*1 construed, contract, like other and is to be import of

contracts, to the fair according § 4 I.L.E. Bonds used.” language

(1958). limitation of the extent or And the parties “due

liability by incurred import of its by legal fixed

bond is conditions, con- which should be

terms and ordinary and rea- to the according

strued em- language meaning of

sonable ex rel. (citing Lane v. State

ployed.” Id. 43 N.E. Ind.App.

Taylor,

(1896)). that the specify of the bond

The terms

$7,000 for- would be posted Germann fail to only if Bowen should

feited Because the trial court.

as ordered appear, Ger- no such failure to

there was $7,000 return of the motion for

mann’s granted.

should have been reverse.

We KIRSCH, J.,

BROOK, C.J., concur. EQUITY CORPORA- HOME

CENTEX Mortgage Cor- Nova Credit

TION f/k/a

poration, Appellant-Plaintiff, Century ROBINSON, Cellular

David S. Indiana, Depart-

Network, State Revenue, Com-

ment of

panies, MNC d/b/a Richmond, NA, Appellees-

Bank One

Defendants, Sharaya, Appellee-Movant.

Hani

No. 49A02-0110-CV-644. Appeals of Indiana. 18, 2002.

Oct. *3 related was recorded on Oc-

tober 1996. apparently Robinson de- payments faulted on his Mortgage, to FT 2, 1997, and on October FT Mortgage filed County foreclosure action in Marion Su- perior Among defendants named in its action was Cen- Robinson, however, tex. filed for bank- Lauck, Kroger, James G. Gardis & Re- ruptcy on December and the trial IN, gas, Indianapolis, Attorney for Appel- court either stayed dismissed or lant. *4 gage’s foreclosure action on December 1997. Palmer, IN, George Indianapolis, E. At- Appellee

torney Sharaya. for Hani FT reinstated Mort-

gage’s April 7, action on 1999. The same day, OPINION filed Centex its own foreclosure action County Superior Marion al- BAILEY, Judge. leging Robinson’s default on the second Summary Case mortgage. Robinson, Centex named FT (Cen- Corporation Equity Mortgage, Centex Home and other creditors record as tex), grant appears the trial defendants. It appeals court’s of Hani that neither Rob- inson Sharaya (Sharaya)’s Mortgage nor FT Emergency responded Motion to to Cen- Sale, complaint, 9, 1999, tex’s Judgment July Set Aside and on Supe- and Sheriffs which rior mortgage set aside a Court 10 entered In Rem Default judgment Judgment in favor of as well and Decree as the of Foreclosure for the against Sheriffs sale of Robinson FT mortgaged Mort- Sharaya. gage $30,582.68.1 decree, property to We affirm. In the trial court found that FT Mortgage inwas Issues default, and declared that Centex was enti- The before issues us are whether the tled to an in rem judgment against properly set Centex’s defendants in the amount of its mortgage judgment and the resulting lien. specifically The trial court concluded sheriffs sale. Centex’s was “first lien History Facts and Procedural upon the real estate.” The trial court thus 15, 1996, On March David Robinson ruled Centex’s mortgage lien foreclosed (Robinson) obtained a loan from FT Mort- all of the defendants. The decree (FT gage Company Mortgage), specified which was the judgment was to be sat- mortgage secured on isfied Robinson’s through Sheriffs Robin- property located 6219 East 46th Street son’s property, proceeds applied to be in Indianapolis, Indiana. FT Mortgage re- to satisfy the costs of the corded mortgage April on creditor, the claim of another Robinson borrowed additional funds from and the state’s tax Although lien. Centex on October 1996. This loan was decree recited that Centex was entitled to also secured property, Robinson’s against FT Mortgage, it made defendant, Richmond, unknown, 1. Another Bank One this case is was also defaulted. NA, entity specific relationship whose Department’s properties list ing survival or satisfaction mention of the no auction, which monthly did interest in the be sold at FTof regarding sale.2 contain information the sheriffs through sale, Following the Mortgage’s mortgage. 6, 1999, a Notice Sheriffs August On for the Sharaya given a Deed was Sheriffs issued, prop- indicating Sale repeated verbatim lan- property, 15, 1999 September on erty would be sold the Notice of Sale guage from Sheriffs judgment. Despite satisfy Centex’s the property indicating declined defend fact that Mortgage. in favor of FT mortgage and was de- its interest Sharaya attorney, appar- called Centex’s faulted, prop- that the provided Notice he on the ently because was identified in favor “[sjubjeet erty was Deed, and asked about Mort- Sheriffs Companies MNC FTof d/b/a The property. attor- gage’s interest 15, 1996 re- March Mortgage dated ney Sharaya to contact Mort- 3,1996 advised 96- No. April corded Instrument attorneys to discuss the matter. gage sum of original principal deed, Sharaya pos- took $35,000.00.” notice then recorded The contents of the property, rented *5 session published. were tenant. Mortgage FT amended point, At some 11 complaint Superior Court

