Eric P. Mains v. Citibank, N.A. (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: September 24, 2019
• Docket: 18A-CT-3152
• Status: Published

Opinion

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any Sep 24 2019, 8:48 am court except for the purpose of establishing the defense of res judicata, collateral CLERK Indiana Supreme Court Court of Appeals estoppel, or the law of the case. and Tax Court

APPELLANT PRO SE ATTORNEY FOR CITIBANK, Eric P. Mains N.A., AND SELECT PORTFOLIO Jeffersonville, Indiana SERVICING, INC. Anthony M. Zelli Dinsmore & Shohl LLP Louisville, Kentucky

ATTORNEY FOR JPMORGAN CHASE BANK, N.A., AND CYNTHIA RILEY Jeffrey P. McSherry Bricker & Eckler LLP Cincinnati, Ohio

ATTORNEYS FOR NELSON & FRANKENBERGER, P.C. Michael A. Dorelli Patrick A. Ziepolt Hoover Hull Turner LLP Indianapolis, Indiana

ATTORNEYS FOR BLACK KNIGHT INFOSERV, LLC, AND CHRISTINA ANNE SAURER Thomas E. Mixdorf Derek R. Molter Ice Miller LLP Indianapolis, Indiana

Fred O. Goldberg Berger Singerman LLP

Court of Appeals of Indiana | Memorandum Decision 18A-CT-3152 | September 24, 2019 Page 1 of 14 Miami, Florida

IN THE COURT OF APPEALS OF INDIANA

Eric P. Mains, September 24, 2019 Appellant-Plaintiff, Court of Appeals Case No. 18A-CT-3152 v. Appeal from the Clark Circuit Court Citibank, N.A. as Trustee for the The Honorable Andrew Adams, WAMU Series 2007 HE-2 Trust; Judge JPMorgan Chase Bank, N.A.; Trial Court Cause No. Nelson & Frankenberger, P.C.; 10C01-1804-CT-73 Christina Anne Saurer; Jodi Sobotta; Select Portfolio Servicing, Inc.; Black Knight InfoServ, LLC; Gerner and Kearns Co., L.P.A.; Cynthia Riley; and Unknown John Does, Appellees-Defendants.

Friedlander, Senior Judge.

[1] Eric P. Mains appeals the trial court’s dismissal of his amended complaint. We

affirm in part, reverse in part, and remand.

[2] In 2006, Mains executed a mortgage with Washington Mutual (WaMu) for a

house in Clark County, Indiana. WaMu closed in 2008, and the Federal

Court of Appeals of Indiana | Memorandum Decision 18A-CT-3152 | September 24, 2019 Page 2 of 14 Deposit Insurance Corporation (FDIC) took control of WaMu’s assets and

liabilities, including the mortgage. Next, the FDIC assigned the mortgage to

JPMorgan Chase Bank, N.A. (Chase), and Chase subsequently assigned the

mortgage to Citibank, N.A. (Citibank). Chase continued to service the loan.

[3] Meanwhile, Mains experienced financial difficulties and defaulted on the

mortgage. In April 2010, Citibank, through attorneys Nelson & Frankenberger,

P.C. (N&F), filed a mortgage foreclosure action against Mains in the Clark

Circuit Court.

[4] Mains disputed Citibank’s foreclosure claim, contending that Citibank had

failed to prove it had validly acquired an interest in the mortgage. The parties

held an unsuccessful settlement conference, and Mains conducted discovery

regarding Citibank’s standing and right to foreclose. Citibank filed a motion for

summary judgment, which the trial court granted on May 3, 2013. Mains

appealed, arguing that Citibank was not a real party in interest and lacked

standing to bring the mortgage foreclosure action. A panel of this Court issued

a memorandum decision affirming the trial court’s judgment. Mains v. Citibank,

NA, No. 10A04-1309-MF-450 (Ind. Ct. App. August 4, 2014), trans. denied,

(Mains I).

