Pursuant to Ind.Appellate Rule 65(D), this Memorandum Decision shall not be regarded as precedent or cited before any Aug 20 2014, 9:29 am court except for the purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANT: ATTORNEY FOR APPELLEE:
BRENT WELKE JEFFREY C. GERISH Indianapolis, Indiana Plunkett Cooney Bloomfield Hills, Michigan
IN THE COURT OF APPEALS OF INDIANA
CITI CAPITAL FINANCIAL LLC, ) ) Appellant-Defendant, ) ) vs. ) No. 29A02-1307-PL-643 ) HUNTINGTON NATIONAL BANK, ) ) Appellee-Plaintiff. )
APPEAL FROM THE HAMILTON SUPERIOR COURT The Honorable William J. Hughes, Judge The Honorable William P. Greenaway, Magistrate Cause No. 29D03-0808-PL-1062
August 20, 2014
MEMORANDUM DECISION - NOT FOR PUBLICATION
BARTEAU, Senior Judge STATEMENT OF THE CASE
Citi Capital Financial, LLC, appeals from the trial court’s order granting partial
summary judgment in favor of Huntington National Bank in a lien priority dispute between
the two entities, contending that the trial court erred by giving effect to Huntington’s
mortgage notwithstanding the mistaken legal description contained in the mortgage
document, and despite the fact that Mortgage Electronic Registration Systems, Inc.
(“MERS”) was named in the mortgage document as the nominee and mortgagee before
assigning its interest. We affirm.
FACTS AND PROCEDURAL HISTORY
On August 30, 2007, Crown Residential Group, LLC f/k/a Crown Custom Homes,
Charles Brown, Adolph L. Buckner, Aaron Coffer, and Kendrick L. Coleman (collectively
“Crown”) obtained a warranty deed on property purchased from The Marina Limited
Partnership. The legal description of the property was as follows:
Lot Number Ninety-six (96) in Canal Place, Section Two, a subdivision in Hamilton County, Indiana, as per plat thereof, recorded as Instrument NO. 200400012292 in Plat Cabinet 3 Slide 355, in the Office of the Recorder of Hamilton County, Indiana.
Appellant’s App. at 315. In connection with that purchase Crown executed a promissory
note in the amount of $825,000.00 in favor of Huntington. HBI Title Services, Inc.,
Huntington’s full-service title company, was the closing agent for this loan. As such, HBI
provided loan closing, title clearing, and title insurance services, and a HBI escrow agent
was present at the closing. The Huntington Note was secured by a mortgage granted by
2 1 Crown to MERS as nominee for Huntington on real property commonly known as 10881
Harbor Bay Drive, Fortville, Indiana, 46060-9012. The Huntington Mortgage, however,
contained the following incorrect legal description:
Lot No. 36 in Section Three of Cardinal Woods, as per plat thereof recorded on May 1, 1985 as instrument no. 85-1765 in the office of the Recorder of Hancock County, Indiana.
Appellee’s App. at 26. The Huntington Mortgage contained the correct common address
of the real property the parties had agreed would be subject to the mortgage. When the
Huntington Mortgage was recorded on September 6, 2007, as instrument number
2007050747 in the Office of the Recorder of Hamilton County, Indiana, the word
“Hancock” was stricken and the word “Hamilton” was typed below the space where the
word “Hancock” had appeared. Id. The parties do not dispute that the legal description
contained in the Huntington Mortgage is incorrect.
Jennifer J. Hayden, the Hamilton County Recorder at the time, averred in her
affidavit that although the Huntington Mortgage was recorded in Hamilton County, it was
not indexed against any lot in Hamilton County because the legal description could not be
matched with any parcel of real estate there. Appellant’s App. at 148.
Crown executed a balloon promissory note in the amount of $350,000.00 in favor
1 “In the mid-1990s . . . a consortium of investment banks created Mortgage Electronic Registration Systems, Inc. (MERS). MERS maintains ‘a computer database designed to track servicing and ownership rights of mortgage loans anywhere in the United States.’ MERS member banks list MERS as both ‘nominee’ for Lender and as ‘mortgagee’ on their mortgage documents. MERS member banks can then buy and sell the note among themselves without recording an assignment of the mortgage. In the event of default, MERS simply assigns the mortgage to whichever member bank currently owns the note, and that bank forecloses on the borrower. Today, about 60 percent of the nation’s residential mortgages are recorded in the name of MERS rather than in the name of the bank, trust, or company that actually has a meaningful economic interest in the repayment of the debt.” Citimortgage v. Barabas, 975 N.E.2d 805, 809 (Ind. 2012) (internal citations omitted).