its 21, 1999, Mortgage’s FT On December the existence Centex’s action to reflect attorneys Sharaya, advising to that wrote 31, August July judgment. On Sharaya now held title to they were aware publishing No- and the issuing after property, Sharaya’s and to inquiring the as to related tice of Sheriffs Sale Centex’s regard Mortgage’s with to FT intentions Superior the Court 10 own in judgment Sharaya mortgage. apparently offered action, FT Centex answered matter, response but received no settle the Superior in complaint the Court amended Mortgage attorneys. FT or its from alleged action. 11 foreclosure mortgage the its that it held on Supe- answer trial May judge the On the ac- and property, asked an and De- Agreed 11 entered rior Court rightful and priority, its cord Centex’s lien Entry and Decree of Judgment fault provide for the lien’s satisfaction FT Mortgage’s foreclosure Foreclosure proceeds any sale through Despite fact that the interests action. the judgment. from the trial court’s and property former owner Robinson mortgage holder Centex former second 15, 1999, September Sharaya bought On extinguished were property apparently the $29,000 at auc- property for Robinson’s judgment the by virtue of foreclosure County by tion the Marion Sheriffs held sale, former judgment the recited Department. Sharaya was not aware of well sec- property Robinson as owner purchase the lien at the time of agreed holder Centex ond title he had not conducted a because estate, entry judgment Robinson in the real prior purchasing search $41,778.82, was to be amount of he learned of the and because had sale Al- notice, property. of the but visit- satisfied by reading public purchased prop- though Sharaya had department and consult- ing the Sheriffs set aside. is no in the record that There indication attempted have Mortgage has ever earlier, nearly appar- 8, 2000, months erty eight August Sharaya On filed his ently leaving Robinson no interest in Emergency Motion to Set Judgment Aside estate, although both real in Superior and Sheriffs Court Sale were Mortgage aware seeking 9,May to set aside the purchased the Sharaya' property and had agreed judgment in favor of FT Mortgage, with Sharaya were in after communication the resulting May 2000 Sheriffs purchase, Sharaya no one advised sale. Although Sharaya’s the title of mo- Mortgage’s pending about FT tion indicated Sharaya seeking action, Sharaya was not added as Superior have Court Further, party. while had aside, appears action set it Sharaya complaint point at some amended approved validity Superior of the 1999, apparently August purpose Court but wanted matter acknowledging the existence of Centex’s stayed Superior until the July it does not particular, could be set aside. Sharaya complaint that FT amended argued in questions his motion that all again property to reflect the fact that the regarding on Robinson’s default his mort- to have had been sought already sold and all gages actions for foreclosure on the purchased by Indeed, party. third there real estate should litigated have been to- is no in the record that indication gether, and action should have Centex, attorneys Mortgage, for FT proceeded because else, anyone judge in Superior alerted the FT Mortgage, the first party to seek fore- Court 11 to the fact that the had closure, had filed its action in that been and that new own- court. sold *6 of, er given Sharaya accordingly had or been notice added as asked the judge in to, Superi- pending defendant the action in Superior Court 11 to set the judg- aside or Court 11. enjoin ment and to FT Mortgage from taking possession of the until the 15, 2000, just May days

On five after matter could be resolved. Superior Court 11 agreed entered the property was again the sold at Sharaya proceeded then file to another County the monthly Marion Sheriffs auc: Emergency to Judgment Motion Set Aside tion, Mortgage. time to FT this There is 9, and Sheriffs August Sale on 2000 in the ho in evidence the record that suggesting Superior Sharaya Court 10 action. again the Department published Sheriffs the argued that there should never have been sale, requisite notice the that public or separate parallel two to actions foreclose Sharaya notified the sale. At some separate on two mortgages related to the point 15, sale, someone, May after estate, same real but rather both that fore- presumably FT Mortgage, attempted to closure proceeded claims should have to- Sharaya’s evict tenant from the property. gether Superior Court Sharaya ll.3 There no indication in the that is record accordingly asked the trial prior court to set Sharaya given or tenant was 9, the July notice of the eviction. It is if aside judg- unclear completed. eviction was Centex, ment favor of as well as the August 3. motions filed Au- gether Superior his two 8 and Court 11 because FT Mort- 2000, 9, gust Sharaya appears to have mixed gage mortgage held the first on the Superior his references to Courts 10 and first, had appar- and filed its action remains gist places, argument, in certain but the of his ent. proceeded that the actions should have to- Sharaya did not know of FT through ground sheriffs property. first lien when he Sharaya bought Mortgage’s trial bought property. The court 22, 2000, Mortgage August Around 23, May on Sharaya’s motion 2001. granted to set aside responded Sharaya’s motion 2001, 18, filed a motion to On June Centex 9, judg- Superior Court the June court heard the mo- correct errors. The arguing FT Mortgage, in favor of ment 20, 2001, denied it on August tion on have intervened in Sharaya should 4, appeals. 2001. September property, interest in the protect his case so, had Sharaya to do by failing and that and Decision Discussion judg- right challenge waived his Review Scope A. Standards of held apparently Superior

