William C. Elliott and Mary Kay Elliot v. Dyck O'Neal, Inc., Successor in interest to Fifth Third Mortgage Company

46 N.E.3d 448, 2015 Ind. App. LEXIS 714, 2015 WL 7074713
CourtIndiana Court of Appeals
DecidedNovember 13, 2015
Docket82A05-1411-MF-518
StatusPublished
Cited by5 cases

This text of 46 N.E.3d 448 (William C. Elliott and Mary Kay Elliot v. Dyck O'Neal, Inc., Successor in interest to Fifth Third Mortgage Company) is published on Counsel Stack Legal Research, covering Indiana Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
William C. Elliott and Mary Kay Elliot v. Dyck O'Neal, Inc., Successor in interest to Fifth Third Mortgage Company, 46 N.E.3d 448, 2015 Ind. App. LEXIS 714, 2015 WL 7074713 (Ind. Ct. App. 2015).

Opinions

PYLE, Judge.

Statement of the Case

[1] This appeal stems from an in rem mortgage foreclosure default judgment against William C. Elliott (“William”) and Mary Kay Elliott (“Mary Kay”) (collectively “the Elliotts”) and post-judgment proceeding supplemental — which was initiated by Dyck O’Neal, Inc. (“Dyck O’Neal”) as successor in interest to Fifth Third Mortgage Company (“Fifth Third”) — to collect on the deficiency from that in rem foreclosure judgment. After the trial court entered a garnishment order for the deficiency, the Elliotts, who were not represented by counsel, agreed to pay and began paying $50.00 per week toward the foreclosure deficiency. More than four years later, the Elliotts, then represented by counsel, filed a motion for a refund for the money paid toward the deficiency, arguing that the foreclosure order included only an in rem judgment against them. Thereafter, Dyck O’Neal filed a motion to amend the foreclosure order to add an in personam judgment. The trial court denied both motions.

[2] On appeal, the Elliotts argue that the trial court erred by denying its motion for refund from payments made pursuant to the garnishment order because the foreclosure order, which did not contain an in personam judgment, provided no basis for such payments. Dyck O’Neal cross-appeals the trial court’s denial of its motion to amend the foreclosure judgment, arguing that the omission of an in personam judgment in the foreclosure order was a clerical error. Concluding that the trial court did not err by denying Dyck O’Neal’s motion to amend the foreclosure judgment, we affirm the trial court’s ruling on that motion. However, based on the specific facts in this case, including the lack of an in personam judgment in the original default foreclosure order, we conclude that the Elliotts are entitled to the equitable relief of a refund of their payments made pursuant to the garnishment order. Accordingly, we reverse the trial court’s ruling on the Elliotts’ motion for refund and remand to the trial court.

[3] We affirm in part, reverse in part, and remand.

Issues

1. Cross-Appeal Issue — Whether the trial court erred by denying Dyck O’Neal’s motion to amend the foreclosure judgment.
2. Appeal Issue — Whether the trial court erred by denying the Elliotts’ motion for refund.

[451]*451Facts1

[4] In March 2002, the Elliotts' borrowed $92,200.00 from Fifth Third to finance the purchase of a house located at 701 South Norman Avenue in Evansville, Indiana (“the Property”). To secure payment of the note, the Elliotts executed a thirty-year mortgage with a 6.75% interest rate in favor of Fifth Third. In their note, the Elliotts agreed to be “fully and personally obligated to keep all of the promises made in th[e] Note, including the promise to pay the full amount owed.” (App. 14).

[5] Three years later, in March 2005, the Elliotts filed for bankruptcy under Chapter 7 of the United States Bankruptcy Code. They reaffirmed the Property in their bankruptcy proceeding, and, their bankruptcy case was discharged and closed in June 2005.

