Alan Patrick McENTEE, Appellant-Defendant, v. WELLS FARGO BANK, N.A., Appellee-Plaintiff.
No. 75A03-1106-MF-277
Court of Appeals of Indiana.
June 19, 2012.
178
BAILEY, Judge.
In sum, I conclude that the trial court abused its discretion in denying O‘Connell‘s proposed instructions.
BAILEY, Judge.
Case Summary
Alan Patrick McEntee (“McEntee“), pro se, appeals from the denial of his motion to correct error, which challenged the trial court‘s entry of summary judgment, which granted Wells Fargo Bank N.A.‘s (“Wells Fargo“) foreclоsure claim and denied McEntee‘s counterclaim for damages.
We reverse and remand for further proceedings.
Issue
McEntee presents several issues for our review, which we reframe as whether the trial court abused its discretion when it
Facts and Procedural History
On August 4, 2003, McEntee borrowed $73,000 from USB Home Lending, a Division of Universal Savings Bank, F.A. (“USB Home Lending“). The note for the loan required that McEntee make monthly payments of $467.43.1 (Appellee‘s App. at 29.) The loan was secured by a mortgage, which McEntee executed on August 4, 2003. At some point prior to the relevant events of this case, Wells Fargo became the servicer on the loan for USB Home Lending.
At some point, McEntee submitted a check to Wells Fargo for his January 2009 mortgage payment. The check was postdated to the payment due date, but Wells Fargo negotiated the check before that date. While it does not appear that McEntee‘s check was returned for insufficient funds, payment of the check resulted in checking account overdraft fees to McEntee of $112.50.
McEntee engaged in efforts to obtain compensation from Wells Fargo fоr the overdraft fees. This appears to have escalated into a dispute over the proper place for McEntee to make payments; whether certain payments were made late; and whether McEntee could deduct amounts for the overdraft fees, mileage to deliver a payment to a Wells Fargo bank branch, and a “premature check cashing” fеe. Appellant‘s App. at 5.
On June 10, 2009, McEntee sent a letter to Mark Oman, then an executive for Wells Fargo in Des Moines, Iowa, that included two checks to Wells Fargo for McEntee‘s May 2009 and July 2009 mortgage payments. From the July 2009 payment, which was to total $664.98, McEntee deducted his claimed expenses for travel ($11.50), overdraft fees ($112.50), and the overdraft fee associated with “premature check cashing” ($22.87). Thus, McEntee‘s check for his July 2009 payment was $518.11, which he postdated to July 1, 2009.
By September 2009, McEntee‘s dispute with Wells Fargo remained unresolved. Thus, on September 23, 2009, McEntee sent a letter to Ben Windust, another executive for Wells Fargo. Stating that “[t]here has been no reply to date regarding the problems,” McEntee submitted with the letter a check for his October 2009 payment in the amount of $700.00, which he specified was to cover the $664.98 monthly payment and additional principal of $35.02 “plus $0.02 from previous month not allocated.” Appellant‘s App. at 7. The check was postdated to October 1, 2009, and McEntee indicated that he would assess a $ 100.00 fee “deductible from a future payment” if Wells Fargo “[p]remature[ly] deposit[ed]” the check. Appellant‘s App. at 7.
McEntee‘s relationshiр with Wells Fargo continued to deteriorate. Eventually, Wells Fargo returned two of McEntee‘s checks (for the July 2009 and January 2010 payments) and informed McEntee that it planned to foreclose on the mortgage. On April 27, 2010, USB Home Lending assigned its interest in the mortgage and conveyed the promissory note for the loan to Wells Fargo.
On May 13, 2010, Wells Fargo filed its Complaint to Foreclose Mortgage against MсEntee.
On June 7, 2010, McEntee answered the complaint, denying Wells Fargo‘s allegation that he had defaulted on the loan. McEntee also asserted several counterclaims. McEntee alleged that Wells Fargo failed to apply properly his payments, and requested damages “for all costs associated with this suit, plus all money not properly attributed by the Plaintiff.” Appellee‘s App. at 35. McEntee also asserted a counterclaim for $73,000 “for emotional pain and suffering and all ancillary costs,” claiming that Wells Fargo “has used its size and power in an effort to intimidate [McEntee] to accept extra costs that are not his responsibility.” Appellee‘s App. at 35. McEntee‘s answer and counterclaims were accompanied by a “Defense History” that set forth an alleged timeline of events. These included McEntee‘s recounting of the payment history and Wells Fargo‘s refusal to recognize certain payments as having been made, and McEntee‘s claim that Wells Fargo in August 2009 sent him a check for $125.00 to cover his overdraft fees.
On June 10, 2010, Wells Fargo answered and moved to dismiss McEntee‘s counterclaims.
