996 N.E.2d 815
Ind. Ct. App.2013Background
- Lunsford and Cottler entered into a land contract on August 28, 2000, not recorded until March 8, 2006.
- In 2005, Cottler executed a promissory note to Homecomings, secured by a mortgage to MERS, recorded August 25, 2005.
- The note was endorsed to Residential Funding Corporation, then to Deutsche Bank as Trustee; Deutsche Bank acquired the note and mortgage before suit.
- Cottler defaulted in 2008; Deutsche Bank filed foreclosure in 2009, naming Lunsford to assert his junior land contract interest.
- The trial court granted summary judgment in Deutsche Bank’s favor in December 2012, foreclosing the mortgage as senior to Lunsford’s land contract.
- Lunsford appealed pro se, arguing lack of standing, failure to tender, and failure to join indispensable parties, among other theories.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Standing of Deutsche Bank | Lunsford argues Deutsche Bank lacks standing to foreclose. | Deutsche Bank, as holder/trustee, has standing to enforce the loan documents. | Deutsche Bank had standing as holder/trustee. |
| Tender/settlement arguments | Lunsford asserts tender of payment was refused and DB prevented payment. | No valid tender; no full payment made to court or bank. | Tender defenses waived and no tender established. |
| Authority to enforce without joining trust | Trustee must name the trust; improper asforeclosure party. | Trustee may sue in own name without joining the trust; no indispensable-party issue. | No need to name the trust; trustee authority confirmed. |
| Holder status and document enforcement | DB lacked rights to enforce due to assignment defects. | DB held the note and mortgage through endorsements and assignments and produced originals. | DB held and could enforce the note and mortgage. |
| Lien priority between mortgage and land contract | Junior lien (land contract) should prevail if properly recorded. | Mortgage recorded earlier prevails; lien senior to land contract. | Mortgage lien superior to land contract; foreclosure valid. |
Key Cases Cited
- First Valley Bank v. First Sav. & Loan Ass’n of Cent. Ind., 412 N.E.2d 1237 (Ind. Ct. App. 1980) (note/mortgage as negotiable instrument; holder enforces)
- Citimortgage, Inc. v. Barabas, 975 N.E.2d 805 (Ind. 2012) (MERS and assignments; securitized loans background)
- Salsbery Pork Prods., Inc. v. Booth, 967 N.E.2d 1 (Ind. Ct. App. 2012) (failure to raise issue at trial waives on appeal)
- Baird v. ASA Collections, 910 N.E.2d 780 (Ind. Ct. App. 2009) (waiver and trial-rule considerations for issues raised on appeal)
- Mid-West Fed. Sav. Bank v. Kerlin, 672 N.E.2d 82 (Ind. Ct. App. 1996) (joint parties bound when properly named; priority considerations)