Michael Francis and Carmen Jay Francis v. EMC Mortgage, LLC (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: March 15, 2019
• Docket: 18A-MF-1493
• Status: Published

Opinion

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), FILED this Memorandum Decision shall not be Mar 15 2019, 10:13 am regarded as precedent or cited before any court except for the purpose of establishing CLERK Indiana Supreme Court Court of Appeals the defense of res judicata, collateral and Tax Court

estoppel, or the law of the case.

APPELLANTS PRO SE ATTORNEYS FOR APPELLEE Michael Francis David J. Jurkiewicz Carmen Jay Francis Christina M. Bruno Indianapolis, Indiana Bose McKinney & Evans LLP Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Michael Francis and Carmen Jay March 15, 2019 Francis, Court of Appeals Case No. Appellants-Defendants, 18A-MF-1493 Appeal from the Marion Superior v. Court The Honorable Timothy W. Oakes, EMC Mortgage, LLC, Judge Appellee-Plaintiff. Trial Court Cause No. 49D02-0706-MF-23133

Sharpnack, Senior Judge.

Court of Appeals of Indiana | Memorandum Decision 18A-MF-1493 | March 15, 2019 Page 1 of 14 Statement of the Case [1] Michael and Carmen Francis (collectively the Francises) appeal the trial court’s

denial of their motion to correct error. We affirm.

Issue [2] The Francises present three issues for our review, which we restate as one:

whether the trial court erred by denying the Francises’ motion to correct error.

Facts and Procedural History [3] In 1994, the Francises executed a promissory note and a mortgage on their

home. When the note matured in 2001, the Francises failed to satisfy the

outstanding balance. In 2007, EMC Mortgage, LLC (EMC) filed suit to

foreclose on the mortgage. The trial court entered a foreclosure judgment in

February 2016, which the Francises appealed. This Court affirmed the trial

court’s judgment in a memorandum decision in April 2017, and our Supreme

Court later denied transfer. See Francis v. EMC Mortg., LLC, No. 49A02-1604-

MF-830 (Ind. Ct. App. Apr. 19, 2017), trans. denied.

[4] In addition,

[t]he Francises filed bankruptcy proceedings and initiated an adversary proceeding in the United States Bankruptcy Court for the Southern District of Indiana seeking almost $200,000 in damages from EMC Mortgage for an allegedly improper foreclosure. The Bankruptcy Court dismissed the adversary proceeding for lack of jurisdiction over a state foreclosure action. The Francises appealed the decision to the United States District

Court of Appeals of Indiana | Memorandum Decision 18A-MF-1493 | March 15, 2019 Page 2 of 14 Court for the Southern District of Indiana, and the bankruptcy court’s decision was affirmed.

Francis v. Fannie Mae, et al., No. 18A-CT-8, slip op. at 2 (Ind. Ct. App. Nov. 26,

2018).

[5] In August 2017 in state court, the Francises filed a “Complaint for Lack of

Standing to Foreclose, Fraud in the Concealment, Fraud in the Inducement,

Unconscionable Contract, Breach of Contract, Breach of Fiduciary Duty, Quiet

Title, Slander of Title, Temporary Restraining Order/Injunctive Relief and Jury

Demand” against EMC and several other defendants. Id. In October, EMC

and other defendants filed a motion to dismiss the complaint on grounds that

the claims were barred under principles of res judicata. The trial court granted

the motion to dismiss and ordered that the defendants be dismissed from the

action with prejudice. The Francises then filed a motion to correct error, which

was denied. The Francises appealed.

[6] In appealing the dismissal of their complaint and denial of their motion to

correct error, the Francises argued that EMC could not participate in the action

because it was “defunct” and not authorized to do business in Indiana.

Concluding the Francises were barred by res judicata from raising these claims

because they raised them in their prior appeal of the foreclosure judgment, a

panel of this Court affirmed the dismissal of the Francises’ complaint. See id.

