MEMORANDUM DECISION
                                                                          FILED
Pursuant to Ind. Appellate Rule 65(D),                               May 23 2018, 7:59 am

this Memorandum Decision shall not be                                     CLERK
regarded as precedent or cited before any                             Indiana Supreme Court
                                                                         Court of Appeals
                                                                           and Tax Court
court except for the purpose of establishing
the defense of res judicata, collateral
estoppel, or the law of the case.


APPELLANT PRO SE                                        ATTORNEY FOR APPELLEE
Joseph Clinard                                          J. Dustin Smith
Greenwood, Indiana                                      Manley Deas Kochalski LLC
                                                        Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Joseph Clinard,                                         May 23, 2018
Appellant-Defendant,                                    Court of Appeals Case No.
                                                        41A01-1707-MF-1552
        v.                                              Appeal from the Johnson Superior
                                                        Court
Visio Financial Services, Inc.,                         The Honorable Marla Clark, Judge
Appellee-Plaintiff.                                     Trial Court Cause No.
                                                        41D04-1312-MF-546



Robb, Judge.




Court of Appeals of Indiana | Memorandum Decision 41A01-1707-MF-1552 | May 23, 2018           Page 1 of 10
                               Case Summary and Issues
[1]   Joseph Clinard, pro se, appeals from the trial court’s order granting Visio

      Financial Services, Inc.’s (“Visio Financial”) motion for summary judgment

      and denying his motion to dismiss and motion to strike. Clinard now appeals,

      raising three issues for our review, which we consolidate and restate as: 1)

      whether the trial court abused its discretion in denying his motion to strike; and

      2) whether the trial court erred in granting summary judgment in favor of Visio

      Financial. Concluding the trial court did not abuse its discretion or err in its

      rulings, we affirm.



                            Facts and Procedural History
[2]   In March of 2013, the property which is the subject of this appeal, 793 Sable

      Creek Lane, Greenwood, Indiana, was owned by the Department of Veterans

      Affairs. In order to purchase the property, Clinard and his wife, Crystal,

      completed a Uniform Residential Loan Application and, based on this

      application, the Clinards were approved for a land installment sale wherein

      Visio Financial agreed to acquire title to the property and then sell the property

      to Clinard on contract. Due to restrictions on purchasing eligibility, Visio

      Financial was unable to buy the property directly from the Department of

      Veterans Affairs.


[3]   Visio Financial then agreed to loan the Clinards a majority of the funds needed

      to acquire title from the Department of Veterans Affairs in exchange for the


      Court of Appeals of Indiana | Memorandum Decision 41A01-1707-MF-1552 | May 23, 2018   Page 2 of 10
      Clinards’ agreement to execute a promissory note, installment agreement,

      memorandum of land contract, and all related deeds, including transferring title

      of the property to Visio Financial.


[4]   In early June of 2013, Clinard and his wife signed the installment agreement

      and a promissory note obligating the Clinards to repay Visio Financial

      $85,897.00 plus interest at a rate of eighteen percent per annum. On June 14,

      2013, the Secretary of Veterans Affairs signed a special warranty deed

      transferring title of the property to the Clinards. See Appellee’s Appendix,

      Volume 2 at 61-63. That same day, the Clinards executed a general warranty

      deed transferring title of the property to Visio Financial. 1 Id. at 64-65.


[5]   Following the closing, the Clinards failed to make a single payment in

      accordance with the promissory note and installment agreement. Id. at 38. In

      December of 2013, Visio Financial filed their Complaint on Promissory Note

      and to Foreclose Land Installment Contract against the Clinards. The

      complaint also included as defendants Paul Templeton, Bryan Bush, and

      Solutions Staffing Company, Inc., all of whom held judgment liens against the

      Clinards. Visio Financial filed its Motion for Summary Judgment and Decree

      of Foreclosure in October of 2014. Thereafter, Visio Financial withdrew its

      motion after learning the Clinards intended to file for bankruptcy. On February

      2, 2015, Visio Financial informed the trial court the Clinards filed a petition for



      1
       The general warranty deed was signed on May 31, 2013, but includes the written notation, “but effective
      6/14/13.” See Appellee’s Appendix at 65.

