Powell v. Green Tree Servicing LLC
| Decision Date | 18 August 2015 |
| Docket Number | No. 49A02–1411–MF–783.,49A02–1411–MF–783. |
| Citation | 38 N.E.3d 1014 (Table) |
| Parties | Everett E. POWELL, et. al, Appellants–Defendants, v. GREEN TREE SERVICING LLC, Appellee–Plaintiff. |
| Court | Indiana Appellate Court |
Cherie Ramage, Fishers, IN, Attorney for Appellants.
Andrew M. Auersch, O'Conner & Auersch, Indianapolis, IN, Attorney for Appellee.
BRADFORD
, Judge.
[1] On April 28, 2006, Appellant–Defendant Everett E. Powell executed a note and mortgage on certain real estate located in Marion County. Powell is alleged to have subsequently defaulted on the terms of the note and, on August 1, 2012, Appellee–Plaintiff Green Tree Servicing LLC (“Green Tree”)'s predecessor in interest initiated foreclosure proceedings. The foreclosure proceedings were stayed during bankruptcy proceedings involving Powell. The stay was lifted on March 31, 2014. That same day, Green Tree filed a motion for summary judgment. Green Tree subsequently requested a hearing on its motion for summary judgment. The original date of the hearing was continued per Powell's request. However, the copy of the trial court's order granting Powell's request that was distributed to Powell was silent as to the new date and time of the summary judgment hearing.
[2] On August 25, 2015, the trial court conducted a hearing on Green Tree's motion for summary judgment. That same day, the trial court issued an order granting Green Tree the requested relief. Neither Powell nor his attorney were present for the summary judgment hearing. Powell subsequently filed an Indiana Trial Rule 60(B)
motion seeking relief from the trial court's August 25, 2014 summary judgment order. Powell appeals following the trial court's denial of this motion.
[3] Concluding that the trial court abused its discretion in denying Powell the relief requested in his Indiana Trial Rule 60(B)
motion because Powell's due process rights were violated when the trial court failed to provide Powell with notice of the date and time of the rescheduled summary judgment hearing, we reverse the judgment of the trial court and remand with instructions for further proceedings.
[4] On April 28, 2006, Powell executed a note and mortgage on certain real estate to Mortgage Electronic Registration System, Inc. as nominee for America's Wholesale Lender. The mortgage was assigned to Bank of America N.A. (“Bank of America”) on May 21, 2012. Bank of America initiated foreclosure proceedings on August 1, 2012, after Powell defaulted on repayment of the note. During the course of foreclosure proceedings, Green Tree obtained Bank of America's interest in the matter and was substituted as the plaintiff in the foreclosure proceedings. The foreclosure proceedings were stayed during bankruptcy proceedings which involved Powell. The stay was lifted on or about March 31, 2014.
[5] Also on March 31, 2014, Green Tree filed a motion for summary judgment. Green Tree subsequently requested that the trial court set a hearing on its motion for summary judgment. The trial court granted Green Tree's request and scheduled a hearing for June 25, 2014.
[6] On June 19, 2015, Powell filed an unopposed motion for a continuance of the June 25, 2014 summary judgment hearing. On June 24, 2014, the trial court granted Powell's request for a continuance and issued the following order:
ORDER ON UNOPPOSED MOTION FOR CONTINUANCE
Appellant's App. p. 3. The copy of the trial court's order granting the continuance which was distributed to Powell did not include any notification as to the date and time of the rescheduled summary judgment hearing.
[7] On August 25, 2014, the trial court conducted a hearing on Green Tree's motion for summary judgment. Neither Powell nor his counsel were present for the August 25, 2014 hearing. Following the conclusion of the hearing, the trial court issued an order in which it granted Green Tree's motion for summary judgment.
[8] On September 3, 2014, Powell filed a verified motion seeking to set aside the trial court's summary judgment order. Green Tree filed a response in opposition to Powell's motion. The trial court conducted a hearing on Powell's motion to set aside the summary judgment order on October 20, 2014. On November 3, 2014, the trial court issued an order denying Powell's motion to set aside the summary judgment order. This appeal follows.
[9] Powell contends on appeal that the trial court abused its discretion in denying his Trial Rule 60(B)
motion for relief from the trial court's order granting summary judgment in favor of Green Tree. For its part, Green Tree contends that the trial court acted within its discretion in denying Powell's motion.
[10] “The decision of whether to grant or deny a Trial Rule 60(B)
motion for relief from judgment is within the sound, equitable discretion of the trial court.” Dempsey v. Belanger, 959 N.E.2d 861, 867 (Ind.Ct.App.2011) (citing Stonger v. Sorrell, 776 N.E.2d 353, 358 (Ind.2002) ). We will not reverse a denial of a motion for relief from judgment in the absence of an abuse of discretion. Id. (citing Stronger, 776 N.E.2d at 358 ).
provides, in relevant part, as follows:
Motion and proceedings thereon. The motion and any supporting affidavits shall be served in accordance with the provisions of Rule 5. An adverse party shall have thirty (30) days after service of the motion to serve a response and any opposing affidavits. The court may conduct a hearing on the motion. However, upon motion of any party made no later than ten (10) days after the response was filed or was due, the court shall conduct a hearing on the motion which shall be held not less than ten (10) days after the time for filing the response. At the time of filing the motion or response, a party shall designate to the court all parts of pleadings, depositions, answers to interrogatories, admissions, matters of judicial notice, and any other matters on which it relies for purposes of the motion. A party opposing the motion shall also designate to the court each material issue of fact which that party asserts precludes entry of summary judgment and the evidence relevant thereto. The judgment sought shall be rendered forthwith if 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.... Summary judgment shall not be granted as of course because the opposing party fails to offer opposing affidavits or evidence, but the court shall make its determination from the evidentiary matter designated to the court.
provides, in relevant part, as follows:
“A movant filing a motion for reasons (1), (2), (3), (4), and (8) must allege a meritorious claim or defense.” Ind. Tr. R. 60(B)
.
[13] Again, Powell appeals following the trial court's denial of his verified motion to set aside the trial court's order granting summary judgment.1 Powell argues on appeal that the trial court erred in denying his motion to set aside the court's prior order because he was entitled to relief under Indiana Trial Rule 60(B)
. For its part, Green Tree argues that the trial court both properly granted its motion for summary judgment and denied Powell's Trial Rule 60(B) motion.
[14] In challenging the trial court's denial of his Trial Rule 60(B)
motion, Powell argues that the trial court's order granting summary judgment in favor of Green Tree should be found to be void because the trial court violated his due process rights by failing to provide him with notice of the date and time of the summary judgment hearing. In support of his argument, Powell relies on our prior opinion in Abrahamson Chrysler Plymouth, Inc. v. Insurance Company of North America, 453 N.E.2d 317 (Ind.Ct.App.1983). In Abrahamson, the appellant appealed an order granting summary judgment against it, claiming that it never received notice of the date or time of the summary judgment hearing. Id. at 319. Upon review, we observed that the essential principle at issue was Abrahamson's due process rights as they arose pursuant to its position as a nonmovant in a motion for summary judgment. Id. at 321. In considering the issue, we stated the...
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