from the Hamilton Superior Court The Honorable Steven R.
Nation, Judge The Honorable Darren J. Murphy, Magistrate
Trial Court Cause No. 29D01-1704-CC-3957
Attorney for Appellant Brad A. Council Slovin &
Associates Co., LPA Cincinnati, Ohio
Attorney for Appellee Christopher J. McElwee Monday McElwee
Albright Indianapolis, Indiana
OF THE CASE
Appellant-Plaintiff, Collins Asset Group, LLC (CAG), appeals
the trial court's dismissal of its foreclosure action
against Appellee-Defendant, Alkhemer Alialy (Alialy).
CAG presents us with one issue on appeal, which we restate
as: Whether the trial court erred when it granted
Alialy's motion to dismiss, and concluded that CAG's
action was barred by the six-year statute of limitation
pursuant to Indiana Code section 34-11-2-9.
AND PROCEDURAL HISTORY
On June 29, 2007, Alialy entered into a promissory note with
GMAC Mortgage LLC (GMAC), whereby Alialy promised to pay GMAC
the amount of $60, 000, plus interest at the rate of 12% per
annum, in monthly payments of $631.93 beginning on September
1, 2007, and continuing through August 1, 2032. At the same
time Alialy entered into a promissory note, Alialy also
entered into a mortgage with Mortgage Electronic Registration
Systems, Inc. (MERS), as the nominee of GMAC. The mortgage
was incorporated into the note as security for the loan.
Pursuant to the terms of the mortgage, a junior lien was
placed on the property of Alialy.
On June 9, 2008, Wells Fargo Bank, N.A. (Wells Fargo), as
priority lien holder on the property, filed a foreclosure
action on the mortgage against Alialy. On July 28, 2008, the
Hancock Superior Court entered a default judgment against
Alialy and a decree of foreclosure. Alialy made no further
payments toward the GMAC note after July 28, 2008.
On June 17, 2016, Alialy was informed that the note had been
transferred to CAG on December 31, 2014, and that he should
begin making payments to CAG on the outstanding balance due
on the loan starting September 1, 2016. Alialy did not make
the payment, and on October 24, 2016, CAG sent its notice of
acceleration to Alialy whereby it accelerated payments due
from September 1, 2016, to the maturity date of the loan. On
April 26, 2017, CAG filed its Complaint upon the note. On
June 23, 2017, Alialy filed his motion to dismiss the
Complaint, contending that CAG's claim was barred by the
six-year statute of limitations, pursuant to Ind. Code §
34-11-2-9. On July 19, 2017, CAG filed its motion in
opposition, claiming that the Complaint was not barred as the
statute of limitations only began to run at the moment CAG
accelerated the payment on the note. On April 16, 2018, after
a hearing, the trial court summarily dismissed CAG's
Complaint for failure to state a claim upon which relief can
CAG now appeals. Additional facts will be ...