      Court of Appeals of Indiana | Memorandum Decision 41A01-1707-MF-1552 | May 23, 2018            Page 3 of 10
      bankruptcy under Chapter 13 of the United States Bankruptcy Code and that

      pursuant to the code, an automatic stay of proceedings had been imposed.


[6]   While his bankruptcy petition was pending, Clinard filed four unsuccessful

      motions to dismiss with the trial court.2 On November 14, 2016, Visio

      Financial informed the trial court Clinard’s bankruptcy petition was dismissed. 3

      On April 27, 2017, Visio Financial filed its Motion for Entry of Default

      Judgment and Decree of Foreclosure4 and its Motion for Summary Judgment

      and Designation of Evidence. Clinard responded by filing his own motion for

      summary judgment, a motion in opposition to Visio Financial’s motion for

      summary judgment, a motion to strike, and a motion to reconsider his motion

      to dismiss.


[7]   On June 7, 2017, the trial court granted Visio Financial’s motion for default

      judgment against Paul Templeton, Bryan Bush, and Solutions Staffing

      Company, Inc., and ordered that “[t]he liens, claims, and interests of the [sic]

      Paul Templeton, Bryan Bush and Solutions Staffing Company, Inc. are inferior

      and subordinate to that of [Visio Financial].” Appellant’s Appendix, Volume 2

      at 163-65. On June 27, 2017, the trial court entered its order granting Visio




      2
          Clinard has filed a total of six motions to dismiss.
      3
       Clinard filed another bankruptcy petition on October 5, 2016. The United States Bankruptcy Court for the
      Southern District of Indiana dismissed his petition on December 7, 2016.
      4
        As to Paul Templeton, Bryan Bush, and Solutions Staffing Company, Inc., the motion only requested the
      trial court find Visio Financial’s lien to “be foreclosed as a first and prior lien on the subject property . . . .”
      Appellee’s App., Vol. 2 at 31.

      Court of Appeals of Indiana | Memorandum Decision 41A01-1707-MF-1552 | May 23, 2018                      Page 4 of 10
      Financial’s motion for summary judgment and denying Clinard’s motion to

      dismiss, motion to reconsider motion to dismiss, and motion to strike. The trial

      court’s order entered judgment against the Clinards in the amount of

      $157,487.09. See Appellee’s App., Vol. 2 at 117-21. Clinard now appeals.



                                Discussion and Decision
                               I. Clinard’s Motion to Strike
[8]   We review a trial court’s denial of a motion to strike for an abuse of discretion.

      Lanni v. Nat’l Collegiate Athletic Ass’n, 989 N.E.2d 791, 797 (Ind. Ct. App. 2013).

      A trial court abuses its discretion if its decision is clearly against the logic and

      effect of the facts and circumstances before the court. Id. at 798.


[9]   Clinard filed his motion to strike on May 9, 2017. In his motion, he alleged the

      trial court should strike Visio Financial’s Motion for Summary Judgment and

      Decree of Foreclosure, Motion for Default Judgment and Decree of

      Foreclosure, Memorandum in Support of Summary Judgment, and the

      Designation of Materials from the record. The basis of Clinard’s argument is

      these documents were signed by Attorney Elyssa Meade, who was not an

      attorney of record in the case. Clinard cites to Johnson County Local Rule

      LR41-TR5-147(A) in support of his argument. Johnson County Local Rule

      147(A) states, in relevant part,


              No pleading, motion, or other paper specified in Indiana Trial
              Rule 5, will be accepted for filing unless such pleading, motion,
              or other paper has been signed in accordance with Indiana Trial

      Court of Appeals of Indiana | Memorandum Decision 41A01-1707-MF-1552 | May 23, 2018   Page 5 of 10
               Rule 11 by the attorney of record or a self-represented party. If it
               is later discovered that a nonconforming pleading or motion has
               inadvertently been filed the pleading, motion, or paper may be
               stricken from the record.


