First Midwest Bank, as successor in interest to Bank Calumet, N.A. v. Dean Vander Woude and Timothy Koster (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: March 11, 2016
• Docket: 64A05-1504-PL-152
• Status: Published

Opinion

MEMORANDUM DECISION Mar 11 2016, 6:23 am Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be regarded as precedent or cited before any court except for the purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case.

ATTORNEY FOR APPELLANTS ATTORNEY FOR APPELLEES David W. Westland Gordon A. Etzler Westland & Bennett, P.C. Gordon A. Etzler & Associates, LLP Schererville, Indiana Valparaiso, Indiana

IN THE COURT OF APPEALS OF INDIANA

First Midwest Bank, as successor March 11, 2016 in interest to Bank Calumet, Court of Appeals Case No. N.A., 64A05-1504-PL-152

Appellant-Defendant, Appeal from the Porter Superior Court. v. The Honorable Roger V. Bradford, Judge. Cause No. 64D01-0605-PL-3878 Dean Vander Woude and Timothy Koster, Appellees-Plaintiffs.

Shepard, Senior Judge

[1] The trial court entered judgment against First Midwest Bank on Dean Vander

Woude and Timothy Koster’s claim of slander of title. First Midwest appeals,

claiming that the evidence is insufficient to support the judgment. We affirm.

Court of Appeals of Indiana | Memorandum Decision 64A05-1504-PL-152 | March 11, 2016 Page 1 of 9 Facts and Procedural History [2] This case is almost a decade old, and this is the third appeal. Michael and Kim

Angelini executed a note and mortgage with First Midwest’s predecessor in

interest, Bank Calumet, N.A. The mortgage applied to property at 601

Franklin Street in Valparaiso, Porter County. Bank Calumet erroneously filed

the mortgage in Lake County rather than in Porter County.

[3] The Angelinis also executed a note and mortgage with Bank One, predecessor

to JP Morgan Chase Bank, using the Franklin Street property as security. JP

Morgan’s mortgage was recorded in Porter County.

[4] The Angelinis experienced financial difficulties and defaulted on both of their

notes. In 2004, JP Morgan filed a foreclosure action. First Midwest was not

named as a defendant. JP Morgan obtained a judgment of foreclosure. On

March 9, 2005, the Franklin Street property was sold at a sheriff’s sale to Dean

Vander Woude and Timothy Koster. They rehabilitated the home and

negotiated a sale to Tom Krueger and his family.

[5] First Midwest, through its counsel David Westland, also filed a foreclosure

action in Porter County in 2004. At that time, First Midwest possessed a

“Memo of Title” from South Shore Title, LLC. Appellees’ App. p. 59. The

Memo indicated that First Midwest’s mortgage had been improperly recorded

in Lake County and needed to be recorded in Porter County. In its complaint

for foreclosure, First Midwest noted that the mortgage had been filed in Lake

Court of Appeals of Indiana | Memorandum Decision 64A05-1504-PL-152 | March 11, 2016 Page 2 of 9 County. A copy of the mortgage was attached to the complaint; it had been

stamped by the Lake County Recorder.

[6] On March 31, 2005, First Midwest obtained a default judgment against the

Angelinis. It filed a praecipe for a sheriff’s sale with the Porter County Clerk,

and the sheriff scheduled the sale for June 9, 2005. Vander Woude discovered

the sale while reading sheriff’s notices in a newspaper. He was “very nervous”

about the news because he had not known of the other mortgage and was

negotiating the sale of the house to the Kruegers. Tr. p. 169.

[7] Vander Woude called First Midwest’s attorney, Westland, to inform Westland

that he had already purchased the property. Westland refused to cancel the

sale. He told Vander Woude that his “responsibility was collecting for the

bank, and that’s what he cared about and he was going to collect, one way or

another, that money.” Id. at 177. Later, after speaking with Vander Woude’s

attorney, Westland canceled the sale by notifying the sheriff in writing.

[8] On June 15, 2005, Westland filed with the Porter County Clerk a second

praecipe to schedule a sale. The sheriff scheduled a sale for August 24, 2005.