ment.4 Court on Sharaya’s motion hearing denied by the trial We note that the decision 24, is indication August 2000. There no denying judge Superior Shara- deci- Sharaya appealed the record to set aside FT ya’s motion sion. judgment, and the May 2000 foreclosure Superior 10 set-aside Sharaya’s sale, resulting May 2000 Sheriffs has quickly. not On request proceed did is appealed not been apparently to the responded October Our review limited de- issue here.5 motion, arguing Sharaya knew termining the trial court Mar- whether of the existence of have known should Superior properly Court 10 set County ion purchased when he Mortgage’s mortgage July 1999 foreclosure Sharaya should property, resulting September judgment and intervened in FT have sale. 1999 sheriffs protect property. his interest judg motion for relief from A Court 10 heard judge The 60(B) Trial Rule is entrusted ment under hear- May During motion on court, discretion set sound Sharaya asked the trial ing, reweigh the evidence may and we neither resulting Sheriffs sale on aside the *7 despite Mortgage's Mortgage's the case as a defendant response 4. FT fails to mention Mortgage's attorneys apparently knowledge Sharaya was the rec- specific fact notify pending ac- Sharaya about the did not as a result the property of ord owner agreed See, tion its intention seek Hufty, or of e.g., Armstrong prior v. 156 sale. judgment, and not add him a defen- (1899) did (stating the N.E. Ind. dant, despite having fully aware Shar- been of necessary indispensably general that it rule having aya's in been interest the upon a real the of in the time in with him between communication mortgaged party whom the estate that the agreed the date of the Sheriff's sale the conveyed party made a been be has judgment was entered. him). as to will void or the foreclosure Similarly, we here determine whether cannot whether, accordingly may We decide not Mortgage's resulting foreclo- the sale from FT Mortgage's given lien as the status of FT pub- lack of judgment was defective for sure in Centex's foreclosure result of its default being days just five or for held lished notice below, the which will be discussed entered, light of judgment after by trial erred (d), 32-8-16-1 Indiana Code section Mortgage's foreclosure failing to set aside FT advertise a sale provides that a sheriff must resulting ground judgment and the sale on by publication each week for three suc- once may they were voidable. Nor we decide may newspaper, and in a cessive weeks local judgment Mortgage's foreclosure whether FT thirty proceed property until to sell the by Sharaya of as to virtue was otherwise void publication. days elapsed the first have since Sharaya was added to the fact that never judgment nor our for that of the substitute foreclosure judgment. Pursuant to Trial Gas, 60(B), trial Oil & Inc. court. National v. may Rule a trial court relieve a (Ind.Ct. Gingrich, 716 N.E.2d party judgment from a a variety of App.1999). considering When Trial Rule essentially reasons, equitable provided in 60(B) motion, weigh a trial court must the most cases that the party seeking relief alleged inequity by that would result allow defense, has meritorious and that ing a judgment to stand the inter time, request is filed within reasonable party ests of prevailing judg year certain cases within one of judg- ment, society large as well as those of at ment. Centex advances several argu- finality general. of litigation Id. We support position ments that the may only reverse the trial court’s decision trial court setting erred aside fore- if opposed by is squarely decision judgment. particular, closure In logic effect of the facts and circum Sharaya’s contends that motion was filed stances. Id. late, Sharaya too had no meritorious defense, equities and that the did not favor addition, an action to fore Sharaya’s position Sharaya because should close mortgage essentially equita lien is prior have known to the sale that nature, ble in v. Smith Federal Land property was Louisville, Bank 472 N.E.2d lien. We agree that the trial court should (Ind.Ct.App.1985), courts have not have set aside Centex’s foreclosure equitable considerable discretion to set judgment, but for reasons different than of property sales from those advanced Centex. their foreclosure judgments. Newhouse v. Nat. Shelbyville, Farmers Bank 60(B) Trial Rule specifically (Ind.Ct.App.1989). A trial provides may that a trial court relieve “a court should not hesitate exercise its party” from a final judgment. This gener equitable authority to aside a set sheriffs ally means that party one who is not a to a gross inadequacy where there is a judgment may not have that set price fraud, showing or ir circumstances aside unless he intervenes in the action regularity great unfairness. National pursuant to Trial Rule 24. Lawyers See Inc., Gas, Oil & 716 N.E.2d 495. When Title Ins. Corp. Lathing C & S determination, making this the trial court Co., 1156, 1158(Ind. Plastering 403 N.E.2d factors, will variety consider a including Ct.App.1980). The at issue here price paid, procedural ir effect was entered against the debtor Robinson regularities, misap evidence of mistake or and first mortgage lien holder Mort prehension, presence of inequitable *8 The gage. judgment was not entered conduct, problems with title to the against Sharaya, who a party was not to purchased property. Id. at (citing time, case the at the appar and who has 27). Newhouse, 532 The ently never to sought intervene the ac regard court’s decision in this is entitled to true, It noted, tion. is as this Court has significant deference, and will not be re that one purchases who a property at a versed absent abuse discretion. Id. foreclosure sale a “quasi party” becomes to by the foreclosure action subjecting him Analysis B. equitable jurisdiction self to the and au Judgment

