Cynthiа L. SELEME, Appellant-Defendant, v. JP MORGAN CHASE BANK, National Association, as successor by merger to Chase Home Finance, Appellee-Plaintiff.
No. 02A03-1205-MF-234.
Court of Appeals of Indiana.
Nov. 20, 2012.
Rehearing Denied Jan. 24, 2013.
299
George T. Patton, Jr., David J. Jurkiewicz, Bose, McKinney & Evans, LLP, Indianapolis, IN, Attorneys for Appellee.
OPINION
BROWN, Judge.
Cynthia Seleme appeals the trial court‘s order denying her motion for relief from judgment. Seleme raises one issue which we revise and restate as whether the court abused its discretion in denying her motion for relief from judgment following a complaint filed by Chase Home Finance LLC (“Chase“) to foreclose on her residential mortgage. We affirm.
The relevant facts follow. On January 13, 2010, Chase filed a Complaint on Note and to Foreclose Mortgage on Real Estate related to the real estate known as 6425 High Point Run, Fort Wayne, Indiana. On January 29, 2010, the Sheriff left a copy of the summons at Seleme‘s address. On February 22, 2010, the court indicated that the cause had been assigned to Solomon Lowenstein, Jr., as facilitator, and ordered the parties and / or their attorneys to attend a telephone conference on April 1, 2010, at 2:30 p.m. This order indicated that a copy of the entry was served either by mail to the address of record or personally distributed to Seleme.
On April 28, 2010, the court entered an order indicating that the parties had participated in the telephone conference on April 1, 2010, and that the conference was continued to June 8, 2010, pursuant to a forbearance plan. Thе order also indicated that a copy of the entry was served either by mail to the address of record, deposited in the attorney‘s distribution box, or personally distributed to Seleme.
On July 12, 2010, the court issued an order titled “Order After Settlement Conference,” which indicated that Chase appeared by telephone on June 8, 2010, but Seleme did not appear. Appellee‘s Appendix at 35. The order also indicated that “[t]he Settlement Conference was not conducted pursuant to a forbearance plan” and that “[t]he trial judge of record hereby certifies that the telephonе conference did not occur.” Id. According to the CCS, Seleme was notified of the court‘s July 12, 2010 order on July 14, 2010.
On September 26, 2011, Chase filed a motion for default judgment and entry of foreclosure. Chase alleged that “[t]he time within which a Defendant must appear, answer or otherwise defend has expired and has not been extended by the Court, and no Defendant has appeared or otherwise defended.” Id. at 44. That same day, the court entered a default judgment and decree of foreclosure.
On March 1, 2012, an attorney filed an appearance on behalf of Seleme. On March 5, 2012, Seleme filed a verified motion for relief from judgment.1 Seleme alleged that Chase advised her that the foreclosure action would be dismissed because Chase had agreed to a forbearance and Chase was working with her. Seleme also alleged that during the time that she made payments she was never advised that the lawsuit had not been dismissed. Seleme argued that the court file did not reflect a return of service for notice of judicial sale and that the only and last notice that she received on January 27, 2012, was a letter that the property had already been sold and deeded to Federal Home Loan Mortgage.
Seleme attached a letter from Chase dated April 14, 2010, indicating that Seleme was approved to enter into a trial period plan under the Home Affordable Modification Program. The letter indicated that Seleme needed to make payments of $610.42 by May 1, 2010, June 1, 2010, and July 1, 2010. The letter indicated that “[a]fter all trial period payments are timely made and you have submitted all the required documents, your mortgage would then be permanently modified if you qualify.” Appellant‘s Appendix at 14. The letter also stated: “Your existing loan and loan requirements remain in effect and unchanged during the trial period.” Id.
Chase filed a response to Seleme‘s motion for relief from judgment and attached a notice of sheriff‘s sale indicating that service of the sale was directed to Seleme by the Sheriff. Chase also attached a letter dated August 27, 2010, from Chase to Seleme indiсating that Chase was unable to offer her a “Home Affordable Modification because [she] did not make all of the required Trial Period Plan payments by the end of the trial period.” Id. at 24. The letter also stated: “[I]f your Loan was in foreclosure at the time of the Trial Period Plan Offer, the foreclosure process may resume without further notice.” Id.
