U.S. Bank, National Association, Successor to National City Bank, Appellant-Defendant,
Jewell Investments, Inc., Appellee-Plaintiff
Appeal from the Marion Superior Court Trial Court Cause No.
49D04-0806-MF-26954 The Honorable Cynthia J. Ayers, Judge
Attorney for Appellant Pamela A. Paige Plunkett Cooney, P.C.
Attorney for Appellee Mario Garcia Brattain Minnix Garcia
Jewell Investments, Inc. ("Jewell"), filed a
foreclosure action naming U.S. Bank, National Association,
Successor to National City Bank ("Bank") as a
defendant as to a certain piece of real estate. Bank filed a
summary judgment motion, asserting that it was a bona fide
purchaser of the real estate and therefore its lien was
entitled to priority over Jewell's. The trial court
denied Bank's motion. Bank now appeals. We conclude that
Bank carried its burden to show that there is no genuine
issue of material fact as to whether it is a bona fide
purchaser and that it is entitled to judgment as a matter of
law. Accordingly, we reverse and remand with instructions to
enter summary judgment in favor of Bank.
and Procedural History
The heart of this dispute is whether Bank or Jewell has lien
priority on real estate ("the Real Estate")
commonly known as 602 Manhattan Avenue, Indianapolis and
legally described as Lot Number 84 in Biltmore Gardens,
recorded in Plat Book 18, pages 88-89, in the Marion County
Recorder's Office. Appellant's
App. Vol. 2 at 151. On or about January 29, 2007, Diversified
Investments, LLC ("Diversified"), executed a
mortgage in favor of Jewell ("the Jewell Mortgage")
for the Real Estate, which was recorded on February 1, 2007.
The Jewell Mortgage describes the Real Estate as
"[c]ommonly known as: 602 S. Manhattan, Indianapolis,
IN." Id. at 152. It is undisputed that the Jewell Mortgage
does not contain the legal description of the Real Estate.
See Appellee's Br. at 7 ("[T]he mortgage
inadvertently omitted the legal description."). On
February 8, 2007, Diversified recorded its ownership of the
Real Estate by special warranty deed.
In July 2007, Francisco Rutiga Retana agreed to purchase the
Real Estate from Diversified and sought financing from
National City Mortgage, a division of National City Bank. In
furtherance of this transaction, Fax Mobile Abstracting,
Inc., performed a title examination of the Real Estate
("Fax Mobile's Property Search"). Fax
Mobile's Property Search did not reveal the Jewell
Mortgage. However, it revealed that Diversified had executed
a mortgage for the Real Estate in favor of Newton County Loan
& Savings FSB ("the Newton Mortgage"), which
was recorded on February 8, 2007. The Newton Mortgage
contained the legal description of the Real Estate.
On September 2007, the closing for Retana's purchase of
the Real Estate from Diversified was held. Diversified
executed and delivered a corporate warranty deed to Retana,
which was recorded on December 31, 2007. Retana executed and
delivered an $80, 500 note in favor of National City
Mortgage. As security for the note, Retana executed and
delivered an $80, 500 mortgage to National City Mortgage
("the Bank Mortgage"), which was recorded on
September 28, 2007. The Bank Mortgage was subsequently
assigned to Bank and recorded on September 25, 2008.
On June 17, 2008, Jewell filed an action to foreclose on
various properties including the Real Estate, naming Bank as
a party as to that property. Bank was served with a copy of
Jewell's complaint but did not appear or file any
pleadings. On May 29, 2009, Jewell moved for entry of default
judgment and decree of foreclosure. The same day, the trial
court issued an agreed entry of in rem judgment and decree of
foreclosure, defaulting Bank and foreclosing Jewell's
asserted mortgage lien on the Real Estate. On September 10,
2009, based on the judgment and decree of foreclosure, a
sheriff's deed to the Real Estate was executed in favor
On April 12, 2012, Bank filed a motion to set aside
sheriff's sale and default judgment. On November 6, 2014,
the trial court vacated the sheriff's deed and the
judgment and decree of foreclosure. On June 25, 2015, Bank
filed a motion for summary judgment against Jewell, asserting
that because the Jewell Mortgage had no legal description of
the Real Estate, Fax Mobile's Property Search was unable
to locate it, and therefore Bank was a bona fide purchaser
for value as to the Real Estate and its lien had priority
over Jewell's. In support of its motion, Bank designated
the affidavit of Cindy Dailey, which provided,
1. I have personal knowledge of the statements made in this
affidavit and am competent to testify.
2. I am the owner of Fax Mobile Abstracting, Inc.
3. A-One Title, LLC provided closing services for the sale of
real property commonly known as 602 Manhattan Avenue,
Indianapolis, Indiana ("Real Estate") to Francisco
4. Fax Mobile Abstracting, Inc. was retained to perform a
title examination of the Real Estate relative to that
5. The examination revealed a $60, 000 mortgage from
Diversified to Newton County Loan & Savings FSB
("Newton Mortgage"), said Newton Mortgage being
filed for record on February 8, 2007 as Instrument No.
6. The Newton Mortgage correctly contained the correct legal
description for the Real Estate.
7. The [Jewell] Mortgage filed for record on February 1, 2007
as Instrument No. 2007-0020665 does not contain a legal
description for the Real Estate.
8. Because the [Jewell] Mortgage filed for record as
Instrument No. 2007-0020665 did not contain a legal
description for the Real Estate, it was not recorded in the
chain of title to the Real Estate and was not located during
the title examination.
9. A true and accurate copy of the Examination Notes are
attached hereto as the same are maintained in the regular
course of ...