3 of Citi Capital. The Citi Capital Note referred to the correct legal and common description
of the property. The Citi Capital Note was secured by an open line of credit mortgage on
the property and also contained the correct legal and common description of the property
to be encumbered. The Citi Capital Mortgage was recorded on February 20, 2009 as
instrument number 2009008665 in the Hamilton County Recorder’s Office.
Citi Capital’s managing member and authorized signer was Steven M. Rosenbaum.
Rosenbaum was also a realtor and acted as an originator or broker regarding financing for
houses. Rosenbaum and Brown, who was the general manager of Crown, had been
business associates for a number of years. Rosenbaum had presented the purchase of the
property to Brown and was present at the closing of the construction loan Crown executed
with Huntington.
On October 6, 2008, Crown granted a mortgage on the property to Greenfield
Banking Company in the amount of $72,000.00, which partially secured a promissory note
executed on that date by Crown in the principal amount of $491,881.69. The Greenfield
Mortgage was recorded on October 20, 2008 as instrument number 2008052814 in the
Hamilton County Recorder’s Office.
MERS assigned the Huntington Mortgage to Huntington in a document dated May
28, 2009. The assignment was recorded in Hamilton County on June 16, 2009 as
instrument number 2009036245.
In his deposition, Rosenbaum stated that after Huntington had advanced
approximately $670,000.00 toward construction costs, a question arose about the social
security number Brown had supplied to Huntington. Thereafter, Huntington ceased to
4 allow Crown to draw for construction costs. Without that funding, Crown did not pay
several contractors. Five of those contractors filed mechanic’s liens against the property
in the Hamilton County Recorder’s Office. The trial court ultimately granted the
mechanic’s lienholders’ motions for summary judgment in their foreclosure actions,
finding that the liens were superior to other liens because they had been validly entered on
the correct legal description prior to other liens, and that the lienholders should share on a
pari passu basis. The judgments on those mechanic’s liens were assigned to Lawyers Title
Insurance Corporation. Fidelity National Title Insurance Company is the successor by
merger with Lawyers.
Huntington did not defend in the action involving the mechanic’s liens, but filed an
action against all other parties, except for Citi Capital, on June 5, 2009. Huntington’s
action was consolidated with the prior action involving the mechanic’s liens. Citi Capital
filed motions to intervene in both actions, and sought relief from judgment contending that
while its mortgage was inferior to the mechanic’s liens, its mortgage was superior to the
Huntington (MERS) Mortgage. Citi Capital was allowed to intervene, and an order was
entered on August 5, 2009, for a sheriff’s sale of the property. On September 24, 2009,
two of the mechanic’s lienholders filed a motion to strike Huntington’s complaint2 alleging
that Huntington did not have a lien on the actual premises. The trial court struck the
complaint by order entered on October 20, 2009.
2 Although the motions to strike filed on September 24, 2009, make reference to an “amended complaint,” it is apparent from the record before us that the motions referred to the original complaint filed on June 5, 2009. Huntington’s “Amended Complaint” was not filed until October 6, 2009, and the order granting the motions was entered on October 19, 2009, and filed on October 20, 2009. All parties have proceeded as if the Amended Complaint filed on October 6, 2009, is the pertinent complaint giving rise to these issues.
5 Huntington filed an amended complaint to foreclose on the property naming
additional parties on October 6, 2009. Attached to the complaint was the mortgage with
MERS listed as nominee for Huntington and with the county name “Hancock” stricken and
the word “Hamilton” typed underneath. Despite the change to attempt to reflect the correct
county, the legal description remained incorrect in all other respects in that mortgage. Also
in the amended complaint, was the valid legal description of the property intended to be
encumbered by the Huntington Mortgage and a request for reformation of the mortgage to
correct the “scrivener’s error.” Appellant’s App. at 98, 103.
On December 3, 2009, a joint motion for summary judgment was filed against
Huntington, alleging that the actual property could not be located with certainty based on
the legal description provided in the Huntington Mortgage. The trial court entered a
judgment finding that the interests of the mechanic’s lienholders was superior to those of
the remaining parties, Citi Capital, Huntington, and Greenfield, but without determining
the validity and priority of those other mortgages.
