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Collins Asset Group, LLC v. Alialy

Court of Appeals of Indiana

December 6, 2018

Collins Asset Group, LLC, Appellant-Plaintiff,
v.
Alkhemer Alialy, Appellee-Defendant.

          Appeal 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

          RILEY, JUDGE.

         STATEMENT OF THE CASE

         [¶1] Appellant-Plaintiff, Collins Asset Group, LLC (CAG), appeals the trial court's dismissal of its foreclosure action against Appellee-Defendant, Alkhemer Alialy (Alialy).

         [¶2] We affirm.

         ISSUE

         [¶3] 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.

         FACTS AND PROCEDURAL HISTORY

         [¶4] 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.

         [¶5] 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.

         [¶6] 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 be granted.

         [¶7] CAG now appeals. Additional facts will be ...


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