Facts and Procedural History[3] Borrower secured a loan of $600,000.00 from IAB Financial Bank on August 12, 2014.2 Two parties—Shoaff and Andrea Baumer ("Baumer")—signed guaranties in order to secure the loan. Baumer was involved with Borrower and had previous dealings with Shoaff, a former attorney. Pertinent passages of the Agreement signed by Shoaff are reproduced here:
2. SPECIFIC AND FUTURE DEBT GUARANTY. For good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, and to induce you at your option, to make loans or engage in any other transactions with the Borrower from time to time, I absolutely and unconditionally agree to all terms of and guaranty to you the payment and performance of each and every Debt, of every type, purpose and description that the Borrower either individually, among all or a portion at themselves, or with others, may now or at any time in the future owe you, including, but not limited to the following described Debt(s) including without limitation, all principal, accrued Interest, attorneys’ fees and collection costs, when allowed by law, that may become due from the Borrower to you in collecting and enforcing the Debt and all other agreements with respect to the Borrower.
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In addition, Debt refers to debts, Liabilities, and obligations of the Borrower including, but not limited to, amounts agreed to be paid under the terms of any notes or agreements securing the payment of any debt, loan, liability or obligation, overdrafts, letters of credit, guaranties, advances for taxes, insurance, repairs and storage, and all extensions, renewals, refinancings and modifications at these debt(s) whether now existing or created or incurred in the future, due or to become due, or absolute or contingent, including obligations and duties arising from the terms of all documents prepared or submitted for the transaction such as applications, security agreements, disclosures, and the Note.
My liability will not exceed $450,000.00 of the principal amount outstanding at default, plus accrued interest, attorneys’ fees and collection costs, when allowed by law, and all other costs, fees and expenses agreed to be paid under all agreements evidencing the Debt and securing the payment of the Debt. You may, without notice, apply this Guaranty to such Debt of the Borrower as you may select from time to time.
3. EXTENSIONS. I consent to all renewals, extensions, modifications and substitutions of the Debt which may be made by you upon such terms and conditions as you may see fit from time to time without further notice to me and without limitation as to the number of renewals, extensions, modifications or substitutions.
A. Future Advances. I waive notice of and consent to any and all future advances made to the Borrower by you.
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6. REVOCATION. I agree that this is an absolute and unconditional Guaranty. I agree that this Guaranty will remain binding on me, whether or not there are any Debts outstanding, until you have actually received written notice of my revocation or written notice of my death or incompetence. Notice of revocation or notice of my death or incompetence will not affect any obligations under this Guaranty with respect to any Debts incurred by or for which you have made a commitment to Borrower before you actually receive such notice, and all renewals, extensions, refinancings, and modifications of such Debts. I agree that if any other person signing this Guaranty provides a notice of revocation to you, I will still be obligated under this Guaranty until I provide such a notice of revocation to you. If any other person signing this Guaranty dies or is declared incompetent, such fact will not affect my obligations under this Guaranty.
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9. WAIVERS AND CONSENT. To the extent not prohibited by law, I waive protest, presentment for payment, demand, notice of acceleration, notice of intent to accelerate and notice of dishonor.
A. Additional Waivers. In addition, to the extent permitted by law, I consent to certain actions you may take, and generally waive defenses that may be available based on these actions or based on the status of a party to the Debt or this Guaranty.
(1) You may renew or extend payments on the Debt, regardless of the number of such renewals or extensions.
(2) You may release any Borrower, endorser, guarantor, surety, accommodation maker or any other co-signer.
(3) You may release, substitute or impair any Property.
(4) You, or any institution participating in the Debt, may invoke your right of set-off.
(5) You may enter into any sales, repurchases or participation of the Debt to any person in any amounts and I waive notice of such sales, repurchases or participations.
(6) I agree that the Borrower is authorized to modify the terms of the Debt or any instrument securing, guarantying or relating to the Debt.
(7) You may undertake a valuation of any Property in connection with any proceedings under the United States Bankruptcy Code concerning the Borrower or me, regardless of any such valuation, or actual amounts received by you arising from the sale of such Property.
(8) I agree to consent to any waiver granted the Borrower, and agree that any delay or lack of diligence in the enforcement of the Debt, or any failure to file a claim or otherwise protect any of the Debt, in no way affects or impairs my liability.
(9) I give up any rights I may have under any valuation and appraisement laws which apply to me.
(10) I agree to waive reliance on any anti-deficiency statutes, through subrogation or otherwise, and such statutes in no way alter or impair my liability. In addition, until the obligations at the Borrower to Lender have been paid in full, I waive any right at subrogation, contribution, reimbursement, indemnification, Exoneration, and any other right I may have to enforce any remedy which you now have or in the future may have against the Borrower or another guarantor or as to any Property.
Appellant's App. Vol. III pp. 51–52.
[4] Over the course of five years, Borrower's obligation was modified multiple times. The parties devote a substantial amount of briefing to the details of the modifications, but for our purposes those modifications can be described as: (1) a series of new notes being issued for the debt; (2) a new loan number being provided; (3) Baumer signing a new guaranty; (4) the alteration of the payment of the debt from a revolving line of credit to a term note; (5) a change in the manner in which the debt was to be repaid (altered to required monthly payments); and (6) multiple changes in the form and amount of the interest rate. Despite Shoaff waiving notice, the record reflects that First Merchants and/or its predecessor contacted Shoaff about many of the modifications "as a courtesy." Appellant's App. Vol. V p. 24.
[5] On March 15, 2019, the note (in its final form) matured and became payable in full. Borrower failed to pay and was therefore in default. On May 19, 2019, First Merchants filed its Complaint on Note and Guaranties.3 On September 10, 2019, First Merchants filed a motion for summary judgment which the trial court granted on July 15, 2021 and directed First Merchants to provide a proposed order containing calculation of damages through the date of its grant of summary judgment, including the requested attorney's fees. The trial court entered a damages award in the amount of $859,927.49.
[6] On August 13, 2021, Shoaff filed a motion to correct error and contended that the trial court erred in granting summary judgment as well as in failing to give Shoaff the opportunity to respond to First Merchants's claims regarding damages. The trial court agreed as to the latter and vacated its damages order. On February 8, 2022, the trial court entered a new damages order, finding as follows:
As of July 15 [ ] 2021, there is a balance due and owing to First Merchants from ... Thomas M. Shoaff [ ] on the Shoaff Guaranty in the following amounts: principal in the amount of $450,000.00, accrued interest in the amount of $111,133.42 (based on the interest rate set out in the Complaint), accrued interest and unpaid late charges in the amount of $28,601.95 (calculated at 5% of the unpaid portion of the regularly scheduled payment of $572,039.06 due on March 15, 2019), for
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