MEMORANDUM DECISION
FILED
Pursuant to Ind. Appellate Rule 65(D), Sep 08 2016, 9:57 am
this Memorandum Decision shall not be
regarded as precedent or cited before any CLERK
Indiana Supreme Court
Court of Appeals
court except for the purpose of establishing and Tax Court
the defense of res judicata, collateral
estoppel, or the law of the case.
APPELLANTS PRO SE ATTORNEYS FOR APPELLEE
Timothy C. Platt Rebecca N. Algenio
Sonia E. Platt Gregory Stout
Indianapolis, Indiana Reisenfeld & Associates LPA,
LLC
Cincinnati, Ohio
IN THE
COURT OF APPEALS OF INDIANA
Timothy C. and Sonia E. Platt, September 8, 2016
Appellants-Defendants, Court of Appeals Case No.
49A02-1502-MF-63
v. Appeal from the Marion Superior
Court
CitiMortgage, Inc., The Honorable John Hanley
Appellee-Plaintiff. Trial Court Cause No.
49D11-1002-MF-7224
Vaidik, Chief Judge.
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Case Summary
[1] CitiMortgage, Inc. filed a mortgage-foreclosure action against Timothy and
Sonia Platt and then moved for summary judgment. The trial court granted
CitiMortgage’s motion, and the Platts appeal. Because the Platts have waived
all of their arguments on appeal either by failing to support them with cogent
reasoning and citations to legal authority and the record on appeal or by failing
to first raise them in the trial court, or both, we affirm the judgment of the trial
court.
Facts and Procedural History
[2] In May 2008, the Platts executed a note and mortgage in exchange for an FHA
home loan from an Indiana company called Preferred Capital. In February
2010, CitiMortgage filed a complaint to foreclose on the mortgage, alleging,
among other things, that it is “entitled to enforce” the note and mortgage and
that the Platts had defaulted by falling behind on their payments. Appellee’s
App. p. 2. In support of its claim that it is entitled to enforce the note and
mortgage, CitiMortgage attached to its complaint copies of several documents,
including (1) the note, which showed that Preferred Capital had endorsed it to
CitiMortgage the same day the Platts signed it, (2) a “Note Allonge
Endorsement,” which reflected the same endorsement, (3) the mortgage, which
identified the mortgagee as Mortgage Electronic Registration Systems, Inc.
(“MERS”) “solely as nominee” for Preferred Capital, and (4) a subsequent
assignment of the mortgage from MERS (“as nominee for PREFERRED
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CAPITAL”) to CitiMortgage. Id. at 5-16. The case was assigned to the Marion
Superior Court.
[3] In their answer to CitiMortgage’s complaint, the Platts denied being in default,
but they acknowledged that “Preferred Capital assigned Mr. & Mrs. Platt’s
FH[A] loan to the plaintiff.” Id. at 21.1 The Platts also requested a settlement
conference. After the conference was held, CitiMortgage filed a report
explaining that the conference “resulted in the preliminary approval of
Defendants for a repayment plan, which if fully performed by Defendants will
cure the delinquency.” Id. at 37. CitiMortgage said it would “dismiss the
present action if appropriate, but will proceed with foreclosure should
Defendants fail to comply with the conditions of and timely execution of the
repayment plan.” Id. Just over a month later, CitiMortgage filed a Notice of
Failed Settlement to inform the trial court that the Platts had failed to comply
with the agreed-upon repayment plan:
Timothy and Sonia Platt were offered a Stipulated Special
Forbearance Plan Agreement. Under the terms of the Stipulated
Special Forbearance Plan Agreement, the defendants were
required to make payments in the amount of $100.00 due on
April 23, 2010, $300.00 due on May 23, 2010 and $300.00 due on
June 23, 2010. The defendants failed to submit complete
payments. Additionally, under the terms of the Stipulated
1
In addition to their answer, the Platts filed a counterclaim that accused CitiMortgage of libel and of “an
elaborate plan . . . to embezzle federal taxpayer dollars by submitting highly inflated costs to be paid by the
FHA mortgage insurance policy associated with Mr. & Mrs. Platt’s mortgage.” Appellee’s App. p. 21-25.
