Lt. Henry G.L. McCullough and Princess S.D. Naro-McCullough, Appellants (Defendants below),
CitiMortgage, Inc. Appellee (Plaintiff below).
from the St. Joseph Circuit Court, No. 71C01-1405-MF-000270
The Honorable Michael G. Gotsch, Judge
Petition To Transfer from the Indiana Court of Appeals, No.
APPELLANTS PRO SE Lt. Henry G.L. McCullough Princess S.D.
Naro-McCullough South Bend, Indiana.
ATTORNEYS FOR APPELLEE Shannon O'Connell Egan Ft.
Mitchell, Kentucky Harry W. Cappel Cincinnati, Ohio.
and wife appeal the grant of summary judgment that resulted
in foreclosure of their family homestead. Concluding there
are no genuine issues of material fact precluding summary
disposition, we affirm the judgment of the trial court.
Henry G.L. McCullough and his wife Princess S.D.
Naro-McCullough ("Homeowners") are honorably
discharged Viet Nam era military veterans against whom
CitiMortgage, Inc. ("CitiMortgage") obtained a
judgment of foreclosure against their home of more than
twenty years. Homeowners attempted to appeal, but as they had
done before the trial court, the couple proceeded without
legal representation. In doing so, they encountered
difficulty navigating our appellate rules. Specifically,
after filing a timely Notice of Appeal and Completion of
Transcript, Homeowners tendered a woefully defective
Appellant's Brief and Appendix. The Clerk of Courts
issued a letter of defect noting the numerous deficiencies in
the parties' brief. Homeowners responded with a motion
asking the Court of Appeals to accept their non-conforming
submissions. The Court of Appeals denied the motion.
Thereafter CitiMortgage moved to dismiss the appeal on
grounds that Homeowners failed to remedy the defects in their
filings within the applicable time period. In response,
Homeowners tendered, and moved for permission to file, a
belated brief which was also defective. The Court of Appeals
denied the motion and dismissed the attempted appeal with
prejudice. And it acted well within its discretion in doing
so. See, e.g., Miller v. Hague Ins. Agency,
Inc., 871 N.E.2d 406, 407 (Ind.Ct.App. 2007) (noting,
"[a]lthough we will exercise our discretion to reach the
merits when violations are comparatively minor, if the
parties commit flagrant violations of the Rules of Appellate
Procedure we will hold issues waived, or dismiss the
appeal"). Here the violations were flagrant. Homeowners
filed a petition to transfer which the Court initially
denied. On reconsideration, deciding to address the merits,
we vacated the order denying transfer and assumed
jurisdiction over this appeal. Briefing on the merits
proceeded in due course.
and Procedural History
relevant undisputed facts in this case are these. On April
15, 1994, Homeowners borrowed $158, 620.00 from the Union
Federal Savings Bank of Indianapolis ("Union
Federal") and executed a promissory note
("Note") in that principal sum. This was a 30-year
loan backed by the Veteran's Administration with a 7.5%
rate of interest beginning June 1, 1994. Union Federal
assigned the Note to Waterfield Mortgage Company,
Incorporated ("Waterfield"), which then assigned it
back to Union Federal. Union Federal subsequently endorsed
the Note in blank making it payable to bearer. Monthly
installments were in the amount of $1, 109.10 and made
payable to Waterfield. Under terms of the Note, a single
untimely payment would constitute default.
April 15, 1994, Homeowners executed a mortgage ("the
Mortgage") in favor of Union Federal using the property
as security for repayment of the loan. A family home located
on Farmingdale Drive in Granger, Indiana, the Mortgage
described the property as follows:
Lot Numbered Eight (8) as shown on the recorded Plat of
Country Side Estates, Section Three (3), recorded August 29,
1978 in the Office of the Recorder of St. Joseph County,
Indiana, as Instrument No. 7818691[.]
On Note and To Foreclose Mortg., Ex. B. The Mortgage was
recorded on April 18, 1994 in the Office of the Recorder of
St. Joseph County. On September 15, 1999 Union Federal
assigned the Mortgage to Waterfield. Three years later on
February 21, 2002 Waterfield assigned the Mortgage back to
Union Federal; and on May 4, 2006 Union Federal as
"assignor" transferred the Mortgage to Mortgage
Electronic Registration Systems, Inc. ("MERS") as
"nominee" for CitiMortgage as "assignee."
21, 2014, CitiMortgage, which by that time held both the Note
and Mortgage on Homeowners property, filed its Complaint On
Note and To Foreclose Mortgage. The complaint alleged default
in the monthly installments on the Note as of January 1,