[7] Meanwhile, in the underlying action in the trial court, defendant PNC Bank

filed a motion for judgment on the pleadings in December 2017, also

Court of Appeals of Indiana | Memorandum Decision 18A-MF-1493 | March 15, 2019 Page 3 of 14 contending the Francises’ claims were barred by res judicata. The trial court

granted PNC’s motion. The Francises filed with the Supreme Court a praecipe

for withdrawal of the case, which the Court determined was unwarranted. The

Francises then filed a motion to correct error in the trial court, which the trial

court denied. The Francises appealed.

[8] In its decision on appeal, a panel of this Court noted that the Francises claimed

to have uncovered evidence of fraud and multiple forgeries; made numerous

factual allegations, including a now-defunct title company engineered a

fraudulent mortgage agreement, the prior owner of the property failed to appear

at closing and substituted his son to pose as the owner, and the sheriff’s eviction

notice contained possibly forged signatures; and asserted instances of

procedural error. Finding that the Francises waived the issues due to their

failure to comply with the rules of appellate procedure by supporting their

contentions with cogent reasoning and appropriate citations to the record, the

Court determined they had not demonstrated the trial court abused its

discretion in denying their motion to correct error. See Francis v. Accubanc Mortg.

Corp., No. 18A-CT-596 (Ind. Ct. App. Sept. 14, 2018).

[9] In the meantime, in February 2017, Homesales, Inc. had purchased the real

estate at a sheriff’s sale. In November, the real estate agent for Homesales and

other representatives went to the real estate to evict the Francises, but they

discovered that the Francises had already vacated the premises. The real estate

agent installed locks on the doors, and, in early February 2018, he listed the

home for sale. A few weeks later the agent went to the home and discovered a

Court of Appeals of Indiana | Memorandum Decision 18A-MF-1493 | March 15, 2019 Page 4 of 14 U-Haul truck in the driveway and the Francises and two other individuals

unloading items from the truck into the home. Michael admitted that he had

cut the lock on the door, and he indicated to the agent that he and Carmen were

moving back into the home. The real estate agent called for police assistance,

and the Francises were directed to leave the premises.

[10] In April 2018, EMC and Homesales filed with the trial court a motion entitled

“Motion to Enforce Writ of Assistance, Motion for Order Barring Michael and

Carmen Francis from the Real Estate, Motion for Sanctions, and Motion to

Declare Michael and Carmen Francis Vexatious Litigants.” The trial court

granted EMC and Homesales’ motion. The Francises then filed a motion

entitled “Verified Motion to Correct Errors, Objections for Lack of Due Process

for Order to EMC and Homesales,” which the trial court denied. This appeal

followed.

Discussion and Decision [11] The Francises appeal the denial of their motion to correct error. Trial courts

have broad discretion to determine whether they will grant or deny a motion to

correct error. Luxury Townhomes, LLC v. McKinley Props., Inc., 992 N.E.2d 810,

815 (Ind. Ct. App. 2013), trans. denied. A trial court abuses this discretion only

if its decision is clearly against the logic and effect of the facts and

circumstances before the court or the reasonable inferences to be drawn

therefrom. Id. On appeal, the trial court’s decision is cloaked in a presumption

of correctness, and the appellant has the burden of proving that the trial court

Court of Appeals of Indiana | Memorandum Decision 18A-MF-1493 | March 15, 2019 Page 5 of 14 abused its discretion. Jones v. Jones, 866 N.E.2d 812, 814 (Ind. Ct. App. 2007).

The appellate court neither reweighs the evidence nor judges the credibility of

witnesses. Id.

[12] Although this is an appeal from the denial of the Francises’ motion to correct

error, the Francises appear to be raising the following claims: (1) the

foreclosure action is barred by a “Satisfaction of Mortgage;” (2) EMC cannot be

a party to this case because it is “defunct” and lacks standing; (3) signatures on

sheriff’s documents were forged; (4) the trial court erred by not holding a

hearing on EMC’s motion; (5) the trial court erred by allowing the Homesales

real estate agent to file an affidavit with EMC’s motion; (6) the trial court erred

by failing to rule on the Francises’ motion to correct error; and (7) counsel for 1 EMC failed to appear in this appeal.