The trial court eventually granted summary judgment in favor of CitiMortgage on the counterclaim. The
Platts have not appealed that ruling.
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Special Forbearance Plan Agreement, the lender states it will not
accept payment from Mr. & Mrs. Platt when payment is made
from their personal checking account with their personal check.
Defendant[s] failed to abide by the terms of the agreement, and
sent incomplete payments with personal checks.
Id. at 39. As a result, the litigation continued.
[4] In April 2011, CitiMortgage sent discovery requests to the Platts, including
requests for admission under Indiana Trial Rule 36. CitiMortgage asked the
Platts to admit that the note “has been properly endorsed from Preferred
Capital to the Plaintiff, CitiMortgage, Inc.,” that CitiMortgage “is the current
holder of the Note and Mortgage,” that “payments are delinquent pursuant to
the terms of the Note,” that the Platts “have defaulted on the Mortgage by
reason of nonpayment,” that “as a result of the default on the Note and
Mortgage, [CitiMortgage] is entitled to foreclose on the same,” and that “every
statement or allegation contained in [CitiMortgage’s] Complaint is true and
correct.” Id. at 78-80. The Platts did not respond to the requests, meaning that
the matters set forth were deemed admitted by virtue of Rule 36.
[5] In October 2011, CitiMortgage filed a motion for summary judgment. Among
the materials it designated in support of the motion were its complaint and the
attachments (including the note, mortgage, Note Allonge Endorsement, and
mortgage assignment), the requests for admission to which the Platts failed to
respond, and an affidavit from a Document Control Officer. The affidavit
stated that “[CitiMortgage’s] agent has possession of the original promissory
note, which has been endorsed to [CitiMortgage],” that the Platts were in
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default, and that the total amount due to CitiMortgage was $53,654.85. Id. at
114-15. The Platts filed an “objection” to CitiMortgage’s motion, making a
variety of allegations and arguments, but they did not designate any evidence or
cite any legal authority.
[6] Shortly before a hearing was to be held on the motion, the Platts removed the
case to federal court, where it remained for the next fourteen months. After the
federal court remanded the case to the state court, CitiMortgage asked for a
ruling on its motion for summary judgment. The Platts filed another written
“objection” to the entry of summary judgment, but, again, they did not
designate any evidence or cite any legal authority. The trial court held a
hearing in January 2015 and then granted CitiMortgage’s motion and issued the
monetary judgment and decree of foreclosure that CitiMortgage had requested.
[7] The Platts now appeal.
Discussion and Decision
[8] Two very basic principles govern our disposition of the Platts’ appeal. First,
appellate arguments must be supported by cogent reasoning, citations to legal
authority, and citations to evidence in the record, see Ind. Appellate Rule
46(A)(8)(a), and those that are not are deemed waived, see, e.g., Pierce v. State, 29
N.E.3d 1258, 1267 (Ind. 2015). Second, a party waives for appeal any issue or
argument that he or she does not present to the trial court. See, e.g., Cavens v.
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Zaberdac, 849 N.E.2d 526, 533 (Ind. 2006). We conclude that the Platts waived
all of their arguments on appeal for one or both of these reasons.2
[9] The Platts first argue that CitiMortgage “knowingly submitted fraudulent
documents to the Court, claiming those documents were authentic.”
Appellants’ Br. p. 3. They contend that the mortgage, the assignment of
mortgage from MERS to CitiMortgage, the Notice of Failed Settlement,
CitiMortgage’s Memorandum in Support of Summary Judgment, and a
“Notice of Presentment” filed by CitiMortgage after the summary-judgment
hearing are all fraudulent in one way or another. The Platts raised similar
claims in the trial court, but they did not designate any evidence then, and they
do not cite any on appeal. In the absence of any actual evidence of fraud, their
claim necessarily fails.
