Mitza N. Durham v. JP Morgan Chase Bank, N.A. (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: July 31, 2017
• Docket: 36A05-1608-MF-1925
• Status: Published

Opinion

MEMORANDUM DECISION 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 FILED the defense of res judicata, collateral Jul 31 2017, 5:51 am estoppel, or the law of the case. CLERK Indiana Supreme Court Court of Appeals and Tax Court

ATTORNEY FOR APPELLANT ATTORNEY FOR APPELLEE Gary D. Sallee Jordan Huttenlocker Fishers, Indiana Dykema Gossett PLLC Chicago, Illinois

IN THE COURT OF APPEALS OF INDIANA

Mitza N. Durham, July 31, 2017 Appellant-Defendant, Court of Appeals Case No. 36A05-1608-MF-1925 v. Appeal from the Jackson Superior Court JP Morgan Chase Bank, N.A., The Honorable Bruce Markel III, Appellee-Plaintiff Judge Trial Court Cause No. 36D01-1304-MF-54

Crone, Judge.

Court of Appeals of Indiana | Memorandum Decision 36A05-1608-MF-1925 | July 31, 2017 Page 1 of 10 Case Summary [1] Mitza N. Durham appeals the trial court’s denial of her motion to set aside a

judgment of mortgage foreclosure in favor of JP Morgan Chase Bank, N.A.

(“Chase”). Finding no error, we affirm.

Facts and Procedural History [2] In July 2007, Mitza’s then-husband Charles signed a note for a home equity

line of credit, which was secured by a mortgage on their residence (“the

Property”). The mortgage was signed by both Charles and Mitza and

ultimately was transferred to Chase. In March 2011, Charles stopped making

payments on the note. At some point, the Durhams’ marriage was dissolved,

and the Property was awarded to Mitza.

[3] In April 2013, Chase filed a complaint against Mitza and Charles on the note

and to foreclose the mortgage. Chase requested an in personam judgment

against Charles and an in rem judgment against the Property. Charles was

served by the sheriff, who left a copy of the summons and complaint at the

Property, his last known address. No one appeared for Charles. Mitza was

similarly served, and her counsel appeared and filed an answer to Chase’s

complaint.

[4] On March 17, 2016, Chase filed a motion for summary and default judgment

and decree of foreclosure, asserting that Charles had defaulted on the note and

therefore Chase was entitled to a decree of foreclosure pursuant to the terms of

the mortgage. Neither Mitza nor Charles filed a timely response. On April 20,

Court of Appeals of Indiana | Memorandum Decision 36A05-1608-MF-1925 | July 31, 2017 Page 2 of 10 2016, the trial court issued an order granting Chase’s motion for summary and

default judgment and decree of foreclosure, in which it awarded Chase an in

personam judgment against Charles and an in rem judgment against the

Property for over $313,000 and ordered the Property sold to satisfy the

judgment. Two days later, Mitza filed a response to Chase’s motion and an

affidavit in which she averred that she did not sign the second mortgage. The

trial court issued an order finding Mitza’s response untimely and affirming its

previous order.

[5] On June 3, 2016, Mitza filed a motion to set aside/vacate the judgment and an

affidavit in which she averred for the first time that Charles had not resided at

the Property since August 2010 and had concealed his whereabouts since that

time. She argued that Charles had not been properly served and therefore the

judgment was void for lack of personal jurisdiction. In response, Chase argued

that Mitza did not have standing to raise that issue. The trial court denied

Mitza’s motion. This appeal followed.

Discussion and Decision [6] Mitza argues that the trial court erred in denying her motion, which we

construe as a motion for relief from judgment pursuant to Indiana Trial Rule

60(B). We typically review a trial court’s ruling on a Trial Rule 60(B) motion

for an abuse of discretion, which occurs when the ruling is clearly against the

logic and effect of the supporting facts and inferences. Hair v. Deutsche Bank

Nat’l Trust Co., 18 N.E.3d 1019, 1022 (Ind. Ct. App. 2014). Mitza attacked the

trial court’s order on Chase’s motion for summary and default judgment as void Court of Appeals of Indiana | Memorandum Decision 36A05-1608-MF-1925 | July 31, 2017 Page 3 of 10 for lack of personal jurisdiction pursuant to Trial Rule 60(B)(6). A judgment

that is void for lack of personal jurisdiction may be collaterally attacked at any

time. Id. Whether a court has personal jurisdiction over a defendant is a

question of law subject to de novo review. Id.

