Demetrius L. Grant, and Vickie O. Grant, Appellant-Defendant,
The Bank of New York Mellon Trust Co., Appellee-Plaintiff
Appeal from the Madison Superior Court. Honorable Michael D. Keele, Special Judge. Case No. 49D07-1006-MF-028352.
ATTORNEY FOR APPELLANT: Gary M. Selig, Indianapolis, Indiana.
ATTORNEY FOR APPELLEE: Fredric Lawrence, Nelson & Frankenberger, Indianapolis, Indiana.
Friedlander, Judge. Kirsch, J., and Crone, J. concur.
[¶1] Demetrius and Vickie Grant appeal the trial court's denial of their motion to dismiss and grant of summary judgment in favor of The Bank of New York Mellon Trust Company (the Bank). The Grants present the following dispositive issue for review: Was dismissal of the Bank's second foreclosure action against the Grants required where the first action was dismissed under Indiana Trial Rule 41(E)?
[¶2] We reverse and remand.
[¶3] The Grants have lived in their Indianapolis home for over thirty years. On January 28, 2004, they executed a note in the principal amount of $127,500 with Paragon Home Lending, LLC. To secure payment of the note, the Grants executed a mortgage. At some point, the mortgage and note were assigned to the Bank.
[¶4] The Grants filed bankruptcy in 2007, and the bankruptcy court granted them discharge from the mortgage debt that same year. Thereafter, the Grants
did not make their August 2007 mortgage payment or any subsequent payments.
[¶5] On November 26, 2007, the Bank filed an In Rem Complaint on Note and to Foreclose Mortgage and Reformation of Mortgage and Deed (the First Foreclosure Action). The Bank took no action on the complaint for over a year and a half, so Judge S.K. Reid of the Superior Court of Marion County set the cause for call of the docket on July 29, 2009. Demetrius Grant appeared for the hearing, but the Bank did not. Accordingly, Judge Reid dismissed the cause pursuant to T.R. 41(E) for failure to prosecute.
[¶6] Eight months later, on March 29, 2010, the Bank filed a motion to reinstate the First Foreclosure Action, which the court initially granted. Upon the Grants' motion, Judge Reid returned the case to disposed status on April 23, 2010, citing Natare Corp. v. Cardinal Accounts, Inc., 874 N.E.2d 1055 (Ind.Ct.App. 2007) (reversing reinstatement where plaintiff filed an unverified motion with no supporting affidavits and presented no ...