[10] The Platts also argue that even if the mortgage assignment was not fraudulent,
it was “invalid” because it was executed by MERS—Preferred Capital’s
“nominee”—rather than by Preferred Capital itself, and “[a]ny enforceable
assignment of interest in the note must come directly from Preferred Capital to
CitiMortgage, not from MERS to CitiMortgage.” Id. at 10. There is no
indication in the record before us that the Platts made an argument in the trial
2
Our identification of the issues raised (or not raised) below is based on the Platts’ written submissions to the
trial court. To the extent that the Platts raised any additional issues during the hearing held in January 2015,
they waived them for purposes of appeal by failing to provide us with a transcript of that hearing pursuant to
Appellate Rule 9(F)(5), a “statement of the evidence” pursuant to Appellate Rule 31, or an “agreed statement
of the record” pursuant to Appellate Rule 33.
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court based on MERS’ involvement, nor do they cite any legal authority in
support of their position.3 Furthermore, the Platts acknowledged in their
answer that “Preferred Capital assigned Mr. & Mrs. Platt’s FH[A] loan to the
plaintiff,” and they admitted (by failing to respond to CitiMortgage’s requests
for admission) that the note was “properly endorsed from Preferred Capital to
the Plaintiff, CitiMortgage, Inc.,” that CitiMortgage “is the current holder of
the Note and Mortgage,” that “payments are delinquent pursuant to the terms
of the Note,” that the Platts “have defaulted on the Mortgage by reason of
nonpayment,” that “as a result of the default on the Note and Mortgage,
[CitiMortgage] is entitled to foreclose on the same,” and that “every statement
or allegation contained in [CitiMortgage’s] Complaint is true and correct.”
They offer no coherent argument as to why they should not be bound by these
admissions.
[11] The Platts contend that CitiMortgage “has specific loss mitigation actions that
CitiMortgage is contractually obligated to pursue prior to initiating a
foreclosure on an FHA-insured mortgage,” that CitiMortgage “ignored those
obligations and HUD/FH[A] regulations,” and that they were “denied Due
Process” as a result. Id. at 5. There is no indication in the record before us that
the Platts raised this argument in the trial court, nor do they tell us what specific
3
The Platts cite Indiana Code section 26-1-3.1-301, but that statute simply defines who is a “person entitled
to enforce” a negotiable instrument.
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“obligations” or “regulations” CitiMortgage allegedly ignored.4 Also, the
requirement of “due process” generally applies only to “state action,” not to
conduct of private parties like CitiMortgage. See, e.g., Ind. High Sch. Athletic
Ass’n, Inc. v. Carlberg by Carlberg, 694 N.E.2d 222, 236 n.20 (Ind. 1997), reh’g
denied.
[12] The Platts argue that CitiMortgage “began to misdirect payments and even
refusing some payments entirely, thus orchestrating the default” and that the
trial court should have required CitiMortgage to provide a “ledger of payments
showing how each payment was applied.” Id. at 14. There is no indication in
the record before us that the Platts raised these arguments in the trial court, nor
do they cite any evidence or authority that supports them.
[13] The Platts assert that the settlement conference held in April 2010 was
“disingenuous” and “was not used as a final effort to avoid foreclosure” but
rather to “coerce Mr. & Mrs. Platt into converting their FHA-insured mortgage
into a more costly conventional mortgage.” Id. at 15. There is no indication in
the record before us that the Platts raised this argument in the trial court, nor do
they cite anything in the record that supports it.
4
The Platts cite “24 C.F.R. § 203.500 et seq.,” see Appellants’ Br. p. 14, but section 203.500 is called
“Mortgage Servicing Generally” and does not impose any specific obligations on loan servicers, and the “et
seq.” add-on is similarly unhelpful. They also cite “Mortgagee Letter 2008-07 (“Treble Damages for Failure
to Engage in Loss Mitigation”) (Sept. 26, 2008)” and “Mortgagee Letter 1996-25 (“Existing Alternatives to
Foreclosure – Loss Mitigation”) (May 8, 1996),” see id. at 14-15, but they do not provide copies of those
letters or tell us the source or content of the letters.
