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McCullough v. CitiMortgage, Inc.

Supreme Court of Indiana

March 14, 2017

Lt. Henry G.L. McCullough and Princess S.D. Naro-McCullough, Appellants (Defendants below),
v.
CitiMortgage, Inc. Appellee (Plaintiff below).

         Appeal from the St. Joseph Circuit Court, No. 71C01-1405-MF-000270 The Honorable Michael G. Gotsch, Judge

         On Petition To Transfer from the Indiana Court of Appeals, No. 71A03-1509-MF-1349

          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.

          RUCKER, JUSTICE.

         Husband 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.

         Background

         Lt. 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.

         Facts and Procedural History[1]

         The 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.[2] 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.[3] 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.

         Also on 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[.]

         Complaint 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."

         On May 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, ...


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