1. The thority of the trial court. Realty Union argues Older, that the trial court Greensburg Co. v. 97 Ind.App. erred it (1933). when set aside its July 185 N.E. This does Superior however, Court 10 while mean, purchasing that the not to) (or action, need standing any has the real involving has foreclosure same party judgment foreclosure relief from the seek parties, pending and the was estate same American Loan & Kneeland itself. County in Marion 93-94, Co., 10 S.Ct. U.S. Trust that fore- Sharaya argued below Centex’s (1890), case cited the L.Ed. 379 resulting closure the case, Realty Co. the Union should have been set aside because Centex explained Supreme Court States United its required was to seek foreclosure of rights purchaser’s a foreclosure sale that conjunction with Mort- mortgage action extend foreclosure party action. gage’s pending foreclosure Cen- sale. Be- questions arising after position mortgagee tex’s that should is party not Sharaya was cause compelled not its lien sim- be foreclose it at the time was foreclosure ply mortgagee because another chooses to and never intervened entered As be party’s foreclose lien. will from the standing to seek relief he lacked below, fully agree more we with discussed the trial court therefore obligated pursue Centex that was judgment aside.6 not have set the should just mortgage of its be- foreclosure sought to foreclose its cause 2. The Sale Sheriffs lien a defendant and named Centex as standing to chal- Sharaya had no While However, agree also action. we judgment, he lenge Centex’s Sharaya that because Centex elected relief from the entitled to seek clearly foreclose its while previously not- As sale. sheriffs gage’s action claims pending, equitable ed, has considerable a trial court joined in FT Mortgage’s should have been result- set aside sheriffs sales discretion to claims of all who had an so judgments from the court’s ing adjudicated single could interest procedural irregularities, involving in cases action. misapprehension, inequitable or mistake conduct, problems. National title See begin recognizing We Inc., Gas, 496. The & 716 N.E.2d at Oil 13(A)provides Trial Rule as follows: September set trial court sale, explain did not 1999 Sheriffs but state as counter- pleading [a] shall record, doing The howev- reasons for so. any which at the time claim claim er, irregularities with various replete is pleader has serving pleading court’s exercise amply the trial justifying if any it arises opposing party, equitable discretion to set aside the of its transaction occur- out of same sale. subject matter rence Concurrent a. Centex’s re- claim and does not opposing party’s Action Foreclosure presence parties quire the third jurisdic- acquire cannot above, whom filed explained As tion. County in Marion foreclosure action *9 section, pending. this means that Centex's following explain we Whether 6. In from the foreclosure have been set sheriff's should Cen- properly was set aside because may question we not ad- aside as void ais sought have to foreclose tex should not challenge by party of a a in the absence dress mortgage separate action while standing. proper with action gage's was earlier-filed general, action,7 such claims must asserted Mortgage’s earlier-filed foreclosure action, they are the initial barred. and strictly Centex was not obligated by 13(A) McCullough, See Estate pursue Trial Rule its foreclosure of (Ind.Ct.App.1986). Centex’s 1095-96 in Mortgage’s Rather, claims FT action.8 not, however, were foreclosure claims com- Centex appropriately could have chosen Trial pulsory under Rule counterclaims not to foreclose its at that mortgage time. 13(A). First, while filed a Centex foreclo- mortgagee While one is not sure and named FT action necessarily obligated under Trial Rule defendant, exactly Centex did not have 13(A) to foreclose its mortgage simply be Rather, FT against Mortgage. claims cause mortgagee another has sought rem, inwas and FT Mort- Centex’s action foreclose own lien and named the mort only gage party pur- named as for gagee aas defendant in its two poses providing Mortgage FT of separate foreclosure involving actions opportunity to answer as to its interest same parties the same Moreover, property. to the extent should not proceed simultaneously in two against Centex had claims different Supreme courts. Our Court has respective priorities relating to the of the explained that liens, parties’ those claims did not arise out leading [o]ne of the purposes of a suit to of the or occurrence that transaction foreclose a is to secure such a Mortgage’s matter of FT fore- will plaintiff decree as enable the to sell meaning closure within the action Trial all the right title his mortgage 13(A). Rule Two causes action arise covers, and enable purchaser at the from the same transaction or if occurrence sale to ascertain what it title is that he logical relationship there between buys. end, attain To it is necessary them, which exists when the counterclaim that all the claims against held the mort- aggregate opera- arises out the same gaged premises adjusted should be party’s tive the opposing facts as claim. one spirit suit. This the of our Code v. Citizens Bank Western Ratcliff requires, Indiana, ample for provision makes (Ind.Ct.App. 768 N.E.2d 2002). Here, for bringing all the parties interested operative facts giving into court. The salutary rise to FT rule is a foreclosure action one. repress It gives were tends to litigation, Robinson’s default on his loan with confi- records, operative public dence to Mortgage, respect while the facts secures decrees, giving judgments rise Centex’s action involved and invests under Robinson’s default mort- sheriffs sales with strength and certain- Thus, gage. ty Centex’s foreclosure claims does much to promote the inter- compulsory were not counterclaims ests of both debtor and creditor. would, against Mortgage 7. Centex’s claims dants in FT because course, permissive have been counter- parties co-parties, those were and not 13(B), pursuant claims to Trial Rule opposing parties, potential and Centex’s provides may pleading state "[a] as a against claims Robinson other defen- any against opposing counterclaim claim dants would have been cross-claims if party arising out of the transaction or brought Mortgage's in FT bring- action. The subject-matter occurrence that is the ing of permissive cross claims is and not opposing party's claim.” 13(G); compulsory. T.R. Consolidated Rail Cos., Corp. v. Additionally, Travelers Ins. 466 N.E.2d obligated Centex was not (Ind.1984). defaulting assert its claims mort- gagor any Robinson or of the other defen-

