dissenting.
I respectfully dissent from the majority opinion with respect to its application of Ind.Code § 32-29-8-3 and its conclusion that MERS did not have an enforceable right under the mortgage.
A. Application of Ind,.Code § 32-29-8-3
The majority cites to Ind.Code § 32-29-8-3 and states that “[o]n October 23, 2009, over a year after ReCasa first foreclosed on the Property ..., Citi sought to assert its interest in the first mortgage” and that Ind.Code § 32-29-8-3 “precluded Citi’s claim because it failed to intervene until more than a year after it first acquired interest in the Property.” Op. at 16. However, the last sentence of Ind.Code § 32-29-8-3 states that “any assignee or transferee may redeem the premises, like any other creditor, during the period of one (1) year after the sale.” (Emphasis added). The judicial sale in this case occurred on January 23, 2009. (See App. at 133; Majority Opinion, op. at 16) Accordingly, the one-year period set forth in the statute began on January 23, 2009, not on the date ReCasa first foreclosed on the Property or the date the mortgage was assigned to Citi. Citi filed a motion to intervene and for relief from the amended default judgment on October 23, 2009, which was during the period one year after January 23, 2009. (Appellant’s App. at 83) Therefore, I would not conclude that Ind.Code § 32-29-8-3 applies to preclude Citi’s claim.
B. MERS as a Party Possessing Rights Under the Mortgage
The majority states that it chooses to follow the reasoning of Landmark Nat’l Bank v. Kesler, 289 Kan. 528, 216 P.3d 158 (2009), because it is factually similar to the present case. Op. at 17. As the majority notes, in Landmark the mortgagor obtained a loan from Millennia and granted a mortgage to MERS. 216 P.3d at 161. At some later time, the mortgage may have been assigned to Sovereign and Sovereign may have taken physical possession of the note, but the assignment was not registered with the county. Id. The mortgage granted to MERS in connection with the Millennia loan stated that MERS was acting “solely as the nominee” for the lender Millennia. Id. On appeal the Kansas court discussed the nature of the relationship between MERS and the lenders, noted that various courts have interpreted the *19relationship of MERS and a lender as an agency relationship, and found that “[t]he relationship that MERS has to Sovereign is more akin to that of a straw man than to a party possessing all the rights given a buyer.” Id. at 166.
Unlike in Landmark, the mortgage in this case was “given to Mortgage Electronic Registration Systems, Inc. (‘MERS’), (solely as nominee for Lender, as hereafter defined, and Lender’s successors and assigns), as mortgagee.’” Appellant’s Appendix at 88 (emphasis added). This language is set forth on the first page of the mortgage. (App. at 88) While there may be some ambiguity by the use of both the words “nominee” and “mortgagee” in the sentence here, the mortgage nevertheless does identify MERS, not lender Irwin Mortgage, as the mortgagee. (Appellant’s Appendix at 88-94 (mortgage))
Moreover, two facts here — that MERS, not Irwin Mortgage, assigned the mortgage to Citi, and Irwin Mortgage’s disclaimer of interest — indicate that MERS was more than a “straw man” and that MERS had a real interest in the Property. (App. at 127 (assignment), 51 (disclaimer))
I also observe that, while the notice provision relied upon in part by the majority specifies that “[a]ny notice to Lender shall be given ... to Lender’s address,” see Appellant’s Appendix at 93 (emphasis added), the mortgage also provided an address for MERS. (Appellant’s App. at 88 (MERS address))
For the foregoing reasons, I would find that Ind.Code § 32-29-8-3 does not preclude Citi’s claim and that MERS was not a “straw man” but had an enforceable right under the mortgage.