[5] Next, Mains filed suit in the United States District Court for the Southern

District of Indiana against Citibank; Chase; Cynthia Riley (a former WaMu

employee); Black Knight InfoServ, LLC (a computer software company) (Black

Knight); N&F; and two other law firms not participating in this case. He

Court of Appeals of Indiana | Memorandum Decision 18A-CT-3152 | September 24, 2019 Page 3 of 14 alleged the defendants had violated the federal Real Estate Settlement

Procedures Act (RESPA), the federal Truth in Lending Act (TILA), the federal

Fair Debt Collection Practices Act (FDCPA), the federal Racketeer Influenced

and Corrupt Organizations Act (RICO), and Indiana Code sections 32-30-10.5-

1 (2009) et seq. (which govern settlement conference in residential foreclosure

cases). Mains also asserted claims under Indiana law for negligent or

intentional infliction of emotional distress, negligent misrepresentation, fraud,

and negligence.

[6] The federal district court dismissed Mains’ complaint for lack of subject matter

jurisdiction. Mains appealed to the United States Court of Appeals for the

Seventh Circuit, arguing that he had recently discovered evidence of fraudulent

behavior by the defendants, and he concluded his claims were not bound by the

judgment in Mains I. The Seventh Circuit affirmed the dismissal of Mains’

complaint, determining that the federal courts lacked jurisdiction over several of

his federal claims, and the remainder of his federal claims were barred by the

doctrine of issue preclusion. Mains v. Citibank, NA, 852 F.3d 669 (7th Cir.

2017), cert. denied. As for Mains’ state law claims, the Seventh Circuit

concluded it could not exercise supplemental jurisdiction over them and

directed the district court to dismiss them without prejudice. Id.

[7] In June 2017, Chase notified Mains that Select Portfolio Servicing, Inc. (SPS),

would replace Chase as the servicer of the mortgage.

Court of Appeals of Indiana | Memorandum Decision 18A-CT-3152 | September 24, 2019 Page 4 of 14 [8] The current case began on April 17, 2018, when Mains sued Citibank, Chase,

N&F, Black Knight, Riley, Christine Anne Saurer, Jodi Sobotta, SPS, and 1 several John Does. All of the defendants were involved in either the execution

of Mains’ mortgage, the reassignment of the mortgage, or the foreclosure case.

Mains stated ten counts against various defendants, including violations of

RESPA, TILA, Indiana Code sections 32-30-10.5-1 et seq., and the FDCPA.

Mains also accused the defendants of negligence, negligent or intentional

infliction of emotional distress, negligent misrepresentation, fraud, and civil

conversion.

[9] Among other requested relief, Mains asked the trial court to issue a declaration

that the judgment of foreclosure was void, grant him relief from the judgment of

foreclosure, and award him monetary damages, punitive damages (including

double or treble damages), repayment of costs and attorney’s fees, equitable

remedies including disgorgement and recoupment of unjust enrichment,

preliminary injunctive relief, and a request for accounting.

[10] Mains filed an amended complaint on July 11, 2018, adding Gerner & Kearns

Co., L.P.A. (G&K), as a defendant. G&K represented Citibank in the

foreclosure action. Neither Sobotta nor G&K filed appearances in this case.

[11] On July 26, 2018, Riley filed a motion to dismiss Mains’ amended complaint

for lack of personal jurisdiction. Soon thereafter, Black Knight and Saurer

1 Mains also sued Manley, Deas, and Kochalski, LLC, but later agreed to that firm’s dismissal from the case.

Court of Appeals of Indiana | Memorandum Decision 18A-CT-3152 | September 24, 2019 Page 5 of 14 jointly filed a motion to dismiss the amended complaint for failure to state a

claim upon which relief could be granted.

[12] Next, on July 30, 2018, Mains filed a verified motion for a temporary

restraining order, asking the court to restrain the defendants from evicting him

from his home while this case was pending. On July 31, 2018, Mains further

filed a verified motion for a preliminary injunction, asking the trial court to

enjoin the defendants from evicting him from his home while this case was

pending.

[13] Also, on July 31, 2018, Chase filed its own motion to dismiss, followed on

August 2, 2018, by Citibank and SPS’s joint motion to dismiss. On August 7,

2018, N&F also filed a motion to dismiss. All three motions asserted Mains’

amended complaint should be dismissed because he had failed to state claims

upon which relief could be granted.

[14] Mains responded to each motion to dismiss, and Citibank and SPS responded

to Mains’ motion for a preliminary injunction. In addition, Black Knight and

Saurer jointly filed a reply in support of their motion to dismiss.

