Yolanda R. Marshall v. HSBC Bank USA, National Association (mem. dec.)

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be FILED
regarded as precedent or cited before any
Apr 15 2019, 9:38 am
court except for the purpose of establishing
the defense of res judicata, collateral CLERK
Indiana Supreme Court
estoppel, or the law of the case. Court of Appeals
and Tax Court

APPELLANT PRO SE ATTORNEYS FOR APPELLEE
Yolanda R. Marshall Jennifer L. Fisher
Fishers, Indiana Hinshaw & Culbertson LLP
Schererville, Indiana
J. Dustin Smith
Manley Deas Kochalski LLC
Indianapolis, Indiana

IN THE
COURT OF APPEALS OF INDIANA

Yolanda R. Marshall, April 15, 2019
Appellant-Defendant, Court of Appeals Case No.
18A-MF-1959
v. Appeal from the
Hamilton Superior Court
HSBC Bank USA, National The Honorable
Association,1 Darren J. Murphy,
Judge Pro Tempore
Appellee-Plaintiff.
Trial Court Cause No.
29D03-1511-MF-9429

1
The captions on the cover pages of the parties’ briefs incorrectly state the name as “HSBC Bank US,
National Association.”

Court of Appeals of Indiana | Memorandum Decision 18A-MF-1959 | April 15, 2019 Page 1 of 18
 Kirsch, Judge.

[1] Yolanda R. Marshall (“Marshall”) appeals the trial court’s August 16, 2018

orders denying her motion to compel discovery and her motion to set aside the

“In Rem Summary Judgment, Default Judgment and Decree of Foreclosure”

(“Default Judgment”) entered in favor of HSBC Bank USA, National

Association, as Trustee for Option One Mortgage Loan Trust 2007-HL1, Asset-

Backed Certificates, Series 2007-HLl2 (“the Bank”). On appeal, Marshall raises

the following restated issues:

I. Whether the trial court showed bias, resulting in prejudice,
when it delayed ruling on Marshall’s motion to compel discovery
related to post-judgment communications that she contends
warranted the setting aside of the Default Judgment;

II. Whether the trial court abused its discretion when it denied
Marshall’s motion to compel the Bank to produce those post-
judgment communications; and

III. Whether the trial court abused its discretion when it denied
Marshall’s motion to set aside the Default Judgment.3

2
The foreclosure complaint was filed by “HSBC Bank USA, National Association, as Trustee for Option
One Mortgage Loan Trust 2007-HL1, Asset-Backed Certificates, Series 2007-HLl.” The instant appeal refers
to the plaintiff as “HSBC Bank USA, National Association.” It appears that the parties use these names
interchangeably to refer to the same entity.
3
Marshall raises only the first two issues. However, because a decision on Issues I and II, without more,
would not settle the dispute between Marshall and the Bank, we understand Marshall to argue that, but for
the trial court’s denial of her Motion to Compel, the trial court would have set aside the Judgment on the
basis of that evidence. Accordingly, we also address whether the trial court abused its discretion by denying
Marshall’s motion to set aside the Default Judgment pursuant to Indiana Trial Rule 60(B).

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[2] We affirm.

Facts and Procedural History4
[3] In December 2006, Marshall was the owner of a home (“the property”) in

Hamilton County, Indiana. Title to the property was held by Marshall, who

was obligated to the Bank under a promissory note (“Note”). To secure the

Note, Marshall had executed a mortgage (“Mortgage”), which was a valid first

lien against the property and gave the Bank the right to foreclose on the

property in the event of default. When Marshall defaulted under the terms of

the Note and Mortgage, the Bank declared the entire indebtedness due and

payable, and on November 10, 2015, the Bank filed “Complaint on Promissory

Note and to Foreclose Mortgage” against Marshall.5 Appellant’s App. Vol. 2 at 3,

14, 23.

