A bank won summary judgment in a refiled mortgage foreclosure suit against a bankrupt couple after its first complaint was dismissed, but the Indiana Court of Appeals slapped down the trial court ruling Monday and dismissed the case.
“On the record before us, we find the Bank’s belated waiver argument disingenuous and without merit,” Judge Ezra Friedlander wrote for the panel in Demetrius L. Grant, and Vickie O. Grant v. The Bank of New York Mellon Trust Co., 49A05-1404-MF-139.
The bank’s initial suit against the Grants was dismissed after more than a year passed without prosecution. The Grants, who had lived in the house subject to the suit for more than 30 years, filed a Trial Rule 41(E) motion to dismiss the case, which a Marion Superior judge granted when the Grants appeared for a hearing but bank attorneys did not. The bank was denied a request to reinstate the suit, but two months later refiled a complaint that the appeals panel said restated identical issues.
The trial court granted summary judgment in favor of the bank on its second complaint, but the appeals court called the filing of that suit “improper. … This violated both T.R. 41 and principles of res judicata. Accordingly, the trial court erred when it granted summary judgment in favor of the Bank. The trial court is directed on remand to vacate the grant of summary judgment and dismiss the Bank’s complaint,” Friedlander wrote.
Under Trial Rule 41(B), the panel wrote in a footnote, “Unless the court in its order for dismissal otherwise specifies, a dismissal under this subdivision or subdivision (E) of this rule … operates as an adjudication upon the merits. In this case … the dismissal of the First Foreclosure Action was with prejudice.”
The panel of Friedlander and Judges Terry Crone and James Kirsch also took the bank to task in a footnote for citing to inapplicable authority.
"In support of its waiver argument, the Bank relies on a number of cases applying Indiana Appellate Rule 46(C), which provides that no new issues shall be raised in a reply brief. This rule applies to appellate briefs and, of course, has no applicability to trial court filings. We are perplexed by the Bank’s reliance on these cases with respect (to) the Grants’ summary judgment filings," the panel concluded.