[10]   The trial court did not abuse its discretion in denying Clinard’s motion to strike.

       Throughout this litigation, Visio Financial has been represented by the law firm

       Manley Deas Kochalski, LLC, and Attorney Meade is a member of that law

       firm. Although Clinard is correct Attorney Meade failed to file an appearance

       form before filing the motions, the local rule states the trial court “may” strike

       the motion from the record, but is not required to do so. The trial court’s denial

       of Clinard’s motion to strike was not clearly against the logic and effect of the

       facts and circumstances before the court.


                                     II. Summary Judgment
[11]   Clinard also contends the trial court erred in granting summary judgment in

       favor of Visio Financial. Specifically, Clinard argues genuine issues of material

       fact still exist as to whether a mortgage existed, and claims the trial court

       entered conflicting rulings on this point, and that Visio Financial breached

       multiple statutes relating to mortgage lending.


[12]   We review a trial court’s grant of summary judgment de novo. Broad Ripple

       Prop. Grp., LLC v. City of Indianapolis, 87 N.E.3d 1112, 1116 (Ind. Ct. App.

       2017). Summary judgment is appropriate where the designated evidence

       establishes that there is no genuine issue as to any material fact and that the



       Court of Appeals of Indiana | Memorandum Decision 41A01-1707-MF-1552 | May 23, 2018   Page 6 of 10
       moving party is entitled to judgment as a matter of law. Id.; Ind. Trial Rule

       56(C).


[13]   Clinard first alleges genuine issues of material fact exist as to whether the loan

       from Visio Financial was a mortgage, and that if the loan is a mortgage, Visio

       Financial was subject to further regulatory burdens under Indiana law. See

       Appellant’s Brief at 10. In support of his argument, Clinard relies solely on the

       trial court’s order granting default judgment in which the court referred to the

       loan as a mortgage. See Appellant’s App., Vol. 2 at 163-65 (default judgment

       order referring to the loan as a “mortgage”). Clinard contends the trial court’s

       default judgment order conflicts with its order granting summary judgment and,

       therefore, a genuine issue of material fact exists. Id. at 167-71 (summary

       judgment order referring to loan as an “installment agreement”).


[14]   In Skendzel v. Marshall, 261 Ind. 226, 301 N.E.2d 641 (1973), our supreme court

       stated that in a typical land contract,


                the vendor retains legal title until the total contract price is paid
                by the vendee. Payments are generally made in periodic
                installments. Legal title does not vest in the vendee until the
                contract terms are satisfied, but equitable title vests in the vendee
                at the time the contract is consummated. When the parties enter
                into the contract, all incidents of ownership accrue to the vendee.




       Court of Appeals of Indiana | Memorandum Decision 41A01-1707-MF-1552 | May 23, 2018   Page 7 of 10
Id. at 234, 301 N.E.2d at 646.5 This is precisely the situation contemplated by

Clinard and Visio Financial in their agreement. Visio Financial agreed to fund

the Clinards’ purchase of the home in exchange for the Clinards’ agreement to

sign a promissory note, installment agreement, and execute a deed transferring

title of the property to Visio Financial. The installment agreement and

promissory note required the Clinards to pay a total of $85,897.00 in twelve

monthly installments and one final balloon payment. See Appellee’s App., Vol.

2 at 9. Further, the installment agreement states,


          [The Clinards] will pay the down payment amount and deliver
          the promissory note for the remainder of the Total Purchase
          Price due under paragraph 2, Purchase Price, to [Visio Financial]
          upon execution of this Agreement. Subject to the terms and
          conditions of this Agreement, and subject to [the Clinards’]
          payment in full of the Promissory Note and all amounts due
          hereunder, Closing will occur on the date that [Visio Financial]
          deposits the Deed into the US Mail for delivery to [the Clinards]
          or for recording . . . .


