from the St. Joseph Superior Court The Hon. Jenny Pitts
Manier, Judge, Trial Court Cause No. 71D05-0903-MF-206
Appellant Pro Se Bryant Edward Duty Sr. South Bend, Indiana.
Appellant-Defendant Bryant Duty Sr. appeals from the trial
court's denial of his motion for relief from judgment.
The judgment in question was a foreclosure action decided in
favor of U.S. Bank Trust National Association, as Trustee of
American Homeowner Preservation Trust 2014A ("U.S.
Bank"),  and involving Duty's South Bend house
("the House"). Duty had executed a promissory note
("the Note") and mortgage ("the
Mortgage") (collectively, "the Loan
Documents") in favor of Wilmington Finance upon purchase
of the House. Duty contends that he is entitled to relief
from judgment on the basis that the entity which pursued the
foreclosure action in 2009 had no legal right to enforce the
Loan Documents at the time. Because we conclude that Duty has
no standing to challenge the assignment of the Loan Documents
from assignor to assignee, we affirm.
and Procedural History
On or about July 6, 2005, in connection with the purchase of
the House, Duty executed the Loan Documents in favor of
Wilmington Finance. On March 10, 2009, an action to foreclose
the Mortgage was filed against Duty, apparently by CIT Group.
On March 20, 2009, the Mortgage was apparently assigned to
Mercury REO Investment Trust Series 2008-1. On July 1, 2009,
a foreclosure judgment was entered in the case. Sale of the
House to satisfy the judgment against Duty was apparently
stayed several years by Duty's bankruptcy filing later in
At some point, Duty filed a motion for relief from judgment.
By this time, U.S.Bank was apparently the holder of the
Mortgage. On March 22, 2017, after a hearing, the trial court
denied Duty's motion for relief from judgment and granted
U.S. Bank's motion to proceed to sheriff's sale of
the House. On August 24, 2017, Northwood Investments
purchased the House at a sheriff's sale.
As an initial matter, no party has submitted a Brief of
Appellee. As a result, "[i]nstead of imposing upon this
court the burden of controverting arguments advanced for
reversal, [we] have long applied a less stringent standard of
review with respect to showings of reversible error when the
appellee fails to file a brief." Johnson Cty. Rural
Elec. Membership Corp. v. Burnell, 484 N.E.2d 989, 991
(Ind.Ct.App. 1985). Duty need only prove prima facie error to
win reversal. Id. (citing Ind. State Bd. Of
Health v. Lakeland Disposal Serv., Inc., 461 N.E.2d
1145, 1145 n.1 (Ind.Ct.App. 1984)). "In this context,
'prima facie' means at first sight, on first
appearance, or on the face of it." Id. (quoting
Harrington v. Harrington, 142 Ind.App. 87, 88, 233
N.E.2d 189, 191 (1968)).
Duty contends that the trial court abused its discretion in
denying his motion for relief from judgment because CIT Group
allegedly did not have the right to enforce the Loan
Documents at the time the foreclosure action was filed in
2009. Duty contends that he is entitled to relief from
judgment pursuant to Indiana Trial Rule 60(B)(8), which
provides that "[o]n motion and upon such terms as are
just the court may relieve a party or his legal
representative from a judgment, including a judgment by
default, for … any reason justifying relief from the
operation of the judgment[.]"
When a Trial Rule 60(B)(8) motion is filed, the burden is on
the movant to demonstrate that relief is both necessary and
just. Fairrow v. Fairrow (1990), Ind., 559 N.E.2d
597. The decision of whether to grant or deny the motion is
left to the equitable discretion of the trial court, and is
reviewable only for abuse of discretion. See Shotwell v.
Cliff Hagan Ribeye Franchise (1991), Ind., 572 N.E.2d
487. We will not reweigh the evidence in conducting this
Gipson v. Gipson, 644 N.E.2d 876, 877 (Ind. 1994).
Duty's argument is apparently that a faulty assignment
(or faulty assignments) of the Loan Documents at some point
broke the "chain of assignments." Even if we assume
that each and every assignment of the Loan Documents has been
faulty, it would not help Duty. Although our research does
not reveal that the question has been previously addressed in
Indiana, courts have routinely found that a debtor may not
challenge an assignment between an assignor and assignee.
See, e.g., Liu v. T&H Mack, Inc., 191
F.3d 790, 797 (7th Cir. 1999) (concluding that party to
underlying contract lacks standing to "attack any
problems with the reassignment" of that contract);
Livonia Prop. Holdings, L.L.C. v. 12840-12976 Farmington
Rd. Holdings, L.L.C., 717 F.Supp.2d 724, 735 (E.D. Mich.
2010) ("Borrower certainly has an interest in avoiding
foreclosure. But the validity of the assignments does not
[a]ffect whether Borrower owes its obligations, but
only to whom Borrower is obligated."); In
re Holden, 2 N.E.2d 631, 633 (N.Y. 1936) ("The fact
that the assignors might have a valid cause of action against
the assignee because of fraud practiced upon them did not
affect the legal title of the assignee, and could not be
proved by a ...