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
                                                         FILED
                                                       Aug 29 2012, 9:39 am
of establishing the defense of res
judicata, collateral estoppel, or the law                     CLERK
of the case.                                                of the supreme court,
                                                            court of appeals and
                                                                   tax court




APPELLANTS PRO SE:                          ATTORNEY FOR APPELLEE:

MARGARET R. SMITH                           BRYAN K. REDMOND
DARRELL G. SMITH                            Feiwell & Hannoy, P.C.
Williamsburg, Indiana                       Indianapolis, Indiana


                              IN THE
                    COURT OF APPEALS OF INDIANA

MARGARET R. SMITH and                )
DARRELL G. SMITH,                    )
                                     )
      Appellants-Defendants,         )
                                     )
             vs.                     )          No. 89A01-0702-CV-94
                                     )
JP MORGAN CHASE BANK, AS TRUSTEE     )
UNDER THE POOLING AND SERVICING      )
AGREEMENT, DATED AS OF JUNE 1, 2003, )
AMONG CREDIT-BASED ASSET SERVICING )
AND SECURITIZATION, LLC, C-BASS ABS, )
LLC, LITTON LOAN SERVICING, LP, AND  )
JP MORGAN CHASE BANK, C-BASS         )
MORTGAGE LOAN ASSET BACKED           )
CERTIFICATES, SERIES 2003-RPI,       )
                                     )
      Appellee-Plaintiff.            )


                     APPEAL FROM THE WAYNE SUPERIOR COURT
                          The Honorable P. Thomas Snow, Judge
                             Cause No. 89D01-0512-MF-132
                                   August 29, 2012

              MEMORANDUM DECISION – NOT FOR PUBLICATION

BARNES, Judge
                                   Case Summary

      Margaret and Darrell Smith appeal the trial court’s grant of summary judgment in

a foreclosure action brought by JPMorgan Chase Bank, as trustee under the pooling and

servicing agreement, dated as of June 1, 2003, among credit-based asset servicing and

securitization LLC, C-Bass ABS, LLC, Litton Loan Servicing, LP, and JPMorgan Chase

Bank, C-Bass Mortgage Loan Asset Backed Certificates, Series 2003-RPI (collectively,

“JPMorgan”). We affirm.

                                        Issue

      The Smiths raise one issue, which we restate as whether the trial court properly

granted summary judgment to JPMorgan on its foreclosure action.

                                        Facts

      In 1997, the Smiths executed a promissory note in the amount of $104,000.00,

which was secured by a mortgage on property in Richmond. After a series of recorded

assignments, the note and mortgage were last assigned to JPMorgan. In 1998, the Smiths

filed for Chapter 13 bankruptcy. On October 29, 2001, the bankruptcy court ordered the

following:

             The debtors [the Smiths] shall pay their post petition
             mortgage payment due October 1, 2001 in the amount of
             $1,059.76 on or before October 15, 2001 and will thereafter
             make their post petition mortgage payments on a monthly
             basis on or before each due date. In addition to the monthly
             mortgage payments, debtors shall pay an additional sum of

                                          2
             $50.00 per month for period of 18 months until the accrued
             late charges, attorney fees and costs of collections in the
             amount of $889.95, is fully paid to Litton Loan
             Servicing/Bankers Trust.

Appellant’s App. p. 2.

      On December 1, 2005, JPMorgan filed a complaint against the Smiths on the note

and to foreclose the mortgage. On March 3, 2006, JPMorgan filed a motion for summary

judgment. In support of its motion, JPMorgan designated an affidavit, which provided

that “[t]he last payment received by the plaintiff was for the payment due July 1, 2005,

and since receipt of that payment, no additional payments have been received by the

plaintiff.” Appellee’s App. p. 58. The Smiths filed a response to JPMorgan’s motion for

summary judgment and designated evidence, but we were not provided with their

response or designation on appeal. According to JPMorgan, the Smiths’ designation

included an affidavit from Margaret Smith, a copy of the bankruptcy order, and copies of

forty-seven checks and printouts of bank account payment activity. JPMorgan filed a

reply and argued:

                    The Plaintiff agrees the Smiths made forty-seven
             regular mortgage payments from October 1, 2001 thru
             October 2005. However, in the same period of time forty-
             nine (49) mortgage payments became due. By November 10,
             2005, when Smiths tendered two mortgage payments, fifty
             (50) mortgage payments had become due. The funds were
             rejected because they were insufficient to bring the mortgage
             current. Smiths response Exhibit-D.
                    As evidenced by Smiths Exhibit B, the Smiths agreed
             to tender an additional $50.00, monthly payment for eighteen
             (18) consecutive months beginning in October 2001. Said
             payments were to compensate Litton for accrued late charges,
             attorney fees and costs of collection in the amount of
             $889.95. Smiths response Exhibit-B. The Smiths failed to

                                           3
               tender the required payments.           Smiths response Exhibits-
               A&C.

