francises filed a praecipe for withdrawal pursuant to

      Indiana Trial Rule 53.1, and on May 25, 2012, the Indiana Supreme Court

      vested jurisdiction in Marion Superior Court Judge Timothy W. Oakes. On

      May 20, 2013, the trial court granted EMC Mortgage Corporation’s partial

      summary judgment motion.


[5]   On October 23, 2013, EMC Mortgage Corporation moved for leave to amend

      its complaint, seeking to incorporate the 2013 Assignment, which motion the

      trial court granted. On May 28, 2015, EMC Mortgage Corporation filed a

      summary judgment motion on its complaint. On February 8, 2016, the trial

      court held a hearing on what was now EMC’s summary judgment motion, at

      which EMC appeared through counsel and Carmen Jay Francis appeared in

      person. On February 17, 2016, the trial court granted EMC’s summary

      judgment motion, entered in rem judgment against the Property in in the sum of

      $248,709.74, ordered that the Property be sold to satisfy the judgment, and

      entered judgment in favor of EMC on all of the Francises’ remaining

      counterclaims.



                                 Discussion and Decision
[6]   The Francises appeal from the trial court’s February 17, 2016, grant of

      summary judgment in favor of EMC. When reviewing the grant or denial of a

      summary judgment motion, we apply the same standard as the trial court.

      Merchs. Nat’l Bank v. Simrell’s Sports Bar & Grill, Inc., 741 N.E.2d 383, 386 (Ind.

      Court of Appeals of Indiana | Memorandum Decision 49A02-1604-MF-830 | April 19, 2017   Page 4 of 12
Ct. App. 2000). Summary judgment is appropriate only where the evidence

shows there is no genuine issue of material fact and the moving party is entitled

to a judgment as a matter of law. Id.; Ind. Trial Rule 56(C). All facts and

reasonable inferences drawn from those facts are construed in favor of the

nonmoving party. Merchs. Nat’l Bank, 741 N.E.2d at 386. To prevail on a

motion for summary judgment, a party must demonstrate that the undisputed

material facts negate at least one element of the other party’s claim. Id. Once

the moving party has met this burden with a prima facie showing, the burden

shifts to the nonmoving party to establish that a genuine issue does in fact exist.

Id. The party appealing the summary judgment bears the burden of persuading

us that the trial court erred. Id. The Francises seem to make the following

arguments:1 EMC’s designated evidence has failed to establish that it is entitled

to enforce the Loan Documents, EMC’s December 12, 2013, amended

complaint is barred by the applicable statute of limitations, the case was

“disposed of” by the Indiana Supreme Court’s 2012 ruling on their praecipe for

withdrawal, they were denied the opportunity to respond to the EMC motion

for partial summary judgment, and the trial court erroneously failed to conduct

a hearing on EMC’s summary judgment motion.




1
  EMC also contends that all of the Francises’ claims should be rejected for failure to present cogent
arguments. It is well settled that we will not consider an appellant’s assertion on appeal when he or she has
not presented cogent argument supported by authority and references to the record as required by the rules.
Thacker v. Wentzel, 797 N.E.2d 342, 345 (Ind. Ct. App. 2003). We will not become an advocate for a party,
and we will not address arguments that are either inappropriate, too poorly developed, or improperly
expressed to be understood. Id. Although not artfully presented, we believe that the Francises’ arguments
are sufficiently developed to address on the merits.

Court of Appeals of Indiana | Memorandum Decision 49A02-1604-MF-830 | April 19, 2017              Page 5 of 12
          I. EMC’s Standing to Enforce the Loan Documents
                            A. Whether EMC May Enforce the
                               Loan Documents in General
[7]   Although EMC offers many reasons why it may enforce the Loan Documents,

      the narrowest ground on which we might resolve this issue is its argument that

      the Francises do not have standing to challenge its right to enforce based on an

      allegedly faulty chain of assignment. Although the issue does not seem to have

      been squarely addressed in Indiana, “[c]ourts have routinely found that a debtor

      may not challenge an assignment between an assignor and assignee.” Bridge v.

      Aames Capital Corp., 2010 WL 3834059, at *3 (N.D. Ohio Sept. 29, 2010); see

      also, e.g., Liu v. T&H Mack, Inc., 191 F.3d 790, 797 (7th Cir. 1999) (concluding

      that party to underlying contract lacks standing to “attack any problems with

      the reassignment” of that contract), RICHARD A. LORD, 29 WILLISTON ON

      CONTRACTS § 74:50 (4th Ed.) (“[T]he debtor has no legal defense [based on

      invalidity of the assignment] … for it cannot be assumed that the assignee is

      desirous of avoiding the assignment.”).