[4] In November 2016, Marshall filed for protection under Chapter 7 Bankruptcy,

which automatically stayed the foreclosure proceedings. On February 8, 2017,

after the stay was lifted, the Bank filed a “Motion for Summary Judgment and

Decree of Foreclosure,” alleging that, although Marshall had been discharged

4
We have discerned the pertinent facts and procedural history from our review of the record before us and
from the trial court’s record as reflected on Odyssey, the Indiana courts case management system, under
Cause Number 29D03-1511-MF-9429. See Ind. Appellate Rule 27 (“The Record on Appeal . . . consist[s] of
the Clerk’s Record and all proceedings before the trial court . . . whether or not transcribed or transmitted to
the Court on Appeal.”). A reference to a document found in “Odyssey,” will contain that designation.
5
The Bank also named the following entities as defendants in the foreclosure action: North Star Capital
Acquisition, PNC Bank, and Summerlin Trails Homeowners Association Inc. Appellant’s App. Vol. 2 at 3.
However, these defendants did not file an answer to the Bank’s complaint and are not parties to this appeal.
Odyssey, Motion for Default Judgment.

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 in bankruptcy from any personal obligation under the Note and Mortgage, the

Bank was “entitled to an in rem judgment and to proceed to Sheriff’s sale to sell

the mortgaged property and apply the proceeds to the in rem judgment,

pursuant to the Federal Bankruptcy Order.” Odyssey, Motion for Summary

Judgment. The trial court entered the Default Judgment in favor of the Bank on

May 4, 2017. Odyssey, Default Judgment Order.

[5] On August 17, 2017, the Hamilton County Sheriff’s Department (“the Sheriff”)

sold the property to the Bank, as the highest bidder, upon the terms and

conditions set forth in the “Judgment Entry and Decree of Foreclosure and

Notice of Sheriff Sale.” Appellant’s App. Vol. 2 at 15. The purchase of the

property entitled the Bank to take possession, and the Bank sent an agent to

inspect the property. When the agent found Marshall still living in the

property, he gave her the contact information for his employer, Altisource. At

that time, Altisource was a property management company and an agent of

Ocwen Loan Servicing, LLC (“Ocwen”). Ocwen, in turn, serviced the Bank’s

Note and Mortgage.

[6] Altisource’s agent told Marshall that cash might be available to assist in her

relocation. Marshall contacted Altisource, and on August 30, 2017, Marshall

and the agent came to an agreement pursuant to which Marshall would be paid

$1,500 if she adhered to certain conditions, one of which required her to vacate

the property by September 27, 2017. Id. at 36. The agent emailed the

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 “Occupancy Termination Agreement” (“the Occupancy Agreement”)6 to

Marshall and requested that she sign and return it “within the next couple of

days,” and Marshall complied. Appellant’s Br. at 6. Meanwhile, on September

1, 2017, the trial court granted the Bank its first Writ of Assistance, which

ordered the Sheriff to assist the Bank in taking possession of the property.

Appellant’s App. Vol. 2 at 6.

[7] On September 13, 2017, two weeks before the move-out deadline, Marshall

received a voicemail from an Altisource employee who informed her: the

property had “moved into nonmarketable”; Marshall should contact Ocwen

because Altisource “no longer service[d] the property”; the Occupancy

Agreement was being cancelled; and Marshall could continue to reside in the

property. Appellant’s Br. at 6; Appellant’s App. Vol. 2 at 18. To clarify the

meaning of the call, Marshall telephoned Altisource that same day, and an

agent told her that the foreclosure had been “rescinded.” Appellant’s Br. at 6.

The agent stated that the property was now under the status of

“nonmarketable” and that Marshall was allowed to continue to reside in the

property. Id. The next day, September 14, 2017, Marshall contacted Ocwen,

trying to confirm the new status. An Ocwen agent told Marshall that “the

property’s status had moved to “nonmarketable” and “congratulations.” Id.