[15] On August 28, 2018, the trial court held oral argument on the motions to

dismiss. The court declined to address Mains’ verified motions for temporary

restraining order and preliminary injunction. On October 3, 2018, the court

issued findings of fact and conclusions thereon granting all defendants’ motions

to dismiss. The court dismissed Mains’ amended complaint in its entirety.

Mains filed a motion to correct error, to which several defendants filed

Court of Appeals of Indiana | Memorandum Decision 18A-CT-3152 | September 24, 2019 Page 6 of 14 responses. On November 28, 2018, the trial court denied Mains’ motion to

correct error. This appeal followed.

1. Defendants Sobotta and G&K [16] We note that although the trial court dismissed Mains’ amended complaint in

its entirety, defendants Sobotta and G&K had not filed appearances, much less

moved to dismiss Mains’ claims against them. In addition, none of the other

defendants claimed authority to represent Sobotta and G&K. Finally, the

court’s judgment does not discuss Mains’ claims against Sobotta and G&K.

Indiana Rule 12 authorizes defendants to move for dismissal of a complaint,

but the rule does not authorize a trial court to dismiss a complaint sua sponte

over the plaintiff’s objection. As a result, the trial court lacked any basis to

dismiss Mains’ claims against those two defendants. We must reverse the trial

court’s dismissal of Mains’ complaint as to Sobotta and G&K and remand for

further proceedings. See, e.g., State ex rel. Van Buskirk v. Wayne Twp., 418 N.E.2d

234 (Ind. Ct. App. 1981) (reversing trial court’s sua sponte grant of summary

judgment on an issue; neither defendant requested that relief).

2. Procedural Default [17] Next, the appellees argue that Mains has waived appellate review of his claims

because his Appellant’s Brief fails to comply with the Indiana Rules of

Appellate Procedure. Mains responds that he provided adequate citations to

the record and authorities.

Court of Appeals of Indiana | Memorandum Decision 18A-CT-3152 | September 24, 2019 Page 7 of 14 [18] Pro se litigants are held to the same legal standards as licensed attorneys,

including complying with the Indiana Rules of Appellate Procedure (the

Appellate Rules). Basic v. Amouri, 58 N.E.3d 980 (Ind. Ct. App. 2016). The

purpose of the appellate rules, especially Appellate Rule 46 (which governs

briefs), is to aid and expedite review, as well as to relieve appellate courts of the

burden of searching the record and briefing the case. Shepherd v. Truex, 819

N.E.2d 457 (Ind. Ct. App. 2004). “We will not become an ‘advocate for a

party, or address arguments that are inappropriate or too poorly developed or

expressed to be understood.’” Basic, 58 N.E.3d at 984 (quoting Perry v.

Anonymous Physician 1, 25 N.E.3d 103, 105 n.1 (Ind. Ct. App. 2014), trans.

denied). While we prefer to decide issues on the merits, where an appellant’s

noncompliance with appellate rules is so substantial as to impede our

consideration of the issues, we may deem the alleged errors waived. Id.

[19] Appellate Rule 46(A)(8)(a) requires that the argument section of an appellant’s

brief “must contain the contentions of the appellant on the issues presented,

supported by cogent reasoning. Each contention must be supported by citations

to the authorities, statutes, and the Appendix or parts of the Record on Appeal

relied on, in accordance with Rule 22.”

[20] Mains has filed a thirty-eight-page Appellant’s Brief that includes a twenty-page

argument section. He discusses the facts of the case in great detail in the

argument section, and he also includes a discussion of foreclosure issues on a

statewide and national basis, including mention of some of the appellees’

involvement in other foreclosure cases and consent judgments.

Court of Appeals of Indiana | Memorandum Decision 18A-CT-3152 | September 24, 2019 Page 8 of 14 [21] The primary, fundamental defect in Mains’ brief is his failure to provide

adequate citations to legal authorities. Mains has accused the appellees of

violating a wide array of federal and state statues, as well as committing

numerous torts. Further, during the trial court proceedings, the appellees

presented defenses including lack of personal jurisdiction, res judicata, and

standing, as well as responses to Mains’ statutory and tort claims. On appeal,

Mains has additionally accused the trial court of displaying bias against him.