[6] On January 4, 2007, Fifth Third filed a “Complaint on Note and for Foreclosure on Mortgage” against the Elliotts. (App. 10). On January 29, 2007, Fifth Third filed an amended complaint, adding a subsequent mortgagee bank as a defendant. In Fifth Third’s amended complaint, it sought the following relief:

B.Enter judgment, in favor of Plaintiff and against the Defendants, William C. Elliott and Mary Kay Elliott, in the sum of $87,525.99, plus reasonable attorneys’ fee[s], and further interest and costs continually accumulating and all other costs herein, and all other relief proper in the premises;
C. Enter an Order foreclosing the Mortgage of Plaintiff on the above-described Real Estate and foreclosing and barring the Defendants’ equity of redemption and interest in the Real Estate;
D. Enter an Order directing the sale of the above-described Real Estate in order to pay the Judgment of Plaintiff, at such sale the Plaintiff will be empowered to bid for the'subject Real Estate or any part thereof with the indebtedness to be credited with any amount paid by Plaintiff; and if the proceeds from such sale are not sufficient to satisfy the Plaintiffs claim and debt herein found to be due and owing, for a further order directing the Sheriff to immediately levy upon the goods ■ and ' chattels of the Defendants William C. Elliott and Mary Kay Elliott, until such Judgment is satisfied in full[.]

(App. 33-34). The Elliotts and the junior mortgagee did not file an answer.

[7] On March 7, 2007, Fifth Third filed an “Application and Affidavit for Default Judgment” (“motion for default judgment”), an “Affidavit of Indebtedness and Non-Military Affidavit[,]” and an “Affidavit in Support of Attorney Fees[.]”' (App. 36, 38, 41). In its motion for default judgment, Fifth Third “requestfed] that the Court enter judgment'IN REM in its favor [.]” (App. 37) (emphasis in original).

[8] Along with its motion for default judgment, Fifth Third submitted a proposed order, entitled “Default Judgment of Foreclosure” (“foreclosure order”), [452]*452which.the trial court adopted and signed that same day.2 (App. 44). - In its foreclosure order, the trial court “granted [Fifth Third] judgment IN REM in the amount of Ninety-two Thousand Nine Hundred Eleven Dollars and Nineteen Cents ($92,-911.19)- ... with interest., thereon from February 9, 2007, until the date of the Judgment .at the per diem rate of $16.19 and with a post-judgment statutory interest rate of 6.75% thereupon until paid....” (App. 45-46). The chronological case summary (“CCS”) entry for March 13,. 2007 contains the following notation to show that this foreclosure order was entered into the order book: “REM JUDGMENT FILED 3-7-07 FOR 3-7-07 RECEIVED AND ENTERED INTO ORDER BOOK THIS DATE.” (App. 3). Additionally, on the front of the foreclosure order, someone handwrote “Rem” near , the. title of the order. (App. 44). Because this foreclosure order is the basis of both parties’ arguments on appeal, we include a copy, of it at the,end of this opinion.

[9] Approximately one month later, on April 4, 2007, Fifth Third filed a “Praecipe for Sheriffs Sale[,]” and the Vanderburgh County Sheriff began the necessary steps to sell the Property at a sheriffs sale. (App. 56). •;

[10] In- the meantime, on June 26, 2007, Fifth Third assigned its foreclosure judgment- to Federal Home Loan Mortgage Corporation (“FHLMC”). Two days later, on June 28, 2007, the Vanderburgh County Sheriff held a sheriffs sale for the Property; and FHLMC purchased the Property for $76,000.00, leaving a deficiency of $16,911.19 from the foreclosure judgment. amount. .

[11] Thereafter, on May 5, 2008, FHLMC assigned its interest in the foreclosure judgment to Dyck O’Neal. On October 27, 2008, Dyck O’Neal filed a motion to substitute itself as plaintiff in the mortgage foreclosure proceeding. Dyck O’Neal also filed a motion for discovery to a non-party, the Indiana Department of Workforce Development, seeking; employment records for the Elliotts, and the trial court granted this motion.

[12] Despite the in rent

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Cite This Page — Counsel Stack

Bluebook (online)
46 N.E.3d 448, 2015 Ind. App. LEXIS 714, 2015 WL 7074713, Counsel Stack Legal Research, https://law.counselstack.com/opinion/william-c-elliott-and-mary-kay-elliot-v-dyck-oneal-inc-successor-in-indctapp-2015.