Res Judicata [13] We address the Francises’ first three arguments under the doctrine of res

judicata. The doctrine of res judicata serves to prevent repetitious litigation of

disputes that are essentially the same. Hilliard v. Jacobs, 957 N.E.2d 1043, 1046

(Ind. Ct. App. 2011), trans. denied. The doctrine has two components: claim

1 EMC contends that we should decline to review the Francises’ claims because the Francises have hindered this Court’s review of the issues, failed to follow the appellate rules, and failed to present a cogent argument. It is well established that we will not consider an appellant’s assertions upon which he or she has not presented cogent argument supported by authority and references to the record as required by the rules or address arguments that are either inappropriate, too poorly developed, or improperly expressed to be understood. Lasater v. Lasater, 809 N.E.2d 380, 389 (Ind. Ct. App. 2004). While the Francises’ arguments are not skillfully presented, we address what we understand to be their concerns.

Court of Appeals of Indiana | Memorandum Decision 18A-MF-1493 | March 15, 2019 Page 6 of 14 preclusion and issue preclusion. Id. Claim preclusion applies when a final

judgment on the merits has been rendered in an action, and it acts to bar a

subsequent action on the same claim between the same parties. Evergreen

Shipping Agency Corp. v. Djuric Trucking, Inc., 996 N.E.2d 337, 340 (Ind. Ct. App.

2013). More specifically, claim preclusion applies when the following four

factors are satisfied: (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. Id.

1. Satisfaction of Mortgage [14] The Francises allege they received a Satisfaction of Mortgage which discharges

and releases them from the mortgage and bars all suits thereon. In support of

this argument, they include a copy of a document entitled “Satisfaction of

Mortgage” that names them and their property, acknowledges full payment of

the mortgage, is signed by a representative of the Federal National Mortgage

Association (“Fannie Mae”) as “mortgagee,” and shows a file stamp from the

county recorder’s office dated April 25, 2018. Appellants’ App. Vol. III, p. 111.

[15] However, in response to the Francises’ claims, EMC has submitted an affidavit

from the representative at Fannie Mae who caused the Satisfaction of Mortgage

Court of Appeals of Indiana | Memorandum Decision 18A-MF-1493 | March 15, 2019 Page 7 of 14 to be signed and sent to the Francises. In the affidavit, the representative sets

forth events that occurred in March and April of 2018.

[16] We pause here to note the relevant timeline. The foreclosure judgment was

issued by the trial court in February 2016 and states that EMC at that time was

the holder of the note and the mortgage on the Francises’ property and was the

party entitled to enforce those documents. Appellee’s App. Vol. II, p. 5. The

order further states that EMC’s mortgage was at the time a valid lien on the

property and ordered that the lien of the mortgage be foreclosed as first and

prior lien. Id. at 7. That judgment was affirmed on appeal by this Court in

April 2017.

[17] A year later, in March and April of 2018, the Fannie Mae representative began

receiving emails from Michael Francis. Id. at 176. Attached to one of the

emails was a document entitled Satisfaction of Mortgage, which the Francises

requested Fannie Mae to execute. Id. at 177. Incorrectly understanding the

document to disclaim any interest of Fannie Mae in the loan related to the

Francises’ property, the representative caused the document to be executed. Id.

The affiant representative sets forth that he did not realize: (1) the Satisfaction

of Mortgage erroneously identified Fannie Mae as the present owner of the

mortgage, and (2) the Satisfaction of Mortgage erroneously indicated that

Fannie Mae acknowledged full payment and satisfaction of the mortgage. Id.