6
It appears that the parties to the Occupancy Agreement were Marshall and Ocwen. Appellant’s App. Vol. 2 at
36-38.

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 The September telephone conversations with Altisource and Ocwen were both

recorded.

[8] Thereafter, Marshall called the Sheriff to ascertain the department’s procedure

in executing the Writ of Assistance. Marshall learned that the Sheriff

“normally wait[s] until the Plaintiff contacts them to give permission to

continue with the Writ of Assistance,” and, to date, the Bank had not contacted

the Sheriff. Id. at 6-7. Neither the Sheriff nor the Bank made any further

contact with Marshall, and she continued to reside in the property until April 9,

2018.

[9] On April 10, 2018, the Bank requested a second Writ of Assistance, contending

that it had previously received a judgment and decree of foreclosure against the

property, it had purchased the property at the Sheriff sale, it now owned the

property and was entitled to immediate possession, and “[Marshall] and/or

other persons are wrongfully residing in the subject real estate and have failed to

surrender the real estate to [the Bank].” Appellant’s App. Vol. 2 at 14-15. The

trial court granted the Bank a second Writ of Assistance on April 16, 2018.

That same day, Marshall filed a verified motion to set aside the Default

Judgment pursuant to Indiana Trial Rule 60(B)(6), (7), and (8). In support of

her motion, Marshall cited to the September 13 and 14, 2017 telephone calls

and the statements therein that the foreclosure had been rescinded, and she

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 could keep living in the property. The trial court vacated the second Writ of

Assistance,7 reopened the case, and set a hearing for April 17, 2018.

[10] On May 23, 2018, Marshall served a Request for Production, asking the Bank

to produce: (1) “the audio files of the telephone conversations between

[Marshall] and Altisource on September l3, 2017,” and (2) “the audio files of

the telephone conversations between [Marshall] and Ocwen on September l4,

20l7.”8 Id. at 29. Less than two weeks later, on July 6, 2018, Marshall, without

first reaching out to the Bank, filed a motion to compel discovery of the

September 2017 telephone calls. The Bank filed a response in opposition to

Marshall’s motion to compel, arguing that the motion should be denied because

Marshall failed to comply with Indiana Trial Rule 26(F), which requires

certification that the movant made a reasonable effort to reach an agreement

with opposing counsel before filing a motion to compel. Id. at 24-25. The Bank

also filed a response to Marshall’s Request for Production, arguing that

Marshall sought evidence that was not relevant to the subject matter of the

litigation. Id. at 26-27. In her reply, Marshall countered, without elaboration,

7
This allowed Marshall to continue living in the property.
8
It was Marshall’s theory that the contents of those recordings reflected the Bank’s intent to give this
property to Marshall as a gift. During the hearing on the motion to set aside, Marshall stated: “If it is
established that it was a gift, or if it’s established that it was a new contract that was entered into, that would
set aside [the Judgment] because that means the [J]udgment was not a judgment, they removed the
[J]udgement by their own voluntary actions.” Tr. Vol. II at 10.

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 that the recordings were relevant since they gave “direct facts for the Motion to

Set Aside/Vacate Judgment.” Id. at 34.

[11] During an August 14, 2018 hearing, the trial court began by inviting Marshall

to present any argument in support of her Trial Rule 60(B) motion to set aside

the foreclosure judgment. Tr. Vol. II at 4. Marshall immediately asked if the

trial court had made a ruling on the pending motion to compel discovery. The

trial court responded by denying the motion and saying, “The discovery tools

are for pending cases, this case has been done for a year, so from the Court’s

point of view unless it’s necessary, per the explanation of the trial rules, there’s

no more discovery to be had.” Id. at 4-5. Marshall said she understood and

proceeded with her argument on the motion to set aside. Id. at 5.

