Paul R. Black and Jane I. Black v. Deutsche Bank National Trust Company as Trustee for Ameriquest Mortgage Securities, Inc., Asset-Backed Pass-Through Certificates Series 2006-R2 (mem. dec.)

MEMORANDUM DECISION
Jan 12 2016, 9:51 am

Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before any
court except for the purpose of establishing
the defense of res judicata, collateral
estoppel, or the law of the case.

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Paul R. Black Darren A. Craig
Noblesville, Indiana Abigail T. Rom
Frost Todd Brown, LLC
Indianapolis, Indiana

Rodney Perry
Bryan Cave, LLP
Chicago, Illinois

IN THE
COURT OF APPEALS OF INDIANA

Paul R. Black and Jane I. Black, January 12, 2016
Appellants-Defendants, Court of Appeals Cause No.
29A02-1503-MF-149
v. Appeal from the Hamilton
Superior Court
Deutsche Bank National Trust The Honorable Steven R. Nation,
Company as Trustee for Judge
Ameriquest Mortgage Securities, Trial Court Cause No.
29D01-1106-MF-6218

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 Inc., Asset-Backed Pass-Through
Certificates Series 2006-R2,
Appellee-Plaintiff.

Barnes, Judge.

Case Summary
[1] Paul and Jane Black appeal the trial court’s order denying their motions for

summary judgment and motion to strike and granting a motion for summary

judgment filed by Deutsche Bank National Trust Company as trustee for

Ameriquest Mortgage Securities, Inc., Asset-Backed Pass-Through Certificates

Series 2006-R2 (“the Bank”). We reverse and remand.

Issue
[2] The Blacks raise two issues, which we consolidate and restate as whether

questions of fact preclude the entry of summary judgment for the Bank on the

Bank’s complaint and the Blacks’ counterclaims.

Facts
[3] In December 2005, the Blacks executed a promissory note and mortgage in

favor of Ameriquest Mortgage Company (“Ameriquest”) for $212,000.00. The

interest rate of the adjustable rate note was subject to change on or after
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 February 2009. In the meantime, the Blacks’ monthly payment for principal

and interest was $1,554.11. The terms of the note called for the note holder to

give notice of any changes in the interest rate and the amount of the monthly

payment before the effective date of any change. The note also contained the

following term, “In addition, to the protections given to the Note Holder under

this Note, A Mortgage, Deed of Trust or Security Deed (the ‘Security

Instrument’), dated the same as this Note, protects the Note Holder from

possible losses which might result if I do not keep the promises that I make in

this Note.” Appellants’ App. p. 28. The note was dated December 27, 2005.

[4] The mortgage executed by the Blacks contained a provision calling for the

escrow of certain periodic payments including taxes and insurance. This term

provided in part:

Borrower shall pay Lender the Funds for Escrow Items unless
Lender waives Borrower’s obligation to pay to the Funds for any
or all Escrow Items[.] Lender may waive Borrower’s obligation
to pay to Lender Funds for any or all Escrow Items at any time.
Any such waiver may only be in writing. In the event of such
waiver, Borrower shall pay directly, when and where payable,
the amounts due for any Escrow Items for which payment of
Funds has been waived by Lender and, if Lender requires, shall
furnish to Lender receipts evidencing such payment within such
time period as Lender may require. . . . If Borrower is obligated
to pay Escrow Items directly, pursuant to a waiver, and Borrower
fails to pay the amount due for an Escrow Item, Lender may
exercise its rights under Section 9 and pay such amount and
Borrower shall then be obligated under Section 9 to repay to
Lender any such amount. Lender may revoke the waiver as to
any or all Escrow Items at any time by a notice given in
accordance with Section 15 and, upon such revocation, Borrower
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 shall pay to the Lender all Funds, and in such amounts, that are
then required under this Section 3.

Id. at 34. The notice provision of the mortgage required that all notices be in

writing.