On January 21, 2011, Wells Fargo filed its motion for summary judgment against McEntee as to its complaint and McEntee‘s counterclaims. On February 2, 2011, McEntee filed his response to Wells Fargo‘s motion for summary judgment.
The trial court conducted a hearing on Wells Fargo‘s motion for summary judgment on April 25, 2011. On April 26, 2011, the trial court entered summary judgment in favor of Wells Fargo and against McEntee on Wells Fargo‘s complaint for foreclosure and McEntee‘s counterclaims.
On May 20, 2011, McEntee filed his motion to correct error, subtitled as a motion to reconsider. Wells Fargo filed its response to the motion on May 31, 2011. The trial court denied McEntee‘s motion to correct error on June 10, 2011.
This appeal followed.
Discussion and Decision
Standard of Review
McEntee appeals from the trial court‘s denial of his motion to correct error. Our standard of review in such cases is well established. We review a trial court‘s ruling on a motion to correсt error for an abuse of discretion. Town of Plainfield v. Paden Eng‘g Co., 943 N.E.2d 904, 908 (Ind.Ct.App.2011), trans. denied. An abuse of discretion occurs when the trial court‘s decision is contrary to the logic and effects of the facts and circumstances before it or the reasonable inferences therefrom. Carter-McMahon v. McMahon, 815 N.E.2d 170, 174 (Ind.Ct.App.2004).
Here, the motion to correct error sought to set aside the entry of summary judgment. We review a trial court‘s entry of summary judgment under the same standаrd as the trial court. Williams v. Tharp, 914 N.E.2d 756, 761 (Ind.2009). Summary judgment is appropriate only where “the designated evidentiary matter shows that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.”
At summаry judgment, “[t]he moving party bears the burden of making a prima facie showing that there are no genuine issues of material fact and that the movant is entitled to judgment as a matter of law.” Dreaded, Inc. v. St. Paul Guardian Ins. Co., 904 N.E.2d 1267, 1270 (Ind.2009). Once the moving party has carried its
A trial court‘s entry of summary judgment “arrives on appeal ‘clothed with a presumption of validity,‘” and thus the party challenging summary judgment must bear the burden of proving that the movant was not entitled to summary judgment. Williams, 914 N.E.2d at 762 (quoting Rosi v. Bus. Furniture Corp., 615 N.E.2d 431, 434 (Ind.1993)). We will affirm a trial court‘s entry of summary judgment if the judgment can be sustained on any theory or basis in the record. Town of Plainfield, 943 N.E.2d at 908. We review a decision on summary judgment carefully, however, to ensure that a party was not properly denied his day in court. Haire v. Parker, 957 N.E.2d 190, 195 (Ind.Ct.App.2011), trans. denied. The trial court‘s findings and conclusions upon entry of summary judgment are not binding upon our review, though they “offer valuable insight into the trial court‘s rationale for its review and thus facilitate appellate review.” Raisor v. Jimmie‘s Raceway Pub, Inc., 946 N.E.2d 72, 75 (Ind.Ct.App.2011).
Summary Judgment on Wells Fargo‘s Claim for Foreclosure
We turn first to McEntee‘s contention that Wells Fargo was not entitled to summary judgment on its complaint for foreclosure of the mortgage.
The Indiana Code provides, “if a mortgagor defaults in the performance of any condition contained in a mortgage, the mortgagee or the mortgagee‘s assign may proceed in the circuit court of the county where the real estate is located to foreclose the equity of redemption contained in the mortgage.”
Here, the mortgage and note prоvided that McEntee would pay installments of $467.43, plus escrow-related costs, on the first day of each month, beginning on September 1, 2003, and running through August 1, 2033. Even a single untimely payment could constitute default. The provisions of the mortgage and note included a non-waiver clause that provided, “[e]ven if, at a time when I am in default, the Note Holder does not require me to pay immediately in full ... the Note Holder will still hаve the right to do so if I am in default at a later time.” (Appellee‘s App. at 30.)
At summary judgment, Wells Fargo submitted as designated evidence the note McEntee signed, the mortgage
Wells Fargo contends that McEntee admitted default both before the trial court and in his brief to this court. As we understand his argument, McEntee argues in his brief that if the mortgage was in default, the default was a result of Wells Fargo‘s conduct. Specifically, McEntee argues that Wells Fargo improperly deposited postdated checks before the monthly due date for each payment date, failed to apply payments properly, and refused tender of properly made payments. In his response to Wells Fargo‘s motion for summary judgment, McEntee designated as exhibits several letters he sent to Wells Fargo regarding his payment disputes. That is, McEntee does not admit default in his performance of any condition of the note, as our statutes rеquire before a mortgagee may foreclose upon a mortgage. See
Wells Fargo demonstrated, as Creech requires, that it was the holder of the note. Wells Fargo did not establish, however, that McEntee had defaulted on his obligations under the note. “Conclusory statements are generally disregarded in determining whether to grant or deny a motion for summary judgment.” LaCava v. LaCava, 907 N.E.2d 154, 166 (Ind.Ct.App.2009) (citing Paramo v. Edwards, 563 N.E.2d 595, 600 (Ind.1990)). Wells Fargo‘s designated materials are inadequate to the task of supporting its motion for summary judgment. The designated materials establish the balance on the loan and additional costs Wells Fargo incurred as a result of the claimed default. But the only evidencе of McEntee‘s default—that is, the only evidence designated by Wells Fargo that establishes McEntee‘s failure to comply with the terms of the note and mortgage—is the conclusory averment in Von Bergen‘s affidavit that “[a]ccording to [Wells Fargo‘s] records, the Mortgagors are in default and that said default has not been cured.” (Appellee‘s App. at 58.)