[12] Over the Bank’s objection, Marshall introduced into evidence a copy of the

Occupancy Agreement as proof that there was a relationship between the Bank,

Ocwen, and Altisource. Next, Marshall offered into evidence the transcripts

and recordings of the September 2017 conversations between herself and each

of Altisource and Ocwen—recordings from which Marshall learned that the

foreclosure was rescinded and that she could continue to live in the property.

In response to the Bank’s objection, the trial court asked Marshall why these

exhibits were relevant. Marshall responded that the recordings supported her

claim that she owned the property because the Bank had either given it to her as

an “an inter vivos gift” or by way of a “unilateral contract.” Id. at 10. Marshall

argued that the Bank “removed the [Default J]udgment by their own voluntary

actions,” and said she “was given the impression that it was a gift because they

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 voluntarily said they rescinded the mortgage, the foreclosure.” Id. at 13.

Marshall interpreted these actions to mean that there was no longer a Default

Judgment, saying, “if they’re rescinding it, they’re taking away the judgment.”

Id. at 13. The trial court did not believe that the property was legally in the

possession of Marshall and denied her motion to set aside the Default

Judgment. Marshall now appeals.

Discussion and Decision

I. No Bias and No Prejudice
[13] Marshall contends that the trial court “showed extreme bias in favor of the

[Bank]” when the court did not rule on her motion to compel before the hearing

on her motion to set aside.9 Id. at 11. Marshall notes that the trial court began

the hearing without addressing the pending motion to compel, even though the

court had already decided to deny the motion. Id. Observing that the trial

judge only denied her motion after Marshall inquired as to its status, Marshall

argues, the delay “was unfair and prejudicial against [Marshall]” because it

showed “bias in favor of [the Bank] by not allowing [Marshall] knowledge of its

decision and ability to prepare a response . . . .” Id.

[14] “A party’s success on a claim of bias and prejudice hinges on its ability to make

a plain showing that unfairness and prejudice existed and controlled the result.”

9
We note that, contrary to Marshall’s claim, the trial court did rule on her motion to compel before Marshall
began to introduce evidence in support of her motion to set aside the Default Judgment. Tr. Vol. II at 4-5.

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 M.S. ex rel. Newman v. K.R., 871 N.E.2d 303, 314 (Ind. Ct. App. 2007), trans.

denied. “The law presumes that a judge is unbiased and unprejudiced.” L.G. v.

S.L., 88 N.E.3d 1069, 1073 (Ind. 2018). “To overcome this presumption, the

moving party must establish that the judge has personal prejudice for or against

a party.” Id. “Adverse rulings and findings by a trial judge are not sufficient

reason to believe the judge has a personal bias or prejudice.” Id. In her brief,

Marshall provides only conclusory statements that the delay “was unfair and

prejudicial against [Marshall]” because it showed “bias in favor of [the Bank] by

not allowing [Marshall] knowledge of its decision and ability to prepare a

response . . . .” Tr. Vol. II at 11. Yet, Marshall does not offer how extra time

would have allowed her to prepare a successful response to the judge’s ruling,

nor does she offer any other evidence to prove she was prejudiced by the timing

of the trial court’s ruling on her motion to compel. Accordingly, we reject

Marshall’s claim that the trial court was biased in favor of the Bank and that

such bias prejudiced the outcome of Marshall’s case.

II. Motion to Compel
[15] Marshall next contends that the trial court abused its discretion by denying her

motion to compel. “Trial courts are afforded broad discretion in ruling on

issues of discovery.” Angelopoulos v. Angelopoulos, 76 N.E.3d 852, 859 (Ind. Ct.

App. 2017) (citing Allstate Ins. Co. v. Scroghan, 851 N.E.2d 317, 321 (Ind. Ct.

App. 2006)). On appeal, “we will reverse the trial court only upon a showing

that the trial court abused this discretion.” Id. “That is, we will reverse the trial

court’s ruling on a discovery matter only if the court’s decision is clearly against

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 the logic and natural inferences to be drawn from the facts and circumstances

before the court.” Id. On appeal, we will not reweigh the evidence or assess the

credibility of witnesses. Id. Instead, “we simply determine whether the

evidence and circumstances before the court served as a rational basis for the

trial court’s decision.” Id.