Id. at 64. The trial court granted JPMorgan’s motion for summary judgment on January

18, 2007.

       The Smiths appealed the trial court’s grant of summary judgment, but this court

dismissed their appeal on December 11, 2007. The Smiths filed a petition for transfer,

and our supreme court reinstated their appeal on May 15, 2008. The Smiths then filed a

bankruptcy petition, which resulted in a stay of these proceedings until February 2012.

This court then gave the Smiths an opportunity to file an updated appellants’ brief and

appendix. In March 2012, the Smiths attempted to file an appellants’ brief and appendix,

but they were defective, and a notice of defect was mailed to the Smiths. On March 26,

2012, JPMorgan attempted to file its appellee’s brief and appendix. On March 27, 2012,

the Smiths filed a motion for extension of time to correct their brief and appendix, which

this court granted. The Smiths filed another appellant’s brief and appendix on May 18,

2012, which was also defective. However, this court filed the brief and appendix on June

12, 2012.     This court also filed JPMorgan’s March 26, 2012 appellee’s brief and

appendix on June 12, 2012.1

                                             Analysis

       The Smiths argue that the trial court erred by granting JPMorgan’s motion for

summary judgment. Summary judgment is appropriate when there is no genuine issue of


1
 We note that JPMorgan’s appellee’s brief was filed in response to the Smiths’ defective March 2012
appellants’ brief and appendix. JPMorgan did not file another brief in response to the May appellants’
brief.
                                                  4
material fact and the moving party is entitled to judgment as a matter of law. Ind. Trial

Rule 56.    We liberally construe all designated evidentiary material in a light most

favorable to the non-moving party to determine whether there is a genuine issue of

material fact. Bradshaw v. Chandler, 916 N.E.2d 163, 166 (Ind. 2009). The party that

lost in the trial court has the burden of persuading the appellate court that the trial court

erred. Id. Our review of a summary judgment motion is limited to those materials

designated to the trial court.   Mangold v. Ind. Dep’t of Natural Res., 756 N.E.2d 970,

973 (Ind. 2001).

       On appeal, the Smiths argue that they made all forty-nine payments during the

relevant time period and that the trial court ignored their evidence. JPMorgan argues that

it was uncontested during the summary judgment proceedings that the Smiths made only

forty-seven payments during the relevant time period. We begin by noting that, in their

Appellants’ Appendix, the Smiths include only the October 2001 bankruptcy court order,

copies of cancelled checks and banking records, and letters from Litton Loan Servicing.

The Smiths did not include their summary judgment response, their designation of

evidence, or Margaret’s affidavit.

       Pro se litigants are held to the same standard as licensed lawyers. In re Estate of

Carnes, 866 N.E.2d 260, 265 (Ind. Ct. App. 2007). Indiana Appellate Rule 50 provides

that the appellant’s appendix shall contain copies of pleadings and other documents from

the Clerk’s Record. “[B]oth our appellate rules as well as applicable case law clearly

indicate that when appealing the grant or denial of a motion for summary judgment, the

moving party must file with the appellate court those materials that were designated to

                                             5
the trial court for purposes of reviewing the motion for summary judgment.” Yoquelet v.

Marshall County, 811 N.E.2d 826, 829-30 (Ind. Ct. App. 2004). It is critical that copies

of the designated evidence be placed in the appendices in a summary judgment case.

       We further note that a comparison of the Smiths’ defective March 2012 Appendix

and their May 2012 Appendix reveals that some of the documents have been altered, i.e.,

information on memo lines is different and descriptions at the top of the documents are

different. In fact, page 44 of the May Appendix and page 42 of the March Appendix

purport to be the Smiths’ banking records from the fall of 2005, but the records are

formatted differently.

       Given the alterations between the documents in the March and May appendices

and the failure to include the Smiths’ response and designation, we must question what

documents were actually submitted to the trial court. Without accurate copies of the

designated evidence, we simply cannot say that the Smiths have met their burden of

demonstrating that the trial court improperly granted summary judgment to JPMorgan.

Based upon the record before us, we conclude that the Smiths have not established that

the trial court erred by granting summary judgment in JPMorgan’s favor. See, e.g.,

Yoquelet, 811 N.E.2d at 830 (“Without the designated evidence, which the trial court

relied upon in drafting its summary judgment order, we cannot review the trial court’s

decision to grant Marshall County’s motion for summary judgment. As a consequence,

Employees have failed to prove that the trial court erred . . . .”).




                                               6
                                     Conclusion

      The Smiths failed to meet their burden of demonstrating that the trial court erred

by granting summary judgment to JPMorgan. We affirm.

      Affirmed.

VAIDIK, J., and MATHIAS, J., concur.




                                          7