945 finally disposed of until the case Dalton, Ind. 4 N.E. elusive 105 v. Craighead ” v. Pivarnik also, appeal v. otherwise.’ (1886). e.g., on O’Brien See 426 Co., 636 Indiana Public Service Northern 660, N.E. 617-18 133 Ind. Moffitt, (Ind.1994) Co., (quoting State N.E.2d (1893); Ry. & Power Angola Pilliod v. Al (1910). International Harvester Co. ex rel. 719, N.E. Ind.App. Ct., 175, 352 N.E.2d 265 Ind. len Cir. typical rule has general that this It is true (1976)). are Two cases the same when context of discus expressed in the ly been subject matter and remedies parties, the to set obligation regarding party’s sions the in both substantially are same sought have in may she any interest he or up will outcome of one such that suits response a foreclosure com adjudication of the other. See affect con and the plaint involving property, 134; Elec. Michigan id. Indiana interest for failure loss of that sequent Inc., Industries, v. Terre Haute Co. And in a fashion.9 id. timely See assert (Ind.Ct.App.1984). filed an answer recognize Centex we complaint, Mortgage’s FT foreclosure Here, parties in the ac- foreclosure includ allegations, Mortgage’s FT denying by FT and Centex filed tions FT priority regarding ing those respective plain- similarly consist of lien, its requesting Mortgage’s Robinson, tiffs, the other the debtor rightful priority be accorded its own lien addition, the sub- of record. creditors judgment. foreclosure Centex the court’s matter, identical, is substan- ject while not setting up lien preserved by its adequately Robin- Both cases involve tially similar. above, answer, and, was not as noted respective under alleged default son’s the foreclosure strictly obligated to seek parties’ respective mortgages and the of the commence own lien virtue their and satisfaction of priority claims of action. ment Finally, remedies respective liens. passage expressed take the rule We largely overlap. in both actions sought mean, however, that once above to cited sought each mortgage, decided foreclose its respective mortgages, of their in conjunction so obligated to do it was priority trial court’s declaration pending foreclosure liens, the sale of Robinson’s all action. liens. satisfy respective by FT actions filed The two foreclosure mech procedural The modern were thus substan- Mortgage and Centex irregulari kind correcting this anism for tially the same case. 12(B)(8), permits Trial ty is Rule however, action “[i]f of an action same trial court dismissal asked the party, No any state of this pending another court action for this or dismiss Centex’s [is] 12(H)(1)(b) pro- two recognizes The Rule state.” rule reason. Trial other of ... the same may simultaneously exercise defense “[a] courts vides in another state court jurisdiction over amounts to the same pending what Rather, courts to the extent constitu- two or more state is waived “[w]hen case. ... if it is neither tionally permissible the same jurisdiction over have concurrent includ- motion under this rule nor case, first made jurisdiction of ‘the amend- responsive pleading or an in a is deemed ex- ed jurisdiction such acquiring action. in Centex's foreclosure below default point related will be addressed 9. This Mortgage's regarding our discussion *11 946 made as a b. FT

ment thereof to be matter of Default in Centex’s Foreclosure Action questionable It is whether a trial course.” jurisdiction lack over a case be- court’s pursue Centex’s separate decision a is in pending the same action anoth- cause action, simultaneous foreclosure validly trial court be er state could waived failure of'any party bring improper this that two state trial courts such could si- Superior situation to the attention of Court multaneously entertain same case. 10 so that action Centex’s could be dis- Supreme suggested in Pivamik missed in in pending Our favor 11, spawned variety may appropriate. that such waiver be procedural irregularities additional similar- n. (questioning, but not ly justifying setting aside of Centex’s deciding, parties whether “may certain particular, In foreclosure sale. be as will waived have their own defense under Trial below, fully more FT Mortgage’s discussed 12(B)(8) ... by failing Rule to raise it lien extinguished was as a result of together with their motions to dis- in Mortgage’s default Centex’s action. ”). addition, .... miss this court ad- The trial recognized court this fact party’s argument dressed that a Trial judgment defaulting FT rul- Mortgage and 12(B)(8) objection Rule had been waived ing that mortgage was the most lack without specificity, for questioning Thus, senior purported lien. sale of waiver, potential implication of such property subject as to FT Mortgage’s Trunk R. v. Kapitan, Grand Western Co. lien improper, was and the trial 363, (Ind.Ct.App.1998). 698 N.E.2d 365-66 entitled to recognize this and to set issue, however, Waivability of the would equitable discretion.10 very purpose contravene above, As noted when a party rule, prevent which is “to two courts is made a defendant to answer to his inter concurrently entertaining from the same est in a that is of a Apartment case.” Co. v. Crawfordsville mortgage de he must Co., (Ind. Key Trust 692 N.E .2d fend property, his interest in the may or it this, Ct.App.1998). And in case such as Craighead, lost. See Ind. waiver of the issue of the second court’s O’Brien, 426; N.E. 133 Ind. jurisdiction general would defeat the rule N.E. party’s 618. A default under that all claims held a property such “ought circumstances to be construed adjusted single should be in a action. as an admission that at the time he failed question We need not decide the today. appear, required, he had no interest enough It is purposes recognize our O’Brien, question....” pursuit Centex’s simultaneous of what 133 Ind. N.E. 618. As this amounted to the case that same ago, Court noted long gage already had filed another court proceeding [a] foreclose a sufficiently irregular to warrant and, essentially rem; proceeding equitable exercise of the trial court’s dis- character, in actions of this which seek cretion to set aside the sheriffs sale. right establish a or interest To the extent that Centex’s foreclosure be academic. include We il here to demon- upon could be set aside as void propriety strate the of the trial deci- court's by party proper standing, motion light sion to set aside the sale in of the situa- regarding discussion the sale from presented. tion necessarily would