Vander Woude learned of the August 24 sale date when Tom Krueger called

him in a “frantic” state of mind. Id. at 186. Vander Woude and his attorney

again contacted Westland to reassert Vander Woude and Koster’s claim to the

property. On August 10, 2005, First Midwest, through Westland, sent a letter

to the Porter County Sheriff asking to cancel the August 24 sale. Westland said

Court of Appeals of Indiana | Memorandum Decision 64A05-1504-PL-152 | March 11, 2016 Page 3 of 9 in the letter that the Angelinis had filed for bankruptcy again but did not

mention the prior sheriff’s sale of the property.

[9] Meanwhile the Kruegers’ lender would not let the new purchase go forward

unless First Midwest’s foreclosure action was addressed. Vander Woude and

Timothy Koster resolved the matter by escrowing $96,600 with the title

company, and the transaction was completed.

[10] Vander Woude and Koster sued First Midwest in 2006, alleging intentional

interference with a contract, conversion, and slander of title. On cross-motions

for summary judgment, the trial court entered judgment in favor of First

Midwest as to intentional interference and conversion, and in favor of Vander

Woude and Koster as to slander of title. At a jury trial on damages, the jury

awarded Vander Woude and Koster $99,900.

[11] On appeal, a panel of this Court determined that Vander Woude and Koster

were not entitled to summary judgment for slander of title and remanded for

further proceedings. First Midwest Bank v. Vander Woude, No. 64A04-1103-PL-

120 (Ind. Ct. App. Jan. 5, 2012).

Court of Appeals of Indiana | Memorandum Decision 64A05-1504-PL-152 | March 11, 2016 Page 4 of 9 [12] On remand, the court held a bench trial and determined that First Midwest had

committed slander of title and awarded Vander Woude and Koster damages 1 and attorney’s fees. This appeal followed.

Discussion and Decision [13] As the trial court issued findings of fact and conclusions, our review examines

whether the evidence supports the findings and whether the findings support the

judgment. Mayberry Café, Inc. v. Glenmark Constr. Co., 879 N.E.2d 1162 (Ind. Ct.

App. 2008), trans. denied. “On appeal of claims tried by the court without a jury

. . . the court on appeal shall not set aside the findings or judgment unless

clearly erroneous, and due regard shall be given to the opportunity of the trial

court to judge the credibility of the witnesses.” Ind. Trial Rule 52(A). Findings

of fact are clearly erroneous when the record lacks reasonable inferences from

the evidence to support them. Mayberry Café, 879 N.E.2d 1162. We consider

only the evidence favorable to the judgment and all reasonable inferences, and

we will not reweigh the evidence or assess witness credibility. Id.

[14] To prevail on a slander of title claim, a plaintiff must prove that the defendant

made false, malicious statements regarding the plaintiff’s ownership and that

those statements proximately caused the plaintiff pecuniary loss. Walsh & Kelly,

1 In a separate appeal, Vander Woude and Koster challenged the amount of the attorney’s fees and the trial court’s denial of their request for prejudgment interest. Vander Woude v. First Midwest Bank, ___ N.E.3d ___, No. 64A04-1504-PL-160 (Ind. Ct. App. Nov. 6, 2015). The Court affirmed the denial of prejudgment interest but reversed and remanded for recalculation of attorney’s fees. Id.

Court of Appeals of Indiana | Memorandum Decision 64A05-1504-PL-152 | March 11, 2016 Page 5 of 9 Inc. v. Int’l Contractors, Inc., 943 N.E.2d 394 (Ind. Ct. App. 2011), trans. denied.

Malicious statements are those made knowingly or with reckless disregard for

their falsity. Id. The trier of fact may infer malice from the evidence. Id.

[15] First Midwest claims the trial court erred in citing certain evidence – “the

recording of [First Midwest’s] mortgage, the filing of a mortgage foreclosure

action, and the obtaining of a default judgment” – as proof of slander of title.

Appellant’s Br. p. 6. First Midwest reasons that the statements in its court

pleadings were privileged and cannot support a claim of slander of title.

[16] If a statement is made under circumstances where it is absolutely privileged, no

right of action for slander accrues even though the statement may have been

actionable in other circumstances. Trotter v. Ind. Waste Sys., Inc., 632 N.E.2d

1159 (Ind. Ct. App. 1994). Statements contained in pleadings are absolutely

privileged if they are relevant to the litigation. Id. By contrast, litigating a case

is an action, not a statement in a court document, and may support a claim of

slander of title. See Country Contractors, Inc. v. A Westside Storage of Indianapolis,

Inc., 4 N.E.3d 677 (Ind. Ct. App. 2014) (filing of invalid lien claim was

sufficient evidence to support slander of title claim). The evidence First

Midwest claims to be privileged involves acts rather than statements in court

documents, and its claim of privilege must fail.