Fannie Mae was neither the owner of the mortgage nor had it received full

payment and satisfaction of the mortgage because the loan had been purchased

from Fannie Mae by a different loan servicer in 2002. Id. On November 8,

Court of Appeals of Indiana | Memorandum Decision 18A-MF-1493 | March 15, 2019 Page 8 of 14 2018, the affidavit of the Fannie Mae representative was filed with the county

recorder referencing both the mortgage and the satisfaction and was entitled

“Affidavit Regarding Erroneous Satisfaction of Mortgage.” Id. at 175.

[18] Not only is this a baseless claim, but also it is the Francises’ attempt to

circumvent and relitigate the foreclosure proceeding, which has been fully

litigated to a final determination. The judgment of foreclosure was rendered on

the merits by the Marion County Superior Court, a court of competent

jurisdiction, and that controversy involved the same parties. That judgment

was affirmed on appeal. See Francis, 49A02-1604-MF-830.

2. Defunct Company/Lacks Standing [19] In addition, the Francises claim that EMC cannot be a party to this action

because the company is “defunct” and lacks standing. Appellants’ Br. p. 46.

This claim also relates to the foreclosure judgment. As we stated, that

judgment was rendered on the merits by a court of competent jurisdiction and

determined a controversy involving the same parties. Further, the Francises

have previously raised the claims of defunct business and lack of standing in

their appeal of the foreclosure judgment, see Francis, No. 49A02-1604-MF-830,

slip op. at 3, as well as in their appeal of the dismissal of their August 2017

lawsuit against EMC. See Francis, No. 18A-CT-8, slip op. at 3 (noting Francises

are attempting to “rehash” same arguments Court addressed in prior appeal and

applying res judicata to bar relitigation).

Court of Appeals of Indiana | Memorandum Decision 18A-MF-1493 | March 15, 2019 Page 9 of 14 3. Forged Signatures [20] As best we can discern, it appears the Francises are making broad allegations of

forged signatures on sheriff’s documents. This claim, just as the two before it,

relates to the 2016 foreclosure. That controversy involved the same parties, and

a court of competent jurisdiction rendered a decision on the merits.

Additionally, the Francises also previously raised this issue as part of their

newly discovered evidence claim to support their motion to correct error in

Francis, No. 18A-CT-596 (determining that alleged newly discovered evidence

did not satisfy due diligence requirement, and trial court did not abuse its

discretion by denying Francises’ motion to correct error based upon such).

[21] Consequently, claim preclusion bars the Francises from relitigating the

foreclosure action by raising these arguments.

4. Hearing [22] Next, the Francises contend the trial court erred by not holding a hearing on

EMC’s motion requesting they be barred from the property and that sanctions

and restrictions on their future filings be imposed.

[23] Trial Rule 73 gives courts flexibility to deal with hearings regarding motions.

Apple v. Hall, 412 N.E.2d 114, 117 (Ind. Ct. App. 1980). Indeed, Trial Rule 73

allows the trial court to expedite its business by directing the submission and

determination of motions without oral hearing. Where a trial rule requires the

court to conduct a hearing before deciding a motion, that rule will trump Trial

Rule 73, and the court must conduct a hearing; however, where the trial rule is

Court of Appeals of Indiana | Memorandum Decision 18A-MF-1493 | March 15, 2019 Page 10 of 14 silent about a hearing requirement, Trial Rule 73 permits the trial court to rule

on a motion without a hearing. Rumfelt v. Himes, 438 N.E.2d 980, 983-84 (Ind.

1982) (determining that Trial Rule 41(E)’s hearing requirement controls over

Trial Rule 73).

[24] Here, the trial rules do not indicate that a hearing was required on EMC’s

motion, and the Francises cite to no authority that entitled them to such a

hearing. Moreover, EMC’s motion was filed April 9, and the trial court did not

rule upon the motion until May 2. Although they had plenty of time, the

Francises failed to file anything in response to EMC’s motion or to request a

hearing. Most telling is Judge Oakes’ notation on the order granting EMC’s

motion: “Ct believes a hearing is unnecessary since the matter has been heard,

appealed, and a[d]judicated fully. Therefore, Court is granting essentially what

has already previously been granted.” Appellee’s App. Vol. II, p. 35. As Judge

Oakes acknowledged, the basis of EMC’s motion is essentially the enforcement

of things already determined, thus making a hearing futile.