[22] Despite the many complex issues Mains presents on appeal, his Appellant’s

Brief cites to only three appellate cases. In addition, he provides citations to

only one statute and to the Indiana Code of Judicial Conduct. After careful

review, we have determined that only one of Mains’ claims, the claim that the

defendants violated Indiana’s statutes governing settlement conferences in

residential foreclosure cases, is supported by adequate citation to authority. As

for his remaining claims, we will not conduct research on Mains’ behalf, and

those claims are waived for failure to provide adequate citation to authority.

See Vandenburgh v. Vandenburgh, 916 N.E.2d 723 (Ind. Ct. App. 2009) (claim

waived for failure to cite adequate authority; appellant cited only two cases on

child support claim, both addressing standard of review rather than the merits).

[23] In addition, Mains’ appendix contains fundamental defects. “The purpose of

an Appendix in civil appeals . . . is to present the Court with copies of only

those parts of the Record on Appeal that are necessary for the Court to decide

the issues presented.” Ind. Appellate Rule 50(A)(1). An Appellant’s Appendix

shall contain the chronological case summary and “pleadings and other

Court of Appeals of Indiana | Memorandum Decision 18A-CT-3152 | September 24, 2019 Page 9 of 14 documents from the Clerk’s Record in chronological order that are necessary

for resolution of the issues raised on appeal.” App. R. 50(A)(2)(f).

[24] Mains’ appendix does not include the chronological case summary. In

addition, he did not include in his appendix any of the defendants’ motions to

dismiss or their responses to his motion to correct error, even though those

documents are by any reasonable definition “necessary for resolution of the

issues” presented in this appeal. Id. It is well established that “[a]ny party’s

failure to include any item in an Appendix shall not waive any issue or

argument,” Appellate Rule 49(B), but the absence of those documents has 2 hampered our review.

3. Foreclosure Prevention Settlement Conference and Claim Preclusion [25] We review de novo a trial court’s grant or denial of a motion to dismiss for

failure to state a claim pursuant to Indiana Trial Rule 12(B)(6), giving no

deference to the trial court’s decision. EngineAir, Inc. v. Centra Credit Union, 107

N.E.3d 1061 (Ind. Ct. App. 2018). When reviewing a motion to dismiss for

failure to state a claim, “this [C]ourt accepts as true the facts alleged in the

complaint.” Morgan Asset Holding Corp. v. CoBank, ACB, 736 N.E.2d 1268, 1271

(Ind. Ct. App. 2000) (quoting Monks v. Pina, 709 N.E.2d 379, 381 (Ind. Ct. App.

2 The Appellees jointly filed an appendix containing those documents, but their filing does not mitigate Mains’ failure to comply with the appellate rules.

Court of Appeals of Indiana | Memorandum Decision 18A-CT-3152 | September 24, 2019 Page 10 of 14 1999), trans. denied). Only well-pleaded material facts must be taken as

admitted. Id. Under notice pleading, we review the granting of a motion to

dismiss for failure to state a claim under a stringent standard and affirm the trial

court’s grant of the motion only when it is “apparent that the facts alleged in the

challenged pleading are incapable of supporting relief under any set of

circumstances.” Trail v. Boys & Girls Clubs of Nw. Ind., 845 N.E.2d 130, 135

(Ind. 2006) (quoting McQueen v. Fayette Cty. Sch. Corp., 711 N.E.2d 62, 65 (Ind.

Ct. App. 1999), trans. denied).

[26] Indiana Code sections 32-30-10.5-1 et seq. govern foreclosure prevention

agreements for residential mortgages. The Indiana General Assembly

determined:

(b) The purpose of this chapter is to avoid unnecessary foreclosures of residential properties and thereby provide stability to Indiana'’ statewide and local economies by:

(1) requiring early contact and communications among creditors, their authorized agents, and debtors in order to engage in negotiations that could avoid foreclosure; and

(2) facilitating the modification of residential mortgages in appropriate circumstances.

Ind. Code § 32-30-10.5-1.