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[14] The Platts allege that CitiMortgage violated Indiana Code section 32-30-10.5-
8(a), which provides, in part, that “not later than thirty (30) days before a
creditor files an action for foreclosure, the creditor shall send to the debtor by
certified mail a presuit notice on a form prescribed by the [Indiana Housing and
Community Development Authority].” There is no indication in the record
before us that the Platts raised this argument in the trial court. And even if it is
true that the Platts did not get formal pre-suit notice, they make no cogent
argument and cite no authority that would support reversal on that basis.
[15] The Platts contend that the case should have been heard by the Marion Circuit
Court instead of the Marion Superior Court. They do not contend that the
superior court lacked jurisdiction to hear the case, nor could they. See Noerr v.
Schmidt, 151 Ind. 579, 51 N.E. 332, 333 (1898) (holding that Marion Superior
Court has jurisdiction of actions to foreclose mortgages on real estate in Marion
County), reh’g denied. They only assert that the superior court was an
“improper venue” under Indiana Code section 32-30-10-3, which at the time
CitiMortgage filed suit provided that a mortgage-foreclosure action “may
proceed in the circuit court of the county where the real estate is located[.]” Ind.
Code Ann. § 32-30-10-3(a) (West 2013) (emphasis added).5 However, it is well
established that an objection to venue is waived if not raised early on in the
trial-court proceedings. See, e.g., Ind. Trial Rules 12(H) and 75; Floyd v. State,
5
The statute has since been amended to clarify that foreclosure cases “may proceed in the circuit court,
superior court, or probate court of the county where the real estate is located[.]” See P.L. 84-2016, § 144.
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503 N.E.2d 390, 393 (Ind. 1987) (“Many times this Court has held that a
defendant waives error relating to venue when he fails to make an objection at
the appropriate time in the trial court.”), reh’g denied; State ex rel. Ind. Life &
Health Ins. Guaranty Ass’n v. Superior Court of Marion Cnty., Room No. 7, 272 Ind.
421, 399 N.E.2d 356, 359 (1980) (explaining that venue objection must “be
presented to the trial court in a pleading or a Trial Rule 12(B) motion within the
time limitations imposed by Trial Rules 6 and 12”). Here, there is no indication
in the record before us that the Platts ever raised a venue objection in the trial
court, let alone early on in the proceedings.
[16] The Platts assert that the trial court “transformed the motion hearing into a full-
blown evidentiary hearing, which denied Mr. & Mrs. Platt the opportunity to
present their original mortgage documents.” Appellants’ Br. p. 16. They do
not offer any supporting citations to the record, nor have they provided us with
a transcript of the hearing. Therefore, we have no way of evaluating their
claim.
[17] The Platts’ last argument—a single sentence at the end of their brief—is that
they “are entitled to treble damages. (Ind. Code § 24-5.5-6-3).” Id. at 17. There
is no indication in the record before us that the Platts made a claim under that
statute in the trial court. Furthermore, the Platts make no argument as to how
or why Article 24-5.5 of the Indiana Code, which addresses “mortgage rescue
protection fraud,” is relevant to this case.
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[18] Because the Platts have waived all of the arguments they raise on appeal, we
affirm the judgment of the trial court.6
[19] Affirmed.
Baker, J., and Najam, J., concur.
6
On July 24, 2016, more than 30 days after CitiMortgage filed its Appellee’s Brief, the Platts submitted a
reply brief. Indiana Appellate Rule 45(B)(3), though, provides that an appellant’s reply brief “shall be filed
no later than fifteen (15) days after service of the appellee’s brief.” For that reason, the Platts’ brief has not
been “filed.” Nonetheless, on August 3, CitiMortgage filed a motion asking us to “strike” the brief. In a
separate order issued today, we (1) direct the Clerk of this Court not to file the brief and (2) deny
CitiMortgage’s motion to strike as moot. Nevertheless, we note that we have reviewed the brief and that,
even if the Platts had timely filed it, it would not have altered the analysis above.
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