These opinions are not precedents and cannot be cited or relied upon unless used when establishing res judicata or collateral estoppel or in actions between the same party. Indiana Rules of Appellate Procedure 65(D).
APPEAL FROM THE VANDERBURGH SUPERIOR COURT. The Honorable Mary Margaret Lloyd, Judge. Cause No. 82D03-0802-MF-817, Cause No. 82D03-0803-MF-1535.
ATTORNEY FOR APPELLANT: DAVID J. JURKIEWICZ, NATHAN T. DANIELSON, CHRISTINA M. BRUNO, Bose McKinney & Evans, LLP, Indianapolis, Indiana.
JANICE M. STERN, APPELLEE, Pro se, Evansville, Indiana.
FRIEDLANDER, Judge. KIRSCH, J., and BAILEY, J., concur.
MEMORANDUM DECISION - NOT FOR PUBLICATION
Federal Home Loan Mortgage Corp. (Freddie Mac) appeals the entry of summary judgment in favor of Janice M. Stern in the instant mortgage foreclosure action. Freddie Mac presents the following consolidated and restated issue for review: Did the trial court properly grant summary judgment?
We reverse and remand.
The facts stated in the light most favorable to Freddie Mac, the non-moving party, follow. On August 16, 2004, Stern executed a promissory note in favor of Chase Manhattan Mortgage Corporation (Chase) in the principal amount of $73,750. To secure the note, Stern contemporaneously executed a mortgage (the Original Mortgage) to Chase secured by property located at 8244 Woodbriar Drive in Evansville, Indiana (the Property). Chase recorded the Original Mortgage on August 19, 2004 in the Office of the Recorder of Vanderburgh County.
Thereafter, on December 8, 2004, Stern executed a home equity line of credit agreement and disclosure statement (the HELOC Agreement) with Chase in the amount of $50,000. The HELOC Agreement was secured by a second mortgage on the Property (the HELOC Mortgage) executed by Stern on that same date. The HELOC Mortgage was duly recorded on January 7, 2005. Stern executed a modification agreement on November 27, 2006, which increased her line of credit to $60,000. The modification agreement was promptly recorded.
Stern defaulted on her payments under the Original Mortgage in October 2007. The default was not cured, and Chase accelerated the loan payments. As a result of the default, Chase filed a mortgage foreclosure action against Stern on February 7, 2008, with respect to the Original Mortgage. Thereafter, on March 18, 2008, Chase filed a complaint under a separate cause number seeking to foreclose on the HELOC Mortgage. The two causes of action were consolidated in April 2009. The consolidated action lingered for a number of years with little action. On its own motion, the court set a Trial Rule 41(E) hearing for August 15, 2011. The hearing was vacated and reset a number of times.
On May 3, 2012, Chase assigned its interest in the Original Mortgage to Freddie Mac. Freddie Mac also obtained possession of the original note, which had been endorsed in blank. Chase remained as servicer of the Original Mortgage. Thereafter, on June 1, 2012, Chase filed a motion for leave to amend its complaint regarding the Original Mortgage. The trial court granted the motion, ...