[8]   As the United States Bankruptcy Court for the Eastern District of Pennsylvania

      has reasoned,

              [The underlying contract] is between [Debtor] and [Assignor].
              [Assignor’s] assignment contract is between [Assignor] and
              [Assignee]. The two contracts are completely separate from one
              another. As a result of the assignment of the contract, [Debtor’s]
              rights and duties under the [underlying] contract remain the
              same: The only change is to whom those duties are owed….
              [Debtor] was not a party to [the assignment], nor has a
      Court of Appeals of Indiana | Memorandum Decision 49A02-1604-MF-830 | April 19, 2017   Page 6 of 12
               cognizable interest in it. Therefore, [Debtor] has no right to step
               into [Assignor’s] shoes to raise [its] contract rights against
               [Assignee]. [Debtor] has no more right than a complete stranger
               to raise [Assignor’s] rights under the assignment contract.
       Ifert v. Miller, 138 B.R. 159, 166 n.13 (E.D. Pa. 1992).


[9]    We find the above authority to be persuasive and adopt the proposition that a

       borrower does not have standing to challenge an allegedly invalid assignment of

       the right to collect the borrower’s debt. Regardless of any assignments of the

       Note, the Francises’ rights and duties remained the same. Even assuming,

       arguendo, that there is some conflict regarding who actually possesses the right

       to enforce the Loan Documents, that is between the various claimants to the

       that right and does not involve the Francises. The Francises do not have

       standing to challenge an allegedly invalid assignment of the Loan Documents

       to EMC.


                             B. Whether EMC May Enforce the
                                Loan Documents in Indiana
[10]   The Francises also argue that EMC may not enforce its rights pursuant to the

       Loan Documents because it is not authorized to conduct business in Indiana as

       either a foreign business or a collection agency.

               A foreign corporation may not “transact business” in Indiana
               until it obtains a certificate of authority from the secretary of
               state. Ind. Code § 23-1-49-1(a). Indiana Code § 23-1-49-2(a)
               further states that a foreign corporation transacting business in
               Indiana without a certificate of authority may not maintain a
               proceeding in any court in Indiana until it obtains a certificate of
               authority.
       Court of Appeals of Indiana | Memorandum Decision 49A02-1604-MF-830 | April 19, 2017   Page 7 of 12
               ….
               A foreign corporation’s incapacity to sue must be plead and
               proven as an affirmative defense under Trial Rules 9(A) and
               8(C). Vanco v. Sportsmax, Inc., 448 N.E.2d 1198, 1200 (Ind. Ct.
               App. 1983).
       Lackmond Prod., Inc. v. Constr. Supply, Inc., 691 N.E.2d 494, 495-96 (Ind. Ct.

       App. 1998). Indiana Code section 23-1-49-2(b), however, contains a non-

       exhaustive list of activities that do not constitute “transacting business” in the

       State of Indiana and includes “[s]ecuring or collecting debts or enforcing

       mortgages and security interests in property securing the debts.” Ind. Code §

       23-1-49-2(b)(8). Because the act of enforcing rights pursuant to the Loan

       Documents does not constitute transacting business, whether EMC has secured

       a certificate of authority is irrelevant. The Francises have failed to establish that

       EMC cannot enforce its rights pursuant to the Loan Documents.


                                    II. Statute of Limitations
[11]   The Francises also appear to argue that EMC’s amended complaint is barred by

       application of the relevant statute of limitations for mortgage foreclosures,

       which requires that such actions be brought within ten years of the date of the

       final payment. See Ind. Code § 32-28-4-1(b) (“An action may not be brought in

       the courts of Indiana to foreclose a mortgage or enforce a vendor’s lien reserved

       by a person to secure the payment of an obligation secured by the mortgage or

       vendor’s lien if the last installment of the debt secured by the mortgage or

       vendor’s lien, as shown by the record of the mortgage or vendor’s lien, has been

       due more than ten (10) years.”). Furthermore, Indiana Rule of Trial Procedure


       Court of Appeals of Indiana | Memorandum Decision 49A02-1604-MF-830 | April 19, 2017   Page 8 of 12
       15(C) provides, in part, that “[w]henever the claim or defense asserted in the

       amended pleading arose out of the conduct, transaction, or occurrence set forth

       or attempted to be set forth in the original pleading, the amendment relates back

       to the date of the original pleading.”


[12]   The record indicates that the Note matured on November 1, 2001, which gave

       the holder of the Loan Documents until October 31, 2011 to file a foreclosure

       action. EMC’s predecessor in interest EMC Mortgage Corporation filed its

       original complaint on May 29, 2007, well within the statutory period. EMC

       Mortgage Corporation’s amended complaint was filed on December 12, 2013,

       and, although it added exhibits that would tend to show a chain of assignment

       from Accubanc to EMC Mortgage Corporation, is based on exactly the same

       conduct as the original complaint, i.e., the Francises’ failure to pay off the Note

       upon maturity. Because EMC Mortgage Corporation’s amended complaint

       clearly relates back to its original complaint, the Francises have failed to

       establish a violation of the applicable statute of limitations.


