Rowe v. Small Business Admin., 1-1082A318

• Decision Date: 23 March 1983
• Docket Number: No. 1-1082A318,1-1082A318
• Citation: 446 N.E.2d 991
• Parties: J.C. ROWE and Janice J. Rowe, husband and wife, Appellants (Cross-Defendants below), v. SMALL BUSINESS ADMINISTRATION, an Agency of the United States Government, Appellee (Cross-Plaintiff below).
• Court: Indiana Appellate Court

Page 991

446 N.E.2d 991

J.C. ROWE and Janice J. Rowe, husband and wife, Appellants (Cross-Defendants below), v. SMALL BUSINESS ADMINISTRATION, an Agency of the United States Government, Appellee (Cross-Plaintiff below).

No. 1-1082A318.

Court of Appeals of Indiana First District.

March 23, 1983.

Gary K. Kemper, Jenner & Kemper, Madison, for appellants.

Sarah Evans Barker, U.S. Atty., George E. Palmer, Asst. U.S. Atty., Robert E. Dwyer, Atty., Small Business Admin., Indianapolis, for appellee.

ROBERTSON, Presiding Judge.

J.C. Rowe and Janice J. Rowe (Rowes) appeal the entry of a summary judgment entered on behalf of the Small Business Administration (SBA).

We affirm.

The facts disclose that Madison Plaza, Inc. (Madison Plaza) sought to foreclose on two notes in the amounts of $1,800.57 plus interest and $3,504.35 indemnified by a mortgage of real estate owed by the Rowes. The first mortgage on the property was held by the Progressive Building and Loan Association (Progressive) and the second mortgage was held by SBA. Progressive filed a cross-complaint to foreclose the principal amount of $40,000 plus interest. The SBA also filed a cross-complaint to foreclose the principal amount of $20,000 plus interest. Both Progressive and the SBA alleged that the Rowes had defaulted, and sought to have a priority on their mortgages. On September 2, 1980, the SBA moved for summary judgment. The Rowes filed affidavits in opposition to the summary judgment motion, alleging that they were not aware that Progressive had assigned its mortgage. The SBA responded that it had purchased the notes held by Progressive, and that Rowes owed a principal sum of $54,608.42 and accrued interest of $12,227.64.

The trial court granted an in personam judgment on the principal sum and the accrued interest on July 20, 1982. The trial court also granted an in rem judgment against the real estate. The Rowes appeal this judgment and allege on appeal that Progressive assigned their mortgage to SBA without notice and did not comply with the requirements of Ind.Code 32-8-11-7.

The Rowes allege that Progressive's assignment of their mortgage to the SBA was invalid because there was no assignment noted in the margin of the records or by a separate instrument recorded in the mortgage records pursuant to I.C. 32-8-11-7. The Rowes argue that since SBA failed to comply with the procedural requirements for an assignment, there exists a material question of fact regarding the validity of the assignment. The SBA argues that Ind.Code 32-8-12-1 is controlling.

When examining the granting of a motion for summary judgment, the reviewing court must determine whether a genuine issue of material fact exists and whether the trial court correctly applied the law. The burden is upon the moving party to establish that no genuine issue of material fact exists and any doubt must be resolved in favor of the non-movant. Ang v. Hospital Corporation of America, (1979) Ind.App., 395 N.E.2d 441. Where the materials filed by the moving party establish a genuine issue of material fact, the non-movant must set forth specific facts establishing a material issue of fact or the moving party is entitled to summary judgment. Letson v. Lowmaster, (1976) 168 Ind.App. 159, 341 N.E.2d 785. However, even if the facts are not in dispute, summary judgment is inappropriate where there are good faith dispute as to the inferences to be drawn from the facts. Ang v. Hospital Corporation of America, supra.

Our supreme court construed the prior enactment of I.C. 32-8-11-7 in Connecticut Mutual Life Insurance Company v. Talbot, et al, (1887) 113 Ind. 373, 14 N.E. 586. The court stated:

It is assumed everywhere, that if the recording acts afford the assignee of a mortgage the opportunity of giving notice of his rights by processing and putting of record an assignment of...