Seleme filed a notice of additional documents in support of her motion for relief from judgment. Specifically, she attached a fax dated August 10, 2011, that included a “Making Home Affordable Program Request for Modification and Affidavit” signed by Seleme. Id. at 33-36. She attached letters from Chase dated August 30, 2011, September 30, 2011, October 30, 2011, and January 24, 2012, indicating that Chase needed additional documents to complete her request for loan modification. Seleme also attached correspondence from
On April 10, 2012, the court held a hearing on Seleme‘s motion for relief from judgment. At the hearing, Seleme‘s counsel argued in part:
[T]here was a violation of Rule 55b, regarding default, because Rule 55b specifically states that if a party has otherwise appeared. Well, even in [Chase‘s] Response they indicate that she did appear pursuant to Court order to the original telephone conference that was set by the Court. So she has appeared. So she was entitled to notice of the default.
Transcript at 8. Chase‘s counsel argued in part:
It seems that (inaudible) [Seleme] selеctively received certain documents. There was a telephonic conference scheduled pursuant to the Court‘s order on April 1, 2010. Those orders are issued sua sponte by the Court. She did participate in that telephone conference. The facilitator scheduled a follow-up one for June 8th. She did not call in for that conference. She did not return the Notice attached to the Complaint requesting a formal settlement conference. There were Notices that were issued by the Court sua sponte and not in response to her request for the settlement conference. Pursuant to 32-30-10.5-8.5 it is the return of that letter requesting settlement conference that constitutes the appearance for purposes of appearing in the matter. So I would object to the characterization that she appeared in the conference and therefore was entitled to notice of the default. The Court did not consider that an appearance, obviously, because they granted the default judgment. And, again, the law does not say that that is an appearance for purposes of a foreclosure proceeding.
Id. at 10-11. On April 24, 2012, the court denied Seleme‘s motion for relief from judgment.
The issue is whether the court abused its discretion in denying Seleme‘s motion for relief from judgment. Generally, upon appellate review of a refusal to set aside a default judgment, the trial court‘s ruling is entitled to deference and will be reviewed for an abuse of discretion. Allstate Ins. Co. v. Watson, 747 N.E.2d 545, 547 (Ind. 2001). The trial court‘s discretion should be exercised in light of the disfavor in which default judgments are generally held. Id.; see also Coslett v. Weddle Bros. Constr. Co. Inc., 798 N.E.2d 859, 861 (Ind. 2003) (“Indiana law strongly prefers disposition of cases on their merits.“), reh‘g denied. Any doubt as to the propriety of a default judgment must be resolved in favor of the defaulted party. Watson, 747 N.E.2d at 547. “Moreover, no fixed rules or standards have been established because the circumstances of no two cases are alike.” Kmart v. Englebright, 719 N.E.2d 1249, 1253 (Ind. Ct. App. 1999) (citing Siebert Oxidermo, Inc. v. Shields, 446 N.E.2d 332, 340 (Ind. 1983)), trans. denied. “A cautious approach to the grant of motions for default judgment is warranted in ‘cases involving material issues of fact, substantial amounts of money, or weighty policy determinations.‘” Id. (citing Green v. Karol, 168 Ind. App. 467, 473-474, 344 N.E.2d 106, 110-111 (1976)). In addition, the trial court must balance the need for an efficient judicial system with the judicial preference for deciding disputes on the merits. Id. “The burden is on the movant to establish ground for Trial Rule 60(B) relief.” In re Paternity of P.S.S., 934 N.E.2d 737, 741 (Ind. 2010).
The entry of a default judgment is authorized by
On motion and upon such terms as are just the court may relieve a party or his legal representative from a judgment, including a judgment by default, for the following reasons:
(1) mistake, surprise, or excusable neglect;
* * * * *
(3) fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation, or other misconduct of an adverse party;
* * * * *
(6) the judgment is void;
(7) the judgment has been satisfied, released, or discharged, or a prior judgment upon which it is based has been reversed or otherwise vacated, or it is no longer equitable that the judgment should have prospective application; or
(8) any reason justifying relief from the operation of the judgment, other than those reasons set forth in subparagraphs (1), (2), (3), and (4).