This conclusory statement is not enough. The designated materials reflect only Wells Fargo‘s opinion based upon its undesignated records that McEntee was in default. Thus, Wells Fargo did not establish the absence of a genuine issue of material fact regarding its contention that McEntee had defaulted on the note, nor did it establish a prima facie case that it was entitled to foreclose on the mortgage.
While Wells Fargo‘s designated materials were insufficient to shift the burden to
Taking the designated materials together, and drawing all inferences in favor of McEntee as the non-movant, the designated evidentiary materials submitted by the parties at summary judgment do not establish that McEntee defaulted in his performance under the note, but rather that he and Wells Fargo were engaged in an ongoing payment dispute. Thus, we cannot conclude that the trial court рroperly granted summary judgment in favor of Wells Fargo on its foreclosure complaint. We therefore reverse the trial court‘s entry of summary judgment on this point.
Summary Judgment on McEntee‘s Counterclaims
We turn now to the trial court‘s entry of summary judgment in favor of Wells Fargo on McEntee‘s counterclaims. We think this decision was in error.
McEntee‘s counterclaims stated:
The Defendant counterclaims for damages for all costs associated with this suit, plus all money not properly attributed by the Plaintiff in an amount to be determined by the court at trial; plus interest on amounts received by the Plaintiff and not credited to the Defendant.
The Defendant also counterclaims in the amount of $73,000 for emotional pain and suffering and all ancillary costs, enumerated or not at this point. The plaintiff has used its size and power in an effort to intimidate the Defendant to accept extra сosts that are not his responsibility. Their vindictiveness is irresponsible and unconscionable. (Appellee‘s App. at 35.)
In its motion for summary judgment, Wells Fargo sought entry of summary judgment on both its foreclosure claim and McEntee‘s counterclaims. While Wells Fargo designated some materials in support of the motion, it submitted no materials pertinent to either of McEntee‘s counterclaims.3 The trial court granted Wells Fargo‘s motion for summary judgment on the counterclaims.
This was error. One of McEntee‘s counterclaims related to the misapplication of his payments is less a claim for relief than it is an affirmative defense alleging that Wells Fargo improperly handled his payments on the note. See
Moreover, Wells Fargo submitted neither evidence nor argument concerning McEntee‘s allegation that its vindictive and irresponsible conduct gave rise to emotional pain and suffering. “A party responding to a motion for summary judgment is entitled to take the motiоn as the moving party frames it.” Reiswerg v. Statom, 926 N.E.2d 26, 30-31 (Ind.2010). Wells Fargo argued that depositing McEntee‘s postdated checks was not a basis for recovery, that it was entitled to foreclosure under the terms of the note and mortgage, and moved for entry of summary judgment on its claims and those of McEntee. Yet Wells Fargo designated no evidentiary materials to support its motion for summary judgment on the counterclaim. McEnteе‘s counterclaim for emotional pain and suffering was therefore not properly before the trial court for disposition on summary judgment, and the court erred when it entered summary judgment against McEntee on this claim.
Conclusion
The trial court erroneously entered summary judgment in favor of Wells Fargo on its foreclosure claim because Wells Fargo failed to establish that there was no genuine issue of material fact as to the allegation that McEntee had defaulted on the note. The trial court‘s entry of summary judgment in favor of Wells Fargo on McEntee‘s counterclaims was also in error because Wells Fargo did not establish the absence of a genuine issue of material fact as to McEntee‘s affirmative defense, and because McEntee‘s counterclaim concerning emоtional distress was not properly before the trial court at summary judgment. We therefore reverse the trial court and remand this matter for further proceedings.
Reversed and remanded.
ROBB, C.J., and MATHIAS, J., concur.
TOWN OF ZIONSVILLE, Indiana, and Zionsville Plan Commission, Appellants-Defendants, v. HAMILTON COUNTY AIRPORT AUTHORITY, Appellee-Plaintiff.
No. 49A05-1107-PL-374
Court of Appeals of Indiana.
June 20, 2012.
Rehearing Denied August 8, 2012.