Appellee’s App., Vol. 2 at 49.6




5
 Additionally, Indiana Code section 24-9-2-9.5 defines a “land contract” as a contract “for the sale of real
estate in which the seller of the real estate retains legal title to the real estate until the total contract price is
paid by the buyer.”
6
  We recognize that a land contract is akin to a mortgage and, in some situations, can be treated as such
requiring judicial foreclosure. Skendzel, 261 Ind. at 240-42, 301 N.E.2d at 649-51. However, this is only
appropriate where the vendee has paid more than a minimal amount on the contract at the time of default.
Id. at 240-41, 301 N.E.2d at 650. Here, the Clinards have made no payments on the promissory note.

Court of Appeals of Indiana | Memorandum Decision 41A01-1707-MF-1552 | May 23, 2018                         Page 8 of 10
[15]   In any event, Clinard’s allegation that the contract is a mortgage rather than an

       installment agreement does not raise a genuine issue of material fact. In its

       designation of evidence, Visio Financial produced the installment agreement,

       promissory note, and related deeds, all signed by the Clinards. Visio Financial

       also produced an affidavit stating the Clinards failed to make a single payment

       on the loan and Visio Financial was entitled to foreclose on the loan. Clinard

       did not designate any evidence to the contrary. Therefore, the trial court did

       not err in granting summary judgment in favor of Visio Financial.


[16]   Clinard also alleges Visio Financial violated numerous financial lending

       statutes. Specifically, Clinard argues Visio Financial failed to comply with

       Indiana Code section 24-9-4-1, section 24-9-4-3, section 24-9-4-7, section 24-9-3-

       7(c)(4), and section 32-29-1-3. Clinard’s brief offers no analysis or argument

       demonstrating these statutes apply to the loan at issue and makes bald

       allegations with no supporting evidence. Accordingly, we find Clinard has

       failed to make a cogent argument and has therefore waived this issue on appeal.

       Ind. Appellate Rule 46(A)(8)(a).


[17]   Waiver notwithstanding, in regard to Clinard’s argument concerning Indiana

       Code chapter 24-9-4, that chapter of the code applies to “high cost home

       loans.” A “high cost home loan” is defined as “a home loan with a trigger rate

       that exceeds the benchmark rate; or “total points and fees that exceed” a certain

       percent of the loan principal. Ind. Code § 24-9-2-8(a). The term “home loan”

       does not include “a land contract.” Ind. Code § 24-9-2-9(b). Therefore, these

       statutes do not apply. Finally, with respect to Indiana Code section 24-9-3-

       Court of Appeals of Indiana | Memorandum Decision 41A01-1707-MF-1552 | May 23, 2018   Page 9 of 10
       7(c)(4), Clinard has offered nothing to support his allegation. That section

       provides that “[a] person may not . . . [e]ngage in, or solicit to engage in, a real

       estate transaction or a mortgage transaction without a permit or license required

       by law.” Ind. Code § 24-9-3-7(c)(4). Other than stating Visio Financial

       “solicited and engaged in mortgage lending activities” in violation of law,

       Clinard does not allege what permit or license Visio Financial was required to

       have pursuant to the law or appropriately demonstrate that they did not have

       the proper license. Br. of Appellant at 12.7



                                                  Conclusion
[18]   The trial court did not abuse its discretion in denying Clinard’s motion to strike

       or err in granting summary judgment in favor of Visio Financial. Accordingly,

       we affirm the judgment of the trial court.


[19]   Affirmed.


       Crone, J., and Bradford, J., concur.




       7
         Clinard also argues the trial court abused its discretion in denying his sixth motion to dismiss. This motion,
       similar to his argument above, alleged Visio Financial sold the property in violation of Indiana Code section
       32-29-1-3 and concludes that “a contract made in violation of statute is void.” Br. of Appellant at 19 (citation
       omitted). Clinard’s brief on this issue is two short paragraphs and again offers no analysis of the issue other
       than bald allegations. We find this issue is also waived. App. R. 46(A)(8)(a). Waiver notwithstanding, there
       is nothing in the record to support the argument the contract was made in violation of statute.

       Court of Appeals of Indiana | Memorandum Decision 41A01-1707-MF-1552 | May 23, 2018               Page 10 of 10