947 426, matter it is desirable as a subject-matter of the N.E. 425 is thing which public that a policy made de- of sound foreclosure parties all are litigation, who thereto, prior a to a mort challenged and sale of fendant rights, an valuation proceed upon therein to assert their accurate gage plaintiff existing a also every bring then maximum amount. See to assert are bound § plaintiffs supra, 7.12. For this Whitman, which would defeat fact Nelson & reason, a action, it is mort appropriate and are forever concluded senior of the be as favor to included defendants finding gagees facts, by junior this has brought to actions plaintiff as all such foreclosure state, See, case mortgagees! e.g., Temple law in since the Masters v. been (1884) Fischli, 360, ton, 447, 12 that (explaining v. 1 Blackf. Ind. 451 Fischli 92 necessary par are not mortgagors Dec. 251. senior Am. may prop ties to a foreclosure but Co., 46 Angola & Power Ry. v. Pilliod their be made to answer to erly defendants (Ind.Ct. 91 N.E. 832 Ind.App. interest). to It make little sense would Clay Wright, See App.1910). also mortgage hold permit ostensibly an senior (noting (Ind.CtApp.1994) respond to to decline to a foreclosure er made a defen- party a who had been that complaint solely on the basis of the seniori action prior mortgage in a foreclosure dant Supreme party’s lien. As our ty raising any question estopped from was Masters, stated in litigated was or could have been that action). foreclosure follows, course, any if one It as of that he party, has an interest is made a who FT Mort suggests that interest, assert and maintain his must obligated respond strictly was not gage since, otherwise, to hold would be complaint in order foreclosure to Centex’s making party him was declare seniority of its hen. There to maintain unmeaning empty an form. merely authority general propo supporting if a very take to be clear We junior mortgagee’s that a sition into person may properly brought lien of a rights cannot affect the be, adju- there and should may, case Miller, mortgagee. Bateman v. senior See If this determining rights. his dication (1889) Ind. 21 N.E. true, perfectly it is useless be not then the title of (recognizing general, It bring equally him court. seems relates purchaser at a foreclosure sale are to be investi- rights clear that if his mort back to the date of foreclosed merely all and not it must be gated, general This rule accounts for gage). that must receive consideration. part security is junior mortgagee’s that a fact any prior property subject existing Thus, named as Ind. at 450. once encumbrances, purpose because the action, Mortgage defendant give fore general is respond. obligated to was purchaser essentially the same closure not, and defaulted. did possessed by land title to the as that even suggests Centex further when the mortgagor foreclosed required to answer if FT was executed. See GRANT S. Nelson & so complaint, complaint was drafted A. Whitman, Real Estate Finance Dale (4th ed.2001). Nevertheless, Mort any part of FT § default on 7.14 Law as operate a forfeiture Supreme recognized gage would not our foreclo- 4 FT interest. Centex’s quoted Craighead, from passage above complaint sure contained the following Anderson, al- in the complaint. Barton v. legation pertinent (1886). lien: Ind. 4 N.E. As our Barton, Supreme Court explained 7. FT MORTGAGE COMPANIES how- ever, this particular MNC MORTGAGE is rule has a application included d/b/a *13 party by herein as a defendant virtue cases like this: March dated 1996 and applicable, however, As ato suit to fore- April 1996 as recorded Instrument close a mortgage, and other kindred 96-48735, original in the principal No. suits in the nature of a proceeding in $35,000.00. sum of rem, party where a is made a defendant (App.9.) requested the following supposed answer as to his possible, or undefined, relief: but unknown or interest that, the property, we think as against A. It have and recover of the Defen- him, ROBINSON, a default dant, rem, ought to be construed judgment, in as that, an admission at the time principal Twenty-Three amount of he failed required, as Thousand Five Hundred he had no Twenty-Nine interest ($23,529.19), property question, and plus Dollars in- and hence as 19/100 conclusive charges specified any prior terest and other as claim of interest day October, the Note from the 11th or title plaintiff. adverse to the Any all expenses rigid and incurred less rule by Cen- might, construction and by tex which are secured in many would, Note and cases doubtless defeat including Mortgage, attorney reasonable very object properly had in view fees and costs herein. making party a defendant to answer supposed as to his possible B. interest in The Court enter its Order declaring involved, the property liens, to the end that validity priority and all all in- claims to or against such property might upon terests and claims the real estate adjusted by the final judgment or described hereinabove. decree, and litigation further thereby C. The Court enter its Order foreclos- avoided. ing the lien of the Mortgage held CENTEX, and foreclosing barring 104 Ind. 4 N.E. 420 at 422. We think equity the interest and redemption in that under modern rules of plead- notice the real estate described hereinabove of ing, allegations placed Centex’s the validi- defendant, ROBINSON, per- and all ty, priority, and amount of FT Mortgage’s claiming through sons him. issue, lien in and were sufficient require FT Mortgage D. The Court enter its Order to answer to directing whatever inter- subject est it property. sale of the real had Having estate. failed so, to do its lien extinguished. was (App.10.) argument appears Centex’s to be allegation regarding FT Mort- goes on to assert that the trial gage’s lien and its request that the trial court’s carefully preserved FT court declare validity and priority of Mortgage’s lien despite its default. This is liens, all of the other constituted simply not the case. an allegation Mortgage’s that FT lien in granted trial court Centex an in judg- rem priority fact had over Centex’s lien Robinson, such ment against judg- entered that FT Mortgage’s default could not de- ment default against FT Mortgage. feat its disagree. lien. We As a general The trial court expressly ruled that Cen- rule, a party’s only default is conclusive tex’s upon was “a first lien to those matters that are properly averred Real Estate upon any proceeds as well as this, and the purported In other nized sale.” from the Sheriffs derived to FT hen words, court ruled that Centex’s the trial lien, demonstrating These improper. irregularities, senior the most resulted, understood warranted the properly confusion the trial validity complaint placed money of the sale. The setting directly lien paid of FT for the at the sher- priority Sharaya prop- The trial court ordered returned to at issue. should therefore be iffs sale sold, proceeds to be and directed the erty him. partic- the other to Centex and distributed Affirmed. holders, but not to lien

