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Bank of America, N.A. v. Congress-Jones

Court of Appeals of Indiana

April 17, 2019

Bank of America, N.A., Appellant-Plaintiff,
Kimberly A. Congress-Jones, Appellee-Defendant.

          Appeal from the Lake Superior Court Cause No. 45D02-1704-CC-212 The Honorable Calvin D. Hawkins, Judge

          Attorney for Appellant Charlie W. Gordon Lloyd & McDaniel, PLC Louisville, Kentucky


         Statement of the Case

         [¶1] Bank of America, N.A. ("Bank"), appeals the trial court's grant of Kimberly Congress-Jones' ("Jones") motion to dismiss for failure to prosecute and the trial court's denial of the Bank's motion to set aside the dismissal order. We affirm.


         [¶2] The Bank raises five issues, which we consolidate and restate as:

I. Whether the trial court erred in granting Jones's motion to dismiss for failure to prosecute.
II. Whether the trial court erred in denying the Bank's motion to set aside the dismissal.

         Facts and Procedural History

         [¶3] This case began on April 17, 2017, when the Bank filed a civil complaint against Jones, via, its attorney, Gerald E. Bowman of the law firm of Blatt, Hasenmiller, Leibsker, & Moore, LLC ("Blatt Hasenmiller") in Merrillville, Lake County, Indiana. The Bank alleged Jones owed it $19, 354.54 in unpaid credit card debt. Jones hired an attorney, and on May 10, 2017, Jones, by counsel, filed an appearance and an answer to the Bank's complaint. The Bank has failed to provide us with a copy of the answer. The Bank took no further action in the court in 2017 to move the case forward to a resolution.

         [¶4] However, on September 22, 2017, Jones served discovery requests, including requests for admissions, a request for production of documents, and interrogatories, upon the Bank. On September 28, 2017, the Bank, by an attorney named Thomas A. Burris of Blatt Hasenmiller, sent a letter to Jones' attorney. Burris has never entered an appearance in this case, nor had he taken any action heretofore. In the letter, the Bank acknowledged having received the discovery requests, but Burris asserted the Bank was "not obligated to respond due to improper service." Appellant's App. Vol. 2, p. 21.

         [¶5] Apparently, Jones disputed the Bank's letter in response, and on November 5, 2017, asserted her requests for admissions had been deemed admitted due to the Bank's failure to timely respond. Nevertheless, Jones stated she would email copies of her discovery requests to the Bank again and requested the Bank's responses on or before November 13, 2017. She asserted she would move for sanctions if the Bank did not provide a timely response.

         [¶6] The law firm of Lloyd & McDaniel, PLC, which presently represents the Bank in this matter, later represented to the trial court that Blatt Hasenmiller ceased to operate at some point "in the later [sic] half of 2017." Id. at 12. However, there is no evidence in the record before this Court to support this assertion, nor is there evidence that attorney Gerald Bowman or another attorney from Blatt Hasenmiller moved the trial court to withdraw from the case or notified Jones of its non-representation or that it was dissolving. Apparently, sometime in December of 2017, the Bank hired Lloyd & McDaniel to represent it in some capacity. However, no attorney from Lloyd & McDaniel filed an appearance with the trial court in this case indicating said representation.

         [¶7] On or about December 21, 2017, it appears that someone from Lloyd & McDaniel sent an unsigned form letter to Jones' attorney. The letter did not purport to be from any specific person or attorney and did not reference the instant pending lawsuit. Rather, the letter stated the following:

We believe you are representing Kimberly A. Congress-Jones in regards to the debt owed to Bank of America. If we are mistaken in this regard, and you are not acting as an attorney for Kimberly A. Congress-Jones, please advise us of that immediately. If we do not hear from you within 30 days, we will assume that you do not represent Kimberly A. Congress-Jones.
Bank of America referred your client's account to this firm for collection. We have taken over this file from Blatt, Hasenmiller, Leibsker & Moore LLC, who previously handled this account on behalf of Bank of America. If your client made payment arrangements with the prior servicer, please contact our office at your earliest convenience to discuss this matter. All future payments should be made to our office. As of the date of this letter, the amount of the debt your client owes on his/her account is $19, 354.54. Payment may be made by check, payable to Lloyd & McDaniel and directed to use at [mailing address]. If your client chooses to do so, your client may make a payment online by visiting our website at [web address] at his/her convenience. Please contact our office should you wish to discuss payment ...

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