[16] Prior to the start of the hearing on the motion to set aside, Marshall asked the

trial judge whether he had ruled on her motion to compel. Tr. Vol. II at 4. In

denying her motion, the trial judge responded, “The discovery tools are for

pending cases, this case has been done for a year, so from the Court[’]s point of

view unless it’s necessary, per the explanation of the trial rules, there’s no more

discovery to be had.”10 Id. at 4-5. On appeal, Marshall contends that the trial

judge abused his discretion in denying her motion to compel discovery because

his ruling “does not correspond to Indiana Trial Rule 28(H).” Appellant’s Br. at

12. Specifically, she understands the trial judge’s comments to mean that the

motion to compel was denied because discovery is only permitted prior to

judgment. Id. The Bank, however, acknowledges that such a conclusion would

be contrary to Trial Rule 28(H), which allows for discovery after judgment “in

proceedings to enforce or challenge the judgment.” Appellee’s Br. at 15 (citing

Ind. Trial Rule 28(H)). Contrary to Marshall’s interpretation, the trial judge did

not indicate that discovery is never available in post-judgment proceedings.

10
Marshall contends that she does not recall the court having made the transcribed statement. Instead, it is
her recollection that the trial court said, “it is too late for discovery,” to which Marshall responded, “Ok.
Ok.” Appellant’s Br. at 12.

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 Rather, the trial judge indicated that discovery is available only where

“necessary, per the explanation of the trial rules.” Tr. Vol. II at 5. In other

words, discovery is available only if “relevant to the subject matter involved in

the pending action.” See Ind. Trial Rule 26(B)(1) (emphasis added).

[17] To determine whether the September 2017 telephone conversations were

relevant to the subject matter of the litigation, and therefore discoverable, we

must look to the issues before the trial court. Marshall sought relief from the

Default Judgment pursuant to Indiana Trial Rules 60(B)(6), (7), and (8). Trial

Rule 60(B)(6) permits a trial court to set aside a void judgment. “‘A void

judgment is one that, from its inception, is a complete nullity and without legal

effect . . . .’” Stidham v. Whelchel, 698 N.E.2d 1152, 1154 (Ind. 1998) (quoting

46 Am. Jur. 2d Judgments § 31 (1994)). Generally, in the context of foreclosure

actions, a party bringing a “motion for relief from judgment under Trial Rule

60(B)(6),” alleges that “the default judgment was void for lack of personal

jurisdiction because [the party] had no notice of the foreclosure proceeding.”

Citimortgage, Inc. v. Barabas, 975 N.E.2d 805, 816 (Ind. 2012). Here, Marshall

makes no such claim, and even if she did, Marshall’s conversations with

Altisource and Ocwen would not be relevant to the question of whether the

Default Judgment was void from its inception. The trial court did not abuse its

discretion when it denied Marshall’s motion to compel pursuant to her

argument under Trial Rule 60(B)(6).

[18] Trial Rule 60(B)(7) permits a trial court to set aside a judgment that has been

satisfied, released, or discharged. Marshall contends that statements made by

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 Altisource and Ocwen—that the mortgage or foreclosure had been rescinded—

was evidence that Marshall had been released from the foreclosure judgment.

Marshall characterizes the purported rescission as arising from the Bank having

given her the property through a unilateral contract or as an inter vivos gift. Tr.

Vol. II at 9-10. Regarding the claim of unilateral contract, Indiana “law is

settled that a right to the possession of real estate is an interest therein, and any

contract which seeks to convey an interest in land is required to be in writing” to be

effective under the Statute of Frauds. Brown v. Branch, 758 N.E.2d 48, 51 (Ind.

2001) (emphasis in original) (internal quotation marks omitted). The evidence

contained in the recorded conversations was not relevant to this issue.

