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
DARDEN, SENIOR JUDGE.
of the Case
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.
The Bank raises five issues, which we consolidate and restate
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.
and Procedural History
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.
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.
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.
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.
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
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.
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