                         III. The Francises’ Other Arguments
[13]   The Francises seem to argue that the record establishes that (1) the entire

       lawsuit was resolved the Indiana Supreme Court’s 2012 ruling on their praecipe

       of withdrawal, (2) the trial court erroneously deprived them of the opportunity

       to present an argument, and (3) the trial court erred in not holding a hearing on

       EMC’s summary judgment motion.




       Court of Appeals of Indiana | Memorandum Decision 49A02-1604-MF-830 | April 19, 2017   Page 9 of 12
                                   A. Praecipe for Withdrawal
[14]   The Francises argue that neither the trial court nor this court have jurisdiction

       over this matter due to a May 15, 2012, notation on the chronological case

       summary (“CCS”) indicating that the “case status is changed from open to

       disposed.” Appellee’s App. Vol. II p. 14. It is apparent, however, that the case

       was “disposed” of only in the sense that it was withdrawn from Marion Circuit

       Court Judge Louis F. Rosenberg (upon the Francises’ motion) for the

       appointment of a special judge. Indeed, the very next entry in the CCS reflects

       an order from the Indiana Supreme Court vesting jurisdiction in Marion

       Superior Court Judge Timothy W. Oakes, and an entry on July 3, 2012,

       indicates that the case had been redocketed. The Francises’ claim in this regard

       is without merit.


               B. Deprivation of Opportunity to Present Argument
[15]   The Francises argue that they were denied the opportunity to present argument

       opposing an EMC Mortgage Corporation motion for partial summary

       judgment. This argument is based on the following two entries in the CCS:

               05/20/2013 Notice Issued
                                The court having read briefs and heard oral
                                arguments on Plaintiff’s; April 9, 2013 Motion for
                                Partial Summary Judgement [sic] hereby Grants
                                said Motion. Plaintiff to provide orders.
               05/22/2013 Hearing Journal Entry
                                THE COURT HAVING READ BRIEFS AND
                                HEARD ORAL ARGUMENTS ON PLAINTIFF;
                                4/9/13 MOTION FOR PARTIAL SUMMARY
       Court of Appeals of Indiana | Memorandum Decision 49A02-1604-MF-830 | April 19, 2017   Page 10 of 12
                                JUDGMENT HEREBY GRANTS SAID
                                MOTION. PLAINTIFF TO PROVIDE ORDERS.
                                Judicial Officer: Oakes, Timothy Wayne
                                Hearing Date: 05/16/2013
       Appellee’s App. Vol. II p. 18.
[16]   The Francises argue that they were never served with an EMC Mortgage

       Corporation motion for partial summary judgment allegedly filed on April 9,

       2013, and were not notified to appear at any hearing held on May 16, 2013.

       While this is true, that is only because the record clearly indicates that no such

       motion was filed and no such hearing was held. A CCS entry also made on

       May 22, 2013, corrects the typographical errors in the above two entries:

       “Hearing Journal Entry/Per Jacket Entry: The Court having read Briefs and

       heard oral arguments 11/29/12 on Plaintiff’s 4/9/12 Motion for Partial

       Summary Judgment hereby GRANTS said Motion. Plaintiff to provide

       Orders. File Stamp: 05/16/2013[.]” Appellee’s App. Vol. II p. 18. The

       Francises point to nothing else in the record to support their argument, and,

       therefore, have not established that they were denied the opportunity to be

       heard on an EMC Mortgage Corporation motion for partial summary

       judgment.


         C. Whether the Trial Court Denied the Francises a Hearing
[17]   Finally, the Francises argue that the trial court erroneously entered default

       judgment against them without holding a hearing. First, although the Francises

       rely on Trial Rule 55, which addresses default judgments, EMC did not seek

       and was not granted default judgment against the Francises; Trial Rule 55

       Court of Appeals of Indiana | Memorandum Decision 49A02-1604-MF-830 | April 19, 2017   Page 11 of 12
       simply has no bearing on this case. Moreover, the record clearly indicates that

       the trial court did hold a hearing on EMC’s summary judgment motion on

       February 8, 2016, which was attended by counsel for EMC and Carmen Jay

       Francis. The Francises seem to argue that the hearing was somehow invalid

       without Michael’s presence, but point to no authority that supports this

       proposition. The Francises have failed to establish that the trial court

       erroneously denied them a hearing.


[18]   We affirm the judgment of the trial court.


       Najam, J., and Riley, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 49A02-1604-MF-830 | April 19, 2017   Page 12 of 12