The motion shall be filed within a reasonable time for reasons (5), (6), (7), and (8), and not more than one year after the judgment, order or proceeding was entered or taken for reasons (1), (2), (3), and (4). A movant filing a motion for reasons (1), (2), (3), (4), and (8) must allege a meritorious claim or defеnse....
With respect to subsections (1), (2), (3), (4), and (8) of
To the extent that Seleme argues that the default judgment was void under
Seleme appears to argue that: (A) the default judgment was void because she was denied due process with respect to
A. Notice
Seleme argues that she was denied due process and consequently the court‘s default judgment and deсree of foreclosure were void. Seleme argues that the failure to send “any notice to [her] of the default, the actual judgment or the sale, must render this foreclosure judgment void.” Appellant‘s Brief at 10.
Chase appears to argue that Seleme waived any claim related to
In her reply brief, Seleme argues that Chase was required to serve her in accordance with
To the extent that Chase suggests that Seleme waived this argument, we observe that she argued in her motion for relief from judgment that “during this entire time of making payments and submitting all documents to Chase, she was never advised that the lawsuit had not been dismissed” and that she did not receive a copy of the motion for default judgment or a copy of the actual foreclosure judgment entered by the court. Appellant‘s Appendix аt 11. Seleme also argued that “she never received actual notice or opportunity to object to the foreclosure equitable proceedings.” Id. At the hearing, Seleme‘s counsel argued that Seleme did not receive due process of law and that the default judgment was “void.” Transcript at 7. Based upon the record, we cannot say that Seleme waived this issue.
Initially, we observe that Seleme concedes that she received the original summons and complaint from Chase.2 With respect to her argument that the failure to send “any notice to [her] of the default, the actual judgment or the sale, must render this foreclosure judgment void,” Appellant‘s Brief at 10, we note that she dоes not develop a cogent argument with respect to notice of the judgment.3 Further, with respect to the notice of sale, in the summary of the argument section of her brief, Seleme states that ”
reversal is required on this basis. We observe that the record reveals that in Chase‘s response to Seleme‘s motion for relief from judgment, Chase attached a copy of the notice of sheriff‘s sale and stated that the Sheriff of Allen Cоunty gave notice of the sheriff‘s sale of her property to Seleme. The notice referenced the sheriff‘s sale of property located at 6425 High Point Run, Fort Wayne, Indiana, and also indicated that service by the Sheriff was directed to Seleme at the foregoing address.
We now turn to Seleme‘s argument regarding notice of Chase‘s motion for default judgment. We need not determine whether subsection (6) or subsection (8) control because, under the circumstances, neither would require Seleme to allege a meritorious defense. See Evansville Garage Builders v. Shrode, 720 N.E.2d 1273, 1278 n. 8 (Ind. Ct. App. 1999) (addressing an argument regarding lack of notice of a motion for default judgment, noting that generally under
Generally, due process requires notice of certain proceedings after the initiation of a lawsuit. Moore, 582 N.E.2d at 478. With respect to notice of Chase‘s motion for default judgment,
When a party to an action appears without an attorney, the party shall give, and the Clerk shаll note on the chronological case summary of the case, a name, a mailing address and phone number of the party to which notices and communications concerning the case may be delivered and mailed pursuant to T.R. 5(B).
Seleme does not argue or point to the record to suggest that she filed an appearance form, appeared in court, or provided the clerk of the trial court with her name, mailing address, and phone number, prior to her attorney filing an appearance on March 1, 2012. Rather, she appears to argue that her participation in the first telephone conference between Chase and the facilitator cоnstituted an appearance. She also argues that “Indiana has no specific rule that says or denies that appearing at a court ordered conference is or is not an appearance justifying further legal notice.” Appellant‘s Brief at 12.