[17] Next, First Midwest says the trial court failed to find that it acted maliciously.

In its findings and conclusions, the court stated that it intended to decide

whether First Midwest acted “with malice” in scheduling the sheriff’s sales.

Court of Appeals of Indiana | Memorandum Decision 64A05-1504-PL-152 | March 11, 2016 Page 6 of 9 Appellant’s App. p. 37. The court then determined that First Midwest initiated

the sales by filing praecipes and that First Midwest “placed a cloud upon the

title” to the Franklin Street property by recording in the wrong county, pursuing

a foreclosure, and obtaining a default against the Angelinis. One may

reasonably infer from these statements that the trial court concluded as a matter

of law that First Midwest acted with malice.

[18] First Midwest further claims that there is insufficient evidence to support a

conclusion that it acted with malice. As noted above, malice may be inferred

from the evidence. The Angelinis defaulted on a note and mortgage which

First Midwest had recorded in the wrong county. Westland conceded, “A

mortgage that is recorded in the wrong county is not secured. It is an unsecured

debt.” Appellees’ App. p. 34. Thus, due to the recording error, JP Morgan’s

mortgage held first priority.

[19] First Midwest filed a foreclosure even though it had received a report from a

title insurance company noting the recording error. In its complaint, First

Midwest stated that the mortgage had been recorded in Lake County and

attached a copy of the mortgage bearing a Lake County recording stamp. Thus,

the invalidity of the foreclosure action was or should have been known to First

Midwest from the very outset.

[20] First Midwest obtained a default against the Angelinis and, after the court

issued its order, initiated a sheriff’s sale. Vander Woude and his lawyer both

notified attorney Westland that Vander Woude and Koster had purchased the

Court of Appeals of Indiana | Memorandum Decision 64A05-1504-PL-152 | March 11, 2016 Page 7 of 9 property at a sheriff’s sale. First Midwest initially declined to cancel the sale,

stating that it intended to recover its money “one way or another.” Tr. p. 177.

[21] First Midwest eventually directed that the sale be canceled but did not research

ownership of the property or the validity of its claim. Instead, its lawyer filed a

second praecipe for a sheriff’s sale, further hindering Vander Woude and

Koster’s attempts to sell the property. This is ample evidence to support the

trial court’s determination that First Midwest maliciously made false statements

regarding Vander Woude and Koster’s ownership. See Lee & Mayfield, Inc. v.

Lykowski House Moving Eng’rs, Inc., 489 N.E.2d 603 (Ind. Ct. App. 1986)

(wrongful filing of baseless action to foreclose upon mechanic’s lien was

sufficient proof of malice), trans. denied.

[22] Finally, First Midwest argues there is insufficient evidence that it proximately

caused Vander Woude and Koster’s damages. A proximate cause is “‘that

cause which, in natural and continuous sequence, unbroken by any efficient

intervening cause, produces the result complained of and without which the

result would not have occurred.’” Peters v. Forster, 804 N.E.2d 736, 743 (Ind.

2004) (quoting Orville Milk Co. v. Beller, 486 N.E.2d 555, 559 (Ind. Ct. App.

1985)).

[23] Vander Woude and Koster negotiated to sell the property to the Krueger family

and executed a contract in May 2005, but First Midwest’s repeated attempts to

obtain a sheriff’s sale interfered with negotiations and delayed the sale. Tom

Krueger notified Vander Woude of the second scheduled sheriff’s sale. First

Court of Appeals of Indiana | Memorandum Decision 64A05-1504-PL-152 | March 11, 2016 Page 8 of 9 Midwest’s erroneously recorded mortgage and its default judgment against the

Angelinis caused the title company to require Vander Woude and Koster to

escrow an additional $96,600 to address the cloud on the title. As a result,

Vander Woude and Koster exhausted their line of credit and had to pass up

several business opportunities because they could not use the escrowed funds.

This is ample evidence to support a conclusion that First Midwest’s tortious

behavior proximately caused their damages.

Conclusion [24] For the reasons stated above, we affirm the judgment of the trial court.

[25] Affirmed.

May, J., and Crone, J., concur.

Court of Appeals of Indiana | Memorandum Decision 64A05-1504-PL-152 | March 11, 2016 Page 9 of 9