[19] As to the claim that the property was a gift, our court has said, “To make a

valid inter vivos gift, there must be both an intention to give and a stripping of

the donor of all dominion or control over the given thing and a change of title

must be irrevocable. Brackin v. Brackin, 894 N.E.2d 206, 210 (Ind. Ct. App.

2008). During the hearing to set aside, the Bank’s counsel said, “Clearly our

client has not gifted its property to Miss Marshall. Our client has never taken

any action to set aside the judgment that it has, it is not agreeable to such.” Tr.

Vol. II at 11. Here, the Bank categorically denied any intention to give Marshall

the property as a gift; therefore, general statements made by the Bank’s agents

regarding a purported rescission would not be relevant to the question of

whether the Default Judgment was satisfied, released, or discharged by means

of an inter vivos gift from the Bank to Marshall. The trial court did not abuse

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 its discretion when it denied Marshall’s motion to compel pursuant to her

argument under Trial Rule 60(B)(7) regarding unilateral contracts and gifts.

[20] Trial Rule 60(B)(8) allows a trial court to set aside a judgment where “relief is

otherwise necessary and just.” Gipson v. Gipson, 644 N.E.2d 876, 877 (Ind.

1994). Trial Rule 60(B)(8) “allows the trial court to set aside a judgment within

a reasonable time for any reason justifying relief other than those reasons set

forth in sub-paragraphs (1), (2), (3), and (4).” Brimhall v. Brewster, 864 N.E.2d

1148, 1153 (Ind. Ct. App. 2007) (internal quotation marks omitted), trans.

denied. “The trial court’s residual powers under subsection (8) may only be

invoked upon a showing of exceptional circumstances justifying extraordinary

relief.” Id. Trial Rule 60(B)(8) “is an omnibus provision which gives broad

equitable power to the trial court in the exercise of its discretion and imposes a

time limit based only on reasonableness.” Id. Nevertheless, under that rule,

“the party seeking relief from the judgment must show that its failure to act was

not merely due to an omission involving the mistake, surprise or excusable

neglect. Rather some extraordinary circumstances must be demonstrated

affirmatively.” Id.

[21] Here, Marshall presented no evidence of “exceptional circumstances justifying

extraordinary relief.” T.R. 60(B)(8). During the hearing, Marshall did not

dispute that she took out this loan, that she failed to repay it, and that the

matter was fully and fairly litigated on the merits. In fact, the foreclosure on the

property occurred only after Marshall’s debt under the Note had been

discharged in bankruptcy. Marshall also signed the Occupancy Agreement,

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 agreeing to vacate the property by September 27, 2017 in exchange for $1,500 in

relocation assistance. Appellant’s App. Vol. 2 at 35. This was a tacit admission

that she no longer had the right to live in the property. Our review of the

twenty-four-page transcript reveals that the trial court fully understood the

contents of the recordings, and nothing would have been added by admission of

the recordings. Marshall has cited to no exceptional circumstances justifying

extraordinary relief from the entry of the Default Judgment. The trial court did

not abuse its discretion when it denied Marshall’s motion to compel pursuant to

her argument under Trial Rule 60(B)(8).

III. Denial of Motion to Set Aside
[22] In the section above, we focused on Trial Rule 60(B)(6), (7), and (8) to

determine whether the motion to compel was properly denied. That inquiry

addressed the relevance of the omitted evidence. Here, we analyze those same

factors, however, in this section we consider whether the trial court abused its

discretion when it denied Marshall’s motion to set aside the Default Judgment.

