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Mannion v. Wilmington Savings Fund Society FSB

Court of Appeals of Indiana

October 9, 2019

Michael J. Mannion, Appellant-Defendant,
v.
Wilmington Savings Fund Society FSB, Appellee-Plaintiff.

          Appeal 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.

         Statement of the Case

         [¶1] 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.

         Issue

         [¶2] 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.

         Facts and Procedural History

         [¶3] 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.

         [¶4] 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).

         [¶5] 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.

         [¶6] 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 ...


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