We cannot say that Seleme‘s mere participation at the initial telephone conference constituted an appearance. See LaPalme v. Romero, 606 N.E.2d 882, 884 (Ind. Ct. App. 1993) (rejecting defendant‘s claim that a telephone conversation with the plaintiffs’ counsel regarding the case constituted a constructive appearance), reh‘g denied, vacated in part and adopted in relevant part by, 621 N.E.2d 1102 (Ind. 1993), reh‘g denied; Cordill v. City of Indianapolis, 168 Ind. App. 685, 688-689, 345 N.E.2d 274, 276 (1976) (holding that neither appellant nor his attorney had made an appearance in any manner reasonably calculated to put the clerk on notice).
We now turn to Seleme‘s argument regarding
Attached to Chase‘s complaint was a “Get Help—Get Hope” notice from the Indiana Housing & Community Development Authority and its Indiana Foreclosure Prevention Network. This notice stated:
Your mortgage lender has filed to foreclose on your home. According to Indiana law, you may be entitled to a court-ordered settlement conference. This provides an opportunity for you and your lender to negotiate a “foreclosure prevention agreement” that may allow you to keep your home.
If you want to take advantage of this right, you must notify the Court of your intention no more than 30 days after this Notice was served. You may, but are not required to, notify the Court by signing this Notice where indicated and mailing or delivering it to the Court at its address shown in the Summons. You should also send a copy of the signed Notice to the lender‘s attorney at the address shown in the Summons.
Appellee‘s Appendix at 8 (emphases in italics added).9
The Indiana Supreme Court‘s online resource for mortgage foreclosures provides:
How Do I Request a Settlement Conference?
If you have received a Notice of Foreclosure from your lender, you have 30 days to request a settlement conference from the court. If you request a settlement conference, it will be scheduled for between 45 to 60 days after the date of the Notice. To request a conference, simply sign and print your name and case number on the “Get Help—Get Hope” Notice you received from your lender, and mail or deliver this Notice to the court. You must also send a signed copy of the Notice to the lender‘s attorney.
* * * * *
Important—To prevent a default judgment from being entered against you, you must file a written response with the court within 20 days from the date you received the Notice of Foreclosure, or 23 days if you received the Notice by certified mail. This written rеsponse—or “Answer“—is different from the request for settlement conference. If you do not file a written response, even if you request a settlement conference, the plaintiff may obtain a default judgment and foreclose. If you file a written response but do not request a settlement conference, the court may decide you have given up your right to a settlement conference.
Indiana Supreme Court, Help with Mortgage Foreclosures, http://www.in.gov/judiciary/selfservice/2359.htm (last visited October 30, 2012) (emphases in italics added).
Seleme does not point to the record or argue that she signed the notice attached to the complaint and delivered it to the trial court or that shе contacted the court to request a settlement conference. Rather, she appears to argue that the fact that a second telephonic conference was scheduled alone constituted a request for a settlement conference under
We observe that the court‘s February 22, 2010 order, which indicated that the cause had been assigned to Solomon Lowenstein, Jr., as facilitator, and ordered the parties and / or their attorneys to a telephone conference on April 1, 2010, at 2:30 p.m., stated:
The Facilitator shall file a report with the Court not later than 21 days from the date of the Telephone Conference informing the Court of the status of the foreclosure proceeding, including whether a Settlement Conference was requested, who attended the Telephone Conference; the date of the Settlement Conference; and any requests made by the Facilitator.
Appellee‘s Appendix at 32 (emphasis added). Based upon the emphasized language above and the record, we cannot say that the initial scheduling of a telephone conference was based upon or in response to a request by Seleme for a settlement conference.
The April 28, 2010 order titled “Order After Telephone Conference” merely indicated that the parties had appeared by telephone and that the telephone conference was continued to June 8, 2010, pursuant to a forbearance plan. Id. at 34. While the July 12, 2010 order was titled “Order After Settlement Conference,” the order did not indicate that Seleme had requested a settlement conference. Id. at 35. Rather, the order indicated that Seleme did not appear and that the settlement conference was not cоnducted, pursuant to a forbearance plan. Thus, even assuming that
We cannot ignore that “the law in this jurisdiction is well settled that a litigant who proceeds pro se is held to the same established rules of procedure that trained counsel is bound to follow.” Rickels v. Herr, 638 N.E.2d 1280, 1283 (Ind. Ct. App. 1994). Mindful of this principle, we cannot say that the trial court abused its discretion in light of the facts that Seleme did not file an appearance form prior to Chase‘s motion for default judgment, appear befоre the court, or request a settlement conference.