A motion made under Trial Rule 60(B) to set aside a judgment is addressed to

the equitable discretion of the trial court. U.S. Bank, Nat’l Ass’n v. Miller, 44

N.E.3d 730, 738 (Ind. Ct. App. 2015) (citing In re Paternity of P.S.S., 934 N.E.2d

737, 740-41 (Ind. 2010). “‘Typically, we review a trial court’s ruling on a

motion to set aside a judgment for an abuse of discretion, meaning that we must

determine whether the trial court’s ruling is clearly against the logic and effect

of the facts and inferences supporting the ruling.’” Id. (quoting Hair v. Deutsche

Bank Nat'l Tr. Co., 18 N.E.3d 1019, 1022 (Ind. Ct. App. 2014)).

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[23] While Marshall makes no specific argument on appeal, she argued to the trial

court that the Default Judgment should be set aside because the Bank did not

act on the 2017 Writ of Assistance, the Bank never contacted her about moving

out, and the Bank’s agent gave her permission to continue to reside on the

property. Tr. Vol. II at 10. The trial court correctly noted that those factors

only related to the trial court’s decision on the Writ of Assistance, which the

trial court noted Marshall kept “confusing and conflating” with the motion to

set aside. Id. at 13, 10.

[24] As was true before the trial court, here, the issue is not whether Marshall had

permission to live on the property for almost a year after the Default Judgment;

instead, the issue is whether the trial court abused its discretion when it

determined that the Default Judgment was valid and survived a motion to set

aside. In the instant action, Marshall defaulted under the terms of the Note and

Mortgage. After the Bank declared the entire indebtedness due and payable, it

filed a complaint to foreclose on the property. However, prior to the

completion of the foreclosure action, Marshall filed for protection under

Chapter 7 Bankruptcy, thereby staying the foreclosure proceedings. Once the

stay was lifted, the Bank filed a motion for summary judgment and decree of

foreclosure, alleging that, although Marshall had been discharged in bankruptcy

from any personal obligation on the Note and Mortgage, the Bank was

“entitled to an in rem judgment and to proceed to Sheriff’s sale to sell the

mortgaged property and apply the proceeds to the in rem judgment, pursuant to

the Federal Bankruptcy Order.” Odyssey, Motion for Summary Judgment. On

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 May 4, 2017, the trial court entered the Default Judgment in favor of the Bank.

Odyssey, Default Judgment Order. Marshall did not appeal the grant of summary

judgment.

[25] To grant the motion to set aside the Default Judgment, the trial court had to

find that the property rightfully belonged to Marshall and that such ownership

was a significant enough factor to set aside the Default Judgment pursuant to

Trial Rule 60(B)(6), (7), and (8). Here, the trial court considered Marshall’s

arguments, but, as the finder of fact, it rejected Marshall’s testimony that the

property had been transferred to her by way of a gift or contract. The trial judge

said:

Alright I’ve reviewed your record and it appears that you’ve
participated in this case from the beginning, you were involved in
potential conversations, settlement conversations, you’ve
appeared at the Motion for Summary Judgment, the order was
granted in favor of the plaintiff, it was a valid judgment based
upon evidence, the Court ruled in favor of the plaintiff and
against you that order is in effect over a year ago [sic], what like
May of 2017 and then in response they sold the property. So
from my experience you’re not even in the chain of title
anymore. You provided me zero evidence so far to substantiate a
Trial Rule 60 rule for a Motion to Set Aside and that’s what I
need to know, do you have anything else because this isn’t going
to do it.

Tr. Vol. II at 15-16. Marshall continued to explain that the property belonged to

her either as a gift or through a unilateral contract, after which the trial court

said:

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 Miss Marshall I think that you placed a lot of hope in this
argument. Unfortunately, I don’t see a basis from what you’ve
told me so far to set aside the judgment . . . .

Id. at 17. Based on this evidence we cannot say that the trial court abused its

discretion when it denied Marshall’s motion to set aside. For the foregoing

reasons, we affirm the judgment of the trial court (1) denying Marshall’s motion

to compel; (2) denying Marshall’s motion to set aside the Default Judgment,

and (3) granting a writ of assistance in favor of the Bank.

[26] Affirmed.

Riley, J., and Robb, J., concur.

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