Houston v. First Federal Sav. & Loan Ass'n of Gary, 368
| Citation | 17 Ind.Dec. 125,246 N.E.2d 199,144 Ind.App. 304 |
| Decision Date | 03 April 1969 |
| Docket Number | No. 368,No. 1,368,1 |
| Parties | Mildred HOUSTON, James Houston, Flord Anderson a/k/a Floyd Anderson, and Leona M. Anderson, Appellants, v. FIRST FEDERAL SAVINGS & LOAN ASSOCIATION OF GARY, Appellee. A 53 |
| Court | Court of Appeals of Indiana |
Owen W. Crumpacker, Harold Abrahamson, Crumpacker & Abrahamson, Hammond, for appellants.
Andrew J. Kopko and Thomas E. Kotoske, Call, Call, Borns & Theodoros, Gary, for appellee.
This action was brought by the plaintiff-appellee, First Federal Savings and Loan Association of Gary, Indiana, against the defendant-appellants, Mildred Houston, James Houston, Floyd Anderson and Leona Anderson, to foreclose a mortgage. The complaint alleges, in substance, that on August 24, 1960, Floyd and Leona Anderson, husband and wife, executed an installment note in the amount of $6,000, payable to the First Federal Savings & Loan Association of Gary, which note was secured by a mortgage on real estate owned by the appellants, Floyd and Leona Anderson, and located in the City of Gary. The complaint further alleges that on October 19, 1960, the appellants, Floyd and Leona Anderson, executed an additional promissory note in the amount of $2,500; that on September 22, 1964, Floyd and Leona Anderson conveyed the real estate, subject to the mortgage, to Mildred Houston, who at that time promised and agreed to assume the unpaid balance that was due and owing on said mortgage. The complaint alleges further that the parties are in arrears in their monthly payments in the amount of $3,036.89, as of December 31, 1964, and that by reason of being in default of such payments the appellee exercised its option under the mortgage and declared the unpaid balance of said notes and mortgage due and payable.
To appellee's complaint appellants filed their answer in two paragraphs and appellee filed its reply to the second affirmative paragraph of answer.
After closing the issues appellee next filed its motion for summary judgment supported by an affidavit and also filed an additional affidavit, after which appellants filed a counter-affidavit contradicting the fact assertions contained in the affidavits and exhibits filed by appellee.
Thereafter, on December 27, 1967, the court granted the appellee's motion for summary judgment and rendered judgment in favor of appellee for money damages in the amount of $14,698.45, including attorneys' fees, and ordered foreclosure of the mortgages in question. Said judgment reads, in part, as follows:
motion to strike plaintiff's affidavit filed with its motion for Summary Judgment, and now grants plaintiff's motion for Summary Judgment and finds that plaintiff is entitled to Judgment herein on the ground that there is no genuine issue as to any material fact in this action as appears from the pleadings filed herein and plaintiff's affidavits, and that there is due plaintiff from defendants, Flord Anderson a/k/a Floyd Anderson and Leona M. Anderson, his wife, (jointly and severally) on the mortgage instruments sued upon, the sum of $14,698.45, as follows:
9,361.13
Principal $
Interest 2150.00
Taxes and Insurance 1,262.32
Attorney fees 1,100.00
Title Report expense 25.00
---------
Total $
13,898.45 * * * "
Then, on January 19, 1968, the court, by nunc pro tunc entry, modified the judgment and decree, reducing the amount of the judgment from $14,698.45 to $13,898.65. This entry reads, in part, as follows:
'It appearing to the court that there is an inconsistency in the finding on page 4 of the form order filed December 27, 1967, in that in the body of the finding the total amount is stated to be $14,698.45 and the total of the itemized amounts it is stated to be $13,898.45 which is the correct amount said figure of $14,698.45 is hereby modified to read $13,989.45, nunc pro tunc as to December 27, 1967.' (Our emphasis.)
This nunc pro tunc entry, as well as changing the amount of the finding also clarifies the reason for the original finding of the court showing 'defendants had failed to file counter-affidavits', as the record disclosed a counter-affidavit was filed and considered by the court. There is not in the record any motion to strike appellee's affidavit, as was also set out in the form order.
In the record of December 27, 1967, setting out the principal, interest, et cetera, and the total amount of the award to appellee the principal of $10,011.13 was scratched out and the sum of $9,361.13 was inserted in its place; the interest of $2,300.00 was stricken out and inserted in its place were the numerals $2,150.00; and the total of $14,698.45 was stricken out and pencilled in its place were the numerals $13,898.45.
The same pencilled correction appears in the form order at two additional places.
Appellants appealed from the above adverse decision and judgment and from the trial court's granting of the motion for summary judgment and assigned as errors the court's granting appellee's motion for summary judgment; that the court erred in entering judgment in favor of appellee and against appellants after sustaining appellee's motion for summary judgment.
We are confronted with the question in this, as in all summary judgment cases,--was there a genuine issue as to any material fact?
In appellants' counter-affidavit, they contend 'the motion for summary judgment should be denied for the reason that a bona fide triable issue existed in that payments made on said account are not reflected on the bookkeeping records of the appellee; that among those payments there was a payment of $650 which did not appear on appellee's record.'
We must now consider appellee's affidavit in support of its motion for summary judgment which reads, in part, as follows:
'AFFIDAVIT IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT'
'Louis J. Paunicka, being first duly sworn, deposes and says:
'I am the duly authorized and appointed Controller of First Federal Savings and Loan Association of Gary, an Association organized and existing under the laws of the United States of America, and have personal knowledge of the facts herein set forth.
'This affidavit is submitted in support of the plaintiff's motion for summary judgment herein, for the purpose of showing that there is in this action no genuine issue as to any material fact, and that the plaintiff is entitled to judgment as prayed for in its complaint as a matter of law.
'That as Controller, it is my job to insure the accuracy of all the accounting records of First Federal Savings and Loan Association of Gary, and all debits, which include tax and insurance charges paid by the association and interest charges made by the association, and credits, which include payments by mortgagors, are applied to the account of each mortgage loan on the books of the association, under my personal direction and control, and it is my responsibility to insure that the record of each mortgage loan accurately reflects all of the debits and the credits applicable thereto.
'That the net total of all payments received from anyone on the account of the mortgages described in plaintiff's complaint herein is $3009.85, after reducing the gross total by $70.00 from a check returned on February 10, 1961, and reducing the gross total by the sum of $70.00 for a check returned on November 16, 1961, up to the date of filing of the complaint in this cause of action on February 15, 1965.
'That two installments of $53.00 each and two installments of $75.00 each were due in the year 1960, twelve installments of $75.00 each were due in the year 1961, twelve installments of $75.00 each were due in the year 1962, twelve installments of $75.00 each were due in the year 1963, and twelve installments of $75.00 each were due in the year 1964 up and until December 31, 1964 for the payment of principal and interest only by the terms of the mortgage instruments described in plaintiff's complaint. And accordingly, the total sum of $3856.00 was due to be paid for principal and interest only on the mortgage instruments described in plaintiff's complaint up to December 31, 1964.
'That the payments due on the mortgage instruments described in plaintiff's complaint were in default in the total sum of $846.15 on December 31, 1964.
'That in addition to principal and interest payments as set forth above, the mortgage instruments described in plaintiff's complaint provide for the payment of 1/12 of the annual tax and insurance charges to the secured property be paid monthly in addition to the principal and interest payments.
'That the plaintiff paid a total sum of $1766.78 up to December 31, 1964 for the payment of all taxes accruing on the real estate described...
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