ipating *14 default- judgment plainly thus The gage. NAJAM, concurs. J. its lien. extinguished and Mortgage FTed ROBB, J., part in and concurs in result nature of the Despite the unmistakable opinion. with part separate in dissents FT judgment regard to trial court’s lien, advertising the the notice Mortgage’s ROBB, part in Judge, concurs in result evidently that the indicated sale Sheriffs part. in and dissents subject to FT to be sold property was so, I doing dissent. In respectfully I addition, In the Sheriffs Mortgage’s lien. procedural difficulties acknowledge indicating that language contained deed case; are significantly, most that there this subject cases, we have before two inter-related but light In of the fact that lien. gage’s Moreover, all one. not appeal only us on for Mortgage FT court had defaulted trial parties involved in this the relevant are of the conse- appear, which had failure Mortgage appeared to FT has not appeal; Mortgage’s of the forfeiture of quence acknowledge interests. I its also defend lien, have concluded the trial court could missteps in the trial courts: procedural cir- apparent attempt the parties’ that appeal ll’s denial of Sharaya did not Court and make judgment the court’s cumvent and judgment to set aside the his motion lien was subject to FT the sale did that court. FT from setting improper warrant sufficiently action Court not the sale. aside upon to seek dismissal based either Conclusion own lawsuit or prior of its existence and conclusion, relief from default validity while of Cen- seek many respects so failure to do is judgment questionable is its tex’s foreclosure procedural quagmire. responsible have for not the fact Centex should given However, majori- to me that the action it seems separate foreclosure pursued letting Centex in- of this ty’s resolution while case— judgment the same retain its volving the same and —rewards failure; court, is, failure to seek its pending in its own parties was another lawsuit al- through Mortgage’s not redress court should have set aside opposed Court 11 as standing ready pending Sharaya because lacked judgment court, separate own lawsuit instituting how- its aside. The trial to have set procedural ever, Regardless of equitable not abuse broad Court did difficulties, lacked I believe by setting discretion aside I would of the case” and “jurisdiction By defaulting in Centex’s sheriffs sale. just part of the affirm forfeited therefore the sher- aside recog- setting trial court’s order judgment The trial lien. court’s part setting iffs sale but also 11. Unfortunately, it did not. of foreclosure. However, Sharaya when became aware of the competing judgments, he moved in 1) types jurisdiction: There are three both courts to set judgments aside the 2) matter; jurisdiction subject juris- of the because jurisdiction Court 10 lacked 3) person; jurisdiction diction of the July enter its and order particular case. In re Guardianship K.T., this, for sheriffs I sale. would consider (Ind.Ct.App. 743 N.E.2d 2001). clearly complicated This is an instance in under these unusual cir- “jurisdiction cumstances, at issue.11 case” is Jur- to be sufficient to raise the isdiction of the case refers to the trial jurisdictional further, issue and I feel that right, authority, power court’s to hear clearly this is case which granting specific decide case within the class “extraordinary appropri- relief’ would be of cases over which a court has ate. jurisdiction. matter Guardianship supreme stated, As our court has it is a K.T., A judgment 743 N.E.2d at 351. ren- “fundamental axiom law” that courts of jurisdiction dered a court which lacks jurisdiction concurrent cannot jur- exercise voidable, the case requires timely *15 isdiction subject over the same at the same objection, jurisdiction or the lack of over time. State ex rel. American Fletcher

