Francis v. EMC Mortgage, LLC, 031519 INCA, 18A-MF-1493

Docket Nº:18A-MF-1493
Opinion Judge:SHARPNACK, SENIOR JUDGE.
Party Name:Michael Francis and Carmen Jay Francis, Appellants-Defendants, v. EMC Mortgage, LLC, Appellee-Plaintiff.
Attorney:Appellants Pro Se Michael Francis Carmen Jay Francis Indianapolis, Indiana. Attorneys for Appellee David J. Jurkiewicz Christina M. Bruno Bose McKinney & Evans LLP Indianapolis, Indiana.
Judge Panel:Crone, J., and Brown, J., concur.
Case Date:March 15, 2019
Court:Court of Appeals of Indiana
 
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Michael Francis and Carmen Jay Francis, Appellants-Defendants,

v.

EMC Mortgage, LLC, Appellee-Plaintiff.

No. 18A-MF-1493

Court of Appeals of Indiana

March 15, 2019

Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be regarded as precedent or cited before any court except for the purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case.

Appeal from the Marion Superior Court Trial Court Cause No. 49D02-0706-MF-23133, The Honorable Timothy W. Oakes, Judge.

Appellants Pro Se Michael Francis Carmen Jay Francis Indianapolis, Indiana.

Attorneys for Appellee David J. Jurkiewicz Christina M. Bruno Bose McKinney & Evans LLP Indianapolis, Indiana.

MEMORANDUM DECISION

SHARPNACK, SENIOR JUDGE.

Statement of the Case

[¶1] Michael and Carmen Francis (collectively the Francises) appeal the trial court's denial of their motion to correct error. We affirm.

Issue

[¶2] The Francises present three issues for our review, which we restate as one: whether the trial court erred by denying the Francises' motion to correct error.

Facts and Procedural History

[¶3] In 1994, the Francises executed a promissory note and a mortgage on their home. When the note matured in 2001, the Francises failed to satisfy the outstanding balance. In 2007, EMC Mortgage, LLC (EMC) filed suit to foreclose on the mortgage. The trial court entered a foreclosure judgment in February 2016, which the Francises appealed. This Court affirmed the trial court's judgment in a memorandum decision in April 2017, and our Supreme Court later denied transfer. See Francis v. EMC Mortg., LLC, No. 49A02-1604-MF-830 (Ind.Ct.App. Apr. 19, 2017), trans. denied.

[¶4] In addition, [t]he Francises filed bankruptcy proceedings and initiated an adversary proceeding in the United States Bankruptcy Court for the Southern District of Indiana seeking almost $200, 000 in damages from EMC Mortgage for an allegedly improper foreclosure. The Bankruptcy Court dismissed the adversary proceeding for lack of jurisdiction over a state foreclosure action. The Francises appealed the decision to the United States District Court for the Southern District of Indiana, and the bankruptcy court's decision was affirmed.

Francis v. Fannie Mae, et al., No. 18A-CT-8, slip op. at 2 (Ind.Ct.App. Nov. 26, 2018).

[¶5] In August 2017 in state court, the Francises filed a "Complaint for Lack of Standing to Foreclose, Fraud in the Concealment, Fraud in the Inducement, Unconscionable Contract, Breach of Contract, Breach of Fiduciary Duty, Quiet Title, Slander of Title, Temporary Restraining Order/Injunctive Relief and Jury Demand" against EMC and several other defendants. Id. In October, EMC and other defendants filed a motion to dismiss the complaint on grounds that the claims were barred under principles of res judicata. The trial court granted the motion to dismiss and ordered that the defendants be dismissed from the action with prejudice. The Francises then filed a motion to correct error, which was denied. The Francises appealed.

[¶6] In appealing the dismissal of their complaint and denial of their motion to correct error, the Francises argued that EMC could not participate in the action because it was "defunct" and not authorized to do business in Indiana. Concluding the Francises were barred by res judicata from raising these claims because they raised them in their prior appeal of the foreclosure judgment, a panel of this Court affirmed the dismissal of the Francises' complaint. See id.

[¶7] Meanwhile, in the underlying action in the trial court, defendant PNC Bank filed a motion for judgment on the pleadings in December 2017, also contending the Francises' claims were barred by res judicata. The trial court granted PNC's motion. The Francises filed with the Supreme Court a praecipe for withdrawal of the case, which the Court determined was unwarranted. The Francises then filed a motion to correct error in the trial court, which the trial court denied. The Francises appealed.

[¶8] In its decision on appeal, a panel of this Court noted that the Francises claimed to have uncovered evidence of fraud and multiple forgeries; made numerous factual allegations, including a now-defunct title company engineered a fraudulent mortgage agreement, the prior owner of the property failed to appear at closing and substituted his son to pose as the owner, and the sheriff's eviction notice contained possibly forged signatures; and asserted instances of procedural error. Finding that the Francises waived the issues due to their failure to...

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