Based upon the record, we cannot say that the trial court erred by denying Seleme‘s motion to set aside the default judgment on this basis. See King v. King, 610 N.E.2d 259, 263 (Ind. Ct. App. 1993) (holding that the defendant was not entitled to notice where she did not enter a pro se appearance, did not cause a new attorney to act on her behalf, did not answer the complaint, and did not assert an interest in any possible wrongful death proceeds), reh‘g denied, trans. denied.
B. Chase‘s Actions
Seleme appears to argue that Chase‘s actions constituted fraud or misrepresentation that resulted in her excusable neglect and an accord and satisfaction. She argues thаt Chase procured the judgment unfairly, that Chase informed her that the suit would be dismissed and engaged in payment arrangements, and that the mere fact that she proceeded pro se and did not enter a written appearance “should not subvert the clear intent and purpose of Trial Rule 55 or all of the remedies under Trial Rule 60(B).” Appellant‘s Brief at 9. Without citation to the record, Seleme also argues that “payment was alleged and shown under the Chase Auto Pay program, and Seleme‘s affidavit as well demonstrated some form of accord and satisfaction by accepting her into the HAMP program.” Id. at 10. Chase argues that Seleme failed to develop a separate fraud or constructive fraud claim argument in her appellate brief and has waived any claim. Chase also argues that Seleme did not commit fraud.
Seleme appears to argue that Chase‘s actions warrant relief under subsections (1), (3), and (7) of
(a) absence of a party‘s attorney through no fаult of party; (b) an agreement made with opposite party, or his attorney; (c) conduct of other persons causing party to be misled or deceived; (d) unavoidable delay in traveling; (e) faulty process, whereby party fails to receive actual notice; (f) fraud, whereby party is prevented from appearing and making a defense; (g) ignorance of the defendant; (h) insanity or infancy; (i) married women deceived or misled by conduct of husbands; (j) sickness of a party, or illness of member of a family.
Id. (citing Continental Assurance Co. v. Sickels, 145 Ind. App. 671, 675, 252 N.E.2d 439, 441 (1969)).
A party making a claim under
Seleme does not cite to the record for her argument that Chase advised her that the suit would be dismissed. The documents attached to the parties’ motions related to Seleme‘s motion for relief from judgment indicate that Chase approved Seleme to enter into a trial period plan under the Home Affordable Modification Program in April 2010, but Chase informed Seleme in a letter dated August 27, 2010 that it was unable to offer her a “Home Affordable Modification because [she] did not make all of the required Trial Period Plan payments by the end of the trial period.” Appellant‘s Appendix at 24. The letter also stated: “[I]f your Loan was in foreclosure at the time of the Trial Period Plan Offer, the foreclosure process may resume without further notice.” Id. (emphasis added). While there was further correspondence between Seleme and Chase, such correspondence related to Seleme‘s request for a loan modification after she had already been denied a modification. Further, in a fax dated August 10, 2011, sent from Seleme to Chase, Seleme attached a “Making Home Affordable Program Request for Modification and Affidavit,” which stated in part:
Any pending foreclosure action will not be dismissed and may be immediately resumed from the point at which it was suspended if I fail to comply with the terms and conditions оf the Making Home Affordable program, including any trial period plan, and no new notice of default, notice of intent to accelerate, notice of acceleration, or similar notice will be necessary to continue the foreclosure action.
Id. at 35 (emphases added). Based upon the record, we cannot say that Seleme met her burden to establish ground for relief under subsections (1) or (3) of
With respect to Seleme‘s argument regarding an accord and satisfaction, we observe that subsection (7) of
Moreover, a claim under
For the foregoing reasons, we affirm the trial court‘s denial of Seleme‘s motion for relief from judgment.
Affirmed.
FRIEDLANDER, J., and PYLE, J., concur.
No. 53A04-1206-PL-299.
Court of Appeals of Indiana.
Dec. 26, 2012.