Huntington and Citi Capital filed cross motions for summary judgment to resolve
the issue of lien priority. In June of 2010, Greenfield filed a stipulation of lien priority in
which Greenfield and Huntington agreed that Huntington’s mortgage took priority over
Greenfield’s mortgage. In an order from a hearing held on November 15, 2011, the trial
court concluded that Huntington’s mortgage created a valid security interest in the property
that had lien priority over the mortgage held by Citi Capital. The trial court later entered
an order on June 28, 2013, declaring its prior order to be a final appealable order. Citi
Capital now appeals.
6 DISCUSSION AND DECISION
This appeal is from an order on cross-motions for summary judgment. Our analysis
proceeds from the premise that “[s]ummary judgment is a lethal weapon and courts must
be ever mindful of its aims and targets and beware of overkill in its use.” Schrum v.
Moskaluk, 655 N.E.2d 561, 564 (Ind. Ct. App. 1995) (citing Place v. Sagamore Ctr, Inc.,
604 N.E.2d 671, 673 (Ind. Ct. App. 1992), trans. denied). Summary judgment is
appropriate only if there are no genuine issues of material fact and the moving party is
entitled to judgment as a matter of law. Ind. T.R. 56(C); Brown v. Banta, 682 N.E.2d 582,
584 (Ind. Ct. App. 1997).
In the instant case, the trial court entered specific findings of fact and conclusions
of law thereon. Although such findings aid appellate review, they are not binding on this
court. Reid v. Ragsdale, 702 N.E.2d 367, 369 (Ind. Ct. App. 1998) (citing Althaus v.
Evansville Courier Co., 615 N.E.2d 441, 444 (Ind. Ct. App. 1993)). Instead, when
reviewing an entry of summary judgment, we stand in the shoes of the trial court. Simms
v. Schweikher, 651 N.E.2d 348, 349 (Ind. Ct. App. 1995), trans. denied. We do not weigh
the evidence but will consider the designated facts in the light most favorable to the
nonmoving party. Id. (citing Reed v. Luzny, 627 N.E.2d 1362, 1363 (Ind. Ct. App. 1994),
trans. denied). All doubts as to the existence of a factual issue must be resolved in the
nonmovant’s favor. Schrum, 655 N.E.2d at 564 (citing Thornhill v. Deka-Di Riding
Stables, 643 N.E.2d 983, 986 (Ind. Ct. App. 1994), trans. denied), trans. denied.
When a trial court grants summary judgment, we carefully scrutinize that
determination to ensure that a party was not improperly prevented from having his or her
7 day in court. Cox v. N. Ind. Pub. Serv. Co., Inc., 848 N.E.2d 690, 695-96 (Ind. Ct. App.
2006). In this case, the parties filed cross-motions for summary judgment. However, the
fact that cross-motions for summary judgment were made does not alter our standard of
review. Mahan v. Am. Standard Ins. Co., 862 N.E.2d 669, 676 (Ind. Ct. App. 2007), trans.
denied. “Instead, we must consider each motion separately to determine whether the
moving party is entitled to judgment as a matter of law.” Ind. Farmers Mut. Ins. Group v.
Blaskie, 727 N.E.2d 13, 15 (Ind. Ct. App. 2000).
“In order for a mortgage to be effective, it must contain a description of the land
intended to be covered sufficient to identify it.” Keybank Nat. Ass’n v. NBD Bank, 699
N.E.2d 322, 326 (Ind. Ct. App. 1998). “The test for determining the sufficiency of a legal
description is whether the tract intended to be mortgaged can be located with certainty by
referring to the description.” Id.
The purpose of the recording statute, IND.CODE § 32-1-2-16,3 is to provide protection to subsequent purchasers, lessees, and mortgagees. Instruments will have priority according to the time of the filing thereof. A record outside the chain of title does not provide notice to bona fide purchasers for value. The recording of an instrument in its proper book is fundamental to the scheme of providing constructive notice through the records. The duty rests on the lienholder to ensure that his mortgage is properly recorded within the chain of title.
Id. at 327 (internal citations omitted and footnote added).
It is undisputed that the legal description in the Huntington Mortgage does not
describe the property to be encumbered by the mortgage. At the hearing on the motion for
summary judgment, counsel for Huntington conceded that the mortgage was not in the
3 Now located at Ind. Code §32-21-4-1 (2008).
8 chain of title for the property. Therefore, Huntington also conceded that it could not rely
on constructive notice to support its argument in favor of lien priority, but instead was
relying on actual notice. Huntington claims that because Rosenbaum was present at the
closing, he had actual notice of the existence of the Huntington Mortgage, and as he was
Citi Capital’s only employee, Citi Capital had actual notice as well. Evidence designated
to the trial court supports a finding that Rosenbaum was present at the closing and had
actual notice of the Huntington Mortgage. Consequently, Citi Capital had actual notice of
the Huntington Mortgage.