[5] The typed date on the mortgage was December 23, 2005. The execution of the

mortgage was notarized on December 27, 2005.

[6] During the course of the loan, the loan servicer changed many times, and the

mortgage was assigned to the Bank on January 15, 2009. The note was

endorsed in blank and eventually made its way to the Bank’s possession. The

Blacks usually made the monthly payments by credit card telephonically or by

check via overnight mail with a tracking receipt. The Blacks made the required

monthly payments apparently without issue until June 2010, and, according to

Paul Black, they had paid no less than $60,400.00 on the note.

[7] The June 15, 2010 monthly billing statement indicated a principal and interest

payment of $1554.10 was due July 1, 2010. The statement also indicated that

no escrow balance existed and that no escrow was due. This is consistent with

Paul Black’s statement that they had never escrowed their insurance and taxes

and instead paid them separately. The statement reflected an interest rate of

7.990%, which was consistent with a January 2010 notice that the interest rate

would remain 7.990% and “monthly payment, including amounts required for

escrow if any, will be $1,554.10.” Appellants’ App. p. 371. To avoid the

accrual of late fees, payment was due by July 15, 2010.

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[8] When the Blacks attempted to telephonically make their July payment on July

15, 2010, their $1,554.10 payment was refused and a payment of $2,238.21 was

demanded. Consolidated log notes of Paul Black’s calls to the servicer indicate

that the increase was due to escrow charges. Another monthly billing statement

was sent to the Blacks on July 16, 2010, indicating that the July 1, 2010

payment included principal and interest in the amount of $1,554.10 and an

escrow payment of $684.11 for a total monthly payment of $2,238.21 due on

July 1, 2010. This statement referenced an interest rate of 7.990%. On July 28,

2010, the Blacks again attempted to make a $1,554.10 payment and were told

that the new payment amount was $2,331.46.

[9] The Blacks did not make any more payments on the loan, and the loan servicer

began attempting to collect the unpaid amounts, late fees, and escrow amounts.

Eventually, the Bank filed a complaint on the note and to foreclose the

mortgage and, in response, the Blacks raised numerous counterclaims.

[10] The Blacks filed two motions for summary judgment, a motion to strike

portions of the Bank’s complaint, and a motion to strike portions of the Bank’s

designated evidence. The Bank filed its own motion for summary judgment

and moved to strike the Blacks’ reply brief in support of their first motion for

summary judgment and their supplemental designation of evidence. After a

hearing, the trial court issued an order denying the Blacks’ two motions for

summary judgment and denying their motion to strike portions of the Bank’s

complaint. The trial court granted the Bank’s motion for summary judgment

and motion to strike the Blacks’ reply brief and supplemental designation of

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 evidence. The trial court did not rule on the Blacks’ motion to strike portions of

the Bank’s designated evidence. The Blacks now appeal.

Analysis
[11] The Blacks contend that the trial court erred in granting the Bank’s motion for

summary judgment and denying their motions for summary judgment.

Summary judgment is appropriate only where the designated evidence shows

that there are no genuine issues of material fact and that the moving party is

entitled to a judgment as a matter of law. Ind. Trial Rule 56(C). We review

summary judgment de novo and apply the same standard as the trial court.

Young v. Hood’s Gardens, Inc., 24 N.E.3d 421, 423 (Ind. 2015). “We consider

only those materials properly designated pursuant to Trial Rule 56 and construe

all factual inferences and resolve all doubts as to the existence of a material

issue in favor of the non-moving party.” Id. at 424.

I. Questions of Fact Regarding Default

[12] “To establish a prima facie case that it is entitled to foreclose upon the

mortgage, the mortgagee or its assign must enter into evidence the demand note

and the mortgage, and must prove the mortgagor’s default.” McEntee v. Wells

Fargo Bank, N.A., 970 N.E.2d 178, 182 (Ind. Ct. App. 2012). In a summary

judgment proceeding, once the mortgagee establishes its prima facie case, the

burden shifts to the mortgagor to show that the note has been paid in full or to

establish any other defenses to the foreclosure. Id.