[27] As a result, the General Assembly required creditors who file foreclosure

actions after June 30, 2009, to notify debtors that they have the right to request

a settlement conference (except in certain circumstances not at issue here). Ind. Court of Appeals of Indiana | Memorandum Decision 18A-CT-3152 | September 24, 2019 Page 11 of 14 Code § 32-30-10.5-8 (2009). If a debtor requests a settlement conference, and

the court determines a conference is required, then the “court may not issue a

judgment of foreclosure” unless the conference is held and the parties cannot

reach agreement. Ind. Code § 32-30-10.5-9 (2009). If a settlement conference is

scheduled, the creditor must be represented during the conference by a person

who is authorized to negotiate a foreclosure prevention agreement. Ind. Code §

32-30-10.5-10 (2009).

[28] There is no dispute that Mains requested a settlement conference in Mains I

after Citibank filed the foreclosure case. There is also no dispute that a

settlement conference was held in Mains I, but the attendees failed to reach an

agreement. Mains instead argued in his amended complaint in the current case

that the settlement conference, and by extension the judgment of foreclosure,

were invalid. He claimed the assignment of the mortgage to Citibank was

fraudulent, and thus neither Citibank nor Chase had any authority to negotiate

a foreclosure prevention agreement with him during the foreclosure case.

[29] The appellees argue Mains’ claim under the foreclosure prevention agreement

statutes is barred by res judicata. We agree, determining the doctrine of claim

preclusion applies here. A panel of this Court has explained:

The doctrine of res judicata acts to prevent repetitious litigation of disputes that are essentially the same. The principle of res judicata is divided into two branches: claim preclusion and issue preclusion.

Court of Appeals of Indiana | Memorandum Decision 18A-CT-3152 | September 24, 2019 Page 12 of 14 The first of these branches, claim preclusion, applies where a final judgment on the merits has been rendered and acts as a complete bar to a subsequent action on the same issue or claim between those parties and their privies. When claim preclusion applies, all matters that were or might have been litigated are deemed conclusively decided by the judgment in the prior action. The following four requirements must be satisfied for claim preclusion to apply as a bar to a subsequent action: (1) the former judgment must have been rendered by a court of competent jurisdiction; (2) the former judgment must have been rendered on the merits; (3) the matter now in issue was, or could have been, determined in the prior action; and (4) the controversy adjudicated in the former action must have been between the parties to the present suit or their privies.

Angelopolous v. Angelopolous, 2 N.E.3d 688, 696 (Ind. Ct. App. 2013), trans.

denied (citations omitted).

[30] The Mains I trial court was a court of competent jurisdiction and rendered a

judgment on the merits of the foreclosure claim. In addition, Chase and

Citibank are the only defendants to which Mains’ foreclosure prevention

agreement statute claim rationally applies. Citibank was a party to Mains I, and

Chase, as the loan servicer, was Citibank’s privy. See, e.g., Berry v. Wells Fargo

Bank, N.A., 865 F.3d 880 (7th Cir. 2017) (applying Illinois law and determining

that a mortgagee and the mortgage servicer shared the same interests and were

in privity).

[31] The final question is whether Mains’ settlement conference claim was or could

have been determined in Mains I. During that case, Mains disputed Citibank

was the real party in interest and further argued Citibank lacked standing to

Court of Appeals of Indiana | Memorandum Decision 18A-CT-3152 | September 24, 2019 Page 13 of 14 pursue foreclosure. He thus could have also raised a claim that the settlement

conference was invalid because the claimed creditor was not a real party in

interest. Mains argues he could not have raised this claim in Mains I because

the defendants’ allegedly fraudulent activities prevented him from discovering

the extent of their wrongdoing, but he had ample opportunity to pursue

discovery in the foreclosure case. We conclude that the only claim Mains has

preserved for appellate review is barred by claim preclusion. See Kalwitz v.

Kalwitz, 934 N.E.2d 741 (Ind. Ct. App. 2010) (appellants’ claim of conversion

of personal property was barred by res judicata; claim was or could have been

determined in prior estate proceeding, in which personal property was

distributed).

[32] For the reasons stated above, we affirm the judgment of the trial court in part,

reverse in part, and remand for further proceedings.

[33] Judgment affirmed in part, reversed in part, and remanded.

Baker, J., and Altice, J., concur.

Court of Appeals of Indiana | Memorandum Decision 18A-CT-3152 | September 24, 2019 Page 14 of 14