Michael J. Mannion, Appellant-Defendant,
Wilmington Savings Fund Society FSB, Appellee-Plaintiff.
from the Howard Superior Court No. 34D02-1806-MF-455. The
Honorable Brant J. Parry, Special Judge
Attorney for Appellant Alan D. Wilson Kokomo, Indiana
Attorney for Appellee J. Dustin Smith Manley Deas Kochalski
LLC Indianapolis, Indiana
SHARPNACK, SENIOR JUDGE.
of the Case
Michael Mannion appeals the trial court's summary
judgment, in rem judgment, default judgment, and decree of
foreclosure in favor of Wilmington Savings Fund Society FSB
(Wilmington). We reverse and remand with instructions.
Mannion presents one issue for our review, which we restate
as: whether dismissal of an in rem foreclosure action under
Indiana Trial Rule 41(E) is a bar to subsequent in rem
foreclosure actions on the same note and mortgage.
and Procedural History
On November 5, 1998, Mannion executed a note and mortgage on
a residence in Kokomo, Indiana. Several years later in
October 2007, he filed bankruptcy, and, in February 2009, he
received a discharge from the mortgage debt. Thereafter,
Mannion made no payments on the mortgage.
In April 2009, Bank of America, Wilmington's predecessor
in interest, filed an in rem foreclosure action ("First
Foreclosure Action") against Mannion. In March 2010, the
court noted that Bank of America had taken no action in the
case for a period in excess of sixty days and set the matter
for a Trial Rule 41(E) hearing. Bank of America did not
appear for the hearing, and the court dismissed the action in
April 2011 pursuant to Trial Rule 41(E).
In November 2012, Ditech Financial LLC, another of
Wilmington's predecessors in interest, filed an in rem
foreclosure action ("Second Foreclosure Action")
against Mannion. This action was subsequently dismissed on
the plaintiff's motion in January 2017.
The present case was initiated in April 2018 when Wilmington
filed an in rem foreclosure action ("Third Foreclosure
Action") against Mannion. The parties filed cross
motions for summary judgment and responses thereto. In his
motion, Mannion alleged that the Trial Rule 41(E) dismissal
in the First Foreclosure Action is a dismissal with prejudice
and on the merits and is therefore res judicata as to the
issues that may have been litigated. Wilmington claimed that
the Third Foreclosure Action is based upon a default by
Mannion that occurred after the dismissal of the First
Foreclosure Action and is thus not barred by res judicata. In
January 2019, the trial court granted Wilmington's motion
for summary judgment and ...