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Ewing v. U.S. Bank, N.A.

Court of Appeals of Indiana

March 10, 2014

JEFF L. EWING and RENEE EWING, Appellants-Defendants-Supplemental Plaintiffs,
v.
U.S. BANK, N.A., AS TRUSTEE FOR THE, STRUCTURED ASSET SECURITIES CORP., SERIES 2005-GEL4, Appellee-Plaintiff-Supplemental Defendant HOUSEHOLD FINANCE CORPORATION III, Appellant-Defendant,

APPEAL FROM THE MARSHALL CIRCUIT COURT. The Honorable Curtis D. Palmer, Judge. Cause No. 50C01-1103-MF-39.

ATTORNEY FOR APPELLANTS: KENT HULL, Indiana Legal Services, Inc., South Bend, Indiana.

ATTORNEYS FOR APPELLEE: CARL A. GRECI, LARRY E. LatARTE, Faegre Baker Daniels LLP, South Bend, Indiana.

BRADFORD, Judge. MATHIAS, J., and PYLE, J., concur.

OPINION

Page 776

BRADFORD, Judge.

CASE SUMMARY

Appellants-Defendants-Supplemental Plaintiffs Jeff and Renee Ewing (" the Ewings" ) appeal from the trial court's denial of their motion to correct error, arguing tat the trial court erred in granting Appellee-Plaintiff-Supplemental Defendant U.S. Bank's motion for summary judgment in this foreclosure action. The Ewings claim their designated evidence, consisting only of Jeff's affidavit outlining the Ewings' past attempts to modify the mortgage loan at issue, establishes a genuine issue of material fact. Because Jeff's affidavit does not dispute the alleged default or otherwise support an ascertainable defense to U.S. Bank's foreclosure, we conclude that summary judgment was appropriate.

The Ewings also appeal from the trial court's grant of U.S. Bank's motion to dismiss the Ewings' supplemental complaint for failure to state a claim upon which relief could be granted. In their supplemental complaint, the Ewings alleged that U.S. Bank failed to act in good faith during the parties' settlement discussions as allegedly required by the Indiana Alternative Dispute Resolution Rules (" the A.D.R. Rules" ). Finding that the A.D.R. Rules did not govern the parties' settlement discussions, we conclude that dismissal was appropriate. The judgment of the trial court is affirmed.

FACTS AND PROCEDURAL HISTORY

U.S. Bank is the holder of a promissory note (" the Note" ) executed by the Ewings on February 7, 2005, promising to repay a loan used to finance the Ewings' purchase of their home (" the Property" ). U.S. Bank is also the holder of a mortgage (" the Mortgage" ) executed by the Ewings that same day. The Mortgage secures the Note and encumbers the Property.

On March 21, 2011, U.S. Bank filed a complaint against the Ewings, seeking to foreclose the Mortgage on the Property. The complaint alleged that the Ewings had defaulted under the Note by failing to tender the required monthly payments. On August 30, 2011, U.S. Bank filed a motion for summary judgment on its complaint. On November 22, 2011, pursuant to Indiana Code section 32-30-10.5-9, the Ewings requested a settlement conference, which the trial court scheduled for January 6, 2012. When the Ewings failed to appear on January 6, 2012, the conference was rescheduled for February 17, 2012.

Following the February 17, 2012 settlement conference, the parties agreed to continued settlement discussions but filed a settlement conference report stating, inter alia, " The settlement conference has concluded and the requirement for a settlement conference pursuant to IC ยง 32-30-10.5-1 et seq. is satisfied." Appellee's App. p. 87. The parties' settlement discussions concerned the potential third party purchase of the ...


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