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Kretschmer v. Bank of America, N.A.

Court of Appeals of Indiana

August 14, 2014

MICHAEL H. KRETSCHMER, Appellant-Defendant,
v.
BANK OF AMERICA, N.A., Appellees-Plaintiffs

Page 596

APPEAL FROM THE ELKHART SUPERIOR COURT. The Honorable Evan S. Roberts, Judge. Cause No. 20D01-1202-MF-151.

ATTORNEY FOR APPELLANT: WILLIAM J. COHEN, Cohen Law Offices, Elkhart, Indiana.

ATTORNEYS FOR APPELLEES: PHILLIP A. NORMAN, JENNIFER L. SNOOK, Valparaiso, Indiana.

BROWN, Judge. VAIDIK, C.J., and NAJAM, J. concur.

OPINION

Page 597

BROWN, Judge

Michael H. Kretschmer appeals the trial court's denial of his Motion to Set Aside a Default Judgment in favor of Bank of America, N.A. (" BANA" ). Kretschmer raises one issue which we revise and restate as whether the trial court abused its discretion in denying his motion. We reverse and remand.

FACTS AND PROCEDURAL HISTORY

On March 1, 2012, BANA filed a Complaint on Note and for Foreclosure of Mortgage initiating foreclosure proceedings in the Elkhart Superior Court. In its Complaint, BANA alleged that on December 18, 2006, Kretschmer executed a promissory note (" Note" ) in favor of Elkhart Community Bank in the amount of $82,000. BANA alleged that, contemporaneously with the execution of the Note and to secure payment of the Note, Kretschmer executed a Mortgage (" Mortgage" ) on certain real estate located in Elkhart, Indiana (" Real Estate" ), granting Elkhart Community Bank a security interest in the Real Estate. BANA alleged that Mortgage Electronic Registration Systems, Inc. (" MERS" ), as nominee for Elkhart Community Bank, assigned the Mortgage to BANA in October 2011. BANA attached the Note, the Mortgage, and the assignment of the Mortgage to its Complaint. BANA alleged that Kretschmer was in default for failure to make payments under the terms of the Note and Mortgage and that it had declared the whole indebtedness due and payable and given notice of the acceleration to Kretschmer.

On June 6, 2012, BANA filed an Application and Affidavit for Default Judgment as well as a request for attorney fees. In its Application, BANA alleged that the time for filing an answer to its Complaint had elapsed and it was entitled to entry of default judgment in its favor. On June 7, 2012, the trial court entered default judgment in favor of BANA and against Kretschmer.

On June 26, 2012, Kretschmer filed a Motion to Set Aside Default Judgment and his sworn affidavit in support of the motion. Kretschmer alleged in his affidavit that BANA had agreed to a short sale of the Real Estate. Specifically, he stated that he had contacted counsel for BANA

Page 598

when he received notice of the Complaint to inquire about the foreclosure, that he had " informed someone at [BANA's] counsel's office that [his] house was in a short sale," and that he " was told not to worry about anything and to continue with the short sale." Appellant's Appendix at 55. Kretschmer stated that, as a result of the information he received, he continued with the short sale and did not appear in the case or hire an attorney. He also stated that, " [s]ubsequent to this case being filed, [he] also received another notice from [BANA] about an offer to refinance [his] mortgage." Id. at 56. Further, he ...


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