[7] We need not address Mitza’s jurisdictional issue, however. By signing the

mortgage contract, Mitza agreed that the mortgage holder could foreclose on

her in rem interest in the Property; foreclosure was contingent upon Charles’s

default on the note, not upon an in personam judgment against Charles. See

Appellee’s App. at 11 (mortgage contract: “Upon the occurrence of a default

…, Lender may institute an action to foreclose this Mortgage under Indiana

law.”). On summary judgment, Chase asserted that Charles was in default, and

Chase submitted an affidavit of indebtedness in support of this assertion. By

granting Chase’s summary judgment motion, the trial court ruled in Chase’s

favor on the issue of default. Mitza failed to file a timely response to Chase’s

motion and may not attempt to litigate the issue for the first time on appeal. See

Dunaway v. Allstate Ins. Co., 813 N.E.2d 376, 387 (Ind. Ct. App. 2004) (“Issues

not raised before the trial court on summary judgment cannot be argued for the

first time on appeal and are waived.”). Nor may she attempt to litigate the issue

of whether she actually signed the mortgage. Id. Therefore, we affirm.

[8] Affirmed.

Baker, J., concurs. Barnes, J., dissents with opinion.

Court of Appeals of Indiana | Memorandum Decision 36A05-1608-MF-1925 | July 31, 2017 Page 4 of 10 IN THE COURT OF APPEALS OF INDIANA

Mitza N. Durham, Appellant-Defendant, Court of Appeals Case No. 36A05-1608-MF-1925 v.

JP Morgan Chase Bank, N.A., Appellee-Plaintiff.

Barnes, Judge.

[9] I respectfully dissent. The majority concludes that Chase demonstrated Charles

was in default by submitting an affidavit of indebtedness, and nothing else was

required to foreclose the second mortgage at issue here. I would, however,

address the issue raised by the parties—whether Durham had standing to raise

the lack of personal jurisdiction over a co-defendant. I conclude that Durham

had standing to raise the issue, that the trial court did not have personal

jurisdiction over Charles, and that the judgment finding Charles in default on

Court of Appeals of Indiana | Memorandum Decision 36A05-1608-MF-1925 | July 31, 2017 Page 5 of 10 the note is void. Consequently, I do not believe that foreclosure of the second

mortgage is proper at this point.

[10] “A judgment entered where there has been insufficient service of process is void

for want of personal jurisdiction.” Hair v. Deutsche Bank Nat. Trust Co., 18

N.E.3d 1019, 1022 (Ind. Ct. App. 2014) (citing Front Row Motors, LLC v. Jones, 5

N.E.3d 753, 759 (Ind. 2014)). The trial court found that Durham had no

standing to object to the lack of proper personal service on Charles. Whether a

co-defendant has the ability to challenge the lack of personal service on another

defendant appears to be an issue of first impression in Indiana. 1 In support of

her argument that she is entitled to challenge the lack of personal service on

Charles, Durham relies in part on U-Haul Intern., Inc. v. Nulls Machine and Mfg.

Shop, 736 N.E.2d 271 (Ind. Ct. App. 2000), trans. denied.

[11] In U-Haul, a defendant filed a motion to correct error challenging the grant of

summary judgment to several co-defendants. The plaintiff argued that the

defendant lacked standing to challenge the grant of summary judgment to the

co-defendants. We held that, “[i]n order to have standing to challenge the

dismissal of a co-defendant from a lawsuit, the challenging party must

demonstrate that it has a stake in the outcome of the ruling.” U-Haul, 736

N.E.2d at 275 (citing Shand Mining, Inc. v. Clay County Bd. of Comm’rs, 671

1 Chase relies on Stidham v. Whelchel, 698 N.E.2d 1152 (Ind. 1998), for the proposition that challenges to personal jurisdiction over a defendant can only be raised by that defendant and are waivable. However, Stidham did not concern a defendant challenging the service of process and personal jurisdiction over a third party. I do not find Stidham applicable here.

Court of Appeals of Indiana | Memorandum Decision 36A05-1608-MF-1925 | July 31, 2017 Page 6 of 10 N.E.2d 477 (Ind. Ct. App. 1996), trans. denied). We noted that, in general,

“‘[o]ne defendant does not have standing to appeal a judgment rendered in

favor of a co-defendant unless the defendant suffers some prejudice as a result

of the entry of judgment in favor of the co-defendant.’” Id. (quoting Shand

Mining, 671 N.E.2d at 479). The defendant in U-Haul argued that it was

prejudiced by the grant of summary judgment to the co-defendants because it

was exposed to a chance of greater liability for damages resulting from the

accident. Id.

[12] We found no Indiana case that was directly on point regarding whether a co-

defendant has standing to challenge a summary judgment ruling that operates

to dismiss another co-defendant from the case. Id. After analyzing several

cases from other states and comparable Indiana cases, we concluded that a

defendant may demonstrate standing if “it has a stake in the outcome and will

potentially suffer prejudice as a result of a co-defendant’s dismissal.” Id. at 280.

However, the “remaining co-defendant must do something at the trial court

level to preserve the error.” Id. “The failure to do so waives the claim for

purposes of appeal.” Id. In U-Haul, the defendant opposed the co-defendants’

motions for summary judgment by filing a brief in opposition to the motions

and by filing a motion to correct error. Consequently, we concluded that the

defendant had standing to appeal the grant of summary judgment to the co-

defendants.

