Seleme v. JP Morgan Chase Bank, Nat'l Ass'n

• Decision Date: 24 January 2013
• Docket Number: No. 02A03–1205–MF–234.,02A03–1205–MF–234.
• Parties: Cynthia L. SELEME, Appellant–Defendant, v. JP MORGAN CHASE BANK, National Association, as successor by merger to Chase Home Finance, Appellee–Plaintiff.
• Court: Indiana Appellate Court

982 N.E.2d 299

Cynthia 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.

Charles E. Davis, Davis Law, LLC, Fort Wayne, IN, Attorney for Appellant.

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. The 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. The chronological case summary (“CCS”) indicates that Seleme was notified of the April 28, 2010 order on May 3,2010.

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 telephone 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 indicating 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 Seleme to Chase providing certain requested information.

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] selectively 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 Ind. Trial Rule 55(A), and pursuant to Trial Rule 55(C) a judgment by default which has been entered may be set aside by the court for the grounds and in accordance with the provisions of Trial Rule 60(B). While Seleme does not delineate her arguments with respect to the various subsections of Rule 60(B), she contends that subsections (1), (3), (6), (7), and (8) of Rule 60(B) all apply. Ind. Trial Rule 60(B) provides:

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...