Actual knowledge of the intention to hold a mortgage, however, does not cure the
defective legal description contained in the mortgage document, such that the mortgage is
considered to be valid. Huntington sought reformation of the mortgage to reflect the
correct legal description, but the trial court’s order did not explicitly grant that equitable
remedy. Our Supreme Court has stated,
It is undoubtedly the law that an erroneous description of real estate in a mortgage that is full, and consistently complete within itself, and clearly and correctly identifies another body of land, will not be reformed to embrace an entirely different tract, to the prejudice of a subsequent mortgagee, who accepted his mortgage in ignorance of the mistake, and in bona fide reliance upon the appearance of the public record.
Rinehardt v. Reifers, 64 N.E. 459, 459 (Ind. 1902).
Although Huntington requested reformation based on what it characterized as a
scrivener’s error, the legal description here contains more than a typographical error, see
Keybank, 699 N.E.2d at 326 (typographical error did not nullify mortgage), and does not
simply encompass more property than was intended to be encumbered, see Matter of Estate
9 of Lawrence, 565 N.E.2d 357, 359 (Ind. Ct. App. 1991) (legal description encompassing
more property than intended to be encumbered nonetheless valid). The mortgage although
recorded, albeit outside the chain of title, could not be indexed. The mortgage would seem
to be invalid. However, additional designated evidence supports the trial court’s decision
on these fairly unique facts.
“In reviewing a trial court’s grant of summary judgment, we may use alternate legal
theories to affirm the order if they are found in the designated materials.” Squires v.
Utility/Trailers of Indianapolis, Inc., 686 N.E.2d 416, 419 (Ind. Ct. App. 1997) (citing
Snyder v. Cobb, 638 N.E.2d 442, 447 (Ind. Ct. App. 1994)). “Similarly, ‘[w]e will affirm
the grant of summary judgment if it is sustainable on any theory or basis in the evidentiary
matter designated to the court.’” Id. (quoting Short v. Haywood Printing Co., Inc., 667
N.E.2d 209, 211 (Ind. Ct. App. 1996), reh’g denied, trans. denied, 683 N.E.2d 582)).
Huntington’s amended complaint sought reformation of the mortgage instrument
and set forth the correct legal description of the property to be encumbered in addition to
the incorrect legal description set forth in the mortgage. Brown’s affidavit was also
designated to the trial court. In pertinent part, that affidavit avers as follows:
3. That closing was held by and all documents prepared by or at the behest of HBI Title Services, Inc. and/or Huntington Title Services, Inc., which were disclosed by an Affiliated Business Arrangement Disclosure distributed in the closing packet to be wholly owned indirect subsidiaries of Huntington.
4. That neither Brown nor Crown had any input into the preparation of the closing documents, but instead relied upon the accuracy and expertise of Huntington’s closing subsidiaries, and did not notice at the time that Crown would not own the land that would be encumbered of record.
....
10 7. Said Mortgage was secured by a purported lien upon the following described land: “LOT NO. 36 IN SECTION THREE OF CARDINAL WOODS, AS PER PLAT THEREOF RECORDED ON MAY 1, 1985 AS INSTRUMENT NO. 85-1765 IN THE OFFICE OF THE RECORDER OF HANCOCK COUNTY INDIANA”
8. Neither Brown nor Crown participated further in the recording of the Mortgage after the closing.
10. A great while later Brown learned that the land description on the Mortgage as recorded contained an interlineation which changed the county as Brown had executed it in Paragraph 7 above from “Hancock” to “Hamilton”.
12. That neither Brown nor Crown has ever been contacted by Huntington or MERS or anyone claiming to be associated with them to correct the Mortgage to MERS to cause a replacement mortgage to be executed which actually encumbered the property owned by Crown.
13. That Brown has at all times been aware that at closing Crown signed the attached Error and Omissions/Compliance Agreement.
14. Crown would have signed a replacement mortgage upon request pursuant to said Agreement if Huntington or MERS would have first released the subject Mortgage and executed or prepared any curative conveyances or documents which would release any liability Crown would have to the owners of the land described in the aforesaid Paragraph 7, which Brown has determined is an actual tract in Hancock County, Indiana, but neither Brown nor Crown has ever been called on to perform pursuant to that Agreement.
Appellant’s App. p. 206-07.