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[13] The Blacks contend that the Bank is not entitled to summary judgment because

it did not make a prima facie showing that the Blacks defaulted on the note. To

establish default, the Bank designated the affidavit of Kyle Lucas, a senior loan

analyst employed by Ocwen Financial Corporation, the then-servicer of the

loan.1 In his affidavit, Lucas stated that the Blacks “have not made their

monthly mortgage loan payments since June 2010” and “have defaulted under

the Note and Mortgage, and have failed to cure the default.” Appellee’s App.

p. 346. In response, the Blacks argue that Paul Black’s affidavit shows they

were not in default because they tendered payment of $1,554.11 numerous

times and it was refused by the Bank. See, e.g., Samaddar v. Jones & Jones Agency,

Inc., 766 N.E.2d 1275, 1278 (Ind. Ct. App. 2002) (observing that the

requirements of tender vary with facts and that, where a party prevents and

refuses the tender, the party may not complain about what was prevented and

refused).

[14] Although the Bank describes Paul Black’s affidavit as self-serving, our supreme

court has held that “a perfunctory and self-serving” affidavit that controverts a

prima facie case for summary judgment is enough to preclude summary

judgment. Hughley v. State, 15 N.E.3d 1000, 1004 (Ind. 2014). Moreover,

during summary judgment proceedings, the Bank’s explanation for the increase

in payment was unclear. Lucas did not address the increased payment demand

1
The Blacks moved to strike Lucas’s affidavit. The trial court did not rule on this motion. For the sake of
argument, we presume the affidavit was admissible and available for consideration in summary judgment
proceedings.

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 in his affidavit and gave only passing reference to the possibility that the interest

rate could be increased after February 1, 2009. When questioned about the

acceleration of the loan by the trial court at the summary judgment hearing, the

Bank’s attorney stated her understanding “that they have an adjustable rate

mortgage and their interest rate was adjusted pursuant to the terms of the note

and the mortgage, which increased their monthly mortgage payment.” Tr. p.

41. The Blacks, however, designated statements showing that the interest rate

had not increased and, in its answer to the Blacks’ counterclaim, the Bank

admitted that the interest rate had not changed before the purported default.

[15] On appeal, the Bank claims that the monthly payment increased because the

Bank began escrowing taxes and insurance. Again, the Bank describes as self-

serving Paul Black’s assertions that the Bank agreed not to escrow taxes and

insurance and that they paid those items separately. However, Paul Black’s

assertions are consistent with the June 15, 2010 statement indicating that

escrow was not a payment element and that only a principal and interest

payment of $1,554.10 was due. Further, the mortgage expressly provided that

escrow may be waived in writing and that waiver may be revoked following

notice to the borrower as specified by the mortgage. Further, the Final Interest

Rate, Payment Due, Fees Paid, and Prepayment Charge form signed by the

Blacks on December 27, 2005 explained that the initial monthly payment for

the first thirty-six months was $1,554.11. The line detailing the “Amount of

Escrow Payment, if any” was blank. Appellants’ App. p. 448. The record does

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 not include a specific waiver of escrow or a notice revoking the waiver of

escrow.

[16] In light of the Blacks’ designated evidence, we conclude there are unresolved

factual disputes regarding the basis for the increased monthly payment, whether

the Blacks were properly notified of the increase, and whether the Blacks’

tender of payment was sufficient. As such, the trial court erroneously granted

summary judgment for the Bank on its complaint.2 However, to the extent the

Blacks argue that they are entitled to summary judgment on the Bank’s

complaint, the unresolved questions of fact preclude the grant of summary

judgment for them.

[17] Additionally, the Blacks challenge the grant of summary judgment for the Bank

on their counterclaims for first material breach, deception, abuse of process, and

slander of title. We conclude that the unresolved questions of fact relating to

default render the grant of summary judgment for the Bank improper and

preclude summary judgment for the Blacks on their counterclaims.