5. Affidavit [25] The Francises also allege that the trial court erred by allowing the Homesales

real estate agent to submit an affidavit without being a party in the original

case.

[26] EMC submitted the affidavit of the Homesales real estate agent in support of its

motion requesting the Francises be barred from the property and that sanctions

and restrictions on their future filings be imposed. The affidavit set forth the

Court of Appeals of Indiana | Memorandum Decision 18A-MF-1493 | March 15, 2019 Page 11 of 14 events witnessed by the agent that caused EMC to file its motion with the trial

court, namely that the agent had installed locks on the doors of the property

and, in February 2018, had listed the home for sale. A few weeks later he went

to the home and found the Francises moving items into the home. At that time,

Michael admitted to the agent that he had cut the lock on the door, and he

indicated that he and Carmen were moving back in—two years after the

foreclosure judgment.

[27] A trial court may, in its discretion, accept affidavits supporting a motion. Ind.

Trial Rule 6(D). “Good practice in all cases requires that where a motion is

founded upon matters not within the judicial knowledge of the court, there

should be an affidavit as to the existence of the facts upon which it is based,

showing their materiality and the necessity for invoking the aid of the court

with reference thereto.” Terre Haute Gas Corp. v. Johnson, 221 Ind. 499, 507-08,

45 N.E.2d 484, 487 (1942), judgment modified on reh’g, 221 Ind. 499, 48 N.E.2d

455 (1943). We are unaware of any requirement that an affiant be a party to the

case, and the Francises cite to none. There was no error in allowing the filing

of the agent’s affidavit in support of EMC’s motion.

6. Failure to Rule [28] The Francises next make the specious argument that the trial court erred by

failing to rule upon their motion to correct error. First, they know the trial

court ruled on their motion because they are appealing its denial. Second, the

motion is stamped “DENIED” with the date of May 29, 2018 and the judge’s

signature, a copy of which the Francises included in their appendix. See Court of Appeals of Indiana | Memorandum Decision 18A-MF-1493 | March 15, 2019 Page 12 of 14 Appellants’ App. Vol. II, p. 2. In addition, the CCS notations show the judge

denied the Francises’ motion to correct error on May 29, 2018 and that notice

was issued to the parties. See id. at 39.

7. Counsel’s Appearance [29] Again, the Francises present a baseless argument by alleging that EMC’s

counsel did not file an appearance in this appeal. In fact, the docket of this

Court shows that David J. Jurkiewicz and Christina M. Bruno of Bose

McKinney & Evans, LLP appeared in this action on behalf of EMC Mortgage,

LLC on October 5, 2018. In addition, the appearance certifies it was served

upon the Francises on the same date via the e-filing system at the email

addresses they provided in their Notice of Appeal as well as being sent via first-

class U.S. mail to the address they listed in their Notice of Appeal.

Conclusion [30] We have defined judicial discretion as “a privilege allowed a judge within the

confines of justice to decide and act in accordance with what is fair and

equitable.” Fulton v. Van Slyke, 447 N.E.2d 628, 636 (Ind. Ct. App. 1983).

Review of an exercise of judicial discretion must be made in light of and

confined to the facts and circumstances of a particular case, and an abuse of

discretion occurs only when the result is clearly against the logic and effect of

the facts and circumstances before the court or the reasonable, probable, and

actual deductions flowing therefrom. Id. The Francises have not demonstrated

that the trial court abused its discretion in denying their motion to correct error.

Court of Appeals of Indiana | Memorandum Decision 18A-MF-1493 | March 15, 2019 Page 13 of 14 [31] Affirmed.

Crone, J., and Brown, J., concur.

Court of Appeals of Indiana | Memorandum Decision 18A-MF-1493 | March 15, 2019 Page 14 of 14