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Appeals panel affirms partial summary judgment in foreclosure suit

June 30, 2015

The Indiana Court Appeals affirmed partial summary judgment granted in a mortgage foreclosure suit, rebuffing a creditor’s interlocutory appeal seeking summary judgment to foreclose the mortgage.

In Wilmington Savings Fund Society, FSB, Not In Its Individual Capacity But Solely as Trustee for the Primestar-H Fund I Trust v. Ty Bowling and Asset Acceptance, LLC, 39A05-1409-MF-433, Wilmington was granted summary judgment to foreclose a note, but not the mortgage, which had been reassigned numerous times.

“Wilmington argues that the trial court determined that it was not entitled to foreclose the mortgage. Its assertion is incorrect,” Senior Judge William Garrard wrote for the panel.

“The trial court determined that as simply a holder of the note, Wilmington was not entitled to summary judgment on the foreclosure question. It determined that there remained genuine factual disputes concerning the defenses alleged by Bowling that were available against a holder. If at a trial on the merits Wilmington prevailed against the defenses, it would be entitled to foreclosure.”

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