2
As an affirmative defense, the Blacks asserted that any obligation they had under the note was discharged
because the Bank first materially breached the contract. “[U]nder the Restatement (Second) of Contracts, an
injured party is not discharged from his duty to perform unless (1) the breach is material, and (2) it is too late
for performance or an offer to perform to occur.” Frazier v. Mellowitz, 804 N.E.2d 796, 803 (Ind. Ct. App.
2004). “[W]hether a party has committed a material breach is a question of fact, the resolution of which is
dependent on several factors.” Id. at 802. The resolution of the questions of fact relating to default will also
necessarily include a determination of whether the Bank was the first to materially breach the parties’
contract.

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 II. Remaining Issues3

[18] Although we reverse summary judgment for the Bank based on the unresolved

questions of fact relating to default, we address the following issues raised by

the Blacks on appeal because they are likely to be raised again in subsequent

proceedings.

A. Date of Mortgage and Note

[19] The Blacks contend that the Bank is not an assignee of the mortgage used to

secure the note. This argument is based on the fact that the note is dated

December 27, 2005, and references a security instrument “dated the same as

this Note.” Appellants’ App. p. 28. According to the Blacks, because the

mortgage was dated December 23, 2005, and the assignment references a

December 23, 2015 mortgage, the mortgage was not the security instrument

associated with the note. The Blacks argue that the note and mortgage “do not

refer to each other, but, instead refer to other instruments that are not in

evidence.” Appellants’ Br. p. 11. In response, the Bank claims that the

3
The Blacks claim that the assignment of mortgage was “fraudulently made and falsely notarized by
notorious Florida robosigners . . . .” Appellants’ Br. p. 12. In support of this assertion, the Blacks rely on
video depositions of the purported robosigners, their affidavits, and Paul Black’s affidavit describing parts of
the robosigners’ testimony. The depositions were taken in other, unrelated litigation. The Bank challenges
the admissibility of this evidence, arguing that they contain inadmissible hearsay, that the videos are
unauthenticated, and that they violate Indiana Evidence Rule 404(b). “A party offering the affidavit into
evidence bears the burden of establishing its admissibility.” McCutchan v. Blanck, 846 N.E.2d 256, 260 (Ind.
Ct. App. 2006). The Blacks make no effort to show that this evidence is admissible pursuant to Indiana Trial
Rule 56(E), and we decline to address it further.

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 December 23, 2005 date on the mortgage was a scrivener’s error and that the

mortgage was actually executed on December 27, 2005.

[20] We agree with the Bank. Although the typed date on the mortgage is

December 23, 2015, the mortgage was notarized December 27, 2005, and

indicates that the mortgage was executed on December 27, 2005. Further, in

their answer, the Blacks acknowledge executing a mortgage in connection with

the note. In his affidavit, Paul Black admitted to having paid at least

$60,400.00 toward the loan from 2005 until 2010. Finally, the Blacks cite no

evidence for the proposition that they executed two different mortgages and two

different notes in December 2005. Without more, the Blacks have failed to

show that the misdated mortgage affected their substantial rights, and we must

disregard the error. See Ind. Trial Rule 61 (“The court at every stage of the

proceeding must disregard any error or defect in the proceeding which does not

affect the substantial rights of the parties.”).

B. Standing

1. Negotiability

[21] The Blacks challenge the Bank’s standing. Part of this argument focuses on the

negotiability of the note. Indiana Code Section 26-1-3.1-104(a) defines

“negotiable instrument” as:

Except as provided in subsections (c) and (d), “negotiable
instrument” means an unconditional promise or order to pay a
fixed amount of money, with or without interest or other charges
described in the promise or order, if it:

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 *****

(3) does not state any other undertaking or instruction by the
person promising or ordering payment to do any act in addition
to the payment of money, but the promise or order may contain:

(A) an undertaking or power to give, maintain, or protect
collateral to secure payment;

(B) an authorization or power to the holder to confess
judgment or realize on or dispose of collateral; or

(C) a waiver of the benefit of any law intended for the
advantage or protection of an obligor.