the case is considered waived. Id. Accord- Nat’l Bank & v. Trust Co. Daugherty, 258 ingly, reviewing a court is not obligated to 632, (1972). 526, Ind. 283 N.E.2d 528 raise sponte jurisdiction sua the issue of When an action is pending before an the case. Id. court, Indiana other Indiana courts must I acknowledge challenge that no defer to that authority court’s over that made at the trial court level to the trial case. Apartment Co. v. Crawfordsville jurisdiction par- court’s to hear Centex’s Florida, Key 478, Trust Co. 692 N.E.2d ticular I acknowledge case. also that we 12(B)(8) 479 (Ind.Ct.App.1998). Trial Rule have waived consideration of similar is- implements principle by allowing dis- appeal object. sues on for failure to See missal of one grounds action on the Bank, Marengo Jones v. State 526 N.E.2d the same action pending is in another 709, (Ind.Ct.App.1988) (appellant 716 con- Indiana court. Id at 479-80. Two actions tended trial by holding court erred a are the purposes “same” for of the Rule if hearing because a related case had been parties, matter, subject and remedies court; filed previously in federal we held sought are the same or substantially the although he had raised the affirma- same. Id. at 480. The tive defense of the determination pending same action whether two court, being actions another tried differ- his failure to make a mo- ent tion to state courts prior dismiss the suit constitute the to trial same action issue). depends Ideally, upon waived the whether the outcome of one appeared would have in Centex’s action will adjudication Court 10 affect the action and moved to dismiss the be- other. case Indiana & Michigan Elec. Co. v. cause of its own case pending Indus., Inc., then in Terre Haute 37, 467 N.E.2d Subject jurisdiction 11. matter refers to the (Ind.Ct.App.2002). Because void power particu of a court to hear and judgments decide a may directly be attacked or collat- K.T., time, lar class of cases. 743 N.E.2d erally any at 351. at subject the issue of matter If a court juris does not have jurisdiction matter may cannot be waived and diction, any judgment that it renders is any point by void. raised at party the court Homes, Inc., Hoang v. Jamestown sponte. 768 N.E.2d sua Id. action. The failed to “unseemly con- An (Ind.Ct.App.1984). Reid, Ins. v. in Globe Acc. Co. two exists between jurisdiction” flict of (1897), in exam Ind.App. 47 N.E. 947 where jurisdiction concurrent courts case, validity of a default ining so over the same authority both exert appeal being from a “[t]his noted that acquiring first of the court jurisdiction default, we cannot assume State deemed exclusive. See jurisdiction is anything proved beyond what is Co. v. Allen Circuit rel. Int’l Harvester ex N.E. at Court, complaint....” 489 shown 265 Ind. v. (1976). This was reiterated Christ Jova policy prac- a matter of “As (1926), Ind.App. 151 N.E. 26 judicial noff, 84 operation of our ticality reviewing held in able to in which the court should be only one court system, general “it default is a cause of action jurisdiction over exercise plaintiff granted rule that the relief To hold otherwise particular time. any has been de a case where the defendant and chaos our create confusion would that which de faulted cannot exceed ex rel. appellate courts.” State trial and II, 151 N.E. at 30. complaint.” manded in the Hendricks Coleman (1979). 272 Ind. 396 N.E.2d Moreover, longstanding rule of it is “confu- example of the prime case is a This statements, allegations, construction supreme court refer- and chaos” our sion in a are pleading contained or admissions enced. pleader conclusive subsequently position take a party cannot avenue of resolu- seems to be no There with his contradictory or inconsistent completely to us which would tion available Ind.App. Selig, See Heck v. pleadings. these and chaos up clear the confusion *16 (1963). 118, 120-21 336, 188 N.E.2d procedural their parties have created trial lack of candor missteps and al- complaint for foreclosure Centex’s However, by affirming I believe courts. that FT was included as leged setting aside Cen- the trial court’s order “by thereto virtue of a party defendant we can come close. Set- tex’s re- March 1996 and mortgage dated in judgment Court ting aside Centex’s 3,1996 as Instrument No. 96- April corded grant- it was it with the relief leaving original principal sum it court in which ed Court $35,000.00.” Appellant at 9. Appendix begin rights should have asserted was dated October Centex’s with, appropriate this case. Cen- seems and recorded on October in FT Mort- named as a defendant tex was com- requested by Centex’s Id. The relief 11 and complaint gage’s original that the court enter order plaint was pending case when ostensibly knew of that all priority of validity “declaring entirely different own in an it filed its liens, upon the real and claims interests ” preserved court. The Court at 10. Appendix Appellant estate.... proceeds from the rights to Centex’s Thus, com- own allegations Centex’s Thus, would not property. we sale of the existence, acknowledge only plaint entirely without relief leaving lien, FT priority but also affirming mortgage by for the defaulted relief consistent requested and Centex entirety. judgment in its Court 10’s acknowledgement. with that fore- Centex’s gage’s failure part from that I also dissent import for may have some FT closure action holds that majority opinion which I but do not believe extinguished when Centex’s Mortgage’s lien was procedural default is sufficient to ex- tinguish pur- lien for all

poses. I concur in

Accordingly, result

part opinion of the which holds that the set aside the properly sheriffs irregularity because of pursuit of the same

simultaneous case already had filed in another part I from that

court. dissent of the

opinion majority which holds that property subject sale of improper

Mortgage’s hen was because the extinguished

default had I

Mortgage’s hen because beheve the hen Finally, I

remains viable. dissent from part majority opinion

reverses the trial court’s order setting I judgment.

aside Centex’s would affirm

that order and let the case be worked out it should have been all

along.

In re the ADOPTION OF Rutkowski, A.M.B. Bend,

G.W.B. & Aric IN, J. South At- torney Appellant. Gary Brooks, Appellant-Respondent, Monterrosa, Jr., Bend, Rudolfo S. South IN, Attorney for Appellee. McGee, Appellee-Petitioner. Jeremiah OPINION

No. 71A03-0205-CV-152. MATTINGLY-MAY, Judge. Appeals Court of of Indiana. Gary appeals Brooks the trial court’s Oct. judgment allowing Jeremiah McGee to adopt Brooks’ previ- two children from a marriage. ous Brooks raises one on issue appeal, which is whether the trial court erred when did not inform Brooks of his right- to during step-parent counsel adoption proceedings that could terminate