[13] In the context of whether a defendant can challenge the lack of service on a co-

defendant, courts have generally held that “questions of defective service of

Court of Appeals of Indiana | Memorandum Decision 36A05-1608-MF-1925 | July 31, 2017 Page 7 of 10 process may be raised only by the one on whom attempted service was made.”

Hull v. D. Irvin Transp. Ltd., 690 P.2d 414, 417 (Mont. 1984). However, some

courts have allowed such challenges where the complaining party would be

harmed by the lack of service. See Superior Outdoor Advert. Co. v. State Highway

Comm’n of Missouri, 641 S.W.2d 480, 483 (Mo. Ct. App. 1982) (“[T]he general

rule is that the issue of defective service of process may be raised only by the

one on whom the attempted service was made and one defendant, in the

absence of prejudice to his own interests, is not entitled to urge defects in

service on a co-defendant.”); see also 62B AM. JUR. 2D Process § 285 (“Questions

of effective service of process may be raised only by the person upon whom

service was attempted. However, there are exceptions where strict adherence to

this rule would create a deprivation of rights.”) (footnotes omitted); 72 C.J.S.

Process § 123 (“Generally, questions regarding defective service of process are

personal to the person upon whom such defective service is made. Thus, the

issue of defective service of process may ordinarily be raised only by the one on

whom attempted service has been made, and it may not be raised by others. . . .

One defendant, in the absence of prejudice to his or her own interest, is not

entitled to urge defects in the service on his or her codefendants.”) (footnotes

omitted).

[14] In O’Connell v. Will, 263 P.3d 41 (Alaska 2011), the Alaska Supreme Court

noted that generally a party cannot object to another party’s defective service on

a third party. The court went on to discuss standing principles that a party must

demonstrate a sufficient personal stake in the outcome of a controversy. The

Court of Appeals of Indiana | Memorandum Decision 36A05-1608-MF-1925 | July 31, 2017 Page 8 of 10 court then held that a creditor did not have standing to challenge an ex-

husband’s failure to serve his ex-wife with a motion. The court rejected the

creditor’s argument that the ex-wife might have an “indemnity claim” against

the ex-husband that “could have potentially been negatively” affected by the ex-

husband’s motion. O’Connell, 263 P.3d at 44. The court noted that the

potential injury was to the ex-wife, not the creditor.

[15] Chase relies on Lawson v. Qingdao Taifa Grp. Co., No. 1:10-CV-753-JMS-DKL,

2013 WL 5303741 (S.D. Ind. Sept. 19, 2013), which held that a garnishee

defendant did not have standing in garnishment proceedings to challenge the

district court’s personal jurisdiction over the judgment defendant in the

underlying action. There was no discussion in Lawson of whether the garnishee

defendant’s own interests were somehow prejudiced by the alleged lack of

personal jurisdiction in the underlying action.

[16] I find the approach used in U-Haul and O’Connell to be appropriate here. I

conclude that, in general, a defendant cannot challenge the lack of proper

service on a co-defendant unless the complaining defendant’s rights would be

prejudiced. As current owner of the mortgaged property, Durham’s rights

would be prejudiced by a judgment against Charles on the line of credit and

Court of Appeals of Indiana | Memorandum Decision 36A05-1608-MF-1925 | July 31, 2017 Page 9 of 10 foreclosure of the second mortgage.2 I, therefore, conclude that Durham had

standing to raise the issue of lack of service on Charles.

[17] In support of her motion to set aside the judgment, Durham submitted an

affidavit that provided Charles has not resided at the property since August

2010, he did not reside there in April 2013 when the complaint was served by

the sheriff and copy service, and he has concealed his whereabouts since August

2010. Given these allegations, it is apparent that Charles was not properly

served and that the trial court did not have personal jurisdiction over Charles. 3

Consequently, the default judgment against Charles is void. The majority

determines that, regardless, the foreclosure can proceed. However, the

foreclosure of the second mortgage is based on Charles’s default on the note,

which he has not had the opportunity to dispute because he was never properly

served. The foreclosure of the second mortgage on Durham’s property would

be improper under such circumstances. I would reverse the denial of Durham’s

motion to set aside and remand for proper service of the action on Charles.

2 I acknowledge that U-Haul required the complaining party to raise the issue before the trial court. Here, Durham did not raise the issue during the summary judgment proceedings. Rather, she failed to file a timely response to the motion for default judgment and summary judgment, failed to file a timely appeal, and did not raise the issue until her motion to set aside the judgment. However, lack of personal jurisdiction results in a void judgment and may be raised at any time under Rule 60(B). Hair, 18 N.E.3d at 1022. Thus, U-Haul is distinguishable from this case on that point. 3 On appeal, Chase makes no argument that Charles was properly served. It also makes no argument that foreclosure could proceed in the absence of a judgment on the underlying note.

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