[22] Indiana Code Section 26-1-3.1-106 defines an unconditional promise or order

and provides in part:

(a) Except as provided in this section, for the purposes of IC 26-1-
3.1-104(a), a promise or order is unconditional unless it states:

(1) an express condition to payment;

(2) that the promise or order is subject to or governed by
another record; or

(3) that rights or obligations with respect to the promise or
order are stated in another record.

A reference to another record does not of itself make the promise
or order conditional.

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 (b) A promise or order is not made conditional:

(1) by a reference to another record for a statement of
rights with respect to collateral, prepayment, or
acceleration; or

(2) because payment is limited to resort to a particular
fund or source.

“[I]t is well-established that a promissory note secured by a mortgage is a

negotiable instrument.” Lunsford v. Deutsche Bank Trust Co. Americas as Tr., 996

N.E.2d 815, 821 (Ind. Ct. App. 2013).

[23] Paragraph 11 of the note references the mortgage and describes certain

conditions in which immediate payment in full might be due. The Blacks argue

that, pursuant to Paragraph 11 of the note, they were required to meet certain

conditions if they leased, encumbered, or transferred any interest in their home.

According to the Blacks, because they were required to do more than merely

pay a fixed amount of money, the note was stripped of negotiability. We

disagree. These additional conditions allow the lender to protect collateral as

permitted by Indiana Code Section 26-1-3.1-104(a)(3)(A).

[24] The Blacks also argue that Paragraph 11 contains express conditions

referencing other writings such as the lender’s written consent, requests for

information, and invoices so as to make the note conditional. Comment 1 to

Indiana Code Section 26-1-3.1-106 explains:

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 subsection (b)(i) permits reference to a separate writing for
information with respect to collateral, prepayment, or
acceleration.

Many notes issued in commercial transactions are secured by
collateral, are subject to acceleration in the event of default, or
are subject to prepayment, or acceleration does not prevent the
note from being an instrument if the statement is in the note
itself. See Section 3-104(a)(3) and Section 3-108(b). In some
cases it may be convenient not to include a statement concerning
collateral, prepayment, or acceleration in the note, but rather to
refer to an accompanying loan agreement, security agreement or
mortgage for that statement. Subsection (b)(i) allows a reference
to the appropriate writing for a statement of these rights.

Paragraph 11 expressly informs the Blacks that the referenced mortgage

describes how and under what circumstances they “may be required to make

immediate payment in full of all amounts [they] owe under this Note.”

Appellants’ App. p. 28. Thus, to the extent Paragraph 11 references other

writings, it is to explain the terms of acceleration and does not make the note

conditional.4

2. Possession of the Note

[25] The Blacks also contend the Bank was required to plead and prove it had

possession of the note at the time it filed the lawsuit and that it failed to make a

4
Although, as the Blacks point out Paragraph 11 uses the term Lender, we do not believe such term is
intended to be a specific reference to Ameriquest as the Blacks assert. The terms of the note clearly
anticipated that the note could be transferred. This argument is not persuasive.

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 prima facie showing of such.5 This argument is based on out-of-state-authority

that describes standing as a “jurisdictional requirement.” See, e.g., Fed. Home

Loan Mortgage Corp. v. Schwartzwald, 134 Ohio St. 3d 13, 18 (2012). In Indiana,

however, subject matter jurisdiction entails a determination of whether a court

has jurisdiction over the general class of actions to which a particular case

belongs and characterizing other sorts of procedural defects as “jurisdictional”

misapprehends the concepts. K.S. v. State, 849 N.E.2d 538, 542 (Ind. 2006).