It is clear from those materials that the original mortgage does not describe the
property that the parties intended it to control. We addressed a similar scenario in
Beneficial Financial I Inc. v. Hatton, 998 N.E.2d 232 (Ind. Ct. App. 2013). In that case,
11 the parties were in agreement that the mortgage did not describe the property intended to
be encumbered and reformation was sought. We stated the following:
Also, the boilerplate law that governs this situation is not in dispute. These principles were set out in Estate of Reasor v. Putnam Cnty., 635 N.E.2d 153, 158 (Ind. 1994), as follows:
[R]eformation is “an extreme equitable remedy to relieve the parties of mutual mistake or of fraud. Board of Comm’rs of Hamilton County v. Owens (1894), 138 Ind. 183, 186, 37 N.E. 602.” The remedy of reformation is extreme because written instruments are presumed to reflect the intentions of the parties to those instruments.
In cases involving mutual mistake such as this one, the party seeking reformation must establish the true intentions of the parties to an instrument, that a mistake was made, that the mistake was mutual, and that the instrument therefore does not reflect the true intentions of the parties. As the Court of Appeals in Pearson explained:
The primary purpose of reformation is to effectuate the common intentions of all parties to an instrument which were incorrectly reduced to writing. It follows that a grant of reformation is necessarily predicated upon a prior understanding between all parties on essential terms. Otherwise, there would be no standard to which an instrument could be reformed.
[Pearson v. Winfield, 160 Ind.App. 613, 618-19, 313 N.E.2d 95, 99 (1974).]
(Footnote and some citations to authority omitted.) The Court added that “a party seeking reformation must also show the original intent or agreement of the parties by clear and convincing evidence.” Id. at 159. Thus, in order to prevail, it was incumbent upon Beneficial to prove by clear and convincing evidence that the original intent of Beneficial and the Hattons was to describe a different piece of real estate than that which was in fact described in the mortgage instrument.
Beneficial, 998 N.E.2d at 235.
12 Therefore, the trial court’s summary judgment is affirmable because Huntington
established by clear and convincing evidence the intent of the parties, that a mistake was
made that was mutual, and that reformation is appropriate because the legal description
contained in the mortgage does not reflect the true intentions of the parties.
Citi Capital also argues that its mortgage takes priority for the additional reason that
MERS was the nominee of the Huntington mortgage, and MERS’s assignment of the
mortgage to Huntington determines the relevant date for purposes of lien priority. Citi
Capital asserts that because its mortgage contained the correct legal and common address
for the property and was recorded prior to the MERS assignment, its mortgage has priority.
In Barabas, our Supreme Court re-emphasized, with respect to an assignment from
MERS to a member bank, that “[t]he assignee of rights under a contract stands in the shoes
of the assignor and can assert any rights that the assignor could have asserted.” 975 N.E.2d
at 813. Here, as in Barabas, the parties intended to designate MERS as an agent of the
lender, in this case, Huntington. Although the issue in Barabas had to do with
Citimortgage’s ability to intervene in a mortgage foreclosure action, when the mortgage
was assigned from one member bank to another, MERS’s role in the transaction was
defined as that of holding bare legal title to the mortgage, but not as owner of the note, and
as an agent of the holder of the note.
Additionally, in Lunsford v. Deutsche Bank Trust Co. Americas as Trustee, 996
N.E.2d 815 (Ind. Ct. App. 2013), we were asked to review a lien priority dispute between
a holder of a land contract, Lunsford, and the holder of a promissory note and mortgage,
Deutsche Bank. MERS was the nominee of the original holder of the promissory note, and
13 that promissory note and mortgage was recorded. The promissory note ultimately was
endorsed to Deutsche Bank and MERS’s assignment of the mortgage to Deutsche Bank
was recorded. The assignment from MERS occurred after Lunsford recorded the land
contract, which was recorded after the original recording of the promissory note and
mortgage. Lunsford contended that the date of the assignment from MERS to Deutsche
Bank controlled the lien priority issue between him and Deutsche Bank. We concluded,
however, citing Indiana Code sections 32-21-4-1 through 2, that the recording of the
original mortgage perfects a lien on the real estate. Lunsford, 996 N.E.2d at 822.
Therefore, the recording of the original mortgage, which occurred more than six months
before recording of the land contract, was senior in priority to the land contract. Id.
Similarly here, the recording of the mortgage entitles Huntington to senior priority over
Citi Capital regardless of the date of MERS’s assignment to Huntington.
CONCLUSION
In light of the foregoing, we affirm the trial court’s judgment.
Affirmed.
ROBB, J., and BRADFORD, J., concur.