For example, in the context of a petition for judicial review, we have recently

explained, “Although HRC Hotels may have lacked standing when it filed its

petition, the lack of standing at the time the petition is filed is a procedural

error. It does not deprive the court of jurisdiction to hear the petition for

judicial review.” HRC Hotels, LLC v. Metro. Bd. of Zoning Appeals Div. II of

Marion Cty., 8 N.E.3d 203, 207 (Ind. Ct. App. 2014). Likewise, even if the

Bank was not in possession of the note at the time the complaint was filed, the

trial court was not deprived of subject matter jurisdiction to address the Bank’s

complaint.

[26] As we have determined, the note is a negotiable instrument, which may be

enforced by “the holder of the instrument.” Ind. Code § 26-1-3.1-301. “The

5
In their reply brief, the Blacks argue that the Bank was required to plead and prove it owned the mortgage
at the time the complaint was filed. Because they raise this argument for the first time in their reply brief, it is
waived. Monroe Guar. Ins. Co. v. Magwerks Corp., 829 N.E.2d 968, 977 (Ind. 2005) (“The law is well settled
that grounds for error may only be framed in an appellant’s initial brief and if addressed for the first time in
the reply brief, they are waived.”).

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 term ‘holder’ includes the person in possession of a negotiable instrument that is

payable to ‘bearer’ or a person in possession of a negotiable instrument ‘payable

to bearer or endorsed in blank.’” Lunsford, 996 N.E.2d at 821 (quoting I.C. §

26-1-1-201(5), -201(20)(A)). Here, the note was endorsed in blank, the Bank’s

counsel had possession of the note, and it was made available to the Blacks in

2013. Thus, the Bank has established that it is entitled to enforce the note as the

holder. Accordingly, we fail to see how the purported lack of possession of the

note when the complaint was filed affected the Blacks’ substantial rights.6 See

Ind. T.R. 61.

C. High-Cost Home Loan

[27] As an affirmative defense and counterclaim, the Blacks alleged that the loan

was a high-cost home loan pursuant to Indiana Code Section 24-9-2-8(a)(2)(A),

which defines “high cost home loan” as a home loan with “total points and fees

that exceed . . . five percent (5%) of the loan principal for a home loan having a

loan principal of at least forty thousand dollars ($40,000).” The Blacks claim

that they were charged $12,277.97 in points and fees for the $212,000.00 loan,

6
The Blacks also claim that Ameriquest was not permitted to sell the note, which they describe as a high
cost home loan, pursuant to Indiana Code Section 24-9-4-1 and that the transfer to the Bank was prohibited
by the Internal Revenue Code. Because the Bank was in possession of the note, we do not address these
theories regarding the transfer of the note as they relate to standing.

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 exceeding the 5% limit. The Bank asserts that the total points and fees for the

loan was $2,784.00.7

[28] Neither party, however, provides a detailed analysis of points and fees in light

of the statutory definition. See I.C. § 24-9-2-10. Nor does either party discuss

whether the $7,704.08 in “loan discount” constitutes “bona fide discount

points” as statutorily defined in Indiana Code Section 24-9-2-3. Appellee’s

App. p. 987. Without such analysis, we cannot determine whether the loan

was a high-cost home loan.

[29] Nevertheless, we are not persuaded that, even if the loan is a high-cost home

loan, it is void as against public policy as the Blacks claim. Indiana Code

Section 24-9-5-1(b) describes the recourse available to a borrower defending

against a foreclosure action. This section does not declare any such loan void.

In the absence of specific authority showing that a violation of this chapter

renders the loan void, we decline to adopt such a holding.

Conclusion
[30] Because there are genuine issues of material fact regarding default, the trial

court erroneously granted summary judgment for the Bank. We reverse and

remand for further proceedings.

7
In support of this claim, the Bank cites a settlement statement. See Appellee’s App. p. 987. Although this
document is difficult to read, it does not appear on its face to provide support for this figure.

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[31] Reversed and remanded.

Robb, J., and Altice, J., concur.

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